Posted by Rich Phillips
We have our first opinions of the Texas Supreme Court's new term and they all relate to causation. The Court issued an opinion in a case that was argued last term but had been abated at the parties' request and issued two per curiam opinions. The Court also issued a corrected opinion in one case from last term.
In No. 15-0509, Bustamante v. Ponte, the Court heard argument in December 2016. In March 2017, the Court abated the case pending settlement between the petitioners and some of the respondents. Earlier this month, the Court granted a motion to sever and dismiss the claims that had been settled and reinstated the case to its active docket. This morning, the Court issued its opinion as to the petitioners' claims against the remaining respondents. Petitioners allege that medical negligence caused their daughter, who was born premature, to lose her sight in one eye and have severely impaired vision in her other eye. The trial court entered judgment for the plaintiffs, but the court of appeals reversed, holding that the plaintiffs' evidence of causation was conclusory. In an opinion by Justice Green, the Supreme Court reversed. The Court first held that the court of appeals erred by applying a strict but-for standard for causation because there was proof of more than one proximate cause of the injury. Instead, the court of appeals should have applied the substantial-factor test. The Court then concluded that the evidence presented at trial was sufficient to establish causation as to the respondents. In doing so, the Court rejected an argument that an expert must exclude all other potential causes when opining on causation; rather the expert must exclude other plausible potential causes.
The two per curiam opinions are:
No. 16-0134, Allways Auto Group, Ltd. v. Walters - The Supreme Court held that the trial court correctly granted summary judgment in a negligent entrustment case. The petitioner provided a loaner vehicle to a customer who had been drinking at the time he was given the vehicle. Eighteen days later, the customer was involved in an accident and was legally intoxicated. The other driver in that accident sued the petitioner for negligent entrustment. The Supreme Court held that the eighteen days in between the time petitioner gave the vehicle to the customer and the time of the accident precluded a finding of proximate cause. Even if the customer had been visibly intoxicated at the time he was given the vehicle (and the evidence was disputed on that issue), the petitioner "could not have foreseen that [the customer] would get drunk eighteen days later .. and drive his vehicle into [plaintiff's] vehicle."
No. 16-0431, Starwood Management, LLC v. Swaim - This is a legal malpractice case arising from an attempt to recover an airplane seized by the DEA. The lawyer had three options for seeking return of the plane: (1) file suit in federal court; (2) file a petition with the DEA; or (3) do both. The burden of proof in federal court would have been on the DEA while the burden of proof would have been on the petitioner in the proceeding before the DEA. The lawyer failed to file a notice of claim with the DEA within 30 days of the seizure notice, which was a prerequisite of seeking relief in federal court. As a result, the case was dismissed. Thus, the petitioner was limited to seeking return directly from the DEA, and the DEA denied that request. The petitioner then sued the lawyer. The trial court granted summary judgment after finding that the petitioner's causation evidence was conclusory and the court of appeals agreed. The Supreme Court reversed, pointing to its recent decision in Rogers v. Zanetti, 518 S.W.3d 394 (Tex. 2017). In Rogers, the Court held that an affidavit is not conclusory if it explains the link between the facts and the expert's opinion.
The Court also issued a corrected opinion in No. 15-0790, D Magazine Partners, LP v. Rosenthal. The corrected opinion makes one change in the Court's discussion of the fair comment privilege. The result in the case is unchanged.
Access the complete order list here.