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Perez v. Lopez3/7/2002
ciples and did not abuse its discretion in failing to submit Appellant's requested instruction. Issue No. Four is overruled.
C. Cross-Issue
In their sole cross-issue, Appellees assert that the trial court erred in failing to grant their motion for directed verdict and motion for judgment notwithstanding the verdict because there was no evidence that the minor's suicide was foreseeable or that their acts were a cause in fact of the suicide. Appellant argues that the evidence establishes Appellees' negligence was a cause in fact of his son's death and that Appellees could foresee they were creating a dangerous situation for the minor and others.
The components of proximate cause are cause in fact and foreseeability. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995); Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). These elements cannot be established by mere conjecture, guess, or speculation. See McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex. 1980); Farley v. MM Cattle Co., 529 S.W.2d 751, 755 (Tex. 1975). The test is whether the negligent act or omission was a substantial factor in bringing about injury , without which the harm would not have occurred. See Doe, 907 S.W.2d at 477. Cause in fact is not shown if the defendant's negligence did no more than furnish a condition which made the injury possible. See Bell v. Campbell, 434 S.W.2d 117, 120 (Tex. 1968). Foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. See Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 549-50 (Tex. 1985); Duran v. Furr's Supermarkets, Inc., 921 S.W.2d 778, 790 (Tex. App.--El Paso 1996, writ denied). The danger of injury is foreseeable if its general character might reasonably have been anticipated. See Nixon, 690 S.W.2d at 550; Duran, 921 S.W.2d at 790. It asks whether the injury "might reasonably have been contemplated . . . " as a result of the defendant's conduct. McClure, 608 S.W.2d at 903.
Appellees cite Cowart v. Kmart Corp., 20 S.W.3d 779 (Tex. App.--Dallas 2000, pet. denied) as an instructive case. In Cowart, the survivors of an individual who was killed in a shooting incident brought a wrongful death action against Kmart for selling the ammunition used in the shooting. See id. at 782. In its motion for summary judgment, Kmart asserted that the shooter's criminal conduct was an intervening and superseding cause of Cowart's death, and, "as such, [the alleged negligence of] Kmart was not the proximate cause of the injury to decedent." Id. The trial court granted Kmart's motion and the court of appeals affirmed, holding that, as a matter of law, Kmart's action in selling the ammunition to the minors was not a proximate cause of the death, because Kmart could not have foreseen that the ammunition would have been used to kill someone. See id. at 785-86.
The court observed that although the likelihood that the ammunition will be used is foreseeable at the time it is sold, at most the kind of danger Kmart could foresee from the sale was misuse or mishandling resulting from the buyer being too young to appreciate the danger of the ammunition. See id. at 784. The court acknowledged that a minor's ability to appreciate the danger of ammunition depends on the age of the minor. See id. However, because the minors in Cowart were seventeen years old, the court held they were old enough to appreciate the danger of negligent or intentional misuse of ammunition. See id.
Further, the court held there was no liability because Kmart could not foresee that the sale would result in negligent or intentional misuse of the ammunition
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