*3 be on the roof needed to around a drain seal DAVIS, C.J., and Before CUMMINGS Parsons he contacted A.C. patched, and VANCE, JJ. had con- Roofing, whom ISD with Waco repairs, fix roofing tract to make various OPINION A.C. Parsons informed Cockrum the leak. Wooley, at Rusty be employee, would that an CUMMINGS, Justice. p.m. or 1:30 at around 1:00 the school Cockrum, a appellee, Thomas Carroll Center, Ninth Grade but In- left the by the Cockrum inspector employed Waco roofing Wooley. shortly 1:00 District, before to meet an returned tripped over dependent School any conditioning set his Cockrum ladder on the south side of remove air building prevent employees may and secured it to have left on the Ninth from own roof, Jacobs-Cathey may slipping. put He on his Grade Center’s boots and climbed tripped an top the ladder. Once he reached the liable to Cockrum if Cockrum over building, stepped off from the belt that one of its own ladder and employees remaining step onto the roof. He then took a with his left on the roof. The answered, however, right attempted foot and to be is whether another with his forward, brought Jacobs-Cathey employees left. As he his bore a to re- left foot entangled feet became move belts that and he lost his bal- party. ance. Cockrum fell backwards and head- have been left on the roof another first over the side of the roof. heAs *4 ladder, falling, grabbed Cockrum en- Policy Company a. abling him upright. to turn himself Cock- Supreme The Court has stated:
rum, however, falling approxi- continued for mately twenty feet until he landed on his many may it There are instances which feet. said, law, be as a matter of that there is a duty something, may to do and in others it Duty
II. said, law, be as a matter of that there is no illustrations, duty. Using such familiar it proceeding Before awith discussion of the hand, may generally, on be said the one issues, we must address the of party negligently that if a creates a dan- duty owed a of care gerous duty situation it then becomes his brief, original to Cockrum. Jacobs- something prevent injury to do about it to Cathey presumed that Cockrum raised two reasonably appears if to others it or should recovery trial, namely, simple theories of at appear to him that others in the exercise of negligence premises liability. In his may injured thereby. rights their be lawful Brief,” “Appellee’s responded Cockrum hand, may general- On the other it be said he did premises not sue for law, ly, bystand- as a matter of that a mere liability, only simple negligence. but dangerous er who did not create the situa- indicated, however, Cockrum that Jacobs- required good tion is to become the Cathey duty simple bore a to him within this prevent injury Samaritan and to others. negligence theory both to remove the air conditioning belts left on the roof and the Doe, Corp. v. 903 SmithKline Beecham conditioning by air belts left on the roof (Tex.1995) (quoting Buchan S.W.2d parties. other Cockrum contended that Ja- Rose, 390, 159 109, 110 an v. 138 Tex. (1) cobs-Cathey, pursuant company poli- to a (1942)). rule, general bystanders a mere As cy removing debris from its sites work duty remedy dangerous have no to a condi (2) regardless who had left it there and a id.; by tion created someone else. See Otis duty imposed upon common-law air condi- Clark, Eng’g Corp. v. 668 S.W.2d repairmen parties’ tioner to remove other (Tex.1983). However, relationships, certain sites, ’'-debris from their own work assumed master-servant, parent-child, em such as or duty left to remove this ployer-employee, impose, do as a matter of brief, parties. reply In a by third Jacobs- law, certain duties to undertake affirmative Cathey only duty asserted it had to special acts in circumstances for the benefit Cockrum was to remove its own air condi- Transp. Houston of another. See Greater tioning belts. Phillips, Co. 1990); Otis, Moreover, apparent development from in the at 309.
