Boatland of Houston, Inc. v. Bailey

• Decision Date: 30 July 1980
• Docket Number: No. B-8827,B-8827
• Citation: 609 S.W.2d 743
• Parties: BOATLAND OF HOUSTON, INC., Petitioner, v. Valerie BAILEY et al., Respondents.
• Court: Texas Supreme Court

Page 743

609 S.W.2d 743

BOATLAND OF HOUSTON, INC., Petitioner, v. Valerie BAILEY et al., Respondents.

No. B-8827.

Supreme Court of Texas.

July 30, 1980.

On Rehearing Dec. 17, 1980.

Butler, Binion, Rice, Cook and Knapp, Donald B. McFall, Richard A. Sheehy and Richard E. Gray, III, Houston, for petitioner.

Kronzer, Abraham & Watkins, James E. Robinson, Edwards & Hitt, Tom Edwards, Houston, for respondents.

McGEE, Justice.

This is a product defect case involving an alleged defect in the design of a 16-foot bass boat. The plaintiffs were the widow and adult children of Samuel Bailey, who was killed in a boating accident in May of 1973. They sued under the wrongful death statute, alleging that Samuel Bailey's death occurred because the boat he was operating was defectively designed. The boat had struck a partially submerged tree stump, and Bailey was thrown into the water. With its motor still running, the boat turned sharply and circled back toward the stump. Bailey was killed by the propeller, but it is unclear whether he was struck when first thrown out or after the boat circled back toward him.

Bailey's wife and children sought damages under a strict liability theory from the boat's seller, Boatland of Houston, Inc. At trial, they urged several reasons why the boat was defectively designed, including inadequate seating and control area arrangement, unsafe stick steering and throttle design, and the failure of the motor to automatically turn off when Bailey was thrown from the boat.

The trial court rendered a take-nothing judgment based on the jury's failure to find that the boat was defective and findings favorable to Boatland on several defensive issues. The court of civil appeals, with one justice dissenting, reversed and remanded the cause for a new trial because of errors in the admission of evidence and the submission of the defensive issues. ¹ 585 S.W.2d 805. We reverse the judgment of the court of civil appeals and affirm that of the trial court.

EVIDENCE OF DESIGN DEFECT

The alleged design defects are causally related to Bailey's being thrown from the boat and struck by the propeller and not to the boat's hitting the stump. Nevertheless, the same rules of strict liability govern cases in which the defect caused the initial accident and cases in which the defect caused the injuries. Turner v. General Motors Corp., 584 S.W.2d 844, 848 (Tex. 1979).

In Turner v. General Motors Corp., this court discussed the strict liability standard of "defectiveness" as applied in design defect cases. Whether a product Whether a product was defectively designed must be judged against the technological context existing at the time of its manufacture. Thus, when the plaintiff alleges that a product was defectively designed because it lacked a specific feature, attention may become focused on the feasibility of that feature the capacity to provide the feature without greatly increasing the product's cost or impairing usefulness. This feasibility is a relative, not an absolute, concept; the more scientifically and economically feasible the alternative was, the more likely that a jury may find that the product was defectively designed. A plaintiff may advance the argument that a safer alternative was feasible with evidence that it was in actual use or was available at the time of manufacture. Feasibility may also be shown with evidence of the scientific and economic capacity to develop the safer alternative. Thus, evidence of the actual use of, or capacity to use, safer alternatives is relevant insofar as it depicts the available scientific knowledge and the practicalities of applying that knowledge to a product's design. This method of presenting evidence of defective design is not new to the Texas law of product liability. See, e. g., Rourke v. Garza, 530 S.W.2d 794 (Tex. 1975); Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex. 1974); Williams v. General Motors Corp., 501 S.W.2d 930 (Tex.Civ.App. Houston (1st Dist.) 1973, writ ref'd n.r.e.); Hartzell Propeller Co. v. Alexander, 485 S.W.2d 943 (Tex.Civ.App. Waco 1972, writ ref'd n.r.e.); Pizza Inn, Inc. v. Tiffany, 454 S.W.2d 420 (Tex.Civ.App. Waco 1970, no writ).

