What sounds like a complicated Latin phrase isn’t as difficult as you might think
The thing speaks for itself.
This legal theory is important because it helps to explain evidence in a way that’s clear... and sometimes seems obvious.
If you’re like most people, you probably think Latin is a “dead” language that no one’s used since the 17th century. And you’d be mostly correct.
But there are a few phrases that endure, particularly in the legal world.
For example:
Did you know that “alibi” is a Latin word?
The Latin translation is “elsewhere,” or “at another place.” It became a noun only after it was being used in English in the 19th century.
Bona fide also has its roots in Latin. In Latin, it means “in good faith,” and we tend to use it today as meaning real, sincere, or legitimate.
There are plenty of Latin terms that are applied in the legal system, but you probably won’t hear most of them until you are involved in a personal injury lawsuit. One such term is res ipsa loquitur.
What is res ipsa loquitur?
Res ipsa loquitur means “the thing speaks for itself.” This concept is sometimes used to prove negligence in a case where there’s no proof of how an injury happened and no other reasonable explanation besides negligence.
Let’s compare the elements of negligence and the elements to use res ipsa loquitur.
Elements of negligence
There are 4 key elements to prove that a defendant was negligent in a personal injury lawsuit:
- The defendant had a duty to act or not act in a specific way.
- The defendant breached their duty.
- The plaintiff’s injury was caused by the defendant’s breach.
- The injury resulted in financial damages (cost of medical treatment, lost wages, pain and suffering, etc.).
Sometimes, these elements are difficult to prove. While they’re essential to a plaintiff’s successful outcome, there is an alternative.
Elements of res ipsa loquitur
If the plaintiff can make an argument for res ipsa loquitur, they might be able to receive damages even if they can’t prove each element of negligence. The 3 important elements to prove res ipsa loquitur are:
- The accident or injury wouldn’t have occurred without negligence.
- The cause of the accident was within the defendant’s exclusive control.
- The harm was not caused by the plaintiff.
Examples of res ipsa loquitur
The “classic” example of a res ipsa loquitur case is medical malpractice when a doctor left a surgical tool or foreign object in a person’s body during surgery.
| What happened? | How does res ipsa loquitur apply? |
|---|---|
| Medical malpractice | |
| A surgeon performed a procedure on a patient and a surgical sponge was left inside the body after the procedure was finished, resulting in infection for the patient that required additional treatment and a second surgery. The doctor and their team of nurses and surgical assistance were the only people who could have left the sponge inside the patient’s body. The patient was under anesthesia and could not place a surgical sponge inside their own body. | If the sponge wasn’t intended to remain in the body for any medical purpose, it’s clear that it being left behind was a mistake or oversight. The doctor and any other person in the operating suite had “exclusive control” over the incident because no one else — and no outside circ*mstances — could have caused a sponge to be left behind. The plaintiff could not possibly have caused the harm because they had no control over their surgery, especially while under anesthesia. |
| Construction accident | |
| A construction worker is repairing bricks from a scaffold on the side of a building. A brick falls from the scaffold and injures a pedestrian below. The construction worker had control over the bricks and was supposed to keep them contained and secured while working on the building’s facade. The area beneath the work zone was not blocked or marked, so the pedestrian wasn’t warned to avoid walking there. | The brick fell while a worker was making a repair. He was the sole person working on the building at the time when the brick fell, so no other person could have caused that to happen. The pedestrian was only walking down the sidewalk. They couldn’t have done anything to cause the brick to fall. |
Res ipsa loquitur shifts the burden of proof in a lawsuit
In a personal injury (civil) lawsuit, the burden is typically on the plaintiff to prove by a preponderance of the evidence. That means the plaintiff must demonstrate that there’s greater than a 50% chance that the injury happened because of the defendant’s negligence.
If the plaintiff’s lawyer successfully invokes the doctrine of res ipsa, the burden shifts to the defendant to prove that they were not negligent.
The effect of this shift is that instead of the plaintiff proving that they were injured because of the defendant’s negligence, there can be co-defendants making a case for why one defendant is more liable than the others.
Here’s how it might affect the examples above:
The court has determined that in the case of the sponge left behind during surgery, res ipsa loquitur — the thing speaks for itself. There’s no defense to the claim that the sponge being left behind was negligent, it caused harm to the plaintiff, and the plaintiff couldn’t have avoided the situation.
But, the doctor could say it was the nurse’s job to remove the sponges. The nurse could say it’s the surgical assistant’s job to count all of the instruments and supplies before closing the incision. Really, anyone in the room could face liability, and it could ultimately be the hospital’s responsibility for its employees.
In the example with the falling brick, it’s a similar analysis. The scenario assumes the construction worker is the sole responsible party. In reality, there could be questions about whether there’s liability on the worker’s employer, the construction supervisor, the building management, and others. But the fact that the plaintiff’s injury was caused by the falling brick and that there was negligence because the brick fell could fall under the doctrine of res ipsa.
Evidence law and res ipsa loquitur
Every legal case is decided because of the evidence presented.
Sometimes, there’s direct evidence, which demonstrates that the negligence caused the plaintiff’s injury. This might be testimony from a witness about what they saw, heard, or otherwise observed. It can also be physical evidence, like the presence of the sponge in the patient’s body after surgery.
Circ*mstantial evidence is when there are facts that point to a logical conclusion but that don’t specifically demonstrate negligence. Circ*mstantial evidence might help a lawyer make a res ipsa loquitur argument because it can allow the judge or jury to infer negligence based on a combination of facts and circ*mstances.
Defenses to the res ipsa loquitur argument
If a plaintiff’s lawyer can successfully invoke res ipsa loquitur, that doesn’t mean the case is automatically won. A defense lawyer might be able to shift the burden of proof back to the plaintiff and absolve the defendant of responsibility.
Or a defendant might use the Act of God defense. An Act of God would be something that’s naturally occurring — for instance, if the injury was because the plaintiff was hit by an object that fell from a window, it could be argued that it was because of a strong gust of wind and not because of the defendant’s negligence.
If the defendant can successfully argue that the plaintiff somehow contributed to their own injury, then res ipsa loquitur would not apply.
If you were injured because of someone’s negligence, you deserve compensation for your expenses. Although every lawyer should know the concept of res ipsa loquitur, it can be a difficult argument to make in a courtroom. A skilled lawyer will evaluate every aspect of your claim and formulate the best possible case to win your lawsuit.
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