Follow
EmailIf there is insufficient evidence to prove a conventional case of negligence, creative Plaintiff’s attorneys will search around for an alternative theory of liability under which their client can recover. One of those alternative theories is res ipsa loquitur. Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself”. In a res ipsa loquitur case, the plaintiff’s attorney might argue that if it looks like negligence and feels like negligence, it must be negligence. The common law doctrine of res ipsa loquitor requires three elements:
(1) The event must be of a kind which ordinarily does not occur in the absence of someone’s negligence;
(2) The event must be caused by an emergency or instrumentality within the exclusive control of the defendant; and
(3) The event must not have been due to any voluntary action or contribution on the part of the plaintiff.
The Nevada Supreme Court case of Woosley v. State Farm Ins. Co., 117 Nev. 182, 18 P.3d 317 (2001) was a res ipsa loquitur case. Mr. Woosley was injured when his car hit a ladder that had fallen from an unknown driver’s truck into his path. Mr. Woosley could not prove a conventional case of negligence because he did not know how the ladder separated from the truck it was on. Mr. Woosley would have argued that the negligence of the truck driver speaks for itself. Had the driver properly secured the ladder, it would not have fallen from the truck onto the roadway
Under the common law, if a plaintiff was even 1% negligent, he could not recover from a res ipsa loquitur defendant. State Farm, who argued the position of truck driver who had lost the ladder, felt that because Woosley actions contributed to the accident that res ipsa loquitur did not apply. The third element of a common law case of res ipsa loquitur was not met.
In response, Woosley asked the court to update the third element of the res ipsa loquitur doctrine to make it consistent with Nevada’s comparative fault statute (N.R.S. 41.141). Nevada follows a modified comparative negligence scheme. Under N.R.S. 41.141, the plaintiff may recover so long as the plaintiff’s negligence is not greater than the negligence the defendant. If Nevada’s comparative fault statute were used, rather than the common law third element, negligence of Mr. Woosley would be compared with that of truck driver who failed to secure the ladder. If Mr. Woosley was not more negligent than the truck driver, then Mr. Woosley could recover with damages being reduced by the amount of the plaintiff’s negligence. The question in the Woosley was whether the third element of this theory would be the same as it had always been or whether Nevada’s comparative negligence statute would modify the third element.
The Nevada Supreme Court ruled that the comparative fault statute superseded the third element of the common law theory of res ipsa loquitur. Under the Woosley case, a plaintiff can recover via the doctrine of res ipsa loquitur so long as the plaintiff’s negligence does not exceed that of the defendant. This is a position consistent with many other jurisdictions and appropriately allows the comparison and apportionment of liability between the plaintiff and between defendant.
About Michael Mills
