Opinion issued April 18, 2013

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-12-00616-CV

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ANTONIO GARCIA TAX A/K/A MARIO A. CUA, Appellant

V.

HOUSTON DISTRIBUTING COMPANY, INC., Appellee

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Case No. 2011-39878

MEMORANDUM OPINION

Appellant, Antonio Garcia Tax, also known as Mario A. Cua (“Tax”), 

challenges the trial court’s summary judgment in favor of appellee, Houston 

Distributing Company, Inc. (“HDC”), in Tax’s suit against HDC for negligence. 
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In his sole issue, Tax contends that the trial court erred in granting HDC summary 

judgment.

We affirm.

Background

In his second amended petition, Tax alleged that on June 10, 2011, he was 

loading beer bottles into a “cooling container” at Sawyer Sportsbar (“Sawyer”), his 

place of employment, at the direction of Sawyer’s owner, Darren Van Delden. 

While loading the bottles, one of them “exploded,” which “caused pieces of the 

beer bottle to become imbedded” in Tax’s right eye. As a result, Tax was unable 

to remain employed and experienced “severe pain and suffering.” Alleging that 

HDC “delivered the defectively manufactured and dangerous bottle,” Tax sued 

HDC for negligence “in the marketing, care, handling, and/or transporting of the 

bottle,” in failing “to inspect the bottles for known defects,” and in failing “to have 

and properly execute appropriate procedures to protect and warn the public and 

employees of proper inspection and handling procedures.” Tax also brought 

negligence and premises-liability claims against Sawyer and Van Delden. And, 

alleging that the defendants acted with malice, he sued HDC, Sawyer, and Van 

Delden for intentional influction of emotional distress. 

In its second amended answer, HDC generally denied Tax’s allegations and

pleaded comparative negligence on the part of Tax. HDC further asserted that it 
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was not negligent or grossly negligent and it did nothing that would constitute a 

contributing cause of Tax’s injuries. In its summary-judgment motion, HDC 

asserted that “HDC owed no duty” to Tax, its conduct “was not a proximate cause” 

of his injuries, and Tax did not “state any facts that would support the claim for 

gross negligence/malice against HDC.” HDC later filed a “Supplement to Its 

Traditional Motion for Summary Judgment,” in which it “include[d] a NoEvidence Motion for Summary Judgment with regard to [Tax’s] cause of action for 

intentional infliction of emotional distress.” 

HDC attached to its motion the deposition of Tax, who testified that one of 

his obligations at Sawyer was to transport alcohol from the downstairs “walk-in 

cooler” to the area behind the upstairs bar. Beer was delivered to Sawyer on 

Thursdays, Fridays, and Saturdays between 12:00 and 1:00 p.m., and it was placed 

in the walk-in cooler. On June 10, 2011 between 10:00 and 10:30 p.m., Tax took a 

box of Dos Equis beer from the walk-in cooler and placed the individual bottles 

into two portable coolers, which he was to carry upstairs to the bar. After placing 

about ten or twelve bottles into the second cooler, Tax placed another bottle into 

the cooler, but it “exploded.” He did not notice anything unusual about the bottle 

before the incident. When the bottle exploded, Tax’s vision “immediately” 

became “blurry.” Although he “passed out,” Tax suffered no cuts or bruises

anywhere on his body. He later threw the bottle into the garbage that had 
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exploded. Subsequently, he discovered that glass from the bottle had pierced his 

right eye, causing him to be “completely blind” in that eye. 

In his response to HDC’s summary-judgment motion, Tax asserted that 

HDC “had the right of control over the subject beer bottle, which proximately 

caused” his injuries, and had notice of “the propensity of beer bottles to explode.” 

Tax attached to his response a copy of a petition, filed in the 280th District Court 

of Harris County in 2002, in which the plaintiff was injured by a beer bottle that 

exploded in her hand. The plaintiff sued HDC and Miller Brewing Company, 

alleging that they were negligent in the “manufacture, design, and/or marketing,” 

the “care, handling and/or transporting,” and the delivery of the bottles. Tax also 

attached to his response his affidavit, in which he testified that he “was given no 

warning by HDC that some of the beer bottles were or could have been defective.” 

