Sims v. Washex Machinery Corp.

• Decision Date: 12 October 1995
• Docket Number: No. 01-91-01391-CV,01-91-01391-CV
• Citation: 932 S.W.2d 559
• Parties: Prod.Liab.Rep. (CCH) P 14,392 David SIMS, Appellant, v. WASHEX MACHINERY CORPORATION, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 559

932 S.W.2d 559

Prod.Liab.Rep. (CCH) P 14,392

David SIMS, Appellant, v. WASHEX MACHINERY CORPORATION, Appellee.

No. 01-91-01391-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Oct. 12, 1995.

Rehearing Overruled Sept. 19, 1996.

Jeffrey L. Hoffman, Houston, for Appellant.

A. David Carlson, Deanna D. Smith, Houston, for Appellee.

Before OLIVER-PARROTT, C.J., and WILSON and O'CONNOR, JJ.

OPINION

WILSON, Justice.

Appellant appeals from the trial court's take-nothing judgment based on a jury verdict in a product liability suit. We affirm in part, and reverse and remand in part.

Appellant, David Sims, was injured when he attempted to repair a commercial washing machine owned by Dapper Dan Cleaners and manufactured by appellee, Washex Machinery Corporation (Washex). Sims, an employee of Dapper Dan Cleaners, responded to a report by another employee that a washing machine made a noise when it operated at high speeds.

To begin the repair effort, Sims removed the safety panel from the back of the machine, and turned the power on. He placed his hand on the top edge of the back of the machine approximately one and one-half inches from a now exposed belt and pulley system located just inside the machine. He was injured when his hand somehow became entangled in the belt and pulley system.

Sims sued Washex for personal injuries under theories of negligence and strict products liability including marketing and design defect, breach of implied warranty of fitness for a particular purpose, and breach of implied warranty of merchantability. The case was submitted to the jury on theories of negligence, design defect and fitness for ordinary purpose. The jury found against Sims on the theories submitted, and also found that his own negligence was the sole proximate cause of his injury. On appeal, Sims presents 11 points of error.

The charge

Sims complains in his first point of error that the trial court erred in refusing to submit a jury question on marketing defect; and he complains in his tenth point of error the court erred in refusing to submit an issue on gross negligence. A party is entitled to a jury instruction if the issue is raised by the pleadings and the evidence. TEX.R.CIV.P. 278. When evaluating whether a party is entitled to a jury instruction, we examine the record for evidence supporting the submission of the question, and ignore evidence to the contrary. Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992). Refusal by a judge to submit a question is correct only if no evidence exists to warrant the submission of the question. Id.

1. Marketing defect

A "defective product" is a product that is unreasonably dangerous to the user or consumer. RESTATEMENT OF TORTS (SECOND) § 402A(1); Borel v. Fibreboard Paper Prod. Corp., 493 F.2d 1076, 1087 (5th Cir.1973). A plaintiff may prove a product "defective" if it is (1) unreasonably dangerous as manufactured, (2) unreasonably dangerous as designed or (3) unreasonably dangerous because adequate warnings or instructions were not provided. Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 387 (Tex.1991); Lucas v. Texas Indus., Inc., 696 S.W.2d 372, 377 (Tex.1984).

A manufacturing defect exists when a product does not conform to the design standards and blueprints of the manufacturer and the flaw makes the product more dangerous and therefore unfit for its intended or reasonably foreseeable uses. USX Corp. v. Salinas, 818 S.W.2d 473, 482 n. 8 (Tex.App.--San Antonio 1991, writ denied). A product with a design defect complies with all design specifications, but the design configuration is unreasonably dangerous in that the risks of harm associated with its intended and reasonably foreseeable uses outweigh its utility. Id. In contrast, a marketing defect occurs when a defendant knows or should know of a potential risk of harm presented by a product but markets it without adequately warning of the danger or providing instructions for safe use. Id. at 482.

A product need not be proven defective in all three ways in order to sustain a finding of strict liability. Thiele v. Chick, 631 S.W.2d 526, 530 (Tex.App.--Houston [1st Dist.] 1982, writ ref'd n.r.e.); Helicoid Gage Div. of Am. Chain & Cable Co. v. Howell, 511 S.W.2d 573, 575 (Tex.Civ.App.--Houston [14th Dist.] 1974, writ ref'd n.r.e.). Even a product which is safely designed and manufactured may be unreasonably dangerous as marketed because of a lack of adequate warnings or instructions. McGuire, 814 S.W.2d at 387; Malek v. Miller Brewing Co., 749 S.W.2d 521, 522 (Tex.App.--Houston [1st Dist.] 1988, writ denied). Under a marketing defect theory, it is the absence of a warning that makes use of the product unreasonably dangerous. Blackwell Burner Co., Inc. v. Cerda, 644 S.W.2d 512, 516 (Tex.App.--San Antonio 1982, writ ref'd n.r.e.).

