NO. 07-01-0288 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L B JUNE 12, 2003

______________________________ JOJOS RESTAURANTS, INC. Appellant
v. JERM AINE M CFADDEN AND M ARIA M CFADDEN , Appellees

_________________________________ FROM THE 129 TH DISTRICT COURT OF HARRIS COUNTY; NO. 98-38676; HON. PATRICK MIZELL, PRESIDING

_______________________________

Opinion

_______________________________ Before JOHNSON, C.J., QUINN and REAVIS, JJ. Thiscase involves the issue of prox imate caus e, in general, and the element of cause-in-fact, in particular. In accorda n ce with the j ury’s verdict, j udgme nt was entered awarding Jerm aine McFadden and Maria McFadden damag es against Jojo’s Restaurants, Inc. (Joj o’s). On appeal, Jojo’s argues that there w as no evidence or factually insufficient evidence to sup port

the jury ’s finding that it breached any duty owed to t he McFaddens or2

thatthe breach, if any, proxim ately caused their injuries. So too does it allege that the trial court erred in the m anner in which it proportioned liabili ty for the dam ages. We nee d on ly address the issue of causati on and whether the McFaddens pr oved same by a prepon dera nce of the evidence. Conc luding that they did not, we reverse and render judgm ent. Backgr ound The McFaddens j oined Charles Haywood and an individual ni cknam ed Peewee for
an ev ening of cam araderie. It bega n around 10 p.m . and invo lved j ourn eying i n Haywood’s car

to aloca l nigh tclu b. T her e th ey r em aine d un til s hor

tly be fo re 2 a .m. At that time, the group decided to leave and ge t something to eat. So, they entered Haywood’s
car. Haywood drove, w hile Peewee sat in thefront passenger’s s eat and the McFaddens sat in the rear. The group decided togo to Joj o’s, a restaurant located across the street from the nightclub. Negotiating thetra ffic

at t hat tim e of them orn in g, they dr ove across the st reet, entered a parki ng lo t adjacent to Jojo’s, an d proce eded to wards it . As they did, the group noticed that it w

as crow ded. S o too did t hey not ice that the park ing lot b ehind the restaurantwas f

ull. This caused them to decide to go elsewhere. A ttem pt was then m ade to leave via the exit located in the parking lot behind the restaurant. As Hay wo od proceeded to the ex it, he discovered a white Tercel blocking th e driveway. He stopped behind the car. At tha t point, two fem ales left the Tercel, walked around to its dri ver’s side, conversed mom entaril y with the driver , and then entere d Jojo’s. The Tercel remained stationary but with its engine on. Becom ing impatient, Hayw ood3

honked his car hor n and blinked its lights in an effort to get the Tercel to m ove. Rather than move, its driver (an individual named Rodriguez) “gesture[d]” at Haywood in either
a “foul” manner or in a m anner m eaning “whatever.” H aywood pulled alongside the Tercel and exchanged curse words with Rodriguez. W ithin seconds after the exchange began, the McFaddens saw

Rodriguez raise a shotgun fromtheare a of his lap a nd p oint

itout the
car window . Peewee ducked. Jerm aine sh outed and directed Hayw ood to leave. In response , Hay woo d p ul le d t he car ar ou nd th e T er ce l a nd exi te d t he lo t. Howe ver , Rodriguez fired as Haywood at tem pte d to leave. The proj ectile he discharged (a slug) struck Jermaine’s arm, leg and hand an d then struck Haywood in the ba ck. Haywoo d and Jerm aine realized that they had been shot. Yet, Haywoo d drove to
a nearby street and sto pped. Peewee imm ediately exited the car and ran back to the area from which the y left to se cure help from the police. Apparently, police or security personnel were located in parking l ots at other establ ishments in the area . The poli ce returned with Peewee and requested medical assi st anc e for Jerm aine and Haywood

