Caterpillar, Inc. v. Shears

• Decision Date: 25 August 1994
• Docket Number: No. 13-92-010-CV,13-92-010-CV
• Citation: 881 S.W.2d 923
• Parties: Prod.Liab.Rep. (CCH) P 14,093 CATERPILLAR, INC. and B.D. Holt Company, Appellants, v. Cipriano SHEARS and Irene Shears, Individually and as Next Friend of Cipriano Shears, Jr. and Claudia Shears, Appellees.
• Court: Texas Court of Appeals

Page 923

881 S.W.2d 923

Prod.Liab.Rep. (CCH) P 14,093

CATERPILLAR, INC. and B.D. Holt Company, Appellants, v. Cipriano SHEARS and Irene Shears, Individually and as Next Friend of Cipriano Shears, Jr. and Claudia Shears Appellees.

No. 13-92-010-CV.

Court of Appeals of Texas Corpus Christi.

Aug. 25, 1994.

Rehearing Denied Sept. 22, 1994.

Kenneth S. Geller, James D. Holzhauer, Javier H. Rubinstein, Mayer, Brown & Platt, Washington, DC, for amicus curiae.

Leo C. Salzman, Roger W. Hughes, Adams & Graham, Harlingen, TX, Gary Norton, Wood, Boykin & Wolter, Corpus Christi, TX, Frank E. Perez, Royston, Rayzor, Vickery & Williams, Brownsville, TX, Roger Townsend, James Sales, Fulbright & Jaworski, Houston, TX, Professor William Powers, Jr., Austin, TX, for appellants.

Chester Gonzalez, Brownsville, TX, Frank Costilla, Costilla & Stapleton, Brownsville, TX, David W. Holman, Holman & Hogan, Houston, TX, for appellees.

Before the court en banc.

OPINION

SEERDEN, Chief Justice.

In this products liability action, a jury awarded damages to appellees for injuries Cipriano Shears sustained while operating a Caterpillar model 920 multi-functional front-end loader. The jury found both Caterpillar and Holt strictly liable and negligent. The jury awarded compensatory and exemplary damages against Caterpillar and Holt. We reverse and render in part and affirm in part.

Cipriano Shears and Jesus Sanchez were employees of Dix Shipping Company, a stevedoring company with operations at the Port of Brownsville. Shears had operated heavy equipment for eighteen years. On February 28, 1988, Shears and Sanchez were each operating Caterpillar model 920 front-end loaders. They were working in a warehouse moving sodium sulphate--a powdery, white, crystalline salt, commonly called soap powder--from a conveyor to a storage pile until it could be shipped out. As was typical in this type of work, a lot of dust was flying around and visibility was limited. While both were moving soap powder in the warehouse, Sanchez's loader rear-ended Shears's loader. As a result, Shears suffered serious injuries.

Caterpillar manufactured the multipurpose model 920 with a rollover protective structure (ROPS) that was attached to the loader by twenty-four large bolts. The ROPS is a four-posted, cab-type structure that fits over the loader operator and is designed to protect the operator. The model 920 left Caterpillar's possession and was delivered to B.D. Holt with the ROPS attached to the loader. B.D. Holt sold the loader to Dix Shipping and the loader left its possession with the ROPS attached.

At some time before the accident on February 28, 1988, Dix Shipping removed the ROPS from both Shears's and Sanchez's loaders. The Shearses' expert testified that the model 920 loader with the ROPS attached was a reasonably safe machine.

According to the Shearses' theory of the accident, Sanchez could not see Shears unloading his sodium sulfate filled bucket onto the pile and drove his loader into the rear of Shears's loader. Sanchez's bucket pushed Shears's seat forward pinning Shears against the steering wheel.

Each model 920 loader is about 19 feet long and weighs about 18,000 pounds. The operator sits about 11 and 1/2 feet behind the front of the loader and bucket. Testimony showed that, because of the dust in the warehouse, Shears's loader was visible only from a distance of less than four feet.

Failure To Warn

By Caterpillar's and Holt's second points of error, both claim that the evidence is legally and factually insufficient to support the jury's finding that a marketing defect existed in the model 920 that was a producing cause of Shears's injuries. Additionally, both appellants by their third points, claim that the evidence is legally and factually insufficient to support the jury's finding that Caterpillar and Holt were negligent.

The jury by answering question two, determined that there was a defect in the marketing of the model 920 at the time it left Caterpillar's and Holt's possession that was a producing cause of Shears's injuries. Additionally, the jury by answering question three, determined that Caterpillar and Holt were negligent and that their negligence proximately caused Shears's injuries.

