Hang On II, Inc. v. Tuckey

978 S.W.2d 281, 1998 Tex. App. LEXIS 5628, 1998 WL 559791
CourtCourt of Appeals of Texas
DecidedAugust 31, 1998
DocketNo. 2-97-121-CV
StatusPublished
Cited by8 cases

This text of 978 S.W.2d 281 (Hang On II, Inc. v. Tuckey) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hang On II, Inc. v. Tuckey, 978 S.W.2d 281, 1998 Tex. App. LEXIS 5628, 1998 WL 559791 (Tex. Ct. App. 1998).

Opinion

OPINION

DAY, Justice.

Shelby Jean Tuckey sued Appellant Hang-On-II, Inc. (“Hang-On”) for damages after she fell and broke her arm while working at Hang-On. The trial court rendered judgment on the jury’s verdict in favor of Tuckey for $84,500.

Hang-On filed a motion for new trial and a motion for judgment non obstante veredicto (n.o.v.), alleging that there was no evidence or insufficient evidence to support the jury’s findings on special issues number one, two, five, and six. The trial court denied both motions. On appeal, Hang-On challenges the legal and factual sufficiency of the evidence to support the jury’s findings that Tuckey was Hang-On’s employee, that Tuck-ey was acting within the scope of her employment at the time of her injury, and that Hang-On’s negligence proximately caused Tuckey’s injury. Hang-On also contends that it had no duty as a matter of law to insure that Tuckey performed her work in a proper manner because she was an independent contractor.

Because Tuckey presented no evidence that Hang-On’s negligence was the proximate cause of her injury, we reverse the judgment of the trial court and render a take-nothing judgment in favor of Hang-On.

[283]*283BACKGROUND

Due to the disposition of this case, our discussion of the facts is limited to those relevant to the proximate cause issue.

On June 30, 1995, Tuckey arrived at Hang-On, a topless bar, to work the evening shift as a cocktail waitress. Shortly after midnight, Tuckey walked up two stairs, stepped up onto the dancers’ main stage, and retrieved the dirty glasses sitting on the edge of the disc jockey’s booth. As she came back down the stairs, her foot missed a step and she fell, breaking her elbow. Tuckey filed suit against Hang-On, alleging that the bar was negligent in failing to provide a guardrail and adequate lighting around the steps where she fell, and that her injury was caused by this negligence.

At trial, Tuckey testified about the accident and introduced medical records to substantiate her damages. The defendant called three Hang-On employees: Francis Clough, a manager, Dwayne Boyd, a disc jockey, and Margie Littleton, a dancer. Each witness testified that they were present on the night Tuckey fell and offered controverting evidence about the accident.

The jury answered in favor of Tuckey on special issues number one, two, five, and six, finding that (1) Tuckey was Hang-On’s employee, (2) she was within the scope of her employment at the time of the accident, (3) Hang-On’s negligence was a proximate cause of her injury, and (4) she was entitled to $84,500 in damages as a result of the injury. Hang-On filed a motion for new trial and a motion for judgment n.o.v., which the trial court denied. Hang-On thereafter timely perfected its appeal.

STANDARD OF REVIEW

When we review a no-evidence point, we review all of the evidence in the light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference that may be deduced from the evidence must be indulged in that party’s favor. See Associated Indem. Corp. v. Cat Contracting, Inc., 964 S.W.2d 276, 285 (Tex.1998) (citing Harbin v. Seale, 461 S.W.2d 591, 592 (Tex.1970)); Formosa Plastics Corp. USA v. Presidio Engineers and Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998) (citing Harbin, 461 S.W.2d at 592). If there is more than a scintilla of competent evidence supporting the jury's finding, it must be upheld and the no-evidence challenge must fail. See Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 228 (Tex.1990); Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex.1986). If negligence can reasonably be inferred from direct or circumstantial evidence, there is more than a scintilla of evidence. See Farley v. M M Cattle Co., 529 S.W.2d 751, 755 (Tex.1975); Martinez v. Delta Brands, Inc., 515 S.W.2d 263, 265 (Tex.1974). But if the evidence creates nothing more than a mere surmise or suspicion of negligence, the evidence is the legal equivalent of no evidence. See Martinez, 515 S.W.2d at 265.

THE LAW

Because Hang-On did not subscribe to workers’ compensation insurance, Tuckey was required to establish that Hang-On was negligent to recover damages for her personal injuries. See Tex. Labor Code Ann. § 406.033(a), (d) (Vernon 1996). To prevail on a negligence claim, a plaintiff must plead and prove that the defendant’s negligence was the proximate cause of her injury. See Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex.1996). Proximate cause consists of cause in fact and foreseeability. See Leitch, 935 S.W.2d at 119; Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex.1985); Missouri Pac. R.R. Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex.1977). Foreseeability means that the actor should have anticipated the dangers that its negligent act created for others. See Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992); Hall v. Stephenson, 919 S.W.2d 454, 466 (Tex.App.—Fort Worth 1996, writ denied). The test for cause in fact is whether the negligent act or omission was a substantial factor in bringing about the injury, without which the harm would not have occurred. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995); McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex.1980); American Statesman, 552 S.W.2d at 103-04; Hall, 919 S.W.2d at 466. [284]*284In this case, Hang-On does not challenge the foreseeability of Tuckey’s injury. As a result, we will only review the evidence to determine whether Tuckey proved that Hang-On’s negligence was the cause in fact of her injury.

Cause in fact must be proven by evidence of probative force, and cannot be established by mere conjecture, guess, or speculation. See Boys Clubs, 907 S.W.2d at 477; McClure, 608 S.W.2d at 903. Cause in fact is not shown if the defendant’s negligence did no more than furnish a condition that made the injury possible. See Boys Clubs, 907 S.W.2d at 477; Bell v. Campbell, 434 S.W.2d 117, 120 (Tex.1968).

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978 S.W.2d 281, 1998 Tex. App. LEXIS 5628, 1998 WL 559791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hang-on-ii-inc-v-tuckey-texapp-1998.