Res ipsa loquitur

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Tort law II
Part of the common law series
Negligent torts
Negligence  · Negligent hiring
Negligent entrustment  · Malpractice
Negligent infliction of emotional distress
Doctrines affecting liability
Duty of care  · Standard of care
Proximate cause  · Res ipsa loquitur
Calculus of negligence  · Eggshell skull
Vicarious liability  · Attractive nuisance
Rescue doctrine  · Duty to rescue
Comparative responsibility
Duties owed to visitors to property
Trespassers  · Licensees  · Invitees
Defenses to negligence
Contributory negligence
Last clear chance
Comparative negligence
Assumption of risk  · Intervening cause
Strict liability
Ultrahazardous activity
Product liability
Nuisance
Other areas of the common law
Contract law  · Property law
Wills and trusts
Criminal law  · Evidence

Res ipsa loquitur is a legal term from the Latin meaning literally, "The thing itself speaks" but is more often translated "The thing speaks for itself". The doctrine is applied to tort claims which, as a matter of law, do not have to be explained beyond the obvious facts. It is most useful to plaintiffs in certain negligence cases.

Under the old common law rule, to use res ipsa loquitur in the context of negligence the plaintiff must prove that:

1. The harm would not ordinarily have occurred without someone's negligence
2. The instrumentality of the harm was under the exclusive control of the defendant at the time of the likely negligent act
3. The plaintiff did not contribute to the harm by his own negligence.

This is usually referred to in the "scalpel left behind" example of obvious negligence in the case of a physician, in which a person goes in to a doctor for stomach pains after having their appendix removed. X-Rays determine the patient has a metal object in the size and shape of a scalpel in his stomach. It requires no further explanation to show the doctor was negligent, as there is no legitimate reason for a doctor to leave a scalpel behind in an appendix operation.

The "exclusive control" element has largely given way in modern cases to a less rigid formulation, where the plaintiff must prove that other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence. As a consequence, the third element, that the plaintiff did not contribute to his injury, is subsumed by the new formulation. In addition, it is important to note that contributory negligence is, in modern case law, reckoned in "comparison" to the injury caused by the other. For example, if the negligence of the other is 95% the cause of the plaintiff's injury, and the plaintiff is 5% responsible, the plaintiff's slight fault will not negate the negligence of the other.

• For instance, plaintiff Doe is injured when an elevator he has entered plunges several floors and stops abruptly.
• Jane's Corporation built, and is responsible for maintaining, the elevator.
• Doe sues Jane and during the proceedings, Jane claims that Doe's complaint should be dismissed because he has never proved, or for that matter even offered, a theory as to why the elevator functioned incorrectly. Therefore, argues Jane, there is no evidence that they were at fault in the incident.
• The court may hold that Doe does not have to prove anything beyond the fall itself.
• The elevator malfunctioned, Jane was responsible for the elevator in every respect, so they are responsible for the fall.
• The thing speaks for itself.

Contents 1 Byrne v. Boadle 2 Canada 3 Hong Kong 4 South Africa 5 United States 6 Popular culture

[edit] Byrne v. Boadle

The principle of res ipsa loquitur was first put forward by Baron Pollock in Byrne v. Boadle, 159 Eng.Rep. 299 (1863). Byrne was struck by a barrel of flour falling from a second-story window. The court's presumption was that a barrel of flour falling out of a second-story window is itself sufficient evidence of negligence:

We are all of opinion that the rule must be absolute to enter the verdict for the plaintiff. The learned counsel was quite right in saying that there are many accidents from which no presumption of negligence can arise, but I think it would be wrong to lay down as a rule that in no case can a presumption of negligence arise from the fact of an accident. Suppose in this case the barrel had rolled out of the warehouse and fallen on the plaintiff, how could he possibly ascertain from what cause it occurred? It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous.

The present case upon the evidence comes to this, a man is passing in front of the premises of a dealer in flour, and there falls down upon him a barrel of flour. I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had the control of it; and in my opinion the fact of its falling is prima facie evidence of negligence, and the plaintiff who was injured by it is not bound to show that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them.

[edit] Canada

In Canada the doctrine of res ipsa loquitur has been largely overturned by the Supreme Court. In case of Fontaine v. British Columbia (Official Administrator) [1998] 1 S.C.R. 424 the Court rejected the use of res ipsa loquitur and instead proposed the rule that once the plaintiff has proven that the harm was under exclusive control of the defendant and that they were not contributorally negligent a tactical burden is placed on the defendant in which the judge has the discretion to infer negligence unless the defendant can produce evidence to the contrary.

[edit] Hong Kong

Some lawyers prefer to avoid the expression res ipsa loquitur (For example, Hobhouse LJ in Ratcliffe v Plymouth & Torbay Health Authority [1998] PIQRP170). However, some other lawyers (and judges too) still find the expression a convenient one to refer to (For example, see Bokhary PJ, a permanent judge of the Hong Kong Court of Final Appeal, in Sanfield Building Contractors Ltd v Li Kai Cheong [2003] 6 HKCFAR 207).

The expression res ipsa loquitur is not a doctrine but a “mode of inferential reasoning” applies only to accidents of unknown cause. (see Sanfield Building Contractors Ltd v Li Kai Cheong [2003] 6 HKCFAR 207 and Schellenbery v Tunnel Holdings Pty Ltd (2000) 200 CLR 121)

The res ipsa loquitur mode of inferential reasoning comes into play where an accident of unknown cause is one that would not normally happen without negligence on the part of the defendant in control of the object or activity which injured the plaintiff or damaged his property. In such a situation the court is able to infer negligence on the defendant's part unless he offers an acceptable explanation consistent with his having taken reasonable care. (see Sanfield Building Contractors Ltd v Li Kai Cheong [2003] 6 HKCFAR 207)

[edit] South Africa

In south Africa (Roman Dutch Law) there is no doctrine of res ipsa loquitur, although the phrase is used regularly to mean the facts speak for themselves. Res ipsa loquitur does not shift any burden of proof or onus from one party to the other. The phrase is merely a handy phrase used by lawyers.

[edit] United States

Most American courts recognize res ipsa loquitur. The Restatement (Third) of Torts, § 17 describes a two step process for establishing res ipsa loquitur. The first step is whether the accident is the kind that would usually be caused by negligence, and the second is whether or not the defendant had exclusive control over the instrumentality that caused the accident. If found, res ipsa creates an inference of negligence, although in most cases it does not necessarily result in a directed verdict.

A contention of res ipsa loquitur commonly is made in cases of commercial airplane accidents.

[edit] Popular culture

Res ipsa loquitur tends to be an unnecessarily difficult concept for new law students to understand. Because of the resulting confusion, the joke has developed, "Res ipsa loquitur, sed quid in infernos dicet?" ("The thing speaks for itself, but what in the hell does it say?")

Author Hunter S. Thompson frequently used the phrase to end some of his gonzo journalistic political pieces.