Res Ipsa Loquitur

Res ipsa loquitur directly translates to "the thing speaks for itself."  It doesn't always do as good a job of explaining itself and so I'll attempt to do that here.

Res ipsa loquitur should be considered when analyzing the tort of negligence; specifically, when addressing whether a duty of care has been breached. Generally, a breach occurs when defendant's conduct falls short of the standard of care required of any specific defendant.

There are a variety of theories that plaintiff might use to prove that defendant breached the duty of care required of that specific defendant. Perhaps defendant skewed from the custom that reasonable people generally adhere. It should be noted though that custom is not dispositive and it's especially important to note that just because defendant adhered to custom doesn't end the inquiry. After all, the custom itself might not be reasonable.

Another theory to prove breach is violation of a statute. Existence of a duty owed to plaintiff and the violation of that duty may be established by proof that defendant violated a statute. This is known as "negligence per se" and it merely establishes breach. Causation and damages must still be proven.

Sometimes, however, there is no direct evidence of an act that might be used to establish breach of the duty of care. Instead, circumstantial evidence of negligence is required. When there is no direct evidence, you should consider res ipsa loquitur.  It's a doctrine that allows for the inference of negligence from the very nature of the accident or injury. In other words, the fact that the act or injury occurred may in some circumstances tend to establish that a duty was breached.

There are specific elements to infer breach of duty based on res ipsa loquitur. Plaintiff must show that the accident causing the injury is a type that would not normally occur unless someone were negligent. The logic here is that because the injury would not normally have occurred unless someone had been negligent, it's reasonable to infer that someone was negligent since the injury did occur. Plaintiff must also show that the inferred negligence is attributable to defendant and this is often proven by the fact that defendant was in exclusive control of the instrumentality that caused the injury.

If res ipsa loquitur is established so that breach of the duty of care is inferred, plaintiff has then established a presumption of negligence so that no directed verdict may be granted for defendant on that issue. This isn't a win for plaintiff, though; the presumption or inference of negligence may still ultimately be rejected.