Sanchez v. Brownsville Sports Center Inc.

• Decision Date: 08 February 2001
• Citation: 51 S.W.3d 643
• Parties: (Tex.App.-Corpus Christi 2001) HIPOLITO RAMOS SANCHEZ AND ALMA LAURA GALVAN DE RAMOS, BOTH INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF HERMES HIPOLITO RAMOS GALVAN, DECEASED, Appellants, v. BROWNSVILLE SPORTS CENTER, INC., LEON JAMES, HONDA MOTOR CO., LTD., HONDA R&D CO., LTD., HONDA R&D NORTH AMERICA, INC., HONDA NORTH AMERICA, INC., AND AMERICAN HONDA MOTOR CO., INC., Appellees. NUMBER 13-97-436-CV
• Court: Texas Court of Appeals

Page 643

51 S.W.3d 643 (Tex.App.-Corpus Christi 2001)

HIPOLITO RAMOS SANCHEZ AND ALMA LAURA GALVAN DE RAMOS, BOTH INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF HERMES HIPOLITO RAMOS GALVAN, DECEASED, Appellants, v. BROWNSVILLE SPORTS CENTER, INC., LEON JAMES, HONDA MOTOR CO., LTD., HONDA R&D CO., LTD., HONDA R&D NORTH AMERICA, INC., HONDA NORTH AMERICA, INC., AND AMERICAN HONDA MOTOR CO., INC., Appellees.

NUMBER 13-97-436-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

February 8, 2001

Opinion Granting Rehearing in Part Aug. 2, 2001.

Rehearing Overruled Aug. 31, 2001.

On appeal from the 197th District Court of Cameron County, Texas. [Copyrighted Material Omitted]

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Before Justices Hinojosa, Yanez, and Rodriguez

OPINION

Opinion by Justice Hinojosa

This is an appeal from a take-nothing judgment in a products liability case rendered in favor of appellees, Honda Motor Co., Ltd., Honda R&D Co., Ltd., Honda R&D North America, Inc., Honda North America, Inc., and American Honda Motor Co., Inc. (collectively "Honda"). Brownsville Sports Center, Inc. ("BSC") and Leon James were originally included as defendants in the case but pleadings against them were struck as a result of sanctions imposed against appellants, Hipolito Ramos Sanchez ("Mr. Ramos") and Alma Laura Galvan de Ramos ("Mrs. Ramos"), both individually and on behalf of the Estate of Hermes Hipolito Ramos Galvan, Deceased (collectively the "Ramoses"). The Ramoses challenge the judgment and the sanctions by nine points of error. Honda raises one cross-point to be addressed in the event the judgment is reversed. We affirm in part and reverse and render in part.

A. Background

The product at issue in this case is a Honda three-wheel all-terrain vehicle ("ATV") which was designed and manufactured in Japan in 1983 by Honda Motor Company. The ATV was first shipped to American Honda in California, and in the summer of 1983, it was sent to a warehouse in Louisiana. Shortly thereafter, BSC, a Honda dealership, took title and arranged for delivery of the ATV to BSC's store in Brownsville, Texas. The vehicle was then sold to Texas Southmost College, also in Brownsville, which subsequently sold the vehicle. In approximately 1992, Mr. Ramos bought the ATV from a friend in Mexico, who may or may not have been the person that purchased the vehicle from the college. The ATV weighed 341 pounds, had a 192 cc engine, and could reach speeds of forty-four miles per hour.

On February 19, 1995, Mr. & Mrs. Ramos and their ten-year-old son, Hermes Hipolito ("Polito"), all citizens and residents of Mexico, attended a social gathering at a ranch near Matamoros, Tamaulipas, Mexico. During the afternoon, Mr. Ramos allowed Polito and others to go to the family home to bring the ATV to the ranch. Polito had been riding the ATV, with his father or alone, since he was six or seven years old. Shortly after returning to the ranch with the ATV, Polito was fatally injured when he lost control of the vehicle.

