Negligence Negligence is conduct that falls below the standard established by the laws for the protection of others against unreasonable risk of harm. Negligent conduct may include an act that the actor as a reasonable person should realize as involving an unreasonable risk of causing harm to another or the actor's failure to take an act which a reasonable person under a duty to do so would take. The elements of negligence are: 1) a legal duty owed by one person to another; 2) a breach of that duty; and 3) damages proximately resulting from the breach. The threshold inquiry in a negligence case is duty. The plaintiff must establish both the existence and the violation of a duty owed to the plaintiff by the defendant to establish liability in tort. Moreover, the existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question. In determining whether the defendant was under a duty, the court will consider several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Of all these factors, foreseeability of the risk is the foremost and dominant consideration. The two elements of "proximate cause" are cause in fact (or substantial factor) and foreseeability. These elements cannot be satisfied by mere conjecture, guess, or speculation. Cause in fact is established when the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred. In Lear Siegler, Inc. v. Perez, the court found the Restatement (Second) of Torts to be instructive on this point:
819 S.W.2d 470, 472 (Tex.1991) (quoting RESTATEMENT (SECOND) OF TORTS § 431 cmt. a (1965)). Accordingly, cause in fact is not established where the defendant's negligence does no more than furnish a condition which makes the injuries possible. In other words, the conduct of the defendant may be too attenuated from the resulting injuries to the plaintiff to be a substantial factor in bringing about the harm. On several occasions, courts have addressed attenuation of the causal connection between conduct and liability. See, e.g., Union Pump, 898 S.W.2d 773; Lear Siegler, 819 S.W.2d 470; Bell, 434 S.W.2d 117. In Bell, three individuals were hit by a car while removing debris from an earlier car accident. 434 S.W.2d at 118. Two of the men were killed, and the third suffered serious injuries. Id. The court held that the initial accident was not the proximate cause of the deaths and injuries because it only created the condition that attracted the three men to the scene and did not actively contribute to the injuries resulting from the second accident. Id. at 122. Where the initial act of negligence was not the active and efficient cause of plaintiffs' injuries, but merely created the condition by which the second act of negligence could occur, the resulting harm is too attenuated from the defendants' conduct to constitute the cause in fact of plaintiffs' injuries. See id. In Lear Siegler, Rafael Perez, while working for the Texas Highway Department, pulled a flashing arrow sign behind a sweeping operation to warn drivers about ongoing highway maintenance. Id. at 471. Perez stopped his truck when the sign malfunctioned, and a van driven by Alfonso Lerma, who had fallen asleep at the wheel, struck the sign which in turn struck Perez, causing severe injuries from which Perez later died. Id. The legal representatives of Perez's estate claimed that Lear Siegler manufactured a defective sign which proximately caused Perez's injuries. Id. The court determined that, as a matter of law, the circumstances of the accident were too remotely connected with Lear Siegler's conduct to constitute the proximate cause of Perez's death. Id. at 472. While acknowledging that a defendant's negligence may expose another to an increased risk of harm by placing him in a particular place at a given time, the court recognized that the "happenstance of place and time" may be too attenuated for liability to be imposed under the common law. Id. In Union Pump, a pump caught fire at a Texaco Chemical Company facility. 898 S.W.2d at 774. Sue Allbritton, an employee of Texaco, assisted in extinguishing the fire. Id. Two hours after the fire was abated, Allbritton and a fellow employee went to block a nitrogen purge 800*800 valve at the request of their employers. Id. Upon reaching the valve, they were informed that it was not necessary to block the valve. Id. As the two of them returned from the purge valve, they walked over a pipe rack, which was still wet from the efforts to extinguish the fire, and Albritton fell and was injured. Id. She alleged that Union Pump caused her injuries by manufacturing a defective pump which caused the fire, which in turn led to the pipe rack being wet and slippery, and ultimately caused her injuries. Id. The court held that the circumstances surrounding her injuries were too remotely connected with the defective pump to constitute the cause in fact of her injuries. Id. at 776. The pump, by causing a fire, did no more than create the condition which made the plaintiff's injuries possible. Id. Thus, merely creating the condition that makes harm possible falls short as a matter of law of satisfying the substantial factor test.
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