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Marathon Corp. v. Pitzner8/2/2001
itions. However, the inspections conducted for the certificate of occupancy did not include checking on the roof. Therefore, Marathon was not entitled to rely on the certificate of occupancy as assurance that the roof was free of dangerous conditions.
Finally, Marathon argues that failure to comply with building codes is not evidence of constructive knowledge of premises defects, citing McDaniel v. Continental Apartments, 887 S.W.2d 167 (Tex. App.-Dallas 1994, writ denied). In McDaniel, the plaintiff was injured when an apartment balcony collapsed on top of her. Id. at 169. The balcony had been remodeled and extended eight years prior in a manner that did not comply with the municipal building code. Id. The Dallas court of appeals refused to consider the failure to comply with the building code as evidence of constructive knowledge, holding instead that any violation of a city ordinance goes only to the issue of whether the owner exercised reasonable care to reduce or eliminate the risk. Id. at 172.
We disagree with this holding and decline to follow it. One is charged with constructive notice of the actual knowledge that could have been acquired by examining public records. Mooney v. Harlin, 622 S.W.2d 83, 85 (Tex. 1981). Those residing in or having business dealings with a city are presumed to know its ordinances. Trail Enters., Inc. v. City of Houston, 957 S.W.2d 625, 634 (Tex. App.-Houston [14th Dist.] 1997, pet. denied); Board of Adjustment of the City of San Antonio v. Nelson, 577 S.W.2d 783, 786 (Tex. App.-San Antonio), aff'd, 584 S.W.2d 701 (Tex. 1979).
We hold the evidence is legally sufficient to show that Marathon had constructive knowledge of the relevant municipal codes, and, from those codes, had constructive knowledge of the dangerous conditions regarding its air conditioning units. Appellant's third issue is overruled.
d. Proximate Cause
Next, we consider Marathon's argument that the evidence was legally insufficient to show that the alleged premises defects proximately caused Pitzner's injuries. The components of proximate cause are "cause in fact" and foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc, 907 S.W.2d 472, 477 (Tex. 1995). The test for cause in fact is whether the negligent act or omission was a substantial factor in bringing about the injury , without which the injury would not have occurred. Id. The foreseeability element requires proof that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. Id. at 478.
Dr. Eftekhar testified that, from his observations and analysis of the scene, Pitzner "most probably" received a shock or other surprising sensation from the air conditioning unit that caused him to reel backwards and fall off the roof. The testimony of Eftekhar and Davidson established that the positioning of the air conditioning units and the absence of a disconnect switch significantly increased the likelihood of a repairman receiving an electric shock while working on the air conditioner. Appellant has not challenged the methodology or qualifications of either expert.
Appellant has argued that, from the evidence before the jury, any conclusion about the cause of Pitzner's fall would be too speculative to survive legal sufficiency review. Proof of causation cannot turn upon speculation or conjecture. Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex. 1996). Appellant relies primarily on two cases which present some factual similarity, Summers v. Fort Crockett Hotel, Ltd., 902 S.W.2d 20 (Tex. App.-Houston [1st Dist.] 1995, writ denied), and Texas Dept. of Corr. v. Jackson, 661 S.W.2d 154 (Tex. App.-Houston [1st Dist.] 1983, writ ref'd n.r.
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