It is Cockrum, by disavowing any duty no arguments that when there would otherwise be premis- part plaintiff, intention to sue on a defendant duty remedy liability theory, a of care to es has restricted his means defendant assumes he, himself, any dangerous conditions that recovery simple negligence. to It is also that, Spectrum, Inc. v. Mar parties agree that creates. The Science clear because the (Tex.1997). tinez, duty bore a to Cockrum Nobles,
Jaeobs-Cathey & Gas Co. v. agrees that if it creat cites Remuda Oil (Tex.Civ.App. Worth dangerous on the Ninth Grade S.W.2d ed a condition —Fort roof, remedy writ), duty proposition for the that cer- it had a no Center’s doctors, however, Jaeobs-Cathey, such as medical professionals, asserts tain condition. calling, possess a duty anyone no to remove else’s due to the nature their that it had duty provide parties even when the argues that care belts. Cockrum Nobles, removing Jacobs-Cathey’s policy professional bystander. is a howev- internal er, proposition that the any-and-all completed work stands debris from site, by of care for medical doctors and not the left standard whether or debris was “spe higher than Jaeobs-Cathey employees, professionals other resulted duty relationship” enjoined upon simple reasonable-person it a standard. See id. cial Moreover, injured authority are aware of parties might be from we to third who pro- imputes other party to medical doctors debris left other than Jaeobs- duty party of care to another Cathey. fessionals a professional is a or other doctor testimony at trial several Similarly, bystander. air conditioner mere Jaeobs-Cathey representatives reveals repairmen to remove from their bear Jaeobs-Cathey employees frequently re party even left another work sites debris *5 by parties moved debris left other because repairman may the debris though that realize to remove the debris took a minimal effort may poses danger people to other who later a injury to others potential and because the Thus, conclude that work site. we visit the great. might who later visit the work site was Jaeobs-Cathey employees bore no common However, remedy policy to a defendant’s duty to from the roof of law remove debris may dangerous he come across conditions by left Center that was the Ninth Grade legal duty impose a on him to these does party. some other v. Gener parties. third See Estate Catlin (Tex. 447, Corp., 451 al 936 S.W.2d Motors Legal Sufficiency III. and Factual writ) (on 1996,no App. Dist.] [14th —Houston of the Evidence corpo rehearing). a While the members of person perhaps be lauded ration should first, second, third, and fifth In its policies sponte establishing al level for sua error, Jaeobs-Cathey contends that points of affirmatively requiring rem employees overruling its motions court erred the trial others, edy dangerous by conditions created judgment and notwith for instructed verdict policies is of these insufficient enactment standing for instructed the verdict. Motions legal bystander rule that a mere to alter the notwithstanding and verdict danger make safe a owes no of care to by ques brought the defendant verdict intentionally cre negligently or ous condition support any evidence tion there is by party. a third ated plaintiffrnon elements of the each of the any policy Ja- therefore conclude or causes of action. There We movant’s cause motions, its em- cobs-Cathey requiring fore, maintained reviewing the denial of these at its work sites ployees legal sufficiency to remove debris left standard we utilize the upon impose by parties complaining party did not Jaeobs- raises other When a review. injured Cathey duty parties challenging legal point to third “no-evidence” suf support ficiency finding unremoved debris. evidence to party who had the burden that favors the Duty b. Common Law finding, sustain the proof on that we must if, considering the evidence and finding asserts that Jaeobs- Cockrum also finding supporting the repair the inferences Cathey employees, as air conditioner to the and inferences disregarding evidence men, to make their work duty of care owe a it. any probative supports contrary, remedying dan parties safe to third sites Reyna, 865 Browning-Ferris, Inc. v. persons by other gerous conditions created (Tex.1993); Derringer 925, American special 928 highly of the technical because Bond, 773, Corp. v. Cockrum profession. of their ized nature writ). 1996, days beginning App. If there is more Over the course of several —Waco 24, 1992, April employees two of Jacobs- probative than a scintilla of evidence in the How- Cathey, Zipperlen Michael and Shawn support finding, record to the “no evi ard, approximately air condi- replaced twelve Stafford, challenge dence” fails. Stafford air-conditioning tioning units several (Tex.1987). 