      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                   ON MOTION FOR RECONSIDERATION EN BANC



                                      NO. 03-08-00679-CV



                                   Tariq Majeed, Appellant

                                                v.

                                   Sajjad Hussain, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
     NO. D-1-GN-01-001209, HONORABLE GUS J. STRAUSS, JR., JUDGE PRESIDING



                              DISSENTING OPINION


               En banc consideration is warranted here. See Tex. R. App. P. 41.2(c). The issue

presented is whether, based upon common sense and general experience, the jury was competent to

determine that the complete lack of a secure transaction window at a “drive-thru” convenience store

in the “highest crime area” in Austin was a cause in fact of injury to Sajjad Hussain, the store’s

cashier, when he was permanently blinded in one eye by a can thrown through the open space of the

missing window.

               Reversing the jury’s verdict in favor of Hussain, the majority panel opinion

appropriates the jury’s common sense and general experience to make this type of elemental and

recurring determination. See Guevara v. Ferrer, 247 S.W.3d 662, 666 (Tex. 2007) (submission of
causation issue to a jury is warranted when, under the evidence, layperson’s “general experience and

common sense” will enable a layperson “to determine, with reasonable probability, the causal

relationship between the event and the condition”).

               The majority panel reverses the jury’s verdict by concluding that, even if the

transaction window “had not been broken and consisted of bulletproof glass,” there was no evidence

that it would have prevented the assault because it “remains speculative on this record whether or not

the window would have been closed at the time Hussain’s assailant threw the can.” The majority

panel improperly substitutes its own view of the evidence for the jury’s on a cause-in-fact issue in

which any layperson is as competent to make the determination as the most experienced court.

See id.; see also Del Lago Partners v. Smith, 307 S.W.3d 762, 774-75 (Tex. 2010) (court concluded

that jury could have found “mere presence of uniformed security personnel” could have defused the

situation and prevented the “violent brawl at closing time” at a bar or that the jury could have

reasonably determined that the bar’s personnel “moved too slowly to notify security after the fight

broke out, and that this delay was a proximate cause of [patron’s] injuries”); K-Mart Corp.

v. Honeycutt, 24 S.W.3d 357, 360-61 (Tex. 2000) (whether lack of top railing unreasonable within

“average juror’s common knowledge”); Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex.

1992) (even though exact circumstances of the murder of the store clerk were unknown, there was

some evidence to support plaintiff’s theory and plaintiff not required to negate all other possible

causes); Missouri Pac. R.R. v. Kimbrell, 334 S.W.2d 283, 286 (Tex. 1960) (jury may consider as

proven any matter that is in common knowledge of community).




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              For these reasons, I respectfully dissent from the denial of Hussain’s motion for

en banc reconsideration.




                                    __________________________________________

                                    Jan P. Patterson, Justice

Before Chief Justice Jones, Justices Patterson, Puryear, Pemberton, Henson and Rose

Filed: December 22, 2010




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