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The Thing Speaks For Itself

Res Ipsa Loquitur
Res ips
Res ipsa

Wikipedia:
In the common law of negligence, the doctrine of res ipsa loquitur (Latin for
"the thing itself speaks" or the thing speaks for itself) states that the
elements of duty of care and breach can sometimes be inferred from the very
nature of an accident or other outcome, even without direct evidence of how
any defendant behaved. Although modern formulations differ by jurisdiction,
the common law originally stated that the accident must satisfy the necessary
conditions of negligence.
Latin phrase
The term comes from Latin and is literally translated "the thing itself speaks" or
thing speaks for itself), but the sense is well conveyed in the more common
translation, "the thing speaks for itself." The earliest known use of the phrase
was by Cicero in his defence speech Pro Milone. See Cic. Pro Milone 53 and Jon
R. Waltz; Fred Edward Inbau (1971). Medical jurisprudence. Macmillan. p. 88.
ISBN 0-02-424430-9.
The circumstances around the genesis of the phrase and application by Cicero
in Roman legal trials has led to questions whether it reflects on the quality of
Res Ipsa Loquitur as a legal doctrine subsequent 52 BC, some 1,915 years
before Byrne v Boadle, as well as the question whether Chief Baron Pollock
might have taken direct inspiration from Cicero's application of the maxim in
writing his judgment in that case.
Leading case. The legal doctrine was first formulated by Baron Pollock in the
1863 English case Byrne v. Boadle Court of Exchequer, 2 H. & C. 722, 159 Eng.
Rep. 299, 1863, retrieved 2009-03-16.
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Facts. Byrne (P) was struck by a barrel falling from a window as he walked past
Boadles (D) flour shop and sustained serious personal injuries. A witness
testified that he saw the barrel fall from Boadles window but had not seen the
cause. Byrne did not present any other evidence of negligence by Boadle or his
employees. Boadle moved for a nonsuit on the grounds that Byrne had
presented no evidence of negligence. The court granted the motion and
plaintiff obtained a rule nisi. The Court of Exchequer found in favor of Byrne
and reversed. Boadle appealed.
Issue. Can liability for negligence lie solely on account of the type of accident
that occurred, without direct evidence of negligence?
Holding and Rule. Yes. Liability for negligence can lie solely on account of the
type of accident that occurred, without direct evidence of negligence.
Pollock. A presumption of negligence can arise from an accident. A party need
not present direct evidence of negligence when the mere manner and facts of
the accident show that it could not have happened without negligence on
someones part. A barrel could not roll out of a warehouse window without
negligence. This is an example of a case in which res ipsa loquitur (the thing
speaks for itself) applies. It is evident that the barrel was in the custody of
Boadle and its falling is prima facie evidence of negligence. A plaintiff who is
injured in a such a fashion should not be required to show that the barrel could
not fall without negligence. A rebuttable presumption is created that Boadle
was negligent and he has the burden to prove that he was not.
Channel: Boadle had a duty to ensure that those passing by his shop are not
injured by objects under his control. In this case there was a scintilla of
evidence with respect to negligence. The defendant failed to show that he was
not negligent and Byrne is entitled to the verdict.
Judgment for Byrne affirmed.
The doctrine of res ipsa loquitur cannot be applied when there is direct
evidence of the cause of the injury and facts and circumstances surrounding it.
To apply res ipsa loquitur, the following elements must be present:
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The accident must be of a type that normally would not occur in the
absence of negligence.
There was no contribution to the plaintiffs injuries by the plaintiff or any
third party.
The source of the negligence falls within the scope of the duty owed by the
defendant to the plaintiff. This usually (but not necessarily) arises where the
instrument causing the injury was within the exclusive control of the
defendant, or where there is an inability to identity the specific source of
harm. Frequently it arises where the source of negligence lies within a
group of people who are unwilling or unable to divulge the actual source.
The plaintiff must still prove all of the other elements to prove that the
defendant was liable (i.e. proximate cause etc.)
Note that the theory of the negligence in Summers v. Tice, 33 Cal.2d 80, 199
P.2d 1 (1948) is similar to the concept of res ipsa loquitur. In that case the
plaintiff was shot and injured by one of two other hunters. While it was certain
that one of the two men caused the harm, the plaintiff could offer no proof
showing which defendant was at fault. The court shifted the burden of proof to
the defendants to prove their innocence.
The exclusive control requirement
The common law traditionally required that "the instrumentality or agent
which caused the accident was under the exclusive control of the defendant."
See e.g., Eaton v. Eaton, 575 A2d 858 (NJ 1990). However, the Second and
Third versions of the Restatement of Torts eliminated this strict requirement,
because it can be difficult to prove "exclusive control." Accordingly, this
element has largely given way in modern cases to a less rigid formulation: that
the evidence eliminates, to a sufficient degree, other responsible causes
(including the conduct of the plaintiff and third parties). For example, in New
York State, the defendant's exclusivity of control must be such that the
likelihood of injury was, more likely than not, the result of the defendant's
negligence. The likelihood of other possibilities do not need to be eliminated
altogether but they must be so reduced that the greater probability lies with
the defendant.
