James P. Entrekin v. Coastal Spray Company and Texas-New Mexico Power Company--Appeal from 10th District Court of Galveston County

IN THE

TENTH COURT OF APPEALS

No. 10-98-163-CV

JAMES P. ENTREKIN,

Appellant

v.

COASTAL SPRAY COMPANY

AND TEXAS-NEW MEXICO

POWER COMPANY,

Appellees

From the 10th District Court

Galveston County, Texas

Trial Court # 92CV0953

O P I N I O N

James P. Entrekin sued Coastal Spray Company ( Coastal ) and Texas-New Mexico Power Company ( Texas-New Mexico ) for damages to his Arabian horses allegedly caused by Coastal s application of herbicides to trees in a utility easement owned by Texas-New Mexico which crosses Entrekin s property. Entrekin s petition seeks recovery from Coastal on theories of general negligence, gross negligence, negligence per se, strict liability for ultrahazardous activity, nuisance, and trespass. It alleges that Texas-New Mexico is liable for Coastal s conduct because the application of herbicides is an inherently dangerous activity, because it poses a peculiar risk of harm, and under theories of negligent supervision and negligent hiring. It also contends that Texas-New Mexico is directly liable to him because of the duty it owes him as an easement holder and because it too is guilty of negligence per se.

The court granted Texas-New Mexico a directed verdict on all of Entrekin s claims and granted Coastal a directed verdict on all of his claims except trespass and negligence. A jury found that the herbicides did drift from the utility right-of-way onto Entrekin s property but failed to find that Coastal s negligence, if any, was a proximate cause of this drift. Entrekin claims in four issues that the court erred in granting directed verdicts in favor of Coastal and Texas-New Mexico (three // issues) and by overruling his motion for new trial (single issue).

BACKGROUND

Entrekin breeds and raises Arabian horses. Texas-New Mexico owns a utility easement which crosses Entrekin s property. Texas-New Mexico hired Coastal to spray herbicides on the right-of-way to eradicate tallow trees which were interfering with Texas-New Mexico s power lines. Coastal entered Entrekin s property and sprayed the herbicides Rodeo (commonly known as Roundup) and Garlon 3A on vegetation in the right-of-way. Coastal also utilized a surfactant Timberland-90 and a drift control agent Poly Control 2.

Entrekin later discovered that his fence had been cut and someone had entered his property. He testified that he observed dead vegetation on a significant portion of his property both in and adjacent to Texas-New Mexico s right-of-way. He filed a complaint with the Department of Agriculture alleging that the herbicides had drifted onto his property. An inspector with the Department investigated Entrekin s complaint and found no evidence that the herbicides had drifted beyond the right-of-way. Entrekin then filed suit claiming that his horses exposure to the alleged herbicide drift had resulted in a depreciation in fair market value of his horses, the deaths of several foals, and the loss of production from the exposed mares.

In deposition testimony, Entrekin listed 120 symptoms his horses allegedly exhibited as a result of this exposure. However, his veterinarian never saw any of these alleged symptoms, nor did Entrekin ever ask him to treat any of the horses for the alleged symptoms. The veterinarian did treat three of the horses for an irritation of their mucous membranes two months after Coastal applied the herbicides. At that time, the veterinarian could not pinpoint a cause for this irritation. He treated the horses with antibiotics and never heard anything further from Entrekin about the matter.

At trial, Entrekin s veterinarian gave his personal opinion that the inflammation of the three horses mucosal membranes was caused by the herbicides. He conceded however that he is not a toxicologist and has no way to prove this opinion. He could not state an opinion based on a reasonable degree of scientific certainty that the symptoms described by Entrekin would be caused by exposure to the herbicides used by Coastal.

Entrekin also alleges that two foals died from liver damage after being exposed to the herbicides. Entrekin proffered no evidence connecting the deaths of these foals to the herbicide. Texas-New Mexico s counsel elicited testimony from him on cross-examination that he had testified in a previous lawsuit that one of these foals died because its mother had broken through a fence after being startled by a low-flying crop duster. A necropsy performed on the other foal revealed the cause of death to be peracute bacterial pneumonia.

Entrekin finally alleges that he suffered damages because his mares produced less foals than expected after being exposed to the herbicides. He testified that the mares delivered six foals in 1989, seven in 1990, and four or five in 1991. He testified that his mares delivered only two poor-quality foals in 1992, no foals from 1993 to 1995, and five foals with deformities in 1996. // Entrekin proffered no testimony to establish that any alleged reduction in his mares productivity was caused by the herbicide. On cross-examination, Texas-New Mexico s counsel elicited testimony from Entrekin that his own records show only three foals born in 1989 and two in 1990.

Coastal Spray presented the testimony of a veterinary toxicologist who opined that the herbicides in question are extremely safe to use around horses. The toxicologist testified that the herbicides, at the concentration applied, could not have caused any damages to Entrekin s horses. He reviewed the necropsy report on the foal who died of pneumonia and concluded that the foal did not suffer from any liver damage as alleged by Entrekin. He testified that this foal could not have contracted pneumonia from the herbicides unless he had directly drunk or inhaled them, which could not have happened because the foal was born seven months after Coastal applied the herbicides. The toxicologist concluded that none of the 120 symptoms alleged by Entrekin in his deposition testimony or the mucosal inflammations observed in three of his horses could have been caused by the herbicides.

On cross-examination, the toxicologist agreed that the ingestion of a concentrated quantity of Poly Control 2 could cause the mucosal inflammations observed in these three horses. On re-direct, he again asserted that the herbicides as administered could not have caused the symptoms alleged.