After the trial court granted HDC summary judgment, HDC moved to sever 

Tax’s claims against it from his claims against Sawyer and Van Delden. And the 

trial court granted HDC’s motion for severance.1

 

Standard of Review

To prevail on a summary-judgment motion, a movant has the burden of 

proving that it is entitled to judgment as a matter of law and there are no genuine 

 1 Both parties designate the style of the case on appeal as “Antonio Garcia Tax AKA 

Mario A. Tax v. Sawyer Sportsbar, Inc. d/b/a Sawyer Park, et al.” However, 

because the trial court severed Tax’s claims against Sawyer and Van Delden, HDC 

and Tax are the only parties to this appeal. 
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issues of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 

341 (Tex. 1995). When a defendant moves for summary judgment, it must either 

(1) disprove at least one element of the plaintiff’s cause of action or (2) plead and 

conclusively establish each essential element of its affirmative defense, thereby 

defeating the plaintiff’s cause of action. Cathey, 900 S.W.2d at 341. In deciding 

whether there is a disputed material fact issue precluding summary judgment, 

proof favorable to the non-movant must be taken as true, and the court must 

indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); 

Lawson v. B Four Corp., 888 S.W.2d 31, 33–34 (Tex. App.—Houston [1st Dist.] 

1994, writ denied).

Summary Judgment

In his sole issue, Tax argues that the trial court erred in granting HDC 

summary judgment because “HDC has a duty to warn others with whom it 

transacts business and sells the bottles, that under certain circumstances, the beer 

bottles can and will explode in the hands of those handling them.” Tax also asserts

that genuine issues of material fact exist regarding whether HDC proximately 

caused his injuries.

The common law doctrine of negligence consists of three elements: (1) a 

legal duty owed by one person to another, (2) a breach of that duty, and (3) 
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damages proximately resulting from the breach. El Chico Corp. v. Poole, 732 

S.W.2d 306, 311 (Tex. 1987); Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 

(Tex. 1975). The threshold inquiry in a negligence case is duty. El Chico, 732 

S.W.2d at 311. A duty is “a legally enforceable obligation to conform to a 

particular standard of conduct.” Hand v. Dean Witter Reynolds Inc., 889 S.W.2d 

483, 491 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (citing Way v. Boy 

Scouts of Am., 856 S.W.2d 230, 233 (Tex. App.—Dallas 1993, writ denied)).

The components of proximate cause are cause in fact and foreseeability.

Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). These elements cannot 

be established by mere conjecture, guess, or speculation. McClure v. Allied Stores 

of Tex., Inc., 608 S.W.2d 901, 903 (Tex. 1980); Farley v. M M Cattle Co., 529 

S.W.2d 751, 755 (Tex. 1975). The test for cause in fact is whether the negligent 

“act or omission was a substantial factor in bringing about injury,” without which 

the harm would not have occurred. Prudential Ins. Co. v. Jefferson Assocs., Ltd.,

896 S.W.2d 156, 161 (citing McClure, 608 S.W.2d at 903); see Havner v. E–Z 

Mart Stores, Inc., 825 S.W.2d 456, 458–59 (Tex. 1992); Brown v. Edwards 

Transfer Co., 764 S.W.2d 220, 223 (Tex. 1988). Cause in fact is not shown if the 

defendant’s negligence did no more than furnish a condition which made the injury 

possible. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 

(Tex. 1995); Bell v. Campbell, 434 S.W.2d 117, 120 (Tex. 1968). “The evidence 
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must go further, and show that such negligence was the proximate, and not the 

remote, cause of resulting injuries” and “justify the conclusion that such injury was 

the natural and probable result thereof.” Doe, 907 S.W.2d at 477 (quoting Carey v. 

