Kindred v. Con/Chem, Inc.

Decision Date11 May 1983
Docket NumberNo. C-1739,C-1739
Citation650 S.W.2d 61
PartiesWilliam C. KINDRED and Ernest J. Kurtz, Petitioners, v. CON/CHEM, INC., Respondent.
CourtTexas Supreme Court

Cornelius, Powell & Smithers, Michael B. Smithers, New Braunfels, for petitioners.

Cullen, Carsner, Seerden and Williams, Kevin D. Cullen, Victoria, for respondent.

POPE, Chief Justice.

This is a products liability case in which the plaintiffs William C. Kindred and Ernest J. Kurtz pleaded strict liability on both a design defect theory and a marketing defect theory. The trial judge submitted special issues only on the marketing defect. After the jury answered the special issues on marketing defect in the negative, the trial court rendered a take nothing judgment. The court of appeals affirmed. 644 S.W.2d 828 (Tex.App.--Corpus Christi 1982). We reverse the judgment of the court of appeals and remand the cause to the trial court for a new trial.

A representative of Con/Chem, Inc. visited Spoetzl Brewery, Inc. in Shiner, Texas, and recommended the use of his company's paint for the inside of the beer storage tanks. Spoetzl had problems with the paint because it would not adhere. The Con/Chem representative had Spoetzl send paint samples. Con/Chem then recommended that Spoetzl use their primer, Cono/Prime X, prior to applying the paint. Cono/Prime X is the product alleged to be defective.

Plaintiffs Kindred and Kurtz were employed by Spoetzl as maintenance workers. On April 28, 1977 the two men were working inside one of Spoetzl's cylindrical storage tanks. The only openings in the tank were a two-inch valve at the top and a "manhole" at the bottom.

The two men sandblasted, vacuumed and wiped the inside surface of the tank and had been applying the primer for approximately 20 minutes when a fire started. The men had to pass through the fire to exit. They sustained serious burns to their arms, legs, hands and faces.

The record showed that Cono/Prime X has a flash point of 53 degrees Fahrenheit, which means that in the presence of oxygen and an ignition source the material would burn when warmed to approximately 53 degrees. The evidence showed that the temperature in the room containing the tank was about 48 degrees and that the temperature inside the tanks was about 50 degrees. None of the witnesses could identify the exact ignition source.

Kindred and Kurtz alleged (1) a marketing defect involving the failure to adequately warn of the dangers of using the product and (2) a design defect rendering the product unreasonably dangerous. They requested special issues on both alleged defects, and they tendered issues to the trial court in substantially correct form. However, the trial court allowed the submission of special issues only on the failure to warn. The jury answered those issues in favor of Con/Chem. The trial court then rendered a take nothing judgment against Kindred and Kurtz. The court of appeals affirmed, holding that Kurtz and Kindred failed to present more than a scintilla of evidence on defective design, and therefore the trial court properly refused to submit the issues on design defect. Kindred and Kurtz present a single point of error in which they claim that they presented some evidence to support their requested special issues on design defect. We agree.

In Turner v. General Motors Corp., 584 S.W.2d 844, 847 (Tex.1979) we stated a test for determining design defect. That test requires balancing the utility of the product against the risks involved in its use in order to find that the design is unreasonably dangerous. The next year in Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743 (Tex.1980), we stated,

The jury may consider many factors before deciding whether a product's usefulness or desirability are outweighed by its risks. Their finding on defectiveness may be influenced by evidence of a safer design that would have prevented the injury. [Citations omitted.] Because defectiveness of the product in question is determined in relation to safer alternatives, the fact that its risks could be diminished easily or cheaply may greatly influence the outcome of the case.

... This feasibility is a relative, not an absolute, concept; the more scientifically and economically feasible the alternative was, the more likely that a jury may find that the product was defectively designed. A plaintiff may advance the argument that a safer alternative was feasible with evidence that it was in actual use or was available at the time of manufacture. Feasibility may also be shown with evidence of the scientific and economic capacity to develop the safer alternative.

Id. at 746.

In attempting to meet this test, Kindred and Kurtz offered the expert testimony of Dr. Key, an environmental chemist. Dr. Key testified that using Cono/Prime X inside the storage tank, as Con/Chem had recommended, created a "very dangerous" situation. Dr. Key also testified that Cono/Prime X consisted of five percent ethanol, ninety percent isopropyl alcohol, and five percent silane. He explained that the ethanol and alcohol, ninety-five percent of the product, constituted the "carrier" which gave the needed fluidity for application and which evaporated in a process called polymerization. Dr. Key testified that the "carrie...

