E-Z Mart Stores, Inc. appeals from a judgment favoring Roger Havner and others who brought this tort action for damages resulting from the death of Diana Havner. Based upon a jury verdict finding that E-Z Mart's negligence and gross negligence proximately caused the death of Diana Havner, the trial court entered judgment directing that E-Z Mart pay damages and punitive damages to Diana Havner's survivors.
E-Z Mart does not challenge the sufficiency of the evidence to support the finding that it was negligent in failing to provide a safe place to work. Our decision focuses on the question whether the evidence supports a finding that any of E-Z Mart's conduct proximately caused the death. We find a lack of evidence supporting the finding of proximate cause and reverse the judgment.
Diana Havner worked as a clerk at the E-Z Mart convenience store located on Interstate Highway 30 in Sulphur Springs. She reported before 11:00 p.m. August 1, 1987, to work the night shift, which was to end at 7:00 a.m. the next day. Shortly before 5:00 a.m., Sulphur Springs police officer Jay Owens drove onto the E-Z Mart parking lot, noticing a woman standing outside the store looking in. No one was in the store.
Inside the store, there was no sign of a struggle. A partially filled cup of coffee, a cigarette case, and a burned-down cigarette in an ash tray were found. Diana Havner was a smoker and a coffee drinker. Her purse, containing money and a handgun, was behind the counter. Money was missing from the cash register, although certain large bills were found where, presumably, Diana Havner had hidden them, as was the practice for the clerks at this store. Her automobile was parked in the parking lot.
Five days later, the Sulphur Springs police found Diana Havner's partially clad, badly mutilated body in a remote, undeveloped residential area of the city. The medical examiner determined that she died as a result of blunt injuries to the head which caused massive destruction of the skull. The criminal acts surrounding Diana Havner's death remain unsolved.
The trial court submitted questions to the jury concerning negligence, gross negligence, proximate cause, actual damages and punitive damages. The jury found that E-Z Mart failed to furnish a safe place to work, that this failure constituted negligence and gross negligence, and that such negligence proximately caused actual and punitive damages. Aside from a claim that the trial court erred in allowing a trial amendment increasing the amount of punitive damages sought to the amount found by the jury, all of E-Z Mart's complaints assail the legal and factual sufficiency of the evidence to support various findings of the jury. Because we find a lack of evidence to support the jury's finding of proximate cause, we decline to address the legal issues raised on this appeal which do not concern the proximate cause question.
*Page 118 The trial court charged the jury that proximate cause was that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. The court further instructed that the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.
The concept of proximate cause has traditionally been more easily stated than applied. The proximate cause issue has perhaps evoked more disagreement in the field of tort law than any other question, which might explain why opinions on the subject are "in such a welter of confusion." W. PROSSER W. KEETON, PROSSER AND KEETON ON THE LAW OF TORTS § 41 (5th ed. 1984). Proximate cause consists of two elements: cause in fact and foreseeability. Nixon v. Mr. PropertyManagement, 690 S.W.2d 546 (Tex. 1985); Missouri Pac.R. Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex. 1977); Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352 (1951).
The relationship between one's tortious conduct and others' criminal acts is not easily stated. Ordinarily, the criminal conduct of a third party is a superseding cause relieving the negligent actor from liability. But, the tortfeasor's negligence is not excused where the criminal conduct is a foreseeable result of such negligence. Nixon v. Mr.Property Management, 690 S.W.2d 546.
The RESTATEMENT (SECOND) OF TORTS § 448 (1965) addresses this issue, saying:
The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.
However, we are not concerned with the foreseeability element of proximate cause. For our purposes, we assume that it is foreseeable that a convenience store clerk might be murdered, abducted, robbed, sexually assaulted, or otherwise harmed by a criminal. We assume that in negligently failing to provide a safe place to work, E-Z Mart should have reasonably anticipated that harm might result to the worker. Thus, we narrow our analysis to the proximate cause element of cause in fact.
