Timpte Industries, Inc. v. Gish
| Decision Date | 05 June 2009 |
| Docket Number | No. 08-0043.,08-0043. |
| Citation | 286 S.W.3d 306 |
| Parties | TIMPTE INDUSTRIES, INC. and Timpte Inc., Petitioners, v. Robert GISH and Pinnacol Assurance, Respondents. |
| Court | Texas Supreme Court |
Gary M. Bellair, Robert L. Craig Jr. and Leonard Raymond Grossman, Craig Terrill Hale & Grantham, L.L.P., Lubbock, TX, for Petitioner.
James Hoytt Wood, Wood Law Firm, L.L.P., Amarillo, TX, Michael L. Byrd, Byrd & Associates, Lubbock, TX, and Blake Bradford Thompson, The Thompson Law Office, Stephenville, TX, for Respondent.
Robert Gish was seriously injured when he fell from the top of a trailer into which he was attempting to load fertilizer. He sued Timpte Industries, the manufacturer of the trailer, alleging, among other things, that several features of the trailer were defectively designed, rendering the trailer unreasonably dangerous. The trial court granted a no-evidence summary judgment in Timpte's favor, but the court of appeals reversed. 2007 Tex.App. LEXIS 9411, 2007 WL 4224411 (mem.op.). Finding no defect, we reverse the court of appeals' judgment and render judgment reinstating the trial court's summary judgment.
On the morning of June 19, 2002, Robert Gish, a long haul trucker for Scott Hinde Trucking, arrived at the Martin Resources plant in Plainview, Texas, to pick up a load of ammonium sulfate fertilizer. Gish was familiar with the plant, as he had picked up fertilizer there once or twice a week for approximately the past year. That morning Gish checked his trailer, weighed it, and waited for another customer to finish loading.
Gish's Peterbilt truck was hauling a forty-eight-foot Super Hopper trailer manufactured by Timpte Inc., a subsidiary of Timpte Industries.1 The Super Hopper trailer is a standard open-top, twin hopper trailer, which is loaded from above through use of a downspout or other device and is emptied through two openings on its bottom. Once the trailer is loaded, a tarp is rolled over the top to protect its contents.2 A ladder and an observation platform are attached to the front and rear of the trailer to allow the operator to view its contents.
After the truck ahead of him finished loading, Gish backed his trailer under the downspout attached to the fertilizer plant and yelled to a Martin employee to begin loading. In a typical delivery, an employee inside the Martin plant uses a front-end loader to drop fertilizer into a hopper. The fertilizer is then dropped onto a conveyer system that moves it to the downspout outside the plant and into the waiting trailer.
To prevent the granulated fertilizer from being blown away during the loading process, Gish attempted to lower the downspout by using a rope attached to it. The rope was attached to the downspout for that purpose, but Gish could not get it to work. He had previously complained to Martin employees about problems lowering the downspout, but he did not do so again that morning. Instead, using the ladder attached to the front of the trailer, Gish climbed atop the trailer (as he had on several other occasions when the downspout would not lower) and attempted to lower the downspout by hand while standing on the trailer's top rail. This top rail is also the top of the trailer's side wall. It is made of extruded aluminum, is between 5 and 5.66 inches wide, and is nine-and-a-half feet above the ground.
While Gish was standing on the top rail working with the downspout, a gust of wind hit him from the back, causing him to fall. This fall fractured his legs, broke his ankles, and ruptured an Achilles tendon. Gish was in a wheelchair for six months, and he still has difficulty walking and standing.
Gish sued Martin and Timpte, asserting a cause of action for premises liability against Martin and causes of action for marketing, manufacturing, and design defects, misrepresentation, and breach of warranty against Timpte.3 Specifically, Gish asserted that the warning labels on the Super Hopper trailer were insufficient to warn him of the danger of climbing on top of the trailer, and that the trailer contained two design defects:
• The top two rungs of the ladders attached to the front and rear of the trailer allow a person to climb atop the trailer; and
• The top rail of the trailer is too narrow and slippery and contains too many tripping hazards for a person to walk safely along it.
