Res Ipsa Loquitur

Res Ipsa Loquitur

Res ipsa loquitur” means “the thing speaks for itself.” It is a way of proving someone liable for compensation for an accident, even if you lack direct access to evidence showing exactly how the accident happened.  

The Elements of Negligence: Proving Your Claim the Usual Way

The Elements of Negligence: Proving Your Claim the Usual Way

Most personal injury claims are based on negligence. To win a negligence-based personal injury claim the most typical way, you must prove each of the following four elements:

Duty of Care

The defendant owed the plaintiff (the injured party) a duty of care. Sometimes this duty is an ordinary duty of care, such as driving safely to avoid a car accident. Other times, such as in a medical malpractice claim, the defendant owed the plaintiff a professional duty of care—a much higher standard of care.

Breach of Duty of Care

The defendant must have failed to meet their duty of care by something they did or didn’t do.


The plaintiff must establish two types of causal relationships between the defendant’s breach of duty and the plaintiff’s damages—cause in fact and proximate cause. 

Cause in Fact

Cause in fact is present if the accident would not have happened without the defendant’s breach of duty.

Proximate Cause

Proximate cause is present when the harm caused by the defendant’s breach of duty would be foreseeable to the average person. It is no defense to a personal injury claim that the defendant did not actually foresee the harm.


The plaintiff must have suffered damages (harm) due to the defendant’s breach of duty. These damages might include medical expenses, lost wages, pain and suffering, etc.

The Elements of Res Ipsa Loquitur

You might find it difficult or impossible to establish negligence the ordinary way. Suppose, for example, that you discover a surgical instrument inside your body several weeks after surgery. Since surgical instruments don’t grow inside human bodies, someone must have left the instrument there. This kind of case is a strong candidate for using res ipsa loquitur as a legal strategy. 

The elements of res ipsa loquitur are: 

  • The accident in question does not often occur without negligence;
  • The allegedly negligent act or omission was within the defendant’s duty of care toward the plaintiff;
  • The defendant was in sole control of the circumstances surrounding the accident;
  • The evidence eliminates all parties from the possibility of liability except the defendant; and
  • The plaintiff did not cause their own injuries.   

Proving all of the preceding elements does not necessarily win your case. Instead, it shifts the burden of proof to the defendant. In other words, it puts the defendant in the position of having to prove that they are not liable for your injury. Under most circumstances, it is difficult to prove the negative (that you didn’t do something).

A “Preponderance of the Evidence”: The Evidentiary Standard

The party that bears the burden of proof is the party that must prove its claim. All the other side needs to do is prevent them from proving it (by effectively cross-examining their witnesses, for example). 

The evidentiary standard, by contrast, tells the party with the burden of proof how much evidence they need to establish the element or claim they are trying to prove. The evidentiary standard in a criminal case is “beyond a reasonable doubt.” The evidentiary standard in a personal injury lawsuit is usually a “preponderance of the evidence” – enough evidence to outweigh the opposing party’s evidence in the eyes of the jury (i.e., there’s greater than a 50% chance your claim is valid).

Proving Damages in a Personal Injury Case

Damages (harm) is the only element of a negligence claim that res ipsa loquitur cannot prove. However, you can prove physical harm and lost earnings through medical records, company records, invoices, and similar evidence. You can also claim non-economic damages such as pain and suffering, which is difficult to place a specific dollar value on. 

Seek the services of a lawyer, particularly if you seek to claim non-economic damages. Non-economic damages frequently add up to more than half the total value of a personal injury claim.   

Contact a Personal Injury Lawyer If You Suspect You May Have a Valid Claim 

Attorney Brian White Personal Injury Lawyers typically offer free initial consultations and charge you nothing unless they win your case. During a consultation, the lawyer will ask you questions to determine whether your claim is valid and, if so, how much it is worth. Whether your claim is based on negligence, res ipsa loquitur, or something else, taking that first step now could pay off later on.