Free Consultations | Tap To Call Today: 1.888.625.6265

Experienced Chicago Personal Injury Lawyer Discusses Res Ispsa and the Role of Negligence in an Injury

Negligence Caused InjuriesRes 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 Background of Res Ipsa

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.

Specific Elements Are Required

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:

  1. Out-of-the-ordinary injury situation. The injury could not have occurred without negligence.
  2. Exclusive control exists. The accident or object that caused the injury must have been in exclusive control by the defendant. If another party is equally in control, the defendant may not be considered negligent.
  3. The injury was not contributory. The plaintiff cannot contribute to his or her injury in any way for res ipsa to apply. Therefore, if the accident involved some form of voluntary action, the case cannot use the doctrine.
  4. Duty of the defense. The type of negligence in question does fall within the scope of the defendant’s duty to the plaintiff and public.

Understanding the Exclusive Control Requirement

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.

Res Ipsa is Not Prima Facie

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.

Understanding the Duty of Care Requirement

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.

How Res Ipsa Might be Rebutted

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.

Contributory Negligence and Your Res Ipsa Case

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.

Speak with an Illinois Personal Injury Attorney Today

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.

Firm Awards & Recognitions

Steven Malman was selected to the list. The list is issued by the American Institute of Legal Counsel. A description of the selection methodology can be found at

  • Steven Malman was selected to the list. The list is issued by the National Academy of Personal Injury Attorneys. A description of the selection methodology can be found at

  • Steven Malman was selected to the list for 2018-2019.

  • Only the top 100 trial lawyers from each state or highly-populated regions of certain states who are actively practicing in civil plaintiff and/or criminal defense law are eligible for invitation. Invitees must demonstrate superior qualifications, leadership skills, and trial results as a legal professional. The selection process for this elite honor is based on a multi-phase process based upon objective and uniformly applied criteria which includes peer nominations combined with third party research.

    Prospective members of The NTL are carefully screened prior to receiving an invitation for membership.

  • Top Attorneys Diamond Member

  • Top Attorneys of North America 2019-2020

  • The American Institute of Trial Lawyers is an invitation only professional organization composed of premier trial attorneys from each state. These attorneys exemplify the very best qualities and qualifications of an attorney. Each attorney must meet stringent qualifications as a civil or criminal trial attorney. These attorneys practice in a variety of fields to help and promote the ethical and elite practice of law. Selection is based on a thorough multi phase process which includes peer nominations and third party research. Each member must be in good standing with their local compliance organization. Membership is extended to only a select few in each state and/or region.

  • As the founder of Steven J. Malman and Associates, P.C., Attorney Steven Malman has 21 years of experience handling personal injury, nursing home, medical malpractice, premises liability, construction and workers’ compensation cases. Mr. Malman is one of Chicago’s leading authorities on personal injury law and has taken a special interest in defending the elderly from neglect and abuse. He has personally handled over 10,000 cases successfully, and collected hundreds of millions dollars for his clients.

Client Review

  • "I'm very pleased to recommend Malman Law to my friends and relatives! I have to mention how efficient and professional in dealing with my case has been with everyone that I've been in contact with at Malman Law. Mrs. Sabo is outstanding as well as her secretary and assistant in responding quickly to any of my questions or concerns. This firm has gone above and beyond to keep me updated and get answers to my questions at any time, weekends included! Malman Law rules in my opinion! "

    - Cheryl Wagemann
View More Testimonials

Know Your Rights!

Why People Choose Malman Law

You’ll want our experience on your side.
You’ll want your lawyers to be this good.

  • Credibility & Experience

    20,000+ Cases over 25 Years
  • Track Record of Success

    Over $200,000,000 Collected
  • Team of Litigation Lawyers

    Real Courtroom Experience
Need Help
After Hours?

Paralegals Available
24 Hours A Day To
Speak With you

No Matter The Time, We’re Here To Help!
Click to Call Now