Breach of Duty Part 2


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Res Ipsa Loquitor:
Latin for “the thing speaks for itself”, Res Ipsa Loquitor is a doctrine which assumes an act of negligence based on the nature of the accident itself without the use of direct or circumstantial evidence.


In certain cases, the very fact that harm has occurred may itself establish both parts of the breach requirement (what actually happened and that the defendant acted unreasonably). In such cases, the doctrine of Res Ipsa Loquitor permits a jury to assume that the defendant was at fault. This doctrine is generally reserved for unlikely or catastrophic accidents where any evidence that the plaintiff could have used to prove negligence was destroyed. 

There are three essential factors which must be established in order to invoke Res Ipsa Loquitor.

  1. The accident must be of a type which normally does not occur in the absence of negligence. In other words, the accident must be something which doesn’t just happen without somebody making a mistake somewhere along the line.
  2. The negligence can be attributed to the defendant because the accident is of a type that the defendant had a duty to guard against (To prove this, the plaintiff needs to demonstrate that whatever caused his harm was under the exclusive control of the defendant at the time the plaintiff was harmed).
  3. Neither the plaintiff nor any third party contributed to or caused the accident.

See Anderson v. Service Merchandise Co., 485 N.W.2d 170 (Neb. 1992).

Let us look at an actual example and then analyze these three separate requirements. 

In the 1920s there was an industrial alcohol manufacturer that owned a building in downtown Boston. On top of the building was a giant steel tank which contained over one million gallons of hot molasses. The molasses was used to make the alcohol. One day the tank ruptured sending a waterfall of hot molasses cascading down onto the street. Dozens of people were killed and millions of dollars in property damage was incurred. The tank itself was completely destroyed. Further, there was no evidence of negligence because whatever evidence there was had been destroyed in the accident. 

Using this example let us now dissect the three elements needed to invoke Res Ipsa Loquitor. 

First, we said that the accident must be of a type which normally does not occur without negligence. In our example, a tank full of hot molasses ruptured suddenly and without warning. A plaintiff could make a viable argument that things like this do not just happen. That being the case, the court may hold that the very fact that the tank ruptured is itself evidence that someone committed an act of negligence. Please note that not all accidents of this nature will invoke the Res Ipsa Loquitor doctrine. There are accidents which occur without being anyone’s fault and, whether or not the accident in question is of a type that will invoke the Res Ipsa Loquitor doctrine will be decided on a case by case basis. 

Second, the negligence can be attributed to the defendant because the accident is of a type that the defendant had a duty to guard against. In order to demonstrate this, most courts require proof that the instrument causing the plaintiff’s injury was under the defendant’s exclusive control at the time of the injury. That being the case, the plaintiff in our example would have to prove that the molasses tank was in the alcohol company’s exclusive control at the time the accident happened. 

The purpose of these first two standards is to build a strong case against the defendant. The reasoning is that if the plaintiff can demonstrate that the accident that happened would not usually happen without negligence and the instrumentality of the harm was in the defendant’s   exclusive control, it is no longer a great leap to conclude that the defendant was negligent and caused the accident. 

This idea of control is an easy one to determine when there is only one defendant. However, the law has accommodated situations where there are multiple defendants by treating them as members of a single "group". For example, if a group of doctors works on an unconscious patient and the patient suffers harm that could be blamed on someone in the group having been negligent, the courts have found exclusive control in the whole group of physicians so that Res Ipsa Loquitor may still be invoked.

There is a limitation to this concept which lies in a situation where the defendant is among a larger group of people, the plaintiff is unable to identify the defendant and it is not certain that the defendant is among the group of people. In such a case, the court will not make the defendants prove that they were not liable. Rather, the burden will remain on the plaintiff to prove negligence by a specific defendant.

The third element required for Res Ipsa Loquitor is to demonstrate that the plaintiff or any third party did not cause or contribute to the plaintiff’s injuries. There is no assumption of negligence if it appears that the plaintiff’s own conduct or the conduct of a third person for whom the defendant is not responsible caused the accident.

Please remember that Res Ipsa Loquitor is only used in situations where the plaintiff is injured but cannot prove that there was any negligence on the part of the defendant because the evidence was destroyed. Please also remember that the doctrine of Res Ipsa Loquitor only allows the plaintiff to bring his case to the jury. It is very important to understand that the Res Ipsa Loquitor doctrine does not guarantee a favorable verdict for the plaintiff. All Res Ipsa Loquitor does is allow a plaintiff with no evidence the chance to bring his case in front of a jury. 

Most courts hold that while Res Ipsa Loquitor is a doctrine used in place of evidence, a plaintiff may introduce any additional evidence he might obtain after using Res Ipsa Loquitor to get his case heard by a jury. However, there are a few states that do not allow a plaintiff to bring any additional evidence once he has invoked the Res Ipsa Loquitor doctrine. 

Once the three elements of Res Ipsa Loquitor are established, most courts treat it as creating a permissible assumption of negligence on the part of the defendant. That is to say, Res Ipsa Loquitor allows the jury to assume that the defendant was negligent. Keep in mind that while the jury is allowed to make this assumption, it does not have to. However, a few courts hold that Res Ipsa Loquitor creates a rebuttable presumption of negligence on the part of the defendant. In other words, these courts will assume that the defendant breached his duty and the burden will then be on the defendant to demonstrate, by a preponderance of the evidence, that he is not liable. In other words, by establishing Res Ipsa Loquitor it is assumed that defendant acted negligently and caused the plaintiff’s harm, and the burden of proof now shifts to the defendant to prove that he did not act negligently. If the defendant can successfully rebut the presumption of negligence he will win the case. Otherwise, he will lose.



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