Torts 1L Mod 9-10 Rules statements and elements
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| two key forms of evidence that a plaintiff can use in attempting to establish negligence by the defendant | Direct, Circumstantial
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| Direct | Evidence that comes from personal knowledge or observation
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| Examples of Direct Evidence | i. Such as from an eyewitness or by videotape
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| Circumstantial | It is proof that requires the drawing of an inference from other facts to have probative value; It can be very powerful evidence.
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| Example of Circumstantial Evidence | Skid marks of tires
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| Where a plaintiff slips and falls on the defendant's property, the plaintiff must show | more than the fact that she fell and was injured to prove the defendant's breach.
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| Because negligence is the cause of action in a slip and fall, the plaintiff must show | a preponderance of the evidence that the defendant failed to exercise reasonable care.
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| In a slip and fall, most courts require the plaintiff to show | that the condition on which she slipped existed long enough so that the defendant should have discovered it and should have remedied it.
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| Res ipsa loquitur means | the thing speaks for itself
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| Res ipsa loquitur is only used when trying to prove | Only used in proving breach of duty cases.
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| The key difference between res ipsa loquitur and other circumstantial evidence | With circumstantial evidence, the jury needs to know of other forms of evidence in order to determine if D failed to use due care; with res ipsa loquitur, a jury can determine D acted unreasonably without other proof.
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| The heart of res ipsa loquitur | is that from the happening of the accident and the defendant's relationship to it, the plaintiff seeks to establish
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| traditional conditions required for the application of res ipsa loquitur | an accident that normally does not happen without negligence; exclusive control of the instrumentality by the defendant; and absence of voluntary action or contribution by the plaintiff.
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| In order for the plaintiff to have the benefit of res ipsa loquitur, she must | convince the jury that each of these factors more likely than not exists.
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| A powerful rationale for res ipsa loquitur has been | that it forces a defendant who has the most understanding of how the harm-causing event came about to come forward with that information.
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