EDMONDS, J.
Plaintiffs brought this negligence action for property-damage caused by a flow of sewage into their home. They appeal a judgment on a jury verdict for defendant. We reverse.
Plaintiffs’ home is served by defendant’s sewer system. Defendant’s sanitation department received a call about a plugged sewer line at a nearby country club. It unplugged the line with a high-pressure water hose. Within an hour, sewage began pouring out of plaintiffs’ toilets, shower drains and sinks. The sewage continued to flow until defendant removed a blockage from the sewer line just past plaintiffs’ home. By that time, there were approximately two inches of sewage in the home. The cost of clean up and repairs amounted to over $19,000.
Plaintiffs made several specific allegations of negligence against defendant. Two were submitted to the jury:
“2) It failed to properly clean obstructions from [the] sewer line;
“3) It improperly attempted to remove an obstruction in the sewer line by means of a high pressure hose causing a surge to go through the line and into the plaintiffs’ home[.]”
They also alleged:
“4) The unplugging operation being engaged in by [defendant’s] crew in the sewer lines, was an operation under the exclusive control of the defendant and its employees;
“That the overflow of sewage into the plaintiffs’ home as a result of unstopping the clogged sewer would not have happened in the absence of negligence on the part of the employees of [defendant].”
At the conclusion of the evidence, the court struck allegation 4 from the complaint, because “it just states a legal conclusion. It doesn’t allege facts.” The court instructed the jury:
“I did withdraw from your consideration certain claims made by the plaintiff. Those claims are out of the case for all purposes, and you should not concern yourself with why the court has withdrawn them.
<<* * * * *
[29]*29‘ ‘Your verdict in this case should be based only upon these instructions and the evidence which you did hear.”
The instructions defined “evidence” as “the testimony, oral testimony, the exhibits and any legal presumptions where they do apply.” However, the court declined to give an instruction on res ipsa loquitur, even though it concluded that the doctrine applied in the circumstances.1 The court informed counsel that it believed it sufficient if they were to argue the doctrine to the jury.
In McKee Electric Co. v. Carson Oil Co., 301 Or 339, 348, 723 P2d 288 (1986),2 the court said, concerning res ipsa loquitur:
“A plaintiff need only plead ultimate facts that, if true, show that an injury occurred in circumstances that more probably than not would not have occurred in the absence of negligence on the part of the defendant.”
We hold that allegation 4 suffices to allege a theory based on res ipsa loquitur when read with the other allegations in the complaint. Accordingly, the court erred when it struck the [30]*30allegation. However, because it allowed the parties to argue res ipsa loquitur to the jury, the question remains whether the error was prejudicial.
Plaintiffs argue that the trial court erred in not instructing on res ipsa loquitur for the same reason that it erred in striking allegation 4. They rely on Powell v. Moore, 228 Or 255, 269, 364 P2d 1094 (1961), in which the court said:
“[I]n Ritchie v. Thomas et al., 190 Or 95, 113, 224 P2d 543 (1950), a question was raised as to whether it is ever permissible to instruct the jury on res ipsa loquitur. In that case it was said:
“ * * Since the effect of the rule is merely to take the plaintiffs case to the jury, we see no more reason for requiring the court to comment on this type of circumstantial evidence than upon any other type. Whether it would be reversible error for a trial court to instruct on the inference which arises in this type of case is a matter which need not now be decided.’
“We believe that it is proper for the court to instruct the jury with respect to the permissibility of drawing the inference of defendant’s negligence from the facts of the occurrence in appropriate cases. It is true, as the quotation from the Ritchie case indicates, that res ipsa loquitur is simply a rule relating to a particular kind of circumstantial evidence. However, res ipsa permits the drawing of an inference which rests upon no specific causative circumstance in the case; and it is quite possible that without an instruction the jury would not realize that it is permissible to draw the inference of defendant’s negligence from the fact that in common experience the accident in question would not ordinarily occur in the absence of negligence on the part of the defendant. ‘[T]he jury cannot pass intelligently upon the question whether the inference of negligence should be drawn, unless, in language which it can understand, it receives an explanation of why the evidence would permit an inference of negligence, and why the jury may reject such inference if it sees fit.’ Foltis, Inc. v. City of New York, 287 NY 108, 124, 38 NE2d 455, 464, 153 ALR 1122 (1951).”
Defendant argues that the evidence does not support a res ipsa loquitur instruction and that, even if it does, it was not error to refuse to instruct on it, because to do so would have [31]*31put undue emphasis on circumstantial evidence and the inferences that can arise therefrom.