The two ladders on the trailer are made of rectangular tubing with rungs spaced twelve inches apart. The front ladder that Gish used to climb atop the trailer has five rungs-two below the observation platform (which is 38½ inches below the top of the front wall of the trailer), one approximately level with the platform, and two above the platform. The top rung of the ladder is thirteen inches below the top of the front wall of the trailer, and the rung second from the top is twelve inches below that. A metal bar approximately the length of the platform is mounted above the platform and near the top of the trailer to serve as a handhold while the operator stands on the platform.
Just below the middle rung of the ladder, Timpte has placed a rectangular warning label,4 which reads:
WARNING
1. EXERCISE EXTREME CAUTION WHILE CLIMBING ON ACCESS SYSTEM.
2. ALWAYS MAINTAIN 3-POINT CONTACT. (2 HANDS & 1 FOOT OR 2 FEET & 1 HAND)
3. DO NOT WEAR RINGS OR ANYTHING THAT CAN CATCH ON LADDER.
4. USE LADDER SIDE RAIL FOR HAND HOLD, NEVER USE THE RUNG.
5. NEVER CLIMB OVER THE TOP OF THE TRAILER AND ENTER THE INSIDE COMPARTMENTS FOR ANY REASON.
FAILURE TO FOLLOW THESE WARNINGS COULD RESULT IN SERIOUS INJURY OR DEATH.
As previously noted, the top rail of the trailer is made of extruded aluminum, which is extremely slippery. The seven bars that support the tarp also intersect with the top rail, presenting the alleged tripping hazards.
To remedy these alleged design defects, Dr. Gary Nelson, Gish's expert witness, proposed three design changes:
• Remove the top two rungs of the ladders attached to the trailer to make it impossible for a person to climb atop the trailer • Provide an adequate foothold and handhold at the top of the trailer so that a user on top of the trailer can maintain three-point contact with the trailer at all times; and
• If an adequate handhold cannot be provided, then widen the side rail to at least 12 inches to provide an adequate foothold.
Timpte moved for a no-evidence summary judgment, which the trial court granted. The trial court then severed Gish's claims against Timpte from the remainder of the case, making the summary judgment final for purposes of appeal. The court of appeals affirmed the trial court's judgment as to all of Gish's claims except his claim for design defect, concluding that there was "some evidence upon which reasonable factfinders could disagree as to whether the trailer's design was both unreasonably dangerous and a cause of Gish's fall." 2007 Tex.App. LEXIS 9411, at * 11-12, 2007 WL 4224411, at *4.
A no-evidence summary judgment motion under Rule 166a(i) is essentially a motion for a pretrial directed verdict; it requires the nonmoving party to present evidence raising a genuine issue of material fact supporting each element contested in the motion. TEX.R. CIV. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex.2006). When reviewing a no-evidence summary judgment, we "review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Mack Trucks, 206 S.W.3d at 582 (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex.2002)).
We begin with the grounds for Timpte's no-evidence summary judgment motion. Gish contends that Timpte's motion challenged only Gish's allegation that a design defect in the Super Hopper was the producing cause of his injury, not that there was a defect rendering the product unreasonably dangerous. Because the motion did not raise this issue, Gish concludes that the trial court erred in rendering its no-evidence summary judgment in favor of Timpte.
It is well settled that a trial court cannot grant a summary judgment motion on grounds not presented in the motion. Brewer & Pritchard, P.C., 73 S.W.3d at 204; Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex.1997). Our no-evidence summary judgment rule similarly requires that the moving party identify the grounds for the motion:
After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.
TEX.R. CIV. P. 166a(i). We have further explained that "[t]he motion must be specific in challenging the evidentiary support for an element of a claim or defense; paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent's case." Id. at Comment-1997.
The underlying purpose of this requirement "is to provide the opposing party with adequate information for opposing the motion, and to define the issues for the purpose of summary judgment." Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 771, 772 (Tex.1978). We have analogized this purpose to that of the "fair notice" pleading requirements of Rules 45(b) and 47(a). Id. at 772-73; see also TEX.R. CIV. P. 45(b) (); TEX.R. CIV. P. 47(a) (...
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