To continue reading

Request your trial
1245 cases
  • Formosa Plastics Corp. USA v. Presidio Engineers and Contractors, Inc., 95-1291
    • United States
    • Supreme Court of Texas
    • 13 Marzo 1998
    ...... It is only when reasonable minds cannot differ that evidence lacks probative force that it is "no evidence." See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). Like all cases where this Court considers the legal sufficiency of the evidence, we must consider ......
  • In re L.M.I., 02-0244.
    • United States
    • Supreme Court of Texas
    • 18 Septiembre 2003
    ......Brewer & Pritchard, P.C., 73 S.W.3d 193, 210 (Tex.2002) (quoting Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 & n. 3 (Tex.1993) (citing Kindred v. Con/Chem, Inc., 650 S.W.2d ......
  • Vinson & Elkins v. Moran
    • United States
    • Court of Appeals of Texas
    • 27 Marzo 1997
    ...... was original plaintiff who was unable to collect against original defendant); Picadilly, Inc. v. Raikos, 582 N.E.2d 338, 339-45 (Ind.1991) (same); Thurston v. Continental Casualty Co., 567 ... Page 403 . and is no evidence. Kindred v. Con/Chem., 650 S.W.2d 61, 63 (Tex.1983). .         If there is some evidence to support ......
  • Formosa Plastics Corp. v. Kajima Intern.
    • United States
    • Court of Appeals of Texas
    • 28 Diciembre 2006
    ... . 216 S.W.3d 436 . FORMOSA PLASTICS CORP., USA, Appellant, . v. . KAJIMA INTERNATIONAL, INC., Appellee. . No. 13-02-00385-CV. . Court of Appeals of Texas, Corpus Christi-Edinburg. . ... is so weak as to do no more than create a mere surmise or suspicion of its existence." Kindred v. Con/Chem., Inc., 650 S.W.2d 61, 63 (Tex.1983). Conversely, more than a scintilla exists when ......
  • Request a trial to view additional results
7 books & journal articles
  • CHAPTER 2 Standards of Review and Scope of Review
    • United States
    • Full Court Press Practitioner's Guide to Civil Appeals in Texas
    • Invalid date
    ...(citing cases relying on Calvert article).[323] Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).[324] Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (quoting Burroughs Wllcome Co. v. Crye, 907 S.W.2d ......
  • Summary judgment practice
    • United States
    • James Publishing Practical Law Books Texas Employment Law. Volume 1 Part VIII. Selected litigation issues
    • 5 Mayo 2018
    ...of evidence exists when the evidence is “so weak as to do no more than create mere surmise or suspicion.” Kindred v. Con/Chem, Inc. , 650 S.W.2d 61, 63 (Tex. 1983). The U.S. Supreme Court has elaborated on the meaning of the phrase “genuine issue of material fact” in the federal system. Acc......
  • Summary Judgment Practice
    • United States
    • James Publishing Practical Law Books Archive Texas Employment Law. Volume 2 - 2014 Part VIII. Selected litigation issues
    • 16 Agosto 2014
    ...of evidence exists when the evidence is “so weak as to do no more than create mere surmise or suspicion.” Kindred v. Con/ Chem, Inc. , 650 S.W.2d 61, 63 (Tex. 1983). The U.S. Supreme Court has elaborated on the meaning of the phrase “genuine issue of material fact” in the federal system. Ac......
  • Table of cases
    • United States
    • James Publishing Practical Law Books Archive Texas Employment Law. Volume 2 - 2014 Part VIII. Selected litigation issues
    • 16 Agosto 2014
    ...20-1 Kinchelow v. Robinson Property Group L.P ., 4 Wage & Hour Cas. 2d (BNA) 987 (N.D. Miss. 1998), App. 25-2 Kindred v. Con/Chem, Inc. , 650 S.W.2d 61 (Tex. 1983), §41:2.B.2 King v. Ames , 179 F.3d 370 (5th Cir. 1999), §28:2.A.3.d King v. Dogan , 31 F.3d 344 (5th Cir. 1994), §41:4.A King v......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT