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Marathon Corp. v. Pitzner8/2/2001
e.). However, both cases are distinguishable.
In Summers, a man who was last known to be on a hotel balcony eight stories up was found in a vegetative state on the roof of a building four stories below. Summers, 902 S.W.2d at 22-23. The plaintiffs sued the hotel on the theory that the balcony railing was unreasonably dangerous due to design flaws. Id. at 23. However, there was also evidence that the decedent was intoxicated immediately prior to his death. Id. at 22-23. Absolutely nothing was known about what had actually happened to the decedent on the balcony. Id. at 23. Although the plaintiffs presented expert testimony regarding the role of the balcony in the decedent's fall, the expert admitted that he "did not know how [the decedent] got over the rail and he could only speculate using hypotheticals." Id. at 25. The court concluded that "every piece of evidence relied on by [the plaintiffs] to infer causation equally supports the inference that [the decedent] fell for some other reason." Id. at 26.
In Jackson, an electrical lineman received an electric shock while working to reconnect and reactivate an electrical wire on a transformer. Jackson, 661 S.W.2d at 155. His theory at trial was that his tool belt had been defective. In this case as well, no one saw what happened to the injured party. Id. Although the victim in this case survived, he could not remember what happened, and "speculated" that his tool belt had slipped, causing him to instinctively reach up and grab a cross arm and a fuse. Id. His co-workers "speculated" that the victim "probably" got too close to a hot wire. Id. at 156. If the co-worker's speculation was correct, the defects in the tool belt asserted by the victim would have played no role in the victim's accident. Id. at 157. The court concluded that the victim had presented legally insufficient evidence to show that defects in the tool belt proximately caused his injuries. Id.
In both Summers and Jackson, the testimony on causation is referred to as "speculation." Summers, 902 S.W.2d at 25; Jackson, 661 S.W.2d at 157. Whether the witnesses applied this label to their own testimony, or whether it was only the reviewing court's determination that the testimony was "speculation," is unclear.
In the instant case, the plaintiff's expert witnesses were confident of their conclusions, and only Marathon has labeled their conclusions "speculation." Unlike in Summers and Jackson, in the instant case the plaintiff's experts were able to use facts observed at the scene to determine the angle and speed of Pitzner's fall (backwards, at a very fast walking pace) and that Pitzner was about to perform work that would require inserting a screwdriver at an awkward angle near a high voltage wire. Their conclusion that Pitzner reeled backward and off the roof because he had received an electric shock is not speculative. We conclude that Summers and Jackson are inapposite.
Marathon also relies on the testimony of its industrial safety expert, Carlton Tibbit, that Pitzner could have fallen off of the roof because he was suffering from heat stroke. Tibbit, however, is not a medical expert. No evidence was presented regarding the circumstances required to cause heat stroke, nor the likely effect on a person suffering from heat stroke. Nor was any evidence presented from Pitzner's medical records to show that he was, in fact, suffering from heat stroke. Tibbit's unsupported, lay opinion that Pitzner could have suffered from heat stroke did not so undermine the carefully supported testimony of Davidson and Eftekhar as to render the evidence on proximate cause legally insufficient.
We hold the evidence is legally sufficient to support the jury
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