A res ipsa loquitur instruction is supported by evidence if a jury could reasonably find that the event was of a kind that does not occur in the absence of negligence and that it is more probable than not that the negligence of the defendant, and not of a third party, caused the injury of which the plaintiffs complain. Watzig v. Tobin, 292 Or 645, 650, 642 P2d 651 (1982). There was evidence that the flow of sewage into plaintiffs’ home occurred shortly after defendant completed its work on the country club sewer fine and while the line was under defendant’s control. Blanton, a civil engineer, hypothesized'that the sewer line must have had two obstructions: the one that defendant first removed and one closer to the club. In his opinion, after the first obstruction was removed and the pressure in the sewer line was released, a second obstruction and an estimated 1400 gallon head of water behind the obstruction began to move down the line. He believed that the second obstruction stopped and plugged the line just past plaintiffs’ home and that the head of water caused sewage to back up into their home.
Blanton also testified that the damage to plaintiffs’ home was not something that would have happened if the proper standard of care had been followed. He noted that defendant left the scene a couple minutes after the first obstruction was removed. He believed that, if defendant had waited a few minutes longer, it would have realized that the problem at the country club had not been remedied. Defendant then could have cleared the second obstruction and avoided the sequence of events that led to the flooding of plaintiffs’ home.
Free access — add to your briefcase to read the full text and ask questions with AI
EDMONDS, J.
Plaintiffs brought this negligence action for property-damage caused by a flow of sewage into their home. They appeal a judgment on a jury verdict for defendant. We reverse.
Plaintiffs’ home is served by defendant’s sewer system. Defendant’s sanitation department received a call about a plugged sewer line at a nearby country club. It unplugged the line with a high-pressure water hose. Within an hour, sewage began pouring out of plaintiffs’ toilets, shower drains and sinks. The sewage continued to flow until defendant removed a blockage from the sewer line just past plaintiffs’ home. By that time, there were approximately two inches of sewage in the home. The cost of clean up and repairs amounted to over $19,000.
Plaintiffs made several specific allegations of negligence against defendant. Two were submitted to the jury:
“2) It failed to properly clean obstructions from [the] sewer line;
“3) It improperly attempted to remove an obstruction in the sewer line by means of a high pressure hose causing a surge to go through the line and into the plaintiffs’ home[.]”
They also alleged:
“4) The unplugging operation being engaged in by [defendant’s] crew in the sewer lines, was an operation under the exclusive control of the defendant and its employees;
“That the overflow of sewage into the plaintiffs’ home as a result of unstopping the clogged sewer would not have happened in the absence of negligence on the part of the employees of [defendant].”
At the conclusion of the evidence, the court struck allegation 4 from the complaint, because “it just states a legal conclusion. It doesn’t allege facts.” The court instructed the jury:
“I did withdraw from your consideration certain claims made by the plaintiff. Those claims are out of the case for all purposes, and you should not concern yourself with why the court has withdrawn them.
<<* * * * *
[29]*29‘ ‘Your verdict in this case should be based only upon these instructions and the evidence which you did hear.”
The instructions defined “evidence” as “the testimony, oral testimony, the exhibits and any legal presumptions where they do apply.” However, the court declined to give an instruction on res ipsa loquitur, even though it concluded that the doctrine applied in the circumstances.1 The court informed counsel that it believed it sufficient if they were to argue the doctrine to the jury.
In McKee Electric Co. v. Carson Oil Co., 301 Or 339, 348, 723 P2d 288 (1986),2 the court said, concerning res ipsa loquitur:
“A plaintiff need only plead ultimate facts that, if true, show that an injury occurred in circumstances that more probably than not would not have occurred in the absence of negligence on the part of the defendant.”
We hold that allegation 4 suffices to allege a theory based on res ipsa loquitur when read with the other allegations in the complaint. Accordingly, the court erred when it struck the [30]*30allegation. However, because it allowed the parties to argue res ipsa loquitur to the jury, the question remains whether the error was prejudicial.
Plaintiffs argue that the trial court erred in not instructing on res ipsa loquitur for the same reason that it erred in striking allegation 4. They rely on Powell v. Moore, 228 Or 255, 269, 364 P2d 1094 (1961), in which the court said:
“[I]n Ritchie v. Thomas et al., 190 Or 95, 113, 224 P2d 543 (1950), a question was raised as to whether it is ever permissible to instruct the jury on res ipsa loquitur. In that case it was said:
“ * * Since the effect of the rule is merely to take the plaintiffs case to the jury, we see no more reason for requiring the court to comment on this type of circumstantial evidence than upon any other type. Whether it would be reversible error for a trial court to instruct on the inference which arises in this type of case is a matter which need not now be decided.’
