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{{short description|Legal term - Latin for "the thing speaks for itself"}}
{{italic title}}{{Tort law}}
'''''Res ipsa loquitur''''' (Latin:
The crux of ''res ipsa loquitur'' is '''circumstantial inference'''. Although specific criteria differ by jurisdiction, an action typically must satisfy the following elements of [[negligence]]: the existence of a [[duty of care]], breach of appropriate standard of care, causation, and injury. In ''res ipsa loquitur'', the existence of the first three elements is inferred from the existence of injury that does not ordinarily occur without negligence.
==History==
The term comes from [[List of Latin phrases|Latin]] and is literally translated "the thing itself speaks", but the sense is well conveyed in the more common translation, "the thing speaks for itself".<ref name="translating">{{cite web|url=https://books.google.com/books?id=vhY8AAAAIAAJ&q=%22the+thing+itself+speaks%22+%22the+thing+speaks+for+itself%22&pg=PA571|title=The Northwestern Reporter|date=30 September 2017|publisher=West Publishing Company|access-date=30 September 2017|via=Google Books}}</ref> The earliest known use of the phrase was by [[Cicero]] in his
==Elements==
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*[[John Doe]] is injured when an [[elevator]] he has entered plunges several floors and stops abruptly.
*Jane's Corporation built and is responsible for maintaining the elevator.
*John sues Jane
*The court holds that John does not have to prove anything beyond the fall itself.
**The elevator evidently malfunctioned (it was not intended to fall, and that is not a proper function of a correctly-functioning elevator).
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==Typical in medical malpractice==
''Res ipsa loquitur'' often arises in the "[[scalpel]]
==Examples by jurisdictions==
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#The accident must be of such a type that would not occur without negligence.
In ''Scott'', the court held that sacks of sugar do not fall out of warehouses and crush passers-by without somebody having been negligent along the way, so the plaintiff did
Recent examples in Scotland are ''McDyer v Celtic Football Club''<ref>{{citation|year=2000|title=McDyer v. Celtic Football Club|location=SC|section=379|url=http://www.bailii.org/scot/cases/ScotCS/2000/55.html}}</ref> and ''McQueen v The Glasgow Garden Festival 1988 Ltd''.<ref>{{citation|title=McQueen v The Glasgow Garden Festival 1988 Ltd|year=1995|location=SLT|section=211}}</ref>
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#The type of negligence in question falls within the scope of the defendant's duty to the plaintiff.<ref>{{cite web|url=http://injury.findlaw.com/accident-injury-law/res-ipsa-loquitur.html|title=Res Ipsa Loquitur |website=Injury.findlaw.com|access-date=30 September 2017}}</ref>
Most American courts recognize ''res ipsa loquitur''. The [[Restatement of
The doctrine was not initially welcome in medical malpractice cases. In ''Gray v. Wright'',<ref>{{citation|title=Gray v. Wright 142 W. Va. 490, 96 S.E. 2d 671 |year=1957}}</ref> a seven-inch [[hemostat]] was left in Mrs. Gray during gallbladder surgery in June 1947, and despite her chronic complaints about stomach pain over the years, the device was not found until an X-ray in March 1953, when it was removed. Her $12,000 award was reversed by the Supreme Court of West Virginia because she was outside the statute of limitations when she filed and could not prove that the doctor concealed knowledge of his error. This "guilty knowledge" requirement disappeared over the years, and the "discovery rule" by which statutes of limitation run from the date of discovery of the wrongdoing rather than the date of the occurrence has become the rule in most states.
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Forty years later, leaving a medical device in a patient was medical malpractice, provable without expert testimony, in almost every jurisdiction.<ref>See ''Fieux v. Cardiovascular & Thoracic Clinic, P.C.,'' 159 Or. App. 637, 641, 978 P.2d 429, 433 (1999); ''Steinkamp v. Caremark,'' 3 S.W.3d 191, 198-99 (Tex. Civ. App. 1999); ''Baumgardner v. Yusuf'', 144 Cal. App. 4th 1381, 1392, 51 Cal. Rptr. 3d 1381, 1392 (2006); ''Fox v. Green'', 161 N.C. App. 460, 465, 588 S.E. 2d 899, 904 (2003).</ref> [[Virginia]] has limited the rule. The Virginia Supreme Court stated in 1996: "Almost 60 years ago, this Court, discussing res ipsa loquitur, said: 'In Virginia the doctrine, if not entirely abolished, has been limited and restricted to a very material extent.' ''City of Richmond v. Hood Rubber Products Co.'', 168 Va. 11, 17, 190 S.E. 95, 98 (1937). ... It may be utilized only when the circumstances of the incident, without further proof, are such that, in the ordinary course of events, the incident could not have happened except on the theory of negligence."<ref>''[https://eapps.courts.state.va.us/acms-public/caseInquiry/showCasePublicInquiry Lewis v. Carpenter Co.]'', 252 Va. 296, 477 S.E.2d 492 (1996).</ref>
A contention of ''res ipsa loquitur'' commonly is made in cases of commercial airplane accidents. It was part of the commentary in a train collision in [[California]] in 2008: "If two trains are in the same place at the same time,
In some states, the doctrine of ''res ipsa loquitur'' is also used as a method of proving the [[intent (law)|intent]] or ''[[mens rea]]'' element of the [[inchoate crime]] of [[attempt]]. Under the [[Model Penal Code]], "the behavior in question is thought to corroborate the defendant's criminal purpose",<ref name=MPC>[[Frank Schmalleger]], ''Criminal Law Today: An Introduction with Capstone Cases", p. 115, N. 29, citing [[Model Penal Code]], § 5.01 (2).</ref> for example:
{{
====Criticism====
Some US tort scholars have criticized the doctrine as an unnecessarily cumbersome way to state the simple proposition that negligence may be proved by circumstantial evidence.<ref>{{Cite journal |last=Sugarman |first=Stephen D. |date=2022 |title=Rethinking Tort Doctrine: Visions of a Restatement (Fourth) of Torts |url=https://www.uclalawreview.org/rethinking-tort-doctrine-visions-of-a-restatement-fourth-of-torts/ |journal=UCLA Law Review |volume=50 |pages=601–602}}</ref> In their view, the doctrine does not promote clarity in courts' reasoning.<ref>{{Cite book |last=Bayern |first=Shawn |title=Principles and Possibilities in Common Law: Torts, Contracts, and Property |publisher=West Academic Publishing |year=2023 |location=Eagen, MN |pages=45–49}}</ref>
==References==
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[[Category:1863 in law]]
[[Category:Common law]]
[[Category:Brocards (law)]]
[[Category:
[[Category:Legal doctrines and principles]]
[[Category:Tort law]]
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