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Thursday, April 13, 2017
Res ipsa loquitur, more commonly referred to as “res ipsa,” is the Latin phrase for “the thing speaks for itself.”
In tort law, this is an important concept, because the doctrine addresses the fact that negligence may be inferred simply from the nature of the injury or accident. Therefore, no direct evidence of negligence is required, because the injury or accident speaks for itself. In this instance, the plaintiff could use circumstantial evidence, and the defendant must prove with a preponderance of proof that they are not at-fault.
The term translates from Latin, and its earliest known use was when Cicero used it in his speech Pro Milone. However, the legal doctrine’s first note in history was during the case of Byrne v Boadle, where one attorney took inspiration from Cicero’s words and used it for the writing of his case.
The case that allowed res ipsa to apply to personal injury was when a plaintiff suffered injuries from a falling barrel of flour at a warehouse. At the trial, the personal injury attorney for the plaintiff stated that the facts of the accident spoke for themselves; therefore, the plaintiff did not need to provide any further evidence of negligence. The reason for citing res ipsa was that there was no other explanation for how a person could suffer from a barrel of flour falling on them, so it was obvious that the defendant was negligent.
Since this case, the res ipsa doctrine has been allowed. Judges and juries can use common sense to determine if a situation is unique or to assume that the accident would not have occurred without negligence.
Res ipsa allows for the use of circumstantial evidence, which is very powerful. Therefore, the courts have made it clear that there must be factors present in the case that warrant the use of this doctrine. The four elements required are:
One area commonly misunderstood is that of the exclusive control element. It is difficult to prove that someone has exclusive control. Therefore, modern case law shows less rigidity in the formulation. The evidence must, however, eliminate other factors involved in the accident that can be placed on another party.
For example, say a man is injured when an elevator plunges from several floors up. The company that built the elevator is also responsible for maintaining it. So, the victim sues the manufacturer, because they are responsible for making and maintaining the broken elevator. In this instance, the court may grant res ipsa. The plaintiff would only have to prove that the fall occurred because it was evident through common sense that the elevator malfunctioned in some way – from here, it can be inferred that the company that created and maintained it was responsible. In this example, there is no further evidence needed to establish the case.
Prima facie and res ipsa are commonly confused for one another. Prima facie, which is Latin for “at first sight,” is a common-law doctrine that requires one party to show the minimum amount of evidence needed before the court will grant the case an official trial.
The difference between these two doctrines is that one means there must be enough evidence to answer the case, and the other implies that the facts are obvious enough that no explanation or evidence is needed. Therefore, one must always be established, while res ipsa only applies when the incident speaks for itself.
The defendant still must owe the victim a duty of attention. Therefore, if no duty was required of the respondent, which is rare, there would be no case and no basis for res ipsa. There are instances where a person does not owe a duty of care. For example, some states do not require landowners to provide a standard duty of care to trespassers. So, if an intruder suffered an injury that generally would apply for res ipsa, but the court decides the owner did not owe a duty of care, then the trespasser’s injuries were not the responsibility of the landowner.
The duty of care must be established to qualify for the res ipsa doctrine. Therefore, a plaintiff’s injury attorney must determine the duty owed with evidence or common sense. For example, a driver who decides to drive drunk owed a duty of care to the public to follow the rules of the road and operate a vehicle safely. Therefore, they had a duty and breached that duty.
There are instances where the defense can move to counter the use of res ipsa. However, they must provide evidence, because the burden of proof transfers to the defense if the court feels that the doctrine of res ipsa applies.
The defense would need to show that the plaintiff interfered with the events that led to the defendant’s negligence. So, they do not need to disprove negligence, but rather that the plaintiff played a role in the injury. Using a preponderance of evidence, the defense would be able to show that the plaintiff did not take reasonable steps to avoid injury, or that the injury could occur even if the defendant took reasonable care to avoid it.
For example, say the man struck by a barrel of flour was only harmed because an earthquake shifted the barrels over the side of the building. If the defense had taken measures to secure the barrels, but the force of the quake was too strong, then they could argue there was no way to prevent the injury.
If your injuries are partially your fault, or the defense can establish that you contributed in some way to the accident, your case might be dismissed. Or, the burden of proof will be shifted back to you to prove that the defense was more at fault than you were.
In Illinois, the modified comparative negligence rule under 735 ILCS 5/2-1116 applies. This means that the recovery of damages is reduced based on the amount of negligence contributed by the plaintiff. The plaintiff cannot receive damages unless he or she is considered less than 50 percent at-fault. So, if the claimant is found 51 percent at-fault, he or she cannot recover.
The amount of contribution on behalf of the plaintiff will reduce the settlement value. So, even if you were at fault and collect compensation, your payment amount will be reduced based on your contribution to that event. If the court determines that you were 20 percent at-fault, then your settlement amount is reduced by 20 percent, too.
The defense often uses contributory fault as a defense to res ipsa. They may try to state that the plaintiff had ample time to avoid injury, or show that the plaintiff contributed enough to disqualify the case for the res ipsa doctrine. Therefore, it is imperative that anyone injured in a res ipsa case – or any negligence incident – have a Chicago personal injury attorney by their side.
Personal injury attorneys are prepared for the defense of other law firms and insurance companies. They know what tactics these companies will use to reduce settlement or lower the burden of proof on their end. With a personal injury lawyer, you can fight the claims against you that state that you were at fault, especially when you contributed in no way to your accident.
If you were injured in an accident, regardless of whether res ipsa applies or not, contact an injury lawyer at Malman Law. We are here to serve as your advocates, and we aggressively fight for our clients’ rights to compensation.
Schedule a free consultation 24 hours per day, seven days per week over the phone or request your appointment online through our contact form.
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NOAH TAFFELPersonal Injury Victim