In determining whether any evidence supports a finding of the cause in fact element of proximate cause, we are aware that the finding cannot be established by mere guess or conjecture, but must be established by evidence of probative force.McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex. 1980). The cause in fact element is established when a fact finder can reasonably conclude that the negligent conduct was a substantial factor in bringing about the injury and without which no harm would have occurred. McClure v.Allied Stores of Texas, Inc., 608 S.W.2d at 904;Missouri Pac. R. Co. v. American Statesman, 552 S.W.2d at 103.
A brief look at some of the facts relied upon to show negligence adds little to our analysis of the proximate cause issue. The essence of the proof at trial was that E-Z Mart should have had a different telephone system, better lighting in the store, an alarm system, a safe for the money taken in, two clerks instead of one, and better training on what to do when abducted.
The most favorable evidence presented to establish proximate cause came from one of the investigating officers with the city police department. Sergeant Robert Stidham had worked with the department for thirteen years and had been in police work since he graduated from high school. Stidham testified that he investigated the crime scene after Diana Havner was discovered missing. He examined her purse, which contained personal belongings, money, and her handgun. Based upon his investigation, Stidham formed several opinions. Among other
*Page 119 things, he opined that Diana Havner was abducted, kidnapped, sexually assaulted, robbed, and murdered. More pertinent to the causation issue was Stidham's opinion that if there had been a security system which sounded an alarm in the police station, Diana Havner would be alive today. TEX.R.CIV.EVID. 701 allows a lay witness to give an opinion or draw an inference based on his perception of the facts. While a "shorthand" rendering of the facts is allowable, opinions which are nothing more than guess, speculation and conjecture are not probative evidence. Stidham's opinion, that with a better alarm system Diana Havner would be alive today, was not one based on his perception of the facts. We view this opinion, although favorable to the jury's finding of proximate cause, as pure speculation. It is not probative evidence of cause in fact.
Another opinion was offered in this regard. Norman Gray, a former policeman for the city of Greenville, Hunt County deputy sheriff, and private investigator, testified for the Havners. At the time of trial, he was manager of Greenville Alarm Systems, and the trial court ruled that he was qualified to testify as an alarm expert. After testifying concerning various alarm systems, he gave, over objection, his opinion about whether Diana Havner would be alive had there been an alarm system at E-Z Mart at the time of her death. He testified as follows:
I would have to say it this way: You cannot be completely sure, but I feel like all the time that was consumed in taking the money and getting the lady to leave the store, the police would have had a great opportunity to arrive before she was carried away from the place of business.
We view this opinion, too, as being mere conjecture and speculation — not probative evidence of proximate cause. Being qualified as an alarm expert authorized Gray to testify about scientific, technical or other specialized knowledge. TEX.R.CIV.EVID. 702. However, Gray's opinion set out above was merely his speculation or feelings about nonscientific or nontechnical matters and does not rise to probative evidence of proximate cause. See generally 2 R. RAY, TEXAS LAW OF EVIDENCE CIVIL AND CRIMINAL §§ 1399-1401 (Texas Practice 1980 Supp. 1990).
A plaintiff must only show that the greater probability is that the negligent conduct of a defendant caused harm, and this proof may be made by circumstantial evidence. Birminghamv. Gulf Oil Corporation, 516 S.W.2d 914, 917 (Tex. 1974). The difficulty which this case presents is in determining whether there is evidence from which reasonable minds can infer that E-Z Mart's conduct was a cause in fact of Diana Havner's death. As significant as the evidence in this record is, equally significant is the absence of certain evidence. This case presents many unknowns. We do not know who the assailant was, whether he, she or they were armed, whether Diana Havner was ordered from the premises, taken by ruse, or otherwise; and we do not know if she was actually abducted. There is far too little known about the causes or motivations behind the criminal acts committed against Diana Havner for this Court to conclude that there is any evidence that any conduct by E-Z Mart caused the harm to Diana Havner.
