Affirmed; Opinion Filed September 25, 2015.

In The 

## Court of Appeals Fifth District of Texas at Dallas

No. 05

- 14

- 01044

- CV

JOSEPH STUMPH, JOYCE STUMPH , and SHAWN MICHAEL STUMPH , Appellants
V. DALLAS LEMMON WEST, INC., DALLAS LEMMON WEST, INC. d/b/a THE LOON ,

and CC

- TURTLE CREEK, INC. , Appellees

On Appeal from the 192nd Judicial District Court

Dallas County, Texas Trial Court Cause No. CD

- 11

- 11015

- K



### MEMORANDUM OPINION

Before Justic es Lang, Fillmore, and Whitehill

Opinion by Justice Lang Joseph, Joyce, and Shawn Stumph appeal the trial court’s take nothing summary judgment in

favor of Dallas Lemmon West, Inc. and Dallas Lemmon West, Inc. d/b/a The Loon (collectively

the Loon ) and CC

- Turtle Creek , Inc. on their Texas Dram Shop Act and premises liability

claims. In two issues, the Stumphs assert that the trial court erred when it granted summary

judgment for the defendants because: (1) the record contains evidence that the Loon served

S hawn Stumph alcohol when he was obviously intoxicated which proximately caused Shawn to

fall from the CC

- Turtle Creek bridge and sustain injuries; and (2) the record contains evidence

that the bridge owned by CC

- Turtle Creek contained dangerous defects tha t proximately caused

Shawn Stumph to fall from the bridge and sustain injuries. For the following reasons, we affirm

the judgment of the trial court.– 2

– I. FACTUAL AND PROCEDURAL BACKGROUND

Shawn Stumph was leaving his job and was given a party by his cowork e rs at an

establishment by the name of “The Quarter Bar.” Th e party started at about 6:15 p.m. on August

26, 2010. There, Shawn ordered and paid for six gin drinks. The record does not reflect whether

Shawn drank any or all of those six drinks. Around 10:30 that night, one of Shawn’s friend s

dropped him off at a nearby bar known as “the Loon.” Shawn left the Loon alone, on foot

,
around 12:45 a.m. He was not seen again until approximately 7:14 a.m. on August 27, 2010

.
At that time on August 27, a jog ger found Shawn unconscious in a creek bed beneath a

“vehicular” bridge owned by CC

- Turtle Creek

. The bridge was abutted on one end by Bowen

Street and on the other end by a grassy field. CC

- Turtle Creek purchased the bridge and the

grassy field in 2005 to construct and operate a senior living community in the grassy area. In

2008, development of the property had not yet begun, and CC

- Turtle Creek altered its

construction plans and attempted to sell the bridge and adjacent grassy area. In 2011, CC

- Turtle

Cre ek sold the entire property. CC

- Turtle Creek claims that between 2008 when it altered its

development plans and 2011 when it sold the property, no business activities were conducted on

the bridge or in the field. The previous owner of the bridge erected a chain link fence across the

entrance to the bridge that abutted Bowen Street, and CC

- Turtle Creek retained that fence. CC

Turtle Creek did not erect a similar barrier on the other end of the bridge, and it remained

accessible from the entrance point of the grassy field.

When Shawn Stumph was found beneath the bridge on August 27, 2010, his blood

- alcohol

content was more than one

- and

- a

- half times the legal limit. Medical records also indicate d that

Shawn suffered facial and skull fractures, a traumatic brain injury, rib and other fractures, and

laceration of his right kidney and liver

. Shawn’s medical records state in one entry that he “was

the victim of aggravated assault,” and that he “was thrown from a 20 ft. bridge pta.” Another– 3

–

entry in his medical recor ds state s the cause of his injury as a “possible fall from bridge vs. Agg.

assault.” A third entry in his medical records states that Shawn mig ht have jumped from the

bridge.

The police report made after Shawn was discovered in the creek bed notes that Sha wn had

“apparently fallen from the bridge above.” It also notes there were “no signs of struggle on [the]

bridge,” and that it was unknown wh ether Shawn was pushed or fell. Also noted is a statement

that the officer was responding to a person injured by “u nknown means.”

One or two days after Shawn Stumph was found unconscious beneath the bridge , his father,

Joseph, met with a police officer who took him to the location where a jogger found Shawn on

the morning of August 27, 2010. At that time, Joseph took p hotographs of the bridge and creek

bed. The photographs reflect that the chain link fence spanning the end of the bridge that

bordered Bowen Street was bent

, leaving a two to three foot gap that could allow people to enter

t he bridge from Bowen Street

. The photographs also reflect that the bridge lacked guardrails on

one of its sides and was unlit. Additionally, there were no warning signs advising that the bridge

lacked guardrails or that trespassers should stay off the bridge.

