                                   NO. 07-01-0288-CV

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   JUNE 12, 2003
                          ______________________________

                              JOJOS RESTAURANTS, INC.

                                                        Appellant

                                             v.

                  JERMAINE MCFADDEN AND MARIA MCFADDEN,

                                                Appellees
                        _________________________________

             FROM THE 129TH DISTRICT COURT OF HARRIS COUNTY;

                 NO. 98-38676; HON. PATRICK MIZELL, PRESIDING
                       _______________________________

                                     Opinion
                         _______________________________


Before JOHNSON, C.J., QUINN and REAVIS, JJ.

       This case involves the issue of proximate cause, in general, and the element of

cause-in-fact, in particular. In accordance with the jury’s verdict, judgment was entered

awarding Jermaine McFadden and Maria McFadden damages against Jojo’s Restaurants,

Inc. (Jojo’s). On appeal, Jojo’s argues that there was no evidence or factually insufficient

evidence to support the jury’s finding that it breached any duty owed to the McFaddens or
that the breach, if any, proximately caused their injuries. So too does it allege that the trial

court erred in the manner in which it proportioned liability for the damages. We need only

address the issue of causation and whether the McFaddens proved same by a

preponderance of the evidence. Concluding that they did not, we reverse and render

judgment.

                                        Background

       The McFaddens joined Charles Haywood and an individual nicknamed Peewee for

an evening of camaraderie.        It began around 10 p.m. and involved journeying in

Haywood’s car to a local nightclub. There they remained until shortly before 2 a.m. At that

time, the group decided to leave and get something to eat. So, they entered Haywood’s

car. Haywood drove, while Peewee sat in the front passenger’s seat and the McFaddens

sat in the rear. The group decided to go to Jojo’s, a restaurant located across the street

from the nightclub.

       Negotiating the traffic at that time of the morning, they drove across the street,

entered a parking lot adjacent to Jojo’s, and proceeded towards it. As they did, the group

noticed that it was crowded. So too did they notice that the parking lot behind the

restaurant was full. This caused them to decide to go elsewhere. Attempt was then made

to leave via the exit located in the parking lot behind the restaurant.

       As Haywood proceeded to the exit, he discovered a white Tercel blocking the

driveway. He stopped behind the car. At that point, two females left the Tercel, walked

around to its driver’s side, conversed momentarily with the driver, and then entered Jojo’s.

The Tercel remained stationary but with its engine on. Becoming impatient, Haywood


                                               2
honked his car horn and blinked its lights in an effort to get the Tercel to move. Rather

than move, its driver (an individual named Rodriguez) “gesture[d]” at Haywood in either

a “foul” manner or in a manner meaning “whatever.” Haywood pulled alongside the Tercel

and exchanged curse words with Rodriguez. Within seconds after the exchange began,

the McFaddens saw Rodriguez raise a shotgun from the area of his lap and point it out the

car window. Peewee ducked. Jermaine shouted and directed Haywood to leave. In

response, Haywood pulled the car around the Tercel and exited the lot. However,

Rodriguez fired as Haywood attempted to leave. The projectile he discharged (a slug)

struck Jermaine’s arm, leg and hand and then struck Haywood in the back.

      Haywood and Jermaine realized that they had been shot. Yet, Haywood drove to

a nearby street and stopped. Peewee immediately exited the car and ran back to the area

from which they left to secure help from the police. Apparently, police or security

personnel were located in parking lots at other establishments in the area. The police

returned with Peewee and requested medical assistance for Jermaine and Haywood.

Jermaine recovered after brief hospitalization. Haywood died from his gunshot wound.

      The McFaddens and the estate of Haywood sued Jojo’s for negligently failing to

provide a secure and safe place for them. Allegedly, Jojo’s had notice of other violent

crime occurring in its parking lot and, therefore, had the duty to place security personnel

in the lot during what they termed the “bar rush,” a several hour period beginning around

the time area bars closed. Furthermore, the police officer it actually had retained and

assigned to monitor both the inside of the restaurant and the parking lot was insufficient,




                                            3
in their view. Again, the complainants asserted that at least one security officer had to be

stationed solely in the parking lot.

       At trial, lay and expert testimony was presented, as was other evidence. Once each

side had rested, the cause was submitted to the jury. The latter found both Haywood and

Jojo’s negligent. However, it attributed 70 percent of the negligence to Haywood and 30

percent to Jojo’s. The trial court then entered judgment obligating Jojo’s to pay for all of

the damages suffered by the McFaddens. Jojo’s alone appealed.

