The evidence in this case is legally and factually sufficient to support the jury's finding of proximate cause.
*Page 121 Although the majority did not base its decision on the foreseeability aspect1 of proximate cause, a brief mentioning of the evidence on this aspect is appropriate. E-Z Mart had owned and operated the Sulphur Springs store for approximately four months at the time of the occurrence. This was the first violent crime in that E-Z Mart location. There was evidence that four armed robberies had occurred at a Family Mart store and a Shop A Minute store in Sulphur Springs within a three-year period prior to the occurrence in question. Between 1986 and 1987, there were a significant number of robberies of E-Z Mart stores, and the majority of those incidents occurred during the late shift. In 1986 and 1987, a total of seventy-four robberies occurred in E-Z Mart stores between the hours of 10:00 p.m. and 6:00 a.m., and twenty-eight robberies occurred between the hours of 2:00 p.m. and 11:00 p.m. In 1986 and 1987, there were four violent crimes in E-Z Mart stores against store employees: one assault, one rape, one stabbing and one abduction with murder. In 1985, E-Z Mart employees were the victims of three rapes, an abduction, and two assaults at E-Z Mart stores. In 1984, there were three assaults, an abduction and a stabbing in E-Z Mart stores. In 1983, there were five assaults, a rape, a murder, and a stabbing in E-Z Mart stores. This information was based upon the experience of 247 E-Z Mart stores located within Texas and surrounding states. One of Havner Estate's expert witnesses stated that convenience stores are notorious targets for armed robberies and that security precautions need to be taken to prevent robbery and the associated acts of violence. Thus, the jury had a basis for its determination that violent crimes against E-Z Mart employees were reasonably foreseeable.
The majority has concluded that the evidence did not support the jury's finding that E-Z Mart's negligence was a cause-in-fact of Havner's death. Cause-in-fact embraces the cause which produces an event and without which the event would not have occurred. Nixon v. Mr. Property Management,690 S.W.2d 546 (Tex. 1985).
The majority opinion relies heavily on the case of EastTexas Theatres, Inc. v. Rutledge, 453 S.W.2d 466 (Tex. 1970), which the majority says is similar to the present case. However, I am reminded of the old adage that the difference between a duck's legs is that they are similar. It is true that the Rutledge case is similar to the present case in that they both involve tort actions. In theRutledge case, however, the theater had failed to eject some unruly patrons, and the plaintiff was later hit with a bottle thrown from the balcony. There was no evidence to show that the person who threw the bottle was one of the same persons who had caused a disturbance earlier. Thus, there was no showing that ejection of the unruly patrons would have prevented the injury. In the present case, the identity of the person or persons committing the criminal act is not a key issue in determining whether proper security measures could have prevented the act. Furthermore, in the present case, two security experts testified as to causation, but in theRutledge case, there were no expert opinions to support causation.
E-Z Mart argues that the only basis for a finding of proximate cause is that of inferences based on other inferences. There are numerous cases in Texas and other jurisdictions condemning the pyramiding of inferences.2 However, it is permissible to draw a number of inferences *Page 122 from a single fact situation. Farley v. M M CattleCo., 529 S.W.2d 751 (Tex. 1975).
What is prohibited by the rule against pyramiding inferences is the basing of one factual inference upon another factual inference. Even when all of the facts are proven by direct evidence, there is a reasoning process to determine the conclusions to be drawn from the facts. This is not the type of inference that constitutes a pyramiding of inferences. If conclusions could not be drawn from circumstantial evidence, then direct evidence would always be required on each element of a case. In the determination of proximate cause, the jury is allowed broad latitude to infer proximate cause from the evidence and the circumstances surrounding the evidence.Figure World, Inc. v. Farley, 680 S.W.2d 33 (Tex.App. — Austin 1984, writ ref'd n.r.e.). The rule against pyramiding inferences does not forbid inferences that may arise from facts established by circumstances alone. Strain v.Martin, 183 S.W.2d 246 (Tex.Civ.App. — Eastland 1944, no writ).
E-Z Mart's specific contention is that it is speculative whether or not a hidden alarm system could have safely been activated if one had been available and whether or not the police response time to an activated alarm would have been prompt enough to prevent Havner's abduction. Thus, E-Z Mart argues that the evidence will not support a finding that but for the lack of security Havner would be alive today.
