## In the Court of Appea ls Second Appellate Distric t of Texas at Fort Worth

___________________________ No. 02

- 23

- 00215

- CV

___________________________

On Appeal from the 141st District Court Tarrant County, Texas Trial Court No. 141

- 331625

- 22

Before Kerr, Birdwell, and Bassel, JJ. M emorandum Opinion by Justic e Bi rdwe ll 

### R OBERT 

### S TEVEN 

### R ITCHEY 

### , Appellant

V



### . A MERICAN 

### A IRLINES 

### G ROUP 

### , I NC



### . AND 

### A MERICAN 

### A IRLINES 

### , I NC



### . , Appe llees2 MEMORANDUM OPINION
I
. Introduction
Pro se a ppellant Robert Steven Ritchey sued Appel lees American Airlines Group, Inc. (AAG) and American Airlines, Inc. (collect ively, American) 1 for persona l injuries he allegedly sus tained in Januar y 2020 after a fl ight attendant p rovided him
with an unopened package of earphones to use for a n in

- flight movie and the c a p tain
made an announcement during the movie using the publ i c announcement (PA)
system , c au sing a very loud “ pop
. ” Ritchey alleged that th e po p “was so loud that [he]
was unable to hear anything out of both ears when it happened

. ” He regained his hearing but was left with tinnitus.
In his original petition , Ritch ey c ompl a ined that American ’ s “ ne gl igence in the
selecti o n o f, use o f, o peration of, and/or maintenance of its PA and/ or media
sy stem s/equipment was more than just momentary thoughtless ness or in advertence ” and involved an extreme degree of risk. He further “ ple ad[ed] the doc trine of Res Ipsa Loquitur in that (a.) th e in juries [he] sustained ordinarily do[] not oc cur in the absence of negligenc e, and (b .) the PA and/or media systems/e quipment were within the exclusive control of [American] at all relevant tim es h erein. ”

1 Ritchey ac knowl e dged in his summary

- judg men t response that summary judgment was appropriate as to AAG after American poi nted out that AAG was a holding company that did not control the day

- to

- day operation of Ame r i can A irlines or otherwise s upervis e or c ontrol Ameri can A irlines ’ employees on in

- flight operations, stating, “ Plaintiff concedes summary judgm ent on ly to AAG ’ s No

Evidence Motion for Summary Judgment and only to AAG ’ s Traditional Motion for Su mma r y Judgment. ”3 Amer ican filed a t raditional and no

- e vi de nce motion for summary judgment, which the trial court granted. In a single issue, Rit ch ey argues that the trial court erred by doing so , relying exclusively on his res ipsa l oquitur t heo ry . We overru le h is sole
issue and affirm the tri al court ’ s judgment. II. Background
In its summary

- judgment motion, American asserted that Ritchey ’ s negligence
claim was not viable as a matter of law and tha t he had no evidence that A merican
knew or could have k nown that the aircraft ’ s PA system, me dia system, or earphones posed a foreseeab le risk of injury to him ; that American should have anticipated the alleged danger in the e quipment, which was manufactur ed by a third party ; or that
American was the pr oxim ate cause of his in jury , that his injury was foreseeable, or that American owed him a duty

. American further argued that it was entitled to a traditional summary j udgment
because it did not breach a l egal duty to Rit chey, it could not have f ores een the
inciden t, and it was not the “ but f or ” fact or that caused the injury , supporting its
assertions with excerpts from Ritchey ’ s deposition

. Ri tch ey admitted in his deposition
that a third party, not named in t he suit, wa s responsib le for man ufacturing and maintaining the equipment that had allegedly c aused his injury

. Cf. Schindler Elevator Corp. v. Ceasar , 670 S.W.3d 577, 583 (Tex. 2023) (explaining that res ipsa loq uit ur is a rarely appli ed evidentiary doctr ine that rel i eves the plaintiff of the burden of proving a specific act of negligence by the d efendant wh en it is impo ssible for the plaintif f to4 determine the sequence of events or when the defendant has sup e rior knowledge or
means of information to deter mine the acc ide nt ’ s cause) ; Haddock v. Arnspiger , 793 S.W.2d 948, 950 (Tex. 1990) (stating tha t res ipsa loquitur allows the circumstances surrounding an accident to support a negligence finding only when two factors are present: (1) the accident’s character is such that it would not ordinarily occur in the absence of negligence; and (2) the instru mentality causing the injury is shown to have been under the defendant’s management and control); Mobil Chem. Co. v. Bell , 517
S.W.2 d 245 , 251 (Tex. 1974) (stat ing that the first res ipsa l oqu itur f actor is necessa ry to support the n egligence inference and the second “ is ne cessary to support the
inference that the defenda nt was the negligen t party ” )

. 2
In his deposition , Ri tchey also as s e rt ed that American had bee n negligen t because it “ shou ld h ave known that there [ was] a possibility that . . . [ its] media