Shawn remembers nothing . N o witnesses were identified who saw any events involving

Shawn at or near the bridge

. The record reflects no evidence indicating whether Shawn was ever

on the b ridge, by what route Shawn might have entered the bridge , and i f Shawn did enter the

bridge, whe ther he did so alone.

On August 31, 2011, Joseph and Joyce Stumph filed suit on behalf of their now

- incapacitated

son. The Stumphs fifth and final amended petition alleged liability of the Loon under the Texas

Dram Shop Act and premises liability as to CC

- Turtle Creek. Both the Loon and CC

- Turtle

Creek filed no

- evidence and traditional motions for summary judgment, the Stumphs filed– 4

–

responses, and the trial court granted summary judgment for both the Loon and CC

- Turtle Creek.

The Stumph s now appeal.

II. SUMMARY JUDGMENT

A. Standard of Review

We review the decision to grant a motion for summary judgment de novo. Mid

- Century Ins.

Co. v. Ademaj

, 243 S.W.3d 618, 621 (Tex. 2007).

In reviewing a traditional summary judgment in favor of a defendant, we determin e whether

the defendant conclusively disproved an element of the plaintiff’s claim or conclusively proved

every element of an affirmative defense. Smith v. Deneve

, 285 S.W.3d 904, 909 (Tex. App.

—

Dallas 2009, no pet.)

. A matter is conclusively proved if “or dinary minds could not differ as to

the conclusion to be drawn from the evidence.” Estate of Hendler

, 316 S.W.3d 703, 707 (Tex.

App.

– Dal las 2010, no pet.).

In reviewing a no

- evidence summary judgment in favor of a defendant, we apply the same

legal sufficiency standard used to review a directed verdict. See T EX . R. C IV . P. 166(a)(i); Gen

.

Mills Rests

. , Inc. v. Tex

. Wings, Inc.

, 12 S.W.3d 827, 832

– 33 (Tex. App.

– Dallas 2000, no pet.).

We must determine whether the nonmovant produced more than a scintilla of probative evidence

to raise a fact issue on the material questions presented. Bever Props., L.L.C. v. Jerry Huffman

Custom Builder, L.L. C

., 355 S.W.3d 878, 885 (Tex. App.

– Dallas 2011, no pet.).

More than a scintilla of evidence exists if the evidence would allow “reasonable and fair

minded people to differ in their conclusions.” Ford Motor Co. v. Ridgway

, 135 S.W.3d 598, 601

(Tex. 2004). “ Evidence that is so slight as to make any inference a guess is in legal effect no

evidence.” Id.– 5

–

In reviewing both a traditional and a no

- evidence summary judgment, we take evidence

favorable to the nonmovant as true, and indulge every reasonable inference and resolve every

doubt in favor of the nonmovant. Deneve , 285 S.W.3d at 909.

B

. Proximate Cause

1. Applicable Law

The Stumphs’ claims assert Texas Dram Shop Act liability of the Loon and premises liability

as to CC

- Turtle Cre ek. Both of these theories of li ability require the Stumphs to establish the

proximate cause of Shawn’s injuries. LMB, Ltd. v. Moreno

, 201 S.W.3d 686, 688 (Tex. 2006) ( a

landowner’s failure to use reasonable care to reduce or eliminate an unreasonable risk of harm

must proximately cause injury); T EX . A LCO . B EV . C ODE A NN

. § 2.02(b) (West 2007) (requiring

the intoxication of the recipient of the alcoholic beverage to proximately cause the damage

suffered). T he Loon and CC

- Turtle Creek moved for summary judgm ent on the ground there

was no evidence the conduct of the Loon or the condition of CC

- Turtle Creek’s premises

proximately caused Shawn’s injuries.

Proximate cause requires evidence that establishes both cause

- in

- fact and foreseeability.

Smith v. Mohawk M ills, Inc.

, 260 S.W.3d 672, 675 (Tex. App.

– Dallas 2008, no pet.) . This Court

has explained that “[a]n act or omission is a cause

- in

- fact

- of an injury if it was a substantial

factor in causing the injury and without the act or omission, the harm would not h ave occurred. ”

Id. at 675

– 76. A finding of cause in fact may be based on either direct or circumstantial

ev idence, “but cannot be supported by mere conjecture, guess, or speculation.” Marathon Corp.

v. Pitzner

, 106 S.W.3d 724, 727 (Tex. 2003). Additionally, “an inference stacked only on other

inferences is not legally sufficient evidence. ” Id. at 728. Where the circumstances could give rise

to “any number of inferences, none more probable than the other” causation is not established.

