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Zittrain Torts Playlist Spring 2018

VIII. Res Ipsa Loquitur

Civil procedure concerns itself with what levels of proof and persuasion must be elicited from a plaintiff before a jury can hear a claim. What happens when there isn’t sufficient evidence for a plaintiff to meet that burden, in part perhaps because the defendant’s behavior – the negligence itself, even – has made it difficult to gather such evidence? Res ipsa evolved before modern discovery rules to allow cases to get to juries where negligence by the defendant might be readily inferred, even if tangible evidence is lacking. Defendants remain able to introduce their own evidence to rebut the inference allowed by res ipsa; indeed, another function of the doctrine might be to impel defendants to come forward with contestable evidence they might otherwise not introduce. The cases in this section show the development of the doctrine and explore its rationales and limits.