EZ Mart Stores, Inc. v. Havner

Citations: 832 S.W.2d 368; 1992 WL 103430Docket: 06-89-09797-CV

Court: Court of Appeals of Texas; June 9, 1992; Texas; State Appellate Court

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Diana Havner went missing from her job at E-Z Mart and was later found dead. A jury initially concluded that E-Z Mart's negligence caused her death and awarded damages. However, upon appeal, the Court of Appeals of Texas determined that the evidence was legally and factually insufficient to support the claim, resulting in a take-nothing judgment. The Texas Supreme Court later found some evidence of causation and remanded the case for a new factual sufficiency review. E-Z Mart acknowledged its negligence but did not dispute it on appeal. The appellate court is now tasked with reviewing the evidence to assess whether it sufficiently supports the jury's finding of causation regarding Havner's death, adhering to Texas constitutional provisions that limit the Supreme Court's authority to legal questions, while emphasizing the appellate court's responsibility to evaluate factual sufficiency comprehensively. The appellate court intends to apply established guidelines for detailed evidence review as outlined in prior cases, specifically addressing why the original evidence was deemed insufficient.

Diana Havner was a clerk at an E-Z Mart convenience store in Sulphur Springs, Texas, where she began her night shift on August 1, 1987. Shortly before 5:00 a.m., police officer Jay Owens observed an empty store with Havner absent but noted signs of her presence, including personal items and missing cash. Havner's body was discovered five days later, showing signs of severe head trauma. The incident remains unsolved, despite the store's location in a previously safe residential area with no prior violent crime reported in its seven years of operation. 

E-Z Mart had acquired the store four months prior and had implemented a security program based on expert crime prevention studies, which included training for store managers and improved exterior lighting. The program aimed to protect employees during robberies by promoting nonviolent cooperation. E-Z Mart faced allegations of negligence regarding its security measures, while it contended that many claims were unrelated to Havner's death. Elvin Hickman, the director of security for E-Z Mart, emphasized the company’s proactive evaluation and training processes to enhance safety at their locations.

Evidence demonstrated that E-Z Mart's installation of improved lighting negated lighting as a contributing factor to the incident. The absence of a drop safe was deemed irrelevant, as public awareness of such features is limited. Factual studies suggested that having two clerks and an alarm system does not effectively deter crime in convenience stores. The Havners' attorney presented evidence of poor external lighting, obstructed windows, untrained staff regarding abduction protocols, an inadequate telephone system, and insufficient nighttime staffing. E-Z Mart countered with evidence of enhanced outdoor lighting, clear visibility at windows, employee training for noncombative responses during robberies, a functioning telephone system, and studies indicating that having two clerks does not reduce crime.

On appeal, E-Z Mart acknowledged negligence but contended that its actions did not cause Havner's death, primarily attributing blame to the lack of an alarm system. E-Z Mart provided evidence that alarm systems do not deter robberies. Prior to E-Z Mart's acquisition of the store, a silent alarm had been mistakenly activated previously, leading to varied police response times of three to fifteen minutes. Employees reported slow police responses to false alarms. E-Z Mart's security policy, which excluded alarms, was based on the belief that alarms could provoke harm to clerks, create hostage situations, and were ineffective based on multiple studies. At the time of the trial, alarm systems in two other stores had not reduced armed robberies, with one store experiencing an average of four robberies annually without apprehensions. The Supreme Court noted that the circumstances surrounding Diana Havner's death remain unclear, with no witnesses stepping forward, leading to a conclusion that claims linking E-Z Mart to Havner's death were largely speculative and unsupported by scientific evidence.

Testimony indicated that E-Z Mart contributed to Diana Havner's death, supported by four expert witnesses presenting evidence of causation. The witnesses included Sulphur Springs Police Chief Donnie Lewis, Sergeant Robert Stidham, Norman Bottom, and Norman Gray, a former police officer. While Stidham's testimony was not treated as expert evidence and Bottom's insights were limited to negligence rather than proximate cause, Lewis was recognized as an expert in law enforcement. He investigated Havner's disappearance, suggesting that an abduction occurred and criticizing E-Z Mart's security measures, stating that their lack of alarms and proper employee training could have been addressed by a high school student.

Norman Bottom, an expert on security with extensive credentials, testified about E-Z Mart's inadequate security features, including poor lighting and absence of an alarm system, concluding that the security was deficient but refraining from linking this negligence directly to Havner's death. In contrast, Norman Gray, a qualified alarm expert and former law enforcement officer, provided the strongest evidence connecting E-Z Mart's negligence to Havner's death. He opined that an alarm system might have provided law enforcement the opportunity to respond in time to prevent the abduction, although he acknowledged the uncertainty of this outcome.

