## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 5 1997 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STERLING WHEELER, Plaintiff - Appellee, v. KOCH GATHERING SYSTEMS, INC., Defendant - Cross-Claimant - Appellant, FARRAR CONSTRUCTION INCORPORATED, an Oklahoma Corporation, Defendant - Cross-Defendant. No. 96-6289

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 br ief) of Gooding Muliniz & Hardin, P.C., Oklahoma City, Oklahoma, for Plaintif f-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 acti on is whether the doctrine-2-

of res ipsa loquiturunder Oklahoma law applies. Koch Gathering System s, 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 di strict court erred as a matter of law by submitting the case to the jury with a res ipsa loquiturinstruction. 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 h is combine became stuck. Mr. Scheihing pulled the combine backwards out of the s oil using a tractor. Mr. Wheeler then drove his combine forward back into th e "hole" where it became stuck again. The combine was pulled out a second t ime. As a result of these events, Mr. Wheeler's combine was damaged.

Mr. Wheeler's accident occurred partly over a pipel ine right of way owned by Koch. Within the right of way, Koch owned and m aintained 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.-3-

Koch was obligated under its right of way agreementwith the owners of Mr. Scheihing's leased field to "bury all pipe to asufficient depth so as not to interfere with ordinary cultivation of soil." In a ddition, Koch was granted the right of way for the purposes of "maintaining, insp ecting [and] repairing" the pipeline. Since 1991, Koch has inspected the pipel ine 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 F arrar to Koch during and after the construction of the pipeline.

Mr. Wheeler brought a negligence action against Koc h 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. Wh eeler 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 t he field, including over the pipeline, other than the spot where his combine bec ame stuck on the day of his-4-

accident. He claimed his combine was most likely d amaged 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 experience d heavy rainfall during the spring of 1993 causing flooding and muddy condi tions 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 i n 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 locat ed 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 ove r Koch's pipeline many times with heavy equipment without incident prior t o 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 distur bing the soil at a depth of six to eight inches.-5-

Mr. Sheihing testified Mr. Wheeler's combine tire s ank two to three feet in the soil. Mr. Wheeler testified his combine tire s ank four to four and one-half feet. The rut or scar in the soil created by Mr. W heeler's tire was roughly three to four feet wide. The ground in the tire rut was mud dy. The combine tire was muddy when pulled out.

Mr. Scheihing testified there was no wash-out, cave rn or collapse of Koch's pipeline trench underneath or near Mr. Wheeler's co mbine. The ground outside and within the trench was affected identically by M r. Wheeler's tire.

After the evidence was heard, the court instructed the jury on the doctrine of res ipsa loquiturand negligence. The jury awarded Mr. Wheeler $48, 000 in damages after finding Mr. Wheeler 50% negligent, Ko ch 50% negligent, and Farrar 0% negligent. Koch filed a Motion for Judgm ent as a Matter of Law or, in the alternative, a Motion for New Trial.

In its motions, Koch contended (1) the uncontradict ed evidence established the doctrine of res ipsa loquiturdid not apply; (2) no evidence was presented which the jury could find Koch negligent; and (3) t he uncontradicted evidence established Mr. Wheeler was a licensee on Koch's ri ght of way and therefore1 In Qualls , the Oklahoma Supreme Court ruled an elevator comp any's

maintenance contract for an elevator causing Ms. Qu alls' 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. -6- Koch breached no duty to Mr. Wheeler. Koch claimed the doctrine of res ipsa loquiturdid not apply because Mr. Wheeler failed to presen t 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 abse nce of negligence; and because (3) the evidence conclusively established Mr. Wheel er caused and contributed to his accident.

The district court denied Koch's motions for severa l 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 pipeli ne and trench at the time of Mr. Wheeler's accident as the result of Koch's obli gations to maintain the pipeline trench under its right of way agreement, and obligations under the Intermittent2The district court construed Farrar's duties owed to Koch in the

Intermittent Services Agreement to protect the prop erty 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 du ties owed to third persons.

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

-7- 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 cou rt concluded despite no direct evidence of Koch's negligence, the jury may have in ferred negligence on Koch's part. In addition, in concluding the jury could ha ve 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 proper ly 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 ins tructed of Mr. Wheeler's status as a licensee because Koch failed to timely requestthe instruction and the court-8-

construed Koch's right of way agreement and the Int ermittent Services Agreement as providing specific duties Koch owed to Mr. Wheel er.

