Negligence Per Se and Res Ipsa Loquitur | Pam Karlan | August 17, 2013


This is the old version of the H2O platform and is now read-only. This means you can view content but cannot create content. You can access the new platform at Thank you.

Negligence Per Se and Res Ipsa Loquitur

by Pam Karlan Show/Hide

In many cases, as we've already discussed, the question of whether the defendant breached a duty requires a totality-of-the-circumstances inquiry. Remember § 3 of the Restatement (Third) of Torts: Physical and Emotional Harms:

A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are the foreseeable likelihood that the person's conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.

But there are cimcumstances where this inquiry is modified to take account of knowledge that is extrinsic to the case in some way. Two of the most common involve “negligence per se” and “res ipsa loquitur.”

Negligence per se
Sometimes statutes or regulations prescribe or proscribe particular conduct. What happens when a defendant breaches one of those legal commands? The Restatement (Third) of Torts: Physical and Emotional Harms provides in § 14 that:

“An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor's conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.”

The Restatement (Second) of Torts provided in § 288B that:

“(1) The unexcused violation of a legislative enactment or an administrative regulation which is adopted by the court as defining the standard of conduct of a reasonable man, is negligence in itself.
(2) The unexcused violation of an enactment or regulation which is not so adopted may be relevant evidence bearing on the issue of negligent conduct.”

Res ipsa loquitur
…Is Latin for “the thing speaks for itself.” Sometimes the very fact that the accident occurred bespeaks negligence. And sometimes, the defendant's (or defendants') negligence may itself create difficulties for the plaintiff's case.

The materials in this section explore these two concepts.


Edit playlist item notes below to have a mix of public & private notes, or:

MAKE ALL NOTES PUBLIC (10/10 playlist item notes are public) MAKE ALL NOTES PRIVATE (0/10 playlist item notes are private)
  1. 1 Show/Hide More Martin v. Herzog
    Original Creator: Jonathan Zittrain Current Version: Pam Karlan
    A classic opinion by Justice Benjamin Cardozo. Notice that the dissent takes a very different view of the evidence.
  2. 2 Show/Hide More Brown v. Shyne
    Original Creator: Jonathan Zittrain Current Version: Pam Karlan
    If an unlicensed actor causes harm, should the fact that the actor lacked a license be evidence enough for negligence per se?
  3. 3 Show/Hide More Rushink v. Gerstheimer
    Original Creator: Jonathan Zittrain Current Version: Pam Karlan
    The current version of N.Y. Traffic & Veh. Law 1210(a) provides: “No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key from the vehicle, and effectively setting the brake thereon and, when standing upon any grade, turning the front wheels to the curb or side of the highway, provided, however, the provision for removing the key from the vehicle shall not require the removal of keys hidden from sight about the vehicle for convenience or emergency.”
  4. 5 Show/Hide More Byrne v. Boadle
    Original Creator: Jonathan Zittrain Current Version: Pam Karlan
    The classic case. Just a barrel of unfun.
  5. 6 Show/Hide More Larson v. St. Francis Hotel
    Original Creator: Jonathan Zittrain Current Version: Pam Karlan
    Another falling object case. And of course if pedestrians are constantly looking up to see whether objects are falling from the sky (oh, Chicken Little), then they're less likely to see obvious obstacles on the sidewalk.
  6. 7 Show/Hide More Connolly v. Nicollet Hotel
    Original Creator: Jonathan Zittrain Current Version: Pam Karlan
    Will the skies never stop raining destruction on poor plaintiffs?
  7. 8 Show/Hide More Ybarra v. Spangard
    Original Creator: Jonathan Zittrain Current Version: Pam Karlan
    Another one of the classic California Supreme Court decisions adapting tort law to modern situations.
  8. 9 Show/Hide More Fireman's Fund American Insurance Cos. v. Knobbe
    Original Creator: Jonathan Zittrain Current Version: Pam Karlan
    Should res ipsa loquitur be applied to a group of defendants when plaintiff has submitted no direct evidence that they had control over the dangerous instrumentality or were involved in the harm?
  9. 10 Show/Hide More Welge v. Planters Lifesavers Co
    Original Creator: Pam Karlan
    Judge Posner in a peckish mood. This case, and Smoot, are cases about the interaction of res ipsa and modern products liability doctrine.

Playlist Information

November 11, 2013

negligence per se

Author Stats

Pam Karlan

Professor of Law

Stanford Law School

Other Playlists by Pam Karlan

Find Items

Search below to find items, then drag and drop items onto playlists you own. To add items to nested playlists, you must first expand those playlists.

Leitura Garamond Futura Verdana Proxima Nova Dagny Web
small medium large extra-large