State v. Richard B. Smith ( 2010 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON MOTION FOR RECONSIDERATION EN BANC
NO. 03-08-00679-CV
Tariq Majeed, Appellant
v.
Sajjad Hussain, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-01-001209, HONORABLE GUS J. STRAUSS, JR., JUDGE PRESIDING
DISSENTING OPINION
En banc consideration is warranted here. See Tex. R. App. P. 41.2(c). The issue
presented is whether, based upon common sense and general experience, the jury was competent to
determine that the complete lack of a secure transaction window at a “drive-thru” convenience store
in the “highest crime area” in Austin was a cause in fact of injury to Sajjad Hussain, the store’s
cashier, when he was permanently blinded in one eye by a can thrown through the open space of the
missing window.
Reversing the jury’s verdict in favor of Hussain, the majority panel opinion
appropriates the jury’s common sense and general experience to make this type of elemental and
recurring determination. See Guevara v. Ferrer, 247 S.W.3d 662, 666 (Tex. 2007) (submission of
causation issue to a jury is warranted when, under the evidence, layperson’s “general experience and
common sense” will enable a layperson “to determine, with reasonable probability, the causal
relationship between the event and the condition”).
The majority panel reverses the jury’s verdict by concluding that, even if the
transaction window “had not been broken and consisted of bulletproof glass,” there was no evidence
that it would have prevented the assault because it “remains speculative on this record whether or not
the window would have been closed at the time Hussain’s assailant threw the can.” The majority
panel improperly substitutes its own view of the evidence for the jury’s on a cause-in-fact issue in
which any layperson is as competent to make the determination as the most experienced court.
See id.; see also Del Lago Partners v. Smith, 307 S.W.3d 762, 774-75 (Tex. 2010) (court concluded
that jury could have found “mere presence of uniformed security personnel” could have defused the
situation and prevented the “violent brawl at closing time” at a bar or that the jury could have
reasonably determined that the bar’s personnel “moved too slowly to notify security after the fight
broke out, and that this delay was a proximate cause of [patron’s] injuries”); K-Mart Corp.
v. Honeycutt, 24 S.W.3d 357, 360-61 (Tex. 2000) (whether lack of top railing unreasonable within
“average juror’s common knowledge”); Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex.
1992) (even though exact circumstances of the murder of the store clerk were unknown, there was
some evidence to support plaintiff’s theory and plaintiff not required to negate all other possible
causes); Missouri Pac. R.R. v. Kimbrell, 334 S.W.2d 283, 286 (Tex. 1960) (jury may consider as
proven any matter that is in common knowledge of community).
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For these reasons, I respectfully dissent from the denial of Hussain’s motion for
en banc reconsideration.
__________________________________________
Jan P. Patterson, Justice
Before Chief Justice Jones, Justices Patterson, Puryear, Pemberton, Henson and Rose
Filed: December 22, 2010
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