Id. at 729.– 6

–

Evidence that a defendant’s conduct furnished “a condition which makes the injuries

possible” is not evidence of proximate cause. IHS Cedars Treatment Ctr. of Desoto, Tex

. , Inc. v.

Mason

, 143 S.W.3d 794, 799 (Tex. 2004). This is because “ the conduct of the defendant may be

too attenuated from the resulting injuries to the plaintiff to be a substantial factor in bringing

about the harm.” Id.

In Pitzner

, an air conditioning repairman sued a commercial tenant for injuries he claimed to

susta in in a fall from the roof of the tenant’s building. Pitzner

, 106 S.W.3d at 725

– 26

. At issue

was whether the repairman produced “legally sufficient evidence that the alleged premises

defects proximately caused his injuries.” Id. The repairman remembered nothing. Id. at 726. His

injuries were consistent with a fall, but also with assault and battery. Id. at 729. The Supreme

Court of Texas found that due to a lack of evidence on the element of proximate cause, the

factfinder could o nly speculate as to (1) whether the repairman had actually fallen from the roof;

(2) whether he actually came into contact with a high

- voltage wire on the roof, causing him to

stumble; and (3) whether and how the lack of a power disconnect on the roof was a substantial

factor in causing the injuries. Id. The Court concluded that Pitzner presented only “slight

circumstantial evidence,” and “something else must be found in the record to corroborate the

probability of the fact’s existence or non

- existence.” Id

. (quoting Lozano v. Lozano

, 52 S.W.3d

141, 148 (Tex. 2001)). Accordingly, the Supreme Court of Texas reversed and rendered a take

nothing judgment, emphasizing that there was “no evidence that the condition of Marathon ’ s

premises proximately caused Pitzne r ’ s injuries .”

Similarly, in Smith

, an invitee fell through an open loading dock door at a warehouse. Smith

,

260 S.W.3d at 673. No one witnessed the accident and Smith remembered nothing. Id

. At issue

was whether a premises defect had proximately caused the plaintiff’s injuries. Id. This Court

affirmed summary judgment for the defendant as there was no evidence in the record indicat ing– 7

–

that an alleged defective condition “ caused or contribute d to Smith ’ s accident.” Id. at 676. Smith

argued that he was struck by a forklift and fell through a defective safety chain

, but the record

contained no such proof

. Id. This Court affirmed the trial court judgment, concluding that

“proximate causation cann ot be shown through conjecture, guess, or speculation.” Id. (citing W

.

Invs., Inc. v. Urena

, 162 S.W.3d 547, 551 (Tex. 2005))

.
2. Application of the Law to the Facts

Similar to Pitzner and Smith , the record in this case shows Shawn Stumph remembers

nothing of how he was injured

. There were no witnesses to the incident that caused his injuries

.
Like the plaintiff in Pitzner

, at least two theories could support Shawn’s claim : he was assault ed

or he sustained a traumatic fall. However, there is no evidence in the record of what happened to

Shawn after he left the Loon at 12:45 a.m. until he was found by the jogger at 7:14 a.m. The

Stumphs have not carried their burden on the element of proximate causation as to either theory

of liability. Accordingly, we decide both of appellants’ issues against them . The trial court did

not err in granting summary judgment for the Loon and for CC

- Turtle Creek

.

III . CONCLUSION

The trial court did not err when it granted summary judgment for th e appellees . The

judgment of the trial court is affirmed.

141044F.P05

/Douglas S. Lang/ DOUGLAS S. LANG JUSTICE– 8

– 

## Court of Appeals Fifth District of Texas at Dallas

JUDGMENT

JOSEPH STUMPH AND JOYCE STUMPH, Appellants

No. 05

- 14

- 01044

- CV V.

DALLAS LEMMON WEST, INC., DALLAS LEMMON WEST, INC. d/b/a THE LOON, and CC

- TURTLE CREEK, INC., Appellees On Appeal from the 192nd Judicial District Court, Dallas County, Texas Trial Court Cause No. DC

- 11

- 11015

- K. Opinion delivered by Justice Lang. Justices Fillmore and Whitehill participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

.

It is ORDERED that appellees DALLAS LEMMON WEST, INC., DALLAS LEMMON WEST, INC. d/b/a THE LOON and CC

- TURTLE CREEK, INC., recover their costs of this appeal from appellants JOSEPH STUMPH AND JOYCE STUMPH.

Judgment entered this 25th day of September, 2015.