Gray's opinion serves as evidence that E-Z Mart's negligence may have contributed to Diana Havner's death, although the exact circumstances of her death remain unknown and witnesses acknowledge this uncertainty. There is no direct evidence linking E-Z Mart's negligence to her death, and opinions attributing causation to the store are deemed speculative, akin to hypothetical statements from uninformed individuals. While Gray, as an expert witness, provided testimony without objection, the court assigns it limited weight due to the consensus among opinion givers that the specific cause of Havner's death is not established. After a comprehensive review of the evidence, the court concludes that it is insufficient to confirm E-Z Mart's negligence as the cause of death, leading to a reversal and remand for a new trial. Justice Grant dissents, arguing that sufficient circumstantial evidence and expert testimony support the jury's verdict on proximate cause and that the majority failed to apply proper standards regarding inferences, expert witnesses, and the overall evaluation of the evidence. In cases of conflicting inferences, the jury's role in making determinations should be upheld.

Direct evidence from three experts established a clear cause in fact, countering the majority opinion's assertion of insufficient evidence regarding the death of Diana Havner. The majority contended that without knowing who caused the death or if abduction occurred, the evidence was inadequate. However, the court emphasized that circumstantial evidence, when interpreted with human knowledge and experience, can strongly suggest conclusions. For example, the presence of a trout in milk historically implied contamination, analogous to a scenario where a missing clerk and cash, combined with a found body, could reasonably imply robbery and murder. The court referenced prior cases asserting that a plaintiff must only demonstrate that the defendant's actions were a probable cause, not the sole cause, of the event. The majority's focus on the identity and motives of the perpetrator distracts from the jury's ability to draw inferences based on the established probabilities of the situation. Proximate cause can indeed be inferred from circumstantial evidence, and while absolute certainty is unattainable, the standard remains one of probability.

The Havners needed only to prove their case by a preponderance of the evidence, contrary to the majority opinion's erroneous demand for absolute certainty. The majority failed to consider the expert opinion of Robert Stidham due to an incorrect or absent standard, disregarded the testimonies of Norman Bottom and Norman Gray, and misrepresented Donnie Lewis’s testimony. The witnesses were questioned about cause in fact rather than proximate cause. The majority incorrectly categorized Stidham as a lay witness, stating the record did not show he was treated as an expert. However, Stidham demonstrated extensive qualifications, including advanced law enforcement certifications and thirteen years of experience in crime scene investigations, which exceeded the average juror's knowledge. The jury required assistance on causation, which Stidham's testimony provided. The trial court determines a witness's expert qualification based on their training and experience without needing formal acknowledgment of their expert status. No objections were raised against Stidham's expertise during trial. The trial court's qualification of expert witnesses is upheld on appeal unless an abuse of discretion is shown. The majority did not specify the standard used to dismiss Stidham's opinions, indicating a misuse of standards. The ruling contradicts prior Supreme Court determinations recognizing Stidham as an expert. Both Stidham and Chief Lewis, experienced law enforcement officers involved in the investigation, were qualified to testify about causation, and their insights should not have been disregarded as the dissent argued.

Donnie Lewis, as an expert witness, presented conflicting testimony regarding the circumstances surrounding Diana Havner's potential abduction and murder. The majority opinion suggests that Lewis implied she would have been raped and killed in the store, which contradicts his prior statements. Lewis explicitly stated that had there been a security system, Havner would not have been taken from the store, indicating that the presence of such security could have prevented the crime. He criticized E-Z Mart's inadequate security measures and employee training, emphasizing that employees were instructed to comply with robbers rather than resist. Furthermore, Lewis believed an alarm system would have alerted authorities, potentially preventing the crime altogether.

The majority opinion dismisses Dr. Norman Bottom’s testimony on causation despite it highlighting E-Z Mart's failures in providing a safe work environment, suggesting that these failures could imply liability. Although recognizing Norman Gray's expertise, the majority finds his testimony unconvincing due to the uncertainty surrounding the circumstances of Havner's death. The evidence indicated she was killed by blunt force and raped, and the absence of a security system was noted as a critical factor. The majority's reliance on E-Z Mart's evidence while neglecting contrary evidence is criticized, as it fails to adhere to the proper standard of considering all evidence in assessing sufficiency. The implication is that the jury could reasonably draw conclusions from the expert testimony and evidence presented without needing further expert analysis.

