# Havner v. E-Z Mart Stores, Inc.

> Texas Supreme Court · February 26, 1992 · 35 Tex. Sup. Ct. J. 523

URL: https://www.frixlaw.com/law-library/cases/9765623

## Case

- **Full name:** Roger HAVNER, Et Al., Petitioners, v. E-Z MART STORES, INC., Respondent
- **Court:** Texas Supreme Court
- **Decided:** February 26, 1992
- **Citations:** 35 Tex. Sup. Ct. J. 523; 825 S.W.2d 456; 1992 Tex. LEXIS 23; 1992 WL 34084
- **Precedential status:** Published
- **Opinion:** Concurrence by Phillips
- **Judges:** Doggett, Cornyn, Phillips, Cook, Hecht
- **Cited by:** 280 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9765623

## How later opinions describe it (automated extraction)

- holding that cause in fact means that “an act or omission was a substantial factor in bring about the injury and without which no harm would have occurred” and that causation may be supported by circumstantial evidence and inferences therefrom
- concluding that although the precise circumstances of the murder would never be known, plaintiffs had introduced enough evidence for the jury to conclude that the store's inadequate security system was a cause of the victim's death
- holding any alteration to court of appeals’ opinion or judgment entitles party to file further motion for rehearing; construing Tex.R.App. P. 100(d), 49 Tex. B.J. 584 (Tex.1986), amended by Tex. R.App. P. 100(d), 53 Tex. B.J. 612 (Tex.1990) (amended 1997, now Tex.R.App. P. 49.5)

## Opinion text

PHILLIPS, Justice,
concurring.
Although I share to some extent the concerns expressed by the dissent regarding the excessive use of marginal “experts” in modern trial practice, I believe that the testimony of the fact witnesses, taken together, constitutes more than a scintilla of evidence to support the verdict in this case for the Havners. Accordingly, I join in the court’s judgment.
The factual evidence in the record is detailed in the court’s opinion. Taken in the light most favorable to plaintiffs, it provides some evidence that Havner was taken suddenly and against her will by her assailant from inside the store, that E-Z Mart chose not to equip the store with various available safety devices, that one or more of those devices could have been successfully activated by Havner, and that the local police could have arrived on the scene within one minute after receiving the alarm. Finally, the failure of the police investigation, focusing on Havner’s past friends and acquaintances, is some evidence that the crime was perpetrated by a stranger.
Whether some, most, or even all of the expert testimony proffered in this case was conjecture or surmise is thus an interesting, but at this juncture irrelevant, inquiry. I agree that this cause should be remanded to the court of appeals to review the factual sufficiency of the evidence to support the jury’s finding as to causation.
COOK, J., joins in this concurring opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9765623. Public record. Not legal advice.