726 S.W.2d Evidence is roof of the Ninth Grade Cen- located on the merely a scintilla when it is so weak as to do Zipperlen testified that when he ter. nothing more than create a mere surmise roof, noticed a lot of climbed onto the he Con/Chem, suspicion of a fact. Kindred v. balls, debris, including cap, fus- a hub tennis (Tex.1983). Inc., 660 S.W.2d es, parts. and some air conditioner With alternative, Arguing in the Jacobs regard parts, Zipperlen conditioner that, Cathey may asserts the evidence while units noticed that one of the particularly legally judgment, sufficient to appeared completely if it had been disas- it is nevertheless parts insufficient. scattered around the sembled with the reviewing sufficiency point, seeing any a factual we ex Zipperlen unit. did not recall record, 24; amine all of the evidence in the both belts on the roof on however, against judgment, determining Zipperlen also stated that he for and against simply could not whether the is so have seen some belts but of trial that he had. great weight remember at the time preponderance Zipperlen that it was Jacobs-Cath- manifestly wrong un testified evidence as to be Jones, ey’s after policy to leave a clean work site just. Ortiz 917 S.W.2d Howard, job (Tex.1996); Estate, completing a and that he and King’s In re 150 Tex. they together, pick whenever worked would (1951); Lance v. (Tex. up away any haul trash had left. USAA Ins. *6 job, Zipperlen particular In reference to this 1996, writ). App. no —Waco up picking he remembered testified that simple negligence theory Cockrum’s re- tin-owing and it over the trash on the roof (1) quired proof gave of facts that rise to it, later retrieved side where he and Howard Jacobs-Cathey’s duty not to leave air condi- truck, away. it stowed it in their and hauled tioning belts on the Ninth Grade Center’s Zipperlen that he and Howard at- stated (2) roof, breached that trash, tempted pick up to all of their but (3) duty, injuries that Coekrum suffered they Zipperlen possible missed a belt. was Jacobs-Cathey’s proximate as a result of the chance that he and Howard stated that duty. Phillips, breach of that See “very they missed a belt was low” because S.W.2d at 525. We have found that Jacobs- all of the trash made an effort to remove Cathey duty, owed Coekrum a and Jacobs- job. generated from Cathey argument against the as- makes testimony Rusty Wooley, Deposition Instead, damages. sessment of Jacobs- employee, offered that the A.C. Parsons Cathey complaints restricts its to the breach roof at Ninth Grade he had been on the proximate of cause elements Cockrum’s Jacobs-Cathey employees once Center with cause of action. and that he had or twice before the accident conditioning lying on the roof seen air belts a. Breach Jacobs-Cathey employees left. after following addresses The evidence Wooley that he never saw a Jacobs- stated Jacobs-Cathey employee breached conditioning Cathey employee place an air conditioning roof, duty to remove the air belt and he admitted that he had belt on the trip fall off the that caused Coekrum to prior the roof to the time not checked note, to Jacobs-Cathey employees roof at the Ninth Grade Center. We were on it de- conditioning initially, any that Coekrum if air termine there were Wooley hearsay at an earlier time. tripped a belt was a statement on the roof over belts immediately after the ac- reportedly who commented stated that from an onlooker further fall, inspected portion of the roof “There’s a belt cident he to after the Coekrum that he had fallen and your from where Coekrum wrapped around feet.” thereon, types conditioning lying air noticed varied of debris saw one or two belts he roof, Wooley of that on the but could not recall within ten feet location. tes- located conditioning employees seeing tified that air belts. A.C. Parsons occasion- ally wiring worked on of the air condi- Evidence was also adduced that Waco units, tioning changed or but never employee, employee inde- ISD an some any air conditioning worked on belts. Woo- pendent contractor other than Jaeobs-Cath- ley stated that further em- conditioning ey, have left the air belt ployees failing for were known remove tripped over because that Cockrum Waco debris from their work sites at other Waco employees independent contractors ISD buildings. ISD changed than had other conditioning on the Ninth number air belts Ray Iglehart, supervisor a maintenance for prior April 1992. Ja- Grade Center’s roof ISD, waiting that as he was Waco testified maintains, therefore, cobs-Cathey emergency personnel medical to arrive to Jacobs-Cathey employee conclusion that a Cockrum, he climbed onto the roof attend to just tripped as left the belt Cockrum over is conditioning air belt and noticed one probable some other conclusion that area where Cockrum had set his ladder. injurious conditioning party air belt. left Photographs of roof taken three to five preponderating favor Without the evidence days after the accident were also introduced finding on a Jacobs- of a that the blame falls showing conditioning air into evidence four Cathey employee, contends lying belts on the roof. necessarily legally and evidence is Dulock, supervi- Van maintenance Andrew judg- insufficient charge heating conditioning sor in ment. ISD, prior testified that Waco brought proof at trial who employees replaced Waco air con- ISD injurious cir belt is ditioning belts on the Ninth Grade Center’s left the circumstantial evidence possible and that it was that a ISD cumstantial. When roof Waco are