Chandler v. Gene Messer Ford, Inc.
| Decision Date | 03 July 2002 |
| Docket Number | No. 11-00-00-332-CV.,11-00-00-332-CV. |
| Citation | 81 S.W.3d 493 |
| Parties | Philip Malcolm CHANDLER and Ronda Chandler, Individually and as Next Friends of Philip Malcolm Chandler, Jr. and Jamie Renee Chandler, Appellants, v. GENE MESSER FORD, INC.; Gene Messer Ford of Amarillo, Inc.; and Ford Motor Company, Appellees/Appellants, v. Carrie Kinkier Smith, Appellee. |
| Court | Texas Court of Appeals |
William Edwards, Williams Edwards, III, John Blaise Gsanger, Edwards Law Firm, Donald Edwards, Craig Smith, Corpus Christi, Frank Branson, George Tex Quesada, Law Office of Frank Branson, Dallas, for appellants.
Jose Luzarraga, Peter Moir, Joseph Knight, Bob Shannon, Baker & Botts, Austin, for appellees.
Wesley Hightower, Jennifer Litke, Blaies & Hightower, Fort Worth, for other attorneys.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
This appeal is from a summary judgment granted to Gene Messer Ford, Inc. and Gene Messer Ford of Amarillo, Inc. (Gene Messer Ford) and Ford Motor Company (Ford) in a suit arising out of an automobile collision. We affirm in part and reverse and remand in part.
Philip Malcolm Chandler, Jr. was injured in May 1995 while riding in the front passenger seat of his parents' Ford Aspire. His father was driving northbound on Western Drive in Amarillo. Carrie Kinkler Smith, traveling southbound on Western, turned her Buick LeSabre left in front of the oncoming Chandlers. The smaller Aspire crashed into the side of the Buick, and the Aspire's front seat air bags deployed. The Chandlers' daughter, Jamie Renee Chandler, was sitting in the back seat and wearing her lap and shoulder belts. Jamie and Mr. Chandler, who also was properly belted, received only minor injuries. Philip, seven years old, weighing approximately 60-65 pounds, suffered a severe closed-head injury. There is conflicting evidence on whether Philip was properly belted; we will assume that he was. The Chandlers claim that the passenger air bag enhanced Philip's injuries, that Ford and Gene Messer Ford misrepresented the Aspire's safety characteristics, and that Ford and Gene Messer Ford failed to warn them of the possible risks to a child riding in the front passenger seat.
The Ford Aspire is a small car. Mr. Chandler said that he told the Gene Messer Ford salesman that he wanted to buy a small car to save on gasoline but that his wife, Ronda, was opposed to small cars because of her concern about the safety of their children. He also told the salesman that he had been looking at a Geo Metro and that he liked the Geo Metro a lot. According to Chandler, the salesman informed him that the Ford Aspire had dual air bags which the Geo Metro did not and that, in the salesman's opinion, if Chandler was going to buy a small car, the Ford Aspire would be safer for children because of the passenger side air bag. Chandler and the salesman took the Aspire to Ronda's workplace for her approval. The salesman assured Ronda of the safety of the Aspire; and, based on the salesman's assurances, the Chandlers purchased the Ford Aspire.
Philip Malcolm Chandler and Ronda Chandler, individually and as next friends of Philip Malcolm Chandler, Jr. and Jamie Renee Chandler, sued Smith for negligence. They also sued Ford and Gene Messer Ford for design and marketing defects under Section 402A of the Restatement (Second) of Torts (1965); misrepresentations under Section 402B of the Restatement (Second) of Torts (1965); negligence; and violations of the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA), TEX. BUS. & COM. CODE ANN. § 17.41 et seq. (Vernon 1987 & Pamph. Supp.2002), including breach of implied warranties. Ford and Gene Messer Ford filed a cross-claim against Smith. After discovery, Ford and Gene Messer Ford sought a partial summary judgment on the Chandlers' causes of action for misrepresentations under Section 402B, violations of the DTPA, and market defect under Section 402A. Their motion for summary judgment included a traditional motion under TEX.R.CIV.P. 166a(c) and a no-evidence motion under TEX.R.CIV.P. 166a(i). After the trial court granted their requested partial summary judgment without specifying the grounds, appellants nonsuited their remaining causes of action for design defect and negligence. The trial court then dismissed Ford's and Gene Messer Ford's cross-claim against Smith, creating a final judgment from which the Chandlers appealed.
