                                  NO. 07-09-00350-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                     JULY 16, 2010


                            JACOB NEUFELD, APPELLANT

                                            v.

                      KENNETH HUDNALL, STANLEY BAKER,
                       JOEL HOVDEN, TEJAS MOTORS AND
                   LONE STAR AUTO AUCTION, INC., APPELLEES


            FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

       NO. 2007-541,835; HONORABLE RUBEN GONZALES REYES, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION

      Appellant, Jacob Neufeld, appeals a take-nothing judgment entered by the trial

court on Neufeld’s claim for personal injuries. We affirm.


                                      Background


      On September 19, 2007, Neufeld attended an automobile auction on the

premises of Lone Star Auto Auction. Prior to the beginning of the auction, Neufeld

walked through the lot to take a closer look at the cars that were to be auctioned and to

determine which vehicles he would bid on. As Neufeld was inspecting the autos, the
employees of Lone Star began lining up the cars to be auctioned. Two vehicles were at

the head of the line when Kenneth Hudnall pulled a third to the end of the line. As

Neufeld was walking between the first and second cars in the line, the car that Hudnall

was driving lurched forward and hit the second car, which was pushed up to the first

car, trapping Neufeld between the two vehicles and crushing his legs.


      Neufeld filed suit against Lone Star; Hudnall; Stanley Baker and Joel Hovden, the

drivers of the other two vehicles involved in the accident; and Tejas Motors, a customer

of the auction. In their answers, the defendants generally denied Neufeld’s claims,

alleged that Neufeld was negligent, and asserted the inferential rebuttal defenses of

intervening cause, act of God, and unavoidable accident. During the ensuing bench

trial, the trial court granted directed verdict in favor of Baker and Hovden. Toward the

end of the trial, Neufeld amended his petition to omit any claim against Tejas Motors.

Thus, the trial court’s take-nothing judgment related to Neufeld’s claims against Hudnall

and Lone Star. Findings of fact and conclusions of law were requested and the trial

court entered findings and conclusions. Neufeld then timely filed the present appeal.


      By one issue, Neufeld challenges the factual sufficiency of the evidence

supporting the judgment.


                                  Factual Sufficiency


      By his sole issue, Neufeld contends that the trial court committed reversible error

in entering judgment finding that the defendants were not negligent because such

judgment is against the great weight and preponderance of the evidence. Neufeld’s

issue challenges the factual sufficiency of the judgment as a whole rather than the
                                           2
sufficiency of the evidence supporting any particular finding of fact made by the trial

court.


Standard of Review


         In a bench trial, findings of fact have the same force and dignity as a jury's verdict

upon jury questions. Dupree v. Garden City Boxing Club, Inc., 219 S.W.3d 613, 615-16

(Tex.App.--Dallas 2007, no pet.); In re C.R.O., 96 S.W.3d 442, 447 (Tex.App.—Amarillo

2002, pet. denied).      However, findings of fact are not conclusive when we have a

complete record. Leax v. Leax, 305 S.W.3d 22, 28 (Tex.App.—Houston [1st Dist.] 2009,

pet. denied). When a complete reporter’s record is filed, the trial court’s factual findings

are reviewable for legal and factual sufficiency under the same standards that are

applied in reviewing the sufficiency of the evidence supporting jury findings. Dupree,

219 S.W.3d at 616; In re C.R.O., 96 S.W.3d at 447.


         When an appellant challenges the factual sufficiency of an adverse finding upon

which he had the burden of proof, he must show that the finding was against the great

weight and preponderance of the evidence. See Dupree, 219 S.W.3d at 616. The

reviewing court must consider and weigh all the evidence and may set aside the finding

only if the evidence is so weak or the finding is so against the great weight and

preponderance of the evidence that it is clearly wrong and unjust. Id. In conducting this

review, we may not substitute our judgment for that of the finder of fact, even if we

would have reached a different conclusion when reviewing the evidence. Id.


         A trial court’s conclusions of law may not be challenged for factual sufficiency,

however, a reviewing court may review the conclusions drawn from the facts to
                                               3
determine their correctness. See id. (citing BMC Software Belgium, N.V. v. Marchand,

83 S.W.3d 789, 794 (Tex. 2002)). If a finding that is supported by the evidence and

necessary to support a conclusion is omitted, we may imply the finding and that it

supports the judgment. See id.


