Torts Quiz

[jeffjoe]

Give an example of res ispa loquitor

[Dicta]

a thumb in a loaf of bread.....
Torts review was five hours long today. It's going to be very complicated I believe.
Fact patterns from hell.
Should be fun. BRING IT ON! 

[jeffjoe]

What makes it res ipsa loquitor?

[Boxergirl]

A surgeon leaving a sponge inside someone's body when they sew the patient up.

[jeffjoe]

A surgeon leaving a sponge inside someone's body when they sew the patient up.

It could be, but it might be simple negligence instead.  How?

[law543]

Give an example of res ispa loquitor

Lawn mower crosses over into neighbors yard, unattended, and kills dog. Owner of mower says he didn't do anything. Res Ipsa loquitur.

1) This sort of accident doesn't happen "but for" negligence
2) The owner of the mower was the only one who could have done it, and he was in charge of the mowever...it was in his control
3) The neighbor didn't do it to himself.

Law543

[law543]

A surgeon leaving a sponge inside someone's body when they sew the patient up.

It could be, but it might be simple negligence instead.  How?

I would argue that the sponge left in is not a case of res ipsa loquitur...but is just professional malpractice because in the case of the physician, we can probably determine what happened, proving negligence. Res Ipsa Loquitur, I believe, is used when we can't really determined what happened...but we know that something negligent must have happened. "Sir, I don't know what you did, but it must have been negligent."

With the doctor, an expert could be brought in to determine, with a reasonable degree of certainty, what happened, even if we never find out exactly what did happen.

The distinction, therefore, is in the difference between cases where we can determine what happened...and those where we cannot, but know that what DID happend does not normally happen "but for" negligence.

Otherwise, we could call many types of neglience...res ipsa loquitur...that normally would not be called so.

Law543

[jeffjoe]

I think I agree that the sponge in the patient is not res ispa loquitor.  There is a specific act of negligence that can be identified and the person who is responsible.

The lawnmower?  I'm gonna say that is not res ipsa loquitor either.  The owner is responsible for the proper use of the lawnmower.  The lawnmower getting loose is negligence as soon as the mower causes some harm.

Res ipsa loquitor:
Some harm occurs to P.  There is no readily identifiable act of negligence, but we can show that the harm would not have occurred if the D had exercised reasonable care.  Here's a case:  Seavers v. Methodist Medical Center of Oak Ridge, 9 S.W.3d 86 , (Tenn. 1999)

[law543]

The lawnmower?  I'm gonna say that is not res ipsa loquitor either.  The owner is responsible for the proper use of the lawnmower.  The lawnmower getting loose is negligence as soon as the mower causes some harm.

Res ipsa loquitor:
Some harm occurs to P.  There is no readily identifiable act of negligence, but we can show that the harm would not have occurred if the D had exercised reasonable care.  Here's a case:  Seavers v. Methodist Medical Center of Oak Ridge, 9 S.W.3d 86 , (Tenn. 1999)

Okay, but say the defendant says that he didn't do anything. "Your honor, I didn't even start the darn thing. I have no idea how my lawn mower started and how it got across the street."

In this case, I would say RES IPSA LOQUITUR, because we cannot determine what happened, we cannot determine precisely what defendant did, but we know that it MUST HAVE BEEN something negligent, because without negligence, normally, lawnmowers don't wind up in other people's yards, killing dogs. And we know that the poor neighbor didn't do it to himself.

How about that?

Law543

[jeffjoe]

Maybe.  But the owner saying they didn't do anything without some other evidence doesn't really change things.

What if the P presents a witness who saw a 10 year old fiddling with the mower?  How does that change the case?