The Ramoses sued Honda, BSC, and its owner, Leon James, for the wrongful death of Polito, alleging causes of action for negligence, gross negligence, and products liability. Appellees generally denied the allegations and asserted the affirmative defense of contributory negligence on the part of Polito and his parents. Appellees also moved the trial court to apply Mexican law to the case. After a hearing, this motion was denied. On the day jury selection was to commence, the appellees moved for sanctions against the Ramoses because of discovery violations. The trial court granted the sanctions, striking the pleadings asserted against BSC and James. At the conclusion of the appellants' evidence, the trial court granted a directed verdict as to a survival cause of action and gross negligence and exemplary damages claims. When the evidence was concluded, the jury found the ATV was defective in marketing and design and that such defects were the proximate cause of Polito's death. The jury also found the negligence of Honda and each of the Ramoses was the proximate cause of the injuries suffered by Polito. Liability was assessed at 33% for Honda and for each of the Ramoses. Although the jury awarded $15,000,000 to each of the Ramoses, the trial court subsequently rendered a take-nothing judgment against them.

B. Sufficiency Of The Evidence

By their first point of error, the Ramoses contend the trial court erred in denying their motion to disregard jury findings of negligence, proximate cause, and liability percentage against them because the evidence was legally and factually insufficient to support the verdict as to those issues.

When we review a legal sufficiency of the evidence point of error, we must consider all the evidence in a light favorable to the party in whose favor the verdict was rendered, and every reasonable inference raised by the evidence is to be indulged in that party's favor. Formosa Plastics Corp. USA v. Presidio Eng'r and Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998); Hines v. Comm'n for Lawyer Discipline, 28 S.W.3d 697, 701 (Tex. App.--Corpus Christi 2000, no pet.). A legal sufficiency point may only be sustained when the record discloses: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; and (4) the evidence established conclusively the opposite of the vital fact. Juliette Fowler Homes, Inc. v. Welch Assoc., 793 S.W.2d 660, 666 n. 9 (Tex. 1990). If there is more than a scintilla of evidence to support the finding, the legal sufficiency challenge fails. Formosa Plastics, 960 S.W.2d at 48; Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is not more than a scintilla and, in legal effect, is no evidence. Kindred v. Con-Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). The test for the application of this no evidence/scintilla rule is: if reasonable minds cannot differ from the conclusion, then the evidence offered to support the existence of a vital fact lacks probative force, and it will be held to be the legal equivalent of no evidence. Id.; Hines, 28 S.W.2d at 701.

When we review a factual sufficiency point of error, we consider, weigh, and examine all of the evidence which supports or undermines the jury's finding. Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We review the evidence, keeping in mind that it is the jury's role, not ours, to judge the credibility of the evidence, to assign the weight to be given to testimony, and to resolve inconsistencies within or conflicts among the witnesses' testimony. Corpus Christi Teachers' Credit Union v. Hernandez, 814 S.W.2d 195, 197 (Tex. App.--San Antonio 1991, no writ). We then set aside the jury's finding only when we find that the evidence standing alone is too weak to support the finding or that the finding is so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

The evidence in this case shows that ten-year-old Polito was allowed to return home to pick up the ATV without his parents' supervision. The parents were unaware when the ATV arrived on ranch property, and again, Polito was not supervised by his parents as he rode the vehicle. The parents had not checked the ranch terrain for rideability on the day of the accident.

Polito was not admonished to bring a helmet to the ranch, and at the time of the accident, he was not wearing one. Although his parents testified Polito almost always wore a helmet when he rode the ATV, they could not produce the helmet or proof of its purchase. Testimony reflects that if Polito had been wearing a helmet, his injuries would most likely not have been fatal or even severe.

Although neither parent was familiar with operating the ATV at the time of its purchase, they never attempted to get an owner's manual to learn the suggested operation guidelines. They did not know the recommended air pressure for the tires, even though the information was stated on the tires. Indeed, the air pressure had never been checked from the time the ATV was purchased by the Ramoses. On the day at issue, the tire air pressure was at least five times the recommended level, causing the tires to bounce over obstacles rather than fold around them as tires at the recommended lower air pressure would do. At the time of the accident, Mr. Ramos knew the handlebar brakes were malfunctioning.

In Mexico, an ATV is considered a motorcycle. To operate a motorcycle, one must have a license, which is obtainable at age sixteen. An ATV operator is required to wear a helmet and protective eyewear. The uncontroverted evidence indicates these Mexican laws apply whether the rider is on public or private property.

We hold the above evidence is legally sufficient to support the jury's verdict that the Ramoses' negligence was the proximate cause of the accident and that their liability was 33% each. Considering the remainder of the evidence, which deals for the most part with the design, testing, manufacture, and marketing of the ATV at issue, together with some evidence of a probability Polito would have died even if he was wearing a helmet, we conclude the jury's finding is not so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. We overrule appellants' first point of error.

C. The Take-Nothing Judgment

In their...