                was defectively designed requires a balancing by the jury of its utility against the likelihood of and gravity of injury from its use.  The jury may consider many factors before deciding whether a product's usefulness or desirability are outweighed by its risks.  Their finding on defectiveness may be influenced by evidence of a safer design that would have prevented the injury.  2 Turner v. General Motors Corp., supra at 849.  See Keeton, Product Liability and the Meaning of Defect, 5 St. Mary's L.J. 30, 38 (1973); Wade, Strict Tort Liability of Manufacturers, 19 Sw.L.J. 5, 17 (1965).  Because defectiveness of the product in question is determined in relation to safer alternatives, the fact that its risks could be diminished easily or cheaply may greatly influence the outcome of the case
                

As part of their case-in-chief, the Baileys produced evidence of the scientific and economic feasibility of a design that would have caused the boat's motor to automatically shut off when Bailey fell out. According to the Baileys, the boat's design should have incorporated an automatic cut-off system or the boat should have been equipped with a safety device known as a "kill switch."

The deposition of J. C. Nessmith, president of Boatland, was read, in which he stated that there were presently several types of "kill switches" available, and that they were now installed by Boatland when it assembled and sold bass boats.

The deposition of Bill Smith, who was a passenger in the boat with Bailey at the time of the accident, was also read. Smith had not heard of automatic kill switches before the accident, but afterwards he got one for his own boat.

The deposition testimony of George Horton, the inventor of a kill switch designed for open-top carriers, was also introduced. Horton began developing his "Quick Kill" in November of 1972 and applied for a patent in January of 1973. According to Horton, his invention required no breakthroughs in the state of the art of manufacturing or production. He stated that his invention was simple: a lanyard connects the operator's body to a device that fits over the ignition key. If the operator moves, the lanyard is pulled, the device rotates, and the Robert Swint, a NASA employee who worked with human factors engineering, testified that he had tested a bass boat similar to Bailey's. He concluded that the boat was deficient for several reasons and that these deficiencies played a part in Bailey's death. According to Swint, when the boat struck a submerged object and its operator became incapacitated, the seating and control arrangement caused the boat to go into a hard turn. If the operator were thrown out, the boat was capable of coming back and hitting him. Swint also stated that a kill switch would have cut off the engine and the motor would not have been operative when it hit Bailey.

ignition switch turns off. When he began to market his "Quick Kill," the response by boat dealers was very positive, which Horton perceived to be due to the filling of a recognized need. He considered the kill switch to be a necessary safety device for a bass boat with stick steering. If the kill switch were hooked up and the operator thrown out, the killing of the motor would prevent the boat from circling back where it came from. Horton also testified that for 30 years racing boats had been using various types of kill switches. Thus, the concept of kill switches was not new.

Jim Buller, who was fishing in the area when Bailey was killed, testified that his own boat did not have a kill switch at that time, but he ordered one within "a matter of days."

Boatland elicited evidence to rebut the Baileys' evidence of the feasibility of equipping boats with kill switches or similar devices in March of 1973, when the boat was assembled and sold. The Baileys had been granted a running objection to all evidence of this nature. In response to the Baileys' evidence that kill switches were presently used by Boatland, Nessmith testified that he did not know of kill switches until the spring of 1973, and first began to sell them a year later.

In response to the Baileys' evidence that the "Quick Kill" was readily available at the time of trial, Horton stated on cross-examination that until he obtained the patent for his "Quick Kill" in 1974 he kept the idea to himself. Before he began to manufacture them, he investigated the market for competitive devices and found none. The only applications of the automatic engine shut-off concept in use at the time were homemade, such as on racing boats. He first became aware of competitive devices in August of 1974.

Boatland introduced other evidence to show that kill switches were not available when Bailey's boat was sold. The deposition of Jimmy Wood, a game warden, was read in which he stated that he first became aware of kill switches in 1975. He testified that he had a "Quick Kill" on his boat since 1976, and he thought it was the only kill switch made. Willis Hudson, who manufactured the boat operated by Bailey, testified that he first became aware of kill switches in 1974 or 1975 and to his knowledge no such thing was available before then. Ralph Cornelius, the vice-president of a marine appliance dealership, testified that kill switches were not available in 1973. The first kill switch he saw to be sold was in 1974, although homemade "crash throttles" or foot buttons had long been in use.

Apart from evidence of the feasibility of an automatic motor cut-off design, evidence was introduced pertaining to whether such a design would have prevented Bailey's injuries. After considering the feasibility and effectiveness of an alternative design and other factors such as the utility and risk, the jury found that the boat was not defective. The trial court rendered...