                       Issue One - Legal and Factual Sufficiency

       As previously mentioned, Jojo’s questions the legal and factual sufficiency of the

evidence underlying the jury’s verdict. We address that question as it relates to causation

and, upon addressing it, sustain the issue.

                                       Applicable Law

       The standard of review used in determining whether evidence is legally sufficient

to support a verdict is stated in Southwest Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269

(Tex. 2002). That is, while examining the record we must view the evidence in a light that

tends to support the finding of causation and disregard all evidence and inferences to the

contrary. Id. at 274. Furthermore, no evidence supports the verdict when, among other

things, the record discloses a complete absence of evidence of a vital fact or the evidence

tending to prove the vital fact is no more than a scintilla. Marathon Corp. v. Pitzner, No.

01-0870, 2003 WL 21197255 (Tex. May 22, 2003).

       Next, proximate cause consists of two elements. One is foreseeability, and the

other is cause-in-fact. Id.; Southwest Key Program, Inc., 81 S.W.3d at 274; Doe v. Boys


                                              4
Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). The latter is that which

we address here. Furthermore, to establish it, the complainant must show that the

misconduct was a substantial factor in bringing about the injury and without which the harm

would not have occurred. Id. This is done by showing that “it was more probable than not

that [the complainant] would not have been injured” had the purported misconduct not

occurred. See Southwest Key Program, Inc., 81 S.W.3d at 275 (holding that the evidence

did not establish that “it was more probable than not that Gil-Perez would not have been

injured had he been wearing ordinary protective gear”). For instance, if it is shown that the

injury would have resulted even though the defendant did that which the plaintiff contends

should have been done, then the purported negligence is not a cause-in-fact of the injury.

See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d at 477-78. Nor is cause-in-fact

established if the misfeasance did no more than furnish a condition which made the injury

possible. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d at 477. Finally, while one

may prove causation via direct or circumstantial evidence, it cannot be based upon

conjecture, guess, or speculation. Marathon Corp. v. Pitzner, supra; Doe v. Boys Clubs

of Greater Dallas, Inc., 907 S.W.2d at 477.

                                   Application of Law

       Here, the McFaddens contended that Jojo’s caused their injury because it did not

assign security personnel to exclusively monitor the parking lot during “bar rush” hours.

To prove this, they offered testimony illustrating that the presence of uniformed police

officers or like individuals would have had a general deterrent effect on crime occurring

in the lot. Implicitly, the type of crime about which they spoke was that which involved


                                              5
forethought or the use of reason. That this is true is readily exemplified by the testimony

of their expert. In explaining the value of an officer’s presence, he described how it would

be “[s]omething that a criminal would view and say, . . . I think I’ll not do it.” In other words,

the expert opined that the criminal would weigh the risk of capture in assessing whether

to commit the crime. Common sense dictates that one’s attempt to assess risk entails

contemplation, and contemplation involves forethought about one’s actions. Yet, no

evidence was offered tending to illustrate that one acting suddenly and upon emotion or

provocation utilizes the same thought processes as one planning to commit a crime.

Rather, the very same expert admitted that an officer’s presence was “not a guarantee”

that an incident would not occur. So too did he acknowledge that there existed crimes that

may occur despite the presence of a uniformed officer. One such crime, according to the

expert, involved people fighting when they “got angry at each other.”1 (Emphasis added).

So, while there appears to be evidence suggesting that the presence of security officers

may have reduced the likelihood of crime involving forethought, that constitutes no

evidence that it similarly reduces the likelihood of crime arising suddenly from provocation

or emotion, and that is the type of crime that occurred at bar. See East Tex. Theatres, Inc.

v. Rutledge, 453 S.W.2d 466, 469 (Tex. 1970) (noting that even if the person who threw

a bottle and struck the victim had seen the theater personnel remove others for “rowdy”

behavior “it would be just a guess as to what subjective effect such action may have had

upon the bottle thrower”). Nor did anyone testify that it was more probable than not that



        1
        The expert of Jojo’s confirmed that violent crime, especially that involving emotion or passion,
“happens quite often” in the presence of police officers.

                                                   6
assigning security officers to the lot would have prevented Rodriguez from shooting at

Haywood in response to expletives being exchanged.2

        And, the importance of a crime’s spontaneity and stimulus in assessing causation

has been underscored by other courts. For instance, in Donnell v. Spring Sports, Inc., 920

S.W.2d 378 (Tex. App.--Houston [1st Dist.] 1996, writ denied), a fight broke out between

those playing a softball game. Like the McFaddens at bar, Donnell sued and contended

that Spring Sports should have provided security guards to deter such conduct and that

the failure to do so proximately caused his injuries. In rejecting the contention, the

reviewing court stated that “[w]hile the presence of security guards could deter the criminal

act of a third party seeking an easy opportunity to commit a crime, we cannot conclude

from this that their presence would deter fights between participants in a hotly contested

athletic endeavor.” Id. at 384-85. We agree. Though man has been termed a “rational

animal” by at least one philosopher, it is beyond dispute that emotion and provocation can

displace rationality and contemplation. When such characteristics are displaced, the

ensuing response can be sudden and unexpected from a normally rational human being.

