Disc. Tire Co. of Tex., Inc. v. Cabanas

• Decision Date: 16 May 2018
• Docket Number: No. 04–17–00276–CV,04–17–00276–CV
• Citation: 553 S.W.3d 566
• Parties: DISCOUNT TIRE COMPANY OF TEXAS, INC., Appellant v. Federico Vargas CABANAS, Appellee
• Court: Texas Court of Appeals

553 S.W.3d 566

DISCOUNT TIRE COMPANY OF TEXAS, INC., Appellant

v.Federico Vargas CABANAS, Appellee

No. 04–17–00276–CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: May 16, 2018

Kurt Kuhn, David S. Angulo, Lisa Hobbs, Christian K.G. Henrichsen, for Discount Tire Company of Texas, Inc.

Kyzmyck D'joi Byerly, for Federico Vargas Cabanas

Sitting: Karen Angelini, Justice, Marialyn Barnard, Justice, Patricia O. Alvarez, Justice

Opinion by: Patricia O. Alvarez, Justice

This is a negligence suit with a res ipsa loquitur instruction in the jury charge. After Appellant Discount Tire Company of Texas, Inc. rotated the tires on a pickup truck, a tire detached and struck Appellee Federico Vargas Cabanas's vehicle. Cabanas sued for his injuries. The jury found Discount Tire negligent, and it awarded damages to Cabanas. Because the doctrine of res ipsa loquitur does not apply and there was no evidence of breach, we reverse the portion of the trial court's judgment in favor of Cabanas and render judgment that Cabanas take nothing on his claims against Discount Tire. We affirm the remainder of the trial court's judgment.

BACKGROUND

Tommy Ebarb owned a pickup truck. He upgraded it with custom lift, wheels, and tires. He took his seven-year-old pickup truck, with approximately 171,850 miles on it, to Discount Tire. Discount Tire rotated the tires on Ebarb's pickup truck about 1:00 pm on a Friday. Ebarb drove his truck a few miles on Friday, Saturday, and Sunday. Sunday evening, as he was driving on a highway, Ebarb's truck's left front wheel detached, struck Cabanas's vehicle, and injured Cabanas.

Cabanas complained of back pain and was taken to the hospital for evaluation. Following the accident, Cabanas underwent several surgeries and incurred some medical expenses.

Cabanas's wife, Xochitl Contreras, acting both individually and as next friend of their daughter Clara Vargas Contreras, and Cabanas sued Ebarb and Discount Tire for injuries allegedly caused by the defendants' negligence.

After the plaintiffs rested, Ebarb and Discount Tire moved for directed verdicts. The trial court granted Ebarb's motion, but denied Discount Tire's motion. The trial proceeded, and the trial court held a charge conference. Discount Tire objected to the res ipsa loquitur instruction in the charge, but the trial court overruled the objection. The jury found Discount Tire negligent, and awarded Cabanas damages—primarily for past medical expenses.

Discount Tire raises three issues on appeal: (1) there is no evidence to support the jury's negligence finding, (2) the trial court erred by submitting a circumstantial evidence and a res ipsa loquitur instruction in the charge, and (3) the trial court erred by denying Discount Tire's request to put on evidence of the medical expenses Cabanas actually paid and incurred.

STANDARD OF REVIEW

For a legal sufficiency review, "the court must consider evidence in the light most favorable to the verdict, and indulge every reasonable inference that would support it." City of Keller v. Wilson , 168 S.W.3d 802, 822 (Tex. 2005). A legal sufficiency challenge must be sustained if there is a "complete absence of a vital fact" or "the evidence offered to prove a vital fact is no more than a scintilla."¹ Whirlpool Corp. v. Camacho , 298 S.W.3d 631, 639 (Tex. 2009) (citing City of Keller , 168 S.W.3d at 827 ). "When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence." Jelinek v. Casas , 328 S.W.3d 526, 532 (Tex. 2010) (quoting Kindred v. Con/Chem, Inc. , 650 S.W.2d 61, 63 (Tex. 1983) ).

"[S]ome suspicion linked to other suspicion produces only more suspicion, which is not the same as some evidence." Marathon Corp. v. Pitzner , 106 S.W.3d 724, 728 (Tex. 2003) (quoting Johnson v. Brewer & Pritchard, P.C. , 73 S.W.3d 193, 210 (Tex. 2002) ).

ORDER OF ISSUES

In its first issue, Discount Tire asserts the evidence is legally insufficient to support the jury's negligence finding. In its second issue, Discount Tire argues that res ipsa loquitur does not apply in this case. If res ipsa applies, it would serve as some evidence of Discount Tire's breach. See Mobil Chem. Co. v. Bell , 517 S.W.2d 245, 251 (Tex. 1974) ("[T]he effect of successfully invoking the res ipsa doctrine is that the plaintiff can survive no-evidence procedural challenges—[the plaintiff] has produced some evidence of the defendant's negligence."). Because our legal sufficiency review of the evidence would be affected by the res ipsa loquitur doctrine, before we address Discount Tire's no-evidence challenge to the jury's negligence finding, we first consider whether res ipsa applies.

