Nester v. Textron, Inc.
| Decision Date | 22 December 2015 |
| Docket Number | No. 1:13-CV-920-DAE,1:13-CV-920-DAE |
| Parties | VIRGINIA NESTER and ROBERT SCOTT NESTER, individually and as next friends of C.N. and S.N., minors, Plaintiffs, v. TEXTRON, INC. d/b/a E-Z-GO, Defendant. |
| Court | U.S. District Court — Western District of Texas |
Before the Court is an Amended Motion for Summary Judgment filed by Textron, Inc. d/b/a E-Z-GO ("Textron"). (Dkt. # 103.) The Court held a hearing on the Motion on December 14, 2015. At the hearing, Dale Markland, Esq., represented Textron, and Sean Breen, Esq. represented Plaintiffs. After careful consideration of the supporting and opposing memoranda and the arguments presented at the hearing, the Court, for the reasons that follow GRANTS IN PART AND DENIES IN PART Textron's Amended Motion for Summary Judgment.
Plaintiffs Virginia and Scott Nester (collectively, "Plaintiffs"), purchased a used E-Z-GO Workhorse ST350 ("Workhorse"), a utility vehicle, on January 20, 2005. (Dkt. # 124-33, Ex. 31.) The Workhorse is a golf cart-like vehicle that uses the ignition and braking systems found on many golf carts. The ignition switch, operated using a key, turns on the vehicle's electrical system. ("Newbold Rpt.," Dkt. # 124-9, Ex. B at 5.) The engine does not start until the accelerator is depressed, and releasing the accelerator turns off the engine. (Id.) Additionally, the Workhorse uses a "kick-off" brake system in which the parking brake is physically linked to the accelerator pedal such that depressing the accelerator automatically releases the parking brake. (Id. at 6; "Fisher Dep. 1," Dkt. # 124-2, Ex. 1 at 63:6-13; "Service Manual," Dkt. # 124-5, Ex. 4.)
On December 5, 2005, Plaintiff Virginia Nester ("Mrs. Nester") loaded a 50-pound bag of cattle cubes onto the passenger-side floorboard of the Workhorse. ("Virginia Nester Dep. 1," Dkt. # 124-29, Ex. 27 at 6:7-10, 42:24-45-19; "Scott Nester Dep.," Dkt. # 124-30, Ex. 28 at 40:25-41:4.) She then drove the Workhorse into the pastures on Plaintiffs' ranch to feed the cattle and move them from one field to another. ("Virginia Nester Dep. 2," Dkt. # 124-31, Ex. 29 at 220:16-221:1.) While driving through the fields, Mrs. Nester sounded the Workhorse's horn to call the cattle. (Virginia Nester Dep. 1 at 63:13-21,67:25-68:3.) Upon approaching a gate separating two fields, she stopped the Workhorse a few feet from the gate, applied the parking brake, and exited the vehicle to open the gate. (Id. 70:10-71:19.) Mrs. Nester did not turn the key to the "off" position before exiting the vehicle. (Id. 70:17-20.)
While Mrs. Nester was walking to open the gate, the bag of cattle cubes fell onto the Workhorse's accelerator pedal, releasing the parking brake and causing the Workhorse to accelerate forward. (Newbold Rpt. at 7-8.) The vehicle struck Mrs. Nester, whose back was turned while opening the gate, knocking her to the ground and running her over. (Virginia Nester Dep. 1 at 74:12-78:21; Virginia Nester Dep. 2 at 221:7-17.) Mrs. Nester was unable to move or call for help until her husband found her more than an hour later. (Virginia Nester Dep. 2 at 221:14-222:17.) Mrs. Nester suffered fractures of vertebrae in her neck, which required two surgeries to repair. (Virginia Nester Dep. 1 at 110:7-15.) Her injuries have rendered her quadriplegic and in need of constant medical care. (Id. 117:3-120:18; Virginia Nester Dep. 2 at 228:2-233:7.)
Plaintiffs filed suit in this Court on October 17, 2013, invoking the Court's diversity jurisdiction. (Dkt. # 1.) On January 16, 2015, Plaintiffs filed an Amended Complaint against Textron alleging claims for design and marketing defects, negligence, gross negligence, breach of warranty, duty to recall, and res ipsa loquitor. (Dkt. # 37 ¶¶ 88-114.)
