Wheeler v. Koch Gathering Systems, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 5 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

STERLING WHEELER,

Plaintiff - Appellee,
v.
No. 96-6289
KOCH GATHERING SYSTEMS, INC.,

Defendant - Cross-Claimant -
Appellant,

FARRAR CONSTRUCTION
INCORPORATED, an Oklahoma
Corporation,

Defendant - Cross-Defendant.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-94-897-M)

O. Clifton Gooding (Joel C. Hall with him on the brief) of Gooding Muliniz &
Hardin, P.C., Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Robert D. Looney, Jr. of Looney, Nichols & Johnson, Oklahoma City, Oklahoma,
for Defendant-Appellant.

Before BRORBY, McWILLIAMS and KELLY, Circuit Judges.

BRORBY, Circuit Judge.
The central issue in this negligence diversity action is whether the doctrine
of res ipsa loquitur under Oklahoma law applies. Koch Gathering Systems, Inc.

("Koch"), the defendant-appellant, appeals from an adverse jury verdict and

judgment denying Koch's Motion for Judgment as a Matter of Law and Motion for

a New Trial. Koch's principal contention is the district court erred as a matter of

law by submitting the case to the jury with a res ipsa loquitur instruction. This

court exercises jurisdiction pursuant to 28 U.S.C. § 1291. We reverse.

BACKGROUND

On the afternoon of June 29, 1993, as Mr. Sterling Wheeler was cutting

wheat with his combine on a field located in Logan County, Oklahoma, for Mr.

Nolan Sheihing, a farmer, the right front tire of his combine became stuck. Mr.

Scheihing pulled the combine backwards out of the soil using a tractor. Mr.

Wheeler then drove his combine forward back into the "hole" where it became

stuck again. The combine was pulled out a second time. As a result of these

events, Mr. Wheeler's combine was damaged.

Mr. Wheeler's accident occurred partly over a pipeline right of way owned

by Koch. Within the right of way, Koch owned and maintained a three-inch

pipeline constructed by Farrar Construction, Inc. ("Farrar") in 1991. The refilled

pipeline trench was between four to five feet deep and thirty inches wide.

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 Koch was obligated under its right of way agreement with the owners of

Mr. Scheihing's leased field to "bury all pipe to a sufficient depth so as not to

interfere with ordinary cultivation of soil." In addition, Koch was granted the

right of way for the purposes of "maintaining, inspecting [and] repairing" the

pipeline. Since 1991, Koch has inspected the pipeline trench by aerial patrol

every seven to ten days. In 1991, Koch and Farrar entered into an Intermittent

Services Agreement which specified duties owed by Farrar to Koch during and

after the construction of the pipeline.

Mr. Wheeler brought a negligence action against Koch and Farrar for

damages to his combine and for future lost profits, in the United States District

Court For the Western District of Oklahoma. Mr. Wheeler claimed the ground

over the pipeline collapsed causing his combine to go into the hole. Koch and

Farrar contended it was a coincidence Mr. Wheeler's combine became stuck in

mud near the pipeline, and Mr. Wheeler damaged his combine by purposefully

driving the combine into the mud a second time.

At trial, Mr. Wheeler testified the field where the accident occurred looked

normal. Mr. Wheeler stated he had no problems in the field, including over the

pipeline, other than the spot where his combine became stuck on the day of his

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accident. He claimed his combine was most likely damaged by running his

combine into the soil the first time. Mr. Sheihing testified the manner in which

his combine became stuck with one tire in the soil was unusual.

Several witnesses testified Logan County experienced heavy rainfall during

the spring of 1993 causing flooding and muddy conditions in nearby properties

and in the southern part of Mr. Scheihing's property. During this time, it was not

unusual to hear reports of combines getting stuck in mud in the surrounding area.

Mr. Leo Rother, a farmer in Logan County, testified one of Mr. Wheeler's

combines became stuck in the mud in his field located three to four miles from

Mr. Sheihing's field near the time of Mr. Wheeler's accident. Mr. Wheeler

testified the distance was six or seven miles from Mr. Sheihing's field.

