Hanson v. Greystar Development & Construction, LP

LEE ANN DAUPHINOT, Justice,

dissenting.

In a civil trial, a plaintiff must prove her ease by a preponderance of the evidence. In response to a no-evidence summary judgment motion, however, a plaintiff need only produce enough evidence on a challenged element to raise an issue of fact.1 Because I believe that the Hansons produced sufficient evidence on causation to defeat a no-evidence motion for summary judgment, I respectfully dissent.

The “cause in fact” element of proximate cause requires proof that the negligent act or omission complained of was a substantial factor in bringing about the harm at issue.2 Even when it is undisputed that negligence has occurred, the plaintiff must put on proof of a causal link between the negligence and the injuries complained of.3 A plaintiff may use circumstantial evidence to establish causation.4

The Hansons produced evidence that not only were the edges of the treads on the stairs irregular throughout the stairway, but they were also unpainted or otherwise marked, so that they blended together visually, making it difficult for someone to identify the edge of the tread. On top of that, the stairway did not have adequate light. Common sense and the average lay person’s own experience is all that is necessary to provide the requisite knowledge *856that any of the conditions of which the Hansons complain make stairs unsafe, let alone the combination of the conditions. Unfortunately, there were no witnesses, and so other than Angie’s own testimony, no evidence could definitively establish the cause of her fall. But Angie’s injuries were so severe that she now has no memory of what caused her to fall. The Han-sons did, however, produce evidence showing not only that the stairs did not conform to building codes, but that the particular conditions of the stairs are known causes of stair falls.

A fact finder may draw inferences from the evidence.5 And courts have, in limited cases, allowed the fact finder to find causation based on an inference drawn from the evidence.

[I]f a cause is shown that might produce an event and it being shown that an event of that particular character did occur, it may be inferred that the known possibility produced the result. Plaintiff is not required to exclude an appreciable chance that the event might have occurred in some other way. Expressed otherwise, a conclusion of causal connection may be inferred by a balance of probabilities.6

Because the Hansons produced some evidence showing (1) that the stairs were in a certain condition, (2) that the condition is a known cause of stair falls, and (3) that someone did fall, they therefore produced some evidence from which a fact finder could infer that the condition of the stairs caused the fall.7 This evidence was sufficient to raise a genuine issue of fact on causation.

This case is unlike other situations in which the injuries complained of could have any number of possible causes, each just as likely as any other,8 or a case in which there was evidence of other obvious potential causes.9 The Hansons produced evidence, not just of conditions that might cause someone to fall, but of conditions known to cause falls. In fact, building codes prohibit these kinds of conditions precisely because they are known to be dangerous and to cause falls. Thus, there was evidence of a condition that was known to be dangerous and known to produce a certain result — falling—and no evidence of any other obvious cause of Angie’s fall. The Hansons therefore had no need to produce evidence discounting other possible causes of the fall.10 By balancing the probability that the condition of the stairs caused the fall against the probability that some unknown factor, the existence of which there was no evidence, caused the fall, a fact finder could infer that it was more likely than not that the stairs’ condi*857tion caused the fall. I would therefore hold that under these limited facts, the Hansons produced sufficient evidence on causation to at least raise an issue of fact and defeat no-evidence summary judgment. Accordingly, I respectfully dissent.

. Tex.R. Civ. P. 166a(i).

. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 122 (Tex.2009); Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 246 (Tex.2008).

. Guevara v. Ferrer, 247 S.W.3d 662, 666 (Tex.2007); Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 119 (Tex.2004).

. B. M. & R. Interests v. Snyder, 453 S.W.2d 360, 363-64 (Tex.Civ.App.-Tyler 1970, writ ref'd n.r.e.).

. See, e.g., Farley v. M M Cattle Co., 529 S.W.2d 751, 757 (Tex.1975) (allowing the juiy to infer that the plaintiff had taken certain actions based on direct evidence of the plaintiff's characteristic behavior), abrogated on other grounds by Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978).

. Collier v. Hill & Hill Exterminators, 322 S.W.2d 329, 337 (Tex.Civ.App.-Houston 1959, no writ); see also Davis v. Anderson, 501 S.W.2d 459, 463 (Tex.Civ.App.-Texarkana 1973, no writ); Bohn Bros. v. Turner, 182 S.W.2d 419, 422-23 (Tex.Civ.App.-Austin 1944, writ ref'd w.o.m.).

. See Davis, 501 S.W.2d at 463; Collier, 322 S.W.2d at 337; Bohn Bros., 182 S.W.2d at 422-23.

. Cf. Hang On II, Inc. v. Tuckey, 978 S.W.2d 281, 284 (Tex.App.-Fort Worth 1998, no pet.); Hopper v. J.C. Penney Co., 371 S.W.2d 750, 752-53 (Tex.Civ.App.-Fort Worth 1963, writ ref'd n.r.e.).

. See Collier, 322 S.W.2d at 337; cf. Wal-Mart Stores, Inc. v. Merrell, 313 S.W.3d 837, 839-40 (Tex.2010).

. Cf. Merrell, 313 S.W.3d at 839-40.