                      DISSENTING AND CONCURRING OPINION
                                         No. 04-12-00407-CV

  RUSSELL EQUESTRIAN CENTER, INC., John William Russell, Individually and d/b/a
              Russell Equestrian Center, and Shane Brashar Russell,
                                   Appellants

                                              v.
                                 Samantha MILLER a/k/a Samantha
                              Samantha MILLER a/k/a Samantha Parker,
                                            Appellee

                      From the County Court at Law No. 2, Bexar County, Texas
                                      Trial Court No. 358456
                               Honorable Irene Rios, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice
Dissenting and Concurring Opinion by: Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: June 5, 2013

           I agree with the majority opinion that the trial court erred in admitting the testimony of

Miller’s expert and that the evidence was legally insufficient as to gross negligence. Therefore, I

concur in the judgment in part. However, I disagree that the evidence was legally sufficient as to

negligence. Therefore, I respectfully dissent in part. I would reverse the trial court’s judgment

and render judgment that Miller take nothing.

           As recognized by the majority opinion, proximate cause consists of both cause in fact and

foreseeability. I agree that the evidence showed cause in fact by virtue of the Russells’ testimony

that, had the gate not been missing, the horses would not have escaped and the accident would

not have occurred. But I do not agree that there was legally sufficient evidence of foreseeability.

The test for foreseeability is whether a person of ordinary intelligence would have anticipated the
Dissenting and Concurring Opinion                                                 04-12-00407-CV


danger created by a negligent act or omission. Doe v. Boys Clubs of Greater Dallas, Inc., 907

S.W.2d 472, 478 (Tex. 1995). In this case, the fencing had been adequate to contain the horses at

the Center for fifteen years. Under this uncontroverted evidence, it was reasonable for the

Russells to believe the fencing would continue to adequately contain the horses. There simply

was no other evidence from which the jury could infer that the Russells should have anticipated

the horses escaping. Thus, I do not believe the record contains more than a scintilla of evidence

to support foreseeability.


                                                Karen Angelini, Justice




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