2 The su preme cour t r ecently gave the “ classic ” res ipsa l oq uitur example as
“ when a foreign object is left in a patient after surgery. ” Schind ler Elevator Corp. , 670 S.W.3d at 583 ; see Mobil Chem. Co. , 517 S.W.2d at 250 (exp laining th at res ipsa loquitur

“ has com e to signif y that in certain limited ty pes o f cases the circumstances surrounding an accident cons titute sufficient circumstantial evid ence of the defe ndant ’ s ne gligence to s upport such a fa ct finding ” ). Res ipsa loquitur ’ s pur po se “ is to relieve the plain tiff of the b urden of proving a spec ifi c act of negligence

. ” Jones v. Tarrant Util. Co. , 638 S.W.2d 862, 865 (Tex. 1982)

. For res ipsa loquit ur to apply , t he plaintiff need not t otally negate other potential causes but must est ab lish that the def endant ’ s n egligence was the “ mo st plausible ” expl anati on for the accident. Turb ines, Inc. v. Dardis , 1 S.W.3d 726, 742 (Tex. App.

— Amarillo 1999, pet. denied) (op. on reh ’ g) . Res ipsa loquitur is improper when the evidence s hows two e q ual ly plausible expl anations. Id. at 742

– 43 ( concludi ng t hat the trial court erre d by submitting a re s ipsa l o quitur instruction when there was facially credible evidence supporting both the defendant ’ s theory of p ilot error and the plaintif f

’ s theory of engine fail ure and that both th eories were equally pro babl e as to the plane c ras h ’ s cause)

.5 equ ipment or PA eq uipment could cause damage to somebody listening to it ” and
that American should have been aware of the possibili ty “ because the acci dent happ ened , ” a lthough he did not infor m Am erican about the accident until he filed
suit. He a greed tha t to his knowledge American had not man ufactured the PA system or media system and asserted that it was “ always a possibi li ty ” that the third

- party

ma nufact urer had cau sed his injury , st atin g “ maybe they knew and didn ’ t tell
American

. ” He agreed that Ameri can ’ s discovery re sponses did not indicate that American knew of any defect in or dangers associate d with the e qu ipm ent
. He was

unawa re of whether Amer ican had been neg l igent in the selecti on of the media or PA system or in the maintenance of the P A system
. To his summary

- j udgment response , Ritch ey attached his affidavit, some of
American ’s discovery re sp onses, and his original p etition

. 3 A merican ’s interrogatory

answers showed that the PA and media equipm ent , a Thales TopSeries i5000 Inflight
Entertain ment Sy stem and a Cab i n Media Loader 910001 84

- 2, were pre

- installed
when Ame r i can purchased the aircraft in 2017 ; that Tha les maintained the PA and
media equipment but that American did not kn ow whether Americ an performed or

3 A merican objected to some of Ri tchey ’ s summary

- judgment evidence but did not obtain a ruling on its o bjections. Cf. Seim v. Allstate Tex. Lloyds , 551 S.W.3d 161, 164

– 6 6 (Tex. 2018) (re qu iring express ruling on for m ob jections to summar y
jud gment evidence).6 contr a cted with another company to perform ongoing t e sting o n the equipment; 4 and
that American had recei ve d no writt en or oral complain ts about the PA or media equipme nt i n the two years b efore the incide nt. Ritchey argued t hat Ame rican w as not entitled to summary judg ment as negligence c ould be inferred f rom the facts under res ipsa l o quitur : he ha d boarded
the flight, heard a loud pop while list ening to the on b oard media equipment, temporarily lost most o f his hearing, and had suffered from tinnitus ever since

. R

itchey contended that h is in vocation of res ipsa l oquitur was suffici ent to d ef eat American ’ s no

- evidence challenge. He also stated , “ A lthough the PA and [m] e dia equipment were manufactured by a company other than [American], the PA and [m] edia equipm ent were under the management and control of [Am erican]. Their testing and ma intenance were under the ma nagement and control of [American ]. ” He

asse rted that his claims were not based on product liability bu t rather on American ’ s

“ negligence in the operation and/or maintenance of its P A and/or [m] edia

e q uipment. ” Ri tc hey claimed , “ There are two primar y possibilities for what caused my injuries : (1) the pilo t caused the loud pop when cutting of f the [m] edia equipment and

4 The int errog atory responses were verified by a n American Airlines claims analyst and were “ based on information communicated to [the analyst] by American A irlines, Inc

. ’ s per sonnel [an d] counsel for American Air line s, Inc. [] and info rmati o n ob tained from records of American A irlines, Inc. ” I n response to request s for produc tion that referenced the inte rrogator ies

— specifically , request s for maintenance records and testing results

— A merican stated that after a reasonabl e search, it could not locat e any responsive doc uments
.7 switching over to the P A equipment, and/or (2) [American] failed to properly
maintain its PA and [ m] edia equipment. ” 5 In its reply to Rit chey ’ s respon se, A meri can ide nt ified defici encies in Ritch ey ’ s
summary