upon, relied and the circumstances employee may have left the belt that Cock- facts, January 8, equally Du- with either of two tripped rum over on consistent supports a employees scintilla of evidence indicated that ISD had more than a lock Waco point must be replaced air on the roof as and a “no evidence” *7 Testimony Prods. Co. September as from sustained. Continental late Coffee (Tex.1996). Cazarez, 444, 450 Dulock the admission of work orders on however, Jacobs-Cathey disagree, preceding with roof for the months the We the twelve Jacobs-Cathey em conditioning that likelihood of a indicated that no air the accident leaving conditioning belt over by anyone April ployee the air replaced belts were just probable as 8,1993. tripped is as January Dulock testified which Cockrum until party was other that, em- the conclusion some experience, in his servicing responsible. “sloppy” in ployees had not been in conditioning air units or clean- Waco ISD he could not recall testified that Zipperlen ing up work sites afterwards. their conditioning the any on roof seeing air belts air condi- April 1992when he serviced the indicates that in summary, In the record Zipperlen thereon. tioning units contained to the accident Jacobs- eight prior months but may he have seen some Zipperlen re- also stated that Cathey employees and Howard longer Zipper- remember. conditioning that he could air placed approximately twelve identify was, however, able to a number conditioning len air units the belts on several roof, objects top namely, of the tennis changed one roof. No Ninth Grade Center’s balls, fuses, other air cap, time a hub some conditioning between the any air belts jury parts. Accordingly, the conditioner performed these re- Zipperlen and Howard memory sufficient- his skills fell from the have considered jobs time Cockrum pair and the seeing recalled he have ly sound that would that when first Zipperlen testified roof. indeed, if, roof conditioning on the belts April in 1992 to service climbed onto the roof addition, photo- In any. had conditioning units situated there been the several air judgment. response graphs days of the roof taken three to five relatively sufficiency after the accident reveal a clean factual discussion of the dissent’s only types roof with a few of debris located evidence, agree that the evidence of the we Fuses, bolts, rags, on it. nuts and and air abundant, jury’s finding is not supporting the seen, conditioning parts promi- can be but that, jury affording the suffi- aver in but we photographs nent in the are ah’ con- several in of the factual cient deference its resolution ditioning They relatively large in belts. are it, necessarily before the conclusion issues comparison to the other on the roof debris sufficiently sup- follows that readily jury and are noticeable. The could by ported the evidence. type have determined that the of debris indi- the issue of “how In Lance we considered photographs type cated in the is the of debris juries provided should be April much” deference that was located on the roof Zipperlen it reviews appellate after and Howard serviced the an court when Thus, conditioning jury sufficiency units. could have factual of the evidence.1 Zipperlen concluded would have noticed reviewing 427. We wrote that the air belts on the roof at the jury’s court shall neither interfere with that, actually any time had there been evidence nor resolution of conflicts necessary consequence, any after belts credibility pass weight of the on the April Zipperlen 1992 were left either or testimony. Id. at 428-29. We witnesses’ Howard. appeal is not to recognized that the court on retry the case or otherwise substitute Wooley em- testified ployees past judgment opinion for of the trier of in the had left their own debris finishing only on work sites after different servic- fact and that ing jobs. unjust, could have believed from clearly wrong giving after due testimony did not jury’s deference to the determinations employees insist that its make certain all of facts, may reviewing court reverse the their debris was removed from a work site Jones, judgment. (citing at 429 Id. Ortiz completion upon Zipperlen’s and that testi- 772). maintained that the 917 S.W.2d at We mony that all of the air or disbelieve wit- jury is free to believe replaced roof in on the Ninth Grade Center’s ness, regardless the witness’s tes- of whether were finished removed when controverted, timony and that is later job was not accurate. It is true that appeal not sit as a thirteenth court on does testimony indicated that he had Dulock Id, juror sufficiency cases. at 429- factual experienced problems with job undertaking a our 30. We ascertained employees failing to their own debris remove review as to review factual But record re- from their work sites. if the evidence is the record to determine Wooley roofing veals that was Waco ISD’s jury’s support the find- factually sufficient to supervisor probably and therefore visited *8 say did not ings. at 430. And while we Id. frequent- buildings more roofs of Waco ISD’s that, Lance, in a comment is warranted so Lance, at ly than Dulock. See 934 S.W.2d to the