Mr. Scheihing testified he crossed the property over Koch's pipeline many

times with heavy equipment without incident prior to and after Mr. Wheeler's

accident. In the fall of 1992, 1993, and 1994, he plowed the soil over the pipeline

using a heavy tractor with a disk and chisel disturbing the soil at a depth of six to

eight inches.

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 Mr. Sheihing testified Mr. Wheeler's combine tire sank two to three feet in

the soil. Mr. Wheeler testified his combine tire sank four to four and one-half

feet. The rut or scar in the soil created by Mr. Wheeler's tire was roughly three to

four feet wide. The ground in the tire rut was muddy. The combine tire was

muddy when pulled out.

Mr. Scheihing testified there was no wash-out, cavern or collapse of Koch's

pipeline trench underneath or near Mr. Wheeler's combine. The ground outside

and within the trench was affected identically by Mr. Wheeler's tire.

After the evidence was heard, the court instructed the jury on the doctrine

of res ipsa loquitur and negligence. The jury awarded Mr. Wheeler $48,000 in

damages after finding Mr. Wheeler 50% negligent, Koch 50% negligent, and

Farrar 0% negligent. Koch filed a Motion for Judgment as a Matter of Law or, in

the alternative, a Motion for New Trial.

In its motions, Koch contended (1) the uncontradicted evidence established

the doctrine of res ipsa loquitur did not apply; (2) no evidence was presented

which the jury could find Koch negligent; and (3) the uncontradicted evidence

established Mr. Wheeler was a licensee on Koch's right of way and therefore

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Koch breached no duty to Mr. Wheeler. Koch claimed the doctrine of res ipsa

loquitur did not apply because Mr. Wheeler failed to present sufficient evidence:

(1) the pipeline trench was under Koch's exclusive control; (2) the accident was

of a kind that did not ordinarily occur in the absence of negligence; and because

(3) the evidence conclusively established Mr. Wheeler caused and contributed to

his accident.

The district court denied Koch's motions for several reasons. First, relying

on Qualls v. United States Elevator Corp., 863 P.2d 457 (Okla. 1993), 1 the court

determined Koch had exclusive control of the pipeline and trench at the time of

Mr. Wheeler's accident as the result of Koch's obligations to maintain the pipeline

trench under its right of way agreement, and obligations under the Intermittent

1
In Qualls, the Oklahoma Supreme Court ruled an elevator company's
maintenance contract for an elevator causing Ms. Qualls' injury gave the elevator
company "exclusive control" for purposes of the res ipsa loquitur doctrine. Id. at
462-63. Specifically, the court stated "control may rest in one who assumes
responsibility for the fitness of an instrumentality for its intended use." Id. at
462.

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Services Agreement. 2 Second, the court concluded evidence 3 that Mr. Wheeler

presented sufficiently proved the accident was not of a type that ordinarily occurs

absent negligence. Id. Third, the court decided the fact Mr. Wheeler may have

contributed to his injury did not bar a res ipsa loquitur instruction. Id. The court

reasoned the jury may have found "Koch's negligence was the sole cause of this

initial collapse" and "[Mr.] Wheeler was negligent for driving his combine

through the hole the second time." Lastly, the court concluded despite no direct

evidence of Koch's negligence, the jury may have inferred negligence on Koch's

part. In addition, in concluding the jury could have inferred negligence, the court

relied on Shell Pipe Line Corp. v. Freeman, 62 P.2d 1177 (Okla. 1936), where the

Oklahoma Supreme Court held negligence could properly be inferred when the

soil in a pipeline trench erodes more readily than the adjoining soil. The court

rejected Koch's claim the jury should have been instructed of Mr. Wheeler's status

as a licensee because Koch failed to timely request the instruction and the court

2
The district court construed Farrar's duties owed to Koch in the
Intermittent Services Agreement to protect the property and persons of others
"from loss, damage or injury of any type" and "not to interfere with the operations
of others on the premises," as expressing Koch's duties owed to third persons.

