Benavides v. Cushman, Inc.
| Decision Date | 26 January 2006 |
| Docket Number | No. 01-04-00982-CV.,01-04-00982-CV. |
| Citation | 189 S.W.3d 875 |
| Parties | Xavier BENAVIDES, Appellant, v. CUSHMAN, INC., Appellee. |
| Court | Texas Court of Appeals |
Gilbert Arrazolo, Arrazolo Law Corporation, Alburquerque, NM, for Appellant.
Philip Robert Brinson, Brown Sims, P.C., Houston, TX, for Appellee.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
In his appeal of this product liability case, Xavier Benavides asks that we reverse a judgment on a jury verdict in favor of appellee, Cushman, Inc. Benavides, a golf course groundskeeper, sued Cushman for injuries he sustained when a sand trap rake — a three-wheeled vehicle manufactured by Cushman — overturned while he was driving it. On appeal, Benavides contends the trial court erred in (1) excluding evidence of prior similar incidents, (2) excluding expert testimony regarding failure to warn, (3) admitting cumulative expert testimony, and (4) admitting an incident report written by Benavides's supervisor at the golf course. We conclude that none of the trial court's evidentiary rulings warrant reversal and therefore affirm.
Benavides worked at the Battle Ground Golf Course in Deer Park, Texas. In June 2000, Benavides's supervisor instructed him to groom the course's sand traps with Cushman's Groom Master sand trap rake. As Benavides exited a sand trap on the eleventh hole, he noticed a furrow in the sand. Although Benavides was heading downhill, he attempted to reverse course so as to re-enter the trap and smooth the furrow. As he began to turn, the left wheel of the Groom Master kicked upward. Benavides attempted to jump from the machine before it overturned but was unsuccessful. After the impact, he scooted out from underneath the Groom Master and walked to the twelfth hole to seek medical assistance. Benavides subsequently underwent two surgeries for injuries to his neck and lower back.
Benavides brought claims against Cushman for design defect, manufacturing defect, and negligence. The case initially proceeded to trial in November 2003. Due to Cushman's violation of a motion in limine, however, the trial court granted Benavides's motion for a new trial. The jury in the second trial found that the Groom Master did not have a design defect, that Cushman was not negligent, and that Benavides was one hundred percent responsible for the accident.1 This appeal followed.
The admission and exclusion of evidence is committed to the trial court's sound discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995). To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show that the trial court's ruling was erroneous and that the error was calculated to cause, and probably did cause, "rendition of an improper judgment." TEX.R.APP. P. 44.1(a)(1); Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). In making this determination, we review the entire record. Alvarado, 897 S.W.2d at 754. Reversible error does not usually occur in connection with evidentiary rulings unless the appellant can demonstrate that the whole case turns on the particular evidence admitted or excluded. Id. at 753-54; GT & MC, Inc. v. Tex. City Ref., Inc., 822 S.W.2d 252, 257 (Tex.App.-Houston [1st Dist.] 1991, writ denied).
In his first issue, Benavides contends the trial court abused its discretion in excluding evidence of earlier similar incidents. Specifically, Benavides proffered his expert witness, Dr. Robert Wright, to testify about five rollover accidents involving the Truckster, a different three-wheeled turf vehicle, also manufactured by Cushman. In the first trial, the court granted Cushman's motion in limine prohibiting Benavides from introducing evidence regarding the Truckster rollover accidents. At the second trial, Benavides asked the trial court to revisit its ruling on the motion in limine, but it declined to do so. Benavides made an offer of proof through Dr. Wright, who testified that the prior Truckster incidents were similar because Cushman designed both vehicles for golf courses and the Truckster has a similarly high center of gravity when loaded. The trial court rejected Benavides's offer of proof and refused to allow Dr. Wright to testify about previous Truckster rollover accidents during Benavides's case-in-chief.
