Choicev.Gibbs

Court of Appeals of Texas, Fourteenth District, HoustonFeb 13, 2007
No. 14-05-01068-CV (Tex. App. Feb. 13, 2007)

No. 14-05-01068-CV

Filed February 13, 2007.

On Appeal from the 127th District Court Harris County, Texas, Trial Court Cause No. 04-25167.

Panel consists of Justices FOWLER, EDELMAN, and FROST.



OPINION


KEM THOMPSON FROST Justice.

In this negligence case, a contractor appeals a no-evidence summary judgment rendered in favor of the homeowners he sued after allegedly suffering an electrocution while performing work on their premises. Concluding that a genuine issue of material fact as to causation precludes summary judgment, we reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant/plaintiff William Choice was installing a bathtub at the residence of appellees/defendants Richard A. Gibbs and Mary C. Edwards. Choice alleged that while at their home to perform this work, he came into contact with loose wires protruding from the walls on the staircase, and, as a result, he was electrocuted. Although he attempted to continue the bathtub installation, Choice grew very weak and had difficulty breathing. An on-site co-worker called an ambulance, which arrived at the scene immediately. Choice underwent an electrocardiogram ("EKG") and several other diagnostic tests, and was informed that he had suffered a heart attack.

Choice brought a negligence suit against the homeowners, asserting that they were negligent in leaving live electrical wires exposed at a workplace where an invitee could be electrocuted. The homeowners filed a no-evidence motion for summary judgment contending that Choice had no evidence of causation. In his response to the no-evidence motion, Choice included his pleadings, his own deposition testimony, and the affidavit of Dr. Louis Train, a medical doctor. The homeowners filed objections to Dr. Train's affidavit. In a filing with the court, Choice stated that he intended to supplement his response with the affidavit of Dr. Mark Levinson as evidence to support Choice's position that the alleged electrocution caused his heart attack. The homeowners filed supplemental objections against Dr. Levinson's affidavit.

The trial court sustained the homeowners' objections to Dr. Levinson's affidavit and before ruling on the summary-judgment motion, signed an order striking that affidavit and stating that the court would not consider it. The record contains no order ruling on the homeowners' objections to Dr. Train's affidavit. The trial court subsequently granted the homeowners' motion for summary judgment.

In its order granting summary judgment, the trial court stated that the court had "sustained, in part, Defendants' objections to these affidavits as reflected in previous orders of this Court." This statement is consistent with the court's previous rulings in which it sustained the homeowners' objections to Dr. Levinson's affidavit and did not rule on their objections to Dr. Train's affidavit. The summary-judgment order also states that the trial court found that the affidavits of both Dr. Levinson and Dr. Train were insufficient to carry Choice's burden to bring forth legally sufficient evidence to raise a genuine issue of fact on causation. As to Dr. Train's affidavit, this finding is consistent with the court's failure to rule on the homeowners' objections to this affidavit. Given that this court can dispose of this appeal without relying on Dr. Levinson's affidavit, we need not address the effect, if any, of this language on the trial court's prior order striking Dr. Levinson's affidavit in its entirety.

II. ISSUE PRESENTED

Choice asserts on appeal that the trial court erred in granting the no-evidence motion for summary judgment because he provided an expert affidavit stating that his electrocution was the sole cause of his subsequent heart attack.

In a second, somewhat related issue, Choice asserts that the trial court erred in requiring him, in a non-medical malpractice case, to produce an expert report similar to that required by statute in medical-malpractice cases. However, the record does not reflect that the trial court required Choice to provide the type of expert report that would be required in a medical malpractice case. Accordingly, we overrule Choice's second issue.

III. SUMMARY JUDGMENT ANALYSIS

In reviewing a no-evidence motion for summary judgment, we ascertain whether the nonmovant pointed out summary-judgment evidence of probative force to raise a genuine issue of fact as to the essential elements attacked in the no-evidence motion. Johnson v. Brewer Pritchard, P.C., 73 S.W.3d 193, 206B08 (Tex. 2002). We take as true all evidence favorable to the nonmovant, and we make all reasonable inferences therefrom in the nonmovant's favor. Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). A no-evidence motion for summary judgment must be granted if the party opposing the motion does not respond with competent summary-judgment evidence that raises a genuine issue of material fact. Id. at 917. When, as in this case, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm summary judgment if any of the independent summary-judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

It was Choice's burden to respond to the homeowners' motion for summary judgment with competent summary-judgment evidence that raises a genuine issue of material fact. Dolcefino, 19 S.W.3d at 917. Choice contends that the affidavits of Drs. Train and Levinson, which he filed in response to the homeowners' no-evidence motion for summary judgment, were sufficient to create a genuine issue of material fact on the element of causation as to both of his claims. Before addressing whether these affidavits were sufficient to create a genuine issue of material fact as to causation, we first address whether expert testimony was required to establish that the homeowners' alleged negligence in leaving wires exposed caused Choice's injuries.

