Dallas Court of Appeals, No. 05-12-01688-CV (April 28, 2014)
Justices Moseley, Bridges, and Evans (Opinion)
The Court of Appeals affirmed summary judgment against a plaintiff who alleged he was injured by a screw left in his shower by a plumber, concluding the plaintiff’s circumstantial evidence of causation “failed to rise above the scintilla of evidence test.”
Flow Force Plumbing made repairs to Sweet’s shower. Several hours after Sweet used the shower for the first time, his son noticed the bottom of his foot was covered with dried blood, and Sweet discovered a cut on his foot. The next day, Sweet found a screw on the shower floor. According to Sweet, he did not notice the cut earlier because of medical conditions that lessened sensation in his lower extremities. Sweet’s foot ultimately became infected and had to be partially amputated, and Sweet sued Flow Force for negligence. Flow Force filed a combined traditional and no-evidence motion for summary judgment, which the trial court granted.
The Court of Appeals noted that, when a claim is supported only by meager circumstantial evidence, and the circumstances are equally consistent with facts that would support liability as with facts that would not support liability, the evidence does not rise above a scintilla, and thus is legally insufficient. Here, there was a substantial time gap between Sweet’s shower and his discovery of the cut, and, although his medical condition might explain his failure to immediately feel the pain of the cut, it did not explain his failure to notice blood when he was in the shower, when he was getting dressed, or at any time over the next several hours. The Court concluded summary judgment was appropriate on this record because it was equally probable that Sweet injured his foot some time later in the day as it was that he injured his foot in the shower, and thus no “fact beyond speculation . . . connects the screw later found in the shower with Sweet’s cut on the bottom of his foot.”
