Caterpillar Tractor Co. v. Gonzales

• Decision Date: 26 March 1980
• Docket Number: No. 6617,6617
• Citation: 599 S.W.2d 633
• Parties: CATERPILLAR TRACTOR COMPANY, Appellant, v. Santiago GONZALES et al., Appellees.
• Court: Texas Court of Appeals

Page 633

599 S.W.2d 633

CATERPILLAR TRACTOR COMPANY, Appellant, v. Santiago GONZALES et al., Appellees.

No. 6617.

Court of Civil Appeals of Texas, El Paso.

March 26, 1980.

Rehearing Denied April 23, 1980.

Plunkett, Gibson & Allen, Robert A. Allen, Ronald Hornberger, San Antonio, for appellant.

Gochman & Weir, John F. Scarzafava, Warren Weir, San Antonio, Pearson & Caballero, Ray Pearson, El Paso, for appellees.

Clark, Thornton & Summers, W. Burl Brock, San Antonio, for intervenor.

OPINION

WARD, Justice.

This personal injury case involving the design defect of a step on the side of a Caterpillar tractor was previously before us. 562 S.W.2d 573 (Tex.Civ.App.). There, we held there was no evidence to support findings of either a design defect or of a negligent design of the step. The Supreme Court reversed our judgment on those two holdings and remanded the cause to this Court for disposition of points not previously reached, including factually insufficient attacks on the findings of design defect and of negligent design which are within the exclusive jurisdiction of the courts of civil appeals. Gonzales v. Caterpillar Tractor Company, 571 S.W.2d 867 (Tex.1978). We will now affirm the judgment of the trial Court.

At this time, we only note that the Plaintiff, Santiago Gonzales, slipped and fell from a step which was attached to the side of the tractor, and which at the time was covered with mud. For all details, we refer to the factual statements contained in the published opinions. As therein pointed out, trial was to a jury which determined that the step on the machine was defectively designed by the manufacturer, and this was a producing cause of the fall. Further, it was determined that the step was negligently designed by the manufacturer and this was a proximate cause of the fall. The jury refused to find in favor of the manufacturer on the defensive issues. Based upon the jury's verdict, judgment was entered that the Plaintiff recover from the manufacturer the sum of $252,991.05.

Since the "no evidence" point regarding a design defect has been overruled by the Supreme Court, we will first consider the Appellant's point No. 14 that there was insufficient evidence to support the jury's finding that the step was defectively designed. The Court defined "defectively designed" as such a design as would create an unreasonable risk of harm to the ordinary user of the product involved when the product is used in the manner in which it was intended to be used. The term "unreasonable risk of harm" was defined as meaning such a risk of harm as is more dangerous than would be contemplated by the ordinary user who uses the product with ordinary knowledge. The submission was under the consumer or user's alternative test approved in Henderson v. Ford Motor Company, 519 S.W.2d 87 (Tex.1974), and General Motors Corporation v. Hopkins, 548 S.W.2d 344 (Tex.1977), and since disapproved in Turner v. General Motors Corporation, 584 S.W.2d 844 (Tex.1979). In considering the factual sufficiency point, we have considered all of the evidence. We have also done this in light of the Texas policy which is most liberal in favor of jury determination of the defectiveness issue in a products liability case. Whatever is said about the Turner case, the fact remains that a design defect was upheld from both legal and factual insufficiency attacks, although no mass-produced automobile in the United States had ever come equipped with a roll bar or roll cage. See the plea of privilege opinion of Turner v. General Motors Corporation, 514 S.W.2d 497 (Tex.Civ.App. Houston (14th Dist.) 1974, writ ref'd n.r.e.). The point is overruled.

