The Decline of Res Ipsa Loquitur Actions in Texas

Introduction

The doctrine of res ipsa loquitur is derived from the Latin phrase “the thing speaks for itself.”  Res ipsa loquitur is a mechanism by which a plaintiff can establish a defendant's negligence, absent sufficient evidence to prove such negligence.[1] However, recent decisions indicate Texas courts are placing a heavier burden on plaintiffs attempting to prove negligence through res ipsa loquitur. Consequently, Texas courts are hesitant to infer a defendant's negligence merely on a plaintiff's assertion of res ipsa loquitur.

Res Ipsa Loquitur Overview

A plaintiff asserting a claim under res ipsa loquitur must show by a preponderance of the evidence: (1) without a negligent act, the plaintiff’s injury would not have occurred; and (2) the instrumentality that caused the injury was exclusively controlled by the defendant.[2]  Thus, to properly assert res ipsa loquitur, a plaintiff must first establish the existence of negligence, and then show the defendant was the liable negligent party.[3]

Texas Courts Disfavor Res Ipsa Loquitur

In recent years, numerous Texas courts have been hesitant to use res ipsa loquitur to establish negligence.[4]  In CenterPoint Houston Elec., LLC v. 5433 Westheimer, LP, CenterPoint sued the operators of a commercial building, alleging negligence for failing to prevent a breach in a waterline which subsequently flooded and destroyed CenterPoint’s property.[5]  CenterPoint relied on res ipsa loquitur to establish the defendants’ negligence, but the trial court determined that “[b]ecause CenterPoint’s damages could have equally been caused by a non-negligent cause, the res ipsa loquitur doctrine [did] not apply.”[6]

In Sanders v. Naes Central, Inc., Plaintiff was injured after entering an elevator, which subsequently fell two stories.[7]  Plaintiff filed suit against the elevator maintenance company, relying on res ipsa loquitur to establish the defendant’s breach of duty.[8]  Ultimately, the court held “[t]he 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.”[9]  In other words, res ipsa loquitur is not available when the plaintiff can only speculate as to the negligent party because no evidence indicates one party is more blameworthy than another.

Additionally, the Sanders court referenced a Texas Supreme Court case which held res ipsa loquitur is inapplicable when evidence indicates it is at least as likely “that the negligence, if any could be attributed to [another party]” and “the plaintiff's evidence only shows it is equally probable that the negligence was that of another, the court must direct the jury that plaintiff has not proven his case.”[10] Therefore, in both CenterPoint and Sanders, res ipsa loquitur did not support the plaintiffs’ claims because they were not able to establish the defendants’ alleged negligence was the most likely cause of the resulting injuries.

To succeed under a theory of res ipsa loquitur, Texas courts require a plaintiff to substantially diminish “the likelihood of other causes,” such that the preponderance of the evidence leaves the jury with one logical conclusion: “the negligence, if any, lies at the defendant’s door.”[11]  In Mobil Chem. Co. v. Bell, the court concluded a plaintiff is not required to prove the impossibility of all other causes; the plaintiff is only required to show the defendant’s negligence is the most likely cause of the plaintiff’s injury.[12]

In Mattox v. C. R. Anthony Co., the Court of Civil Appeals found Plaintiff properly asserted negligence under res ipsa loquitur.[13]  While riding an escalator, Plaintiff sustained injuries after it jerked and caused her to fall.[14]  Plaintiff alleged the escalator was under the exclusive control of Defendant store manager, as the owner and operator.[15]  Prior to the incident at issue, the escalator had never malfunctioned in Defendant’s two to three years as the store manager.[16]  If this case was decided today, it is likely the court would conclude it was equally likely another party (i.e., the escalator’s manufacturer, etc.) could have been responsible for Plaintiff’s injury.[17]  Thus, today, a court would likely hold Plaintiff could not show Defendant had exclusive control of the escalator, and therefore, Plaintiff would be barred from asserting negligence under res ipsa loquitur.

In the past, asserting res ipsa loquitur would often relieve the plaintiff of the burden of proving causation.[18]  However, recent Texas decisions suggest courts are requiring more definitive proof the defendant exclusively controlled the injury causing instrumentality than has been accepted in the past.  As a result, plaintiffs will find it more difficult to use res ipsa loquitur to prove a defendant’s negligence.

Conclusion

Traditionally, to establish res ipsa loquitur, a plaintiff could show by a preponderance of the evidence (1) without a negligent act, the plaintiff’s injury would not have occurred, and (2) the instrumentality that caused the injury was exclusively controlled by the defendant.  Recently, Texas courts are reluctant to presume a defendant’s negligence based on res ipsa loquitur.  Going forward, Texas courts will likely implement a heightened standard of review when determining whether the defendant had exclusive control of the injury causing instrumentality.  Due to the heightened level of scrutiny courts have used in recent res ipsa loquitur cases, a plaintiff relying on the applicability of res ipsa loquitur should be prepared to meet a high standard of proof in showing a defendant was the most likely cause of the alleged injury.  In the past, res ipsa loquitur was a lower burden to establish against a defendant than general negligence because the plaintiff did not have to specifically identify duty and breach by a culpable third party.  Because courts now require plaintiffs to show the defendant’s negligence was the most likely cause of the resulting injuries, a plaintiff cannot assert res ipsa loquitur without also establishing general negligence.  Therefore, in this author’s opinion, res ipsa loquitur is essentially useless in practice, and it may not be long before the doctrine is completely put to rest.


[1] Parsons v. Ford Motor Co., 85 S.W.3d 323, 331–32 (Tex. App.—Austin 2002, pet. denied).

[2] Id. at 332.

[3] Turbines, Inc. v. Dardis, 1 S.W.3d 726, 742 (Tex. App.—Amarillo 1999, pet. denied).

[4] See CenterPoint Houston Elec., LLC v. 5433 Westheimer, LP, No. 01-15-00335-CV, 2016 WL 3269979, at *1 (Tex. App.—Houston [1st Dist.] 2016, no pet.); Sanders v. Naes Central, Inc., 498 S.W.3d 256 (Tex. App—Houston [1st Dist.] 2016, no pet.).

[5] CenterPoint, 2016 WL 3269979, at *5.

[6] Id.  (emphasis added).

[7] Sanders, 498 S.W.3d at 257.

[8] Id.

[9] Id. at 259 (quoting Esco Oil & Gas, Inc. v. Sooner Pipe & Supply Corp., 962 S.W.2d 193, 195 (Tex. App.–Houston [1st Dist.] 1998, pet. denied)).

[10] Id. at 260 (quoting Marathon Oil Co. v. Sterner, 632 S.W.2d 571, 574 (Tex. 1982).

[11] Parsons, 85 S.W.3d at 332 (citing Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 251 (Tex. 1974)).

[12] Mobil Chem., 517 S.W.2d at 251.

[13] Mattox v. C.R. Anthony Co., 326 S.W.2d 740, 744 (Tex. Civ. App.—Beaumont 1959, writ ref’d n.r.e.), disapproved of by Dallas Mkt. Ctr. Dev. Co. v. Liedeker, 958 S.W.2d 382 (Tex. 1997).

[14] Id. at 741-42.

[15] Id. at 741.

[16] Id. at 742.

[17] See CenterPoint, 2016 WL 3269979, at *1; also see Sanders, 498 S.W.3d 256.

[18] Parson, 85 S.W.3d at 331–32.

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