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Proof Of Negligence


Circumstantial Evidence Circumstantial evidence is evidence of one fact from which another fact may be inferred. It can be used to show that a defendant breached the duty of care. Drawing inferences from circumstantial evidence, however, is highly prejudicial to a defendant who has the burden of rebutting the inference. Therefore, courts will carefully regulate its use.
Expert Testimony A plaintiff in a malpractice suit must produce expert testimony unless the negligence is obvious to a lay person (e., doctor amputated wrong leg).
Res Ipsa Loquitur Res ipsa loquitur means roughly that “the thing speaks for itself.” This is the classic use of circumstantial evidence in

torts. Under this doctrine, a plaintiff can create an inference or presumption of negligence against the defendant by the mere fact of the accident having occurred. Elements Mnemonic: OPEC

Ordinarily an accident of that nature would not have occurred unless someone was negligent.
Plaintiff was free from fault.
Exclusive Control The defendant exercised exclusive control over the instrumentality that caused the injury.

Note: Recent cases indicate that courts require only a preponderance standard (51% probability) for each element. Procedure Once the plaintiff has asserted res ipsa loquitur, the defendant is allowed to rebut with evidence tending to show the use of due care.
Majority View Res ipsa loquitur creates an inference of negligence from which a reasonable jury may conclude that the defendant was negligent.

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