PROPRIETY OF DIRECTED VERDICTS

Entrekin s first issue challenges the directed verdict granted in favor of Texas-New Mexico on all his claims. His second issue complains of the directed verdict granted Coastal on all his claims except negligence and trespass. In his third issue, he generally alleges that the court erred by taking the case from the jury on all his claims against Texas-New Mexico and on his claim of nuisance against Coastal.

When we review the granting of a directed verdict, we examine the record for any probative evidence which raises a fact issue on the question presented. Szczepanik v. First So. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994); Polley v. Odom, 957 S.W.2d 932, 943 (Tex. App. Waco 1997, no pet.). We review the evidence in a light most favorable to the party against whom the verdict was instructed, disregarding all contrary evidence and inferences. Id. If the record contains conflicting evidence of a probative nature on the question presented, then the directed verdict was improper. White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex. 1983); Polley, 957 S.W.2d at 943.

One of the grounds asserted by both Texas-New Mexico and Coastal to support their motions for directed verdicts was that Entrekin failed to prove that Coastal s application of herbicides caused any harm to his horses. As a general proposition, a tort plaintiff must establish that his damages were caused by the defendant s conduct. Purina Mills, Inc. v. Odell, 948 S.W.2d 927, 935 (Tex. App. Texarkana 1997, pet. denied); Wheaton Van Lines, Inc. v. Mason, 925 S.W.2d 722, 728 (Tex. App. Fort Worth 1996, writ denied).

This Court has recently discussed the evidence required to establish such a causal nexus in the context of a personal injury case. See Blankenship v. Mirick, 984 S.W.2d 771, 775 (Tex. App. Waco 1999, pet. denied). We said:

The term reasonable medical probability relates to the question of whether competent evidence on the issue of causation has been shown and not to the standard by which an expert witness must testify. Reasonable probability is determined by the substance and context of [an expert's] opinion, and does not turn on semantics or on the use of a particular term or phrase. Without more than proof of mere possibilities however, the evidence will not support the submission of an issue to the jury.

Id. (citations omitted). Similar principles apply to Entrekin s case. See Tarrant County v. English, 989 S.W.2d 368, 376 (Tex. App. Fort Worth 1998, pet. denied); Purina Mills, 948 S.W.2d at 935-36. Thus, to show causation Entrekin must establish a reasonable probability that his horses were harmed by Coastal s application of the herbicides. // See English, 989 S.W.2d at 376; Blankenship, 984 S.W.2d at 775; Purina Mills, 948 S.W.2d at 936.

Entrekin s veterinarian testified that he could not pinpoint a cause for the mucosal inflammations he treated in three of Entrekin s mares. He later gave his personal opinion that they were caused by exposure to the herbicides. He added however, I m not a toxicologist, and I can t prove it. He also testified that he cannot state with any reasonable degree of scientific certainty that any of the symptoms complained of by Entrekin were caused by exposure to the herbicides.

At best, this testimony establishes a possible causal relationship between any damages to Entrekin s horses and their exposure to the herbicides applied by Coastal. However, proof of mere possibilities will not support the submission of an issue to the jury. Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988); Blankenship, 984 S.W.2d at 775; accord Purina Mills, 948 S.W.2d at 936. Because Entrekin failed to proffer any competent evidence of causation, the court did not err by granting directed verdicts in favor of Texas-New Mexico and Coastal on any of the theories alleged. See Szczepanik, 883 S.W.2d at 649; Polley, 957 S.W.2d at 943. Accordingly, we overrule Entrekin s first three issues.

DENIAL OF NEW TRIAL

Entrekin contends in his fourth issue that the court abused its discretion by overruling his motion for new trial because the evidence establishes Coastal s liability as a matter of law, the jury s failure to find that Coastal proximately caused him damages is contrary to the great weight and preponderance of the evidence, and in either event Texas-New Mexico is liable to him because it owes him a non-delegable duty to not permit independent contractors to damage his property.

We generally review a court s denial of a motion for new trial for an abuse of discretion. Campbell v. Salazar, 960 S.W.2d 719, 725 (Tex. App. El Paso 1997, pet. denied); Purina Mills, 948 S.W.2d at 931-32. The precise scope of our review depends on the issues preserved by the motion. Campbell, 960 S.W.2d at 725; Mandell v. Hamman Oil & Refining Co., 822 S.W.2d 153, 158 (Tex. App. Houston [1st Dist.] 1991, writ denied).

The sole complaint asserted by Entrekin in his motion for new trial is that the court erred by conditioning the damages question on only an affirmative finding of negligence. Entrekin argued that the jury s finding that herbicides drifted onto his property constitutes a finding of trespass for which he was entitled to damages without reference to any negligence on the defendants part. See, e.g., Jamison v. National Loan Investors, 4 S.W.3d 465, 469 n.2 (Tex. App. Houston [1st Dist.] 1999, pet. denied).

Entrekin s complaint on appeal regarding the court s ruling on his motion for new trial does not correspond to the sole ground preserved in the motion. Accordingly, he has not properly preserved the complaint for our review. See In re T.R.S., 931 S.W.2d 756, 758 (Tex. App. Waco 1996, no writ); Holland v. Hayden, 901 S.W.2d 763, 765 (Tex. App. Houston [14th Dist.] 1995, writ denied); see also Campbell, 960 S.W.2d at 725; Mandell, 822 S.W.2d at 158. Thus, we overrule his fourth issue.

We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis

Justice Vance and

Justice Gray

Affirmed

Opinion delivered and filed August 16, 2000

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