De La Garza, Martin v. James C. Thomas, Inc., D/B/A James Thomas Exxon

NUMBER 13-99-292-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ MARTIN DE LA GARZA, Appellant, v. JAMES C. THOMAS, INC., D/B/A JAMES THOMAS EXXON, Appellee. ___________________________________________________________________ On appeal from the County Court at Law No. 3 of Nueces County, Texas. ____________________________________________________________________ O P I N I O N Before Justices Hinojosa, Yañez, and Kennedy Opinion by Justice Kennedy(1) Appellant was an employee of appellee at a service station. While attempting to air a customer's automobile tire, appellant was struck on the knee by a part of the air hose known as the "chuck" which blew off the end of the air hose. Appellant was treated at the scene with an ice pack and, later, was sent to a physician by appellee. The physician treated appellee and eventually performed surgery on his knee. Appellant returned to work, however, some three months later he was fired for failing to report to work. Appellee is a nonsubscriber to the Texas Workers Compensation Fund. Appellant sued alleging common law negligence. The trial court granted summary judgment to appellee, resulting in this appeal. The standards for reviewing a motion for summary judgment are well established. The movant has the burden of showing that there is no genuine material fact issue and that it is entitled to judgment as a matter of law. Ryland Group Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996). In addition, the Supreme Court has said: The standards for reviewing a motion for summary judgment are well established. As mandated by this court they are: The Movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-9 (Tex. 1985). The trial court found that there was no evidence that appellee had actual or constructive knowledge of a dangerous condition on the premises, no evidence that the condition posed an unreasonable risk of harm, no evidence that appellee failed to exercise reasonable care to reduce or eliminate the risk of harm, and no evidence that the failure of appellee to use reasonable care proximately caused appellant's injuries. The court also found there was no evidence that appellee owed a duty to appellant, no evidence that appellee breached that duty, and no evidence that any breach of duty proximately caused appellant's injuries. Although not stated as a numbered issue in this appeal, appellant argues that the doctrine of res ipsa loquitur is controlling in this case. Appellant did not plead this doctrine in his original pleadings. The trial court, in pre-trial, imposed a filing deadline for amended pleadings. The day after the deadline expired appellee filed its motion for summary judgment. Shortly thereafter, appellant filed a response to the motion alleging that res ipsa loquitur applies so as to defeat the summary judgment. In its reply to this response, appellee alleged that appellant's assertion of res ipsa loquitur was untimely filed and should be stricken. The trial court granted full judgment for appellee on its summary judgment motion. This court has held "although appellee did not specifically plead a cause of action for negligence 'based on a term res ipsa loquitur,' he did make a general allegation of negligence along with allegations of specific acts of negligence. In such a state of the pleadings, it was not necessary for appellee to specifically plead res ipsa loquitur." Farm Services, Inc. v. Gonzales, 756 S.W.2d 747, 751 (Tex. App. - Corpus Christi 1988, writ denied), citing Mobile Chemical Co. v. Bell, 517 S.W.2d 245, 254 (Tex 1974); Conaway v. Roberts, 725 S.W.2d 377, 378 (Tex. App. - Corpus Christi 1987, writ denied). The next issue is whether res ipsa loquitur applies to the case at hand and whether it affects the summary judgment. Res ipsa loquitur is the established rule that where the thing which caused the injury complained of is under the management of the defendant and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence that the accident arose from lack of care, in the absence of explanation by the defendant. 65A C. J. S. 512 (1997). Thus there is a presumption that the party charged with the management and control of the object is guilty of negligence. Id. at 515. Birmingham v. Gulf Oil Corp, 516 S.W.2d 914 (Tex. 1974) is a case where the bolts holding a crane to an offshore drilling rig gave way, causing the crane to fall into the Gulf of Mexico and kill the crane operator. The trial court instructed a verdict for Gulf and other defendants which was affirmed by this Court. Birmingham v. Gulf Oil Corp., 494 S.W.2d 946 (Tex. Civ. App.--Corpus Christi, 1973). The Supreme Court reversed both the trial court and this court, saying: cranes weighing 7 tons do not usually tear loose from their bases without someone being at fault. Since Gulf was in control of the bolts which collapsed, it is inferrable that the failure would not have occurred without the negligence of Gulf. The jury was entitled to find that Gulf was probably negligent and that negligence probably caused the collapse. On the other hand the jury might not so find. Birmingham, 516 S.W.2d at 917. The court also held: the crane operator did not relieve the crane's owner of responsibility for safety of the bolts which held the crane upon its mount simply by his operation of the crane. The passenger in an elevator or the one at its controls does not become responsible for the mechanism of the elevator. Id. at 918, Citing Bond v. Otis Elevator Company, 388 S.W.2d 681 (Tex. 1965) and further: the control that is required for the application of the res ipsa rule is not necessarily control exercised at the time of the injury, but it may be control exercised at the time of the negligent act which subsequently leads to the injury. Id. at 918. We hold that summary judgment was not proper under all the facts of this case. We REVERSE and REMAND for further proceedings consistent herewith. Noah Kennedy Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 13th day of April, 2000. 1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. 74.003 (Vernon 1998).