dissenting.
Although the Court obviously perceives an injustice when wrongful death and survival action beneficiaries do not, perhaps because they cannot for reasons beyond their control, prove an element of their cause of action, what is compromised by their holding today is nothing less than the allocation of the burden of proof. For every judicial thumb on one side of the scales of justice, the litigant on the opposing scale receives less than his or her due.1 But out of concern for the plaintiffs’ supposed inability to prove their case because of the record before us, the Court has effectively placed the burden of proof on the defendant to negate the cause in fact element of proximate cause, an essential element of plaintiffs’ cause of action, thus reversing the burden of proof. For this reason, I dissent.
It is axiomatic that the plaintiff in a negligence case bears the burden of establishing each element of his or her cause of action by a preponderance of the evidence. *463W. PROSSER & W. KEETON, THE LAW OF TORTS § 38 (5th ed. 1984); E. CLEARY, McCORMICK ON EVIDENCE, § 337 (3d ed. 1984). This burden simply cannot be satisfied absent the introduction of legally sufficient evidence of each element of the cause of action. Colvin v. Red Steel Co., 682 S.W.2d 243 (Tex.1984). One of the essential elements of a negligence case is causation, consisting of cause in fact and foreseeability. City of Gladewater v. Pike, 727 S.W.2d 514, 517 (Tex.1987). “Cause in fact means that the omission or act involved was a substantial factor in bringing about the injury and without which no harm would have occurred.” Id.; accord McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex.1980). Here, the plaintiffs relied on two types of evidence to sustain their burden of proof on cause in fact: circumstantial evidence and opinion evidence.
Although cause in fact may be established by circumstantial evidence, it may not be established by mere guess or conjecture; it must be proven by competent evidence. Exxon Corp. v. Quinn, 726 S.W.2d 17, 21 (Tex.1987). In a circumstantial evidence case the trier of fact is permitted to draw- the claimed inference from facts proven; an inference being merely a deduction from the facts proved. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898). And, although an ultimate fact may be proved by circumstantial evidence, such a finding must be based on inferences fairly drawn from the facts in evidence and not on surmise or speculation. See Briones v. Levine’s Dept. Store, 446 S.W.2d 7, 10 (Tex.1969); Prudential Ins. Co. v. Krayer, 366 S.W.2d 779, 780 (Tex.1963). But, “[w]hen circumstances are consistent with either of ... two facts and nothing shows that one is more probable than the other, neither fact may be inferred.” Litton Indus. Products, v. Gammage, 668 S.W.2d 319, 324 (Tex.1984) (citing Texas Sling Co. v. Emanuel, 431 S.W.2d 538 (Tex.1968)) and Continental Casualty Co. v. Fountain, 257 S.W.2d 338 (Tex.Civ.App.—Dallas 1953, writ ref'd).
Though one could easily speculate from the circumstances surrounding Diana Hav-ner’s disappearance from the store that she was abducted and murdered in the course of a robbery directed at the store, other facts are equally consistent with these circumstances. Each circumstance from which the jury could draw the inference argued by the Havners’ attorneys also supports the inference that E-Z Mart’s negligence2 was not the cause in fact of her abduction and murder. It is just as likely, for instance, that Havner was murdered by an acquaintance for reasons personal to her rather than by a stranger and that she was taken by surprise when the encounter turned violent.
Dr. Norman Bottom, plaintiffs’ expert witness cited by the Court in support of its conclusion testified, “[W]e must assume that robbery was the primary motive in this and abduction was a secondary motive.” However, he agreed that he did not know if Havner was first approached by her abductor inside or outside the store. Later, he said: “I don’t know exactly what happened. I don’t think anyone does but the criminal.” He also characterized Sul-phur Springs Police Chief Donnie Lewis’s opinion about what happened as “speculating ... not grounded on fact.” He later agreed, in response to questions from E-Z Mart’s lawyer, that Chief Lewis was just guessing. The principal investigating officer, Detective Sergeant Robert Stidham, also conceded that he didn’t know what happened at the time of the robbery and abduction, “[ojther than she left the store with the money with somebody.”
E-Z Mart's expert witness, Dr. Lawrence Sherman, testified that in his opinion, Hav-ner was abducted and murdered by an acquaintance. Further, Dr. Sherman testified that most murders of women are perpetrated by acquaintances, not strangers. However, he in effect admitted that this is only one inference which could be drawn from the evidence because “we just don’t know because we don’t have any par*464ticular suspect.” Micky Holden, the store manager, testified that during the time Diana Havner’s abduction and murder occurred she was dating Robert Crawford who lived in the apartment complex behind the store. According to Holden, Crawford was “high tempered” and would frequently come to the store, sometimes drunk, loud and belligerent. Holden testified that Diana had reported violent arguments with Crawford before her death. During one argument, Holden testified without objection, Havner told her Crawford had said: “[I]f he couldn’t have her no one was going to have her.”
