WPC5 2nB Z!970028GA.H 'xDXXN\  PXPa1DocumentDocument StyleF *  ׃  a2DocumentDocument Style*    2op5ee a3DocumentDocument Style0     a4DocumentDocument Style . a5DocumentDocument Style   a6DocumentDocument Style   2pp  1a7DocumentDocument Style ` ` ` a8DocumentDocument Style` ` ` a1TechnicalTechnical Document Style 4!     a2TechnicalTechnical Document Style *    20   (a3TechnicalTechnical Document Style '    a4TechnicalTechnical Document Style &    a5TechnicalTechnical Document Style &  . a6TechnicalTechnical Document Style&  . 2 b  j  a7TechnicalTechnical Document Style&  . a8TechnicalTechnical Document Style&   . a1Right ParRight-Aligned Paragraph Numbers8!"@   a2Right ParRight-Aligned Paragraph NumbersA#$@` `  ` ` ` 2 m   a3Right ParRight-Aligned Paragraph NumbersJ%&@  ` `  a4Right ParRight-Aligned Paragraph NumbersS'(@  a5Right ParRight-Aligned Paragraph Numbers\)*@hh# hhh a6Right ParRight-Aligned Paragraph Numberse+,@( hh# 2ZDa7Right ParRight-Aligned Paragraph Numbersn-.@- ( a8Right ParRight-Aligned Paragraph Numbersw/0@pp2 -ppp     X0Í Í X0Í Í Roman 12ptRoman Courier 12pt'12#d6X@@#2VTIn]Op. DraftOpinion -- Draft34  (c#j\  P6;XPH#   3 1, 4 @&D R A F T` APage  _______________________________________________________ Italic 12ptItalics Courier 12pt type'56'#x6NhH##x6NhH#BibliogrphyBibliography78 Doc InitInitialize Document Style9:    I. 1. A. a.(1)(a) i) a)DocumentҲ2Hp !aTech InitInitialize Technical Style;< 1 .1 .1 .1 .1 .1 .1 .1 TechnicalPleadingHeader for numbered pleading paper=>   ,#j\  P6;XPH# X  y*dddyy*dddy H\1 H\2 H\3 H\4 H\5 H\6 H\7 H\8 H\9 H10 H11 H12 H13 H14 H15 H16 H17 H18 H19 H20 H21 H22 H23 H24 H25 H26 H27 H28   Home PtrSets codes for printing opinions on Sperry Laser Q?@ X #Xx6X@X@#  EnvelopeEnvelope!AB '3 II    Xp,  p,p, 2"#$%p2Letter 2Personal stationery with standard margins"bCD#XN\  PXP#   p,  3 1, 4 Letter 3Personal stationery with narrow margins#bEF#&R2P&P#     3 1, 4 Letter 1Court stationery$PGH#XZ2P XP# * 3 1, 4 ؃ Single Space% I J2!&p'qD (e )e!1Document Style&KL` ` ` 2Document Style'M N . 3Document Style( OP 4Document Style) QR 2#*!+pD","-F#5Document Style**ST   6Document Style+UV` ` ` 7Right-Aligned Paragraph Numbers,8WX@   8Right-Aligned Paragraph Numbers-AYZ@` `  ` ` ` 2&.$/$0L%1%9Document Style.0[ \    10Right-Aligned Paragraph Numbers/J]^@  ` `  11Right-Aligned Paragraph Numbers0S_`@  12Right-Aligned Paragraph Numbers1\ab@hh# hhh 2)2&3'4h(59)13Right-Aligned Paragraph Numbers2ecd@( hh# 14Right-Aligned Paragraph Numbers3nef@- ( 15Right-Aligned Paragraph Numbers4wgh@pp2 -ppp 16Document Style5Fij *  ׃  2`,6%*7*8/+9+17Technical Document Style6&kl  . 18Technical Document Style7&mn  . 19Technical Document Style8*op    20Technical Document Style9'qr   2.:,;&-<-=[.21Technical Document Style:&st   22Technical Document Style;4u$v     23Technical Document Style<&wx  . 24Technical Document Style=&yz  . 250/XN\  PXPx9 Z6Times New Roman RegularXd6X@@<6X9`("Courier NewTTj\  P6;XPH%\  `$Times New RomanXx6NhHH  9`(.Courier NewItalicTTx6NhHH  9`(.Courier NewItalicTTj\  P6;XPH%\  `$Times New RomanXXx6X@X@<6X9`("Courier NewTTXXN\  PXP% [  `*Times New RomanTTX&R2P&P7|A`$ArialTT&XZ2P XP& A`ArialTTX2553|x  IN THE SUPREME COURT OF TEXAS ă & &No. 970028ă & Dallas County Mental Health and Mental Retardation, et al., Petitioners  *v.ă Albert Bossley, individually, Elaine Bossley, individually, and as representatives of the Estate of Roger Arthur Bossley, deceased, Respondents   On Application for Writ of Error to the l Court of Appeals for the Fifth District of Texasă   Argued on November 4, 1997 ă Justice Abbott, joined by Justice Spector, dissenting.  The Court concludes that the use and condition of the doors were too attenuated from Rogers death to be said to have caused it. In doing so, the Courts analysis ignores the traditional proximate cause elements of cause in fact and foreseeability. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). Instead, the Court focuses only on immediacy. Because I disagree with the standard applied by the Court and because application of the traditional standard compels a conclusion that a fact issue exists with regard to proximate cause, I dissent.  Cause in fact means the act or omission was a substantial factor in bringing about the injury and, without it, harm would not have occurred. Travis, 830 S.W.2d at 98. Foreseeability means that the actor, as a person of ordinary intelligence, should have anticipated the dangers his or her negligent act created for others. Foreseeability does not require that the person or entity who creates the dangerous situation anticipate the precise manner in which the injury occurs. Id. An intervening act of a third party will not excuse the first wrongdoer if such act should have been foreseen. Northwest Mall, Inc. v. LubriLon Intl, Inc., 681 S.W.2d 797, 803 (Tex. App. " Houston [14th Dist.] 1984, writ refd n.r.e.). The summary judgment evidence raised a genuine issue of material fact on the foreseeability of Roger Bossleys suicide that included: (1) Bossley was being treated because he had attempted suicide; (2) he still exhibited suicidal tendencies and threatened to kill himself upon his release from the facility; (3) the doctors decided he was of sufficient danger to himself that he should not be released