In such a state of the pleadings, it was not necessary for appellee to specifically plead res ipsa loquitur. See Mobil Chemical Co. v. Bell, 517 S.W.2d 245, 254 (Tex. 1974); Conaway v. Roberts, 725 S.W.2d 377, 378 (Tex.App.-Corpus Christi 1987, writ denied). Additionally, as addressed below in our discussion of appellants' third and fourth points of error, the doctrine of res ipsa loquitur did apply in this case.
" Id. Thus, "under the res ipsa loquitur doctrine the plaintiff creates a fact issue as to the defendant's negligence if the plaintiff (1) presents probative evidence, or establishes by general knowledge, that the accident in question would not ordinarily occur without negligence and (2) presents probative evidence that the defendant had management and control of the instrumentality causing the injury at the time the negligence inferable from the type of accident probably occurred." Id. at 630-31; see also Conaway v. Roberts, 725 S.W.2d 377, 379-80 (Tex.App. — Corpus Christi 1987, writ denied). As for the first factor, Kay Notch contends that" [t]his is clearlynot a situation where it may be said that the accident would ordinarily not have occurred absent the negligence of [James] Notch."
en he stopped to aid passengers in overturned car could sue manufacturer of the overturned car under the rescue doctrine); Williams v. Foster, 281 Ill.App.3d 203, 217 Ill.Dec. 9, 666 N.E.2d 678, appeal denied, 168 Ill.2d 628, 219 Ill.Dec. 578, 671 N.E.2d 745 (1996) (rescuer sued manufacturer of water heater based on injuries suffered while rescuing family from burning home); Welch v. Hesston Corp., 540 S.W.2d 127 (Mo.Ct.App. 1976) (injured volunteer fireman sued manufacturer of haystacker machine); Govich v. North American Systems, Inc., 112 N.M. 226, 814 P.2d 94 (1991) (plaintiff sued manufacturer of coffee maker and component based on harm suffered while attempting rescue of a dog from a burning house); Guarino v. Mine Safety Appliance Co., 25 N.Y.2d 460, 255 N.E.2d 173, 306 N.Y.S.2d 942 (1969) (estate of rescuer who died of gas asphyxiation sued manufacturer of gas mask; court held that manufacturer committed culpable act by making and distributing defective oxygen-producing mask); Conaway v. Roberts, 725 S.W.2d 377 (Tex.Ct.App. 1987) (rescuer sued manufacturer based on injuries suffered when he came to the aid of a neighbor trapped under a riding lawnmower).
Other jurisdictions have permitted recovery under the rescue doctrine in product liability claims. Williams v. Foster, 281 Ill. App.3d 203, 666 N.E.2d 678 (1996) (rescuer sues manufacturer of water heater for injuries suffered rescuing family from burning home); Welch v. Hesston Corp., 540 S.W.2d 127 (Mo. Ct. App. 1976) (injured volunteer fireman sues manufacturer of haystacker machine); Govich v. North Am. Sys., Inc., 112 N.M. 226, 814 P.2d 94 (1991) (plaintiff sued manufacturer of coffee maker and component for damages suffered while attempting rescue of dog from burning house); Guarino v. Mine Safety Appliance Co., 25 N.Y.2d 460, 255 N.E.2d 173, 306 N.Y.S.2d 942, 44 A.L.R.3d 467 (1969) (estate of rescuer who died of gas asphyxiation sues manufacturer of gas mask; court holds defendant manufacturer committed "culpable act" by manufacturing and distributing defective oxygen-producing mask); Conaway v. Roberts, 725 S.W.2d 377 (Tex. Ct. App. 1987) (rescuer sues manufacturer for injuries suffered when he comes to aid of neighbor trapped under riding lawn mower). We also are not persuaded by Suzuki's argument that liability for a design defect under the PLA should not extend to bystanders.
Instead, the supreme court stated, "In a multiple defendant case, when one defendant is not found negligent by the jury, and an appeals court leaves that finding intact, remand is improper for the defendant whose liability in negligence has been determined." Id.; accord State Dep't of Highways Pub. Transp. v. Pruitt, 752 S.W.2d 598, 602 (Tex.Ct.App. 1988); Conaway v. Roberts, 725 S.W.2d 377, 380 (Tex.Ct.App. 1987) (improper directed verdict for defendant did not require new trial as to exonerated co-defendant). Some confusion on this point may arise because the adoption of comparative negligence can require an otherwise unnecessary retrial of a co-defendant who was found liable at the original trial.
In reviewing an instructed verdict, the appellate court must determine whether there is any evidence of probative force to raise fact issues on the material questions presented. Conaway v. Roberts, 725 S.W.2d 377, 379 (Tex.App. — Corpus Christi 1987, writ denied); Sullivan v. Methodist Hospitals, 699 S.W.2d 265, 274 (Tex.App. — Corpus Christi 1985), writ ref'd n.r.e. per curiam, 714 S.W.2d 302 (Tex. 1986). All of the evidence must be considered in the light most favorable to the party against whom the instructed verdict was granted, and all contrary evidence and inferences must be disregarded.
Res ipsa will not be invoked unless two factors are present: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence, and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. Porterfield v. Brinegar, 719 S.W.2d 558, 559 (Tex. 1986); Conaway v. Roberts, 725 S.W.2d 377, 378 (Tex.App. — Corpus Christi 1987, no writ). The purpose of res ipsa is to relieve the plaintiff of the burden of proving a specific act of negligence when it is not possible for the plaintiff to establish a sequence of events, or when the defendant has superior knowledge or means to discover the cause of the accident. Jones v. Tarrant Utility Co., 638 S.W.2d 862, 865 (Tex. 1982).