Admittedly, this evidence does not prove that Havner was abducted by an acquaintance. The point is simply that it is no more likely that E-Z Mart’s negligence caused Ms. Havner’s abduction and murder than that it did not. Circumstantial evidence which does not make one fact more likely than another — in the eyes of the law — proves nothing.3 Absent additional evidence, any person with an active imagination can make the facts and the evidence fit a number of different scenarios. Each and every theory relies only on speculation since they are equally probable. Each theory is only, at best, a guess.
Plaintiffs simply have not demonstrated by legally competent evidence that had there been an alarm or any other security measure that Havner would have activated it and that she would be alive today. Whether such devices would have deterred the crime cannot be demonstrated absent some sort of evidence of the circumstances of the crime.
What the Court has embraced is tantamount to the unwarranted application of the doctrine of res ipsa loquitur to the facts of this case. They have essentially held that E-Z Mart’s negligence was presumptively the cause of Havner’s death, absent proof to the contrary. However, the doctrine of res ipsa loquitur is applicable only when: 1) the character of the injury is such that it would not have occurred in the absence of negligence; and 2) the instrumentality which caused the injury is under the sole management and control of the defendant. Gaulding v. Celotex Corp., 772 S.W.2d 66, 68 (Tex.1989); Porterfield v. Brinegar, 719 S.W.2d 558, 559 (Tex.1986); Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 251 (Tex.1974). In a proper case this doctrine permits the trier of fact to infer negligence and causation; however it is the second element — the requirement of sole management and control of the instrumentality — that affords the probability that it was the claimed actor’s negligence, and not some other’s, that caused the harm. As the Court pointed out in Gaulding: “Inherent in the latter factor is the requirement that the defendant be proved to have some causal connection with the plaintiff’s injury.” Id. at 68. Clearly, this doctrine has no application to the facts of this case, yet it demonstrates the error of the Court’s analysis.
Nor do the conclusions and opinions of Havner’s expert witnesses provide the necessary proof of causation.4 As noted by the court of appeals, these expert opinions are not based on direct evidence; their opinions are merely conclusions, guesses, which they are no better qualified to draw than the jury itself. Ordinarily, a lay witness is limited to testimony based on firsthand knowledge. Rule 701 of the Texas Rule of Civil Evidence expands that strict requirement slightly by permitting a lay witness to testify in the form of opinions *465which are 1) rationally based on the perception of the witness and 2) helpful to an understanding of his testimony or a determination of the fact at issue. Here, there is no showing that any opinion is rationally based on the perception of a witness. In other words, the purported evidence is only speculation. See WENDORF, SCHU-LUETER & BARTON, TEXAS RULES OF EVIDENCE MANUAL VII-11 (3d ed. 1991). Thus, the first requirement of the rule is not met.
Furthermore, expert testimony based on incompetent evidence is no evidence of cause in fact.5 This is because Rule 703 of the Texas Rules of Civil Evidence requires the experts’ opinion to be based on “facts or data.” The Texas Rule, fashioned after the Federal Rule, contemplates three sources for such facts or data: 1) firsthand knowledge; 2) hypothetical questions based on admitted evidence; and 3) data acquired other than through the expert’s personal perception, reasonably relied upon by experts in the given field. See NOTES OF ADVISORY COMMITTEE, FED.R.EVID. 703; accord Chistophersen v. Allied Signal Corp., 939 F.2d 1106, 1110-11 (5th Cir.1991). Since there are no facts or data upon which the experts’ conclusions can be founded, those conclusions cannot support the jury finding of proximate cause. As the Fifth Circuit Court of Appeals has observed: “If an opinion is fundamentally unsupported, then it offers no expert assistance to the jury.” Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir.1987). The specialized knowledge of the experts is simply of no assistance to the trier of fact under these circumstances. The jury is equally capable of engaging in the same speculation. Therefore, the experts’ opinions are not helpful, but superfluous. See e.g. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex.1984); Lopez v. City Towing Assoc., 754 S.W.2d 254, 260 (Tex.App.—San Antonio 1988, writ denied); Thompson v. Mayes, 707 S.W.2d 951, 957 (Tex.App.—Eastland 1986, writ ref’d n.r.e.); WENDORF, SCHULUETER & BARTON, TEXAS RULES OF EVIDENCE MANUAL VII-15-16 (3d ed. 1991).
There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained laymen would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the' dispute.
Ladd, Expert Testimony, 5 VAND.L.REV. 414, 418 (1952) (cited NOTES OF ADVISORY COMMITTEEX FED.R.EVID. 702). And, such speculation can no more support an expert opinion than it can support a judgment in a circumstantial evidence case based on competing, but equally probable, inferences from the evidence. Such evidence is simply too tenuous a basis for rendition of a judgment in a court of law.
The reliance on opinion testimony which the Court encourages today will not prove workable. Opinion testimony like that offered in this case — that something could be, or is possible, or might have happened — cannot support a judgment. If the Court really means to allow such evidence, the result will be not a trial of the disputed facts, but a trial of disputed opinions by experts. The Court is well aware that *466most experts that offer opinion testimony are paid a fee for their investigation and rendition of opinions in a case.6 The corrupting influence of such a scheme appears obvious.
