Editing Res ipsa loquitur (section)

==Exclusive control requirement==
The common law traditionally required "the instrumentality or agent which caused the accident was under the exclusive control of the defendant". See e.g., ''Eaton v. Eaton'', 575 A2d 858 (NJ 1990). However, in the United States the second and the third versions of the [[Restatement of Torts]] eliminated the strict requirement because it can be difficult to prove "exclusive control". Accordingly, the element has largely given way in modern American cases to a less rigid formulation: the evidence must eliminate, to a sufficient degree, other responsible causes (including the conduct of the plaintiff and [[third party beneficiary|third parties]]). For example, in [[New York State]], the defendant's exclusivity of control must be such that the likelihood of injury was more likely than not, the result of the defendant's negligence. The likelihood of other possibilities does not need to be eliminated altogether but must be so reduced that the greater probability lies with the defendant.

Here is a fictitious example:

*[[John Doe]] is injured when an [[elevator]] he has entered plunges several floors and stops abruptly.
*Jane's Corporation built and is responsible for maintaining the elevator.
*John sues Jane.  Jane claims that his complaint should be dismissed because he has never proved or even offered a theory as to why the elevator functioned incorrectly. Therefore, she argues that there is no evidence that they were at fault.
*The court holds that John does not have to prove anything beyond the fall itself.
**The elevator evidently malfunctioned (it was not intended to fall, and that is not a proper function of a correctly-functioning elevator).
**Jane was responsible for the elevator in every respect.
** Therefore, Jane's Corporation is responsible for the fall.
*The thing speaks for itself: no further explanation is needed to establish the ''[[prima facie]]'' case.

In some cases, a closed group of people may be held in breach of a duty of care under the rule of ''res ipsa loquitur''. In ''[[Ybarra v. Spangard]]'',<ref>93 Cal.App2d 43 (1949)</ref> a patient undergoing surgery experienced back complications as a result of the surgery, but it could not be determined the specific member of the surgical team who had breached the duty so it was held that they had all breached, as it was certain that at least one of them was the only person who was in exclusive control of the instrumentality of harm.

In jurisdictions that employ this less rigid formulation of exclusive control, the element subsumes the element that the plaintiff did not contribute to his injury. In modern [[case law]], [[contributory negligence]] is compared to the injury caused by the other. For example, if the negligence of the other is 95% of the cause of the plaintiff's injury, and the plaintiff is 5% responsible, the plaintiff's slight fault cannot negate the negligence of the other. The new type of split liability is commonly called ''[[comparative negligence]]''.