A. Is expert testimony required in order to establish that Choice's heart attack was caused by the homeowners' negligence?

To prevail on his premises-liability theory, Choice must show that (1) the homeowners had actual or constructive knowledge of some condition on the premises, (2) the condition posed an unreasonable risk of harm, (3) the homeowners did not exercise reasonable care to reduce or eliminate the unreasonable risk of harm, and (4) the homeowners' failure to use reasonable care to reduce or eliminate the unreasonable risk of harm proximately caused Choice's injuries. See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). Proximate cause has two elements: cause in fact and foreseeability. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). These elements cannot be established by mere conjecture, guess, or speculation. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). The test for cause in fact is whether the act or omission was a substantial factor in causing the injury without which the harm would not have occurred. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). If the homeowners' negligence merely furnished a condition that made the injuries possible, there can be no cause in fact. See IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex. 2004).

Choice also alleged a negligent-activity theory. Specifically, he alleged the homeowners failed to discover and remove the exposed wiring within a reasonable time, failed to warn him of an unsafe condition, and breached their duty to keep the area where contractors would be working free and clear of exposed electrical wiring. The gravamen of Choice's complaint, however, is not that of "negligent activity" but that the homeowners were negligent in failing to keep the premises safe from a known, dangerous condition, that is, exposed electrical wires. See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992) (distinguishing between "negligent activity" claim and premises-liability claim). Accordingly, Choice's negligence claim is one for premises liability rather than negligent activity.

The trier of fact is usually allowed to decide the issue of causation: (1) when general experience and common sense will enable a layperson fairly to determine the causal relationship between the event and the condition; (2) when scientific principles, usually proven by expert testimony, establish a traceable chain of causation from the condition back to the event; or (3) when a probable causal relationship is shown by expert testimony. Lenger v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970); Weidner v. Sanchez, 14 S.W.3d 353, 370 (Tex.App.-Houston [14th Dist.] 2000, no pet.).

In response to the homeowners' no-evidence motion for summary judgment, Choice had the burden to produce summary-judgment evidence that the occurrence in question was a foreseeable result of a failure by the homeowners to use reasonable care to reduce or eliminate an unreasonably dangerous premises condition, and that their failure was a substantial factor in causing Choice's injuries. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). The causal link between the event forming the basis of the suit and the plaintiff's injuries must be shown by competent evidence. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984). Mere proof that Choice was injured on the premises is not proof of such proximate cause. See Western Invs., Inc. v. Urena, 162 S.W.3d 547, 551B52 (Tex. 2005) (holding that summary judgment was proper when there was no evidence that any of the premises owner's "acts or omissions were a substantial factor in causing" the plaintiff's injuries); Southwest Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 (Tex. 2002).

Whether expert testimony is necessary to prove a matter or theory is a question of law. FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 89 (Tex. 2004); see also Schneider v. Haws, 118 S.W.3d 886 (Tex.App.-Amarillo 2003, no pet.) (stating that expert testimony not always required to establish causation). We conclude that the Texas Supreme Court's opinion in Insurance Co. of North America v. Kneten answers the question of whether Choice needs expert testimony to prove the cause-in-fact prong of proximate cause. 440 S.W.2d 52 (Tex. 1969). Kneten was a workers' compensation case in which an employee suffered a heart attack shortly after being electrocuted on the job. Id. at 52B53. The employee-plaintiff, Kneten, was working while standing on a ladder and drilling a hole into a window frame. Id. A bare wire in the cord to the drill hit his wrist and he felt an electric shock go through his body. Id. Kneten finished drilling, but his physical condition continued to worsen, forcing him to the go to the doctor. Id. It was later determined that Kneten had suffered a heart attack and that he suffered from hardening of the arteries at the time of his electrocution and heart attack. Id.

At trial, only one medical expert, Dr. Sloan, testified. He stated that he could not say without medical doubt that the occurrence on the ladder had caused Kneten's heart attack, but that it was a "strong possibility." Id. Dr. Sloan testified that the electric shock "'could have' been a contributing factor," but he did not testify that, in his opinion, the electrocution caused Kneten's heart attack within a reasonable medical probability. See id. at 53.