In reviewing an attack on the legal sufficiency of the evidence or a "no evidence" point, we consider only the evidence and reasonable inferences that tend to support the jury's findings, and disregard all evidence and inferences to the contrary. Responsive Terminal Sys., Inc. v. Boy Scouts of Am., 774 S.W.2d 666, 668 (Tex.1989). If there is any evidence of probative force to support the finding, the point must be overruled and the finding upheld. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989).

In reviewing an attack on the factual sufficiency of the evidence, we consider, weigh, and examine all of the evidence which supports and which is contrary to the jury's determination. Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex.1989) (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex.1986)); Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986). Having done so, we should set aside the verdict only if the evidence standing alone is too weak to support the finding, or the answer is so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

A product is unreasonably dangerous or defective when an ordinary man would not have marketed the product without "supplying warnings as to risks and dangers involved in using the product as well as instructions as to how to avoid those risks and dangers." Blackwell Burner Co. v. Cerda, 644 S.W.2d 512, 515 (Tex.App.--San Antonio 1982, writ ref'd n.r.e.) (quoting Technical Chemical Co. v. Jacobs, 480 S.W.2d 602, 605 (Tex.1972)); USX Corp. v. Salinas, 818 S.W.2d 473, 482-85 (Tex.App.--San Antonio 1991, writ denied). A manufacturer can be found responsible through the doctrine of strict liability even though its product is faultlessly manufactured and designed, if the product marketed is unreasonably dangerous or likely to harm the user unless properly used. Cerda, 644 S.W.2d at 516. In such a case, the product would be unreasonably dangerous by virtue of the absence of adequate warnings. Id.

The manufacturer as well as the supplier has a duty to inform users of the hazards associated with the use of its product. Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 591 (Tex.1986). Additionally, the manufacturer must warn against foreseeable misuse and improper maintenance. Cerda, 644 S.W.2d at 516. A manufacturer who knows or should know of the potential harm to a user because of the nature of a product is required to give an adequate warning of such dangers. American Cyanamid Co. v. Frankson, 732 S.W.2d 648, 656 (Tex.App.--Corpus Christi 1987, writ ref'd n.r.e.).

The evidence is undisputed that there were no warnings given by Caterpillar or Holt about any danger in operating the front-end loader without the ROPS. Mr. Shears testified that as an experienced operator he did not know or appreciate the dangers of operating a loader without a ROPS. He referred to it as a "cabin" and thought its purpose was to protect him from the heat and the cold. He testified that he did not know that the ROPS was there to protect him from injury, and did not know that it was dangerous to operate the loader without a ROPS. He said that if there had been a warning that the loader was dangerous without the ROPS he would not have operated it.

Mr. Sweeny, the Technical Support manager for Caterpillar, testified that it was likely that an owner or operator of a model 920 would take the ROPS off and not want to replace it.

Evidence was presented that the model 920 was dangerous if not used properly. Evidence was introduced that if the ROPS were removed from the loader it would become a dangerous piece of equipment. Wesley Buchele, the plaintiffs' expert witness, testified that it was his opinion that if the ROPS had been in place on the day of the accident that Shears would not have been injured. He stated that the operator's seat was 19 inches from the steering wheel. The ROPS was designed to withstand an overhead impact two times the weight of the vehicle or 36,000 pounds. The ROPS was designed to withstand 10,800 pounds of horizontal force. Buchele explained that the ROPS was designed to give the operator protection whether it was "being impinged from the side, front, or back." The four-posted ROPS was designed to give the operator three-hundred and sixty degrees of protection. He testified that had the ROPS been in place, Shears would not have been injured.

Buchele also testified about the type of warning that should have been placed on the loader. Buchele stated that there should be two types of warnings on the model 920. He explained that one warning would alert the operator to the fact that this particular machine should not be operated without rollover protection. A second "formal type of warning" would set out the danger to the operator if the ROPS is removed. Buchele explained that he would have "Danger" in red letters. Under that he would include a pictorial stick-type drawing of someone being injured from the side. This pictorial drawing would show a loader without a ROPS and someone being injured by something intruding into the area which, if the ROPS were in place, would have protected the person. Additionally, he suggested that there be a warning "do not operate without ROPS in place" in two languages on several different places on the piece of equipment.

The warning would serve as a constant reminder that the equipment could cause serious physical injury. As noted in Cerda, the warning placed on a lawn mower calling attention to the user to not put a hand or foot close to the blades while the mower is in operation is not given so much as an instruction how to use the lawn mower but...