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Torts No. 01-0870, 5/22/2003. Click here for the full text of this decision FACTS: John Pitzner, an air conditioning repairman, sued Marathon Corp. d/b/a Honda-Suzuki North to recover damages for injuries he alleges he sustained when he fell from the roof of the building Marathon occupied as a tenant. The trial court rendered judgment on a jury verdict in Pitzner’s favor, and the court of appeals affirmed. Marathon owned a Honda and Suzuki motorcycle dealership and leased the building from which Pitzner fell. Pitzner worked as an air conditioning repairman for a company owned by Robert S. Hull. Hull’s company had serviced the two air-conditioning units on the roof of Marathon’s premises for many years before Pitzner’s fall. Pitzner himself had been the primary repairman to work on the units for about two and a half years and had been on the roof of Marathon’s premises at least 25 and perhaps as many as 50 times before sustaining his devastating injuries. Pitzner’s fall occurred on a summer day when the temperature was about 99 degrees. The roof was flat and made of asphalt. Pitzner had begun work late in the afternoon. At about 6:30 p.m., Marathon’s employees closed the dealership and left. They knew that Pitzner was on the roof but did not tell him that they were leaving. Pitzner was well-acquainted with the employees from previous service calls, and in the past when he needed access to the inside of the building, he would tell someone at Marathon. He had not told them that day that he needed to go inside the building or that they should stay late, as they had sometimes done. About two hours after Marathon’s employees closed the dealership and left, Pitzner was found semi-conscious in the parking lot with severe head injuries. It is undisputed that he had used a ladder to access the roof of the building, which was about 12 feet, 10 inches high, but the ladder was missing when Pitzner was found. There was no other access to the roof, from either inside or outside the building. A screwdriver with a burnt tip was found near Pitzner in the parking lot, but there were no burns on Pitzner or other indications of contact with electricity. He suffered injuries to the front and back of his head and to his lumbar spine. The occurrence was initially reported as an assault, with the treating emergency room physician and a paramedic noting in their respective reports that Pitzner suffered from numerous blows to the head with a blunt object or appeared to have been beaten up. The investigating police officer disagreed, however, and surmised that Pitzner had fallen from the building. Because of the severity and extent of his injuries, Pitzner does not recall what happened. Pitzner’s guardian and next friend brought suit on his behalf against a number of defendants, including Marathon. HOLDING: Reversed and and rendered that Pitzner take nothing on his claims against Marathon. Marathon contends that there is legally insufficient evidence to support the finding that Pitzner’s injuries were caused by premises defects. On this record, the circumstances “could give rise to any number of inferences, none more probable than another.” Hammerly Oaks Inc. v. Edwards, 958 S.W.2d 387 (Tex. 1997). The absence of the ladder at the scene indicates that someone else was present on the premises at some point. The injuries to the front and back of Pitzner’s head are consistent with a fall but also with an assault and battery. The screwdriver’s burnt tip could have been burned during a previous job and routinely carried by Pitzner to use on low-voltage wires, or the screwdriver might have been burned on Marathon’s roof if it came into contact with a high-voltage wire inside the air conditioning unit. The fact-finder could only speculate as to 1. whether Pitzner actually fell from the roof; 2. whether he actually came into contact with a high-voltage wire on Marathon’s roof; and 3. whether and how the lack of a power disconnect on the roof or the lack of additional space between the air conditioning units was a substantial factor in causing Pitzner’s injuries. As this court has said, “in cases with only slight circumstantial evidence, something else must be found in the record to corroborate the probability of the fact’s existence or non-existence.” Lozano v. Lozano, 52 S.W.3d 141 (Tex. 2001). That “something else” is absent in this case. There is no evidence that the condition of Marathon’s premises proximately caused Pitzner’s injuries. OPINION: Per curiam.

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