Lopez v. Aro Corp.

• Citation: 584 S.W.2d 333
• Decision Date: 13 June 1979
• Docket Number: No. 16194,16194
• Parties: John Joe LOPEZ, Appellant, v. The ARO CORPORATION, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 333

584 S.W.2d 333

John Joe LOPEZ, Appellant, v. The ARO CORPORATION, Appellee.

No. 16194.

Court of Civil Appeals of Texas, San Antonio.

June 13, 1979.

Rehearing Denied July 25, 1979.

Richard Warren Mithoff, Jr., Nat B. King, Jamail & Kolius, Houston, for appellant.

Melvin A. Krenek, Beckman, STanard & Olson, San Antonio, for appellee.

OPINION

MURRAY, Justice.

This is a products liability case. John Joe Lopez, appellant, was injured when a grinding wheel on a sander-grinder manufactured by Aro Corporation, appellee, shattered and flew apart causing a piece of the wheel to become imbedded in appellant's right leg. Appellant based his cause of action on strict liability in tort alleging that appellee failed to provide an adequate warning to the user of the danger of using the tool as a grinder without a guard.

Trial was to a jury, and based on the answers to special issues, the court entered judgment for appellee. Special Issue No. 2, which the jury answered "we do not," reads as follows:

Do you find from a preponderance of the evidence that the Aro Corporation failed to provide an adequate warning to users of the tool as a grinder of the danger of using the same without a guard?

The jury also found that appellant voluntarily assumed the risk of using the tool as a grinder without a guard.

The evidence shows that the sander-grinder, which is powered by air pressure, is made and sold by appellee as an industrial tool to be utilized in a factory or assembly line. It was made to be used as both a sander and a grinder. When the tool was used as a sander, no guard was necessary, but when used as a grinder, a guard was necessary to protect the operator. This sander-grinder had been shipped accompanied by a safety guard and an operator's manual, which stated on page two under the heading "When Used as a Grinder: The tool should never be operated with guard removed." This statement was conspicuously underlined in the operator's manual.

The sander-grinder in question was manufactured on October 19, 1970, sold to Swing Machinery & Equipment Company, Inc., on November 10, 1970, and subsequently resold by Swing Machinery & Equipment Company to Construction Modules, Inc., appellant's employer at the time in question.

Appellee's representative, Mr. R. Stanford Short, an engineer with 25 years of experience in the air tool industry, testified that there was no warning of any kind of the sander-grinder itself and that in 1970 no other manufacturer of similar tools attached to the tool itself a warning to use a safety guard. He further testified that any such warning attached to the tool itself would not likely endure long because of the heavy, dirty use made of such tools and that when this tool was designed and manufactured, all manufacturers of grinding wheels attached to each wheel a warning to use a safety guard so that no grinder would be operated without this warning being present.

On the morning of July 13, 1972, a fellow workman took the sander-grinder to the tool room and had a new grinding wheel put on the machine. This workman brought the tool back to the work area and connected it to an air hose. He then put the tool down and walked away to the other side of the work area to a tool box. Appellant picked the tool up and began grinding some metal walls with it when water started coming out of the tool. He then squatted down and turned it on full speed to get the water out, and the grinding wheel exploded. Appellant testified that the sander-grinder that he was using was pretty dirty because oil, dust, and concrete had accumulated on the machine.

Appellant's first point of error contends that the trial court erred in entering judgment for appellee based on the jury's answer to Special Issue No. 2 that appellee did not fail to provide an adequate warning to the user of the dangers of using the tool as a grinder without a guard because the evidence established this finding as a matter of law. Appellant argues that appellee not only had a duty to warn the ultimate user, but also had a duty to warn of the dangers of using the tool as a grinder without a guard. Appellant contends that Mr. Short, appellee's representative, judicially admitted both the former duty since there was no warning on the sander-grinder itself and the latter duty since these dangers were not specified in the operator's manual or directed to the ultimate user in any way. Alternatively, appellant argues in his second point of error that the trial court erred in overruling his motion for new trial because the jury's answer to Special Issue No. 2 is contrary to these judicial admissions and is therefore against the great weight and preponderance of the evidence.

