Taxing Matters
Overtaxed Member
I'm having trouble seeing a situation in which res ipsa loquitor would logically apply in a trespass case. Res ipsa loquitor is a Latin phrase that means "the thing speaks for itself". As used in the law, it is a principle in which the circumstances of the accident/injury are such that negligence is inferred because there really is no other way those circumstances could occur but for negligence. The classic example is the case where a surgical instrument is left inside the body of a patient after a surgery. There is no way that the instrument would have ended up there but for the negligence of the surgical team in failing to account for all the instruments used in the operation before the team closed up the incision.To answer quincy's question, the injury to the trespasser would lead to them bringing a res ipsa loquitor case against the property owner. Most often the only allowable case available to the trespasser would be an attractive nuisance one, but I'm arguing that there are probably conditions where a trespasser could bring a res ipsa loquitor case.
The first problem you get in making a tort claim is that before you reach the issue of negligence you must first address what duty, if any, the landowner had to the trespasser. And in at least most states the cases hold that the landowner has very little duty to a trespasser since a trespasser has no right to be on the property in the first place. As a result, the landowner does not have to take much care to look out for the interests of the trespasser.
Only after you can show that the landowner had a duty to the trespasser can you then seek to answer the issue of whether the landowner breached that duty.
So I'm curious as to the set of facts you have in mind in which the landowner had a duty to the trespasser and the circumstances in which the negligence would be presumed because there was no other way the injury could have occurred — i.e. what the res ipsa loquitor argument would be for asserting that the landowner was negligent.