Is the Legal Doctrine of 'Res Ipsa Loquitur' Losing Its Voice?

05/27/2015 12:08 pm ET | Updated May 27, 2016

Typically an individual suing another person for injuries must prove exactly what was improper (negligent) about the defendant's conduct. However, in some situations the law shifts the requirement to the defendant to demonstrate that she or he did act properly. Certain events are said to "speak for themselves" (res ipsa loquitur). So, for example, if a just installed new tire has a blowout, one might argue that the thing speaks for itself. However, the manufacturer could assert that possibly improper inflation or excessive speed caused the blowout. Consequently, the manufacturer would argue that the plaintiff should be required to prove precisely how the new tire was defective.

The Anglo-American legal doctrine of res ipsa loquitur (the thing speaks for itself) began with an 1863 English case when a pedestrian was struck by a barrel of flour falling while being lowered from the upper floors of a warehouse that was entirely occupied by the defendant. The plaintiff could not present evidence of precisely how the defendant was negligent. Nevertheless, the plaintiff won his lawsuit under a presumption of negligence when the defendant failed to provide an explanation for the event (Byrne v. Boadle).

Moving forward to 2015, U.S. courts are reluctant to dispense with a plaintiff proving precisely how a defendant was negligent. In the following fifteen examples, randomly selected from over one hundred 2015 court decisions, the plaintiff for a variety of reasons was unable to successfully assert res ipsa loquitur, meaning that these events did not "speak for themselves." The plaintiff was required to prove negligence by the defendant.

. Livestock on the highway were hit by a car.

. A mis-leveled elevator caused a fall.

. A patient with a fractured pelvis was improperly diagnosed.

. A newly installed HVAC system caught on fire.

. A city sewer system overflowed into a home after a two-day rainstorm.

. Airborne chemicals came from installed spray-foam insulation.

. Four foreign objects were left in a patient's abdomen during a 1999 surgery.

. Fireworks mortar shells launched at a July 3 celebration fell among spectators causing injuries.

. A jail trustee was injured in an explosion while attempting to relight a gas-fired furnace.

. A squirrel in an electrical transformer on a power pole caused a house fire.

. A conscious patient saw a drainage tube removed; however, part of the tube remained in his body.

. A newspaper delivery man was injured when a step collapsed at an apartment complex.

. A patient asserted improper post-surgery care.

. Air bags failed to deploy in an automobile accident.

. Ratchet straps failed causing a tree stand to collapse.

Res ipsa loquitur seems to be an afterthought to many litigation petitions. Also, courts are increasingly reluctant to allow a case to go to a jury with a res ipsa loquitur basis for liability. In part, this is because contemporary legislation, especially in the medical malpractice arena, restricts the grounds for recovery. But courts on their own volition are limiting the application of res ipsa loquitur.

Courts often make the following type statements as a prelude to denying the application of res ipsa loquitur:

. The instrumentality producing the injury must be solely and exclusively under the control of the defendant.

. The only reasonable hypothesis for the product's failure must be a defect due to a breach of duty or omission by the defendant.

. Res ipsa loquitur is a rule of circumstantial evidence grounded in probability and sound procedural policy.

. Res ipsa loquitur is inapplicable if the accident might have occurred without the defendant's negligence.

. The injury must not have been caused or contributed to by any voluntary act on the part of the plaintiff.

. The connection between negligence and injury may not be based upon speculation or conjecture.

. All parties who could have caused the injury must be joined as defendants.

A plaintiff must not expect "the thing speaks for itself" to have a very loud voice in contemporary litigation. However, a careful analysis of the facts and law in a given jurisdiction must be undertaken by experienced legal counsel.

This comment provides only a very brief educational overview of a complex legal topic and is not intended to constitute legal advice. Always consult an experienced attorney in specific situations.