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Marathon Corp. v. Pitzner8/2/2001
tors, Inc., 960 S.W.2d 41, 48 (Tex. 1998); Hines v. Comm'n for Lawyer Discipline, 28 S.W.3d 697, 701 (Tex. App.-Corpus Christi, no pet.). A legal sufficiency point must and may only be sustained when the record discloses: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; and (4) the evidence established conclusively the opposite of the vital fact. Juliette Fowler Homes, Inc. v. Welch Assoc., 793 S.W.2d 660, 666 n. 9 (Tex. 1990). If there is more than a scintilla of evidence to support the finding, the legal sufficiency challenge fails. Formosa Plastics, 960 S.W.2d at 48; Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987).
When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. Kindred v. Con-Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983); II Deerfield Ltd., 41 S.W.3d at 264. The test for the application of this no evidence/scintilla rule is: if reasonable minds cannot differ from the conclusion, then the evidence offered to support the existence of a vital fact lacks probative force and will be held to be the legal equivalent of no evidence. Id.
2. Evidence Adduced at Trial
It is undisputed that there were two air conditioning units on the dealership roof, spaced about twelve inches apart, fairly near the roof edge. A two-inch natural gas line ran between the units and the roof edge, approximately twenty-nine inches from the edge. The gas line was positioned about five inches above the roof. The top of the roof was approximately twelve feet, ten inches from the ground.
According to Jesse Leos, the Honda-Suzuki store manager, the thermostat for the air conditioning system was inside the building. Hull had serviced the company's air conditioning units since 1982. Usually, a Marathon employee would stay until the serviceman completed his work. Pitzner had worked on the units many times, and although he would usually let Marathon personnel know if he had to stay or if he needed access to the building, he did not say anything to that effect on the day of the accident. Leos and the service manager were the last ones to leave that day. They knew Pitzner was on the roof, but did not tell him they were leaving.
William Bowman, president of Marathon Corporation, testified that the Honda-Suzuki motorcycle dealership is a corporate asset of Marathon, and that he personally owns the building in which the dealership is located. Marathon leased the building from a third party from 1979 until Bowman bought it in 1991. The dealership is open from 9:00 a.m. to 6:00 p.m. Monday through Friday, and on Saturdays from 9:00 a.m. to 5:00 p.m. Bowman testified that Hull did the air conditioning work on the building dating back to at least 1984, perhaps as far back as 1979. Bowman had "no reason to doubt" that Hull was complying with all applicable codes and statutes. He felt there was nothing Marathon could have done to prevent Pitzner's accident.
Dallas Police Detective Paul Lachnitt testified that on the evening of July 18, 1994, Pitzner was found semiconscious on the ground beside the Honda-Suzuki building, covered in blood. His work truck was still in the parking lot. No ladder was found at the site. There was no indication of a robbery, and in Lachnitt's opinion, Pitzner was not the victim of an assault.
Hull testified that he began doing commercial air conditioning work in 1977 or 1978. He i
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