Sears, Roebuck and Co. v. Menegay

• Decision Date: 24 August 1995
• Docket Number: No. 2-94-116-CV,2-94-116-CV
• Citation: 907 S.W.2d 72
• Parties: Prod.Liab.Rep. (CCH) P 14,365 SEARS, ROEBUCK AND CO., and Sunbeam Corporation v. Michael MENEGAY and Paula Menegay.
• Court: Texas Court of Appeals

Page 72

907 S.W.2d 72

Prod.Liab.Rep. (CCH) P 14,365

SEARS, ROEBUCK AND CO., and Sunbeam Corporation v. Michael MENEGAY and Paula Menegay.

No. 2-94-116-CV.

Court of Appeals of Texas,

Fort Worth.

Aug. 24, 1995.

Rehearing Overruled Sept. 29, 1995.

Tim G. Sralla, James P. Wagner, Fielding, Barrett & Taylor, L.L.P., Fort Worth, for Appellants.

Ken Kraatz, Mike Felber, Wells, Felber, Purcell & Kraatz, Fort Worth, for Appellees.

Before LIVINGSTON, DAUPHINOT and BRIGHAM, JJ.

OPINION

LIVINGSTON, Justice.

Michael Menegay ("Mike") incurred burns over 27% of his body when a propane tank stored under his gas grill exploded. The gas grill was sold by Sears, Roebuck and Company ("Sears") and manufactured by Sunbeam Corporation ("Sunbeam"). Mike and his wife sued both Sears and Sunbeam on a variety of theories, and the jury returned a verdict in their favor. The jury also found the conduct of Sears and Sunbeam constituted gross negligence. The jury assessed exemplary damages of $140,000 against Sears and $35,000 against Sunbeam. On appeal, Sears and Sunbeam challenge only the award of exemplary damages. We reverse and render the exemplary damage award against Sears and affirm the exemplary damages award against Sunbeam.

In points of error one, two, and three, appellants argue the evidence was legally insufficient to support a finding of gross negligence upon which exemplary damages could be based. Appellants argue in point of error four that it was error for the trial court to admit the video tape deposition testimony of Everett Long ("Long") because appellees failed to establish that the accident Long testified to was reasonably similar to the accident in this case.

PRIOR ACCIDENTS

Before reviewing the legal sufficiency of the evidence under points of error one through three, we will address point of error four regarding the admissibility of Long's deposition. Before evidence of prior accidents can be introduced, the proponents of the evidence must lay a predicate showing that the "earlier accidents occurred under reasonably similar but not necessarily identical circumstances." Missouri Pac. R.R. Co. v. Cooper, 563 S.W.2d 233, 236 (Tex.1978). An instructive application of this rule can be found in Rush v. Bucyrus-Erie Co., 646 S.W.2d 298, 301 (Tex.App.--Tyler 1983, writ ref'd n.r.e.).

Rush involved a wrongful death suit based on product liability and negligence claims. Id. at 299. Wesley Rush was a construction worker assigned to disassemble the boom of a crane manufactured by the Bucyrus-Erie Company. Id. While standing under the boom removing the splice pins to disassemble it, the boom fell on Rush and crushed him to death. Id. At trial, plaintiffs sought to introduce evidence of the other incident reports of workmen being killed while standing under the boom disassembling it. Id. The trial court refused to admit the evidence. Id.

The court of appeals reversed the case ordering a new trial because the evidence of other accidents involving workers killed while dismantling similar booms manufactured by the same company with the same type of splice pins was reasonably similar to the accident being litigated to warrant admission. Id. at 301-02. The court in Rush noted, "The requisite degree of similarity is plainly not very high." Id. at 302 (quoting Mitchell v. Fruehauf Corp., 568 F.2d 1139, 1147 (5th Cir.1978) (citing Magic Chef, Inc. v. Sibley, 546 S.W.2d 851, 855 (Tex.Civ.App.--San Antonio 1977, writ ref'd n.r.e.)).

In his deposition, Long testified that he received a Sunbeam propane gas grill, model 4477W, for Father's Day in June 1986. Long used the grill many times between the summer of 1986 and 1987. During this period, Long did not use the fuel tank that came with the new grill; instead, he always used the fuel tank from his old grill.

In July 1987, Long decided to fill and use the new tank that came with the Sunbeam grill. After having the tank filled, Long took it home. Long could smell fuel from the newly filled tank and left the tank outside for several days. When Long checked the tank again by smelling it and using soapy water to detect air bubbles, he determined that the tank was no longer venting.

