Clark v. South Loop National Bank

740 S.W.2d 471, 1987 Tex. App. LEXIS 7223, 1987 WL 3437

• Court: Court of Appeals of Texas
• Decided: May 7, 1987
• Docket: 01-86-00732-CV
• Status: Published

Opinions

OPINION

JACK SMITH, Justice.

Clark appeals from a partial summary judgment in favor of South Loop National Bank, denying his right to recover for personal injuries caused by a heart attack, because the trial court found that his heart attack was not proximately caused by the bank’s actions.

The record reflects that Clark, a customer of South Loop National Bank, received a bank statement in April, 1978, which showed seven forged checks totaling $405.39 had been paid out of his checking account. On April 19, 1978, Clark went to the bank and demanded that his account be refunded. The bank allegedly refused to credit his account. Later that evening, Ciark suffered a heart attack. Clark brought an action to recover for fraud, bad faith, unfair bargaining position, violations of banking law, and for personal injuries and damages arising from his heart attack, which he claimed was proximately caused by the bank’s actions. The trial court granted the bank a partial summary judgment on Clark's claim for personal injuries, and an agreed judgment was entered between the parties as to all other issues.

In his sole point of error, Clark contends that the trial court erred in granting the partial summary judgment. The only question before us is whether the bank established as a matter of law that the heart attack was not proximately caused by its actions.

Although questions of negligence and proximate cause are issues of fact, which usually cannot be determined by a motion for summary judgment, Smith v. Muckleroy Enter., 537 S.W.2d 104 (Tex.Civ.App.-Tyler 1976, no writ), the bank is entitled to summary judgment as a matter of law upon a showing that there is no genuine issue of material fact as to one or more elements of Clark’s cause of action. See Beall v. Lo-Vaca Gathering Co., 532 S.W.2d 362 (Tex.Civ.App.-Corpus Christi 1975, writ ref’d n.r.e.). To establish an entitlement to a summary judgment as a matter of law, the evidence favoring the bank cannot be considered as summary judgment proof unless it is uncontradicted. Tabor v. Medical Center Bank, 534 S.W.2d 199 (Tex.Civ.App.-Houston [14th Dist.] 1976, no writ). The bank must show that Clark cannot, as a matter of law, prove proximate cause. Glenn v. Prestegord, 456 S.W.2d 901 (Tex.1970).

Proximate cause consists of two elements: (1) cause in fact and (2) foreseeability. Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex.1985). Cause in fact means that the act or omission was a substantial factor in bringing about the injury and without which no harm would have occurred. Texas & Pac. Ry. Co. v. McCleery, 418 S.W.2d 494, 497 (Tex.1967). Foreseeability means that the actor, as a person of ordinary intelligence, should have anticipated the danger to others created by his negligent act. Clark v. Waggoner, 452 S.W.2d 437, 440 (Tex.1970). Both elements must be present to prove proximate cause, and may be established by direct or circumstantial evidence. McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901 (Tex.1980); Farley v. M.M. Cattle Co., 529 S.W.2d 751 (Tex.1975).

The only evidence before the trial court was the deposition of Dr. Anne H. Doughtery, Clark’s cardiologist. Her testimony must be viewed in a light most favorable to the nonmovant for summary judgment. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962). Moreover, every reasonable inference must be indulged in favor of Clark, and all doubts resolved on his behalf. Nixon v. Mr. Property, 690 S.W.2d at 548-549.

Doughtery testified that it was theoretically possible, and even likely, that there is a causal relationship between stress and myocardial infarction; that if the events at the bank were sufficiently stressful to Clark, the subsequent heart attack could be related; that stress can precipitate a heart attack on one day, as opposed to another; that the events at the bank were possibly “the straw that broke the camel’s back”; that although she could not assess the probability, she believed it was “somewhere between zero and a hundred percent in probability, but not either one of the two extremes”; and that it was a “very real possibility” that the events were a “precipitating cause” of Clark’s heart attack.

The bank contends that proximate cause was not established as a matter of law because the mere possibility that an act of negligence might have been the proximate cause of damages from a medical viewpoint is not sufficient to support recovery. Valdez v. Lyman-Roberts Hosp., Inc., 638 S.W.2d 111 (Tex.App.-Corpus Christi 1982, writ ref’d n.r.e.); Bellaire Gen. Hosp., Inc. v. Campbell, 510 S.W.2d 94 (Tex.Civ.App-Houston [14th Dist.] 1984, writ ref’d n.r.e.). However, it was the bank’s burden to establish as a matter of law that the bank’s actions were not a proximate cause of Clark’s injuries, i.e., that there was no reasonable medical probability that the bank’s actions caused the heart attack. See Lenger v. Physician’s Gen. Hosp., 455 S.W.2d 703 (Tex.1970).

Although Dougherty would not testify that it was more probable than not that the bank’s actions caused the heart attack, she did testify that it was “somewhere between zero and a hundred percent in probability, but not either one of the two extremes.” No other evidence was presented on the subject. Therefore, the bank failed to conclusively establish as a matter of law that its actions did not probably cause the heart attack. Doughtery’s testimony raised a fact issue regarding reasonable medical probability.

Because there is an unresolved issue relating to the factual question of causation, Clark’s sole point of error is sustained.

The judgment of the trial court is reversed, and this cause is remanded to the trial court.