3
The district court relied on Mr. Wheeler's evidence indicating the field
had no abnormal appearance; no portion of the field collapsed prior to the
accident; the soil only collapsed where the pipeline was buried; and the collapse
was not attributable to Mr. Wheeler's acts.

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construed Koch's right of way agreement and the Intermittent Services Agreement

as providing specific duties Koch owed to Mr. Wheeler.

On appeal, Koch makes essentially the same arguments made to the district

court. Koch claims the court erred by: (1) instructing the jury on the doctrine of

res ipsa loquitur; (2) failing to include in its res ipsa loquitur instruction the

element the accident was not due to any action or contribution by the plaintiff and

using words in its instruction contrary to the evidence presented; (3) denying

judgment as a matter of law to Koch based on the theory res ipsa loquitur does

not apply and no independent evidence of negligence was presented; and (4)

failing to instruct the jury Mr. Wheeler is a licensee, and the duties owed by Koch

to a licensee. Because we dispose of this appeal on the first and third issues, we

do not address the remaining issues.

RES IPSA LOQUITUR

Koch contends the district court erred in allowing a res ipsa loquitur

instruction go to the jury because: (1) Koch did not have exclusive control of the

pipeline trench; (2) the accident was not of a kind which does not ordinarily occur

absent negligence; and (3) Mr. Wheeler contributed to his injury. "In a diversity

case, the substance of a jury instruction is a matter of state law, but the grant or

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denial of a tendered instruction is governed by federal law." Wolfgang v. Mid-

America Motorsports, Inc., 111 F.3d 1515, 1525 (10th Cir. 1997). We review de

novo whether the jury was properly instructed on the res ipsa loquitur doctrine

under Oklahoma law. Id. at 1526 ("The ultimate question of whether the jury was

properly instructed is a question of law we review de novo."); Qualls, 863 P.2d at

460 ("Whether a case is fit for the application of res ipsa loquitur presents a

question of law; it is a judicial function to determine if a certain set of

circumstances permits a given inference."). We review the district court's

decision to give a particular jury instruction for abuse of discretion. Wolfgang,

111 F.3d at 1525. "In assessing whether the court properly exercised that

discretion, we must examine the instructions as a whole to determine whether they

sufficiently cover the issues, facts and evidence in the case." Id. at 1526.

Under Oklahoma law, the doctrine of res ipsa loquitur "is a pattern of proof

which may be applied to an injury that does not occur in the usual course of

everyday conduct unless a person who controls the instrumentality likely to

produce injury fails to exercise due care to prevent its occurrence." Qualls, 863

P.2d at 460. The doctrine "permits a plaintiff to make a prima facie case of

negligence by allowing the trier of facts to infer negligence, from facts

established by competent evidence, on the theory that the injury complained of

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would not have occurred in the absence of negligence on the part of the

defendant." Avard v. Leming, 889 P.2d 262, 264 (Okla. 1994) (citing St. John's

Hosp. & Sch. of Nursing, Inc. v. Chapman, 434 P.2d 160, 166 (Okla. 1967)). Res

ipsa loquitur allows negligence to be inferred without the aid of circumstances

pointing to the responsible cause. Qualls, 863 P.2d at 460.

To permit the jury to infer negligence using a res ipsa loquitur jury

instruction, the plaintiff must first sufficiently prove certain foundational facts to

the court. Federal Ins. Co. v. United States, 538 F.2d 300, 301-02 (10th Cir.

