Alm v. Aluminum Co. of America

• Decision Date: 03 January 1985
• Docket Number: No. C14-82-045-CV,C14-82-045-CV
• Citation: 687 S.W.2d 374
• Parties: Prod.Liab.Rep. (CCH) P 10,556 James E. ALM, Appellant and Cross-Appellee, v. ALUMINUM COMPANY OF AMERICA, et al., Appellees and Cross-Appellant. (14th Dist.)
• Court: Texas Court of Appeals

Page 374

687 S.W.2d 374

Prod.Liab.Rep. (CCH) P 10,556

James E. ALM, Appellant and Cross-Appellee, v. ALUMINUM COMPANY OF AMERICA, et al., Appellees and Cross-Appellant.

No. C14-82-045-CV.

Court of Appeals of Texas Houston (14th Dist.).

Jan. 3, 1985.

Rehearing Denied March 28, 1985.

W. Douglas Matthews, Schmidt & Matthews, Houston, for appellant and cross-appellee.

Before JUNELL, MURPHY and SEARS, JJ.

OPINION

MURPHY, Justice.

This products liability and negligence suit arose on June 3, 1976, when James E. Alm's eye was injured by a bottle cap which blew off a thirty-two ounce glass "7-Up" bottle. The trial court awarded Alm judgment for $163,025 against Aluminum Company of America, (Alcoa). We reverse and remand this cause for new trial, because the evidence is factually insufficient to support the jury findings of negligence and proximate cause against Alcoa.

Alm brought suit against Aluminum Company of America, (the designer and licensor of the closure system), J.F.W. Enterprises, Inc. (the owner of the bottler in question) and Lewis & Coker Supermarkets, Inc. (the retailer which sold the bottle to Alm). Alcoa filed a cross-action against J.F.W. and Lewis & Coker. Alm settled with J.F.W. and Lewis & Coker prior to trial. The jury found that Alcoa and J.F.W. were negligent, such negligence was the proximate cause of Alm's injury, and that Alcoa's negligence was 55 percent and J.F.W.'s negligence was 45 percent. The jury's answers to special issues relating to Alm's products liability action were disregarded by the trial court. No error was assigned on appeal concerning this action. Thus, the judgment is based upon Alm's negligence cause of action.

Alm purchased the bottle of "7-Up" from Lewis & Coker. Lewis & Coker purchased it from J.F.W. In turn J.F.W. had purchased the cap from W.H. Hutchinson & Son, Inc. (WHS). W.H.S. had entered into a licensing agreement with Alcoa, authorizing W.H.S. to manufacture resealable aluminum closures under an Alcoa patent. The capping machine used by J.F.W. to apply the cap to the bottle was designed by Alcoa. J.F.W. was authorized by the "7-Up" Company to package and sell "7-Up" products in Houston.

The packaging of the soft drink occurred in an assembly line process at Houston "7-Up" Bottling Company, owned and operated by J.F.W. A typical assembly process involves J.F.W. employees placing empty soft drink bottles onto a conveyor and feeding them into a filler machine which places soft drink syrup and carbonation in the glass bottles. From there the bottles go to the capping machine where an aluminum cap is placed on the bottles. Top pressure is then applied to the cap and bottle creating a top-side seal. Metal rolling tools contact the side of the cap and push the metal into the channels between the threads of the bottle. This procedure creates a custom seal between the individual cap and the bottle. The final product is then placed in a carton which is then delivered and sold by J.F.W. to Lewis & Coker and others for sale to the general public.

In points of error one through ten Alcoa asserts that the evidence is both legally and factually insufficient to support the jury's finding that Alcoa was negligent and that Alcoa's negligence proximately caused Alm's injury. In considering legal insufficiency points of error the court will consider only the evidence tending to support the finding, viewing it in the most favorable light in support of the finding, giving effect to all reasonable inferences that may be drawn therefrom, and disregarding all conflicting evidence. If upon such review the court finds there is a complete absence of evidence of probative force to support the finding, or only a scintilla of evidence to support it, the point must be sustained. Glover v. Texas General Indemnity Co., 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). In considering factual insufficiency points of error, the court examines the whole record to determine not only that there is some evidence to support the finding, but also to determine whether considering all the evidence, the finding is not manifestly unjust. If it is so weak that the finding is manifestly unjust, the court will sustain the point. Burnett v. Motyka, 610 S.W.2d 735 (Tex.1980); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1952).

