Fitzgerald v. Caterpillar Tractor Co.

• Decision Date: 10 January 1985
• Docket Number: No. 2-84-135-CV,2-84-135-CV
• Parties: 40 UCC Rep.Serv. 926 Clyde Wayne FITZGERALD, Appellant, v. CATERPILLAR TRACTOR COMPANY and Towmotor Corporation, Appellees.
• Court: Texas Court of Appeals

Page 162

683 S.W.2d 162

40 UCC Rep.Serv. 926

Clyde Wayne FITZGERALD, Appellant, v. CATERPILLAR TRACTOR COMPANY and Towmotor Corporation, Appellees.

No. 2-84-135-CV.

Court of Appeals of Texas Fort Worth.

Jan. 10, 1985.

Denbow, Wells, Williford & Felber, and Mike Felber, Fort Worth, for appellant.

Thompson & Knight, and Stephen C. Schoettmer, Dallas, for appellees.

Before JORDAN, HUGHES, JOE SPURLOCK, II, and HILL, JJ.

OPINION

JORDAN, Justice.

Appellant sued Towmotor Corporation and Caterpillar Tractor Company, the manufacturer and seller of a Towmotor Model T50B forklift alleging an injury on August 3, 1977, when the blade of the forklift became disengaged from the carriage and fell on appellant's foot. The forklift in question was delivered to Ryder Truck Lines, Fitzgerald's employer on February 25, 1974. The suit was based only on alleged breach of the implied warranty of fitness. Appellees filed motion for summary judgment claiming that there was no fact issue raised regarding an implied warranty of fitness or merchantability and that any action Fitzgerald may have had was barred by the appropriate statute of limitations.

The trial court granted appellee's motion for summary judgment and Fitzgerald appeals on two points of error.

We affirm.

Appellant first claims error in the granting of appellee's motion for summary judgment because, he says, there was an issue of fact raised concerning the merchantability of the forklift in question. In support of this position Fitzgerald points to his deposition testimony that he had driven forklifts since 1962; he had received driver's training on forklifts; and since his injury on August 3, 1977, he has looked at other forklifts to satisfy his natural curiosity about the design of the forklifts. He then testified that the slot on the carriage of the forklift should be modified by the addition of an Allen screw to prevent the blade from slipping out of the slot. Fitzgerald, on the other hand, admitted in his deposition that he is not a design mechanic, nor an engineer and that he doesn't pretend to be an expert in the area of forklift design. He also conceded that the forklift and blade on the Towmotor Model T50B were basically the same as other forklifts and that the forklift and its blade assembly would pass as standard in the industry, both at the time of his injury and at the time his deposition was taken.

At the summary judgment hearing appellees produced the affidavit testimony of Thomas R. Lajeunesse, who at that time was an engineer and manager of safety and ecology for Towmotor Corporation, the manufacturer of the forklift in question. He had been senior sales engineer for Towmotor from 1971 to 1981. His affidavit read in part:

Furthermore, I am aware of and have inspected as part of my professional responsibilities the forklifts of competitors in the marketplace. I have inspected and reviewed other forklifts, similarly sized to the Model T50B forklift involved in this lawsuit. Similarly sized forklifts are those with a lifting capacity between 2,000 to 5,500 lbs. The T50B forklift, including the carriage, forks and mounting arrangement, would pass without objection in the trade. Particularly, the fork mounting arrangement, wherein the forks are mounted on the carriage, is the standard hook-carriage design concept that is approved and used not only on TOWMOTOR forklifts, but it has been approved and used by all manufacturers of similarly sized forklifts throughout the world. This standardized hook-carriage design permits the free interchange of attachments among forklift manufacturers. The hook carriage arrangement was utilized during 1974 at the time of manufacture of this particular forklift and continues to be utilized at the present, worldwide.

In a breach of warranty action for personal injuries as a result of a defect in a product, the plaintiff must establish that the product in question was not merchantable or fit for the purpose for which it was intended on the date of delivery, or in other words at time of manufacture of the product. Ford Motor Co. v. Tidwell, 563 S.W.2d 831, 835 (Tex.Civ.App.--El Paso 1978, writ ref'd n.r.e.); TEX.BUS. & COM.CODE ANN. sec. 2.314 (Vernon 1968). The question we have to answer is whether the summary judgment proof raised a fact issue as to whether or not the forklift was fit for the purposes for which it was intended at the time it left the manufacturer's possession. As was said by the 5th Circuit Court of Appeals, "[t]o recover from a manufacturer on a theory of implied warranty under Texas law, one must establish that there is a defect in the object sold as it left the manufacturer ... The defect may be one of design, material, or manufacture." Clark v. DeLaval Separator Corp., 639 F.2d 1320, 1326 (5th Cir.1981). We hold that the summary judgment evidence did not raise a fact issue on the question of whether the forklift was fit for the purpose for which it was intended at the time it left the manufacturer, Towmotor Corporation, on February 18, 1974.

In determining the correctness of a summary judgment, we must decide if 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 plaintiff's cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970). The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Wilcox v. St. Mary's University, 531 S.W.2d 589, 593 (Tex.1975).

In considering the summary judgment proof on the issue of alleged breach of implied warranty of merchantability, which we have set out in this opinion, it is clear that this proof did not contain any legitimate, probative evidence of a defect or flaw in the design, material or manufacture of the forklift when it left the possession of the manufacturer, Towmotor, on February 18, 1974. The testimony of Thomas R. Lajeunesse, an interested expert witness, is clear, positive and direct that the forklift, including the carriage, forks and mounting arrangement, was fit for the purpose for which it was to be used when it left the manufacturer and that the carriage, forks and mounting arrangement is used by all manufacturers of similarly sized forklifts throughout the world. Fitzgerald admitted that the forklift and blade in question were basically the same as other forklifts he had examined, and that its blade assembly would pass as standard in the industry. We fail to see how even appellant's own testimony can be said to raise a fact issue as to the existence of a breach of implied warranty of the forklift at the time it left the manufacturer.

Moreover, we do not think the lay testimony of Fitzgerald, admittedly not an engineer or an expert in forklift or forklift blade assembly design, could raise a fact issue as to the design, material or manufacture of a complicated piece of machinery such as a forklift. Appellant's testimony was incompetent to raise a fact issue on this matter and was probably totally rejected by the trial court in its consideration of the state of the evidence for...