1976) (applying Oklahoma law). Namely, the plaintiff must prove: (1) the

defendant had exclusive control of the instrumentality causing the plaintiff's

injury; and (2) the injury is of a kind which ordinarily does not occur absent

negligence. 4 Qualls, 863 P.2d at 460; Avard, 889 P.2d at 264. In addition, the

court considers whether evidence of the explanation of the accident is more

4
Koch also contends the trial court erred in failing to include in its jury
instruction a third element traditionally associated with the res ipsa loquitur
doctrine, the plaintiff cannot have caused or contributed to his injury. Recent
Oklahoma cases and the Oklahoma Uniform Jury Instructions 9.13 do not discuss
this element, although prior Oklahoma case law recognized it. Compare Collins
v. N-Ren Corp., 604 F.2d 659, 661 (10th Cir. 1979) (applying Oklahoma law);
OUJI-CIV 2d. 9.13 (Rev. 6/96), with Qualls, 863 P.2d at 460, and Jackson v.
Oklahoma Memorial Hosp., 909 P.2d 765, 770, n.17 (Okla. 1995). We express no
view. Because we dispose of Koch's appeal on other grounds, we need not decide
this issue.

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accessible to the defendant than to the plaintiff. Jackson, 909 P.2d at 770 n.17.

The court then determines whether the evidence is sufficient to permit an

inference of negligence before submitting the case to the jury with a res ipsa

loquitur instruction. Avard, 889 P.2d at 264.

Koch claims Mr. Wheeler did not establish a prima facie case of negligence

under the res ipsa loquitur doctrine because Mr. Wheeler failed to prove Koch

had exclusive control of the pipeline trench and Mr. Wheeler's accident was so

unusual at the time, it could only have occurred if Koch was negligent. We agree.

(a) Exclusive Control

Although we recognize under Oklahoma law, "[e]xclusive control ... is a

flexible concept," Qualls, 863 P.2d at 462, we would stretch the concept too far

by concluding Koch had exclusive control. The purpose of the exclusive control

requirement is provide a rational basis for concluding the "defendant's negligence

probably caused the accident." Id. The requirement "does no more than

eliminate, within reason, all explanations for the injurious event other than the

defendant's negligence." Id. Under Oklahoma law,

[w]hether a defendant at the critical point in contest had "exclusive
control" of an instrumentality in the res ipsa loquitur sense often
constitutes a mixed question of law and fact. At the threshold the
issue is one of law for the judge. It calls for the trial court to decide

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 whether the evidence may lead reasonable persons to reach different
conclusions. If the proof is not so overwhelmingly one-sided as to
make the control element a matter of law, the question must go to the
jury. Where there is any competent evidence to support the verdict,
the judgment will be affirmed unless otherwise shown to be contrary
to the law.

Id. at 461 (citations omitted).

In this case, we find the evidence sufficiently one-sided to rule as a matter

of law Koch did not have exclusive control of the instrumentality 5 causing Mr.

Wheeler's injury. The soil in Koch's pipeline trench was not under its exclusive

control because for twenty months the soil was subject to disturbance outside of

Koch's control by Mr. Scheihing's farming equipment, natural conditions, such as

heavy rainfall, and Mr. Wheeler's combine on the day of the accident. Thus, Mr.

Wheeler has not sufficiently eliminated, within reason, other probable causes of

5
Mr. Wheeler contends the instrumentality causing his harm was the
pipeline and pipeline trench. Logically, Mr. Wheeler must mean the soil in and
over the pipeline trench since the pipeline itself did not cause the combine's
damage, nor do the facts indicate the trench itself as opposed to the soil in and
over the trench, was the cause of Mr. Wheeler's accident. The facts in the record
indicate the trench did not collapse and the soil within the trench and outside the
trench were equally affected. We disagree with Mr. Wheeler's assertion the
instrumentality responsible for his harm was the pipeline and trench.
Consequently, we analyze Mr. Wheeler's claim regarding the soil in and over
Koch's trench as the instrumentality Mr. Wheeler claims caused his injury.

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his accident than Koch's negligence for us to conclude an Oklahoma court would

consider a res ipsa loquitur instruction proper.

Control is not exclusive for purposes of the res ipsa loquitur doctrine

where the proof does not reasonably eliminate the activities of a third party or

condition having access to the instrumentality, which could alternatively be a

probable cause of the plaintiff's accident. Avard, 889 P.2d at 265 (finding no

exclusive control of a sliver of glass on living room floor because the owners of

the home were not aware the glass was present and glass was located in high

traffic area); Seay v. General Elevator Co., 522 P.2d 1022, 1027 (Okla. 1974)

(holding elevator maintenance company did not have exclusive control over

elevator doors since plaintiff and others operated them and plaintiff knew she

could have placed hand in doorway to stop doors from closing); Michel v.

