Keen v. Ashot Ashkelon, Ltd.

• Decision Date: 10 February 1988
• Docket Number: No. C-5392,C-5392
• Citation: 748 S.W.2d 91
• Parties: Prod.Liab.Rep. (CCH) P 11,665 Daryel KEEN, et ux., Petitioners, v. ASHOT ASHKELON, LTD., et al., Respondents.
• Court: Texas Supreme Court

Page 91

748 S.W.2d 91

Prod.Liab.Rep. (CCH) P 11,665

Daryel KEEN, et ux., Petitioners, v. ASHOT ASHKELON, LTD., et al., Respondents.

No. C-5392.

Supreme Court of Texas.

Feb. 10, 1988.

Rehearing Denied April 20, 1988.

Carl Dudensing and Gary B. Webb, Dudensing & Webb, Houston, for petitioners.

Larry W. Wise, Martinec, Hargadon & Wise, Austin, Frank M. Bean and Andrew T. McKinney, Bean & Manning, Houston, for respondents.

OPINION

MAUZY, Justice.

This is a products liability case. Daryel Keen sued to recover for personal injuries he sustained when a trailer fell over onto the hostler he was driving. The trial court disregarded the jury's answers to issues that found Keen contributorily negligent and rendered judgment in Keen's favor for the full amount of the jury verdict. The court of appeals reversed the trial court's judgment and rendered judgment reducing Keen's damages in accordance with the contributory negligence finding. 709 S.W.2d 292. Because Keen's contributory negligence constituted a failure to guard against a product defect, we reverse the judgment of the court of appeals and affirm that of the trial court.

Daryel Keen was a hostler driver for Santa Fe Transportation Company. A "hostler" is a motorized vehicle used for pulling loaded trailers from one off-road location to another. When unattached to a truck, these trailers are supported in the front by their "dolly legs." Each "dolly leg" is afforded ground support and stability by a "sand shoe."

Keen and a co-worker, Sam Moody, were relocating two loaded trailers in the Santa Fe yard. The plan was to position the trailers, one in front of the other with Moody's in the rear. Moody settled his trailer first and began to disengage. Keen pulled his hostler alongside Moody's trailer. Shortly after Moody disengaged his hostler, the loaded trailer sitting on its dolly legs fell over on Keen's hostler and injured him.

Keen sued Ashot Ashkelon which manufactured the sand shoe and Strick Corporation which manufactured and assembled the trailer. Keen also sued the company that loaded the trailer, Arsham Metals. The case was submitted to the jury on issues of negligence and strict liability. The jury refused to find Arsham Metals negligent in the manner in which it loaded the trailer. Instead the jury found that the sand shoe was defective and found Ashot and Strick liable on the theory of products liability. The jury also answered "yes" to the following contributory negligence issue:

Special Issue No. 7

Do you find from a preponderance of the evidence that on the occasion in question Daryel Keen moved his hostling tractor beside the trailer-chassis combination when it would not have appeared to a person using ordinary care that such movement could be made with safety?

The jury then found that Keen's negligence was a proximate cause of the occurrence and contributed 50% to cause his injuries. The trial court disregarded these contributory negligence findings and rendered judgment in favor of Keen for the full amount of the jury verdict.

The question before this court is what was the nature of Keen's negligent conduct. In Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984), this court adopted a system of comparative causation for apportioning accident costs. Although the changes wrought by Duncan were broad in scope, the opinion expressly noted an important rule that did not change. Duncan reaffirmed the rule of § 402A comment n of the Restatement (Second) of Torts that a negligent failure to discover or guard against a product defect is not a defense against strict liability. Thus, if Keen's conduct constituted a failure to discover or guard against a product defect, it is not a defense against the strict liability of Ashot and Strick.

The court of appeals reasoned that there was sufficient evidence from which a jury could conclude that Keen's conduct amounted to placing himself voluntarily in harm's way. Thereby, the court decided that Keen's conduct did not constitute a failure to guard against a product defect but instead fell within the category of conduct recognized as a defense under Duncan. We disagree with the court of appeals' decision.

