Use this form to contact us. 

We will respond asap.

call US at (704) 759-6110

10550 Independence Pointe Pkwy, Ste 200
Matthews, NC 28105

(704) 759-6110

Semirog Law Firm, pllc is a personal injury and auto accidents law firm located in Charlotte and Matthews, North Carolina.   We are committed to providing quality legal services in a dedicated and cost-effective manner to all members of our community, regardless of race, gender, or national origin.

We have handled complicated litigation in the areas of personal injury, car wrecks, truck accidents, family and business law.  In addition, we have experience in real estate law and short-sale negotiations.

We offer standard and flexible billing arrangements for our clients, such as flat fee billing, hourly billing, and contingency fee billing depending on the type of legal matter.

Res Ipsa Loquitur

Matthews North Carolina personal injury and auto accident attorneys and Charlotte North Carolina personal injury and auto accident and motorcycle accident attorneys.

Res Ipsa Loquitur

The following is a frequently cited statement of the doctrine:

When a thing which causes injury is shown to be under the management of the defendant, and the accident is such that in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.

This commonsense principle has hardened into a ''rule,'' sometimes rather mechanically applied, that the plaintiff must present evidence

  1. that the occurrence is one that ordinarily would not happen without the negligence of someone, and
  2. that the instrumentality that caused the injury was in the exclusive management and control of the defendant.

The court occasionally adds an element, stating that direct proof of the cause of the accident must be unavailable.

Because the purpose of the doctrine is to permit the plaintiff to establish a prima facie case when no direct proof of the defendant's negligence is available, it does not apply where all of the relevant facts regarding the cause of the accident are known.  In that event, negligence need not be inferred; it can be directly proved, and in such a case it may be reversible error to instruct the jury on res ipsa loquitur.

Accident Would Not Ordinarily Occur in the Absence of Negligence


It is not enough, nor is it necessary, to show that the event producing the plaintiff's injury is one that rarely occurs.  Instead, it must be one that would not ordinarily occur if due care had been exercised.

That is, when such an event does occur, common experience must suggest that negligence is the mostly likely explanation for it.n398

This question is resolved on the basis of common knowledge and experience or the holdings of prior cases, not complex legal theory. Thus, when an automobile suddenly leaves the road for no readily apparent cause, the most reasonable probability is that the driver failed to exercise due care, though other explanations are imaginable.

The court may accept the ''normal and probable'' inference that the driver was negligent and ''leave it to the jury to determine the true cause after considering all of the evidence.''  An inference of negligence was permissible in the following cases:

  • when an electrical fire starts in a power company's meter box,
  • when a water heater explodes,
  • when the glass transom above a door falls out when the door is opened,
  • when a bar stool collapses as a patron sits down on it, 
  •  when two trains collide head-on.

On the other hand there are many events, the occurrence of which do not suggest a lack of due care.  Common experience tells us that often people slip and fall, tires blow out, and car parts break without fault on anyone's part.

If the action is one for professional malpractice, expert testimony may be required to show that the injury is the kind that does not ordinarily occur absent negligence.  Without other evidence, adverse consequences resulting from a physician's treatment do not give rise to an inference of negligence.  This simply reflects the general rule that in such cases, both the duty owed and its breach must be established by expert testimony.  

That plaintiff's injuries are unusual or rare will not take the case to the jury.  For example, where the plaintiff suffered a perforated esophagus after an esophagoscopy performed by the defendant, the court held that res ipsa loquitur could not be used to establish that the operation had been negligently done.  There was evidence that such perforations were rare, but none that a lack of due care was the most likely cause of such an injury.

On the other hand, in Hyder v. Weilbaecher the North Carolina Court of Appeals ruled that foreign objects are left in a body after surgery, expert testimony is not necessary, because no specialized training or knowledge is required to determine that such an occurrence is the result of negligence (read the entire opinion here).

Because negligence means the breach of a legal duty, the nature of the duty owed has a bearing on whether negligence may be inferred. For example, a city has the duty to exercise ordinary care to maintain its sidewalks in safe repair.  Perforce, the city must know or have reason to know of the defective or dangerous condition that causes the plaintiff's harm.  If the evidence demonstrates that the defect was not apparent and would not have been revealed by a reasonable inspection, the collapse of the sidewalk because of that defect does not raise an inference that the city was negligent.

Likewise, evidence of a foreign substance on the defendant's floor does not establish a lack of due care.  It must also appear that the substance had been on the floor long enough that the defendant had, or ought to have had, notice of it.

Exclusive Management and Control


The evidence must suggest not only fault, but that it was defendant's fault.  

The jury must be able to conclude that the negligence of the defendant caused the injuries.  The traditional formulation of the doctrine includes the requirement that the instrumentality causing the harm must have been in the exclusive management and control of the defendant.  Linking the inference of negligence to the particular defendant is the rationale for that requirement.

 Exclusive management and control does not mean the defendant must be the legal owner of the instrumentality, although there are cases that appear to require that the defendant have actual, exclusive possession of it at the time of the injury.  Others, however, recognize that the doctrine may apply where the instrumentality is not literally in the defendant's exclusive physical control.

For example, when a bar stool collapses as the plaintiff sits down on it, the application of the doctrine should not be defeated by the claim that the stool was in the plaintiff's control.  When a hose on a self-service gas pump bursts, spraying the plaintiff with gasoline, the doctrine may yet apply, even though the plaintiff herself had management and control at the moment the injury occurred.

The ''rule'' of exclusive management and control should not be mechanically applied.  Rather, it should be understood as a requirement that the evidence point to the particular defendant as the one whose negligence caused the plaintiff's injury.  Stated another way, it should be enough that the evidence permits the inference that the defendant had exclusive management and control at the time the negligence, although not necessarily the injury, took place.

Some cases have said that, if the evidence does not indicate the defendant is the only probable tortfeasor, the doctrine does not apply unless the plaintiff presents evidence to eliminate possible explanations for the incident other than the defendant's negligence.  Such a requirement is problematic.  The question ought always to be whether the evidence warrants an inference that the defendant's negligence is the most likely explanation for the accident.  Evidence that tends to eliminate other explanations may well strengthen the inference that the defendant was at fault, but it is difficult to see how the purposes of the rule are served if the plaintiff must establish that as the only possible explanation.  For example, when the defendant has responsibility for the maintenance of an automatic door closing mechanism on the premises of a third party, the inference of res ipsa loquitur should be allowed when the possible negligence of the owner of the premises is negatived.

If, however, it is equally plausible that the negligence of someone other than the defendant caused the injuries, the doctrine ought not to apply.  

In a frequently cited case, the plaintiff received an electric shock from machinery that the defendant had installed a few hours before.  The machine had been turned over to the plaintiff's employer and, thus, was not in exclusive control of the defendant when the injury occurred.  The doctrine was held not to apply because under the circumstances, it was incumbent upon the plaintiff to negate the possibility of negligence on the part of those who worked on the machine since its installation.

 Even when the defendant has exclusive management and control at the time of the injury, an inference of negligence may not be warranted.  In a recent Supreme Court case addressing the doctrine, a camper top on defendant's pickup truck blew off on the highway and struck the plaintiff's vehicle.  The court held the doctrine inapplicable and upheld a directed verdict for the defendant.  ''On the evidence presented faulty design, construction or installation of the camper top is as likely a cause of its becoming dislodged as any act or omission on defendant's part.''

By Serge SemirogGoogle +