Leitch v. Hornsby

ABBOTT, Justice,

concurring.

I agree with the Court’s judgment and with most of its opinion. I write separately only to provide a more detailed discussion of why no evidence supports the jury’s verdict.

Because of constitutionally mandated limitations on our review of facts, this Court should tread very carefully whenever we are requested to determine that no evidence supports a jury’s verdict. Well-established law guides our evaluation of a no evidence point of error. The Texas Constitution requires that “the decision of [the courts of appeals] shall be conclusive on all questions of fact brought before them on appeal or error.” Tex.Const. art. V, § 6. This provision “restrict[s], in express terms, the jurisdiction of the supreme court, and ... eonfine[s] it to questions of law.” Choate v. San Antonio & AP. Ry. Co., 91 Tex. 406 , 44 S.W. 69, 69 (1898); see Coulson v. Lake LBJ Municipal Util. Dist., 781 S.W.2d 594, 597 (Tex.1989) (acknowledging that this Court has no jurisdiction to undertake factual sufficiency review); Gulf, Colorado & Santa Fe Ry. Co. v. Deen, 158 Tex. 466 , 312 S.W.2d 933, 938 (1958) (Texas Supreme Court cannot conduct factual sufficiency review); Wilson v. Wilson, 145 Tex. 607 , 201 S.W.2d 226, 227 (1947) (“the Supreme Court is not invested with the power to determine facts.”); see also Hall, Revisiting Standards of Review in Civil Appeals, 24 St. MaRy’s L.J. 1045, 1139 (1993) (constitutional “provision ... acts as a limitation on the judicial authority of the supreme court and confines its jurisdiction to questions of law”).

When determining a no evidence point of error in accordance with these constitutional limitations, this Court “must consider only the evidence and inferences tending to support the jury’s finding, viewed most favorably in support of the finding, and disregard all contrary evidence and inferences.” Hamer v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992); see Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Cartwright v. Canode, 106 Tex. 502 , 171 S.W. 696, 698 (1914). If there is any evidence of probative force to support the finding, we overrule the point of error and uphold the jury’s finding. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989). If more than a scintilla of evidence exists, the claim is sufficient as a matter of law, and any challenges go merely to the weight to be accorded the evidence. See Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987); In re King’s Estate, 150 Tex. 662 , 244 S.W.2d 660, 661 (1951).

The limitations on this Court’s ability to review evidence do not mandate, however, that we abstain from reviewing a jury’s verdict when a party fails to offer any evidence on an element of a cause of action. Simply because a party presents several days of testimony for the jury’s consideration does not mean that this Court is exceeding its constitutional limitations by requiring that the testimony amount to a scintilla of evidence in support of the legal elements of the cause of action. While jurors are vested with the authority to evaluate the evidence and weigh the credibility of witnesses, some legally sufficient evidence must nevertheless exist to support their verdict.

*121 Mr. Hornsby claimed that the defendants were negligent by failing to supply him a lift belt and a dolly to help him lift the cable reel and by failing to provide a safe place to work. To succeed on his negligence claims, Mr. Hornsby had to offer at least some evidence establishing that the defendants’ alleged acts or omissions proximately caused his injuries.

The record shows that twelve witnesses were called to testify at trial. Only two of them, Dr. Paul Geibel and Larry Whidden, were asked a question concerning proximate cause. Dr. Geibel provided the following testimony:

Q. And could you please tell the jury what in your opinion is the cause of his [Mr. Hornsby’s] injuries?

A. Well, he has been symptomatic from the three-level disc herniating in his back and the spondylolisthesis at the bottom level, the instability. By his history this became symptomatic at the time of his lifting injury in September of 1990.

This answer demonstrates that Mr. Horns-by’s injury was caused by lifting the reel, but it offers nothing regarding whether acts or omissions of the defendants were the proximate cause of that injury.

Later, Dr. Geibel provided some testimony regarding the lift belts:

Q. Okay. Now getting back to the belts, if they are to provide this support as you testified, how wide do they have to be to do an effective job?

A. I don’t think there is any studies proving the amount of belts or use of them or degrees of width or anything that would predict any — any decrease in amount of injuries or anything along that nature.

Q. Okay. To followup on that just a little bit, Doctor, I get the impression that you don’t think perhaps the belt is necessarily a preventative device; is that a fair statement?

A. I don’t feel that it’s as totally preventative as one would feel it would be. It doesn’t hurt anything.

Q. Doesn’t hurt but it doesn’t necessarily help?

A. Correct.

Q. As far as if an accident of this nature were to occur and cause a three-level disc herniating, is that something that you think could have been prevented by the use of a belt such as we’ve been talking about?

A. I would be unable to comment. I don’t think there is anything that would be available to say yes or no in that respect.

The testimony quoted above is the only evidence provided by Dr. Geibel regarding proximate cause and no other questions were posed to him on that issue. Dr. Geibel’s testimony demonstrates that he has no opinion on the proximate cause issue. Clearly, this evidence does not constitute any legally sufficient evidence of causation.

Mr. Hornsby’s co-worker, Larry Whidden, offered only the following testimony about the proximate cause issue:

Q. And what kind of equipment did you request from them?

A. Dollies for the cable, lift belts, something, you know, that would make the job a little bit easier, less strain, because the equipment, most of the equipment was on the heavy side.

Q. And in your opinion, would this equipment have assisted you in lifting these cable reels?

A. Lift belt would have eliminated this injury.

Mr. Walton (counsel for defense): Your Honor, I’m going to object to that. I think that calls for an expert opinion, that is well beyond any demonstrated knowledge he has.

The Court: Sustained.

Q. In any event, sir, do you believe this equipment you are talking about, the dollies and the safety belt, from your experience of lifting these cables, do you think that would have helped you?

A. Yes, it would have.

Q. All right.

Mr. Walton: Your Honor, again, I’m going to object as far as that calls for speculation, it’s not something that he *122 has any specialized knowledge with regard to what lift belts and cable dollies did.

The Witness: Well, Your Honor, I’ve worked with those before.

The Court: Sir, I can handle it all by myself. Okay. Overruled.

The last answer demonstrates nothing more than Mr. Whidden’s belief that the safety equipment would have helped Mr. Whidden and Mr. Hornsby do their jobs. It certainly does not provide even a scintilla of probative evidence connecting Mr. Hornsby’s injury to the alleged negligence of the defendants.

Mr. Whidden’s earlier answer, that the “lift belt would have eliminated this injury,” would establish proximate cause if Whidden had been a properly qualified expert witness. However, Mr. Walton’s sustained objection properly challenged Mr. Whidden’s ability to provide expert testimony. Earlier testimony developed Mr. Whidden’s expertise as a cable worker and as a person who has used safety equipment, but there is no testimony developing Mr. Whidden’s expertise regarding the causal connection between the use of safety belts and the prevention of herniated discs. Just like an ordinary automobile driver is not qualified to testify that a seatbelt can prevent a herniated disc, Mr. Whidden was not qualified to testify that the lift belt would have prevented Mr. Hornsby’s injury.

Other than the testimony detailed in this concurring opinion, there is no evidence even arguably linking Mr. Hornsby’s injury to the acts or omissions of the defendants. Accordingly, I concur with the Court’s judgment that “the court of appeals erred in holding that Hornsby carried his burden of proof on the causation issue.”