ex- appellate court is blind while the (in cases, reviewing factual 428-29 witnesses, mannerisms of the pressions and jury’s reso- neither interfere with court shall trier of fact has: the pass nor lution of conflicts the evidence opportunity to observe the demeanor the witnesses). credibility weight and of the the weigh their testi- and to of the witnesses facts, whole, have taken in could All of these the mony; weigh and decide whether to jury that the belt over led the to conclude long ago accurate and of were recollections tripped was left a Jacobs- which Cockrum ring truth the of contained whether disagrees Cathey employee. The dissent the credibility. has] of fact [trier and the evi- analysis opines and that with our carefully all of the to observe factually opportunity legally insufficient dence is both and 1996, writ). (Tex.App. recognize dissented 33 that Justice Vance also 1. We —Waco 427, 431- USAAIns. 934 S.W.2d in Lance v. demeanor, tenor, jury may the have concluded expressions, finding, mental this facial power only source of belts on the roof awareness and of that the recollection[.] accident, then, at of Cockrum’s the time (Tex. Molk, 674, v. Gunter S.W.2d Jacobs-Cathey. n.r.e.); App. see writ ref'd —Beaumont Buick, Rosano, Inc. Gunn v. Jacobs-Cathey argues further in writ). 1995, no (Tex.App. Antonio —San legally is point its that the evidence fourth appreciate fails the reviewing A court to support factually and to insufficient many and varied means a resolves con Jacobs-Cathey’s negli jury’s finding that testimony ignores flicts in fall gence proximately caused Cockrum to physical falsity that exhibitions of truth and Ja from Ninth Grade Center’s roof. jurors identify are in the witnesses but correctly points proxi cobs-Cathey out that Rosa left unrecorded the “cold record.” of two factors —cause mate cause consists no, at 631. 907 S.W.2d foreseeability. City fact and Travis of if a majority’s position proper It that is (Tex.1992); Mesquite, 830 S.W.2d application principles described Foods, Inc., 910 Peerenboom HSP Gunter, Lance, applied, the Rosano are writ). and (Tex.App. —Waco jury’s conclusion must be reached that Jacobs-Cathey does not contend that Cock- finding in us the case before Jacobs- foreseeable; instead, injuries were rum’s Cathey employee over left the belt which circumstances of it maintains that the sup- tripped legally factually Cockrum is injury from its acts were too attenuated ported by the evidence. the cause in fact negligence to constitute injuries. The test for cause in fact is of his
b. Proximate Cause act omission was whether the defendant’s bringing er factor about the points In fourth fifth substantial ror, have oc injury trial which would not otherwise Jacobs-Cathey contends that in Ins. Am. v. curred. Prudential Co. overruling court erred in its motions for Jeffer Ltd., Assocs., son verdict and notwith structed Peerenboom, 1995); at 164-65. mo standing the insofar as these verdict particular, maintains of causation. tions relate factually legally insuffi Essentially, Jacobs-Cathey the evidence is maintains findings jury’s implied support jury’s support to cient there is no evidence evi the circumstantial implied finding negligent of on causation because acts “meager” present a causal leaving is too employees in an condi dence one of its Jacobs-Cathey’s acts Grade connection between tioning belt on the Ninth Center’s injuries. injuries. negligence and Coekrum’s proximately roof caused Cockrum’s evi- already concluded that the at have is clear that the actual belt We The record factually legally sufficient never From dence in this case was found. issue jury’s findings that a fact, argues support it is Jacobs- Cathey employee left an thereby impossible to determine Ninth Grade Center’s roof and belt on the employee. was left belt held, above, this belt that Cockrum it was over that the evi- disagree. We We him to then fall tripped, which caused sufficient legally dence be- connection the roof. There is direct finding that *9 having roof it been left tween belt’s duty to remove the belts breached its tripping over it. There were on and Cockrum’s replaced units from the string of causes- intervening causes or a April 1992. no roof in the Ninth Grade Center’s ultimately led to Cockrum’s discussion, that and-effects we noted evidence In this rela- tripping over the belt. Because may have that believed record Jacobs-Cathey’s negligence tionship between testimony Zipperlen’s that there were belt was tripping over the April 1992 and Cockrum’s roof in on the belts is le- direct, we conclude that evidence air condi- Howard serviced the he and when support the factually sufficient to gally From and that time. on the roof at tioning units jury’s implied finding Jacobs-Cathey’s legally that is whether the evidence is and factual- fact, foreseeable, negligence ly support finding was cause that sufficient to no belts cause, proximate and therefore a present April Cock- were on the roof of 1992. injuries. rum’s the roof in Direct evidence of what was on Jacobs-Cathey’s points of error are over- only testimony April 1992 can be found ruled, judgment and