The Texas Supreme Court has reversed a decision of the Beaumont Court of Appeals holding that the submission of jury charge on res ipsa loquitor (“the thing speaks for itself”) constituted harmful error requiring a new trial.
Schindler Elevator Corporation v. Darren Ceasar (No. 22-0030; delivered June 16, 2023) arose from injuries allegedly suffered by plaintiff when a hotel elevator malfunctioned, requiring the fire department to open the elevator doors to get him out. Plaintiff alleged that the elevator sped up, overshot the right floor, and abruptly stopped, jarring his neck and back. He also claimed that he became anxious when trapped in the elevator, had subsequent nightmares, and was suffering from PTSD. He sued the hotel and Schindler, the elevator maintenance company. The court granted summary judgment for the hotel. A 10-2 jury awarded plaintiff more than $800,000 in economic and noneconomic damages, as well as $25,000 in discovery sanctions against Schindler for failing to respond to plaintiff’s discovery requests for elevator maintenance manuals and instructions. Schindler appealed on several issues relating to the jury charge (the trial court submitted a res ipsa loquitor charge, which Schindler contested), evidentiary rulings, the discovery sanctions, and the denial of its motion for new trial. The Beaumont Court of Appeals affirmed. Schindler sought review, which SCOTX granted.
SCOTX reversed and remanded for new trial. In an opinion by Chief Justice Hecht, the Court held that the trial court abused its discretion by submitting to the jury a question on res ipsa loquitor when the record showed no evidence to support the charge. “Res ipsa,” Chief Justice Hecht wrote, “is an evidentiary doctrine that ‘relieve[s] 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’” (citation omitted). Observing that “[t]he doctrine applies only rarely, when the way in which an accident occurred furnishes circumstantial evidence of the defendant’s negligence,” the chief justice cited two “mandatory elements for the doctrine’s application”: “(1) the character of the accident must be such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury must be shown to have been under the management and control of the defendant” (citation omitted). Plaintiff must prove by a preponderance of evidence both “type of accident” and “control,” and the appropriate defense response is a “no-evidence point.”
Noting that the classic case for a res ipsa instruction is a surgical instrument left inside of a patient, the Court turned to a review of the record to determine whether plaintiff produced “more than a mere scintilla of evidence” to support the jury instruction. The Court found that plaintiff failed to carry this burden. The trial court based its instruction on the testimony of plaintiff’s expert, who opined that a properly maintained elevator wouldn’t overshoot the right floor. That testimony, however, was conclusory and thus “considered no evidence.” The expert failed to “link his conclusions to the facts” and “explain[] the basis of his assertions,” largely because he admitted in cross examination that an elevator might stop abruptly for several reasons other than negligent maintenance. He further opined that “only two or three callouts per year are typical for a properly maintained elevator,” but, as the chief justice pointed out, “[e]ven if it is true that a properly maintained elevator malfunctions only two to three times per year, it does not follow that a fourth or subsequent malfunction must be due to improper maintenance.” In other words, plaintiff’s expert merely asked the jury “to take his word for it” that “properly maintained elevators ordinarily do not malfunction,” when he had also testified that they might.
The court of appeals held that the res ipsa charge was harmless because the jury could have found Schindler negligent under a separate charge on circumstantial evidence” without relying on the res ipsa charge. The Court rejected this reasoning, pointing to the repeated emphasis plaintiff’s counsel placed on the “lower burden” of res ipsa in his jury argument. Moreover, the chief justice averred, the res ipsa charge and the circumstantial evidence charges are distinct and ask the jury to do different things. Because the res ipsa charge allows the jury to find the defendant negligent “when there is no evidence,” it cannot be harmless. The Court reversed the court of appeals and remanded for new trial.
The Court, however, affirmed the court of appeals’ decision upholding the trial court’s sanctions order against Schindler for failing to respond to discovery, as well as its order excluding evidence that three years prior to the elevator accident plaintiff applied for Social Security benefits and filed a personal injury lawsuit for a similar back injury. First, though the trial court excluded the application itself, it allowed defendant to question plaintiff on the statements made in the application. Plaintiff’s neurosurgeon testified further that plaintiff had been forthcoming about the prior injury, so it was no big secret. Second, the fact that plaintiff filed a prior lawsuit claiming back injuries was not relevant to the injuries claimed in the second lawsuit, when the trial court allowed defendant to cross examine plaintiff about it. The trial court thus did not abuse its discretion in excluding this evidence. The last issue was a spoliation issue based on plaintiff’s deletion of a Facebook post showing him trapped in the elevator and kicking the elevator door in an effort to open it. The trial court refused an instruction, reasoning that several witnesses had seen the video prior to its deletion and testified as to its content. There was also no evidence that plaintiff deleted it intentionally or with malicious intent to impair the defendant’s case. No abuse of discretion here.
Res ipsa is one of those fun things a law student learns in torts class but is rarely seen in appellate opinions—and for good reason. It relieves the plaintiff of the burden of proving the defendant’s negligence, so we suspect that the Court didn’t want it to become standard operating procedure for plaintiffs to request a res ipsa charge along with other theories of liability.
