Rourke v. Garza, B--4791

CourtSupreme Court of Texas
Citation530 S.W.2d 794
Decision Date05 November 1975
Docket NumberNo. B--4791,B--4791
PartiesElzie Pauline ROURKE, Individually, etc., Petitioner, v. Adolph O. GARZA et al., Respondent.

Mills, Shirley, McMicken & Eckel, Preston Shirley, Galveston, for petitioner.

R. A. Apffel, Galveston, Kronzer, Abraham & Watkins, John B. Murphrey, Nick C. Nichols and W. J. Kronzer, Houston, McLeod, Alexander, Powel & Apffel, V. W. McLeod and James L. Anthony, Galveston, for respondent.

GREENHILL, Chief Justice.

This is a products liability case. Respondent, Adolph O. Garza, a pipefitter-welder employed by Har-Con Engineering Company, Inc., brought this suit against J. E. Rourke, 1 individually and d/b/a J. E. Rourke Rental & Supplies, for personal injuries sustained in a fall from scaffolding which had been supplied by Rourke Rental to Har-Con at Har-Con's job site in Galveston, Texas. Rourke Rental impleaded Har-Con, alleging written indemnity. The trial court entered judgment on the jury's verdict in favor of Garza for $303,126.42. The plaintiff Garza, as an employee of Har-Con, had been paid workmen's compensation for total and permanent disability in the amount of $35,326.42. Traveler's Insurance Company, the compensation carrier for Har-Con, was awarded that amount of the above judgment by subrogation. The trial court denied Rourke Rental's plea of indemnity against Har-Con. The court of civil appeals affirmed, one justice dissenting. 511 S.W.2d 331. We affirm.


Plaintiff Garza charged that Rourke Rental supplied defective scaffolding equipment to Har-Con's job site in that the scaffolding boards supplied did not include cleat-type devices attached to the boards to prevent their slipping on the pipe frames. These cleats are 2 4-inch boards nailed to the underside on each end of the boards to prevent lateral movement of the boards.

In May of 1965, Har-Con, a Houstonbased construction firm, was engaged in several construction jobs in Galveston, Texas, including the work at Sam Houston School where the accident occurred. Har-Con specialized in mechanical work such as plumbing, air conditioning, heating and ventilating. Rourke Rental had been in the business of renting scaffolding equipment for about fifteen years prior to the accident, and it had previously rented such equipment to Har-Con.

On this occasion, Rourke Rental's delivery man, Ferdinand Meyer, delivered and unloaded the scaffold pipe frames, boards, and connecting pins at the job site at the Sam Houston School. After unloading the equipment, Meyer called Har-Con's superintendent, Fred Newton, to check the delivery. Newton counted the materials and signed a receipt which recited that the equipment had been delivered in good order, and which contained, on its reverse side, an indemnity provision. The scaffolding included four 2 10-inch boards eight feet in length which would lie across the steel pipe frames to form the platform. Har-Con's foreman, Hawkins, and several other Har-Con employees actually erected the scaffolding.

The plaintiff, Garza, saw the scaffolding equipment when it was delivered and while it was being erected; but he took no part in the unloading, checking or assembly of the scaffold. After the scaffold was erected, Garza climbed to the top platform, and worked there about one-and-one-half hours before the accident occurred. He testified that immediately prior to the accident, he had finished making a weld and had stepped aside so that his helper could scrape the weld, and that he then fell through the center of the scaffolding when two of the boards 'slipped on the inside.'

The following issues regarding Rourke Rental's liability were submitted by the trial court and answered by the jury:


'Do you find . . . that failure to have cleat type devices on the scaffold boards delivered by the Defendant, Rourke Rental . . . rendered the scaffold boards defective as herein defined?

'You are instructed that a product is 'defective' as that term is used in the above Special Issue, if the product exposes its user to an unreasonable risk of harm when used for the purpose for which it was intended.

'By the term 'unreasonable risk of harm,' as used in the above and foregoing instruction is meant that the article leased must be dangerous to an extent beyond that which would be contemplated by the ordinary user who leases it, with the ordinary knowledge common to the community as to its characteristics.

'ANSWER: 'We do."


'Do you find . . . that Defendant ROURKE RENTAL could reasonably anticipate that the scaffold boards delivered on May 27, 1965, might be placed upon the scaffold frame without the addition of cleat type devices?

