Res Ipsa Loquitur

woman with purple hair told to leave meeting. Used for res ips loquitur

Today I want to discuss the Torts concept res ipsa loquitur. A Latin phrase, which translated means “the thing speaks for itself.” Though for something that should speak for itself, it sure causes a lot of confusion! (For some interesting information on the doctrine, consider reading this article on the effect of the res ipsa loquitur doctrine).

The Context

In negligence cases a defendant can only be found liable if the defendant breached a duty owed to the plaintiff. But sometimes, there is no direct evidence that the defendant did anything to violate the duty of care.

Man walking by building. res ipsa loquitur if window fallsFor example, suppose that someone owns a 10-story office building. One of the sealed windows towards the top, pops out, falls down, and severely injures a pedestrian. At the time the window fell, the office was vacant. In a lawsuit, the building’s owner might try to argue that he doesn’t know why the sealed window popped out. And since he doesn’t know, he must not be negligent. What do you think about that argument? It does have a certain appeal to it. But we should all agree that sealed windows in office buildings don’t magically pop out unless someone is negligent.

To combat this kind of silly argument, res ipsa loquitur was born when the only evidence is circumstantial. Circumstantial evidence allows a jury to make an inference based on what is known. In the window example, we know that there was a sealed window and that it popped out. The inference is that the building owner breached his duty of care.

The History

Latin marble writingThe phrase res ipsa loquitur comes from a mid 19th century British case called Byrne v. Boadle. For purposes of this article, all you need to know is that the world would have been better off if the court had not used Latin. And instead, stated that it was providing a rule for the use of circumstantial evidence in establishing breach of duty.


The Rule

The question of what evidence and instructions can be heard by the jury is up to the judge. In a res ipsa loquitur case, the judge will allow the jury to get a res ipsa loquitur instruction if the following three elements are met:

  1. The harm suffered is most likely caused by the negligence of someone. If it was an act of nature, like a hurricane, then the plaintiff loses on this element.
  2. It is more likely than not that defendant was negligent. (There has to be some connection to the defendant, and it has to be fairly apparent that the defendant breached his duty of care. Some of the cases that you read might state this element differently, saying that the defendant had exclusive control of the object which caused the harm. These cases tend to be older, and those cases never held for absolute control, which is why the more modern rule states that it is more likely than not the defendant’s negligence. After all, how else does a sealed window inexplicably pop out of a building unless the building owner was negligent, either while installing the window or failing to make reasonable inspections?)
  3. The Plaintiff was not at fault. (Obviously, a plaintiff that contributes to the negligent act cannot use res ipsa loquitur.)

Keep in mind that by proving all three elements, a plaintiff does not automatically win their case. What the plaintiff gets is a jury instruction that allows the jury to make an inference that defendant breached the duty of care. The jury can decide to make or not make the inference.

How to Use on an Exam

Treat each element of the res ipsa loquitur test separately. This means providing one full IRAC paragraph for each element, as explained in the video on Nested IRAC. If you try to place all of the elements in one giant paragraph, you’re going to have one big res ipsa loquitur mess. To be clear, a res ipsa loquitur discussion requires 4 paragraphs. The first paragraph will mention the phrase, that it is used to get an inference for the breach of duty, that the judge makes the decision as to whether the jury gets a res ipsa loquitur instruction, and that the jury is free to either accept or reject the inference. The next paragraph will deal with the first element. And finally, the third paragraph deals with the second element. And the final paragraph will deal with the third element. One paragraph for each element.

If you really want nail a res ipsa loquitur question on an exam, check out this tip on how to answer an essay question before seeing it. Also, if you are struggling with Torts, I highly recommend Understanding Torts, a study aid that I have required my students to read since 2001.

Now that you’ve read the article, I hope that res ipsa loquitur!

Signup for our Newsletter and Receive a Free MP3 Law School Study Aid!

Res Ipsa Loquitur