The undisputed evidence showed that Havner was working alone at the E-Z Mart on the 11:00 p.m. to 7:00 a.m. shift. At approximately 4:47 that morning, a police officer found the store open, but there was no clerk on the premises. Two hundred and thirty dollars were missing from the cash register. Five days later, Havner's badly mutilated body was found face up with the legs spread apart, and her pants had been removed. Her skull was crushed to the point that her eyeballs and eyesockets could not be found and one of her ears was missing. A jury could reasonably infer from this evidence that Havner had been robbed, abducted, raped and murdered.
The majority suggests that Havner may not have been abducted. The jury did not have to jump to a conclusion on this issue; the conclusion jumps out of the circumstances. Inferences are based upon probabilities. There is nothing in evidence to suggest that Havner would have voluntarily abandoned her job and her purse and left the store unattended and unlocked. It was not credulity that brought the jurors to their conclusion, but logic applied to the evidence.
The question then becomes whether the jury had sufficient evidence to reasonably conclude that E-Z Mart's negligence was a cause of Havner's death. The testimony indicated that, when E-Z Mart purchased the convenience store, it reduced security measures by placing a countertop over the safe, thereby rendering it inoperable and diminishing cash control, by failing to provide security and robbery training, by removing the existing panic alarm system from the store and by obstructing the windows. The evidence showed that the previous owner had an alarm system which connected to police headquarters so that the alarm could be activated by a button under the cash register, and that it also provided the employees with a portable alarm that they could wear which would also activate a signal at police headquarters. E-Z Mart maintained only a one-way telephone in the cashier's area that allowed the E-Z Mart management to call in, but the employee could not call out except by using a pay telephone on the outside of the store. There was also testimony that at the hour when Havner was taken from the store, the police could have been on the scene within one minute. From this evidence alone, the jury could have reasonably concluded that E-Z Mart's negligence was a cause of Havner's death.
In addition to having before it the proof of E-Z Mart's reduction of security, the jury also had testimony from experts. Dr. Norman Bottom testified as a security expert.3 *Page 123 3] Bottom testified that alarm systems are critical to the safety of the store clerk. He also testified about the importance of proper security training for employees. He further testified about the deterrent effect of having a store properly lighted and of there being good visibility through the store windows from the outside. Bottom testified that E-Z Mart had inadequate supervisory staffing for security purposes because there were only two security people to supervise 247 stores. He also testified that having only one clerk employed on the late shift was inadequate security for that shift and that similar stores having two clerks from dusk to dawn had fewer robberies. He concluded that the E-Z Mart store was deficient in all of these areas of security. Two of the experts, Stidham and Gray, testified that Havner would be alive today if E-Z Mart had had a security system in the store. This testimony is tantamount to saying that this lack of security was the cause of Havner's death.
It is true that there is no evidence of the specific details of how the crime occurred, but there is sufficient evidence from which the jury could draw reasonable factual inferences. The majority reverses and renders this case because evidence does not show all elements with absolute certainty by direct evidence. An inference is never a certainty, but it may be plain enough to justify a finding of fact.4 Almost any fact embraces within itself some element of inference and is, to some extent, the result of a process of reasoning.Galveston, H. S.A. Ry. Co. v. Noelke,59 Tex. Civ. App. 347 [59 Tex. Civ. App. 347], 125 S.W. 969, 970 (1910).5 The majority opinion negates the right of the jury to make reasonable inferences from the evidence and places an impossible burden on the Havner Estate.
Furthermore, the majority negates the expert opinions offered on behalf of the Havner Estate because the majority disagrees with these experts on their conclusion concerning proximate cause. The testimony of the experts on causation was more than speculation. The Texas Supreme Court has established that an expert can testify to proximate cause. In the case ofLouder v. DeLeon, 754 S.W.2d 148 (Tex. 1988), the Supreme Court held that a highway patrolman could properly testify that the plaintiff's failure to yield the right-of-way was a proximate cause of the accident in that case. From the facts recited in the Court of Civil Appeals opinion inLouder, it appears that the only issue in that case was cause-in-fact.6 This indicates that the patrolman's judgment about cause-in-fact was within his scope of expertise.See 2 R. RAY, TEXAS LAW OF EVIDENCE CIVIL AND CRIMINAL § 1401 (Texas Practice Supp. 1990).