Textron filed the instant Amended Motion for Summary Judgment on August 7, 2015. (Dkt. # 103.) Plaintiffs filed a Response on September 1, 2015. ("Resp.," Dkt. # 132.) Textron filed its Reply on September 9, 2015. ("Reply," Dkt. # 135.)
A court must grant summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Meadaa v. K.A.P. Enterprises, L.L.C., 756 F.3d 875, 880 (5th Cir. 2014). "Substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is only genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
In seeking summary judgment, the moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this burden, the nonmoving party must come forward with specific facts that establish the existence of a genuine issue for trial. Distribuidora Mari Jose, S.A. de C.V. v. Transmaritime, Inc., 738 F.3d 703, 706 (5th Cir. 2013) (quoting Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000)). "Where the record taken as awhole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Hillman v. Loga, 697 F.3d 299, 302 (5th Cir. 2012).
In deciding whether a fact issue has been created, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Kevin M. Ehringer Enters. v. McData Servs. Corp., 646 F.3d 321, 326 (5th Cir. 2011) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). However, "[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment." United States v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012) (quoting Brown v. City of Hous., 337 F.3d 539, 541 (5th Cir. 2003)).
Textron has moved for summary judgment on each of Plaintiffs' claims, arguing that it is not liable as a matter of law and that Plaintiffs have failed to set forth sufficient evidence to establish a dispute of material fact as to any of their claims for relief. (Dkt. # 103 at 5-6.) The Court will discuss each of Plaintiffs' claims in turn.
To succeed on a design defect claim, a plaintiff must show that "(1) the product was defectively designed so as to render it unreasonablydangerous; (2) a safer alternative design existed; and (3) the defect was a producing cause of the injury for which plaintiff seeks recovery." Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009); Tex. Civ. Prac. & Rem. Code § 85.002(a).
Textron argues that it established that the Workhorse was not defectively designed as a matter of law, citing generally to the affidavit of expert witness Dr. David Bizzak ("Dr. Bizzak"). (Dkt. # 103 at 8.) The affidavit to which Textron cites states only that "[t]he 2001 E-Z-Go Workhorse cart at issue in this case is not defectively designed, i.e. it is not unreasonably dangerous considering the utility and risk, for the reasons set forth in my expert report." ("Bizzak Aff.," Dkt. # 103-1, Ex. 1 ¶ 3.)
On the other hand, Plaintiffs have submitted sufficient evidence to establish a genuine dispute of fact as to whether the Workhorse was unreasonably dangerous, whether a safer design existed, and whether the defect was a producing cause of the injury.
In determining whether a product is unreasonably dangerous as designed, the factfinder must consider the utility of the product and the risk involved in its use. Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 432 (Tex. 1997). The factors relevant to this determination include:
Id. These "factors are evaluated holistically; no single factor needs to be proven on its own, so long as all factors working together point to a finding of unreasonable dangerousness." Goodner v. Hyundai Motor Co., Ltd., 650 F.3d 1034, 1041 (5th Cir. 2011). Unreasonable dangerousness is generally a question of fact for the jury, and "only becomes a matter of law if reasonable minds cannot differ." Id. (citing Hernandez v. Tokai Corp., 2 S.W.3d 251, 260 (Tex. 1999)).
Plaintiffs have submitted sufficient evidence to establish a genuine dispute of fact as to whether the kick-off brake system renders the Workhorse unreasonably dangerous. Textron has submitted expert testimony that the kick-off brake system prevents wear and damage to the parking brake by preventing an operator from driving the cart while the parking brake is engaged. ("Bizzak Rpt.," Dkt. # 103-1, Ex. 1.B at 7.) Plaintiffs' expert evidence suggests that the kick-offbrake system, which allows inadvertent contact with the accelerator, creates a significant likelihood of severe injury or death. (Newbold Rpt. at 13-14, 26; "Vigilante Rpt.," Dkt. # 124-10, Ex. B at 7-8.) Warnings provided in the owner's manual and the testimony of Textron's corporate representative further indicate that Textron itself recognizes the potential for grave injury resulting from inadvertent operation of the kick-off parking brake system. (Dkt. # 124-7; "Moore Dep.," Dkt. # 124-3 at 102:2-103:1.) For example, the owner's...
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