For a fictitious example of the exclusive control rule:
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John 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.
The court holds that Doe does not have to prove anything beyond the fall
itself.
The elevator evidently malfunctioned (it was not intended to fall nor is that a
proper function of a correctly functioning elevator).
Jane was responsible for the elevator in every respect
So Jane's Corporation is responsible for the fall.
The thing speaks for itself: no further explanation is needed to establish the
prima facie case.
In some cases a closed group of people may be held in breach of a duty of care
under the rule of res ipsa loquitur. In Ybarra v. Spangard, a patient undergoing
surgery experienced back complications as a result of the surgery, but it could
not be determined exactly which member of the surgical team had breached
his or her duty, and so it was held that they had all breached, because it was
certain that at least one of them was the only person who was in exclusive
control of the instrumentality of harm.
In jurisdictions that employ this less rigid formulation of exclusive control, this
element subsumes the element that the plaintiff did not contribute to his
injury. In modern case law, contributory negligence is compared to the injury
caused by the other. For example, if the negligence of the other is 95% of the
cause of the plaintiff's injury, and the plaintiff is 5% responsible, then the
plaintiff's slight fault cannot negate the negligence of the other. This new type
of split liability is commonly called comparative negligence.
Typical in medical malpractice
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Res ipsa loquitur often arises in the "scalpel left behind" variety of case. For
example, a person goes to a doctor with abdominal pains after having his
appendix removed. X-rays show the patient has a metal object the size and
shape of a scalpel in his abdomen. It requires no further explanation to show
the surgeon who removed the appendix was negligent, as there is no
legitimate reason for a doctor to leave a scalpel in a body at the end of an
appendectomy.
Contrast to prima facie
Res ipsa loquitur is often confused with prima facie ("at first sight"), the
common law doctrine that a party must show some minimum amount of
evidence before a trial is worthwhile.
The difference between the two is that prima facie is a term meaning there is
enough evidence for there to be a case to answer. Res ipsa loquitur means that
because the facts are so obvious, a party need not explain any more. For
example:
"There is a prima facie case that the defendant is liable. They controlled the
pump. The pump was left on and flooded the plaintiff's house. The plaintiff was
away and had left the house in the control of the defendant. Res ipsa loquitur."
Examples by jurisdictions
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)
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 contributorily 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.
Hong Kong
Hong Kong is one of the common law jurisdictions that use the doctrine of res
ipsa loquitur.
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Some lawyers prefer to avoid the expression res ipsa loquitur (for example,
Hobhouse LJ in Radcliff v. Plymouth). But other lawyers (and judges too) still
find the expression a convenient one (for example, see the judgement of Mr
Justice Bokhary, a Permanent Judge of the Court of Final Appeal of Hong Kong,
in Sanfield Building Contractors Ltd v. Li Kai Cheong).
The expression res ipsa loquitur is not a doctrine but a mode of inferential
reasoning and applies only to accidents of unknown cause. Res ipsa loquitur
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.
South Africa
In South African law (which is modelled on 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.
United Kingdom
The doctrine exists in both English law and Scots law.
England and Wales
In English tort law, the effect of res ipsa loquitur is a strong inference in favour
of the claimant that negligence has taken place. It does not however fully
reverse the burden of proof (Ng Chun Pui v. Li Chuen Tat, 1988).
The requirement of control is important in English law. This requirement was
not satisfied in Easson v. LNE Ry [1944] 2 KB 421, where a small child fell off a
train several miles after it had left the station. It was considered that the door
of the train was not sufficiently under control of the railway company after the
train started moving and could have been opened by somebody for whom the
company was not responsible. This case was distinguished from the earlier Gee
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v. Metropolitan Ry where the plaintiff fell from the train immediately after it
left the station, when the door through which he fell could still be considered
to be fully controlled by the railway company.
The requirement that the exact cause of the accident must be unknown is
illustrated by the case of Barkway v. South Wales Transport. In this case a bus
veered across the road and it was known that the accident was caused by a flat
tire. In this case, the plaintiff could not be assisted by res ipsa loquitur and had
to go on to prove that the flat tire was caused by the transport company's
negligence.
Scotland
The doctrine exists in the Scots law of delict. The leading case is that of Scott v
London & Catherine Dock Co. This case laid down 3 requirements for the
doctrine to apply:
There must be reasonable evidence of negligence
The circumstances must be under the direct control of the defender or his
servants
The accident must be of such a type that would not occur without negligence.
In Scott, the court held that sacks of sugar do not fall out of warehouses and
crush passers-by without somebody having been negligent along the way.
Recent examples in Scotland are McDyer v Celtic Football Club and McQueen v
The Glasgow Garden Festival 1988 Ltd.
