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I understand that the hallmark of Res Ipsa is the lack of direct evidence, with the test being: 1)accident from an injury that is more likely than not the result of negligence and 2) the negligence was more likely than not attributable to the defendant who had exclusive control, not the plaintiff or third-party.

I'm really having trouble, however, identifying this on exams. Any tips?

How are you having trouble exactly "spotting it" exactly? I've only done two exams for torts (one midterm, one practice), and I just threw it in regardless. It takes just a few minutes max if you know the BLL cold and can quickly apply it. Like I said, I've only done a few tests, but it seems to be a natural component of most negligence cases. And worth at least throwing in.

SwampRat88 wrote:I understand that the hallmark of Res Ipsa is the lack of direct evidence, with the test being: 1)accident from an injury that is more likely than not the result of negligence and 2) the negligence was more likely than not attributable to the defendant who had exclusive control, not the plaintiff or third-party.

I'm really having trouble, however, identifying this on exams. Any tips?

I think it has more to do with that the accident couldn't have occured without negligence and the defendant, or employees were in exclusive control of whatever cause the accident. The Plaintiff wouldn't be able to prove it any other way because of lack of evidence. The accident speaks for itself (circumstantial evidence).

shock259 wrote:How are you having trouble exactly "spotting it" exactly? I've only done two exams for torts (one midterm, one practice), and I just threw it in regardless. It takes just a few minutes max if you know the BLL cold and can quickly apply it. Like I said, I've only done a few tests, but it seems to be a natural component of most negligence cases. And worth at least throwing in.

Really, I was under the impression its only used when there is no other circumstantial evidence to prove causation.

shock259 wrote:How are you having trouble exactly "spotting it" exactly? I've only done two exams for torts (one midterm, one practice), and I just threw it in regardless. It takes just a few minutes max if you know the BLL cold and can quickly apply it. Like I said, I've only done a few tests, but it seems to be a natural component of most negligence cases. And worth at least throwing in.

I'm concerned about applying it in a situation that is merely traditional negligence. Do I only apply it in situations where there are no eyewitnesses when the actual breach of duty occurred?

Res Ipsa Loquitur is pretty easy to spot. Pretty much anytime something bad happens when it shouldn't, you should be running the analysis. Examples:

Bales of hay falling out of barns and landing on people's heads.
Escalators suddenly stopping and causing people to fall.
Machine malfunctioning and hurting someone.
Building collapsing right after a contractor did a particular type of work.

This isn't to say all of these will support the claim, but they are the sort of scenario that should trigger the analysis.

I got the test wrong. It is 1) injury from an accident that would not ordinarily happen without negligence and 2)accident is more likely than not attributable to the defendant(s) who had exclusive control, rather than the plaintiff or third-party.

SwampRat88 wrote:

shock259 wrote:How are you having trouble exactly "spotting it" exactly? I've only done two exams for torts (one midterm, one practice), and I just threw it in regardless. It takes just a few minutes max if you know the BLL cold and can quickly apply it. Like I said, I've only done a few tests, but it seems to be a natural component of most negligence cases. And worth at least throwing in.

I'm concerned about applying it in a situation that is merely traditional negligence. Do I only apply it in situations where there are no eyewitnesses when the actual breach of duty occurred?

It's a fork in your analysis. If you think you have traditional negligence, then run that analysis first. Then you can use res ipsa loquitur to shore up against a defense which challenges breach.

Disclaimer: I might not know what I'm talking about, but I did to well on the midterm..

Res Ipsa is just one of several ways to establish duty and breach. It is especially useful if you don't know what happened. Courts used to say that if you have direct evidence, then you cannot go with a res ipsa argument in the alternative (they also want to encourage plaintiffs to seek out real evidence if it is available, so they might bar res ipsa claims if they think the plaintiff is being lazy). The trend is to be more lax with that now (it can speak for itself AND have evidence to support negligence). When you have your traditional negligence hypo and the question asks you to analyze duty/breach, just throw it in or discard it as not useful as applied to the given facts (along with custom, BPL, statute (Negligence per se), and whatever other tests your professor might have gone over).

Also, I don't know about anyone else's Profs, but ours gets annoyed if you just go with the "exclusive control" analysis since that's not what the restatement now says (although maybe that is restatement third, and I know not everyone has adopted that yet). But I thought it would throw it out there.

istara wrote:Disclaimer: I might not know what I'm talking about, but I did to well on the midterm..

Res Ipsa is just one of several ways to establish duty and breach. It is especially useful if you don't know what happened. Courts used to say that if you have direct evidence, then you cannot go with a res ipsa argument in the alternative (they also want to encourage plaintiffs to seek out real evidence if it is available, so they might bar res ipsa claims if they think the plaintiff is being lazy). The trend is to be more lax with that now (it can speak for itself AND have evidence to support negligence). When you have your traditional negligence hypo and the question asks you to analyze duty/breach, just throw it in or discard it as not useful as applied to the given facts (along with custom, BPL, statute (Negligence per se), and whatever other tests your professor might have gone over).