. Jerm aine recovered after brief hospitalization. Haywood died fromhis gunshot wound. The McFaddens and th e estate of Hayw ood sued Joj o’s for negligently failing to provide a secure and safe place fo r them . Allegedly, Jojo’shad notice of o the r vio lent
cr i me occurring in its parking lot and, therefore, had the duty to place security pers onnel in the lot during what they term ed the “bar rush,” a several hour period beginning around the time area bars

closed. Furtherm ore, the police officer it actually ha d retaine d and assigned to m onitor both the inside of the restaurant and the pa rking lot was insufficient,4

in their view. Again, the complainants asserted that at least one security officer had to be stationed solely in the parking lot. Attria l, lay and expert testimony was presented, as was other eviden ce. Once each side had rested, the caus e was s ubmitted tothe jury

. The latter found both Haywood and Jojo’s negligent. However, it attributed 70 p ercent of the negligence to Hayw ood and 30 percent to Joj o’s. The trial cou rtthen entered judg ment obligating Jojo’s to pay for all of the dam ages suffered by the McFaddens. J ojo’s alone appealed.

Issue One - Legal and Factual Sufficiency As previously mentioned, J ojo’s questions the legal and factual sufficiency of the evidence underlying the jury’s verdict. We address that question as it relates to causation and, upon addressing it, sustain the issue. Applicable Law The standard of review used in determ ining whether evidence is legally sufficient to support a verdict is stated in Southwest Key Program, I

nc. v. Gi l-Perez, 81 S.W.3d 269 (T ex. 200 2). Tha t is , w hile exam ining the record we m ust view theevidence in a light that tends to support the findi ng of causatio n and disre gard all evidence and inferences to the contrary. Id. at 274. Furtherm ore, no evidence supports the verdict when, am ong other things, the record di scloses a complete absence of evidence of a vital fact or the evidence tending to prove the vital fact is no m ore than a scintilla. Marathon Corp. v. P itz ner, No. 01-0870, 2003 WL 21197255 (Tex. May 22, 200 3). Next, proxim ate cause consists of tw o elements. One is foreseeability, and the other is cause-in-fact. Id. ; Southwest K ey Program, Inc. , 81 S.W.3d at 274; Doe v. Boys5

Clubs of Greater Dallas, Inc. , 907 S.W.2d 472, 477 (Tex . 1995). The latter is that which
we address here. Furtherm or e, t o establish it, the com plainant must show that t he misconductwas a substantial factor in bringing about t he inj ury and witho ut w hich the h arm
w ould not have occurred. Id. This is done by show ing that“it was m ore probable than not that[th e co m plain ant

] w ould not have been injured” had the purporte d m isconduct not occurred. See Southwest Key Program, Inc. , 81 S.W .3d at 275 (hol ding that th e evidence did not es tablish tha t “it was m ore probabl e than not that Gi l-Perez would no t have been injured had he been w

earing ordinar

y prote ctive gea r”). For instance, if it is shown that the injury would have resulted even though the defendant did that w hich the plaintiff contends sho uld have been done, then the pur ported negl igence i s not a cause-i n-fact of the i njury. SeeDoe v. Boy

s Clubs of Greater Dallas, Inc. , 907 S.W .2d at 477-78. Nor is cause-i n-fact established if the misfeasance di d no more than furnish a cond itio n which m ade the injury possible. Doe v. Boys

Clubs of Greater

Dallas, Inc. , 907 S.W.2d at 477. Finall y, while one may pro ve caus atio n viadire ct o r cir cum sta ntia l e vide nce , itcannot be based upon conject ure, guess, or speculation. Marathon Corp. v. P itz ner, supra ; Doe v. Boys Clubs of Greater Dallas, Inc. , 907 S.W.2d at 477. Application of Law Here, the Mc Faddens contended that Joj o’s caused their injury because it did not assign security personnel to exclusively monitor the parking lot during “bar rush” hours. To prove this, they offered te stimony illustrating that the presence of un i formed police officersor like indivi duals would have had a gen eral deterrent effect on crim e occurring in the lot. Im plici t ly, the type of crim e about wh ich they spoke w as that w hich involved1 The exp er t o f Jo jo ’s co nfi rme d that v iol ent crim e, especially that inv olv ing emot ion or passion, “happ ens

quite often” in thepres ence o f police officers.