To establish a theory of recovery based on marketing defect, a claimant must prove the following:

1. a risk of harm is inherent in the product or may arise from the intended or reasonably anticipated use of the product;

2. the product supplier actually knew or should have reasonably foreseen the risk of harm at the time the product was marketed;

3. the product contains a marketing defect;

4. the absence of a warning and/or instructions renders the product unreasonably dangerous to the ultimate user or consumer of the product; and

5. the failure to warn and/or instruct must constitute a causative nexus in the product user's injury.

Salinas, 818 S.W.2d at 483; see also Williams v. Southern Pac. Transp. Co., 804 S.W.2d 132, 138-39 (Tex.App.--Houston [1st Dist.] 1990, writ denied).

The instruction book accompanying the machine states that it is necessary to remove the back panel of the washing machine while the machine is in use to see whether the machine is operating properly. The testimony in the record reflects no guard protects repairmen from the pulley mechanism of the machine once they remove the back panel, as is required to perform some routine maintenance functions. According to the record, the pulley mechanism is located approximately one and one-half inches from the edge of the machine. There was also testimony that the machines are commonly placed close to the wall, creating a very small working space. In fact, the evidence at trial indicated this machine was placed approximately 18 inches from the wall. Sims also testified that this particular machine was more difficult to work on than other machines due to the layout of the parts. This is some evidence that there is a risk of harm from the reasonably anticipated use and maintenance of the washing machine.

A plaintiff may prove knowledge or foreseeability of danger in several ways, including presentation of post-accident warnings and evidence of governmental standards. Salinas, 818 S.W.2d at 484. Robert Hubbard, a Washex engineer, testified that the back panel is the only guard covering the hazardous pulley mechanism, and this panel on the machine complied with OSHA guard requirements. There is also testimony that warnings were later placed on other washing machines warning against injury from the pulley mechanism. This testimony amounts to some evidence that Washex knew or should have known that a risk of injury existed.

David Sibert, the manager of the dry cleaners where the accident occurred, testified that there was only one and one-half inches between the pulley system and the edge of the machine, and that this posed an unreasonable risk. Robert Hubbard, an engineer with Washex, testified that the pulley system, without the back cover in place is hazardous. ¹ Bruce Pinkston, an engineer and expert witness for Washex, testified that there should be a warning on the machine about the belts and pulley system; however, in his opinion the absence of the warning does not make the product defective. From this evidence, the jury could have weighed the utility of the machine against the risk of harm from its lack of warnings. This testimony is some evidence that a marketing defect existed and that the washing machine, without warnings, was unreasonably dangerous.

Sims testified he would not have placed his hand near the back of the machine had Washex warned him of the danger.

Q.: And looking back, if there had been a warning on the machine that you could lose your hand or your fingers or your thumb, what would you have done with this machine when you were told to go back there and fix it?

A.: If I was told to fix it and do what I did, you know, service it or try to check it with it running, I just don't know, not if I had known this or it could even be this bad.

This testimony raises the issue of producing cause of the injury. ²

Sims was denied submission of the marketing defect theory of recovery to the jury, an issue which a review of the record indicates was in fact raised by the pleadings and upon which more than a scintilla of evidence was presented. The record reflects that Sims timely requested a question on marketing defect in substantially correct wording, and this request was marked "denied" by the trial court. TEX.R.APP.P. 52(a). In addition, "[s]o long as matters are timely raised and properly requested as part of a court's charge, a judgment cannot be permitted to stand when a party is denied proper submission of a valid theory of recovery ... raised by the pleadings and the evidence." Exxon Corp. v. Perez, 842 S.W.2d 629, 631 (Tex.1992).

Because Sims has presented more than a scintilla of evidence supporting each element of a marketing defect theory of recovery, we sustain his first point of error.

Washex urges that if we sustain this point of error, we should reverse and remand only on the issue of marketing defect, and let the remainder of the judgment stand. Rule 81(b)(1) of the Texas Rules of Appellate procedure states:

[I]f it appears to the court that the error affects a part only of the matter in controversy and that such part is clearly separable without unfairness to the...