Correct!

To use res ipsa loquitor the plaintiff needs to show:

that the accident is of a type that ordinarily does not occur without someone's negligence

that the defendant was in exclusive control of the instrumentality that caused the damage, and

that the plaintiff was free from fault.

Was Swifty in exclusive control of the handle? Probably not, since other passengers had access to it and the problem tells us that another passenger bent the handle.

Was Benton negligent in not looking out for his own safety? If so he will fail to meet the third requirement.

But notice that the third requirement is of doubtful validity today. It developed when the general rule was that a plaintiff's contributory negligence barred recovery in any suit for negligence. Today, most states have modified or abolished this rule.

Notice also that the rule of res ipsa loquitor requires the plaintiff to show that he or she was free from fault. By contrast, in most states the defendant has the burden of showing that the plaintiff was at fault.

Link back to assignment 4.

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