Law of torts

 Principle: Res Ipsa Loquitur & Negligence Per se

In an ordinary negligence case, the plaintiff must prove that the defendant owed the plaintiff a duty and that his conduct failed to measure up to that duty. However, under res ipsa loquitur, the defendant’s negligence may be presumed and thus does need not be proven.

The elements of res ipsa loquitur are:

1) the defendant was in exclusive control of the situation or instrument that caused the injury;

2) the injury would not have ordinarily occurred but for the defendant’s negligence; and

3) the plaintiff’s injury was not due to his own action or contribution.

If these elements are met, the burden shifts to the defendant to show that he was not negligent.

Example:

Res ipsa loquitur is sometimes applied in medical malpractice cases where something obviously went wrong in surgery, for example, but precisely what went wrong cannot be proven. A foreign object might have ended up in a patient or suturing may have been proven to be ineffective. While it may not be possible to prove precisely what happened during the surgery, possibly because the only people conscious at the time work for the defendant hospital, events occurred that do not ordinarily occur in the absence of negligence. This is sufficient to swing the burden of proof to the defendant hospital so that it will be held liable unless it can prove the chain of events that demonstrates that it was not negligent.

Negligence per se is applied when conduct that is a violation of a law (whether a criminal statute, ordinance, or administrative order) causes harm.

To prove negligence per se, the plaintiff must establish that:

(1) there is a statute that defines a certain standard of conduct;

(2) the defendant violated that statute;

(3) the plaintiff is a member of the class that the statute was designed to protect; and

(4) the plaintiff suffered the sort of injury that the statute was designed to prevent.

Example: Negligence per se is often of use in automobile accident cases. If it can be shown that a driver violated a traffic law in a manner that led to the accident, negligence will be presumed, no matter how slight the violation. So, for example, if a driver drives 35 mph in a 30 mph zone, she is presumed to be negligent, even though it’s quite possible that she was driving no faster than most people on the same road.

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