• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Res Ipsa Loquitor In Trespassing Cases

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

Status
Not open for further replies.

Taxing Matters

Overtaxed Member
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.
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.

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.
 


quincy

Senior Member
And, of course, the nicely crafted post above brings up arguments that would make for a great discussion with your classmates and professor, riglef. FreeAdvice is not designed to help students with their class work or exam questions. ;)
 
Last edited:

Just Blue

Senior Member
And, of course, the nicely crafted post above brings up arguments that would make for a great discussion with your classmates and professor. FreeAdvice is not designed to help students with their class work or exam questions. ;)
We do the OP a disservice by helping with their homework beyond directions to Google.

@Taxing Matters , Your post was awesome. You would make a great teacher/Professor. I really mean that...:cool:
 

Taxing Matters

Overtaxed Member
And, of course, the nicely crafted post above brings up arguments that would make for a great discussion with your classmates and professor. FreeAdvice is not designed to help students with their class work or exam questions. ;)
I was hoping it might provide some food for thought for the OP in addressing his/her argument. :LOL: It sounded to me as though the OP was using res ispa loquitor as a type of claim, which it is not. It instead is a principle best thought of as one of evidence. You still have to make out all the elements of the tort claim.
 

quincy

Senior Member
I was hoping it might provide some food for thought for the OP in addressing his/her argument. :LOL: It sounded to me as though the OP was using res ispa loquitor as a type of claim, which it is not. It instead is a principle best thought of as one of evidence. You still have to make out all the elements of the tort claim.
I know. :)

I erred in this thread by offering more than what Zigner offered. As soon as we learned the question was from an exam, we should have provided no assistance.
 

Taxing Matters

Overtaxed Member
I know. :)

I erred in this thread by offering more than what Zigner offered. As soon as we learned the question was from an exam, we should have provided no assistance.
I don't offer answers to exams, and did not give an answer to his direct question here. But I don't think there is anything wrong with providing a response that encourages the student to think more about the issue and dig a bit deeper to form the answer on his/her own.
 

quincy

Senior Member
I don't offer answers to exams, and did not give an answer to his direct question here. But I don't think there is anything wrong with providing a response that encourages the student to think more about the issue and dig a bit deeper to form the answer on his/her own.
We actually don't know the exam question. :)

Your last paragraph indicated that you wanted Riglef to provide more information. He really should find a resource other than FreeAdvice.

edit to add: It is "loquitur" and not "loquitor" as written in your thread title, Riglef.
 
Last edited:
Status
Not open for further replies.
Sponsored Ad

Top