and needed a more restricted environment; (4) Bossley knew that his transfer from Hillside was likely to result in his being committed to the state hospital; (5) he expressed fear of going to the state hospital; (6) on the morning of his suicide, the Dallas MHMR employees discussed the fact that Bossley had a great fear of going to the state hospital and he might elope to avoid being transferred; (7) MHMRs policy was to lock both front doors to keep inside any patient about to be transferred to a more restricted facility; (8) Angela Jones knew that the front door was supposed to be locked to prevent patients from running out in the street to harm themselves. The summary judgment evidence also raised material fact issues concerning whether the use or condition of the doors was the cause in fact of Bossleys suicide: (1) Bossley was not constantly monitored; (2) Jones knew that because the inner (selflocking) door was opened, someone could run out the outer door when she opened it; (3) Jones opened the outer door without determining Bossleys location; and (4) Bossley escaped through the open door.  While it is true that the doors did not injure Bossley by actually physically striking him, that is not the test. The test is simply whether the doors were a proximate cause of Bossleys injury. Fact issues clearly exist concerning whether the use or condition of the doors was a substantial factor in bringing about Bossleys injury. Absent the use or condition of the doors, Bossley would still be in the hospital " he would have never escaped and would not have had the opportunity to jump in front of a truck. The Courts claim that the suicide was too attenuated from the use or condition of the doors is weak, at best. It is not as if the suicide occurred later in the day or would not have occurred but for some intervening cause. As the Court notes, after Bossley escaped through the doors: Hillside staff members chased Roger about half a mile to Interstate Highway 30, where he attempted to hitchhike a ride with passing motorists, first on one side of the freeway and then on the other. As Roger was approached by Hillside personnel and police who had by then joined in pursuit, he leaped into the path of a truck and was killed. Before, during, and after Bossley burst through the doors, he seemed fixated on one end: suicide. As previously noted, Bossley was at the facility because he had attempted suicide; he still exhibited suicidal tendencies while at the facility; and he threatened to kill himself upon his release from the facility. When the use or condition of the doors provided Bossley the opportunity to act on his threats, he took it. In a fastpaced and continuous sequence, the suicide occurred directly and shortly after Bossley eloped through the doors. It seems that he killed himself with the first available instrumentality of death. Under these circumstances, a court cannot say " as a matter of law " that the use or condition of the doors was not a proximate cause of Bossleys death. At a minimum, a fact issue exists on proximate cause. The nondoctor Petitioners claim that a finding of proximate cause in this case [W]ould set a precedent leading to ridiculous results. For instance, claims would exist for Bossleys use of the roadways and the freeway to get to the location of the suicide; for the use of the floor of the facility, upon which Bossley and Ms. Jones walked; for the use of the phone, which helped to secret his escape; for use of the keys Ms. Jones used in the door; for the clothing Ms. Jones wore, which Bossley grabbed in an attempt to overpower her, among other [things]. The nondoctor Petitioners concerns are unfounded. There is no evidence in the record that use of the roadway, the floor, the phone, the keys, or Ms. Joness clothing was a foreseeable cause of injury to Bossley. Conversely, foreseeable injury resulting from the use or condition of the doors is almost established as a matter of law. The very reason the special doors existed was to prevent the high risk of elopement and potential suicide. In contrast, the facility obviously did not contemplate using special floors, phones, etc., to deter elopement and suicide. Also, the nondoctor Petitioners disingenuously argue that the use or condition of the Hillside doors could not be the proximate cause of Bossleys suicide because suicide is an intervening cause as a matter of law. See Tex. Civ. Prac. & Rem. Code  93.001(a)(2). The Petitioners omit the remaining portion of section 93.001(a)(2) which states that suicide shall not be an affirmative defense if the suicide was caused in whole or in part by a failure on the part of any defendant to comply with an applicable legal standard.  Tex. Civ. Prac. & Rem. Code  93.001(a)(2). As this Court made clear in Kassen v. Hatley, 887 S.W.2d 4 (Tex. 1994), this section is no defense if the health care workers failed to comply with the standard of care, and their failure was a cause of the patients suicide. Id. at 12. Summary judgment is improper because there is a genuine issue of material fact concerning whether the defendants complied with the applicable legal standard of care. ` ` ` hhh___________________________ ` ` ` hhhGREG ABBOTT ` ` ` hhhJUSTICE OPINION DELIVERED: April 14, 1998