Saturday, January 20, 2007

law of the day

Res Ipsa Loquitor

Legal study involves much less Latin than you might imagine, but this is my favorite bit of legal latin. It means "the thing speaks for itself" and concerns the tort of negligence. To show negligence itself, a plaintiff must show 1.) the existence of a duty on the part of the defendant, 2.) a breach of that duty, that 3.) was the actual and proximate cause of the 4.) damage to the plaintiff.

One of the handful of ways you can show a breach of a duty is through the principle of res ipsa loquitor. Sometimes something is so fucked up, just the existence of it is proof of negligence, whether or not you're able to pin down exactly what happened to cause it or who was responsible. My favorite example of this is when you wake up from surgery with a watch sown up inside your abdomen. Yeah, don't you hate it when that happens?

To show res ipsa loquitor, a plaintiff must show that 1.) the accident that caused the injury is of a type that wouldn't occur without negligence, and 2.) the negligence is attributable to the defendant, which can often be proved by showing the defendent was in exclusive control of the instrumentalities that caused the injury. In the bad surgery example, having a watch sown up inside you is certainly the type of injury that doesn't typically occur without negligence. And the defendants (who would probably be everyone present in the operating room during the surgery) could certainly be shown to have had exclusive control over the instrumentalities of the injury (you know, like, the slicing you open instruments and the sowing you back up instruments and, yes, of course, the watch).

Res ipsa loquitor represents an area of law that grapples with the absurdity of life, and that's why I like it. Similar to the "eggshell skull plaintiff" theory, which basically says, "you take your plaintiff as you find him, even if he does have some freakish condition that causes him to actually *die* from something that wouldn't have even hurt a normal person. Too bad for you." Torts can be brutal.

2 Comments:

Anonymous roro said...

I can tell this new law segment will be very handy. All I know of the law is the old contract law chestnut Carlill v. the Carbolic Smokeball Company. And that may just be a British thing. Good times!

9:21 PM  
Blogger stumptown dreamer said...

that big brain of yours
combined with those keens

this is going to be one of my favourite segments, i can tell

happy study day to you
thinking of you from across the river

SK

11:04 AM  

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