RES IPSA LOQUITUR

Over Discount Tire's objection, the trial court included a res ipsa loquitur instruction in the jury charge's negligence question.

A. Rule of Evidence

"In Texas ... res ipsa loquitur is simply a rule of evidence whereby negligence may be inferred" under certain circumstances. Mobil Chem. Co. v. Bell , 517 S.W.2d 245, 251 (Tex. 1974) (citing Owen v. Brown , 447 S.W.2d 883, 886 (Tex. 1969) ). "The purpose of res ipsa is to relieve the plaintiff of the burden of proving a specific act of negligence by the defendant when it is impossible for the plaintiff to determine the sequence of events, or when the defendant has superior knowledge or means of information to determine the cause of the accident." Jones v. Tarrant Util. Co. , 638 S.W.2d 862, 865 (Tex. 1982) ; Sanders v. Naes Cent., Inc. , 498 S.W.3d 256, 258 (Tex. App.—Houston [1st Dist.] 2016, no pet.).

B. Two Prerequisite Factors

"The [res ipsa ] doctrine is applicable only when two factors are present: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant." Marathon Oil Co. v. Sterner , 632 S.W.2d 571, 573 (Tex. 1982) (emphasis added); accord Owen , 447 S.W.2d at 886 ; see Gaulding v. Celotex Corp. , 772 S.W.2d 66, 68 (Tex. 1989) (requiring "the instrumentality which caused the injury ... to have been under the sole management and control of the defendant").

Both factors are required; without both, "the jury cannot reasonably infer from the circumstances of the accident that the defendant was negligent." Marathon Oil , 632 S.W.2d at 573 ; accord Mobil Chem. , 517 S.W.2d at 251.

1. First Factor—Type of Accident

"The first factor is necessary to support the inference of negligence ...." Mobil Chem. , 517 S.W.2d at 251 ; accord Jones , 638 S.W.2d at 865. The plaintiff must show that the accident that injured him "was the type of accident that normally would not occur without negligence." Jones , 638 S.W.2d at 865 ; see Mobil Chem. , 517 S.W.2d at 252 ("A finding of negligence necessarily includes [a] finding[ ] that the accident would not ordinarily occur in the absence of negligence ....").

2. Second Factor—Control

"[T]he second factor is necessary to support the inference that the defendant was the negligent party." Mobil Chem. , 517 S.W.2d at 251 ; accord Jones , 638 S.W.2d at 865. The purpose of the second factor is to ensure that it is appropriate to lay the alleged negligence at the defendant's door. Mobil Chem. , 517 S.W.2d at 251 ; see also Marathon Oil , 632 S.W.2d at 574. "The requirement of control is necessary to trace the negligence back to the defendant. It is sufficient that the defendant be in control of the instrumentality at the time that the negligence inferable from the accident probably occurred." Marathon Oil , 632 S.W.2d at 573 ; accord Mobil Chem. , 517 S.W.2d at 251. But a lapse in the defendant's control may make the doctrine inapt. See Gaulding , 772 S.W.2d at 68 (requiring that "the instrumentality which caused the injury [be] shown to have been under the sole management and control of the defendant"); Trejo v. Laredo Nat. Bank , 185 S.W.3d 43, 47 (Tex.App.—San Antonio 2005) (same).

3. Second Factor—Multiple Defendants

"The doctrine of res ipsa loquitur is not available to fix responsibility when any one of multiple defendants, wholly independent of each other, might have been responsible for the injury." Mathis v. RKL Design/Build , 189 S.W.3d 839, 846 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ; accord Parsons v. Ford Motor Co. , 85 S.W.3d 323, 332–33 (Tex. App.—Austin 2002, pet. denied) ; Esco Oil & Gas, Inc. v. Sooner Pipe & Supply Corp. , 962 S.W.2d 193, 195 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) ; see also Weirich v. IESI Corp. , No. 03-14-00819-CV, 2016 WL 4628066, at *4 (Tex. App.—Austin Aug. 31, 2016, no pet.) (mem. op.) (quoting Mathis , 189 S.W.3d at 846 ).

Res ipsa may apply where two (or more) defendants have joint control over the instrumentality that causes the injury. See Bond v. Otis Elevator Co. , 388 S.W.2d 681, 685 (Tex. 1965) ; Sanders v. Naes Cent., Inc. , 498 S.W.3d 256, 259 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (contrasting Bond , which applied res ipsa to multiple defendants, with Marathon Oil , which did not).

But where the defendant did not have exclusive control over the instrumentality that caused the injury, and others had access to and could have tampered with the instrumentality, the doctrine of res ipsa loquitur is not applicable. See Sanders , 498 S.W.3d at 259 ("The doctrine of res ipsa loquitur is not available to fix responsibility when any one of multiple defendants, wholly independent of each other, might have been responsible for the injury."); Trejo , 185 S.W.3d at 48 ("The doctrine of res [ispa ] loquitur applies only where the instrumentalities causing the injury are shown to have been wholly in the care of the defendant and not to have been meddled with by the person injured or third parties."); Lucas v. Titus County Hosp. Dist./Titus Mem'l Hosp. , 964 S.W.2d 144, 156 (Tex. App.—Texarkana 1998, no pet.) (reject...