What Is Res Ipsa Loquitur?
Res ipsa loquitur (Latin) “The thing speaks for itself”
Res ipsa loquitur is a legal concept that allows the plaintiff to establish presumed negligence of the defendant because of circumstantial evidence. Once the plaintiff uses res ipsa loquitur, the burden of proof passes to the defendant. The defendant has to prove they were not negligent instead of the plaintiff having to prove they were negligent.
How to Prove Negligence Using Res Ipsa Loquitur
In order to use res ipsa loquitur, the plaintiff has to prove 3 elements. First, that the incident was unlikely to happen without negligence. Not every injury will be caused by negligence; sometimes accidents happen. However, some injuries are very unlikely to occur unless negligence is involved. If we use a cartoon example of a piano falling from the sky and hitting someone, it is an unlikely event to occur unless negligence is involved. Pianos are unlikely to from the sky and hit people walking in the street below.
Second, that the thing that caused the incident was in the control of the defendant and no one else. In order to use res ipsa loquitur, the defendant must be undeniably the person whose actions caused the injury. If, for example, the homeowner was helping the moving team move the piano, and therefore may not have tightened the straps securing it or may have messed around with the controls of the winch, then the plaintiff cannot use res ipsa loquitur to charge the moving company. If only the moving company were touching and moving the piano, the plaintiff can use res ipsa loquitur.
Third, that the plaintiff has no blame for the incident. The plaintiff cannot use res ipsa loquitur if they were even partially to blame. In the example of the piano falling on the plaintiff, it is very unlikely that the plaintiff shared any blame in the incident. If, however, the plaintiff walked through a cordoned off area and ignored signs warning of the danger, they may share some of the liability for the accident and cannot use res ipsa loquitur. If the plaintiff worked on the moving team and helped secure the piano and then was standing on the street below to guide the piano down, they would not be able to use res ipsa loquitur.
How to Defend Against Res Ipsa Loquitur
It is important to note that res ipsa loquitur does not completely prove the defendant’s negligence, it just establishes that it is likely that the defendant was negligent. The defendant can then prove that they were not negligent.
The way to defend against res ipsa loquitur is to refute one of the above elements of res ipsa loquitur. So the defendant could prove one of the following things:
- That it is possible that the accident happened without negligence
- That the defendant was not the only one responsible for the thing that caused the accident
- That the plaintiff played a part in the accident
For example, in the piano moving example, the defendant could prove that the homeowner was helping to move the piano or that they brought in a second moving company to help. They could also prove that the plaintiff walked into a well-marked and cordoned off area.
The defendant can also defend themselves against res ipsa loquitur by proving that they did not have a duty of care to the plaintiff in that situation. For example, if the plaintiff wandered onto private property and was therefore trespassing.