Torts
ProfessorDuncan
Spring2016
Application of Statute vs. Res Ipsa Loquitur
Application of Statute
(Use of Non-Tort Statute)
Res Ipsa Loquitur
allows Π to take a shortcut to
prove what the reasonable
person would have done by
reference to a statute (or
regulation, municipal
ordinance, etc.)
allows Π to get past summary
judgment in a case where Π
has no direct or
circumstantial evidence of
negligence (i.e., duty/breach)
Who determines whether Π judge determines whether the
statute applies (interpreting
can use?
judge determines whether res
ipsa loquitur applies
(instrumentality in exclusive
control of Δ and accident
does not usually occur in the
absence of negligence)
Why use it?
legislative intent regarding
the category of persons to be
protected, the category of
hazards to be protected
against, and appropriateness
of imposing tort liability)
If Π can use, what effect of
proof does it have?
case law in the jurisdiction
determines what effect the
violation of a statute will
have (i.e., negligence per se,
rebuttable presumption of
negligence, evidence of
negligence)
case law in the jurisdiction
determines the effect of res
ipsa loquitur (permissible
inference of negligence,
rebuttable presumption of
negligence, or shifting of the
burden of proof to Δ)
What is jury’s function
when used?
jury must still determine if
the statute was violated,
causation, and damages
jury must still determine
whether there was negligence
(duty/breach), causation, and
damages
What happens to Π’s case
if not permitted to use?
if Π fails to persuade the
court that the statute applies,
Π can still prove negligence
through the use of the
reasonable person standard
if Π fails to persuade court
that the doctrine applies,
court is likely to direct
verdict against Π because Π
has no direct or
circumstantial evidence of
duty and breach