Res Ipsa Loquitur
The legal term “res ipsa loquitur” allows you to prove liability when you lack direct evidence of fault.
Proving res ipsa loquitur is not an automatic way to win your claim, but it does help you get there.
Illustrative Scenarios
For purposes of illustration, compare the following two scenarios:
- Scenario #1: A driver slams into you while driving the wrong way on a one-way street.
- Scenario #2: You get hit by a falling hammer as you walk beside a skyscraper under construction.
The first instance is more obvious; you might be able to hold the negligent driver who slammed into you accountable. In the second instance, you have no direct evidence of negligence, but you have a fairly good idea that the “flying hammer” came from the construction work on the building you were walking past at the time of the accident.
The Elements of a Res Ipsa Loquitur Claim
The “elements” of a claim are the facts you need to prove to establish it. Here are the three elements of a res ipsa loquitur claim:
- Exclusive Control: The defendant had exclusive control over whatever caused your injury. You might sue the construction company that controlled the construction of the building from which the hammer fell, for example.
- Negligence: The type of accident that occurred is such that it would not happen unless someone was negligent.
- No contributory negligence: Your own negligence played no part in the accident.
If you prove these three elements, you have established the basic elements of res ipsa loquitur. To prove actual liability, you need to prove three further elements:
- Harm: You suffered physical harm. Once you prove physical harm, you can also collect for intangible harm, such as emotional distress.
- Actual Cause: You would not have suffered the harm had it not been for the defendant’s negligence.
- Proximate Cause: The harm you suffered was a foreseeable consequence of the defendant’s negligence.
You must establish these six elements on a “preponderance of the evidence” (51% likelihood) basis.
Examples of Ordinary Negligence Claims
Here are a few further examples of ordinary negligence claims (not normally resolved through appeal to res ipsa loquitur).
- A driver fails to stop at a red light and hits your motorcycle.
- A restaurant employee mops the floor but does not erect a “Wet Floor” sign, causing you to slip and fall.
- Your doctor prescribes you medication that you have told them you’re allergic to, causing an adverse reaction.
- A homeowner fails to repair a broken staircase railing, leading you (a visitor) to fall down the stairs.
- Your electrician improperly installs electrical wiring, resulting in a house fire that causes you to suffer smoke inhalation.
Res ipsa loquitur does not apply to any of these scenarios because the defendant’s liability is clear without resorting to circumstantial evidence.
Examples of Res Ipsa Loquitur Cases
Here are some examples that might more easily lend themselves to a res ipsa loquitur theory of liability:
- A medical examination reveals that you have a surgical sponge inside your abdominal cavity (years after you underwent abdominal surgery).
- A ceiling fan detaches and falls on you in an otherwise well-maintained grocery store.
- An unattended parked car rolls down a hill and hits you as you cross the street, even though the parking brake was on.
- A bottle of cola explodes after you open it, breaking glass and injuring your face.
- A train derails on a straight track during clear, dry weather with no apparent error or external interference.
In all of the foregoing cases, direct evidence of fault is hard to come by, yet some party or another obviously acted negligently at some point.
Proving Res Ipsa Loquitur
Following are some comments on the task of proving a res ipsa loquitur claim:
Exclusive Control
In the case where a falling hammer injured you, for example, you must show that the construction company or construction workers had control over the area from which the hammer fell (the roof of the building, for example).
Negligence
It can be challenging to prove that the accident is of a type that typically would not occur without negligence–or it can be blindingly obvious. Since hammers cannot fly, it follows that someone acted negligently when the hammer hit you. Likewise, sponges do not naturally grow inside abdominal cavities.
No Contributory Negligence
You cannot use res ipsa loquitur if your negligence substantially contributed to your own injuries. You won’t necessarily lose the case that way. You just can’t use res ipsa loquitur, and you will lose some of your damages. You will lose all of your damages, however, if your percentage of fault is 50% or more.
Harm
Proving the extent of your injuries is usually the easy part. It can be challenging, however, to prove the full extent of, say, long-term disability. Medical expert testimony can help.
Actual Cause
You might prove that the dangerous condition caused the harm you suffered through reference to medical records, witness testimony, or other evidence.
Proximate Cause
You must show that the harm you suffered was a foreseeable cause of the defendant’s negligence. In other words, freak accidents do not generate personal injury liability.
Contact a Denver Personal Injury Lawyer
Most Denver personal injury lawyers will be happy to schedule you for a free initial case consultation. An experienced personal injury lawyer will have handled res ipsa loquitur cases many times before. The best part is that if you don’t win your case, you will owe nothing in legal fees. If you win, your legal fees will amount to a certain percentage of your total recovery.
Contact Zaner Harden Personal Injury Lawyers at (720) 613-9706 today for a free consultation and to learn more about contributory fault.