the is affirmed. Zipperlen, who of Michael witness present Zipperlen’s at that time. testi- was VANCE, J., concurring dissenting. he and mony equivocal. He testified that VANCE, Justice, worked on the air condition- Shawn Howard concurring and ers at the for “about a week.” He dissenting. school they “quite that arrived there was said when I majority’s concur with the conclusion He a bit of debris on the roof.” recalled that had no to remove balls, seeing hubcap, some tennis trash from its work site that had been left “quite parts” around [air conditioner] a few party. another I I dissent because conclude units, which had disassem- two one of been legally the evidence is said, seeing any bled. “I don’t remember He support jury’s implied insufficient find- Later, he up belts when I went there.” ing left the aircondition- response questions testified in from Ja- ing belt caused Coekrum to fall. which cobs-Cathey’s counsel: My analysis turns how well the record Q. Okay. And I want to make sure we’re supports proposition that there were no may clear on this. There have been lying air-conditioner belts on the school’s roof there, you just up some [belts] Jacobs-Cathey’s employees when went there remember? don’t April to work in 1992. If the evidence shows present time, that belts were at that there A. That’s true. being describing no evidence the belt that Q. up There not have been some fall,1 accept caused Coekrum to we must there, you don’t remember? Jacobs-Cathey’s just assertion that it is as true, A. also. That’s
likely employee that a Waco ISD or someone Jacobs-Cathey’s Zipperlen then testified that offending else left the belt that a Jaeob- up generated it policy was to clean the trash event, sCathey employee In left it. and, during although he did not its work decision would be controlled the rule specifically he and Howard- recall whether Cazarez, Continental Prods. Co. Coffee not, probability they left a belt (Tex.1996) (citing In Litton “very Zipperlen cross- did so was low.” Prods., Gammage, dus. Inc. v. him on the examined about who worked with (Tex.1984)) (Where 819, 324 circumstantial took, job, nature of the long how the exact upon, evidence is relied and the circum done, picking he recalled work and whether equally stances are consistent with either of up belts. He was not cross- all the used facts, no more than a two scintilla on the roof examined about what items were finding supports point and a “no evidence” work. arrived to sustained.). must be If, view, hand, my testimony Zipperlen’s does on the other the evidence suffi- there were ciently provide probative evidence that establishes there were time, the roof before on the roof at that then the no belts on Browning-Fer April undisputed evi- worked there in should stand because the ris, Reyna, replaced that no one else air- Inc. v. dence is 1993). Thus, only speculate jury could 1992 and conditioner belts between event, caused left the belt that Coekrum fell. In that about who the date Coekrum only circumstantial- jury’s implied to fall. Presented with circumstances evidence, lead to the conclusion offending which could left the *10 then, Jacobs-Cathey’s employees left inquiry, either that on the roof. The essential belt fell. wrapped feet after he probative hearsay a belt around his Accepting evidence of 298 Poole, 306, Corp. 732 S.W.2d 313 employees of Waco ISD left Chico v.
the belt or that (Tex.1987) belt, prove (plaintiff that the evidence that it is we are instructed must probable than a scintilla and that no- more than not that but for the is no more Cazarez, point the accident would not should be sustained. defendant’s conduct evidence Bain, occurred); at 450. have Cain 709 S.W.2d 175, (Tex.1986); Powers, William Jr. & accept to if were the view that Even one Ratliff, Look Another at “No Evidence” Jack testimony probative Zipperlen’s is some evi- Evidence,” Tex. L.Rev. “Insufficient present when he dence that no belts were 515, (1991). n. 11 and Howard arrived to work factually is insufficient to estab- the evidence judgment I and render would reverse proposition. lish that nothing. Alter- judgment that Coekrum take natively, I remand the cause for anoth- would Zipperlen’s testimony Evidence other than er trial. factual-sufficiency question.2 bears on the First, Rusty Wooley that belts were testified VANCE, Justice, dissenting on Motion present on the and after Cock- roof before Rehearing. Jacobs-Cathey rum fell and after worked there. He also testified that did not Jacobs-Cathey’s rehearing as- motion for Jacobs-Cathey’s check the roof before points that this court erred in serts eleven Finally, work. he said that judgment affirming of the trial court. I failing was known to remove debris rehearing believe the motion for should be generated from work its sites. granted and the reversed not, majority I dis- favor. Because the does Second, Van Dulock testified that Andrew overruling the motion. sent the order employees replaced Waco ISD had belts on September roof as school’s late as line, my quarrel At with the the bottom they may left the and that have belt majority legal-sufficiency is that that caused Cockrum’s