6 forethought

or t he u se of re aso n. T hat this is true is readily exem plified by the testimony of their expert. In explaining the value of an officer’s presence, he described how it w ould be “[s]om ething thata criminal wo uld view and say, . . . I think I’ll not do it.” In oth er words, the expert op ined that the criminal would weigh the risk of capture in assessing w hether to com mit the c rim e. C om m on s ens e dic tates t hat

one ’sattem pt to as ses s ris k en tails contem plation, and contem plation involves forethought about one’s actions. Yet , no evidence was offered tending to illustrate that one acting suddenly and upon em otion or pro voc atio n utili zesthesam e th oug ht p roc ess es a s on e pla nnin g tocom m it a crim e . Rather, the very sam e expert adm itted that a n off icer’s presence was “not a guarantee” thatan incident would not occur. So too did he acknowledge that there existed c rimes that may occur despite the presence of a uniformed officer. One such crim e, according to the expert, involved people fighting when they “ got angr

y at each other.” 1 (Em phasis ad ded). So, while there app ears to be evi dence suggesti ng that the presen ce of sec urity off icers may have re duced t he lik elihood of crime involving forethought, that constitutes no evidence th at i t s i mi l ar l y r ed uc es th e l i ke l i ho od of cr i me arising suddenly from provocation
or em otion, and that is the type of crime that occurred at bar. SeeEast Tex. Theatres, Inc. v. Rutledge , 453 S.W.2d 466, 469 (Tex. 1970) (noting that even if the pers on who threw
a bottle and struck the victimhad seen the theater person nel remove others for “r owdy” behavior “it would be just a guess as to what subj ective effect such ac tion may have had upo n th e bo ttlethr

ower” ). N or d id an yon e te stif y th at it wasmo re probable than not that2 To the extent that the McFaddens ’ expertopined that the parti es may not hav e been angry des pite th e h onking, f lashing of l ights, cursing, and shooting, he nonethel ess conceded that at least one emoti on ca me into play, that emot ion being “anx iety.” F urthermor e, no one denied that the shooting was s pontaneous and aros e immediately after the honkin g, flashin g of lights , and cu rsing . So, a ssu mi ng that Rodriguez reacted with a cool m ind y et spontaneo usly, th ere still remains a d earth of evidence permitting one to rat ion ally

inf er that his conduct would hav e been altered in any way simpl y by the presen ce of a sec urity off icersomewhe re in the parking l ot and not necessarily adjacent t o the locale where the exchange occurred. 7 assigning security officers to the lot w ould h ave prevented Rodriguez fromshooting at Haywoo d in response to ex pletives being exchanged. 2 And, the importance of a crime’s spontaneity and stim ulus in assessing causation has been underscored by other courts. For instance, in Donnell v. S pring Sports, Inc. , 920 S.W.2d 378 (Tex. A pp.--Houston [1st D ist.] 1996, writ denied), a fight broke out between those play ing asof

tba ll game. Like the McFaddens at bar, Donnell sued and contended that Spring Spor ts should have provided security guar ds to deter such conduct and that th e failure to do so proxim ately caused his injuries. In rej ecting the contention , th e reviewing court stated that “[w]hile the presence of s ecurity guards could deter the crim inal
a ctof a third party seeking an easy opportunity to com mit a crim e, we canno t conclud e from this tha t th eir

presence w

ould deter fights between participants in a hotly contested ath letic endeavor.” Id. at 384-85. We agree. Though ma n has been term ed a “rational anim al” by at

leas t on e ph iloso phe r, it is beyond dispute that em otion and provocation can displ ace rationality and contemplation. When such charac t eristics are displaced, the ensuing response can be sudd en and un ex pe ct ed fr om a norma lly rational human being. Indeed, the McFaddens’ ow n ex per t co nce ded tha t “n o on e, in clud ing J oj o’s , kn ew tha t th is
wasgoing to h appen.”8