Absent evidence of the essential but-for element of proximate cause in a negligence cause of action, the plaintiffs’ cause of action must fail. See Yap v. ANR Freight Systems, Inc., 789 S.W.2d 424 (Tex.App.—Houston [1st Dist.] 1990, no writ); Hennessy v. Estate of Perez, 725 S.W.2d 507 (Tex.App.—Houston [1st Dist.] 1987, no writ). Despite the sympathetic facts of this case and E-Z Mart’s conceded negligence in failing to provide security measures of any sort, there is no evidence to support the jury’s finding that but for E-Z Mart’s failure to provide security measures Diana Havner would be alive and unharmed today.
The essence of the Court’s holding has broad ramifications for the public policy of our state. The Court directs the public’s rightful outrage about the rising level of crime toward businesses like E-Z Mart when there is no evidence that E-Z Mart’s negligence caused Diana Havner’s abduction and murder. In effect, the requirements of proof in a case like this against a convenience store are relaxed. Perhaps it is because the Court shares the public’s sense of impotency and frustration at being unable to direct their vengeance toward an unknown assailant that the Court excuses the lack of proof of a causal link between E-Z Mart’s negligence and Diana Havner’s death.7 Because I disagree that an award of money damages as a result of lawlessness in our society ought to be visited on any person or entity absent competent proof that their negligence actually caused those damages, I would affirm the judgment of the court of appeals.
HECHT, J., joins in this dissent.. "Wrest once the law to your authority: To do a great right, do a little wrong." W. SHAKESPEARE, THE MERCHANT OF VENICE, Act IV, scene i.
. Although E-Z Mart has conceded its negligence in this appeal, the Court concentrates a disproportionate amount of its opinion on the store’s negligence, suggesting that if E-Z Mart is negligent enough, causation does not really matter.
.The Court says that “our careful review of the record reveals no evidence that anything but force caused Havner’s departure.” At 461, fn. 5. However, it is undisputed that there was no sign of struggle indicating force was used. But just as important, E-Z Mart was under no obligation to prove or disprove the circumstances under which Havner left the store. What the Court has, in fact, done is to reverse the burden of proof to require the defendant to prove the circumstances under which Havner exited the store. It should go without saying that it is the plaintiffs’ burden to prove its theory of the case, not the defendant’s burden to disprove the plaintiffs’ theory.
.The majority relies on Louder v. De Leon, 754 S.W.2d 148 (Tex.1988) for the proposition that an independent investigating officer may testify as to causation. In fact, Louder holds that expert testimony on proximate cause, as an ultimate fact to be decided by the trier of fact, is admissible “as long as it is based on proper legal concepts.” Id. at 149. The problem here, however, is that the expert testimony is not based on *465facts and data, but only on speculation. As such, it amounts to no evidence.
. Contrary to the court’s implication, at 460 n. 4, E-Z Mart did not waive this error by not objecting to the experts’ speculative opinion testimony. E-Z Mart’s complaint, preserved in the trial court, is that there was no evidence to support the jury’s finding that E-Z Mart’s negligence caused Havner’s death. A no evidence point of error may be preserved in the trial court by a motion for instructed verdict, by an objection to the charge, by a motion to disregard a jury finding, by a motion for judgment non obstante veredicto, or by a motion for new trial. Cecil v. Smith, 804 S.W.2d 509, 510-511 (Tex.1991); POWERS & RATLIFF, ANOTHER LOOK AT “NO EVIDENCE" AND ‘INSUFFICIENT EVIDENCE," 69 TEX.L.REV. 515, 530 (1991). E-Z Mart raised its no evidence complaints on this point at least four times in the trial court: in its motion for instructed verdict, in its objections to the charge, in its motion for judgment non obstante veredicto, and in its motion for new trial. As a result, E-Z Mart preserved its no evidence points of error regardless of the fact it did not object to the speculative nature of the opinion testimony.
. Judge Learned Hand referred to such experts as the “hired champion of one side.” L. HAND, HISTORICAL AND PRACTICAL CONSIDERATIONS REGARDING EXPERT TESTIMONY, 15 HARV.L.REV. 40, 53 (1901). And, it is common knowledge among trial practitioners that such witnesses often become highly proficient at "the art of witness advocacy.” See COMMENT, EXPLORING THE INCONSISTENCIES OF SCRUTINIZING EXPERT WITNESS TESTIMONY UNDER THE FEDERAL RULES OF EVIDENCE, 22 TEX.TECH.L.REV. 885, 894 (1991).
. The Court hyperbolically suggests that any alternative to its holding "would, in almost every concievable circumstance, make redress impossible for the family of a victim killed in an unwitnessed occurrence regardless of the strength of the circumstantial evidence.” At 461. This dissent suggests nothing of the kind. All that is proposed is that each case be decided on its unique facts and record, and that plaintiffs’ have failed to discharge their burden of proof in this case.