Appellant's cause of action is based on the doctrine of strict liability in tort as enunciated by Section 402A of the Second Restatement of Torts. ¹ Texas has adopted this doctrine of products liability expressed in Section 402A. Crocker v. Winthrop Laboratories, 514 S.W.2d 429 (Tex.1974); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967); Shamrock Fuel & Oil Sales Co. v. Tunks, 416 S.W.2d 779 (Tex.1967). Under this doctrine, a seller who places in commerce a product rendered dangerous to life or limb by reason of some defect is strictly liable in tort to one who sustains injury because of the defective condition. Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.1969). Therefore, a seller under Section 402A has a duty to refrain from placing a product into the stream of trade in a defective condition unreasonably dangerous to the ultimate user. Green, Strict Liability Under Sections 402A and 402B: A Decade of Litigation, 54 Texas L.Rev. 1185, 1212 (1976). This duty has been expanded to subject a seller to liability if he introduces an unreasonably dangerous, though nondefective, product into the stream of trade without adequate warning of its danger or without adequate directions for its use. Hamilton v. Motor Coach Industries, Inc., 569 S.W.2d 571, 575 (Tex.Civ.App. Texarkana 1978, no writ); Green, Supra, at 1200. Thus, a seller is strictly liable, even though its product is faultlessly manufactured and designed, if the product as marketed is unreasonably dangerous or likely to harm the user unless properly used. In such a case, the product would be in a "defective condition unreasonable dangerous" by virtue of the absence of an adequate warning. See Martinez v. Dixie Carriers, Inc., 529 F.2d 457, 465 (5th Cir. 1976); Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1275 (5th Cir.), Cert. denied, 419 U.S. 1096, 95 S.Ct. 687, 42 L.Ed.2d 688 (1974); Restatement (Second) of Torts § 402A, Comments h & j (1965).

A product is unreasonably dangerous if an ordinary man, knowing the risks and dangers actually involved in its use, would not have marketed the product without supplying warnings about the risks and dangers involved in using the product as well as instructions on how to avoid those risks and dangers. Technical Chemical Co. v. Jacobs, 480 S.W.2d 602 (Tex.1972); Keeton, Products Liability Inadequacy of Information, 48 Texas L.Rev. 398 (1970). If a seller knows or should know of potential harm to a user because of the nature of its product, the seller is required to give adequate warnings of such danger. Bristol-Myers Company v. Gonzales, 561 S.W.2d 801 (Tex.1978). This duty to warn extends to the employee-user as well as the employer-purchaser. Helicoid Gage Division of American Chain & Cable Co. v. Howell, 511 S.W.2d 573, 577 (Tex.Civ.App. Houston (14th Dist.) 1974, writ ref'd n. r. e.). Accord, Borel v. Fibreboard Paper Products Corporation, 493 F.2d 1076, 1091 (5th Cir. 1973), Cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974); Sales & Perdue, The Law of Strict Tort Liability in Texas, 14 Hous.L.Rev. 1, 129-130 (1976-77). In this case, it is undisputed that appellee knew that the use of the sander-grinder as a grinder without the guard was potentially harmful to the user. Thus, Aro Corporation, the Seller, owed a duty to Lopez, the user, to give adequate warnings of the risks and dangers of using the tool as a grinder without a guard. The only question here is whether Aro Corporation violated this duty by not supplying adequate warnings. We believe that the adequacy of the warning presents a fact question for the jury's determination. Bituminous Casualty Corp. v. Black & Decker Manufacturing Co., 518 S.W.2d 868 (Tex.Civ.App. Dallas 1974, writ ref'd n. r. e.); Muncy v. Magnolia Chemical Co., 437 S.W.2d 15 (Tex.Civ.App. Amarillo 1968, writ ref'd n. r. e.); Green, Supra, at 1211. "Whether a warning is legally sufficient depends upon the language used and the impression that such language is calculated to make upon the minds of the users of the product." Green, Supra, at 1211.

In Bituminous Casualty Corp. v. Black & Decker Manufacturing Co., plaintiff was injured when a grinding wheel shattered and flew apart. Plaintiff contended that the warning given was legally inadequate. At the time of the injury plaintiff was...