dissenting.
I would hold that the court did not err by granting summary judgment and that Dr. Brister proved the injury inflicted on his patient was directly and proximately caused by the unforeseeable, superceding, intervening, and intentional criminal act of a third party as a matter of law. Therefore, I respectfully dissent.
Generally, a person’s criminal conduct is a superceding cause that extinguishes liability of a negligent actor. El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex.1987). In Chapman v. Oshman’s Sporting Goods, Inc., 792 S.W.2d 785, 787 (Tex.App.—Houston [14th Dist.] 1990, writ denied), a wrongful death action was brought against a sporting goods store that' sold a pistol to a man who subsequently used the pistol to commit murder. The court of appeals applied the standards for appellate review of a summary judgment, taking the nonmovant’s evidence as true and indulging all reasonable inferences in the non-movant’s favor, and found that an essential element of the plaintiffs cause of action failed as a matter of law:
Even assuming, arguendo, that Oshman’s was directly ... negligent in the sale of the gun, Buede’s criminal conduct was a superceding cause that relieved Oshman’s of liability. Once Oshman’s presented as summary judgment evidence a certified copy of Buede’s guilty plea and judgment of conviction for first degree murder, appellants could defeat Oshman’s motion for summary judgment only by presenting evidence that raises a factual issue as to whether Buede’s criminal conduct was foreseeable.
Chapman, 792 S.W.2d at 787 (citing Nixon v. Mr. Property Management, 690 S.W.2d 546, 550 (Tex.1985)).
Dr. Brister is liable only if she realized, or should have realized the likelihood that Carr’s Mend, Ryan Weigand, would help Carr kill herself. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992) (citing Restate*46ment (SECOND) of ToRts § 448 (1965)). Section 448 provides:
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 negligent actor’s 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.
Restatement (Seoond) of ToRts § 448 (1965). Thus, under section 448, the intervening criminal conduct, not merely the injury itself, must be reasonably foreseeable.
As the majority acknowledges, Dr. Brister offered summary judgment proof that Wei-gand unlawfully provided the weapon used in the suicide. Dr. Brister thereby presented proof of an intentional criminal act and established a superceding cause.
Dr. Brister also introduced notes from the one and only doctor-patient interview that occurred two weeks before Carr committed suicide. At no point during the interview did Carr suggest that an acquaintance of hers had ever encouraged her to commit suicide. Carr provided no information to her doctor about a friend named Ryan Weigand in her interview. Nowhere in the interview did the patient give any indication that she could get access to a gun from another person. Furthermore, Dr. Brister made an appointment to see Carr the following week, and referred her to another mental health provider for therapy sessions.
In order to overcome a motion for summary judgment that alleges nonexistence of a material fact, the nonmovant, “must present summary judgment proof when necessary to establish a fact issue.” See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). Wilson did not meet this burden. Her summary judgment response focused on the foreseeability of Carr’s suicide — not on the foreseeability of the crime. She presented no evidence that Weigand’s conduct, or any other criminal conduct was foreseeable.
Arguably, any negligence that results in injury causes that injury. Yet, to justify compensation, the injury must -be a probable result of the defendant’s negligence. That Dr. Brister knew Carr had previously tried to kill herself does not mean she should have realized someone would unlawfully encourage and assist Carr in accomplishing the act. Dr. Brister presented unanswered summary judgment proof that her conduct was, at most, an indirect cause, and her conduct did nothing more than provide the opportunity for Weigand’s unforeseeable criminal conduct.
Accordingly, I would hold Dr. Brister disproved proximate cause as a matter of law and would affirm the trial court’s judgment.