Alm pled and attempted to prove four different negligent acts or omissions by Alcoa. The issue of negligence and proximate cause was broadly submitted. The issue inquired: Do you find that the negligence, if any, of any or all of the following parties proximately caused the occurrence made the basis of this suit: answer "yes" or "no" beside the name of each party listed:

Alcoa: __________

J.F.W. __________

James E. Alm __________

Thus, it is unknown which acts or omissions the jury determined to be negligent. It is therefore necessary to review the evidence concerning each of the four acts or omissions. The four alleged acts or omissions are that:

(1) Alcoa negligently designed the bottle and cap in that the threads on the bottle to be impressed into the cap were too shallow;

(2) Alcoa negligently designed the cap by including an optional pilfer-proof band on the cap;

(3) Alcoa was negligent in recommending to bottlers a visual inspection system based upon the batch and hold principle of quality control, as opposed to inventing or devising some fail safe system of inspection for use by bottlers;

(4) Alcoa was negligent in failing to adequately warn the bottler (JFW) and/or the plaintiff about the risk that an improperly applied cap could blow-off and cause personal injury.

We first address Alcoa's points of error which assert the evidence is legally insufficient to support the essential elements of Alm's negligence action against Alcoa. Negligence consists of three essential elements: 1) a legal duty owed by one person to another; 2) a breach of that duty; and 3) damage proximately resulting from that breach. Colvin v. Red Steel Company, 682 S.W.2d 243, 28 Tex.Sup.Ct.J. 153 (Dec. 15, 1984); Abalos v. Oil Development Co., 544 S.W.2d 627, 631 (Tex.1976); Coleman v. Hudson Gas and Oil Corp., 455 S.W.2d 701, 702 (Tex.1970). Moreover, the existence of a legal duty under given circumstances is a question of law for the court. See Abalos v. Oil Development Co., supra, at 631; Jackson v. Associated Developers of Lubbock, 581 S.W.2d 208, 212 (Tex.Civ.App.--Amarillo 1979, writ ref'd n.r.e.). The threshold question is whether Alcoa owed any duty to Alm of which one of the alleged acts or omissions would constitute a breach thereof. Alm asserts Alcoa owed the following duties to him: 1) to design its closure system in a non-negligent way so as to avoid injury to third parties such as plaintiff; and 2) to warn plaintiff and/or J.F.W. of the danger that a misapplied bottle cap could blow off and injure a consumer.

Alcoa does not contest that it owed plaintiff a duty to design its closure system in a non-negligent way. We affirm the existence of that duty. It has long been held that a manufacturer has a duty to all whom he should expect to use the product to exercise reasonable care in the adoption of a safe plan or design. Crawford Overhead Door Co. v. Addison, 504 S.W.2d 587 (Tex.Civ.App.--Beaumont 1973, no writ); Texas Bitulithic Co. v. Caterpillar Tractor Co., 357 S.W.2d 406 (Tex.Civ.App.--Dallas 1962 writ ref'd n.r.e.). Alcoa designed the cap which injured Alm and designed and manufactured the capping machine which applied the cap. However, Alcoa did not manufacture or sell the cap. The question arises whether the duty discussed above applies only to the manufacturer of the product that reaches the consumer. We hold that this duty also extends to designers of the product and its manufacturing process. There is no justification for restricting this duty to the manufacturer of the product that causes the injury. If someone's negligence proximately causes damages, it should be actionable regardless of the source, whether it be the manufacturer of the product, the designer of the product or the designer/manufacturer of the product's manufacturing process. We are not aware of any legal precedent in Texas for this holding, but it is consistent with authority in other states. In three cases, the Massachusetts Supreme Court affirmed the liabiity of designers of a product which caused injury, but which had no part in the manufacture of the product. They are: McDonough v. Whalen, 313 N.E.2d 435 (Mass.1974); Bernier v. Boston Edison Co., 403 N.E.2d 391 (Mass.1980); and Uloth v. City Tank Corp., 384 N.E.2d 1188 (Mass.1978). See also Fabbrini Foods, Inc. v. United Canning, 90 Mich.App. 80, 280 N.W.2d 877 (1979).

We reserve for later discussion whether Alcoa owed Alm and/or J.F.W. a duty to warn.

There is some evidence that Alcoa breached its duty to exercise reasonable care in the adoption of a safe design for its closure system. Alm's expert witness, George Greene, testified that under the Alcoa closure system there was no way that the bottler could have feasibly determined whether improperly capped bottles were going out of the plant. He testified that the sampling inspection procedure recommended by Alcoa was inadequate and that an average engineer would have designed into the closure system an inspection system that mechanically inspects the cap on every bottle.

Alcoa asserts that the standard of care applied to them must be determined at the time it was alleged to have been negligent and that this testimony is of no probative value because it was not limited to this time period. Alcoa is mistaken. The record shows that this testimony was properly limited to before June 3, 1976, the date of injury.

We next consider whether there is evidence that Alcoa's failure to provide a 100 percent or fail safe inspection method was the proximate cause of plaintiff's injury.

Proximate cause includes two essential elements: (1) foreseeability, and (2) cause in...