RES IPSA LOQUITUR
Academic Latin Pronunciation: Reys Eep-sah Low-quee-tur
Legal Latin Pronunciation: Rays Eep-seh Low-quit-tour
The New College Latin and English Dictionary says….
- res, rei, or rei: f Thing; matter, affair; object; circumstance; event, occurrence; property, possessions, wealth; estate, effects;
- ips-a, -ius: adj (f) self, very, just, mere, precisely; in person; by herself, alone; of her own accord; she, herself
- loqor, loqui, locutus sum: tr To say; to talk of, speak about; to tell, tell of, mention; (fig) to declare, show, indicate (here: present indicative)
- “res ipsa”: in fact, in reality
Res Ipsa Loquitur: “The thing” “speaks” (for) “itself”
During my first year of law school, I thought this was one of the best use of latin. Not because those who first used the phrase were referring to any important political oration from ancient Rome, but because the latin expressed the meaning of the word so much better than english ever would. As I see it, given the rampant personification of inanimate things and animals in our culture, getting across the idea that a situation speaks for itself so boldly required something different. Because honestly, jaw dropping situations only happen so often – and typically, they leave us speechless. (So why not babble some latin, while you’re at it?)
Getting to the point, though… In a discussion about legal Negligence that can have a huge amount of nuance (who has what responsibility and what are/were reasonable actions taken because of that responsibility (Duty of Care and Breach, for those following along)) – this was the easy situation. Given the facts, there is just no possible way that there wasn’t some sort of negligence, even if you couldn’t put your finger on who did it. (Don’t you just love double negatives?)
Or as I like to say – this is the “Train Wreck” doctrine.
Specifically, its the train wreck at Montparnasse in 1895 Paris, France…
This image has forever been emblazoned in my mind as the true definition of “res ipsa loquitur“. Just ask yourself…
“How did that happen?”
If your answer is: “Someone, somewhere, with power to avoid this situation did something they weren’t supposed to.” – then you’ve gotten it right.
For the law, the power of this doctrine comes from the fact that there is no direct evidence of how anyone accused of being negligent behaved. The negligence is inferred from the fact that there was an accident at all. The kicker for pinning a defendant with the blame is whether they had “exclusive control” over the “instrumentality” that cause the accident. (Restatement (Second) of Torts, § 328D)
While not originally applied to medical malpractice cases, now our big case on point for it is Gray v. Wright where a surgical team was found to be negligent. Why? Because back in 1957, a seven-inch hemostat was removed from a woman six years after her gall bladder surgery. As for evidence of negligence… the only way for the instrument to have gotten in there was for the surgical team to have left it. She didn’t have to prove that any one particular person was negligent, because the fact that it’s there at all “speaks for itself”.
I could go on and on about other, more modern forms of the doctrine, but I’m here to talk about the language! So where was the ancient use of the phrase? In an oration entitledPro Milone by Marcus Tullius Cicero, 52 BC.
A very, very brief sum of the situation has Cicero attempting a defense for his friend Milo against murder charges by saying that Milo acted out of self defense. As part of the oration, Cicero sets up the facts that Milo killed Clodius out of self defense. Milo was traveling on official business, heavily encumbered in regalia, with his family and house (“harmless slave”, etc.); Clodius had been missing from the political scene earlier that day… so when the two met (Clodius traveling alone, on a horse), Milo’s actions were in line with self-defense, rather than murder because under the circumstances, it was not logical for him to act in such a manner unless such a manner was necessitated by circumstance. (The need to kill in self defense speaks to the situation where one is ambushed, rather than where one is out to murder.)
For those of you who want the full scoop, here’s the wiki-link. (I’m actually quite impressed by Wiki’s editors’ ability to get so much decent info about ancient topics, but then again, classicists have been at this for over 2k years and its not like the story is open to interpretation anymore.) FWIW – Another great resource for latin translations (rather than summaries of stories) is the Perseus Collections through Tufts University.
So what does all of this mean for the prima facie v. res ipsa loquitur debate?
Prima Facie – “At first sight”
A noun phrase used to describe evidence for a case that has all of the components of proving the case required by law. (Eg: a Copyright registration in a case of infringement.) For common law, unless rebutted, the evidence would be enough to prove your case, or at least a fact in your case.
Res Ipsa Loquitur – “The thing speaks for itself”
A noun phrase used to describe evidence for a case of negligence where the situation itself provides the inference of guilt. Someone with responsibility (Duty of Care) and exclusive control over the situation MUST have done something wrong (Breach) because common sense says that the accident/occurrence could not have happened otherwise. Trains don’t go through the second story of a building on their own, nor do medical instruments grow organically in little old ladies.
The distinction, then, is in the thing being self evident. It is the facts that make it so that the situation is self evident or the situation that necessitates some facts had to have happened.
Prima facie – FACTS Res ipsa loquitor – THING
And now that I’ve shown the world that the best way to make this distinction can be found in the latin itself, which takes abstract legal concepts and boils them down into words from a beautiful language – my job is done!
Okay class – homework for next time is reading chapters 4-6 of Cicero’s De Legibus . Get reading!
Vestra Magistra, Esq.
[Also – extra credit for the student who can tell me what “Quid pro Quo” means, and not just the translation. It’s probably one of the more common uses of latin for business and law… and as our friend Inigo Montoya says… “I do not think it means what you think it means.”]