This case is similar to an earlier case in which the cause in fact element of proximate cause was the key issue, that ofEast Texas Theatres, Inc. v. Rutledge, 453 S.W.2d 466 (Tex. 1970). In that case, a theater patron threw a bottle, hitting the plaintiff as she left the theater, and the plaintiff sought to show that the theater was at fault by allowing the theater crowd to become rowdy. The plaintiffs sought to show that the implementation of various security measures would have prevented the harm to her. The court held that there was no evidence to prove the cause in fact element of proximate cause. The court, citing PROSSER for the proposition that there must be some reasonable connection between the defendant's conduct and the harm to plaintiff, held that:
*Page 120[T]he plaintiffs have failed to offer evidence of probative force to establish the cause-in-fact element of proximate
cause. . . . [I]t cannot be said from this record that had the defendant removed the "rowdy persons" from the premises, the bottle thrower would not have thrown the bottle. The record in this case clearly shows a complete lack of proof that the bottle would not have been thrown "but for" the failure of the defendant to remove "rowdy persons" from the premises.
453 S.W.2d at 469.
Similarly, the record in the case before us wholly fails to show that Diana Havner would not have been harmed butfor the negligence on the part of E-Z Mart. In making this determination of no evidence, we consider only the evidence tending to support the finding, view it in the light most favorable to the finding, give effect to all reasonable inferences therefrom, and disregard all evidence to the contrary. Glover v. Texas General Indemnity Company,619 S.W.2d 400 (Tex. 1981). Analyzing the evidence and applying this standard of review, we nevertheless are unable to conclude that E-Z Mart's conduct was a substantial factor in bringing about the harm to Diana Havner and but for which no harm would have occurred. We, like the court inEast Texas Theatres, are compelled to say that, "it would be just a guess as to what subjective effect" E-Z Mart's conduct may have had upon the criminal actor. East TexasTheatres, Inc. v. Rutledge, 453 S.W.2d at 469. Accordingly, we hold the jury's finding of proximate cause to be supported by no evidence.
Several more recent cases have been suggested as evincing a change in the law since the East Texas Theatres decision. Counsel for the Havners asserts flatly that the question of proximate cause is to be decided by the jury, citing Nixon v. Mr. Property Management, 690 S.W.2d 546. This case, and others of a similar nature, such asCastillo v. Sears, Roebuck Co., 663 S.W.2d 60 (Tex.App.-San Antonio 1983, writ ref'd n.r.e.); andWalkoviak v. Hilton Hotels Corp., 580 S.W.2d 623 (Tex.Civ.App.-Houston [14th Dist.] 1979, writ ref'd n.r.e.), are not germane to the issue before us. Those cases primarily pertain to whether criminal conduct is something foreseeable and only incidentally concern the cause in fact element of proximite cause. Furthermore, those cases are summary judgment cases which do not hold that cause in fact existed in the circumstances in those cases. Arguably, however, those cases might be said to indicate that, under circumstances like those present in this case, there is some evidence of cause in fact. Thus, if we are wrong in holding that there is no evidence of cause in fact, we now consider whether that evidence is sufficient to support the finding of proximate cause.
Our review of the evidence in this connection reveals that the evidence of cause in fact is insufficient under the review standard of Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986), and In re King's Estate, 150 Tex. 662,244 S.W.2d 660, 661-62 (1951). The evidence does not establish whose conduct proximately caused Diana Havner's death. For example, the evidence concerning the lack of an alarm system is not probative of proximate cause: the police reaction time to an alarm was shown to be substantially greater than the time it would take to rob the store and kill or abduct the clerk. And, under the evidence, a better telephone system, different lighting, or more extensive training would not have prevented the death. In fact, none of the measures that E-Z Mart failed to take to provide a safer place to work was shown to be any greater protection to the clerk than the handgun in her purse proved to be. None of E-Z Mart's conduct was shown to have proximately caused Diana Havner's death. If there is evidence which can be said to establish the finding of proximate cause, we conclude that it is wholly insufficient to support that finding.
The judgment of the trial court is reversed, and a take nothing judgment is here rendered.
GRANT, J., dissented and issued an opinion.