The thing speaks for itself – Res Ipsa Loquitur

In its original form the doctrine of res ipsa loquitur (i.e., “the thing speaks for itself”) meant that the claimed negligence was so obvious as to negate the possibility of any defense. In other cases, res ipsa loquitur could be applied when the plaintiff could demonstrate that the defendant had sole control over the circumstances which resulted in the injury and that the plaintiff was not responsible for contributory fault.


Res ipsa loquitur permits the fact finder to infer both negligence and causation from circumstantial evidence. It is, in effect, another type of presumption. The plaintiff must establish that more likely than not, the harm to the plaintiff was a result of the defendant’s negligence. In order to defeat the application of this doctrine, the defendant must establish that there is another, equally believable explanation of the injury to the plaintiff. Res ipsa loquitur is strictly a procedural device designed to allow a plaintiff to establish an otherwise unprovable case. In negligence cases, direct evidence of the defendant’s negligence may not be available. This doctrine allows a plaintiff to recover on the basis of what probably happened. Presumptions may be rebuttable, depending on the situation. If rebuttable, the defendant or plaintiff may counter the presumption raised by the opposition through the introduction of alternative evidence tending to dispute the validity of the presumption.

When it is impossible to obtain evidence which is in the possession of the defendant concerning an instrumentality which is in his control, the doctrine of res ipsa loquitur may provide a solution. This doctrine states, in essence, that when damage has been caused by some object and it can be shown that the defendant had exclusive control over the object, and that the occurrence was such as would not normally occur if the responsible person used proper care, then it is permissible in such a situation for the jury to infer negligence. It is basically a “but for” rule. If the damage could not have occurred but for the negligence of the defendant, the jury is permitted to weigh that possibility along with the other facts in the case.

Elements of Res Ipsa Loquitur

Under this doctrine, an injured party that cannot identify which of several defendants is responsible for the injury can assert negligence against all the defendants if the instrument of injury was within the sole control of the defendants and if the injury was not caused by negligence of the injured party.

In effecting this doctrine, the court imparts a measure of equality to the plaintiff’s position where this may have been lacking due to an unwarranted disadvantage imposed on the plaintiff. The court will require that three conditions be met before invocation of this doctrine:

  • Given the circumstances surrounding the alleged incident, there is reasonable cause to believe that the injury could not have otherwise occurred had there been no negligence on the part of the defendant.
  • The instrumentality, the agency, of the injury was under the exclusive control and direction of the defendant.
  • The plaintiff did not contribute in any way to his or her injury.


Just like negligence is not the cause of all accidents, some accidents occur only because of negligence – unless someone was negligent, the accident would not have occurred.

For example everyone knows that things don’t fall out of a window unless someone was negligent in not blocking the window or ensuring that the items near the window are safely stored. So the law will assume that someone was negligent if something falls out of a window.

Defendant is solely liable

The defendant must be solely liable for the plaintiff’s injuries. To recover under this doctrine, the plaintiff must prove by a preponderance of the evidence that his or her injury is caused by the negligence of the defendant. In the instance where a professional duty of care existed, the doctor’s negligence was the most likely cause of the patient’s injury and the doctor has exclusive control over the action, this doctrine will most likely be invoked and the doctor will be held liable for the injuries because he had exclusive control over the action that caused the patient’s injury.

Duty of Care

The plaintiff must also prove that the defendant owed a duty of care to the defendant – to protect the defendant from the injury that is the subject matter of the lawsuit. The defendant will not be liable if there is no duty.

In many states, the landowner has no duty to protect trespassers from dangers on the property. So if the trespasser is injured while on the property, the landowner will not be liable because the landowner does not have a duty of care. The trespasser cannot use the doctrine of res ispa loquitur to establish liability since there the landowner did not have a duty of care to the trespasser.

Challenging Res Ipsa Loquitur

The doctrine of res ipsa loquitur does not prove negligence. It only infers the negligence. A defendant can challenge the inference under this doctrine by refuting any one of the three conditions that must be met for the invocation of the doctrine. For example the defendant can show by a preponderance of the evidence that even by taking reasonable care, the injury cannot be prevented. In the case of things falling out of the window, the plaintiff may have securely stored the items near the window but they may have been loosened by an earthquake and subsequently fallen out of the window.

Another defense to this doctrine is contributory negligence. The defendant can show that the plaintiff was injury wholly or partly because of his or her own negligence.

The defendant can also rebut this doctrine by showing that he or she did not have any duty of care towards the plaintiff. If there was a duty of care, the defendant can rebut the doctrine by showing that the injury has nothing to do with the duty of care.

Would you like to discuss your legal matter?


image description
Jack Morgan CALL US! 866-205-4971

We will assist in scheduling new and existing clients for all offices. For initial consultations we will ask you a few questions and then find the best time for you to talk to one of the lawyers that best fits your legal matter.

Call us or use the email form and we will follow up with you right away.


The Law Offices of Hogan Injury will provide you with personalized attention and guidance. Protecting your rights is our main objective. We have been representing clients for the past 30 years and our experienced team of attorneys will advise you of the legal consequences of every decision you take.