[2][3] The circumstances of the genesis of the phrase and application by Cicero in Roman legal trials has led to questions whether it reflects on the quality of res ipsa loquitur as a legal doctrine subsequent to 52 BC, some 1915 years before the English case Byrne v Boadle and the question whether Charles Edward Pollock might have taken direct inspiration from Cicero's application of the maxim in writing his judgment in that case.
The fourth element emphasizes that defendant may defeat a res ipsa loquitur claim by producing evidence of a non-negligent scenario that would completely explain plaintiff's injury and negate all possible inferences that negligence could have occurred.
Accordingly, the element has largely given way in modern American cases to a less rigid formulation: the evidence must eliminate, to a sufficient degree, other responsible causes (including the conduct of the plaintiff and third parties).
Here is a fictitious example: In some cases, a closed group of people may be held in breach of a duty of care under the rule of res ipsa loquitur.
It requires no further explanation to show the surgeon who removed the appendix was negligent, as there is no legitimate reason for a doctor to leave a scalpel in a body at the end of an appendectomy.
[9] The expression res ipsa loquitur is not a doctrine but a "mode of inferential reasoning" and applies only to accidents of unknown cause.
[9][10] Res ipsa loquitur comes into play where an accident of unknown cause is one that would not normally happen without negligence on the part of the defendant in control of the object or activity which injured the plaintiff or damaged his property.
In Hanrahan v. Merck, Sharp & Dohme (Ireland) Ltd. [1988] ILRM 629 the supreme court held that in cases of nuisance the burden of proof could be shifted to the defendant where it would be palpably unfair for the plaintiff to have to prove something beyond their reach.
In English tort law, the effect of res ipsa loquitur is a strong inference in favour of the claimant that negligence has taken place.
This requirement was not satisfied in Easson v. LNE Ry [1944] 2 KB 421, where a small child fell off a train several miles after it had left the station.
In this case, the plaintiff could not be assisted by res ipsa loquitur and had to go on to prove that the flat tyre was caused by the transport company's negligence.
If found, res ipsa loquitur creates an inference of negligence, although in most cases it does not necessarily result in a directed verdict.
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.
"[22] In some states, the doctrine of res ipsa loquitur is also used as a method of proving the 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",[23] for example: Possession of materials to be employed in the commission of the crime, which are specifically designed for such unlawful use or which serve no lawful purpose of the actor under the circumstancesSome 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.