Indeed, the McFaddens’ own expert conceded that “no one, including Jojo’s, knew that this

was going to happen.”




        2
          To the extent that the McFaddens’ expert opined that the parties may not have been angry despite
the honking, flashing of lights, cursing, and shooting, he nonetheless conceded that at least one emotion
came into play, that emotion being “anxiety.” Furthermore, no one denied that the shooting was spontaneous
and arose immediately after the honking, flashing of lights, and cursing. So, assuming that Rodriguez
reacted with a cool mind yet spontaneously, there still remains a dearth of evidence permitting one to
rationally infer that his conduct would have been altered in any way simply by the presence of a security
officer somewhere in the parking lot and not necessarily adjacent to the locale where the exchange occurred.

                                                     7
       Similarly, in Yarborough v. Erway, 705 S.W.2d 198 (Tex. App.--Houston [14th Dist.]

1985, writ ref’d n.r.e.), the sudden nature of the fight also had an impact on the resulting

opinion. According to the court, the time that “elapsed between the[] [combatants’]

decision to go outside and the stabbing was only a matter of seconds or one to two

minutes.” Id. at 203. Furthermore, no one testified “that the [defendant’s] employees could

have taken any action to prevent Erway’s injuries even if they had known the fight was

imminent.” Id. (Emphasis added). These circumstances resulted in the court holding that

no evidence existed of a causal connection between the misfeasance of the nightclub

owner and the injuries suffered as a result of the fight. Like the court in Yarborough, we

too have no evidence of record indicating that even if Jojo’s knew a fight was imminent and

had security personnel somewhere in the parking lot at the time, the security personnel

would have had time to effectively intercede and prevent the shooting.

       In sum, what the McFaddens proposed is akin to that rejected by the Supreme Court

in East Texas Theatres, Inc. v. Rutledge. There, like here, the court was faced with

deducing the effect an exercise of authority would have upon the conduct of a third party.

There, the injured argued that the failure of theater personnel to remove “rowdy persons”

or to exercise like supervision over the situation emboldened a third party to act. In

response, the court stated that “[i]t is purely speculative as to what would have happened

had the defendant attempted to remove the ‘rowdy persons’ from the theater.” East Tex.

Theatres, Inc. v. Rutledge, 453 S.W.2d at 469. “If present at the time of removal of the

persons who were ‘hollering’ and throwing paper cups, it would be just a guess as to what

subjective effect such action may have had upon the bottle thrower.” Id. Likewise, if Jojo’s


                                             8
had assigned security personnel to the parking lot at the time in question, it would be little

more than a guess as to what subjective effect that would have had on Rodriguez when

responding to Haywood’s confrontation of him.3 No evidence appears of record illustrating

or permitting one to rationally infer that had security personnel been assigned to the

parking lot the harm emanating from the sudden and violent exchange would not have

occurred. To conclude otherwise would be to engage in speculation, an act which we

cannot do. At most, Jojo’s created a condition which allowed the injury to occur. That is

not the same as causing the injury in fact. And, while restaurants have a “duty to exercise

reasonable care for the safety of [their] patrons . . . [they] are not insurers of their patron’s

safety.” East Tex. Theatres, Inc. v. Rutledge, 453 S.W.2d at 469-70.

        Accordingly, we hold that no evidence of proximate cause appears of record,

reverse the judgment of the trial court, and render judgment that the McFaddens take

nothing against Jojo’s. Having held as we do, we need not address any of the other issues

asserted by Jojo’s.



                                                         Brian Quinn
                                                           Justice




        3
         This assumes that Rodriguez would have even seen the hypothetical officer in the first place.
Indeed, if the presence of an officer is supposed to cause one intending to engage in misconduct to think
twice, as suggested by the McFaddens’ expert, then logic dictates that the prospective criminal must first
perceive the officer. If he does not perceive him, then the visage of a uniform can hardly have any effect
upon his mental processes. And, whether Rodriguez would have even seen the officer had one been
stationed in the lot is utter speculation. Nor did anyone present evidence to morph this speculation to
reasonable inference or fact.

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