Also, I don't know about anyone else's Profs, but ours gets annoyed if you just go with the "exclusive control" analysis since that's not what the restatement now says (although maybe that is restatement third, and I know not everyone has adopted that yet). But I thought it would throw it out there.

My torts exam is half written half multiple choice. I think its pretty much a given that our written section will be on negligence. Are there any sample negligence analysis questions and answers available that you would recommend. I would like to read a few to see what other think are important. I was thinking to IRAC and spend a lot of time on breach (whether there was a statute or common law breach) then move into causation in fact, proximate cause, concurrent causes.... Pretty much just blanketing everything we did in class in order. My sections professor doesn't have old exams or model answers, because its her first year teaching torts.

Do you have Glannon's E&E on Torts/can you get it from your library? I've been using it while reviewing for my torts midterm tomorrow, and the chapter on res ipsa was pretty clear to me and was very consistent with what my prof talked about in class (not always the case with supplements).

If you get to an issue and you can't find any specific act that you could define as a breach, you're probably dealing with res ipsa.

For instance, defendant builds a deck. Within 24 hours, the deck collapses. What was the breach of duty? Saying something like "not adequately building a deck" is too broad. You can't find a specific act that defendant did that created a breach. You can't say "he used metal screws instead of wood screws, which reduces the structural support of the deck."

When you're struggling finding any breach, but it just doesn't seem right to say that defendant didn't do anything wrong, bring up res ipsa

istara wrote:Disclaimer: I might not know what I'm talking about, but I did to well on the midterm..

Res Ipsa is just one of several ways to establish duty and breach. It is especially useful if you don't know what happened. Courts used to say that if you have direct evidence, then you cannot go with a res ipsa argument in the alternative (they also want to encourage plaintiffs to seek out real evidence if it is available, so they might bar res ipsa claims if they think the plaintiff is being lazy). The trend is to be more lax with that now (it can speak for itself AND have evidence to support negligence). When you have your traditional negligence hypo and the question asks you to analyze duty/breach, just throw it in or discard it as not useful as applied to the given facts (along with custom, BPL, statute (Negligence per se), and whatever other tests your professor might have gone over).

Also, I don't know about anyone else's Profs, but ours gets annoyed if you just go with the "exclusive control" analysis since that's not what the restatement now says (although maybe that is restatement third, and I know not everyone has adopted that yet). But I thought it would throw it out there.

I think one of the areas with Res Ipsa where I'm confused is how it relates to Duty, Breach, Causation, Injury. So it takes care of the first 2 elements of the tort of negligence?

here are 2 MC questions from my torts practice midterm on RIL:

1. D operating a restaurant, in Aug 2011 he installs a neon sign above the front door. In Oct 2011 P walking along the sidewalk, the sign comes loose and falls on him. P sues, testifies to these facts and offers no further evidence to establish negligence. D offers no evidence and moves for a directed verdict.

D's motion should be denied; the facts P testified to, if believed, at the very least support a permissible inference of negl

2. vary facts of #1 by adding the following: after P testified, D offered evidence from an expert witness sign installer/designer. witness inspected the sign and premises, testified that it was properly installed and that there is no evidence to explain why it fell. D then testified that he regularly inspected the sign, and 2 days earlier had inspected it and found nothing wrong. D moves for DV.

Motion still should not be granted.

Hope that helps. As for an essay, just look for the duty/breach and damages, and if there's no evidence on causation, run the analysis. Like the above poster said though, be careful with using "exclusive control" language. Also, note whether the burden is shifted to D or not. Prof gave us 3 examples of how courts handle this:
1. RIL may warrant an inference of negl which jury may draw
2. RIL may raise a presumption of negl, and jury required to find negligence if D doesn't offer rebuttable evidence
3. RIL may raise presumption, and shift the burden of proof to D
but generally, the burden is not shifted (most jurisdictions follow 1 or 2)

SwampRat88 wrote: I think one of the areas with Res Ipsa where I'm confused is how it relates to Duty, Breach, Causation, Injury. So it takes care of the first 2 elements of the tort of negligence?

From my outline:

In some courts it creates a rebuttable "presumption" of [breach of duty] and
1. Juries are told that the burden shifts to the defendant
2. The Judge directs a verdict for the plaintiff unless the defendant can rebut the presumption
Res Ipsa may also be denied if the "true explanation for the accident was more readily accessible" (DeBusscher)

In the other courts it is simply used as "evidence" of duty/breach

Note that it usually referred to as evidence of "negligence." That's referring to breach of duty as negligence in general, not negligence as in a full prima facia case for negligence with all the other elements (I hope that makes sense?)