Normally, the question as to whether the defect existed at the time it left the manufacturer's control is not an issue in a design case, since the defective condition by definition can only come about when the product was within the manufacturing process itself. However, here the Appellant, by a series of six points, challenges the Appellees' case in this regard. In this connection, the parties stipulated that at the time the tractor was sold and delivered to Frio County in April, 1971, it was then in the same condition with regard to the step and the track as it was when it was manufactured in January, 1969. The Appellant makes its attack mainly because the accident did not occur until some eighteen months after the County purchased the machine and because of testimony that, at the time of the accident or at the later investigation, the top of the step was shiney and appeared worn. What the Appellant overlooks is that the main objection to the step made by the Appellee Gonzales was that it was in a position on the tractor where it caught excessive mud and where it was difficult to see when the operator was descending the machine. The Appellee Gonzales testified to this effect as did his expert witness, John Frassanito. Further, the evidence by Caterpillar's experts indicated that the step followed in every respect the manufacturer's design drawings. The special issue regarding defective design was in the following form and inquired whether or not the step had been defectively designed at the time it was sold by the Appellant:

Do you find, from a preponderance of the evidence, that the step on the Model 941 Caterpillar Traxcavator in question, was defectively designed at the time it was sold by defendant, Caterpillar Tractor Company?

The issue was not objected to by either party. The jury not only answered the issue in the affirmative, but also found by the second special issue that "the defectively designed step, . . . was the producing cause of the occurrence in question." From the standpoint of the Plaintiff Gonzales, that completed the necessary requirements to the establishment of his cause of action; that is, proof and findings of the existence of a defect, that the defect existed at the time the manufacturer relinquished control of the product and that the injury caused the injury. 2 Restatement of Torts 2d sec. 402A (1965); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967); Gravis v. Parke-Davis & Co., 502 S.W.2d 863 (Tex.Civ.App. Corpus Christi 1973, writ ref'd n.r.e.).

In reviewing the legal sufficiency point presently under discussion, we have considered only the evidence and the inferences arising therefrom which support the two jury findings. In reviewing the factual sufficiency points attacking the support for the two jury findings, we have considered all of the evidence. Points six through eleven, inclusive, which in their various forms attack the proof and findings that the defect existed at the time Caterpillar relinquished control of the tractor, are overruled.

Closely connected with the six points just decided is the Appellant's twelfth point which complains of the trial Court's failure to submit its requested issue which was as follows:

Do you find from a preponderance of the evidence that the step in question at the time of its use by the Plaintiff on September 21, 1973, was without substantial change in its condition from the time it was sold?

The point is overruled as the issue would be duplicitous of the first two issues submitted concerning the design defect and causation, and both of which inquired of the deceptive design at the time the tractor was sold by Caterpillar. The controlling issue was submitted and there was no error in failing to submit the requested one. Rule 279, Tex.R.Civ.P.

Points 15 and 16 are legal and factual insufficiency attacks on the evidentiary support for the jury's affirmative answer to special issue No. 2 that the defectively designed step was a producing cause of the occurrence. Producing cause was defined as "an efficient, exciting or contributory cause, which, in a natural sequence, produced the occurrence in question. There can be more than one producing cause." Producing cause or actual cause as opposed to proximate cause is the proper standard in design defect cases. Rourke v. Garza, 530 S.W.2d 794, 801 (Tex.1975). Further in line with the definition as given, Gonzales only had to produce proof that the defective design was a producing cause and not that it was the sole producing cause. After viewing the evidence in the required manner, the legal and factual insufficiency of the evidence points on producing cause are overruled.

Point 17 is the "no evidence" attack on the negligence of Caterpillar in designing the step. As previously stated, this point was sustained by this Court in the first appeal and subsequently the Supreme Court reversed this holding and overruled the point. In this connection, the Supreme Court emphasized the difference between negligence and products liability by pointing out that negligence actions center on the manufacturer's behavior but product liability looks to the product itself. The Court stated the following:

The care taken by the supplier of a product in its preparation, manufacture, or sale, is not a consideration in strict liability; this is, however, the ultimate question in a negligence action. Strict liability looks at the product itself and determines if it is defective. Negligence looks at the act of the manufacturer and determines if it exercised ordinary care in design and production.

571 S.W.2d 867 at 871.

The standard of care of the manufacturer in the negligence field was stated by the Supreme Court as being expressed in Sections 395 and 398 of 2 Restatement of Torts 2d (1965). Having stated that standard, the Supreme Court pointed to the evidence which it held to be more that a scintilla for the jury finding of negligent design. See 571 S.W.2d at 872.

Point 18 presents Caterpillar's insufficient evidence attack on the finding that the step was negligently designed. With the evidence which was discussed in the previous opinions, the Appellee Gonzales stressed two alternative designs in the form of retractable ladders which his expert believed a manufacturer of tractors would...