On appeal, Koch makes essentially the same argument s made to the district court. Koch claims the court erred by: (1) instru cting the jury on the doctrine of res ipsa loquitur ; (2) failing to include in its res ipsa loquiturinstruction the element the accident was not due to any action or c ontribution by the plaintiff and using words in its instruction contrary to the evid ence presented; (3) denying judgment as a matter of law to Koch based on the th eory 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 licen see, and the duties owed by Koch to a licensee. Because we dispose of this appeal o n 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 n ot 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 matt er of state law, but the grant or-9-

denial of a tendered instruction is governed by fed eral law." Wolfgang v. MidAmerica Motorsports, Inc. , 111 F.3d 1515, 1525 (10th Cir. 1997). We review de novo whether the jury was properly instructed on t he res ipsa loquiturdoctrine 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 loquiturpresents a question of law; it is a judicial function to deter mine if a certain set of circumstances permits a given inference."). We rev iew 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 w hole to determine whether they sufficiently cover the issues, facts and evidence i n 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 occ ur in the usual course of everyday conduct unless a person who controls the i nstrumentality likely to produce injury fails to exercise due care to preven t 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 th at the injury complained of4Koch also contends the trial court erred in faili ng to include in its jury

instruction a third element traditionally associate d with the res ipsa loquitur doctrine, the plaintiff cannot have caused or contr ibuted to his injury. Recent Oklahoma cases and the Oklahoma Uniform Jury Instru ctions 9.13 do not discuss this element, although prior Oklahoma case law reco gnized it. Compare Collins v. N-Ren Corp. , 604 F.2d 659, 661 (10th Cir. 1979) (applying Okla homa 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 othergrounds, we need not decide this issue.

-10- would not have occurred in the absence of negligenc e 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 loquiturallows negligence to be inferred without the aid o f circumstances pointing to the responsible cause. Qualls , 863 P.2d at 460.

To permit the jury to infer negligence using a res ipsa loquiturjury 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 plainti ff must prove: (1) the defendant had exclusive control of the instrumental ity causing the plaintiff's injury; and (2) the injury is of a kind which ordin arily 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-11-

accessible to the defendant than to the plaintiff. Jackson , 909 P.2d at 770 n.17. The court then determines whether the evidence is s ufficient to permit an inference of negligence before submitting the case to the jury with a res ipsa loquiturinstruction. Avard, 889 P.2d at 264.

Koch claims Mr. Wheeler did not establish a prima f acie case of negligence under the res ipsa loquiturdoctrine 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]xclus ive 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 purp ose of the exclusive control requirement is provide a rational basis for conclud ing 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 cont est had "exclusive control" of an instrumentality in the res ipsa loquitur sense often constitutes a mixed question of law and fact. At t he threshold the issue is one of law for the judge. It calls for th e trial court to decide5 Mr. Wheeler contends the instrumentality causing his harm was the

pipeline and pipeline trench. Logically, Mr. Wheel er 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 acc ident. The facts in the record indicate the trench did not collapse and the soil w ithin the trench and outside the trench were equally affected. We disagree with Mr. Wheeler's assertion the instrumentality responsible for his harm was the pi peline and trench. Consequently, we analyze Mr. Wheeler's claim regard ing the soil in and over Koch's trench as the instrumentality Mr. Wheeler cl aims caused his injury.

-12- 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 quest ion must go to the jury. Where there is any competent evidence to sup port the verdict, the judgment will be affirmed unless otherwise show n 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 i nstrumentality 5 causing Mr. Wheeler's injury. The soil in Koch's pipeline tren ch was not under its exclusive control because for twenty months the soil was subj ect 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 rea son, other probable causes of-13-

his accident than Koch's negligence for us to concl ude an Oklahoma court would consider a res ipsa loquiturinstruction proper.

Control is not exclusive for purposes of the res ipsa loquiturdoctrine where the proof does not reasonably eliminate the a ctivities of a third party or condition having access to the instrumentality, whi ch 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 ro om floor because the owners of the home were not aware the glass was present and g lass 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 fro m closing); Michel v. Branham , 327 P.2d 440, 443 (Okla. 1958) (finding no exclus ive control where plaintiff failed to show soda bottle injuring her w as 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 w hich 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 mainta in the tank). Logically, the greater interference with an instrumentality by oth er people or conditions outside-14-

the defendant's control, the greater probability th e plaintiff's accident can be explained by other reasons than the defendant's neg ligence. 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 o ver 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 de prived Koch of exclusive control. For example, we find it compelling Mr. Sc heihing had crossed the pipeline trench with heavy equipment on many occasi ons for twenty months prior to Mr. Wheeler's accident. Mr. Wheeler had even cr ossed 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 a ccident. The ground was muddy underneath the tire. Mr. Wheeler admitted al though top soil may look dry, subsoil can be muddy. Also important to our conclu sion 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.-15-

