Jones v. Tarrant Utility Co.

Decision Date07 July 1982
Docket NumberNo. C-1111,C-1111
Citation638 S.W.2d 862
CourtTexas Supreme Court
PartiesEarl F. JONES et ux., Petitioner, v. TARRANT UTILITY COMPANY, Respondent.

Robert J. Wilson, Burleson, for petitioner.

Brown, Herman, Scott, Dean & Miles, Grant Liser, Fort Worth, for respondent.

SPEARS, Justice.

Earl and Lucille Jones brought this suit against Tarrant Utility Company (hereinafter T. U. C.) to recover damages allegedly caused by water overflowing from two T. U. C. water storage tanks. The trial court directed a verdict in favor of T. U. C. The court of appeals affirmed. 626 S.W.2d 912. We reverse the judgments of both courts and remand the cause to the trial court for new trial. The issue before us is whether the trial court correctly withdrew the case from the jury and rendered judgment as a matter of law for T. U. C.

In 1962 Mr. Jones built a skating rink in Rendon, Texas. A year later, Jones donated several lots behind the rink to T. U. C. so that a water system for Rendon could be constructed. T. U. C. accepted the lots and built a large well and tank storage system which they completed by 1965.

T. U. C. erected two storage tanks on a slightly elevated area directly behind the skating rink. One storage tank was situated on the ground; the other tank was built on a tower. According to the Joneses and several other witnesses, the tanks began to overflow frequently sometime in 1974. The water flowed down the small hill and directly toward the rink. Jessie Graham, T. U. C.'s general manager, testified that from sixty to one hundred gallons of water a minute could flow from the tanks. Jones testified that from 1974 to 1979, the tanks would overflow sixty or sixty-five times a year.

At first, the Joneses' drainage system diverted the water. Sometime in 1976 or 1977, however, the drainage ditch system "collapsed" and the water began to flow directly to the rink. Some of the water would gather against the skating rink where it would stand until it evaporated. The remainder of the water would flow past the rink into the road. Jones soon began to notice cracks in the walls of the rink. Soon after that, the maple skating floor began to swell and buckle. Eventually Jones was forced to close the skating rink to the public.

The Joneses brought suit against T. U. C. alleging trespass, nuisance, negligence and res ipsa loquitur. After the close of evidence, the trial court withdrew the case from the jury and rendered judgment for T. U. C. as a matter of law. The court of appeals affirmed, holding: (1) there was no evidence of trespass because there was no evidence that T. U. C. intentionally caused and allowed the water to flow onto the property; (2) the doctrine of res ipsa loquitur was inapplicable because there was no evidence that the overflow normally would not occur in the absence of negligence, or that the instrumentality causing the accident was in the control of T. U. C.; (3) the Joneses failed to prove that the overflowing water caused the damage to the rink; (4) there was no evidence of a specific act of negligence; and (5) the theory of nuisance was inapplicable because there was no evidence of a specific act of negligence.

A defendant is entitled to judgment as a matter of law only when reasonable minds cannot differ in their decision. On appeal, the appellate court must determine if there is any evidence of probative force to raise a fact issue on any theory of recovery. The court must consider all of the evidence in the light most favorable to the plaintiff, disregarding all contrary evidence and inferences. If there is any evidence of probative force on any theory of recovery, that issue must go to the jury. Collara v. Navarro, 574 S.W.2d 65 (Tex.1978).

We hold the Joneses produced some evidence on the issues of res ipsa loquitur and intentional trespass, and therefore these theories of recovery should have been submitted to the jury.

The Joneses pled res ipsa loquitur which is simply a rule of evidence by which negligence can be inferred by the jury. It is not a separate cause of action from negligence and does not become inapplicable if proof of specific acts of negligence is introduced. Mobil Chemical Co. v. Bell, 517 S.W.2d 245 (Tex.1974). 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. Mobil Chemical Co. v. Bell, supra; Owen v. Brown, 447 S.W.2d 883 (Tex.1969).

The doctrine of res ipsa loquitur is applicable only when: (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 be under the management and control of the defendant. Marathon Oil Co. v. Sterner, 632 S.W.2d 571 (Tex.1982).

As to the first requirement, the court of appeals held that the Joneses needed to introduce expert testimony that water continuously overflowing from water tanks was the type of accident that normally would not occur without negligence. We disagree. In many res ipsa cases, expert testimony is not necessary to establish the inference of negligence...

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