         The appellees contend that Neufeld failed to preserve any error because his

factual sufficiency challenge does not challenge any specific finding of fact made by the

trial court.   Generally, while findings of fact are reviewable for legal and factual

sufficiency, an attack on the sufficiency of the evidence must be directed at specific

findings of fact rather than at the judgment as a whole. In re an Unborn Child, 153

S.W.3d 559, 560 (Tex.App.--Amarillo 2004, pet. denied). If the trial court's findings of

fact are not challenged by an issue on appeal, they are binding upon the appellate

court.    See Nw. Park Homeowners Ass'n, Inc. v. Brundrett, 970 S.W.2d 700, 704

(Tex.App.--Amarillo 1998, pet. denied). However, a challenge to an unidentified finding

of fact may be sufficient for review if we can fairly determine from the argument the

specific finding of fact which is being challenged.     Shaw v. County of Dallas, 251

S.W.3d 165, 169 (Tex.App.—Dallas 2008, pet. denied).


Analysis


         In the present case, Neufeld’s issue contends that the judgment as a whole was

against the great weight and preponderance of the evidence. However, a review of

Neufeld’s argument allows this Court to fairly determine that Neufeld is challenging the

factual sufficiency of the evidence to support the trial court’s findings that “Hudnall was

not negligent on the occasion in question and did not proximately cause any damage to

                                            4
Neufeld in that Hudnall experienced an episode which was an intervening cause [which]

was unexpected, unanticipated[,] and unforeseeable;” “Lone Star was not negligent on

the occasion in question and did not proximately cause any damage to Neufeld;”1 and

“No dangerous condition existed on the premises operated by Lone Star, and Neufeld

was not injured as a result of any condition on the premises at the time the accident in

question occurred.”2


      Neufeld’s challenge to the trial court’s finding that Hudnall did not proximately

cause Neufeld’s injuries because of an unexpected, unanticipated, and unforeseen

intervening cause is premised on Neufeld’s contention that the expert medical opinion

evidence offered to prove the intervening cause was too speculative to constitute

probative evidence.


      An independent and intervening cause destroys the causal link between a

claimed act of negligence and the resulting damage. See Tarry Warehouse & Storage

Co. v. Duvall, 131 Tex. 466, 115 S.W.2d 401, 405 (1938) (bright lights that blinded


      1
         While Neufeld’s petition alleged that Hudnall was an employee of Tejas Motors,
during trial, Neufeld moved for a trial amendment of his pleading to allege that Hudnall
was an employee of Lone Star. The defendants affirmatively stated that they had no
objection to the trial amendment and Neufeld’s motion was granted by the trial court.
Thus, Neufeld’s claim of negligent hiring or retention was asserted against Lone Star.
      2
         We note that all of these findings are more fairly characterized as conclusions
of law. The trial court’s only factual findings relevant to either of the challenged
“findings” are the findings that “Hudnall experienced an episode which was an
intervening cause [that] was unexpected, unanticipated[,] and unavoidable,” and that
“[n]o dangerous condition existed on the premises operated by Lone Star . . . .” As to
any other factual issues that are necessary to the trial court’s judgment, we will imply
those finding that are supported by the evidence and that support the judgment. See
Dupree, 219 S.W.3d at 616.
                                           5
driver were intervening cause that broke the causal chain); Cook v. Caterpillar, Inc., 849

S.W.2d 434, 440 (Tex.App.—Amarillo 1993, writ denied) (acts of third-party driver

destroyed the causal link between product defect and injury).          When a claim of

intervening cause is premised on a medical episode or condition, medical expert

testimony is required. See Ins. Co. of N. Am. v. Myers, 411 S.W.2d 710, 713 (Tex.

1966). Expert medical opinion evidence relating to issues of causation “must rest in

reasonable probabilities; otherwise, the inference that such actually did occur can be no

more than speculation and conjecture.”       Id.   The determination of whether expert

opinion evidence is based on reasonable probability depends on consideration of the

substance of the evidence and does not turn on semantics or the use of any particular

term or phrase. Id. Expert opinion evidence regarding causation that is not based on

reasonable probability, but is rather based on speculation and surmise, is no evidence.

See Onwuteaka v. Gill, 908 S.W.2d 276, 283 (Tex.App.—Houston [1st Dist.] 1995, no

writ).


