Since Chief Justice Pollock first used the phrase "res ipsa loquitur" in the opinion of Byrne v. Boadle, there has been disagreement regarding the exact meaning of the phrase and more particularly its procedural effect. Although various authorities have their own refinements, they generally adhere to one of three different views as to just what the phrase means. Dean Prosser states that the doctrine is nothing more than a form of circumstantial evidence and that the procedural effect of the doctrine may be great or small depending upon the facts of the particular case. A second theory proposes that res ipsa loquitur is a rule of substantive law which compels the court to take judicial notice of the fact that the defendant was negligent. There is a third view that the doctrine is merely a part of the best evidence rule, i.e., where the adverse party has access to the facts the burden of proof shifts to him.
Alfred W. Blessing,
The Procedural Effect of Res Ipsa Loquitur in Nebraska,
33 Neb. L. Rev. 620
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