Branham, 327 P.2d 440, 443 (Okla. 1958) (finding no exclusive control where

plaintiff failed to show soda bottle injuring her was in the same condition as when

it left defendant's hands); Marathon Oil Co. v. Sterner, 632 S.W.2d 571 (Tex.

1982) (finding no exclusive control of a gas tank which allegedly leaked gas

causing plaintiff's's injury since tank was cleaned and repaired by plaintiff's

employer even though defendant had a duty to maintain the tank). Logically, the

greater interference with an instrumentality by other people or conditions outside

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the defendant's control, the greater probability the plaintiff's accident can be

explained by other reasons than the defendant's negligence. See W. Page Keaton

et al., Prosser & Keaton on the Law of Torts, § 39, at 248-49 (5th ed. 1984).

Applying this reasoning, we are unable to conclude an Oklahoma court

would find Koch had exclusive control of the soil over and in its pipeline trench.

Too many other disturbances to the soil that could have been equal as probable

explanations for Mr. Wheeler's accident may have deprived Koch of exclusive

control. For example, we find it compelling Mr. Scheihing had crossed the

pipeline trench with heavy equipment on many occasions for twenty months prior

to Mr. Wheeler's accident. Mr. Wheeler had even crossed the pipeline trench

several times with his combine prior to and on the day of his accident. We also

find significant, combines in the area were getting stuck in the mud due to the

heavy rainfall during the period of Mr. Wheeler's accident. The ground was

muddy underneath the tire. Mr. Wheeler admitted although top soil may look dry,

subsoil can be muddy. Also important to our conclusion is the ground over the

pipeline trench did not wash out or collapse. For these reasons, without

explanation by Mr. Wheeler, we cannot conclude Koch had exclusive control of

the soil in and over its pipeline trench such that the more probable reason for Mr.

Wheeler's accident was negligence on Koch's part.

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 We disagree with the district court's reliance on Qualls in concluding Koch

had exclusive control through its obligations to maintain its pipeline easement. In

Qualls, Ms. Qualls was injured when the elevator she was riding descended

abruptly. Qualls, 863 P.2d at 458. She brought a negligence action against the

elevator maintenance company which undertook maintenance and service duties

on the elevator, and the hospital where the elevator was located. Id. at 458-59.

After being instructed on res ipsa loquitur, the jury awarded Ms. Qualls damages

against the elevator maintenance company. Id. at 459.

The elevator maintenance company appealed the jury verdict, contending

Ms. Qualls failed to prove exclusive control. Id. The Oklahoma Court of

Appeals agreed and reversed. Id. However, the Oklahoma Supreme Court

reversed holding, "control may rest in one who assumes responsibility for the

fitness of an instrumentality for its intended use." Id. at 462. Therefore, the

court found the elevator maintenance company's assumption of responsibility to

maintain the elevator sufficient to give to the jury the question of whether the

company had exclusive control. Id. at 463.

In its reasoning, the court recognized that among the earliest negligence

plaintiffs using res ipsa loquitur were passengers injured in public transportation

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conveyances in which the appliance they were riding "remained under the

defendant's management, in a course of unexplained events that, according to

human experience, do not ordinarily happen if due care is exercised." Id. at 460.

Furthermore, the court noted an automatic elevator's sudden descent may raise a

rebuttable inference of negligence under the res ipsa loquitur instruction if the

occurrence was due to a mechanism's failure which would not ordinarily happen if

due care was exercised. Id. The court recognized "[e]levator mechanisms are

hidden from view, and since they consist of mechanical, electrical, and

sophisticated electronic systems, they are at any rate not easily capable of

manifesting a defect." Id.

We find Qualls distinguishable from the present case for several reasons.

