Res Ipsa Loquitur

1. Res Ipsa Loquitur HARD!!!HARD!!!

2. Starting Point: the Ordinary Case In a routine negligence case: Plaintiff alleges a specific act of negligence. Example: D never signaled before turning. Example: D left his roller blades on the sidewalk. Plaintiff must persuade jury that her allegation is true and that this conduct was negligent.

3. The Case that Needs Res Ipsa. A problem arises for P when P doesn�t actually know what D did carelessly to cause the injury. Flour barrel inexplicably falls out of warehouse window Automobile leaves the highway and hits Penny Pedestrian in the back. (too fast? Cell phone? Sleepy?) assume that investigation can�t narrow it down. Should courts dismiss because P can�t prove exactly what D did wrong?

4. Filling the Gap with Circumstantial Evidence Courts allow Plaintiffs to proceed anyway if, but only if, the evidence suggests that: The accident would not have happened unless someone was negligence That someone is probably the Defendant. Example: Penny Pedestrian assume no evidence that D has heart-attack or equipment failure.

5. Formal Statement of the Doctrine For historical reasons, judicial statements of the elements are less simple than mine Boyer v. Iowa H.S.A. Assn. (Iowa.1967)239 Elements in Iowa? D has exclusive control of instrumentality [so probablyD] Accident would not ordinarily happen if reasonable care were used. [so probably due to negligence]

6. Accident would not ordinarily happen if reasonable care were used? Held? Basis for this conclusion? Yes: cockroach in frozen pasta. Yes: Elevator crashes Not: P contracts infection in hospital Not: convulsion and fx from shock therapy If needed, expert witness can establish.

7. D has exclusive control of instrumentality? Held? What about the crowd? So how is court rephrasing the �exclusive control� test? (241) Practical effect: P can �rule out� some people who had or shared control; narrow down to D. RS reco�s just asking if �probably D� Held: yes Crowd? No evidence they caused it. So, shared control! New test? Excl. control at time of negl. [so probably by D--that�s how RS wisely phrases the actual test] TIME LINE (mfr? Installer?) NB: b/p normally on P unless D�s theory is pure speculation.Held: yes Crowd? No evidence they caused it. So, shared control! New test? Excl. control at time of negl. [so probably by D--that�s how RS wisely phrases the actual test] TIME LINE (mfr? Installer?) NB: b/p normally on P unless D�s theory is pure speculation.

8. Third element? What third element did D say P had to prove? That D had superior access to evidence. Example: patient having abdominal surgery comes out with arm paralysis. Held? Not essential (majority view) Present here

9. Fourth Element? Plaintiff did not contribute to the injury. Minority of courts require; majority says is redundant of the �exclusive control� element Boyer? P would prove she was just standing on bleachers.

10. Recapping the Elements 1. D has exclusive control of instrumentality at time of the negligent act 2. Accident would not ordinarily happen if reasonable care were used. [3. D = superior access to the evidence] [4. P did not contribute to the accident] also causation & damages.

11. What�s going on? Why don�t courts throw these cases out? Evidence suggests that: Someone was negligent (tortious) Probably Defendant (right person)

12. What�s going on (cont�d) RIL�s purpose is to identify cases in which the best explanation for the accident is negligence by D (same as any negl case) (even though P can�t point to a specific negligent act by D). Understood this way, RIL just states the kind of circumstantial evidence that P needs when he can�t identify the specific negligent act. Gets P to jury; D can rebut. Jury decides.

13. What�s going on (#3)? Authors say this circumstantial evidence goes to the ultimate �value judgment� in a negligence case. How so? Contrast: Circumstantial evid. that D was going 65 mph Circumstantial evidence that D was negligent in some unknown way How do we do r/u? Must be able to assume it.