Res ipsa loquitur, Latin for „the thing speaks for itself“, is a legal theory in which the facts and circumstances of a violation allow the court to assume negligence. [2] In a case of simple negligence, the plaintiff must prove that the defendant owed him a duty and that his conduct was not in conformity with that obligation. [3] However, according to res ipsa loquitur, negligence on the part of the defendant can be presumed and therefore does not need to be proved. [4] Note: For res ipsa loquitur to apply, the accident in question must not be the result of a voluntary act or contribution by the applicant. The doctrine traditionally requires that a defendant have exclusive control over the cause of injury, but now it is often applied when multiple defendants control a common or sometimes successive defendant (such as by the manufacturer and retailer of a defective product). In addition to the control requirement, which is sometimes replaced, there is the requirement that the defendant assume both responsibility for the instrument and liability to the plaintiff. For res ipsa loquitur to succeed in an action for medical malpractice, the fact that the accident is an accident that does not normally occur without the exercise of due diligence must be generally known to the layman. The accident alone should provide reasonable evidence of negligence, for example when a foreign body is left in a surgical patient. Res ipsa loquitur is often confused with prima facie („prima facie“), the common law doctrine that a party must present a minimum body of evidence before a trial is worthwhile. Some lawyers prefer to avoid the term res ipsa loquitur (e.g., Hobhouse LJ in Radcliff v.

Plymouth). [8] But other lawyers (and judges too) still find the exact expression (see, for example, the decision of Justice Bokhary, a permanent judge of the Hong Kong Court of Appeal, in Sanfield Building Contractors Ltd v. Li Kai Cheong). [9] Minor details can become extremely important in determining whether the elements of a res ipsa loquitur lawsuit are in place – details best left to an experienced lawyer. Asking a local personal injury lawyer to review the facts of your case can give you peace of mind knowing the strength of your claim and all the steps you need to take to move forward. A resipsa loquitur claim is often made in commercial aircraft accidents. This was part of the comment during a 2008 California rail collision: „If two trains are in the same place at the same time, someone was negligent.“ [22] Res ipsa loquitur is also sometimes used in cases of medical malpractice where, for example, something clearly went wrong during surgery, but what exactly went wrong cannot be proven. A foreign body could have landed in a patient or a suture proved ineffective. While it may not be possible to prove exactly what happened during surgery, perhaps because the only conscious people at that time are working for the defendant hospital, events have occurred that do not usually occur without negligence.

This is sufficient to shift the burden of proof onto the defendant hospital, so that it is held liable, unless it can prove the chain of events proving that it did not act negligently. For example, landowners in many states have no obligation to protect intruders from certain types of hazards on their property. Even if an intruder suffers harm caused by the act or inaction of the defendant, which would not normally occur without negligence, res ipsa loquitur will not find negligence because the landowner was never responsible for preventing the harm caused to the intruder in the first place. Because personal injury and evidence laws are set at the state level, the law varies slightly from state to state with respect to res ipsa loquitur. However, a general consensus has emerged and most States follow a basic formulation of res ipsa. If you believe you have been hurt by someone else`s negligence, but you only have circumstantial evidence, an experienced lawyer can help you determine if the doctrine of res ipsa loquitur is applicable. Please contact the San Jose Mugging Attorneys at Corsiglia, McMahon & Allard, L.L.P. for a free consultation today at (408) 289-1417. In some cases, a closed group of people may breach a duty of care under the res ipsa loquitur rule.