- judgment response regarding d uty, foreseeabili ty, and causation and noted
that his “ Hail Mary repeated reliance on the doctrine o f r es ip s a loquitur falls well shor t of saving his single claim. ” The trial court granted American ’ s motion without
spe cifying upon which grounds.
III. Di scussion Ritchey argues that his summary

- judgment response relying on res ipsa loquit ur “s ho u ld have be en more than suf ficient for the trial court to deny [Am eric an ’ s] no

evidence and traditional motion for summary judgment .”
“W hen an argu ment is not made challenging every ground on which the summary judgment could be based, w e a re required to affirm the s ummary judgment, regardless of the merits of the unchallenged ground.” Rollins v. Denton C ou nty , No. 02

- 14

- 00312

- CV, 2015 WL 7817357, at *2 (Tex. App.

— Fort Worth Dec. 3, 2015, no pet.) (mem. op.) ; see Scott v. Galusha , 890 S .W. 2d 945, 948 (Tex. App.

— Fort W orth 1994, writ denied). I n the n o- evid ence portion of its motion, American argued that there was no evidence of proximate cause or a lega l duty , and in the traditional portion of its motion, America n ar gued that i t d id not breach a legal duty, c ould not

5 In addition to his res ipsa l oquitur arguments, in his summary

- judgment response, Ritchey addressed American ’ s foreseeability, causation, breach, a nd duty ground s, but he does not address those groun ds on appeal.8 h ave foreseen the in cident , an d wa s not the “ but for ” factor that caused the injury. Ritchey does not challenge any of these grounds for the trial court ’ s summary judgment by way of this appeal; instead, h e r el ies solely upon his res ips a loqu itur
argument for reversal. Beca u se we are con strained to affirm the summary judgment on any grounds asserted in the trial court left unchallenged on appeal, we need not address the merits of Ritchey ’ s sole argument fo r r ev ersal. 6

6 We nonet heles s note that res ipsa loquitur would not apply on these facts because of the possibility not only of the pilot ’ s negligence or America n ’ s negligenc e b ut also of defect s in the PA and media sy ste ms ’ design or manufactur e or even e lectri cal problems pote ntial ly caused by the avi ation environ ment itself (although we note that n either party mentioned turbulence)

. See Schindler Elevator Corp. , 670 S.W.3d at 5 8 1 ( holding res i psa loquitur jury instruct ion was imprope rly inc luded in elev ator

injury case beca us e pla intiff failed to sho w
— as here

— tha t the type of accident would not ordinar ily occur ab sent negligence )

. Compare Kelly v. Am. Airlines, Inc. , 50 8 F.2d 1379, 13 80 (5th C ir. 1975) ( applying Texas l aw to conclude that when m ore than one plausible theory ex isted as to the cause of turbulence that led to the plai ntiff ’s injury

— one sug gesting the defendant ’s ne gligence and one not

— the trial cou rt was co rrect i n findin g that re s ipsa loquitur was inappro p riate ) , with Smith v. Piedmont Air line s, Inc. , 728 F. Sup p. 91 4, 91 6

– 17 (S.D.N.Y. 1989) ( holding res ipsa l oquitur charge was appropriate when there w ere three possible explanations for the failure of the overh e a d compa r tment la tch

— ( 1) the latch ’ s defecti ve design or manufacture ; (2) the l atch ’ s improper mainten ance by the airli ne; or ( 3) the compartm ent ’ s improper closure before take

- off

— but the defend ant airline never raised the de fective

- design

or

- man uf actur e argument during t rial , and “ it w as entirely reasonable for the jury to conclude tha t an overhead bin w ould not normally open du ring a flight and empty its content s on a passenger ’ s head in the ab sence of negligence on the part o f the
a irline ” ). See general ly David Mactavis h & John Scott Hoff, Things That Go Bump in the Flight: In

- Fli ght Turbulence Injuries , 13

- SUM Air & Space Law. 1 , 18 , 20 (1998) (noting that in

- flight turb ulence “ remains the leading cause of nonfatal air car rier injuries ” and notin g that a common carrie r is requ ired to exercise “ the highe st degree of care
c onsistent with pract ical operati on of the co nveyance ” but is “ not required to guarantee the safety of its passengers against all injuries ” )

. T he ex cer pts from Ri tch ey ’s deposition establ ish that to his knowledg e, American had not manufac tu red the PA or media system s and was no t aware of any d angers associated wi t h the m .9 IV. Conclusion
Be c a use Richey failed to chall enge every ground upon which summary judgment could have been gr anted, we ove rrule his sole issue and affirm the tr ial

court ’ s judgm ent
. /s/ Wade Birdwell
Wade Birdwell J ustice
D eliv ered: February 8, 2024