915 F.2d 996 (5th Cir. 1990), 90-5548, Keith v. Stoelting, Inc.

Docket Nº:90-5548.
Citation:915 F.2d 996
Party Name:Duane KEITH, Plaintiff-Appellant, v. STOELTING, INC., Defendant-Appellee.
Case Date:October 29, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 996

915 F.2d 996 (5th Cir. 1990)

Duane KEITH, Plaintiff-Appellant,


STOELTING, INC., Defendant-Appellee.

No. 90-5548.

United States Court of Appeals, Fifth Circuit

October 29, 1990

Page 997

Earle Cobb, Jr., San Antonio, Tex., for plaintiff-appellant.

Mark S. Helmke, Foster, Lewis, Langley, Gardner & Banack, Inc., San Antonio, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, THORNBERRY and HIGGINBOTHAM, Circuit Judges.

Page 998


Duane Keith (Keith) appeals the dismissal of this action against Stoelting, Inc. for failure to state a claim. We affirm.


Keith's allegations were as follows. He was employed by the Texas Department of Public Safety (the Department). Prior to 1985 the Department purchased a polygraph machine manufactured by Stoelting. Stoelting advertised and represented that the polygraph would detect deception.

In April of 1985, the Department requested that Keith submit to a polygraph test with Stoelting's machine. The machine showed that Keith did not answer truthfully, and Keith was terminated.

Keith based his claims on a violation of the Texas Deceptive Trade Practices-Consumer Protection Act, strict products liability, breach of warranty and negligence.


We address each of the asserted causes of action.

A. Texas Deceptive Trade Practices Act

Keith does not specifically invoke the provisions of the Texas Deceptive Trade Practices-Consumer Protection Act (the DTPA), Tex.Bus. & Com.Code Ann. Sec. 17.41 et seq. However, to give him the full benefit of our rule on liberal review of dismissals on the pleadings, we assume he asserted a cause of action under the DTPA. See Rankin v. City of Wichita Falls, 762 F.2d 444, 446 (5th Cir.1985).

A threshold requirement for a claim under the DTPA is that the plaintiff be a consumer. Eckman v. Centennial Savings Bank, 784 S.W.2d 672, 674 (Tex.1990). A consumer is an individual who seeks or acquires goods or services by purchase or lease. Tex.Bus. & Com.Code Sec. 17.45(4). Keith admits that he is not a consumer, but contends that he need not be. Eckman answers this contention.

Before filing suit, a DTPA plaintiff must give written notice of his specific complaint and the amount of actual damages and expenses. Tex.Bus. & Com Code Ann. Sec. 17.505(a). Plaintiff has the burden to plead and...

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