After the trial court rendered judgment in favor of Kneten based on the jury's verdict, the insurer appealed, asserting the evidence at trial was legally insufficient as to causation because there was no expert testimony showing a reasonable medical probability that the occurrence caused Kneten's heart attack. See id. The Supreme Court of Texas concluded that such expert testimony was unnecessary and that the evidence at trial was legally sufficient. See id. at 53B54. Our high court held the following was sufficient to raise a genuine issue of material fact as to causation:

(1) lay testimony providing direct evidence of the prompt onset of symptoms following electrocution, and

(2) expert medical testimony that such an electrocution probably caused the plaintiff's heart attack.

See id. at 54. Thus, under Kneten, when the onset of a heart attack occurs immediately after an electrocution, it is not necessary for an expert to testify to a "reasonable medical probability" that the electrocution caused the plaintiff's damages. Id. Kneten was a workers' compensation case, and the case before us is not. However, the Kneten court did not rely on any statute or principle unique to the workers' compensation context, and the cause-in-fact principles in workers' compensation cases are the same as those in common-law negligence cases such as this one. See Parker v. Employers Mut. Liab. Ins. Co. of Wis. v. Employers Mut. Liab. Ins. Co. of Wis., 440 S.W.2d 43, 45 (Tex. 1969) (stating that the principles in workers' compensation cases for determining whether a worker's employment was cause in fact of his injury are the same as those in common-law negligence cases for determining whether a party's negligence was cause in fact of the plaintiff's injury). Therefore, we conclude that, under binding precedent, Choice need not produce expert testimony that his electrocution caused his damages within a "reasonable medical probability." See Kneten at 54.

Prior to 1989, there was no specific statute dealing with the compensability of heart attacks under the workers' compensation statute. See Transcontinental Ins. Co. v. Smith, 135 S.W.3d 831, 836 (Tex.App.-San Antonio 2004, no pet.). Following changes to the workers' compensation statute in 1989, a heart attack is a compensable injury under that statute only if:


(1) the attack can be identified as:

(A) occurring at a definite time and place; and

(B) caused by a specific event occurring in the course and scope of the employee's employment;

(2) the preponderance of the medical evidence regarding the attack indicates that the employee's work rather than the natural progression of a preexisting heart condition or disease was a substantial contributing factor of the attack; and

(3) the attack was not triggered solely by emotional or mental stress factors, unless it was precipitated by a sudden stimulus.

TEX. LAB. CODE ANN. § 408.008 (Vernon Supp. 2006).
In workers' compensation cases, a question might arise regarding the extent to which the Kneten opinion has survived the enactment of this statute. See Transcontinental Ins. Co., 135 S.W.3d at 836. However, we need not decide that issue in this case because section 408.008 of the Texas Labor Code does not apply to this case. See TEX. LAB. CODE ANN. § 408.008. Thus, for the purposes of our analysis in determining whether the evidence raised a genuine issue of material fact as to the issue of causation, we apply the standard set forth in Kneten.

B. Is there a fact issue as to cause in fact?

Both in the trial court and on appeal, the homeowners assert that, although Choice suffered a heart attack, there is no evidence the heart attack was caused by any electrocution while Choice was working in their residence. There is no dispute that Choice suffered a heart attack. Furthermore, the summary-judgment evidence contains excerpts from Choice's deposition in which he testifies to the prompt onset of heart-attack symptoms after being electrocuted when he touched exposed wires while working at the homeowners' residence. Therefore, the first prong of Kneten is satisfied because there is lay testimony providing direct evidence of the prompt onset of symptoms following electrocution. See Kneten, 440 S.W.2d at 53B54.

In their motion for summary judgment, the homeowners assert that Choice suffered an "acute myocardial infarction" but that it was not caused by any alleged electrocution. On appeal, we accept as true Choice's assertion in his statement of facts that emergency medical personnel informed him that he had suffered a heart attack. See TEX. R. APP. P. 38.1 (f) (stating that, in civil cases, appellate courts will accept as true the facts stated in appellant's statement of facts unless another party contradicts them). Not only did the homeowners not contradict this statement in their appellate brief, they again asserted that Choice had suffered a heart attack but that it was not caused by any alleged electrocution.

In these deposition excerpts, Choice testifies as follows:


• Immediately upon coming into contact with the wires, he was shocked and stumbled over into his brother-in-law, who was working with him at the time.

• Immediately thereafter, Choice became weak and had difficulty breathing.

• Although Choice tried to resume installation of the bathtub, he reached a point at which he felt like he was having a heart attack and asked his brother-in-law to call an ambulance.