Long stored the new tank under the left side of his grill. Long put the tank there because "it just seemed like it was an appropriate place." Long's first use of the grill after storing the spare cylinder underneath the grill was on July 19, 1987. Long began grilling around 1:00 or 2:00 in the afternoon, and the temperature outside was around ninety degrees. After the grill had been on for about twenty minutes, Long "heard something poof." He could see a flame between the frame and the pit, and he opened the door underneath the grill. There was a flame coming out of the new tank. Long tried to put the flame out with a squirt can, but the flame leapt out. Long jumped off of the porch and began rolling in the grass. Long was burned on his arms and legs, and he was hospitalized for seven days.

Mike's accident occurred on May 28, 1989, Memorial Day. It was very hot outside. About 6:30 that evening, Mike turned on his grill, a Sunbeam product marketed under the Kenmore name, and preheated the grill for ten to fifteen minutes. He had a spare propane tank stored underneath the grill. Mike's wife, Paula, had experienced problems with one of the canisters venting when she had it filled in April. Based on assurances from the company that filled the canister that it was no longer venting, Mike stored the canister underneath the grill.

After Mike had been cooking about fifteen to twenty minutes, he pronounced dinner was ready, sent his kids inside to wash their hands for dinner, and then "felt the combustion." Mike sustained severe burns on 27% of his body, concentrated on his arms and legs.

We find that this prior accident occurred under reasonably similar circumstances to the accident in question to make Long's testimony admissible. See Missouri Pac. R.R., 563 S.W.2d at 236. Accordingly, appellant's fourth point of error is overruled.

EXEMPLARY DAMAGES

In points of error one, two, and three, appellants challenge the exemplary damage award arguing the evidence is legally insufficient to support the award. In determining a "no evidence" point, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992). "The evidence presented, viewed in the light most favorable to the prevailing party, must be such as to permit the logical inference [that the jury must reach]." Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 24 (Tex.1994) (op. on reh'g) (alteration in original) (quoting Lyons v. Millers Casualty Ins. Co., 866 S.W.2d 597, 600 (Tex.1993)). There must be a direct or inferential logical connection between the evidence offered and the fact to be proved. Moriel, 879 S.W.2d at 24.

If there is more than a scintilla of such evidence to support the finding, the claim is sufficient as a matter of law, and any challenges go merely to the weight to be accorded the evidence. Browning Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993). A "no evidence" point of error may only be sustained when the record discloses one of the following: 1) a complete absence of evidence of a vital fact; 2) the court is barred by rules of law or 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 of evidence; or 4) the evidence establishes conclusively the opposite of a vital fact. Juliette Fowler Homes, Inc. v. Welch Assoc., Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990); Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX.L.REV. 361 (1960).

Appellants claim there is no evidence of gross negligence in this case. "Gross negligence" means more than momentary thoughtlessness, inadvertence, or error of judgment. TEX.CIV.PRAC. & REM.CODE ANN. § 41.001(5) (Vernon Supp.1995). It means such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected. Id.

Gross negligence involves two distinct components: 1) an act or omission by the defendant; and 2) the mental state of the defendant. Moriel, 879 S.W.2d at 21. The first part, the act or omission, must "involve behavior that endangers the rights, safety, or welfare of the person affected." Id. Objectively, the defendant's conduct must involve an act or omission that created an extreme degree of risk. Id. at 21-22. "Extreme risk is a function of both the magnitude and the probability of the anticipated injury to the plaintiff." Id. at 22. To support a gross negligence finding, the act or omission must be unjustifiable and likely to cause serious harm. Id. Whether or not the act or omission involves an extreme risk must be viewed from defendant's perspective without the benefit of hindsight. Id. at 23.

The second part, the mental state, requires a showing that the defendant was subjectively aware of the extreme risk created. Id. at 22. The evidence must establish the defendant's actual conscious indifference; merely raising the belief that conscious indifference might be attributable to a hypothetical reasonable defendant is insufficient. Id. at 20. "Entire want of care" does not mean that evidence of "some care" automatically precludes a finding of gross negligence; rather, " 'entire want of care' must be understood in the context of the whole [gross negligence] [definition]." Id. (second alteration in original) (quoting Burk Royalty Co. v. Walls, 616 S.W.2d 911, 918 (Tex.1981)). Thus, reviewing courts must look for evidence of the defendant's subjective mental state, rather than the exercise of care, because what lifts ordinary negligence into gross negligence is the attitude of the...