Opinion issued April 18, 2013




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                         ————————————
                            NO. 01-12-00616-CV
                         ———————————
       ANTONIO GARCIA TAX A/K/A MARIO A. CUA, Appellant
                                     V.
         HOUSTON DISTRIBUTING COMPANY, INC., Appellee



                  On Appeal from the 333rd District Court
                           Harris County, Texas
                     Trial Court Case No. 2011-39878



                        MEMORANDUM OPINION

     Appellant, Antonio Garcia Tax, also known as Mario A. Cua (“Tax”),

challenges the trial court’s summary judgment in favor of appellee, Houston

Distributing Company, Inc. (“HDC”), in Tax’s suit against HDC for negligence.
In his sole issue, Tax contends that the trial court erred in granting HDC summary

judgment.

      We affirm.

                                    Background

      In his second amended petition, Tax alleged that on June 10, 2011, he was

loading beer bottles into a “cooling container” at Sawyer Sportsbar (“Sawyer”), his

place of employment, at the direction of Sawyer’s owner, Darren Van Delden.

While loading the bottles, one of them “exploded,” which “caused pieces of the

beer bottle to become imbedded” in Tax’s right eye. As a result, Tax was unable

to remain employed and experienced “severe pain and suffering.” Alleging that

HDC “delivered the defectively manufactured and dangerous bottle,” Tax sued

HDC for negligence “in the marketing, care, handling, and/or transporting of the

bottle,” in failing “to inspect the bottles for known defects,” and in failing “to have

and properly execute appropriate procedures to protect and warn the public and

employees of proper inspection and handling procedures.”           Tax also brought

negligence and premises-liability claims against Sawyer and Van Delden. And,

alleging that the defendants acted with malice, he sued HDC, Sawyer, and Van

Delden for intentional influction of emotional distress.

      In its second amended answer, HDC generally denied Tax’s allegations and

pleaded comparative negligence on the part of Tax. HDC further asserted that it

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was not negligent or grossly negligent and it did nothing that would constitute a

contributing cause of Tax’s injuries.      In its summary-judgment motion, HDC

asserted that “HDC owed no duty” to Tax, its conduct “was not a proximate cause”

of his injuries, and Tax did not “state any facts that would support the claim for

gross negligence/malice against HDC.” HDC later filed a “Supplement to Its

Traditional Motion for Summary Judgment,” in which it “include[d] a No-

Evidence Motion for Summary Judgment with regard to [Tax’s] cause of action for

intentional infliction of emotional distress.”

      HDC attached to its motion the deposition of Tax, who testified that one of

his obligations at Sawyer was to transport alcohol from the downstairs “walk-in

cooler” to the area behind the upstairs bar. Beer was delivered to Sawyer on

Thursdays, Fridays, and Saturdays between 12:00 and 1:00 p.m., and it was placed

in the walk-in cooler. On June 10, 2011 between 10:00 and 10:30 p.m., Tax took a

box of Dos Equis beer from the walk-in cooler and placed the individual bottles

into two portable coolers, which he was to carry upstairs to the bar. After placing

about ten or twelve bottles into the second cooler, Tax placed another bottle into

the cooler, but it “exploded.” He did not notice anything unusual about the bottle

before the incident.     When the bottle exploded, Tax’s vision “immediately”

became “blurry.” Although he “passed out,” Tax suffered no cuts or bruises

anywhere on his body.       He later threw the bottle into the garbage that had

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exploded. Subsequently, he discovered that glass from the bottle had pierced his

right eye, causing him to be “completely blind” in that eye.

      In his response to HDC’s summary-judgment motion, Tax asserted that

HDC “had the right of control over the subject beer bottle, which proximately

caused” his injuries, and had notice of “the propensity of beer bottles to explode.”

