John Deere Co. v. May

• Decision Date: 18 May 1989
• Docket Number: No. 10-88-140-CV,10-88-140-CV
• Citation: 773 S.W.2d 369
• Parties: Prod.Liab.Rep. (CCH) P 12,271 JOHN DEERE COMPANY, et al., Appellants, v. Jacklyn MAY, Individually and as Representative of the Estate of Robert May and as Next Friend of Teresa May, a minor, Appellee.
• Court: Texas Court of Appeals

Page 369

773 S.W.2d 369

Prod.Liab.Rep. (CCH) P 12,271

JOHN DEERE COMPANY, et al., Appellants, v. Jacklyn MAY, Individually and as Representative of the

Estate of Robert May and as Next Friend of Teresa

May, a minor, Appellee.

No. 10-88-140-CV.

Court of Appeals of Texas,

Waco.

May 18, 1989.

Rehearing Denied June 15, 1989.

Susan E. Crowley, Hays, McConn, Price & Pickering, Robert D. Green, Law Offices of Robert D. Green, Houston, for appellants.

Ernest H. Cannon, Ernest Cannon & Associates, Houston, Roger Knight, Jr., Roger Knight, Jr., Inc., Madisonville, for appellee.

OPINION

THOMAS, Chief Justice.

Robert May was killed in August 1984 when a John Deere 450C bulldozer backed over him. His wife and minor daughter filed a product-liability and wrongful-death suit against John Deere and its local distributor, Hyco Equipment, and recovered a $2,652,000 judgment for actual and exemplary damages. Points on appeal relate to the admissibility of other incidents involving John Deere dozers and the evidentiary support for certain liability findings, exemplary damages, and actual damages recovered by May's minor daughter for past and future pecuniary loss. The judgment will be affirmed.

No one knew how May was killed because there were no witnesses to the accident. The plaintiffs' theory was that May had stopped the dozer, left it in neutral with the engine running, and then kneeled down behind it to check for a hydraulic leak. They contended the dozer backed over him when it shifted itself from neutral into reverse. John Deere suggested that May inadvertently shifted the transmission from neutral to reverse while he was under the dozer attempting to reconnect a broken shift lever to the transmission assembly.

John Deere knew as early as 1971 that its dozers would shift into gear if they were left in neutral with the engine running. It tried to correct the problem in 1972 by redesigning the "spool valve" in the transmission assembly and by notifying dealers and users of its dozers that the transmission linkage should be inspected and adjusted after every 1,000 hours of operation. However, over the years John Deere continued to receive reports of similar occurrences. In 1981 an attorney in Washington state sent the company a videotape (the "Nelson videotape") showing a dozer shifting from neutral into reverse even though its gear-shift lever was locked in neutral. During discovery John Deere furnished the plaintiffs a list of thirty-four incidents, all occurring prior to May's death, in which model 2010 or 450C dozers allegedly shifted into gear after they were left in neutral with the engine running. Among the thirty-four incidents were the occurrence depicted in the Nelson videotape and an incident the parties referred to as "Reed v. John Deere."

In 1983 John Deere's Product Safety Review Board recommended that all model 2010, 450, 450B and 450C dozers be "retrofitted" with another redesigned spool valve and a neutral gear on the dozers' second transmission. ¹ The company initiated the safety modification program in May 1983, fifteen months before May's death.

The court allowed the plaintiffs to show the Nelson videotape to the jury and to question Robert Tunstall, a John Deere executive, about the thirty-four incidents. Tunstall was not questioned about the details of the thirty-four incidents, but about the number of incidents. Finally, the court permitted the plaintiffs to cross-examine him by using some of the facts in Reed v. John Deere, a product-liability suit involving a 450B dozer which self-shifted from neutral into reverse. See Reed v. John Deere, 569 F.Supp. 371 (M.D.La.1983).

John Deere and Hyco contend these extraneous incidents were improperly admitted because the plaintiffs failed to prove that they occurred under circumstances substantially similar to May's accident. Essentially, they argue that May's dozer and the dozers in the other incidents had to be the same models, similarly adjusted, and have similar wear and tear on their transmissions before the circumstances could be reasonably similar. Furthermore, they contend the court should have excluded the other occurrences because, assuming they were relevant, their relevance was substantially outweighed by the danger of unfair prejudice resulting from their admission. See Tex.R.Civ.Evid. 403.