First, unlike the elevator in Qualls, the instrumentality in this case is soil in and

over a pipeline trench plainly subject to inteference by forces outside of Koch's

control. In comparison to Qualls, where the elevator machinery was hidden from

view of others, soil in and over a pipeline trench in a wheat field is affected by

natural conditions such as heavy rainfall, animals, or large tractors and

equipment. For example, Mr. Sheihing crossed the soil on many occasions and at

times plowed the soil at a depth of six to eight inches over the pipeline prior to

Mr. Wheeler's accident. The distinct difference between elevator machinery

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hidden from view of passengers or others, and soil in a pipeline trench outside

subject to interference by others and natural conditions distinguishes Qualls from

this case.

Second, although Koch undertook responsibilities to maintain the pipeline

trench in its right of way agreement, the maintenance agreement alone does not

give Koch exclusive control. In Qualls, the court found the daily use by

passengers and the hospital staff's duty to report any malfunction did not divest

the elevator exclusive control under its maintenance contract as a matter of law.

Qualls, 863 P.2d at 461. The court suggested the passengers and hospital staff

were completely dependent on the elevator company for the elevator's safe

operation because from the location of the elevator machinery, they could not

have discovered any defects. Id. at 463. In comparison to Qualls, although Koch

had an obligation to maintain the soil in the pipeline trench, too many other

disturbances to the soil could divest Koch of exclusive control, such as Mr.

Scheihing's equipment, Mr. Wheeler's combine and natural conditions. For these

reasons, we conclude Mr. Wheeler failed to prove Koch had exclusive control as a

matter of law.

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 (b) Occurrence Absent Negligence

Mr. Wheeler also failed to establish his injury was of a type which

ordinarily does not occur absent negligence. Another essential element the

plaintiff must establish to invoke the doctrine of res ipsa loquitur is the incident

was such an unusual occurrence, it is without explanation except the defendant

must have been negligent. Avard, 889 P.2d at 266. Oklahoma law recognizes

"res ipsa loquitur cannot be applied 'where, after proof of the occurrence, without

more, the matter still rests on conjecture, or is reasonably attributable to some

cause other than negligence.'" Id. (quoting National Union Fire Ins. Co. v.

Elliott, 298 P.2d 448, 451 (Okla. 1956)). "[T]he fact that an accident has

occurred under mysterious or unexplained circumstances provide[s] no basis for

applying res ipsa loquitur." Id. at 265 (citing Elliott, 298 P.2d at 451.)

At trial, several witnesses testified combines in the surrounding area

became stuck in fields during the period of Mr. Wheeler's accident. Even one of

Mr. Wheeler's combines became stuck in a field located three to four miles from

where Mr. Wheeler's accident occurred a few days prior to his accident. These

facts conflict with a finding Mr. Wheeler's accident was unusual.

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 Although Mr. Sheihing testified the manner in which Mr. Wheeler's

combine sat with one wheel stuck was unusual, the testimony did not establish it

was so unusual, without explanation, that the only reasonable conclusion was the

accident occurred due to Koch's negligence. Compare Furr v. McGrath, 340 P.2d

243, 250-51 (Okla. 1959) (finding plaintiff established car jack could not have

disengaged absent defendant's negligence sufficient for permitting a res ipsa

loquitur instruction), with Avard, 889 P.2d at 266 (concluding res ipsa loquitur

instruction not proper no evidence offered to find sliver of glass could have only

come in defendant's living room through their negligence) and Cosden, 211 P.2d

at 529 (denying res ipsa loquitur instruction because evidence was insufficient to

find accident would not have occurred absent defendant's negligence). Evidence

indicated the soil over Koch's pipeline trench and outside of the trench was

equally affected by Mr. Wheeler's tire. No evidence indicated the accident was

caused by a wash-out or collapse of the Koch's pipeline trench. Due to rainfall

and muddy conditions, combines in the area were getting stuck during the period

of Mr. Wheeler's accident. Based on these facts, we conclude Mr. Wheeler's

accident does not appear so unusual that it only be attributable to negligence on

Koch's part. The two central foundation facts of res ipsa loquitur were not

satisfied under Oklahoma law. Therefore, we conclude the district court abused

its discretion in permitting a res ipsa loquitur instruction. We now review Koch's

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claim it is entitled to judgment as a matter of law since no independent evidence

of negligence was offered and res ipsa loquitur does not apply.

