Sears v. Kunze

• Decision Date: 29 July 1999
• Citation: Sears v. Kunze, 996 S.W.2d 416 (Tex. App. 1999)
• Parties: (Tex.App.-Beaumont 1999) SEARS, ROEBUCK & COMPANY AND EMERSON ELECTRIC COMPANY, Appellants v. ROBERT E. KUNZE, Appellee NO. 09-97-189 CV
• Court: Texas Court of Appeals

Page 416

996 S.W.2d 416 (Tex.App.-Beaumont 1999)

SEARS, ROEBUCK & COMPANY AND EMERSON ELECTRIC COMPANY, Appellants v. ROBERT E. KUNZE, Appellee

NO. 09-97-189 CV

In The Court of Appeals Ninth District of Texas at Beaumont

Submitted on November 19, 1998

Decided July 29, 1999

On Appeal from the 58th District Court Jefferson County, Texas Trial Cause No. A-148939

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Burgess, Stover and Hill,¹ JJ.

OPINION

JOHN HILL, Justice (Assigned).

In this product liability case, Sears, Roebuck & Company and Emerson Electric Company appeal from a $2.5 million plus judgment in favor of Robert E. Kunze that was entered based upon the verdict of a jury. The appellants present eight issues in which they contend that: (1) the jury's refusal to find that the 10-inch radial arm saw that Kunze was using when he amputated several fingers was unreasonably dangerous as designed fatally conflicts with the jury's finding that the saw was negligently designed; (2) the jury's refusal to find that the saw was unreasonably dangerous as designed fatally conflicts with the jury's finding that the saw, as designed, posed an extreme risk of harm considering the probability and magnitude of the risk; (3) the trial court reversibly erred by excluding evidence relating to an out-of-court test showing that the accident could not have happened as described by Kunze, even though, they contend, they conducted the test under conditions substantially similar to those describedby Kunze; (4) the trial court reversibly erred by admitting evidence of approximately ninety other accidents involving other Sears radial arm saws; (5) the trial court erred in awarding punitive damages against Emerson because the evidence is both legally and factually insufficient to support the jury's finding that Emerson was grossly negligent; (6) the $2 million in punitive damages awarded in the trial court's final judgment exceeds the four-times-actuals cap in TEX. CIV. PRAC.& REM. CODE 47.001 (1987 version) and is therefore excessive; (7) the evidence is both legally and factually insufficient to support the jury's finding that negligence on the part of Sears and Emerson proximately caused the injury in question; and (8) the evidence is both legally and factually insufficient to support the jury's finding that Emerson, Sears, and the radial arm saw caused 70% of the injury while Kunze only caused 30% of the injury.

We affirm the judgment because: (1) the evidence is both legally and factually sufficient to support the jury's finding of negligence on the part of the appellants; (2) there is no conflict in the jury's answers, and, even if there were, the appellants made no objection to any conflict prior to the jury being discharged; (3) the trial court did not abuse its discretion either in excluding evidence of the test conducted by the appellants or in admitting evidence of other injuries or claims related to the saw for the limited purpose of showing notice to the appellants of such claims and showing conscious indifference; (4) the appellants present no argument or authority in support of their contention that the evidence is legally and factually insufficient to support the jury's apportionment of fault; (5) the evidence is legally and factually sufficient to support the jury's finding of gross negligence; and (6) the award of exemplary damages does not exceed the statutory cap contained in section 41.007 of the1987 version of the Civil Practice and Remedies Code.

LEGAL SUFFICIENCY OF THE EVIDENCE NEGLIGENCE

While using a Sears Craftsman 10-inch radial arm saw that he purchased at an estate sale, the appellee, Robert Kunze, suffered an amputation injury to four fingers of his left hand. The appellants contend in issue number seven that the evidence is both legally and factually insufficient to support the jury's findings that negligence on their part proximately caused Kunze's injury. When considering the legal sufficiency of the evidence, we consider only the evidence and inferences that tend to support the jury's finding, and disregard all evidence and inferences to the contrary. See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992). If there exists any evidence to support the finding, the point will be overruled and the finding upheld. See Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989). We need not disregard undisputed evidence that allows of only one logical inference. See Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 51, n. 1 (Tex. 1997).