“We believe that it is proper for the court to instruct the jury with respect to the permissibility of drawing the inference of defendant’s negligence from the facts of the occurrence in appropriate cases. It is true, as the quotation from the Ritchie case indicates, that res ipsa loquitur is simply a rule relating to a particular kind of circumstantial evidence. However, res ipsa permits the drawing of an inference which rests upon no specific causative circumstance in the case; and it is quite possible that without an instruction the jury would not realize that it is permissible to draw the inference of defendant’s negligence from the fact that in common experience the accident in question would not ordinarily occur in the absence of negligence on the part of the defendant. ‘[T]he jury cannot pass intelligently upon the question whether the inference of negligence should be drawn, unless, in language which it can understand, it receives an explanation of why the evidence would permit an inference of negligence, and why the jury may reject such inference if it sees fit.’ Foltis, Inc. v. City of New York, 287 NY 108, 124, 38 NE2d 455, 464, 153 ALR 1122 (1951).”
Defendant argues that the evidence does not support a res ipsa loquitur instruction and that, even if it does, it was not error to refuse to instruct on it, because to do so would have [31]*31put undue emphasis on circumstantial evidence and the inferences that can arise therefrom.
A res ipsa loquitur instruction is supported by evidence if a jury could reasonably find that the event was of a kind that does not occur in the absence of negligence and that it is more probable than not that the negligence of the defendant, and not of a third party, caused the injury of which the plaintiffs complain. Watzig v. Tobin, 292 Or 645, 650, 642 P2d 651 (1982). There was evidence that the flow of sewage into plaintiffs’ home occurred shortly after defendant completed its work on the country club sewer fine and while the line was under defendant’s control. Blanton, a civil engineer, hypothesized'that the sewer line must have had two obstructions: the one that defendant first removed and one closer to the club. In his opinion, after the first obstruction was removed and the pressure in the sewer line was released, a second obstruction and an estimated 1400 gallon head of water behind the obstruction began to move down the line. He believed that the second obstruction stopped and plugged the line just past plaintiffs’ home and that the head of water caused sewage to back up into their home.
Blanton also testified that the damage to plaintiffs’ home was not something that would have happened if the proper standard of care had been followed. He noted that defendant left the scene a couple minutes after the first obstruction was removed. He believed that, if defendant had waited a few minutes longer, it would have realized that the problem at the country club had not been remedied. Defendant then could have cleared the second obstruction and avoided the sequence of events that led to the flooding of plaintiffs’ home.
There is no cogent evidence that plaintiffs or any third party caused plaintiffs’ damage.3 See Jordan v. City of [32]*32Hillsboro, 48 Or App 839, 617 P2d 970 (1980), rev den 290 Or 449 (1981); Cummins v. City of West Linn, 21 Or App 643, 536 P2d 455 (1975). On cross-examination, one of defendant’s employees testified:
“Q Did what you saw [at a manhole near plaintiffs home] compare to what you saw when the release occurred up at the Country Club? Did anything additional wash past you at the [next] manhole?
! ‘A Well, I saw what I thought was either plastic or a diaper or something white and hair roots and stuff that’s in a lot of lines, you know, nothing that was unusual, whether it would have been the white plastic or whatever it was going by.” (Emphasis supplied.)
The day after the incident, another employee cleaned the sewer line down the street from plaintiffs’ home and found “[n]o thing, just real light debris, if anything.” That testimony was corroborated by an interoffice memorandum from the Public Works Supervisor, which said:
“The Black Oak Line [near plaintiffs’ home] was ran [sic] December 6th [the day after the incident], and only a minimal amount of roots were [sic] found. No significant blockage.”
Under the circumstances, the evidence supported a res ipsa loquitur instruction.
Because plaintiffs were entitled to have the jury consider res ipsa loquitur, as well as their specific allegations of negligence, the issue remains whether it was error for the trial court not to have instructed on it. It was relevant both on the issues of negligence and causation. It would allow the jury to draw an inference of negligence from the facts of the occurrence and from common experience that an incident of the nature alleged does not ordinarily occur in the absence of negligence. We hold that the court’s error in striking the allegation was prejudicial in the light of the combined effect of the withdrawal of allegation 4, the giving of an instruction that told the jury that the fact that damage occurred is not [33]*33evidence of negligence,4 the failure to give an instruction on res ipsa loquitur and the giving of an instruction that confined its deliberations to the instructions and the evidence.
Reversed and remanded.