'ANSWER: 'We do."


'Do you find . . . that the failure to have cleat type devices on the scaffold boards was a producing cause of the occurrence in question?

'In connection with the foregoing Special Issue, you are instructed that the term 'producing cause' means an efficient, exciting, or contributing cause, which, in a natural sequence, produced injuries or damages complained of, if any. There can be more than one producing cause.

'ANSWER: 'We do."


'Do you find . . . that Defendant ROURKE RENTAL'S failure to provide cleat type devices on the scaffolding boards in question constituted negligence as that term is herein defined?

'ANSWER: 'We do not."

Garza obtained judgment on the theory of strict liability in tort. The Restatement (second) of Torts § 402A (1965) states that a seller of a product in a defective condition unreasonably dangerous to the user is subject to liability for physical harm caused to the user if the seller is engaged in the business of selling such a product and it is expected to and does reach the user without substantial change in the condition in which it is sold. This rule applies even though the seller has exercised care in the preparation and sale of his product and even though the user has not purchased the product or entered into any contractual arrangement with the seller. This statement of strict liability has been adopted as the rule in Texas. Darryl v. Ford Motor Co., 440 S.W.2d 630 (Tex.1969); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967). The rule applies to unreasonably dangerous products whether the defect occurred in their production or their design. Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex.1974); Ford Motor Co. v. Russell & Smith Ford Co., 474 S.W.2d 549 (Tex.Civ.App.--Houston (14th) 1972, no writ); Garcia v. Sky Climber, Inc., 470 S.W.2d 261 (Tex.Civ.App.--Houston (1st) 1971, writ ref. n.r.e.).

Rourke Rental contends that the scaffold boards were not defective at the time of delivery, since they were in sound condition; i.e., the lumber was not defective and did not break. This argument, however, overlooks the fact that we are here concerned with the lease of a disassembled scaffold, not merely the lease of lumber which could be used as the lessee pleased. It is undisputed that the parties intended the boards to be used for scaffolding. It is also clear from the testimony of Mrs. Rourke and Mr. Meyer that the boards were used in exactly the manner intended by Rourke Rental.

The determination of whether a product is defective must be made in light of the normal uses of the product; and where it is misused, strict liability does not apply. Helicoid Gage Division of American Chain and Cable Co. v. Howell, 511 S.W.2d 573 (Tex.Civ.App.--Houston (14th) 1974, writ ref. n.r.e.); McDevitt v. Standard Oil Company of Texas, 391 F.2d 364 (5th Cir. 1968); Restatement (second) of Torts § 402A, comment H (1965). Since it is undisputed that the scaffold boards here were properly used (in fact, they were used exactly as Rourke Rental intended), our question is whether or not the boards were unreasonably dangerous for use as scaffolding.

While evidence was produced by both sides as to whether the boards were or were not unreasonably dangerous for this use, there was testimony to support the jury's finding against a 'no evidence' attack. Two witnesses, Conley and Newton, testified that scaffold boards were customarily furnished with cleats. Conley testified that without cleats, a scaffold would present a 'danger situation,' would be 'very unsafe' and 'would not be reasonably fit for scaffolding boards.' Newton testified that without cleats, 'you have got a dangerous situation.' All the witnesses recognized that cleats would have prevented the boards from slipping off the frames. Meyer testified that the scaffold boards were eight feet long and were used on a sevenfoot scaffold, leaving only a six-inch margin of safety on each side of the pipe frames.

There is evidence to the contrary. Meyer, the delivery man, testified that Rourke Rental never used cleats on the boards, and that the customer could add them himself if he wanted cleats. He testified that if Rourke Rental put cleats on there would be an extra charge, but that this was never done. He said that when boards were returned with cleats on them, he just knocked them off with a hammer. He further testified that Har-Con had never asked for cleats, and that no cleats had been put on the boards delivered to Har-Con.

When a party asserts that there is no evidence to support jury findings, we must review the evidence in its most favorable light, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974); Langlotz v. Citizens Fidelity Ins. Co.,505 S.W.2d 249 (Tex.1974). The jury having found that the scaffold boards were unreasonably dangerous, and there being evidence to support the finding, we cannot, as a matter of law, hold otherwise.

This result does not place an unreasonable burden on suppliers of scaffolding. Cleats do not impair the usefulness of the boards, nor...

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