United States
Under United States common law, res ipsa loquitur has the following
requirements:
The event doesn't normally occur unless someone has acted negligently;
The evidence rules out the possibility that the actions of the plaintiff or a third
party caused the injury; and
The type of negligence in question falls with the scope of the defendant's duty
to the plaintiff.
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Most American courts recognize res ipsa loquitur. The Restatement (Second) of
Torts, 328D describes a two step process for establishing res ipsa loquitur.
The first step is whether the accident is the kind 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
loquitur creates an inference of negligence, although in most cases it does not
necessarily result in a directed verdict. The Restatement (Third) of Torts, 17,
adopts a similar test, although it eschews the 'exclusive control' element.
The doctrine was not initially welcome in medical malpractice cases. In Gray v.
Wright, a seven-inch hemostat was left in Mrs. Gray during gall bladder surgery
in June, 1947, and despite her chronic complaints about stomach pain over the
years, the device was not found until an X-ray in March, 1953, when it was
removed. Her $12,000 award was reversed by the Supreme Court of West
Virginia because she was outside the statutes of limitation when she filed and
could not prove that the doctor concealed knowledge of his error. This "guilty
knowledge" requirement disappeared over the years, and the "discovery rule"
by which statutes of limitation run from the date of discovery of the
wrongdoing rather than the date of the occurrence has become the rule in
most states, allowing res ipsa loquitur to take its rightful place.
Forty years later, leaving a medical device in a patient was medical
malpractice, provable without expert testimony, in almost every
jurisdiction.[19] Virginia has limited the rule. "In Virginia the doctrine, if not
entirely abolished, has been limited and restricted to a very material extent." It
may be utilized only when the circumstances of the incident, without further
proof, are such that, in the ordinary course of events, the incident could not
have happened except on the theory of negligence..."
A contention of res ipsa loquitur commonly is made in cases of commercial
airplane accidents. It was part of the commentary in a train collision in
California in 2008: "If two trains are in the same place at the same time,
someone was negligent."
In some states, the doctrine of res ipsa loquitur is also used as a method of
proving the intent or mens rea element of the inchoate crime of attempt.
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Under the Model Penal Code, "the behavior in question is thought to
corroborate the defendant's criminal purpose," for example:
Possession of materials to be employed in the commission of the crime, which
are specifically designed for such unlawful use or which serve no lawful
purpose of the actor under the circumstances.
Legal Dictionary
Latin for "the thing speaks for itself," a doctrine of law that one is presumed to
be negligent if he/she/it had exclusive control of whatever caused the injury
even though there is no specific evidence of an act of negligence, and without
negligence the accident would not have happened. Examples: a) a load of
bricks on the roof of a building being constructed by Highrise Construction Co.
falls and injures Paul Pedestrian below, and Highrise is liable for Pedestrian's
injury even though no one saw the load fall. b) While under anesthetic, Isabel
Patient's nerve in her arm is damaged although it was not part of the surgical
procedure, and she is unaware of which of a dozen medical people in the room
caused the damage. Under res ipsa loquitur all those connected with the
operation are liable for negligence. Lawyers often shorten the doctrine to "res
ips," and find it a handy shorthand for a complex doctrine.
Legal Information Institute
Latin for "the thing speaks for itself." In tort law, a principle that allows
plaintiffs to meet their burden of proof with what is, in effect, circumstantial
evidence. The plaintiff can create a rebuttable presumption of negligence by
the defendant by proving that the harm would not ordinarily have occurred
without negligence, that the object that caused the harm was under the
defendants control, and that there are no other plausible explanations.
Translegal
Res ipsa loquitur is a legal Latin phrase which translates to the thing speaks
for itself. The doctrine indicates that there is no need to provide any further
detail the facts of the case are sufficient to find liability. Generally, because
the facts are so obvious, a party does not need to provide further explanation.
The phrase is most often applied to civil tort claims in which liability is clearly
established merely based on a review of the facts.
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In some jurisdictions, res ipsa loquitur is merely a rule of evidence which
creates a presumption that a defendant acted negligently simply because a
particular accident occurred. The presumption arises only if (1) that which
caused the accident was under the defendants control, (2) the accident could
only occur as a result of a careless act and (3) plaintiff did not contribute to the
accident.
Plaintiffs attempted to invoke the doctrine of res ipsa loquitur based on the
fact that plaintiffs were injured by bricks which fell from a private bridge.
Nolos Plain English Dictionary
Latin for "the thing speaks for itself"; a legal presumption that a defendant
acted negligently even though there may be no direct evidence of liability. For
example, a construction company is presumed to be negligent if a load of
bricks under its control falls off a roof and injures a pedestrian, even though
nobody witnessed the accident. The presumption arises only if 1) the thing that
caused the accident was under the defendant's control, 2) the accident could
happen only as a result of a careless act, and 3) the injured plaintiff's behavior
did not contribute to the accident. Lawyers also refer to this doctrine as "res
ips" or "res ipsa."
Notes Prepared by Benjamin Musau, June 26, 2014