Brown v. Edwards Transfer Co., Inc.

ROBERTSON, Justice,

concurring and dissenting.

I concur in part and dissent in part.

Although I agree with the majority’s opinion regarding the illegitimate children’s cause of action, I respectfully dissent from the majority’s disposition and analysis of the contributory negligence issue. The majority holds that a factual question regarding proximate cause exists because there is some evidence (1) that Jenkins’ presence on the platform was a cause in fact of death and (2) that Jenkins could have foreseen that he would be injured while riding the platform. While I agree with the majority that Jenkins may have been negligent in riding the platform, I cannot embrace the conclusion that Jenkins’ riding on the platform was a proximate cause of his death. Specifically, I find error in the majority’s conclusion that there is evidence of foreseeability.

The majority points out that foreseeability does not require that the actor foresee the particular accident or injury which in *228 fact occurs. Trinity River Auth. v. Williams, 689 S.W.2d 883, 886 (Tex.1985). Rather, liability will attach if the resulting accident or injury is of such a general character as might reasonably have been anticipated. See Nixon v. Mr. Property Management Corp., 690 S.W.2d 546, 550-51 (Tex.1985); W. PROSSER & W. KEE-TON, THE LAW OF TORTS § 43 at 299 (5th ed. 1984).

Applying the law of proximate cause to this case, the majority finds that Jenkins possessed sufficient information concerning the danger of the platform, such that he could have reasonably anticipated an injury resulting from the installation of the hoisting system. Therefore, the majority concludes:

From all the evidence, a jury could infer that Jenkins could reasonably foresee all the dangers involved in riding the freight elevator.

These statements are not only a misapplication of the reasoning in Nixon , but they also evidence an unjustified departure from one of the basic principles of negligence law.

In Nixon , we applied the law of proximate cause as a basis for reversing a summary judgment which had been granted in favor of the defendants in a personal injury action. Specifically, we concluded that based upon other violent crimes which had taken place at the defendants’ apartments, a material fact question existed as to whether the defendants could have foreseen that the plaintiff would be sexually assaulted in one of their vacant apartments. In other words, the crime perpetrated against the plaintiff — being sexually assaulted — was of the “same general character” as the previous violent and assaultive crimes which had occurred at the apartments. Such a similarity, however, does not exist in this case between the injuries which Jenkins could have foreseeably suffered as a result of riding the platform and the occurrence which ultimately caused his death while he was on the platform. In short, the general character of the injury foreseeable was not “all the dangers involved in riding the freight elevator,” but rather personal injury directly attributable to riding an elevator not equipped with safety features for passengers.

At trial, there was expert testimony that even if the platform had been equipped with the necessary safety features, this in no way would have prevented the hoist from falling and killing Jenkins. In this case, Jenkins was warned not to ride the platform because it was to be used only as a freight elevator and it was not safe for use as a personal elevator. Thus the key inquiry is this: What was the “general character” of the injuries which Jenkins could have reasonably anticipated receiving as the result of riding the platform? Certainly, Jenkins could have anticipated falling from the platform since it had no side railings. In this vein, Jenkins could have foreseen that if he fell from the platform, he could be injured by falling freight. Finally, Jenkins could have anticipated that he could be injured by shifting freight or freight which fell from the platform. However, there is no evidence in the record to support the majority’s conclusion that the hoist falling onto Jenkins was of such “general character” that the resulting injuries could have reasonably been anticipated by Jenkins when he rode the platform. Thus, the falling hoist cannot be viewed as a proximate cause of Jenkins’ death. Missouri Pac. Ry. Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex.1977).

I am also troubled by the majority’s reliance upon Motsenbocker v. Wyatt, 369 S.W.2d 319 (Tex.1963). In Motsenbocker , this court reversed the court of appeals’ holding that there was no evidence that leaving a young child unattended for a period of one hour was the proximate cause of the plaintiff’s injuries. In doing so, the court reasoned:

Small children when unattended are apt to get into trouble. They often disobey instructions and find themselves in positions of danger wherein because of their tender years and lack of experience they cannot protect themselves.

369 S.W.2d at 321 . Although the Motsen-bocker court recites the standard for foreseeability set out in Carey v. Pure Distrib. *229 Corp., 133 Tex. 31, 35 , 124 S.W.2d 847, 849 (1939), it is apparent that the court placed little or no emphasis on the Carey requirement that “the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.” 124 S.W.2d at 849 .

The Motsenbocker court’s flawed analysis of the foreseeability issue becomes apparent when it concludes:

In the present case the exact way in which [the child] was injured was unusual, but the general nature of the injury was not. One of the most common injuries suffered by young children when left unattended and without supervision is that of being struck by a motor vehicle. If the fact of negligence in leaving the child unattended be established, injury by being struck with an automobile seems clearly foreseeable....

369 S.W.2d at 323-24 (emphasis added). Under this reasoning, foreseeability would have been found if the child had wandered off to the park and was killed by an automobile which fell from a cargo transport plane flying overhead. After all, one of the most common injuries suffered by young unattended children who are “apt to get into trouble” is “being struck by a motor vehicle.” Thus, “if the fact of negligence in leaving the child unattended be established, injury by being struck with an automobile seems clearly foreseeable” because even though the exact way in which the child was injured was unusual, “the general nature of the injury was not.” Consequently, under Motsenbocker , “foreseeability” is reduced to mere “possibility.”

A common thread which runs throughout this court’s opinions in the area of negligence law is that a person will be held liable only for those injuries which are proximately caused by his negligent conduct. See, e.g., McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex. 1980); Missouri Pac. Ry. Co., 552 S.W.2d at 103; Farley v. M M Cattle Co., 529 S.W.2d 751, 755 (Tex.1975). To hold otherwise would essentially result in the unworkable rule that a mere showing of negligence would automatically justify holding the negligent individual liable for all the resulting damages, no matter how remote and unforeseeable they may be. Such a result, however, has been expressly rejected by this Court. Carey, 124 S.W.2d at 849 . The majority’s opinion, though, attempts to expand the concept of proximate cause beyond the parameters established in Carey .

In the end, the majority’s analysis ignores a basic requirement of negligence law — in order for an individual’s negligent conduct to serve as a basis for imposing liability, there must be “[a] reasonably close causal connection between the conduct [of the negligent individual] and the resulting injury.” W. PROSSER & W. KEETON, THE LAW OF TORTS § 30 at 165 (5th ed. 1984); see also Sears v. Texas &N.O. Ry. Co., 247 S.W. 602, 607 (Tex.Civ. App. — Galveston 1922) (“[a]n injury is not actionable if it could not have been foreseen or reasonably anticipated.”), affd, 266 S.W. 400 (Tex.Comm’n App.1924, judgmt adopted). Indeed, the correct rule was announced by the court of appeals in this case when it stated that

[i]f the plaintiff cannot reasonably anticipate or have knowledge of the danger, he cannot be charged with contributory negligence, because knowledge is an essential element of contributory negligence. ...

740 S.W.2d at 50 (citing J.R. Beadel & Co. v. De La Garza, 690 S.W.2d 71, 73 (Tex. App. — Dallas 1985, writ ref’d n.r.e.)).

I would hold that there was no evidence of proximate cause to warrant submission of an issue on Robert Jenkins’ contributory negligence. Accordingly, the trial court properly refused to submit such an issue. Brown v. Goldstein, 685 S.W.2d 640, 641 (Tex.1985).

RAY and MAUZY, JJ., join in this concurring and dissenting opinion.