NEGLIGENCE

Koch contends the district court erred in denying its motion for judgment as

a matter of law. We review a district court's denial of a motion for judgment as a

matter of law de novo applying the same standard as the district court. Mason v.

Oklahoma Turnpike Auth., 115 F.3d 1442, 1450 (10th Cir. 1997). Viewing the

evidence in light most favorable to the non-moving party, we may only overturn

the denial if the "evidence points but one way, and is susceptible to no reasonable

inferences supporting the party opposing the motion." Id. As a diversity case,

Oklahoma law governs the analysis of Koch's underlying claims, but federal law

controls the procedural question whether judgment as a matter of law is

appropriate. Wolfgang, 111 F.3d at 1522.

Koch contends it is entitled to judgment as a matter of law because no

independent evidence of Koch's negligence was presented and the doctrine of res

ipsa loquitur does not apply. We agree. Construing the evidence in light most

favorable to Mr. Wheeler, we conclude Koch is entitled to judgment as a matter

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of law because res ipsa loquitur cannot apply and no independent evidence of

negligence was offered to establish negligence on Koch's part. 6

"'[I]n a res ipsa case the ultimate fact, [s]ome kind of negligence is inferred

without any evidential facts except the unusual occurrence itself; [w]hile in a

specific negligence case there must be evidential facts sufficient to show some

negligent acts or omissions which were the proximate cause of the occurrence.'"

Flick v. Crouch, 555 P.2d 1274, 1277 (Okla. 1976) (quoting Harke v. Haase, 75

S.W.2d 1001, 1110 (Mo. 1934)). No evidence was presented indicating Koch was

negligent. The evidence presented at trial indicated the soil over Koch's pipeline

trench did not wash-out or collapse. In addition, the evidence showed the soil in

and over the pipeline trench and outside of the pipeline trench was equally

affected by Mr. Wheeler's combine tire. "[A] prima facie case for negligence is

made where the circumstances are such as to remove the case from the realm of

conjecture and place it within the sphere of legitimate and rational inference."

Delbrel v. Doenges Bros. Ford, Inc., 913 P.2d 1318, 1320 (Okla. 1996). From the

facts in this case, we cannot conclude the case is removed from conjecture.

6
Under Oklahoma law, three evidentiary elements are essential to a prima
facie case of negligence: (1) a duty owed by the defendant to protect the plaintiff
from injury; (2) a failure properly to exercise or perform that duty; and (3) the
plaintiff's injuries proximately caused by the defendant's breach. Jackson v.
Jones, 907 P.2d 1067, 1071-72 (Okla. 1995).

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 To explain other grounds the jury could have used to infer Koch negligent,

the district court relied on Shell Pipe Line Corp. v. Freeman, 62 P.2d 1177 (Okla.

1936), a case where the Oklahoma Supreme Court held negligence could be

inferred when the soil in a pipeline trench eroded more readily than the adjoining

soil. However, the district court's reliance on this case is misplaced because the

evidence showed the soil in Koch's pipeline trench was equally affected as the

adjoining soil from Mr. Wheeler's combine. The facts do not indicate the soil in

the Koch's pipeline trench eroded more readily than the adjoining soil. We

therefore conclude the trial court erred in permitting the jury to infer negligence.

Consequently, without the res ipsa loquitur doctrine applying in this case and

without any independent evidence of negligence on Koch's part, and viewing the

evidence in light most favorable to Mr. Wheeler, we conclude there is no

evidentiary basis for a reasonable jury to find Koch was negligent. Therefore

Koch is entitled to judgment as a matter of law.

CONCLUSION

For the foregoing reasons, we REVERSE and REMAND to enter judgment

for Koch as a matter of law.

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