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Originally Posted On: https://www.mynewyorkcitylawyer.com/what-is-res-ipsa-loquitur-in-a-new-york-personal-injury-case/

The law is full of Latin phrases that may not make sense to those outside the legal profession, although they signify conditions that can affect your case. One of them is res ipsa loquitur, which means “the thing speaks for itself.”

When you file a personal injury claim, you are generally required to prove how and why the other party was negligent. But if your case doesn’t settle and goes to trial, and res ipsa loquitur applies, then the court can presume that the person who hurt you behaved negligently, and the onus is on the defendant to prove that they weren’t at fault.

Res ipsa loquitur is used to prove negligence in cases where the proof may be lacking, but there is no other reasonable explanation for the accident. This rule dates back to the 1863 case of Byrne vs. Boadle.

The plaintiff, Mr. Byrne, was walking past Mr. Boadle’s shop when a barrel of flour fell on him from a window over the establishment, striking his shoulder and causing serious injuries. Byrne accused the shop owner of negligence, saying that his servants were lowering barrels carelessly and without skill, causing one to come loose and fall on him.

Witnesses reported seeing Byrne struck by the barrel, which could only have come from Boadle’s flour shop, but because there was no direct evidence of the shop owner being negligent, Byrne lost the trial. On appeal, the court found that the barrel could not have fallen unless negligence was involved and awarded him £50 damages, the amount assessed by the jury.

Today, the res ipsa loquitur rule is applied in personal injury cases where the plaintiff could only have been injured due to the defendant’s negligence. Common examples include a child injured at a daycare center and a doctor leaving a surgical instrument inside their patient.

If you want a judge or jury to assume that someone else was negligent, then you have to prove three elements:

• That the accident would not typically have occurred unless someone was being negligent
• Whatever caused the accident was exclusively under the control of the other person
• You did nothing to cause the harm

If you can prove all three, then the defendant will then have to prove that they were not responsible. If you are claiming that your surgeon left an instrument inside you, then they will have to show that they couldn’t have, which will be next to impossible: such an injury cannot occur unless the surgeon and their team were negligent.

When you have challenges proving negligence, your New York personal injury attorney will apply all appropriate measures to prove your case, including, if necessary, res ipsa loquitur. Contact the law office of Jayson Lutzky, P.C. if you were injured. Mr. Lutzky is a Bronx, NY personal accident and personal injury lawyer with over 37 years of legal experience. Call 718-329-9500 to set up a free consultation or visit www.MyNewYorkCityLawyer.com to learn more.