Pure Distrib. Corp., 124 S.W.2d 847, 849 (Tex. 1939)); see also Boyd v. Fuel 

Distribs., Inc., 795 S.W.2d 266, 272 (Tex. App.—Austin 1990, writ denied)

(holding that convenience store’s sale of beer to eighteen-year-old was not cause in 

fact of intoxicated driver’s fatal car accident because sale was to passenger and not 

to driver).

Foreseeability, the other aspect of proximate cause, requires that a person of 

ordinary intelligence should have anticipated the danger created by a negligent act 

or omission. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549–50 (Tex. 1985).

The danger of injury is foreseeable if its “general character . . . might reasonably 

have been anticipated.” Id. at 551 (quoting Carey, 124 S.W.2d at 849) (emphasis 

omitted). The question of foreseeability, and proximate cause generally, involves a 

practical inquiry based on “common experience applied to human conduct.” City 

of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex. 1987) (quoting Cook 

Consultants, Inc. v. Larson, 700 S.W.2d 231, 236 (Tex. App.—Dallas 1985, writ 

ref’d n.r.e.)).

Here, regarding the foreseeability of his injury, the only summary-judgment 

evidence presented by Tax was a single plaintiff’s petition, filed in 2002, in which 
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it was alleged that HDC and Miller Brewing Company had been negligent in the 

manufacture and delivery of a beer bottle that had exploded in the plaintiff’s hand. 

However, there is no indication as to how that suit was resolved or whether it was

even meritorious. HDC’s only apparent connection to the beer bottles in question

was in transporting them to Sawyer, not manufacturing them.2

 And Tax testified 

that he noticed nothing unusual about the beer bottle before it exploded in his hand, 

indicating that even if HDC had inspected each bottle for alleged defects, the 

injury would still have not been foreseeable. From this summary-judgment record, 

we cannot conclude that Tax has raised a genuine issue of material fact as to 

whether his injury could have been reasonably anticipated by HDC. See Doe, 907 

S.W.2d at 478 (“Foreseeability requires more than someone, viewing the facts in 

retrospect, theorizing an extraordinary sequence of events whereby the defendant’s 

conduct brings about the injury.”) (citing RESTATEMENT (SECOND) OF TORTS § 

435(2) (1965)).

Furthermore, regarding whether HDC’s actions proximately caused his

injuries, Tax testified that HDC delivered the beer to Sawyer at some time between 

12:00 and 1:00 p.m. Tax, however, did not handle the beer bottle until between

10:00 and 10:30 p.m., nine or ten hours after HDC had delivered the beer to 

 2 We note that Tax has not brought a claim of products liability against the 

manufacturer in this case. Rather, he has brought claims only against the 

distributor, HDC, in addition to Sawyer and Van Delden.
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Sawyer. Tax cites to no evidence that HDC negligently handled or transported the 

bottles. Nor does he cite any evidence that the explosion of the bottle was in any 

way related to HDC’s handling of it. Cause in fact is not established where the 

defendant’s actions do no more than furnish a condition which makes the injury 

possible. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 

794, 799 (Tex. 2004); Doe, 907 S.W.2d at 477 (explaining that defendant’s 

conduct may be too attenuated to constitute legal cause of alleged injury “even if 

the injury would not have happened but for the defendant's conduct”) (citing Union 

Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995); Lear Siegler, Inc. v. 

Perez, 819 S.W.2d 470, 472 (Tex. 1991)). And, in his briefing to this Court, Tax

addresses proximate cause with the bare assertion that “genuine issues of material 

fact exist regarding whether [he] sustained injuries/damages for which HDC is 

liable.” From this record, we cannot conclude that Tax has established that HDC 

proximately caused his injury above “mere conjecture, guess, or speculation.” See 

McClure, 608 S.W.2d at 903.

Accordingly, we hold that the trial court did not err in granting HDC 

summary judgment.
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Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice 

Panel consists of Justices Jennings, Bland, and Massengale.