Fulgham v. Ffe Transp. Services, Inc.

• Decision Date: 07 August 2002
• Docket Number: No. 05-01-01040-CV.,05-01-01040-CV.
• Citation: 152 S.W.3d 140
• Parties: Larry FULGHAM and Debra Fulgham, Appellants, v. FFE TRANSPORTATION SERVICES, INC., Appellee.
• Court: Texas Court of Appeals

152 S.W.3d 140

Larry FULGHAM and Debra Fulgham, Appellants, v. FFE TRANSPORTATION SERVICES, INC., Appellee.

No. 05-01-01040-CV.

Court of Appeals of Texas, Dallas.

August 7, 2002.

Rehearing Overruled October 7, 2002.

Kenneth W. Fuqua, Fuqua, Hudnall & Gappelberg, L.L.P., Dallas, for appellants.

David L. Sargent, Monte K. Hurst, Thad D. Spalding, Hermes, Sargent & Bates, L.L.P., Dallas, for

Before Justices JAMES, FARRIS,¹ and ROSENBERG.²

OPINION

Opinion by Justice BARBARA ROSENBERG (Assigned).

In four issues, Larry and Debra Fulgham (the Fulghams) appeal a directed verdict on their negligence and product liability claims against FFE Transportation Services, Inc. (FFE). Because expert testimony is not necessary to establish negligence and there is some evidence of the elements of duty, breach, and causation and because there is some evidence of a lease between FFE and Larry, we reverse the trial court's judgment and remand both claims for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Larry Fulgham is a long haul trucker. Larry and FFE had an agreement whereby Larry furnished his tractor to transport products in FFE's trailers. The tractor and the trailer were connected by means of the trailer's kingpin that locked into the tractor's fifth wheel. The kingpin was part of the upper coupler assembly that was bolted to the base rail of the trailer. In March 1998, Larry was driving a load for FFE through Kentucky. As he exited an interstate highway on a curved ramp, the upper coupler assembly broke loose from the trailer, causing the trailer to break loose from the tractor and overturn. Larry lost control of the tractor, and it overturned, too, injuring him. The Fulghams' theory of the accident was that the bolts holding the upper coupler assembly to the base rail of the trailer were rusty and broke.

The Fulghams sued FFE³ for negligence, alleging that FFE failed to timely and properly inspect, maintain, and service the trailer, particularly the upper coupler assembly, and failed to warn Larry of the unsafe condition of the trailer, particularly the upper coupler assembly. The Fulghams also alleged that the trailer was defective because the bolts and plates anchoring the upper coupler assembly to the trailer were weak due to rust and other deterioration and that FFE was liable for a defective product. Larry claimed damages for pain and suffering, physical impairment, and mental anguish; loss of past and future income and future earning capacity; and loss of the tractor and home due to inability to make payments from loss of income. Debra sought recovery for loss of consortium, lost wages, and loss of Larry's household services.

This case was tried to a jury. The trial court stated that expert testimony was required to establish the standard of care. FFE moved for directed verdict on grounds that there was no evidence of duty, breach, and causation of the negligence claim, and, as to the product liability claim, there was no evidence that FFE placed the trailer into the stream of commerce. The trial court granted the motion and entered a take nothing judgment against the Fulghams. This appeal followed.

STANDARD OF REVIEW

In reviewing the granting of a directed verdict, we must determine whether there is any evidence of probative force to raise a fact issue on the material questions presented. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994) (per curiam). We consider all the evidence in a light most favorable to the party against whom the verdict was directed and disregard all contrary evidence and inferences; we give the losing party the benefit of all reasonable inferences created by the evidence. Id. If there is any conflicting evidence of probative value on a theory of recovery, a directed verdict is improper, and the case must be reversed and remanded for jury determination of that issue. Id.

Negligence

In their second issue, the Fulghams contend the trial court erred in granting a directed verdict on their negligence claim. Specifically, the Fulghams contend the trial court erred in finding that expert testimony was required to establish FFE's duty and that there was no evidence on the challenged elements of their claim.

Applicable Law

To establish negligence, a plaintiff must show (1) the defendant owed a legal duty to the plaintiff and breached that duty, and (2) damages proximately resulting from the breach. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). Whether a legal duty exists is a threshold question of law for the court to decide from the facts surrounding the occurrence in question. Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex.1999). One who voluntarily undertakes an affirmative course of action for the benefit of another has a duty to exercise reasonable care that the other's person or property will not be injured thereby. Rudolph v. ABC Pest Control, Inc., 763 S.W.2d 930, 933 (Tex.App.-San Antonio 1989, writ denied) (citing Colonial Sav. Ass'n v. Taylor, 544 S.W.2d 116, 119 (Tex.1976) and Restatement (Second) of Torts § 323 (1965)). Expert testimony is necessary when the alleged negligence is of such a nature as not to be within the experience of the layman. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982).

The Fulghams alleged that FFE had a duty to inspect the trailer's upper coupler assembly and sought to prove that failure to detect rusty bolts in the inspection caused the accident. The Fulghams contend that expert testimony on the duty element was not necessary because inspecting a trailer for loose bolts and rust is within the common understanding of laypersons. The Fulghams argue that this case is similar to the detection and repair of a deteriorating pipeline in Scurlock Oil Co. v. Harrell, 443 S.W.2d 334, 337 (Tex.Civ.App.-Austin 1969, writ ref'd n.r.e.). There, the court determined that because the owner of a pipeline had the duty of ordinary care to "protect people and property in the vicinity of the line from the types of harm ordinarily resulting from such line, ... it has a duty to properly install and maintain its lines and to avoid dangers from occurrences such as leaks and breaks in the line." Id."A pipe that has deteriorated to a point where it will no longer contain the liquid that it was meant to contain is not a fact so peculiar to a specialized industry that the defect can only be established through expert testimony." Id. We conclude that the inspection and detection of loose and rusty bolts connecting parts of a trailer is not a "fact so peculiar to a specialized industry" and is within the experience of a layperson, like a leaking pipe. See id.; cf. Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738 (Tex.App.-Amarillo 1999, pet. denied) (op. on reh'g) (concluding negligence of an aircraft turbine engine mechanic requires expert testimony because "[t]he performance of mechanical work on turbine aircraft engines is not within the experience of a layman"); Hager v. Romines, 913 S.W.2d 733, 734-35 (Tex.App.-Fort Worth 1995, no writ) (concluding aerial application of herbicide must be established by expert testimony because "[n]ot only is flying an airplane not within the realm of experience of the ordinary, prudent person or juror, ..., applying herbicide and pesticide aerially requires use of specialized equipment and techniques that are not familiar to the ordinary person"). Thus, expert testimony was not required to establish negligence.

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