res ipsa loquitur Forum

[perfunctory]

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]

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.

[Bearlyalive]

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]

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]

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.

[jumbocolumbo]

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

[lavarman84]

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.