EXTRANEOUS INCIDENTS

Extraneous incidents may be admissible if they and the accident involved in the suit occurred under "reasonably similar but not necessarily identical circumstances." Missouri-K.-T.R. Co. v. May, 600 S.W.2d 755, 756 (Tex.1980). They can be relevant to a number of determinative issues in a product-liability suit. See Firestone Tire & Rubber Co. v. Battle, 745 S.W.2d 909, 912 (Tex.App.-Houston [1st Dist.] 1988, writ den.) (admissible to prove the manufacturer knew the dangerous nature of a product, to evaluate the magnitude of the danger, to determine the adequacy of a warning, and to prove conscious indifference to a known danger); Rego Co. v. Brannon, 682 S.W.2d 677, 682 (Tex.App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.) (admissible to prove notice of prior or continuing problems with a product); McInnes v. Yamaha Motor Corp., U.S.A., 659 S.W.2d 704, 710 (Tex.App.-Corpus Christi 1983), aff'd on other grounds, 673 S.W.2d 185 (Tex.1984) (admissible to prove that a product is dangerous and a producing cause of an injury); Rush v. Bucyrus-Erie Co., 646 S.W.2d 298, 302 (Tex.App.-Tyler 1983, writ ref'd n.r.e.) (admissible to prove defective design, failure to warn, and negligence); Air Shields, Inc. v. Spears, 590 S.W.2d 574, 579 (Tex.Civ.App.-Waco, 1979, writ ref'd n.r.e.) (admissible to prove notice); Magic Chef, Inc. v. Sibley, 546 S.W.2d 851, 855 (Tex.Civ.App.-San Antonio 1977, writ ref'd n.r.e.) (admissible to prove a design defect).

What constitutes reasonably similar circumstances under the facts presented? John Deere's and Hyco's argument, that the dozers had to be reasonably similar before there could be a reasonable similarity of circumstances, is rejected because that would have required proof of identical circumstances. Identical circumstances are not required. May, 600 S.W.2d at 756. May's death and the other incidents occurred under reasonably similar circumstances if they involved the same type of occurrence, i.e., the circumstances would be reasonably similar if the dozers moved after being left in neutral with the engine running. See Rush, 646 S.W.2d at 301.

A defense witness admitted that the Nelson videotape showed a dozer moving even though its gear-shift lever was locked in neutral. The incident in Reed v. John Deere also involved a 450B dozer which moved after it had been left in neutral with the engine running. Furthermore, John Deere admitted that the thirty-four incidents, which included the Nelson incident and the incident in Reed v. John Deere, all involved dozers which allegedly moved after being left in neutral with the engine running. The circumstances surrounding May's death and the extraneous incidents were reasonably similar because they all involved the same type of occurrence.

Strict liability for an unreasonably dangerous product does not depend upon what the manufacturer knew or should have known. General Motors Corp. v. Hopkins, 548 S.W.2d 344, 351 (Tex.1977). However, what the manufacturer knew or should have known is relevant to the defense of unforeseeable misuse and in determining whether the manufacturer had a duty to warn of potential danger from the product's use. Id.; Bristol-Myers Co. v. Gonzales, 561 S.W.2d 801, 804 (Tex.1978). Likewise, whether a manufacturer acted with conscious indifference in the face of a known danger is relevant to his liability for exemplary damages. Battle, 745 S.W.2d at 912.

The plaintiffs alleged that John Deere knew its dozers were unreasonably dangerous, that it acted with conscious indifference to the known danger, and that it failed to give May an adequate warning of the known danger. Unforeseeable misuse was pled as a defense. These issues turned on what John Deere knew or should have known. Evidence is relevant if it has any tendency to make the existence of any determinative fact more or less probable than it would otherwise be without the evidence. Tex.R.Civ.Evid. 401. The extraneous incidents, being probative of what John Deere knew or should have known, were relevant to determinative issues involving notice. See Battle, 745 S.W.2d at 912. Furthermore, they were relevant to issues on producing cause and defective design. See McInnes, 659 S.W.2d at 710; Rush, 646 S.W.2d at 302; Magic Chef, Inc., 546 S.W.2d at 855.

Determining that the extraneous occurrences were relevant does not automatically guarantee their admissibility. Rule 403 of the Rules of Civil Evidence provides that the court may exclude relevant evidence if its probative value is "substantially outweighed" by the danger of unfair prejudice that would result from its admission. Tex.R.Civ.Evid. 403. This requires the trial court to apply a "balancing test." Perez v. Baker Packers, 694 S.W.2d 138, 140 (Tex.App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.). John Deere and Hyco argue that the court should have excluded the extraneous occurrences, even if relevant, because the danger of unfair prejudice substantially outweighed their relevance.

No one witnessed May's death and the parties had different theories about what caused it. Lacking direct evidence, the plaintiffs were forced to rely primarily on circumstantial evidence to prove that John Deere dozers had a propensity to self-shift from neutral into reverse and that this dangerous propensity had caused May's death. One cannot prove a propensity by proving a single occurrence. If the plaintiffs could prove John Deere knew or should have known that its dozers had a propensity to act this way, then the company had a duty to warn May of the danger. The extent and adequacy of the warning would be affected by the degree of danger...