Summary
Section 328D codifies the doctrine of res ipsa loquitur (“the thing speaks for itself”), which allows a jury to infer negligence from the circumstances of an accident. The doctrine applies when (a) the event is of a kind that ordinarily does not occur in the absence of negligence, (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence, and (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
Res ipsa loquitur does not create a presumption of negligence—it merely permits the jury to draw an inference. The plaintiff is still required to present evidence on each element, but the doctrine relieves the plaintiff of the burden of identifying the specific act of negligence. This is crucial in cases where the evidence of what went wrong is within the defendant’s exclusive control.
The doctrine is most commonly applied in medical malpractice cases (surgical instruments left inside patients), product liability cases (new products that malfunction), and common carrier cases (unexplained accidents during transportation).
Key Elements
- 1Event ordinarily does not occur without negligence
- 2Other responsible causes are sufficiently eliminated
- 3Indicated negligence is within the scope of defendant’s duty
- 4Creates a permissible inference, not a presumption
- 5Plaintiff need not identify the specific negligent act
Practical Application
Courts apply § 328D when plaintiffs cannot identify the specific negligent act but the circumstances strongly suggest negligence. Classic applications include foreign objects found in food products, surgical sponges left in patients, barrels falling from warehouses, and airplane crashes. The doctrine is particularly valuable when the defendant has exclusive control over the instrumentality that caused the harm.
Exam Relevance
Res ipsa questions typically present an injury where the plaintiff cannot prove exactly what went wrong. Apply the three elements systematically. Common traps: the doctrine does not apply if multiple parties had access to the instrumentality (unless you can eliminate other causes), and it provides only a permissible inference—the defendant can still rebut it with evidence of due care.