         In the present case, the expert medical opinion evidence offered by Lone Star

concluded that Hudnall suffered a pre-syncopal episode which led to confusion and loss

of control of his vehicle. The expert, Kevin Funk, M.D., chronicled a number of different

potential causes of this pre-syncopal episode that are consistent with Hudnall’s medical

history. While Dr. Funk does indicate that he will “assume” that Hudnall suffered a pre-

syncopal episode, the context of this statement indicates that it was intended only to

convey Dr. Funk’s starting hypothesis. The remainder of the report then identifies a

number of different causes of pre-syncopal episodes that are present in Hudnall’s

medical history.     It is only after discussion of Hudnall’s medical history and its
                                            6
correspondence to many potential causes of pre-syncopal episodes that Dr. Funk

concludes that, “in all reasonable medical probability, Mr. Hudnall suffered a pre-

syncopal episode.” While Dr. Funk does not definitively identify what caused Hudnall to

experience this pre-syncopal episode, he does conclude, within a reasonable degree of

medical probability, that Hudnall experienced a pre-syncopal episode.             Having

determined that Dr. Funk’s expert opinion was based on a reasonable medical

probability and, therefore, probative evidence that supports the trial court’s intervening

cause finding, we cannot say that the trial court’s determination that this pre-syncopal

episode was an intervening cause of Neufeld’s injuries was so against the great weight

and preponderance of the evidence as to be clearly wrong or unjust. As such, we find

the evidence supporting the trial court’s finding that Hudnall was not negligent because

Hudnall’s pre-syncopal episode was an intervening cause of Neufeld’s injuries is

factually sufficient.


       Review of Neufeld’s challenge to the factual sufficiency of the evidence

supporting the trial court’s finding that Lone Star was not negligent depends on the type

of claim Neufeld asserted against Lone Star. A liberal construction of Neufeld’s petition

reveals that Neufeld asserted a claim that Lone Star was liable for its negligent hiring

and retention of its employee, Hudnall. According to Neufeld, Lone Star was directly

negligent because it hired and retained Hudnall in a position that required that he

operate motor vehicles near the public with knowledge that Hudnall had a history of low

blood pressure and diabetes.




                                            7
       An employer who negligently hires an incompetent or unfit individual may be

directly liable to a third party whose injury was proximately caused by the employee's

negligent or intentional act. See Verinakis v. Med. Profiles, Inc., 987 S.W.2d 90, 97

(Tex.App.--Houston [14th Dist.] 1998, pet. denied).        A claim of negligent hiring and

retention is based on an employer's direct negligence instead of the employer's

vicarious liability for the torts of its employees. Id. To prevail in a negligence action, the

plaintiff must prove: (1) a legal duty owed to the plaintiff, (2) a breach of that duty by the

defendant, and (3) damages proximately caused by the breach.               Greater Houston

Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Both the duty and proximate

cause elements required to establish a claim of negligent hiring or retention are

premised on foreseeability. See Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 659

(Tex. 1999); CoTemp, Inc. v. Houston West Corp., 222 S.W.3d 487, 492 (Tex.App.--

Houston [14th Dist.] 2007, no pet.). Thus, liability under the doctrine of negligent hiring

or retention is based on the employer's negligence in hiring or retaining an incompetent

servant whom the master knows, or by the exercise of reasonable care should have

known, was incompetent or unfit, thereby creating an unreasonable risk of harm to

others. See Houser v. Smith, 968 S.W.2d 542, 546 (Tex.App.--Austin 1998, no pet.).


       There is no dispute that, at the time of the accident, Hudnall was acting in the

course and scope of his employment with Lone Star.               The key factual issue in

establishing Lone Star’s liability for negligently hiring and retaining Hudnall is whether

the accident was foreseeable. The record reflects that, when it hired Hudnall, Hudnall

informed Lone Star that he was on medication for diabetes and low blood pressure.

