Dusty Phrases

Dusty

February 13

Hi! Welcome to "Dusty Phrases." You will find below an ancient phrase in one language or another, along with its English translation. You may also find the power to inspire your friends or provoke dread among your enemies.

For other examples, visit HERE:

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Latin:

Res ipsa loquitur

English:

The thing speaks for itself

This ancient Latin legal phrase is still used today when determining whether negligence can be presumed to having occurred, thus shifting the burden of proof to the presumably negligent defendant. The phrase is based on logic and it can be used outside of a legal setting, but tort law is where it is most commonly used today. From wiki:

Res ipsa loquitur (Latin: "the thing speaks for itself") is a doctrine in common law and Roman-Dutch law jurisdictions under which a court can infer negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved in the context of tort litigation. 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.

The term comes from 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". The earliest known use of the phrase was by Cicero in his defense speech Pro Milone. 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 injury is of the kind that does not ordinarily occur without negligence or is uncommon in the course and nature of said act.

The injury is caused by an agency or instrumentality within the exclusive control of the defendant.

The injury-causing accident is not by any voluntary action or contribution on the part of the plaintiff.

The defendant's non-negligent explanation does not completely explain plaintiff's injury.

The first element may be satisfied in one of three ways:

The injury itself is sufficient to prove blatant or palpable negligence as a matter of law, such as amputation of the wrong limb or leaving instruments inside the body after surgery.

The general experience and observation of mankind is sufficient to support the conclusion that the injury would not have resulted without negligence, such as a hysterectomy (removal of the uterus) performed when the patient consented only to a tubal ligation (clipping of the fallopian tubes for purposes of sterilization).

Expert testimony creates an inference that negligence caused the injury, such as an expert general surgeon testifying that he has performed over 1000 appendectomies (removal of the appendix) and has never caused injury to a patient's liver. He also does not know of any of his surgeon colleagues having inflicted injury to a patient's liver during an appendectomy. The testimony would create an inference that injuring the liver in the course of an appendectomy is negligence.

The second element is discussed further in the section below. The third element requires the absence of contributory negligence from the plaintiff. 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.

Here is a fictitious example:

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, who claims that his complaint should be dismissed because he has never proved or even offered a theory as to why the elevator functioned incorrectly. Therefore, she argues that there is no evidence that they were at fault.

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).

Jane was responsible for the elevator in every respect.

Therefore, Jane's Corporation is responsible for the fall.

The thing speaks for itself: no further explanation is needed to establish the prima facie case.

All of that is a long way to say that this ancient Latin legal phrase is just an application of the obvious, or of logic. I've embedded a video below explaining the concept, in case you prefer a video format to reading: