res ipsa loquitur

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
User avatar
perfunctory

Bronze
Posts: 280
Joined: Fri Oct 23, 2015 8:25 pm

res ipsa loquitur

Postby perfunctory » Fri Nov 18, 2016 5:55 pm

so i want to make sure - if you prove negligence per se (violation of statute) you still have to prove all the other elements of [N]egligence right (duty, causation, etc)? But if you prove RIL, case closed?

...or wait. Does it just create an inference of [n]egligence? Judge instructs jury they may infer negligence? Still have to prove all the other elements of [N]egligence?

lavarman84

Platinum
Posts: 7649
Joined: Thu May 28, 2015 5:01 pm

Re: res ipsa loquitur

Postby lavarman84 » Fri Nov 18, 2016 6:18 pm

My understanding is that res ipsa loquitor creates a rebuttable presumption of negligence (as long as there was harm). So it shifts the burden to the defendant.

User avatar
Bearlyalive

Silver
Posts: 933
Joined: Sat Nov 28, 2015 3:35 pm

Re: res ipsa loquitur

Postby Bearlyalive » Fri Nov 18, 2016 6:52 pm

RIL just refers to using circumstantial evidence to show the failure of a defendant to exercise due care. It does not show "but for" or proximate cause, so you still have to evaluate those.

My torts professor basically treats RIL more of a "reminder" than a rule. It doesn't shift burdens or create presumptions. It just reminds us that if a plaintiff's only evidence of negligence is circumstantial (so, infer negligence because alternatives are ruled out) that's still enough for a jury to find failure to exercise due care. A defendant can't just say "All your evidence is circumstantial, so you can't prove negligence"; they have to actually provide evidence that they were not negligent, which will generally be in the form of presenting an alternative explanation of why the harm occurred even though they took due care.

Gunner19

New
Posts: 66
Joined: Sat Aug 06, 2016 4:06 pm

Re: res ipsa loquitur

Postby Gunner19 » Fri Nov 18, 2016 9:47 pm

The procedural effect depends on the jurisdiction. My understanding is Res ipsa can create an inference of negligence (which the jury may or may not draw), a rebuttable presumption of negligence (where the jury must find negligence unless defendant rebuts), or shifts the burden of proof entirely to defendant. Pretty positive the majority rule is the inference

Boltsfan

New
Posts: 63
Joined: Mon Oct 03, 2016 10:17 pm

Re: res ipsa loquitur

Postby Boltsfan » Tue Nov 22, 2016 8:18 pm

This seems confused. Negligence per se and res ipsa are not the same thing.

Negligence per se gives you an inference of negligence from the violation of a statute (no arguing about duty or breach) as long as the plaintiff is of the class of persons designed to be protected by the statute and the harm is the kind designed to be prevented by the statute. You still have to prove causation (actual and proximate) and damages. The inference of negligence can be rebutted by showing either (1) statutory compliance would have been more dangerous than non-compliance or (2) statutory compliance was impossible given the circumstances.

Res ipsa loquitur is "the thing speaks for itself." You use res ipsa where (1) the plaintiff is injured; (2) the injury is of the kind that would not happen but for negligence; (3) the plaintiff cannot show what happened, through no fault of his own (passive plaintiff); and (4) the injury was caused by an agent or instrumentality within the exclusive control of the defendant. Basically, look for a barrel of flour falling out of a warehouse and hitting a passerby. res ipsa shifts the burden the the defendant.

Study more OP.

User avatar
jumbocolumbo

Bronze
Posts: 266
Joined: Mon Feb 09, 2015 11:54 am

Re: res ipsa loquitur

Postby jumbocolumbo » Tue Nov 22, 2016 8:31 pm

Inference of small "n" negligence. Not big "N" negligence, the tort.

lavarman84

Platinum
Posts: 7649
Joined: Thu May 28, 2015 5:01 pm

Re: res ipsa loquitur

Postby lavarman84 » Wed Nov 23, 2016 5:13 am

Boltsfan wrote:This seems confused. Negligence per se and res ipsa are not the same thing.

Negligence per se gives you an inference of negligence from the violation of a statute (no arguing about duty or breach) as long as the plaintiff is of the class of persons designed to be protected by the statute and the harm is the kind designed to be prevented by the statute. You still have to prove causation (actual and proximate) and damages. The inference of negligence can be rebutted by showing either (1) statutory compliance would have been more dangerous than non-compliance or (2) statutory compliance was impossible given the circumstances.

Res ipsa loquitur is "the thing speaks for itself." You use res ipsa where (1) the plaintiff is injured; (2) the injury is of the kind that would not happen but for negligence; (3) the plaintiff cannot show what happened, through no fault of his own (passive plaintiff); and (4) the injury was caused by an agent or instrumentality within the exclusive control of the defendant. Basically, look for a barrel of flour falling out of a warehouse and hitting a passerby. res ipsa shifts the burden the the defendant.

Study more OP.


This is how it was taught to me as well.



Return to “Forum for Law School Students�

Who is online

Users browsing this forum: Bing [Bot], QUIZ and 19 guests