Ramsey v. Lucky Stores, Inc.

Decision Date18 March 1993
Docket NumberNo. 01-90-00741-CV,01-90-00741-CV
Citation853 S.W.2d 623
PartiesDebra RAMSEY, Individually and as Next Friend of Ranel Justin Ramsey, a Minor, and Sharron Larsen, as Next Friend of Charity Faye Ramsey, Appellants v. LUCKY STORES, INC., d/b/a/ Gemco Stores, Appellee. (1st Dist.)
CourtTexas Court of Appeals

David R. Weiner, Leon R. Russell, Dallas, Robert L. Collins, Daniel Kistler, Houston, for appellants.

Judson R. Wood, Marie R. Yeates, Catherine Bukowski, Sloan Shadow, Mike O'Brien, Houston, for appellee.

Before COHEN, MIRABAL and PRICE *, JJ.

OPINION

PRICE, Justice (Retired).

This is an appeal from a take-nothing judgment based on a jury verdict in a products liability suit involving a lifejacket or personal flotation device (PFD). Appellant Debra Ramsey ("Ramsey"), individually and as next friend of her minor son, Ranel Justin Ramsey, brought suit against Gemco Stores for the death of her husband, Ranel Isaac (Ikey) Ramsey, who died by drowning on March 15, 1981. Appellant Sharron Larsen ("Larsen") intervened in the suit as next friend of Charity Faye Ramsey, daughter of Ikey Ramsey from his previous marriage to Larsen. After a two-week trial involving more than 20 witnesses, the jury returned findings that Gemco sold the PFD; at the time of the sale, Gemco did not fail to give adequate warning of the danger associated with use of the PFD or adequate instructions for safe use of the PFD; and the PFD was not unfit for the ordinary purpose for which it was intended. The jury also found that the negligence of Ikey Ramsey was the cause of his drowning. In answer to all damages issues, the jury found zero damages. The trial court signed a take-nothing judgment on the verdict on May 8, 1990. We affirm.

Appellant Ramsey challenges the judgment in eight points of error; Larsen alleges error in 27 points. Taken together, these points of error claim that the trial court committed reversible error in the following particulars:

The trial court erred in admitting the testimony of Dr. Robert Mecker, Gemco's expert, because Gemco did not supplement Mecker's deposition testimony prior to trial. (Ramsey point 1, Larsen point 23)

The trial court erred in allowing W.W. Roberts, Michael Walker, and W.D. Gilley to testify because Gemco did not include telephone numbers in the information identifying these witnesses. (Ramsey points 2 and 3; Larsen points 24 and 25)

The trial court erred in entering judgment on the jury's answers to questions 2, 3, 4, 5, 6, and 7 because the answers were against the weight of the evidence and were not supported by factually sufficient evidence. (Larsen points 1-12) 1

The trial court erred in submitting jury question number eight on the deceased's negligence because there was no evidence to support the submission, and the jury's answer to question eight was unsupported by the evidence. (Ramsey points 4, 5; Larsen points 13, 14, 27)

The trial court erred in entering judgment on the jury's answers to questions 10, 11, and 12 because the answers were not supported by the evidence. (Ramsey points 6, 7, 8; Larsen points 15-20)

The trial court erred in overruling appellants' motion for new trial based on improper jury contact by Gemco's counsel and in entering judgment on the jury's answers to questions 10, 11, and 12 because the answers were the result of bias and prejudice resulting from improper jury conduct in its deliberations. (Larsen points 21, 22)

The trial court erred in admitting transcripts and tapes of out-of-court statements allegedly made by Dewey and Tommie Wilson. (Larsen point 26)

Gemco raises one cross-point of error claiming that the appellants' cause of action is preempted by 46 U.S.C. §§ 4301-4311, the Federal Boat Safety Act.

Factual Background

Because Larsen challenges the legal and factual sufficiency of the evidence to support all but one of the jury's findings, we state in detail the conflicting evidence adduced at trial.

On the morning of March 15, 1981, Ikey Ramsey and two friends, Dewey and Tommie Wilson, went fishing in Trinity Bay in a 15-foot bass boat that belonged to Ikey Ramsey's father. When they noticed the weather beginning to change, they decided to return to shore. However, when they turned the boat around, its motor stalled. The boat was swamped by its own backwash and quickly sank. As the boat was going down, Ikey Ramsey grabbed a life jacket and put it on with the green side out. 2 The other two men also grabbed flotation devices. 3

The three began to swim for shore but Ikey Ramsey changed his mind and decided to stay with his father's boat and wait for the others to return with help. 4 It took the Wilsons two hours to swim to shore because the wind was strong and waves were slapping them in the face. When they reached the shore the men went immediately to the closest house, that of W.W. Roberts. Dewey arrived first, very cold and trembling, and Tommie arrived within a few minutes in the same condition. Because of their condition, neither brother could respond to Roberts' questions for 20 minutes or so.