Tax attached to his response a copy of a petition, filed in the 280th District Court

of Harris County in 2002, in which the plaintiff was injured by a beer bottle that

exploded in her hand. The plaintiff sued HDC and Miller Brewing Company,

alleging that they were negligent in the “manufacture, design, and/or marketing,”

the “care, handling and/or transporting,” and the delivery of the bottles. Tax also

attached to his response his affidavit, in which he testified that he “was given no

warning by HDC that some of the beer bottles were or could have been defective.”

      After the trial court granted HDC summary judgment, HDC moved to sever

Tax’s claims against it from his claims against Sawyer and Van Delden. And the

trial court granted HDC’s motion for severance. 1

                                Standard of Review

      To prevail on a summary-judgment motion, a movant has the burden of

proving that it is entitled to judgment as a matter of law and there are no genuine

1
      Both parties designate the style of the case on appeal as “Antonio Garcia Tax AKA
      Mario A. Tax v. Sawyer Sportsbar, Inc. d/b/a Sawyer Park, et al.” However,
      because the trial court severed Tax’s claims against Sawyer and Van Delden, HDC
      and Tax are the only parties to this appeal.
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issues of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339,

341 (Tex. 1995). When a defendant moves for summary judgment, it must either

(1) disprove at least one element of the plaintiff’s cause of action or (2) plead and

conclusively establish each essential element of its affirmative defense, thereby

defeating the plaintiff’s cause of action. Cathey, 900 S.W.2d at 341. In deciding

whether there is a disputed material fact issue precluding summary judgment,

proof favorable to the non-movant must be taken as true, and the court must

indulge every reasonable inference and resolve any doubts in favor of the non-

movant. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995);

Lawson v. B Four Corp., 888 S.W.2d 31, 33–34 (Tex. App.—Houston [1st Dist.]

1994, writ denied).

                               Summary Judgment

      In his sole issue, Tax argues that the trial court erred in granting HDC

summary judgment because “HDC has a duty to warn others with whom it

transacts business and sells the bottles, that under certain circumstances, the beer

bottles can and will explode in the hands of those handling them.” Tax also asserts

that genuine issues of material fact exist regarding whether HDC proximately

caused his injuries.

      The common law doctrine of negligence consists of three elements: (1) a

legal duty owed by one person to another, (2) a breach of that duty, and (3)

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damages proximately resulting from the breach. El Chico Corp. v. Poole, 732

S.W.2d 306, 311 (Tex. 1987); Rosas v. Buddies Food Store, 518 S.W.2d 534, 536

(Tex. 1975). The threshold inquiry in a negligence case is duty. El Chico, 732

S.W.2d at 311.    A duty is “a legally enforceable obligation to conform to a

particular standard of conduct.” Hand v. Dean Witter Reynolds Inc., 889 S.W.2d

483, 491 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (citing Way v. Boy

Scouts of Am., 856 S.W.2d 230, 233 (Tex. App.—Dallas 1993, writ denied)).

      The components of proximate cause are cause in fact and foreseeability.

Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). These elements cannot

be established by mere conjecture, guess, or speculation. McClure v. Allied Stores

of Tex., Inc., 608 S.W.2d 901, 903 (Tex. 1980); Farley v. M M Cattle Co., 529

S.W.2d 751, 755 (Tex. 1975). The test for cause in fact is whether the negligent

“act or omission was a substantial factor in bringing about injury,” without which

the harm would not have occurred. Prudential Ins. Co. v. Jefferson Assocs., Ltd.,

896 S.W.2d 156, 161 (citing McClure, 608 S.W.2d at 903); see Havner v. E–Z

Mart Stores, Inc., 825 S.W.2d 456, 458–59 (Tex. 1992); Brown v. Edwards

Transfer Co., 764 S.W.2d 220, 223 (Tex. 1988). Cause in fact is not shown if the

defendant’s negligence did no more than furnish a condition which made the injury

possible. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477

(Tex. 1995); Bell v. Campbell, 434 S.W.2d 117, 120 (Tex. 1968). “The evidence

                                        6
must go further, and show that such negligence was the proximate, and not the

remote, cause of resulting injuries” and “justify the conclusion that such injury was

the natural and probable result thereof.” Doe, 907 S.W.2d at 477 (quoting Carey v.