We disagree with the district court's reliance on Qualls in concluding Koch had exclusive control through its obligations to ma intain 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 mainte nance and service duties on the elevator, and the hospital where the elevato r 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 assu mes responsibility for the fitness of an instrumentality for its intended use. " Id . at 462. Therefore, the court found the elevator maintenance company's assu mption 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 t he earliest negligence plaintiffs using res ipsa loquiturwere passengers injured in public transportation-16-

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 c are 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 loquiturinstruction if the occurrence was due to a mechanism's failure which w ould not ordinarily happen if due care was exercised. Id . The court recognized "[e]levator mechanisms are hidden from view, and since they consist of mechani cal, electrical, and sophisticated electronic systems, they are at any r ate 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 inteferen ce 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 s oil on many occasions and at times plowed the soil at a depth of six to eight in ches over the pipeline prior to Mr. Wheeler's accident. The distinct difference be tween elevator machinery-17-

hidden from view of passengers or others, and soil in a pipeline trench outside subject to interference by others and natural condi tions distinguishes Qualls from this case.

Second, although Koch undertook responsibilities to maintain the pipeline trench in its right of way agreement, the maintenan ce 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 maintenanc e contract as a matter of law. Qualls , 863 P.2d at 461. The court suggested the passeng ers and hospital staff were completely dependent on the elevator company f or the elevator's safe operation because from the location of the elevatormachinery, 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 pipel ine trench, too many other disturbances to the soil could divest Koch of exclu sive control, such as Mr. Scheihing's equipment, Mr. Wheeler's combine and natural conditions. For these reasons, we conclude Mr. Wheeler failed to prove Ko ch had exclusive control as a matter of law.-18- (b) Occurrence Absent Negligence Mr. Wheeler also failed to establish his injury was of a type which ordinarily does not occur absent negligence. Anoth er 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 expla nation 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 occur rence, without more, the matter still rests on conjecture, or is r easonably 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 circumstan ces 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 t he surrounding area became stuck in fields during the period of Mr. Whe eler'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 pr ior to his accident. These facts conflict with a finding Mr. Wheeler's acciden t was unusual.-19-

Although Mr. Sheihing testified the manner in which Mr. Wheeler's combine sat with one wheel stuck was unusual, the t estimony 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 establi shed car jack could not have disengaged absent defendant's negligence sufficientfor permitting a res ipsa loquiturinstruction), 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 negli gence) and Cosden , 211 P.2d at 529 (denying res ipsa loquiturinstruction because evidence was insufficient to find accident would not have occurred absent defend ant'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 evidenc e indicated the accident was caused by a wash-out or collapse of the Koch's pipe line 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, w e 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 loquiturwere not satisfied under Oklahoma law. Therefore, we conclu de the district court abused its discretion in permitting a res ipsa loquiturinstruction. We now review Koch's-20-

claim it is entitled to judgment as a matter of law since no independent evidence of negligence was offered and res ipsa loquiturdoes not apply.

NEGLIGENCE Koch contends the district court erred in denying i ts motion for judgment as a matter of law. We review a district court's deni al 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 th e 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 underly ing claims, but federal law controls the procedural question whether judgment a s a matter of law is appropriate. Wolfgang , 111 F.3d at 1522.

Koch contends it is entitled to judgment as a matte r of law because no independent evidence of Koch's negligence was prese nted and the doctrine of res ipsa loquiturdoes not apply. We agree. Construing the evidenc e in light most favorable to Mr. Wheeler, we conclude Koch is entit led to judgment as a matter6Under Oklahoma law, three evidentiary elements ar e essential to a prima

facie case of negligence: (1) a duty owed by the d efendant 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 defe ndant's breach. Jackson v. Jones , 907 P.2d 1067, 1071-72 (Okla. 1995). -21- of law because res ipsa loquiturcannot apply and no independent evidence of negligence was offered to establish negligence on K och's part. 6

"'[I]n a res ipsa case the ultimate fact, [s]ome ki nd of negligence is inferred without any evidential facts except the unusual occ urrence itself; [w]hile in a specific negligence case there must be evidential f acts sufficient to show some negligent acts or omissions which were the proximat e 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 pre sented indicating Koch was negligent. The evidence presented at trial indicate d 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 pip eline trench was equally affected by Mr. Wheeler's combine tire. "[A] primafacie 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 legiti mate 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.-22-

To explain other grounds the jury could have used t o 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 th is 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 fac ts 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 permitt ing the jury to infer negligence. Consequently, without the res ipsa loquiturdoctrine applying in this case and without any independent evidence of negligence on K och'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 Koc h 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.