As soon as they were able to tell Roberts what had happened, Tommie Wilson and Roberts went out in Roberts' 14 foot boat to look for Ikey Ramsey. They located the bass boat but could not find Ramsey anywhere. An extensive search by the Coast Guard and other rescue squads was also unsuccessful. Three days later, Ramsey's body was recovered when a crew member on an offshore rig saw it floating in the water. Ramsey was floating face down, arms extended, with one arm partially through one of the armholes of the PFD, which was unzipped and floating along side his body.

The life jacket worn by Ramsey was a Type III personal flotation device that he had purchased from Gemco in 1978. At trial, appellants contended that information was available to Gemco in 1978 regarding certain disadvantages and limitations of the Type III vest, and that it had a duty to warn consumers of those limitations. If the Type III PFD had been equipped with adequate warnings, specifically that it did not have the same visibility, buoyancy, and ability to support an unconscious person's head above water as did a Type I PFD, Ikey Ramsey would have chosen to buy and use the Type I and, according to appellant's expert, would most probably have survived the accident.

The evidence showed that the Ramseys bought the two PFDs for use in canoeing. In making their selection, they considered fit, style, color, and the fact that the device was Coast Guard approved for use on all recreational boats. At the time of the purchase, the Type III PFD carried a label mandated by U.S. Coast Guard regulations and approved by Underwriter Laboratories' standards then in effect that contained the following information:

Flotation Sailing Vest--Reversible

TYPE III--PERSONAL FLOTATION DEVICE

Designed to keep a conscious person in a vertical or

slightly backward position in the water.

Manufactured by

AMERICAN MARINE PRODUCTS, INC.

Hinsdale, Ill,

Chest size 35"'-40"'

Model No. CG 1000 Lot No. 5

USCG Approval No. 160,064/656/0

WARNING! DO NOT DRY CLEAN

Approved for use on uninspected commercial vessels less than 40 feet in length not carrying passengers for hire and all recreational boats by persons weighing more than 90 pounds.

This garment is

not recommended

for water skiing.

Warranty void if

used for this purpose.

Appellant's experts testified that a Type III PFD is designed to provide a stable face-up position in calm water for a conscious wearer; that it is good only for calm, inland waters, or waters where there is a good chance for fast rescue; that it will not hold the face of an unconscious wearer clear of the water; and that in rough water the wearer's face may often be covered by waves. A Type III PFD is not to be used for extended survival in rough water. 5 However, the Type III PFD was appropriate for canoeing, the activity for which the Ramseys purchased it. A Type I vest is not appropriate for canoeing.

Gemco argued that the vest in question complied with all Coast Guard regulations and UL standards in effect at the time of its sale and purchase and that Gemco, as seller, had no control over the contents of the label. An agent of the manufacturer, who was non suited, testified that in one instance he attempted to add instructions to a PFD label, but UL refused the additional instructions on grounds that additional language would be confusing to the consumer.

Nevertheless, according to appellants' experts, the label, regardless of technical compliance in 1978, failed to provide any warnings or instructions to the consumer concerning safe use of or the dangers associated with use of the Type III PFD. Although the same expert admitted on cross-examination that he did not formulate his present opinions and conclusions regarding the limitations of the Type III device until August of 1979, appellants presented evidence that, in 1978, at least one manufacturer of PFDs was including this additional information with its products in pamphlet form. Later Coast Guard-required warnings accompanying such PFDs do, in fact, carry warnings and statements of limitation of use.

Gemco presented evidence that most recreational boaters will not wear a Type I vest because it is very bulky and uncomfortable. The Coast Guard endorsed Type III PFDs partly because their comfort made it more likely that consumers would actually wear them. According to the Coast Guard, the Type III PFD has saved lives that would otherwise have been lost if it had not been introduced at all. Gemco also elicited testimony that the Coast Guard had labelled the public information efforts of one of appellants' experts "potentially dangerous" because he emphasized the limitations of Type III PFDs. The Coast Guard feared that persons reading the limitations would become mistrustful of all PFDs and wear no device at all.

Perhaps the most significant factual...

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