What the evidence in this case shows is that Keen knew of the risk that trailers could sometimes fall. It was common for trailers to lean; and it was a recognized safety rule not to pull alongside a trailer in motion or one in the disengagement process. However, what Keen did not know was that this particular trailer had a defective sand shoe. As the jury found the facts, the trailer did not fall because of an unbalanced load but instead fell because the sand shoe was defective. Thus, Keen had no knowledge of the dangerous condition that caused the accident.

In Duncan, we cited as ongoing authority the case of McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967). That case provides us with an example of the distinction between a failure to guard against a defect and a voluntary encounter of a known danger. Ellen McKisson, a beauty operator, had one of her employees apply a permanent wave solution to her own bleached hair. The wave solution was defective because it contained a high concentration of thioglycolic acid, a depilatory. The jury found that the solution was not reasonably fit for the purpose of giving permanent waves. However, the jury also found that McKisson was negligent because "a reasonably prudent beauty operator in the exercise of ordinary care would have known that the wave lotion should not be applied to bleached hair." Faced with these jury findings, this court nevertheless determined that McKisson's negligence was in the nature of a failure to discover or guard against a product defect and disallowed it as a defense.

Thus, McKisson took a general risk by applying the wave solution to bleached hair; she knew that ordinarily a different formula was used for bleached than for unbleached hair. However, she did not know of the particular danger that actually caused the accident--i.e. the fact that the solution was not fit for the purpose of giving permanent waves to anyone. Likewise, Keen took a general risk by pulling his hostler beside the trailer, but he did not know of the particular danger that caused the accident.

Keen's contributory negligence amounted to getting too close to a product which turned out to be defective. Because the nature of Keen's negligence was a failure to guard against a defective product, it cannot be used as a defense to reduce the amount of Keen's damage award. As we noted in Duncan when we reaffirmed this rule, consumers have a right to rely on product safety. We therefore hold that the trial court properly disregarded the jury's contributory negligence findings.

Ashot Ashkelon has also filed an application. It contends that, as an Israeli entity, it lacked the necessary "minimum contacts" to make it amenable to the jurisdiction of Texas courts. ¹ "Minimum contacts" remains the touchstone for deciding whether a state's exercise of personal jurisdiction over a nonresident defendant comports with due process. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (plurality opinion). A defendant's delivering of its product into the stream of commerce with the expectation that the product will enter the forum state will ordinarily satisfy the due process requirement of minimum contacts so as to afford that state personal jurisdiction over the defendant. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984); see also Oswalt v. Scripto, Inc., 616 F.2d 191 (5th Cir.1980); Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199 (Tex.1985).

In this case, Ashot's representative testified at the special appearance hearing that he did anticipate that the product might be used anywhere in the United States after being assembled as part of a trailer. ² Moreover, he admitted that he did not know anything about the contract negotiations between Strick Corporation and Ashot and that he did not even know where the contract was signed.

We conclude that Ashot delivered its product into the stream of commerce with a "reasonable expectation" that its product would enter Texas and that Ashot failed to meet its burden of negating all bases of personal jurisdiction. See Oswalt, 616 F.2d at 201; Kawasaki Steel, 699 S.W.2d at 203. Therefore, Ashot Ashkelon is amenable to the jurisdiction of Texas courts for the purposes of this lawsuit.

We have also considered the other points of error presented in Ashot's application and conclude that they are without merit. We reverse the judgment of the court of appeals and affirm that of the trial court.

PHILLIPS, C.J., joined by WALLACE, J., dissent with opinion.

GONZALEZ, J., dissents with opinion.

CULVER, J., not sitting.

ON MOTION FOR REHEARING

PHILLIPS, Chief Justice, dissenting.

My concurring opinion of February 10, 1988, is withdrawn, and the following dissenting opinion is substituted.

By holding that Keen's admitted negligence is irrelevant merely because he "had no knowledge of the dangerous condition that caused the accident," the majority comes perilously close to requiring a defendant to prove assumption of the risk in order for plaintiff's conduct to be considered. Such an approach violates the language and spirit of Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984); cf. First International Bank v. Roper Corp., 686 S.W.2d 602, 603 (Tex 1985). Under Duncan, I believe that Keen's negligent conduct was more than a mere failure to discover or guard against a product defect. Therefore such conduct was properly considered by the finder of fact, and the judgment of the court of appeals should be affirmed.

Regardless of the result we reach in this case, however, I would change the law prospectively in one fundamental respect. I would abandon any further...