Blog

Personal Injury 101: What is "res ipsa loquitur" in Nevada?

Posted by Neil Shouse | Jun 07, 2017 | 0 Comments

This month we are looking at Latin legal phrases that sound complicated but actually represent simple concepts.

One of our favorites is res ipsa loquitur which means "the thing (or matter) speaks for itself."

Pronounced RACE IP-sa LOCK-wit- tour, the doctrine is used to prove negligence with circumstantial evidence in tort (injury) cases. It allows a judge or jury to deduce negligence from the mere fact that an accident occurred when there is no other reasonable explanation.

Example: A small plane crashes into the ocean on a clear day. An inspection reveals no defective parts, birds in the engine, or other planes in the area. The plane's only passenger was strapped into his seat and the pilot was not on the radio at the time of the accident. The logical explanation is that the pilot was negligent.
 

To make use of res ipsa loquitur, the plaintiff must establish three things:

  1. The accident or injury would not ordinarily have occurred without negligence,
  2. The thing or incident that caused the injury was under the defendant's exclusive control, and
  3. The harm was not primarily due to anything the plaintiff did.

In addition, Nevada, unlike some other states, requires that the defendant have superior knowledge of the accident or be in a better position to explain it.^

If all these conditions are met, the burden then shifts to the defendant to prove that he or she was not responsible for the injury. If the defendant cannot do this, the plaintiff wins.

While the concept of res ipsa loquitur is simple, in practice the application can be tricky. For instance, sometimes it is clear that someone was negligent but the plaintiff cannot prove who it was.

Example: An otherwise healthy patient undergoes an emergency appendectomy. Afterwards, the patient's arm begins to hurt and then go numb. Eventually the arm becomes paralyzed.
 
It is fairly obvious that someone on the surgical team was negligent. But because the patient was unconscious when the harm occurred, the patient cannot say who was responsible.**
 

Courts have generally held that plaintiffs in this situation can still make use of res ipsa loquitur. All members of a surgical team share control for a patient's well-being.

They are also in a better position than an unconscious patient to explain what went wrong. Therefore, the burden is on them to explain it. This prevents the situation in which members of a group avoid liability by staying silent.

But remember -- the doctrine of res ipsa loquitur simply shifts the burden of proof to the defendant. Innocent defendants can still avoid liability by:

  • Identifying the wrongdoer, or
  • Showing that they did not have control of anything that could have harmed the patient.

For instance, a nurse might be able to testify that orderlies dropped the patient while transferring the patient to the operating table. Or the nurse might be able to show that it was the nurse's responsibility to watch the surgeon and not the patient.
 
Medical malpractice cases are the most common in which plaintiffs plead res ipsa loquitur in Nevada. But the doctrine can be used in any type of injury case including (but not limited to) product liability, product maintenance and premises liability.

Example: A ninety-four year-old woman was seriously injured when the automatic sliding glass doors in a Las Vegas hotel closed on her. The court concluded that such doors would not ordinarily close prematurely and with such force absent negligent maintenance.^^
 

If you have questions and would like more information, we invite you to call our Nevada personal injury lawyers at 702-DEFENSE (702-333-3673).

* Facts taken from Newing v. Cheatham, 15 Cal.3d 351 (1975). Although this is a California case, it is cited in many Nevada legal decisions.
^ Woosley v. State Farm Ins. Co., 117 Nev. 182 (2001).
** Ybarra v. Spangard, 25 Cal.2d 486 (1944).
^^Landmark Hotel & Casino, Inc. v. Moore, 104 Nev. 297 (1988).

Save

Save

Save

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

Comments

There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Comments have been disabled.

Free attorney consultations...

Our attorneys want to hear your side of the story. Contact us 24/7 to schedule a FREE consultation with a criminal defense lawyer. We may be able to get your charges reduced or even dismissed altogether. And if necessary, we will champion your case all the way to trial.

Regain peace of mind...

Shouse Law Defense Group has multiple locations throughout California. Click Office Locations to find out which office is right for you.

Office Locations

Shouse Law Group has multiple locations all across California, Nevada, and Colorado. Click Office Locations to find out which office is right for you.

To contact us, please select your state:

Call us 24/7 (855) 396-0370