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44 Wake Forest L. Rev. 997 (2009)
Negligence Per Se and Res Ipsa Loquitur: Kissing Cousins

handle is hein.journals/wflr44 and id is 1007 raw text is: NEGLIGENCE PER SE AND RES IPSA LOQUITUR: KISSING COUSINS Aaron D. Twerski * At first glance, negligence per se and res ipsa loquitur appear to have little in common, except that they are found adjacent to each other in the chapter on negligence in most torts casebooks.' However, the two doctrines actually share a common theme. In both, plaintiffs seek to prove negligence based on a generalization. A defendant can prevail only by showing that the generalization should not apply to the particular facts of his or her case. The Restatement (Third) of Torts, in these two areas, would be more effective and more principled if it focused on the issue of when it is proper to rely on a generalization and when we must abandon the generalization in favor of a more fact-sensitive inquiry into the actor's conduct. General principles can be articulated that explain important aspects of these two doctrines; however, they seem to get lost in the detailed application of the Restatement (Third)'s various sections. As a former Restatement reporter, I am sensitive to academicians taking potshots at carefully crafted rules and 2 comments. I admire the work Professors Green and Powers have produced,3 so much so that I feel free to critique their work and suggest some modifications that I believe would enhance their final work product. * Irwin and Jill Cohen Professor of Law, Brooklyn Law School. B.S., University of Wisconsin-Milwaukee, 1970; J.D., Marquette University, 1965; A.B., Beth Medrash Elyon Research Institute, 1962. 1. See, e.g., MARC A. FRANKLIN, ROBERT L. RABIN & MICHAEL D. GREEN, TORT LAW AND ALTERNATIVES: CASES AND MATERIALS 75-109 (8th ed. 2006); THOMAS C. GALLIGAN ET AL., TORT LAW: CASES, PERSPECTIVES, AND PROBLEMS 207-30 (4th ed. 2007); ROBERT E. KEETON ET AL., TORT AND ACCIDENT LAW: CASES AND MATERIALS 398-440 (4th ed. 2004); VICTOR E. SCHWARTZ ET AL., PROSSER, WADE AND SCHWARTZ'S TORTS: CASES AND MATERIALS 204-58 (11th ed. 2005); AARON D. TwERSKI & JAMES A. HENDERSON, JR., TORTS: CASES AND MATERIALS 161-92 (2d ed. 2008). 2. The author was a coreporter with Professor James A. Henderson, Jr. for the RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIAB. (1998). 3. In another forum, the author has expressed some difference of opinion with the drafting of RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL HARM § 7 (Proposed Final Draft No. 1, 2005). See Aaron D. Twerski, The Cleaver, the Violin and the Scalpel: Duty and the Restatement (Third) of Torts, 60 HASTINGS L.J. 1, 3-5 (2008).

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