fall. He said may from what inferences be drawn about “not about was careless” On the factual- the circumstantial evidence. cleaning up its work-sites. disagree primarily question, we required how much deference we are about Third, the fall photographs taken after by the fact- give the determinations made lying on the roof. show several belts dissent, original my I finder. As I stated testimony Wooley Essentially, right to recover rests believe that Cockrum’s and Van Dulock conflicts about Jacobs-Cath- legally is sufficient on whether the evidence testimony ey’s Wooley’s work habits. about that no air belts were to show Zipperlen’s. conflicts Van work habits with when Jacobs- present on the school’s roof employees Dulock that testified Waco ISD Cathey’s began working employees there may None of the have left belts the roof. April 1992. weight proposi- recited evidence adds majority opinion constructs a ladder to that tion that left belt the evidence is Asking fall. is reach the conclusion caused Coekrum to whether it sufficient, admitting that the evidence probable while “more than not” that Jacobs-Cath- offending circumstan- left the belt is ey roof or left of who left belts on the school’s rungs, fall, of three I tial. That ladder consists Coekrum to the actual belt that caused unsupported by the record. is so each which believe that evidence is weak “the rung that the find- The first asserts insufficient as to demonstrate memory [Zipperlen’s] skills negligent have considered ing sufficiently that he have recalled unjust. El sound would wrong manifestly clearly however, requirement of Pool v. Ford Motor Supreme if the Court 2. The historical rule (Tex.1986), that we detail S.W.2d 629 appeals presume a court of would have will reversing for factual insuffi- the evidence when insufficient found be ciency changes presumption. See Flores v. legally insuffi- when it finds the evidence Flores, (Tex.App. Langdeau, Ins. cient. Great Am. Co. —Waco denied). know, (Tex.1964). writ do We *11 seeing if, tripped by employ- air conditioner on the roof was left indeed, any.” pointed ee,” there had I only by relying been As can be reached on as- dissent, my original Zipperlen out in jury testified sumptions what the could have about directly any that he did not recall support that have no in the record. inferred then, present Why, belts were equal- or not. is it Because the circumstantial evidence is likely Zipperlen more that re- ly assumptions, would have consistent with either of two seeing called seeing ie., belts than not belts? Jacobs-Cathey’s employees left the belt, majority’s unsupported by The assertion work-party is left the belt or that another simply speculation the record and is about point sustained. the no-evidence should be jury may Cazarez, what the have inferred. Continental Prods. Co.v. Coffee (Tex.1996). rang jury The second asserts: “The could type have determined that the of debris indi- interesting majority’s I reliance on find the photographs type cated the is the of debris Lance v. USAA Ins. April that was located the roof writ). (Tex.App.-Waco Lance was a Zipperlen after and Howard serviced the air majority “zero-damages” ap- case where the Thus, conditioning jury units. the could have proved jury’s finding damages. the Zipperlen concluded that would have noticed There, majority the decided that deference to the air belts on the roof at the jury’s jury findings allowed the to disre- that, actually time had there been evidence; here, gard uncontroverted whereas necessary consequence, any belts after majority jury’s affirmative defers to the April Zipperlen 1992 were left either or support of facts that have no photographs admittedly Howard.” The show view, my evidence. In we cannot defer to belts on the roof after Cockrum fell. There- jury when there is no evidence of the fact fore, concluded, jury if majority as the jury found asserts, type that the debris was of the same conclusively jury establishes the fact that the Zipperlen as when it arrived words, analyzing to find. In other failed more would be reasonable to conclude that points no-evidence and conclusive-evidence conclude, already present belts were than to points, part equation. deference is not Zipperlen’s testimony in the face of that he recall, Zipperlen did not would have grant rehearing, I would the motion for Again, recalled belts had been there. point, reverse the sustain the no-evidence jury unsup- inference ascribed to the is judgment, render the in favor ported by the record. Jacobs-Cathey. rung The third asserts “the record reveals Looking sufficiency, majority at factual Wooley roofing supervi- was Waco ISD’s job in states: “We ascertained our undertak- probably sor and therefore visited the roofs ing a factual review as building frequently of Waco ISD more than review the record to determine if the evi- Duloek,” supervi- was the who “maintenance dence is sufficient charge heating sor in Cockrum, jury’s finding.” Jacobs-Cathey v. added.) (Emphasis for Waco ISD.” Noth- 1997). (Tex.App.