• An ambulance arrived and the paramedics administered an EKG and several other diagnostic tests and gave him "nitro."

The summary-judgment evidence also contains Dr. Train's affidavit, which the trial court did not strike. In this affidavit, Dr. Train states in pertinent part:

(1) My name is Dr. Louis Train. I am at least eighteen years of age, of sound mind, and capable of making this statement, and swearing to its truthfulness.

(2) I am a doctor of medicine, practicing in Houston, Texas for over 25 years.

(3) I have reviewed the medical information concerning the heart attack suffered by Willie Choice.

(4) I understand that Mr. Choice was subject to electrocution.

(5) It is my opinion, based on common medical belief, my experience, and my medical knowledge, that people with some arterial blockage are not necessarily going to suffer a heart attack. Rather, some people with this condition to [sic] suffer a heart attack, and some do not.

(6) Similarly, some people with arterial blockage may require surgery; some will not.

(7) A cardiac situation that features arterial blockage would be exacerbated by an electrocution.

(8) It is my belief, based on the medical records that I have reviewed, that an electrocution caused the heart attack suffered by Mr. Choice.

The homeowners assert that Dr. Train's affidavit is conclusory, unreliable under Texas Rule of Evidence 702, and not based on a reasonable medical probability. However, the Kneten court held that a statement that an electrocution probably caused the plaintiff's heart attack is sufficient expert testimony to raise a fact issue as to cause in fact in a case in which there is a fact issue as to whether the heart attack occurred shortly after the plaintiff was electrocuted. Under Kneten, Dr. Train's testimony that he believes the electrocution caused Choice's heart attack, combined with the evidence of the prompt onset of symptoms following electrocution, also raises a genuine fact issue. See id., 440 S.W.2d at 53B54. Under the controlling precedent of Kneten, which this court must follow, the summary-judgment evidence raised a genuine issue of material fact as to whether the alleged negligence of the homeowners was the cause in fact of Choice's heart attack and damages. See id. C. Is there a fact issue as to foreseeability?

We now must determine if there is a fact issue regarding the foreseeability element of proximate cause. In the context of proximate cause, foreseeability requires that a person of ordinary intelligence would have anticipated the danger created by a negligent act or omission, although it is not required that such a person would anticipate the precise manner in which injury will occur once he has created a dangerous situation through his negligence. Read v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex. 1998); Yarborough v. Erway, 705 S.W.2d 198, 203 (Tex.App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.). The question of foreseeability involves a practical inquiry based on common experience applied to human conduct. Read, 990 S.W.2d at 737 (quotations omitted).

In their motion for summary judgment, the homeowners challenged only the essential element of causation. We already have concluded that there is a genuine issue of material fact regarding cause in fact. Therefore, in determining whether there is a fact issue as to foreseeability, we presume for the sake of argument the following:

Our decision in this appeal does not affect the homeowners' right to challenge other essential elements on remand, should they wish to do so.

(1) The homeowners had actual or constructive knowledge of a condition on their premises that posed an unreasonable risk of harm.

(2) The homeowners did not exercise reasonable care to reduce or eliminate the unreasonable risk of harm.

(3) The homeowners' failure to use reasonable care to reduce or eliminate the unreasonable risk of harm was the cause in fact of Choice's injuries.

We conclude that there is a genuine issue of material fact as to whether a person of ordinary intelligence would have anticipated (1) the danger created by failing to reduce or eliminate the unreasonable risk of harm caused by live electrical wires extending out of a hole in the wall in a house in which contractors were working and (2) that a contractor working in the house could be electrocuted and injured by coming into contact with the exposed wires. See Read, 990 S.W.3d at 737 (holding there was a genuine issue of fact as to the foreseeability element of proximate cause); Wald-Tinkle Packaging Dist., Inc., No. 01-02-01100-CV, 2004 WL 2966293, at *3 (Tex.App.-Houston [1st Dist.] Dec. 23, 2004, no pet.) (mem op.) (same as Read). Therefore, the summary-judgment evidence raises a genuine issue of material fact as to whether it was foreseeable that the homeowners' alleged negligence would cause Choice's damages.

Because the summary-judgment evidence raises a genuine issue of fact as to the essential element of proximate cause, we sustain Choice's first issue, reverse the trial court's judgment, and remand for further proceedings consistent with this opinion.

Because there is a genuine issue of material fact without considering Dr. Levinson's affidavit, we need not and do not include that affidavit, or any issue relating thereto, in our analysis.