A trial court should grant a motion for summary judgment if the moving party establishes that: (1) no genuine issue of material fact exists and (2) the moving party is entitled to judgment as a matter of law. Rule 166a(c); M.D. Anderson Hospital and Tumor Institute v. Willrich, 28 S.W.3d 22, 23 (Tex.2000); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). Once the movant for a traditional summary judgment establishes his right to a summary judgment, the non-movant must come forward with evidence or law that precludes summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979). The question on appeal is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiffs cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970). When reviewing a summary judgment, we take as true evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in favor of the non-movant. M.D. Anderson Hospital and Tumor Institute v. Willrich,, supra at 23; Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex.1985).
A party filing a no-evidence motion for summary judgment must specify the elements of a cause of action upon which the non-movant bears the burden of proof but has no evidence. Rule 166a(i). The nonmovant must present some summary judgment evidence that raises a genuine fact issue on the specifically challenged elements. Rule 166a(i); McCombs v. Children's Medical Center of Dallas, 1 S.W.3d 256, 258 (Tex.App.-Texarkana 1999, pet'n den'd). The appellate court reviews evidence presented in response to a motion for a no-evidence summary judgment in the same way it reviews evidence presented in response to a traditional motion for summary judgment; it accepts as true evidence favorable to the non-movant and indulges every reasonable inference and resolves all doubts in favor of the nonmovant. Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614, 619 (Tex.App.-Eastland 2000, pet'n den'd). A no-evidence summary judgment is improper if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact on the challenged element. McCombs v. Children's Medical Center of Dallas, supra at "58. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. den'd, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998).
Because the trial court's order granting summary judgment did not specify the ground or grounds relied on for its ruling, we will affirm if any of Ford's and Gene Messer Ford's theories have merit. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).
In their summary judgment motion, Ford and Gene Messer Ford asserted that appellants had presented no evidence of a misrepresentation under Section 402B of the Restatement (Second) of Torts. Texas adopted Section 402B in Crocker v. Winthrop Laboratories, Division of Sterling Drag, Inc., 514 S.W.2d 429, 431 (Tex.1974). Section 402B provides:
One engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though
(a) it is not made fraudulently or negligently, and
(b) the consumer has not bought the chattel from or entered into any contractual relation with the seller.
Alleged alleged that the salesman's statements to them — that dual air bags made the Aspire safer than a Geo Metro and safer for children — were misrepresentations within Section 402B. Ford and Gene Messer Ford asserted in their motion for summary judgment that Section 402B did not apply because the salesman's alleged statements were not "public misrepresentations" and the statements were simply his opinion or "sales talk." We agree that Section 402B does not apply to private misrepresentations. Lewis & Lambert Metal Contractors, Inc. v. Jackson, 914 S.W.2d 584, 590 (Tex.App.-Dallas 1994), vacated per settlement, 938 S.W.2d 716 (Tex.1997); Rehler v. Beech Aircraft Corporation, 777 F.2d 1072, 1079 (5th Cir. 1985). Section 402B applies only to misrepresentations made to the public at large in the form of advertising, labels, or similar broad forms of communication. Section 402B, comment h, defines what "to the public" means:
h. "To the public." The rule stated in this Section is limited to misrepresentations which are made by the seller to the public at large, in order to induce purchase of the chattels sold, or are intended by the seller to, and do, reach the public. The form of the representation is not important. It may be made by public advertising in newspapers or television, by literature distributed to the public through dealers, by labels on the product sold, or leaflets accompanying it, or in any other manner, whether it be oral or written.
The Gene Messer Ford salesman's alleged misrepresentations were not...
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