From this fact, Neufeld contends that Lone Star should have foreseen that Hudnall
                                              8
could experience dizziness or loss of consciousness while operating a motor vehicle in

the course and scope of his employment.3 However, the General Manager of Lone Star

testified that, at the time of Hudnall’s hiring, Hudnall indicated that he did not think that

his medical condition would impact his ability to drive nor endanger customers, and, in

the approximate year and a half that Hudnall worked for Lone Star, Hudnall had not

notified Lone Star of any health problems or any loss of consciousness or blackouts. In

addition, Hudnall testified that the only time he had experienced fainting spells or

weakness was before he was diagnosed with diabetes and started on medication, and

that those issues would have occurred sometime in 2001 or 2002, which would have

been five to six years before the accident in the present case. Thus, considering all the

evidence, we do not find the evidence to be so weak or the finding that Lone Star was

not negligent in hiring and retaining Hudnall to be so against the great weight and

preponderance of the evidence that it is clearly wrong and unjust. See Dupree, 219

S.W.3d at 616. Thus, we conclude that the evidence was sufficient to support the trial

court’s finding that Lone Star was not negligent and did not proximately cause Neufeld’s

injuries.


       The other finding that Neufeld’s argument fairly challenges is the sufficiency of

the evidence supporting the trial court’s determination that Lone Star is not liable under

the theory of premises liability. Neufeld points to evidence that Lone Star posted no

warning signs on its premises, failed to warn patrons of any unsafe areas, and Hudnall’s

       3
        We note the logical inconsistency of Neufeld’s arguments. Neufeld contends
that Hudnall did not experience a pre-syncopal episode that was an intervening cause
of Neufeld’s injuries, while also contending that Lone Star’s knowledge of Hudnall’s
medical history was enough that Lone Star should have known that Hudnall would
experience dizziness and confusion (a pre-syncopal episode) or pass out (syncope).
                                             9
testimony that the auction lot was “controlled chaos” as evidence that Lone Star was

aware of a dangerous condition on the premises of which it failed to warn business

invitees.


       To succeed in a premises liability suit, an invitee plaintiff must prove that (1) the

defendant had actual or constructive knowledge of some condition on the premises, (2)

the condition posed an unreasonable risk of harm, (3) the defendant failed to exercise

reasonable care to eliminate or reduce the risk of that harm, and (4) the defendant’s

failure to use such care proximately caused the invitee’s injury. Wal-Mart Stores, Inc. v.

Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). The mere fact that an injury occurred on

the premises is not of itself evidence of negligence because almost any activity involves

some risk of harm.      Thoreson v. Thompson, 431 S.W.2d 341, 344 (Tex. 1968).

Additionally, when a risk is open and obvious and an invitee knows or is charged with

knowledge of the risk, the premises owner owes the invitee no duty to warn of the risk.

Summers v. Fort Crockett Hotel, Ltd., 902 S.W.2d 20, 28 (Tex.App.—Houston [1st Dist.]

1995, writ denied).


       In the present case, it is clear that Lone Star was aware that vehicles were being

moved to the auction floor; however, there is no evidence that it knew or had reason to

know that Hudnall would pass out or otherwise operate the vehicle in an unsafe

manner. Further, while the act of driving an automobile poses a risk of harm, the

evidence does not establish that the risk of harm was unreasonable. Even though the

manner in which the auction was conducted was described as “controlled chaos,” there

is no evidence that the manner that the auction was conducted on September 19, 2007,

                                            10
was any different than for any other Lone Star auction, and there was no evidence of

prior accidents at Lone Star auctions that would give rise to an inference that the

manner in which Lone Star conducted its auctions was unreasonably dangerous.

Because the evidence does not establish that there was a condition on Lone Star’s

premises that posed an unreasonable risk of harm, Lone Star owed no duty to invitees,

such as Neufeld. Further, the inherent risk posed by operating a motor vehicle near

pedestrians was an open and obvious risk of which Neufeld should have been aware.

Thus, in the absence of evidence that Lone Star had actual or constructive knowledge

that Hudnall’s driving a vehicle posed an unreasonable risk of harm to invitees, it owed

no duty to Neufeld that it could have breached. As discussed above, the great weight

and preponderance of the evidence does not establish that Lone Star possessed such

actual or constructive knowledge. Consequently, we find the evidence to be factually

sufficient to support the trial court’s finding that “[n]o dangerous condition existed on the

premises operated by Lone Star, and Neufeld was not injured as a result of any

condition on the premises at the time the accident in question occurred.”


                                        Conclusion


       Concluding that the evidence is factually sufficient to support the trial court’s

findings of fact that were fairly challenged by Neufeld’s appeal, we overrule Neufeld’s

sole issue and affirm the judgment of the trial court.



                                                         Mackey K. Hancock
                                                              Justice



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