Similarl y, in Yarborough v. Erw ay , 705 S.W.2d 198 (Tex. App.--Hous ton [14th Dist.] 1985, writ ref’d n.r.e. ), the sudden nature of the f ight also had an impact o n the resulting opinion. According to the cou rt, the tim e t hat “ela psed between the[] [combatants’] decision to go out side and th e st ab bi ng was o nl y a ma tt er of sec on ds oron e t o t wo minutes.” Id. at 203. Fur the rm ore , noonetes tifie d “t hat the[de fen dan t’s ] em ployeescou ld have taken any action to preven t E rway’ s injuries even if they had k nown the f ight was immi nent .” Id . (E m pha sisadded). These circum stances resulted in the court holding that
no evidence existed of a causal conne ction between the misfeasa nc e of the nightclub owner and theinjuries suffered as a result of the fight. Like the court in Yarborough , we too have noevidenceof reco rd indicating that even if Jojo’s knew a f ight wasimm inent and h ad security personnel som ewhere in the parking lot at the tim e, the security personnel would have had tim e to effectively intercede and prevent the shooting. In sum , w hat

theMc Fad den s pr

opo sed is akin to that rej ected by theSuprem e Court in East Tex

as Theatres, Inc. v. Rutledge . There, like he re, th e court was faced w ith deducing the effect an exercise of au thority would have upon the condu ct of a third pa rty. There, the injured argue d that the fail ure of theater personnel to remove “rowdy persons”
or to exe rcis e like supervision over the situation em boldened a third party to act. In response, the court stated that “[i]t i s purely specu lati ve as to what would have happened had the def

endant a ttem pted torem ove the‘row dy pers ons’ f

rom the the ater.” Eas t T ex. Theatres, Inc. v. Rutl

edge , 453 S.W.2d at 469. “If present at the tim e of rem oval of the persons who w

ere ‘hollering’ and throwing paper cups, it w ould be just a guess as to what subjective effect such ac tion may have had upo n th e bo ttlethrow er.” Id. Likewise, i f Jojo’s3 This assumes that Rodriguez would hav e even seen the hypotheti cal of fi cer in the fi rst place. Indeed, if

the presence of an off icer is supposed to cause one intending to engage in m isconduct to thi nk twice, as sugge sted by t he M cF adde ns’ ex per t, the n l ogi c di ct ate s tha t t he pr ospec ti v e cr im in al m ust f ir st p e rce ivethe o ffi ce r. If h e d o e s n o t p e rce iveh im , t h e n th e vis a g e o f a u n if o rm ca n h a rd ly

h a ve any effect upon his menta l proces ses . And, whether Rodriguez would hav e even seen the of fi cer had one been stationed in t he lo t is utte r sp eculation . Nor did anyon e present evidence to morph th is s pecula tion to reas onab le inference

or fact. 9 had assigned security personnel to the parking lot atthetim e in q ues tion , it w ould be li ttle more t han a guess as to what subj ective effect that would have had on Rodriguez when responding to Ha ywo od ’s co nf ro nt at i on of hi m. 3 No evidence appears of record illustrating
or permitting one to r ational ly infe r that had securi ty perso nnel been assigned to the parking lot the harm emanating from the sudden and vio lent exchange would not h ave occurred. To conclude otherw ise would be to engage in speculation, an act w hich we cannotdo. At most, Joj o’s created a condition which allowed the injury toocc ur. Tha t is notthe sam e as causing the injury in fact. And, while restaurants have a “duty to exercise
rea son ablecare for the safety of [their] pa trons . . . [they] are not insu rers of thei r patron’s safety .” East Tex

. Theatres, Inc. v. Rutledge , 453 S.W.2d at 469-70. Accordingl y, we hold that noevide nce of prox imate caus e appears of record,
reverse th e ju dgmen t o f the trial court, and rende r judgment that the McFaddens take nothing ag ai ns t Jo jo’s . Ha vi ng he ld as we do, we need notaddress any of the other issues asserted by Joj o’s.

Brian Quinn Justice