-Waco at 295 That states ing supports supposition. in the record general proposition, says but little about fact, just as reasonable assume accomplish how we that task. buildings Duloek visited roofs of ISD Waco majority’s “pass view is that we do not Wooley frequently more than because air weight” if on the the evidence. Id. typically repairs need more of- conditioners Here, majority’s than infer- ten roofs. line of the Texas An unbroken decisions given more ence that would have ap- Supreme requires the courts of Court Wooley’s testimony unsupported weight to weigh” all the peals to “consider and evi- by the record. conducting factual-sufficiency dence when Jones, Thus, majori- apparent it becomes that the review. Ortiz (Tex. Robinson, determination, ie., 1996); jury could have Roberson v. ty’s 1989); Ford Pool v. that “the belt over which Cockrum S.W.2d concluded *12 300 (Tex. Co., 629, 1986); Motor 715 S.W.2d 635 instances when a verdict should set (Tex. Bain, 175, Cain v. 709 S.W.2d 176 granted. aside a new trial He and cited 1986); 735, Motyka, Burnett v. 610 S.W.2d examples of “such as to shock the con- (Tex. 1980); Estate, King’s 736 In re 150 science,” clearly unjust,” as “so to be “to 662, (1952). Tex. With clearly suggested indicate bias.” He mind, opinions in I for looked recent insufficiency arriving holding, in at an the (other than questions mandamus where we “must, up point, appeals court of to judge’s findings defer to trial the of fact process follow the same kind mental of standard) because of the abuse-of-discretion Garwood, jury supra, that a does.” at 811. finding. which to mention deference fact I Recognizing the inexact set standard relatively (Nigeria) found few.1 IKB Indus. appeals, the of al- courts Justice Garwood Corp.,
Ltd. v. Pro-Line S.W.2d day will “[mjaybe lowed that some we de- (Tex. fact, 1997)(findings though of even velop more to trial and rules aid courts “useful,” required appellate not because appeals dealing of in courts civil with this give obligated courts not to them the same question.” troublesome at 812. Id. by as facts factfin- level of deference to found der); Pool, Transportation Moriel, Ins. v. 715 S.W.2d at Co. (Tex. 1994)(level appel- of 30-31 My to an view is adherence elusive damages punitive late to of deference awards factfinder, the as obligation to defer to altered, “carefully not scru- but courts should espoused the repeated in Lance and in ma- by supported evi- tinize” them to see if the case, jority’s opinion in this without “consid- dence)(meaningful trial court review of evidence, ering weighing” the results punitive impor- damages especially awards of Perhaps factual-sufficiency the review. tant the which courts of because of deference guidance hoped on that Justice Garwood verdicts); jury Cropper appeal give must to question” wiill be forth- this “troublesome Caterpillar Tractor coming. (Tex. 1988)(reversals jury of verdicts far power less the of cases in which than number legal- and factual- Finally, I note that the mentioned, partly due to court’s to reverse in the ma- questions were blurred Thus, general). to verdicts deference jority’s opinion original submission when just is re- question I how much “deference” of whether the its discussion combined duty to review quired when our constitutional factually legally supports evidence support to sufficiency of evidence the factual duty by of Jacobs- jury’s finding of breach Assuming that we jury finding is invoked. Jacobs-Cathey, at 293-296. Cathey. factfinder, give deference to should some the two no distinction between opinion makes judge’s to how we balance deference do review, concluding simply of standards duty “consider and jury’s findings with our to factually supported “legally and the verdict is long question of weigh” the evidence—a at 296. evidence.” Id. Supreme by the standing still unanswered Court. inferences it drew unreasonable Because record, placed too much supported not noted recently as Court As duty court to perceived of this on a reliance Pool: ques- jury, and did address defer opined a court Calvert Justice Chief sufficiency apart from the tion of factual analyze appeals “should I conclude that legal sufficiency, issue, in a brief at least both sides proper- failed to majority opinion original why the way, point out general factual-sufficiency standard ly apply the contrary being regarded as finding is assuming that Even of this case. the facts of the preponderance weight and great support sufficient to legally the evidence Calvert, 368. Justice supra, at evidence.” considering verdict, by properly a review many few enumerated Garwood Jacobs- Jones, facts[.]" jury's determinations majority cites 1. The Ortiz to a Cathey, I no reference Ortiz 1996), at 296. find supporting its assertion the factfinder. defer to "[give] due deference must that we in Lance weighing all of the result evidence would in a the evidence is Thus,
insufficient to I the verdict. grant
would the alternative the motion for
rehearing, judgment, reverse the and re- the cause for trial.
mand another Judy
Robert Dean CASEY Carol (f/k/a Phelps, Judy Carol
Wilson), Appellants, DISTRICT,
AMARILLO HOSPITAL
Appellee.
No. 07-96-0037-CV. Texas, Appeals
Court of
Amarillo.
June 1997.
Rehearing July Overruled