In the present case, the two witnesses who testified to causation were qualified as expert witnesses. The majority opinion ignores the fact that these witnesses were qualified as experts and discards their testimony as speculations by lay witnesses, citing TEX.R.CRIM.EVID. 701. Robert Stidham was the detective sergeant from the Sulphur Springs Police Department in charge of the investigation in the Havner homicide. His qualifications included basic and advanced certificates from the Law Enforcement Standards and Education Agency, attendance at numerous in-service training programs on crime scene investigation, drug and narcotics investigation, auto thefts investigation, basic fingerprints, advanced fingerprints and latent print training. He had worked with the *Page 124 Sulphur Springs Police Department for thirteen years, and before that, he had worked for the Mount Pleasant Police Department. E-Z Mart did not object when he testified concerning the causation of Havner's death, so they cannot now complain that he lacked expertise to reach the conclusion of E-Z Mart's negligence being a causation.
Norman Gray also testified that E-Z Mart's negligence was a cause of Havner's death. Gray is the owner of the Greenville Alarm System Company, which provides security systems for residents and commercial businesses. His background included several years of work as a criminal investigator for the Greenville Police Department, work with the Hunt County Sheriff's Office as chief deputy, and work as a private investigator. He had been involved in the business of installing security systems for more than twenty years. He testified to the opinion that Havner would be alive if the E-Z Mart store had had a security system that she could have activated on the night in question. E-Z Mart objected to this opinion on the basis that Gray was not qualified to give this opinion. The court overruled the objection on the basis that Gray was qualified. E-Z Mart has not appealed the trial court's ruling on this objection and therefore cannot complain of his expert opinion. There is no basis in law for the holding of the majority that the opinions of Stidham and Gray have no probative value.
Even under the standard for reviewing evidence for factual sufficiency, we are required to consider and weigh all the evidence. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). The jury is the exclusive judge of the credibility of the witnesses and the weight to be attached to their testimony. The jurors may believe a witness although that witness has been contradicted, and they may accept part of the testimony of one witness and disregard the remainder.Creech v. Thompson, 156 Tex. 561, 297 S.W.2d 817 (1957). These principles are true as to experts as well as to ordinary witnesses. Gregory v. Texas Employers InsuranceAssociation, 530 S.W.2d 105 (Tex. 1975).
In spite of these axiomatic standards for evaluating the sufficiency of the evidence, the majority took only the evidence it wanted to believe and ignored the rest. The majority stated that the evidence showed that the police reaction time to an alarm was shown to be substantially greater than the time it would take to rob the store and abduct the clerk. The jury had the following testimony before it concerning police response time to an alarm system. As to time elapsed during robbery:
A. You're going to have to be awful fast to take a clerk out of the store with an alarm system going off. In this town I've never seen it happen except in this case and there wasn't an alarm. You would have to be awful fast. It might work in Dallas but I don't think it would work here.
. . . .
Q. They could have gotten her out of the store in a minute, couldn't they?
A. Well, it was robbed, so I suppose you could get a person out of a store.
Q. In a minute?
A. Somewhere in that time frame. I don't know in this one.
Q. It could be done in a minute, couldn't it sir?
A. Yes, it you had complete cooperation, I suppose you could take them straight out, right outside the front door and put them in a car and leave.
As to police response time:
*Page 125 From this testimony, the jury could have concluded that the alarm system would have been effective in preventing Havner's death.A. 4:00 o'clock in the morning, with no one on the street like that, working districts as we do, probably a minute to a minute and a half, some quicker. Just according to where the police car is at. And, there is priority given on any type of alarm. I mean, it's an automatic dispatch immediately under any condition.
. . . .
Q. And, you acknowledge that the average response time in Sulphur Springs is two or three minutes, don't you?
A. No. I think we said during heavy traffic hours. We were talking about two and a half or three minutes.
The majority also implies that the fact that Havner did not use the gun in her purse to defend herself suggests that she also would not have had an opportunity to set off the alarm system. According to the testimony, part of the alarm system that had been discontinued by E-Z Mart consisted of an apparatus to activate the alarm at the police station (it was silent inside the store) that could be hung around the neck of an employee like a necklace or put on the arm. It could be worn underneath the blouse or some place where it would not be detected and could be triggered through the clothing without the robber being aware that the alarm had been pushed. The jury could have reasonably inferred that this type of alarm would have saved Havner's life.
In the face of all of this evidence, I cannot understand how the majority can hold that there is no evidence or insufficient evidence to support the jury finding on causation. I respectfully dissent.