Kunze, a licensed professional engineer, testified, demonstrating how he was working when he got his hand caught in the blade of his saw. He said that either the new guard or an older guard would have prevented him from contacting the blade.

Dr. George Greene, a consulting engineer, testified that in his opinion a prudent manufacturer would not have marketed the saw Kunze was using without a lower blade guard. He also indicated that the lower blade guard available as an option for older model saws would have prevented Kunze's injury. He indicated that selling the saw without a guard was both a producing and proximate cause of Kunze's injury. He stated that all other manufacturers had lower blade guards on their saws. He asserted that there is a large propensity for injury on a radial arm saw without the guard being there. He testified that he had discovered that the optional lower blade guard was not readily available for purchase.

Michael Gililland, a former safety engineer for Emerson, testified that when the Occupational Safety and Health Administration (OSHA) issued a regulation in 1971 that required all radial arm saws in the workplace to have a lower blade guard, Emerson equipped its 12-inch saws that it sold for commercial use with such a guard, but not its 10-inch consumer version. He indicated that he had testified in another case that this change was prompted by the regulation. He stated that management could have decided to equip the 10-inch saw with such a lower blade guard in 1971 had it chosen to do so. He noted that summaries made by Emerson of claims made as a result of incidents with the saw did not normally include notations concerning claims of injury due to the lack of a lower blade guard, although there were many cases involving such claims. We hold that the evidence is sufficient to support the jury's finding that negligence on the part of Sears and Emerson proximately caused Kunze's injury.

On appeal the only basis of negligence relied upon by Kunze is negligent marketing of the saw without a lower blade guard. The appellants argue that at trial Kunze abandoned this claim, choosing to rely only on a design defect that the jury rejected. The only record reference that the appellants give to support their contention of claim abandonment is to Kunze's trial pleading, in which the appellants concede that he did allege their negligence in marketing the saw without the lower blade guard. The charge of the court, after asking the jury about design defect, asked a general question concerning whether the negligence of "the persons named below" was a proximate cause of the injury in question. The appellants and Kunze were the persons named. Nothing about this question indicates an abandonment of Kunze's claim that the appellants were negligent in marketing the saw without the lower blade guard. In their brief the appellants even concede that all of the evidence Kunze offered was aimed at showingthat they should be held liable for failing to include a lower blade guard on the saw as a standard feature. The appellants' assertion that Kunze abandoned his claim of negligent marketing is not supported by the record.

The appellants insist that there is no evidence of negligent marketing, in effect urging that evidence showing that a lower blade guard should have been included with the saw instead of as an accessory was a design problem, not a flaw in their marketing of the product. They argue that a marketing defect occurs when a defendant markets a product "without adequately warning of the danger or providing instructions for safe use." See Clark Equipment Co. v. Pitner, 923 S.W.2d 117, 126 (Tex. App.--Houston [14th Dist.] 1996, writ denied). Clark did not involve the issue of whether one could recover for negligence in marketing a device without necessary safety equipment or without such equipment being readily available. Id. This is also true of Bristol-Myers Co. v. Gonzales, 561 S.W.2d 801, 804 (Tex. 1978), the case upon which the Court in Clark relies. While it is true that a failure to warn can constitute a marketing defect in strict liability, we do not know why negligence in marketing a device without necessary safety equipment or without making such equipment readily available cannot constitute negligent marketing. We do not accept the appellant's conclusion that there was no evidence of negligent marketing of the saw in question.

FACTUAL SUFFICIENCY OF THE EVIDENCE NEGLIGENCE

In determining whether the evidence is factually sufficient, we must weigh all of the evidence in the record. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). Findings may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id.

Jim Metzger testified that he is a registered professional engineer employed by Emerson. He indicated some of the difficulties encountered by Emerson engineers in trying to develop a lower blade guard for the 10-inch radial saw. One problem to which he referred was that consumers use the saw for many different kinds of cuts making it difficult to guard the blade with respect to all uses. He also explained that some guards that might have worked did not comply with government and industry standards that required that the guard must automatically ride over the work piece and return to its original...