During Cushman's case-in-chief, however, Benavides introduced this evidence. While cross-examining Cushman's expert witness, Ralph Barnett, he covered the other incidents extensively. For example:
Q. [Benavides's counsel]: Okay. Let me hand you what we've marked for identification as Plaintiff's Exhibit 241.
A. [Barnett]: Yes.
Q. This is a lawsuit by a gentleman named Jimmy T. Dickerson, correct?
A. Yes.
Q. And in this incident on May 11, 1993, the Plaintiff Dickerson and Hutton were operating a Cushman three-wheeled turf Truckster, correct?
A. Yes.
Q. And they were operating it on a slope at an army post, correct?
A. Yes.
Q. And they were traveling about two miles per hour —
A. Yes.
Q. — along the right of way of —
A. Yes.
Q. — Road, correct?
. . . .
Q. And then the subject vehicle hit a small indentation about the size of a pie plate and approximately one to two inches deep and it caused the truck to overturn, correct?
A. That's what it says under Statement of Facts.
Q. Yes. And then the allegations that were made were that the three-wheel Truckster was unstable and unfit for its intended use, correct?
A. Yes.
Q. And they also claim that it lacked rollover protection systems, correct?
A. Correct.
Q. And the rollover protection systems included the lack of a seat belt, correct?
A. Yes, because if it's a system, it will be also a lack of seat belt [sic].
Q. And that was May 11th, 1993, correct?
A. Yes.
Benavides's counsel read petitions or incident reports discussing each of the other Truckster incidents to the jury and asked Barnett to comment. After this evidence, the trial court admitted as an exhibit a list of the dates of the Truckster rollover accidents and the names of the individuals involved. The exhibit also notes that, in two of the incidents, the involved driver died.
In his brief, Benavides acknowledges that the trial court admitted evidence concerning the prior similar incidents but asserts that he "was denied the ability to effectively prosecute his case by introducing the incidents through his own expert." After the trial court allowed the evidence, however, Benavides did not seek to recall Dr. Wright to discuss the Truckster rollover accidents. Instead, Benavides rested at the conclusion of Cushman's case-in-chief.
Given that the jury heard extensive evidence concerning the other incidents, we hold that Benavides could not be harmed by error, if any, in the trial court's ruling earlier in the trial excluding Dr. Wright's testimony. See Bryant v. Transcon. Gas Pipe Line Corp., 821 S.W.2d 187, 188-89 (Tex.App.-Houston [14th Dist.] 1991, writ denied) (); Monsanto Co. v. A.A. Pruitt, 571 S.W.2d 561, 562-63 (Tex.Civ.App.-Houston [14th Dist.] 1978, no writ) ( that trial court's ruling on motion in limine excluding portions of contract relating to insurance was harmless where entire contract was later admitted into evidence); see also Stergiou v. Gen. Metal Fabricating Corp., 123 S.W.3d 1, 5 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) (); Wilson v. John Frantz Co., 723 S.W.2d 189, 194 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.) (). Moreover, Benavides did not seek to recall Dr. Wright after the trial court's reversal of its previous ruling, and thus cannot support his contention that the trial court denied him the ability to prosecute his case.2
In his second issue, Benavides contends the trial court abused its discretion in refusing to allow testimony by Dr. Wright pertaining to Cushman's failure to warn of the Groom Master's propensity to roll over, if turned on an incline. Benavides made an offer of proof in which Dr. Wright testified that Cushman should have placed a warning on the Groom Master that turning it while on an incline could cause the vehicle to roll over. The trial court excluded Dr. Wright's testimony on the ground that Benavides had pleaded a "design defect" — and not a "failure to warn." Benavides asserts that the trial court's "ruling was erroneous because `failure to warn' is only a subpart of a strict liability claim and is not a cause of action in and of itself." Moreover, Benavides observes, he testified without objection that he had never received a warning about the Groom Master's potential instability if turned while on a slope.
In Texas, section 402A of the Restatement (Second) of Torts governs strict liability claims. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 426 (Tex.1997). Under section 402A(1), a "defective" product is one that is "unreasonably dangerous to the user or consumer." RESTATEMENT (SECOND) OF TORTS § 402A(1) (1965); Grinnell, 951 S.W.2d at 426; Sims v. Washex Mach. Corp., 932 S.W.2d 559, 561 (Tex. App.-Houston [1st Dist.] 1995, no writ). A plaintiff...
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