The opinion states that police response times vary significantly based on their proximity to a store, with response times of three to four minutes when nearby and ten to fifteen minutes when further away. Chief of Police Donnie Lewis testified that, during daytime hours, police could arrive in approximately two and a half minutes after an alarm is triggered, and at the time of the robbery (around 4 a.m.), they could arrive in as little as one to one and a half minutes. This testimony was largely disregarded by the majority opinion. 

Additionally, the majority opinion noted studies indicating that having two clerks did not reduce criminal acts against employees, but it overlooked testimony from Bottom regarding a Gainesville, Florida ordinance that required two clerks on duty overnight, which significantly reduced robberies, and a similar experience in Kent, Ohio. 

A thorough consideration of all evidence, including expert opinions and testimonies from the appellee, indicates that the jury had adequate basis to determine proximate cause, leading to a respectful dissent on the matter. Various studies cited include one by Southland Corporation regarding the lack of deterrent effect of having two clerks, and another indicating that alarm systems and cameras did not deter robberies, as evidenced by 7-Eleven's experience in New Orleans. The excerpt also clarifies that the supreme court did not intend to impose an excessive burden of proof on the Havners to negate all possible causes. Furthermore, it was noted that Stidham was treated as a lay witness, as he was not recognized as an expert by the court or the parties involved.

Lewis testified extensively on the inadequate security measures at the store, highlighting poor lighting and the role of drop safes in crime prevention. He suggested that a robber would not pause to search for personal items and implied that if asked about additional money in the store, Diana Havner might have indicated its presence, which could have escalated the situation. He expressed concern that this could lead to violence against clerks, including potential abduction or sexual assault. When asked about the impact of a security system on Diana Havner's fate, Lewis opined that she likely would not have been taken from the store had adequate security measures been in place, although he noted that she could still have faced harm inside the store. 

The testimony from Sergeant Stidham, while presenting an opinion on causation, was deemed inconclusive and speculative, lacking substantial evidentiary weight. Although Bottom, a qualified security expert with substantial credentials, did not provide an opinion on causation, his testimony was focused on negligence rather than direct causation. Previous discussions in court had dismissed other expert opinions on causation as speculative and not meeting the requisite legal standards for probative evidence. The court found no witnesses qualified to address causation or knowledgeable about the legal definition of proximate cause, leading to a conclusion that the evidence did not sufficiently establish a connection between E-Z Mart's security deficiencies and the tragic outcome involving Diana Havner.

An expert's opinion on ultimate issues like proximate cause must adhere to proper legal standards, as established in cases such as Birchfield v. Texarkana Memorial Hosp. and E-Z Mart Stores, Inc. v. Terry. Justice Cornyn, in a dissent, argued that expert testimony on causation may not assist the jury, suggesting that the jury could engage in the same speculation as the experts, rendering their opinions superfluous. He emphasized that the use of experts should be evaluated based on whether laypersons could reasonably understand the issue without expert insight. Speculation cannot substantiate an expert opinion any more than it can support a judgment based on circumstantial evidence. Justice Cornyn referenced a fictional scenario where even a high school student could have investigated the case as effectively as the police. The excerpt further notes that circumstantial evidence, expert testimony, or common knowledge may inform causal inferences. The majority opinion indicated that no witness was adequately qualified to address causation or understood the legal definition of proximate cause, although an expert witness may testify about the causation of death or injury as shown in Connecticut General Life Ins. Co. v. Tommie.

Witnesses did not address proximate cause, which carries legal implications distinct from cause in fact. Lewis's mention of a high school boy was taken out of context; he was discussing the inadequate training of E-Z Mart employees and the absence of a security system, which hindered their ability to identify the criminal. The response time is deemed critical for determining causation, resembling aspects of the McCane-Sondock Protection Systems, Inc. v. Emmittee case, where the failure to properly install a burglar alarm was questioned as a cause of loss from robbery. A key difference is the lack of testimony regarding the duration the robber was present during the holdup. However, expert opinion suggested that police could have reached the scene before the robber escaped had an alarm been in place. Lewis noted that an alarm system would significantly impede a robber's ability to take a clerk, emphasizing that in his experience, such incidents with alarms are rare, contrasting with the effectiveness he claimed would be seen in a larger city like Dallas. He also pointed out that the prior alarm system at the store had automatic dispatch with high priority.