Hand test practice saved permits jury to infer that

actions were reasonable b/c of L.Hand Test. Practice saved $
=
Permits jury to infer that the P’s injury was caused by Ds carelessness even when the P presents no evidence of particular acts
or omissions on the part of the D that might constitute carelessness / Can jury draw inference of res ipsa loquitor?
Res Ipsa Loquitur : P can go to jury in absence of direct evidence if these 3 elements to prove “more likely then not”
1. Accident that harmed victim is type that wouldn’t occur w/out carelessness/ does not occur in the absence of
someone’s negligence
2. Caused by an agency or instrumentality within the exclusive control of the defendant
3. It must not have been due to any voluntary action or contribution on the part of P  P passive victim
POLICY ARG: just not fair to P to come up with evidence of D’s negligence that doesn’t exist or cant get . Conditions will
keep fairness both ways
OVERALL IDEA: RIL Permits SOME P’S TO PREVAIL w/o EVIDENCE OF HOW D WAS CARELESS
EXAMPLES:
KAMBAT v. ST. FRANCIS HOSP. (pg. 200) – need not eliminate other causes for res ipsa
 laparotomy pad found in abdomen of Ps’ decedent following a hysterectomy performed by D
 Rule :
3 conditions for res ipsa: (1) event must be of a kind that ordinarily doesn’t occur in the absence of someone’s
negligence; (2) it must be caused by agency or instrumentality in exclusive control of D (today this is less strict –
now its MOST LIKELY that it is in Ds control); (3) must not have been due to any voluntary action or contribution
on part of P
Res Ipsa Loquitur No Res Ipsa Loquitur
 ACCIDENT IN ITSELF OCCURING IS PROOF OF
NEGLIGENCE: ( BYRNE v. BOADLE: guy got hit by falling
flour)
 D’s duty was to handle barrels in a reasonable fashion so
as to prevent foreseeable injury to people on the street. – barrel
cant just roll out w/out negligence
 Rule : the flour falling from a flour shop is prima facie
evidence of negligence and the P who was injured by it is
not bound to show that it could not fall without negligence
Doesn’t prove D negligent/ just relieves P of burden of
production of evidence/ Burden is just on D to prove no neg.
Locke v. Pachtman (Mich. 1994) Res Ipsa not applicable when a broken
hypodermic need was left in a patient’s body.
Proving Breach: RES IPSA LOQUITOR
(the thing speaks for itself)
11

Res Ipsa Loquitur No Res Ipsa Loquitur
COA UNKNOWN – RIL to ALLOW JURY TO INFER NEG
BECAUSE EVENT HAPPENED  Mishap during surgery on
unconscious P, unrelated to underlying med. Condition (Kambat v.
St. Franics Hops.)
RULE:
to rely on res ipsa a P need not
conclusively eliminate the possibility of all
other causes of the injury; the inference of
negligence could reasonably have been drawn
upon a commonsense appraisal of the probative
value of the circumstantial evidence
The jury was permitted to infer negligence from a laparoscopy pad
left in P’s abdomen after surgery. [SN: D added alt theory that P
swallowed pad herself]
MULTIPLE CAR COLLISSION: Martinez v. CO2 Servs. (10
th
Cir.