Pure Distrib. Corp., 124 S.W.2d 847, 849 (Tex. 1939)); see also Boyd v. Fuel

Distribs., Inc., 795 S.W.2d 266, 272 (Tex. App.—Austin 1990, writ denied)

(holding that convenience store’s sale of beer to eighteen-year-old was not cause in

fact of intoxicated driver’s fatal car accident because sale was to passenger and not

to driver).

       Foreseeability, the other aspect of proximate cause, requires that a person of

ordinary intelligence should have anticipated the danger created by a negligent act

or omission. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549–50 (Tex. 1985).

The danger of injury is foreseeable if its “general character . . . might reasonably

have been anticipated.” Id. at 551 (quoting Carey, 124 S.W.2d at 849) (emphasis

omitted). The question of foreseeability, and proximate cause generally, involves a

practical inquiry based on “common experience applied to human conduct.” City

of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex. 1987) (quoting Cook

Consultants, Inc. v. Larson, 700 S.W.2d 231, 236 (Tex. App.—Dallas 1985, writ

ref’d n.r.e.)).

       Here, regarding the foreseeability of his injury, the only summary-judgment

evidence presented by Tax was a single plaintiff’s petition, filed in 2002, in which

                                          7
it was alleged that HDC and Miller Brewing Company had been negligent in the

manufacture and delivery of a beer bottle that had exploded in the plaintiff’s hand.

However, there is no indication as to how that suit was resolved or whether it was

even meritorious. HDC’s only apparent connection to the beer bottles in question

was in transporting them to Sawyer, not manufacturing them. 2 And Tax testified

that he noticed nothing unusual about the beer bottle before it exploded in his hand,

indicating that even if HDC had inspected each bottle for alleged defects, the

injury would still have not been foreseeable. From this summary-judgment record,

we cannot conclude that Tax has raised a genuine issue of material fact as to

whether his injury could have been reasonably anticipated by HDC. See Doe, 907

S.W.2d at 478 (“Foreseeability requires more than someone, viewing the facts in

retrospect, theorizing an extraordinary sequence of events whereby the defendant’s

conduct brings about the injury.”) (citing RESTATEMENT (SECOND)         OF   TORTS §

435(2) (1965)).

      Furthermore, regarding whether HDC’s actions proximately caused his

injuries, Tax testified that HDC delivered the beer to Sawyer at some time between

12:00 and 1:00 p.m. Tax, however, did not handle the beer bottle until between

10:00 and 10:30 p.m., nine or ten hours after HDC had delivered the beer to

2
      We note that Tax has not brought a claim of products liability against the
      manufacturer in this case. Rather, he has brought claims only against the
      distributor, HDC, in addition to Sawyer and Van Delden.

                                         8
Sawyer. Tax cites to no evidence that HDC negligently handled or transported the

bottles. Nor does he cite any evidence that the explosion of the bottle was in any

way related to HDC’s handling of it. Cause in fact is not established where the

defendant’s actions do no more than furnish a condition which makes the injury

possible. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d

794, 799 (Tex. 2004); Doe, 907 S.W.2d at 477 (explaining that defendant’s

conduct may be too attenuated to constitute legal cause of alleged injury “even if

the injury would not have happened but for the defendant's conduct”) (citing Union

Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995); Lear Siegler, Inc. v.

Perez, 819 S.W.2d 470, 472 (Tex. 1991)). And, in his briefing to this Court, Tax

addresses proximate cause with the bare assertion that “genuine issues of material

fact exist regarding whether [he] sustained injuries/damages for which HDC is

liable.” From this record, we cannot conclude that Tax has established that HDC

proximately caused his injury above “mere conjecture, guess, or speculation.” See

McClure, 608 S.W.2d at 903.

      Accordingly, we hold that the trial court did not err in granting HDC

summary judgment.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Terry Jennings
                                             Justice

Panel consists of Justices Jennings, Bland, and Massengale.




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