Court of Appeals of Texas, Fourth District, San Antonio
the 218th Judicial District Court, Atascosa County, Texas
Trial Court No. 13-10-0920-CVA Honorable Donna S. Rayes,
Sitting: Karen Angelini, Justice Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Patricia O. Alvarez, Justice
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.
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
complained of back pain and was taken to the hospital for
evaluation. Following the accident, Cabanas underwent several
surgeries and incurred some medical expenses.
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.
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.
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.
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." 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.
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)).
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.
Discount Tire's objection, the trial court included a
res ipsa loquitur instruction in the jury
charge's negligence question.
Rule of Evidence
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.).
Two Prerequisite Factors
[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
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
First Factor-Type of Accident
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 . . . .").