Proving Causation in Cases Involving Negligence per se
NEGLIGENCE PER SE CREATES A PRESUMPTION OF DUTY / BREACH IN CERTAIN TYPES OF CASES.
The rule of “negligence per se” creates a presumption of negligence where a plaintiff proves all of the following elements (to the requisite standard of proof):
1. The defendant violated a regulation, ordinance, or statute (a law).
2. The defendant’s illegal action caused harm to the plaintiff.
3. The type of harm the plaintiff suffered is the type of harm the statute, regulation, or ordinance was designed to present.
4. The plaintiff belongs to the class or type of people the statute, regulation, or ordinance was intended to protect.
THE PRESUMPTIONS CREATED BY NEGLIGENCE PER SE DO NOT IMPACT THE PLAINTIFF’S OBLIGATION TO PROVE CAUSATION.
A plaintiff who successfully establishes the elements of negligence per se must still prove the two remaining elements of a negligence claim: causation and damages, and must prove them both to the legally-mandated standard.
THE RULE OF RES IPSA LOQUITUR ALLOWS A COURT TO INFER BOTH NEGLIGENCE AND CAUSATION – BUT IT ONLY APPLIES IN LIMITED SITUATIONS.
“Res ipsa loquitur” (Latin for “the thing speaks for itself“) is a legal rule that says where a person (or entity) had sole and exclusive control over the situation or thing that caused an injury, that person (or entity) is presumed to be negligent, even where no specific evidence of negligence exists.
Res ipsa loquitur (sometimes shortened to res ipsa) is a rule of limited application, meaning that it does not apply to every case, and can be invoked only in certain circumstances. In order for res ipsa loquitur to apply, the plaintiff must be able to prove:
1. The defendant had actual control over, or the right to exclusive control over, the situation, thing, or circumstances that caused the plaintiff’s harm; and
2. The plaintiff’s behavior did not contribute to the injury; and
3. The incident (or accident) was of a type that does not happen unless someone is negligent.
The third element must be established either through expert testimony or “common experience” – but plaintiffs should be careful when relying on “common experience” because they will have to establish, by sufficiently persuasive proof, that common experience truly does support the claim.
Like many legal rules, res ipsa loquitur is both technically and factually specific, and normally requires an experienced lawyer to evaluate, plead, and prove. If you believe that you were injured under circumstances where a defendant owes you compensation, do not rely on this or any other online article, blog, or information to try and evaluate your legal rights. Contact an experienced lawyer to discuss your situation immediately.
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Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR AND ANY PERSON. Your rights and experiences may vary. Never use an online article (including this one) to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel. Negligence and premises liability claims are complicated and fact-dependent. If you believe you have a claim against a property owner who permitted or failed to repair a dangerous condition, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your possible rights and claims.
