Slentz v. American Airlines, Inc.

• Decision Date: 14 August 1991
• Docket Number: No. 3-89-245-CV,3-89-245-CV
• Citation: 817 S.W.2d 366
• Parties: Floyd G. SLENTZ and Helen Slentz, Appellants, v. AMERICAN AIRLINES, INC., J.J. Security, Inc., and Mary Finau, Appellees.
• Court: Texas Court of Appeals

Page 366

817 S.W.2d 366

Floyd G. SLENTZ and Helen Slentz, Appellants, v. AMERICAN AIRLINES, INC., J.J. Security, Inc., and Mary Finau, Appellees.

No. 3-89-245-CV.

Court of Appeals of Texas Austin.

Aug. 14, 1991.

Rehearing Denied Oct. 16, 1991.

Rehearing Overruled Oct. 16, 1991.

Publication Granted Oct. 23, 1991.

James O. Guleke, II, Sneed, Vine, Wilkerson, Selman & Perry, Austin, for appellants.

Robert I. Howell, Baker & Botts, Austin, for appellees.

Before GAMMAGE, CARROLL and ABOUSSIE, JJ.

ABOUSSIE, Justice.

Appellants ask this Court to recognize a new right of action. They assert that an implied warranty of safe carriage emanates from a provider of air transportation services to its passengers. ¹ They argue that, as a matter of public policy, the law should impose this implied warranty upon common carriers to protect travelers. Appellants acknowledge that no statute creates these obligations and that no court in Texas or elsewhere has created or recognized the warranty at common law. For the reasons stated below, we decline appellants' invitation to be the first court to do so. We affirm the judgment of the trial court.

Appellants Floyd and Helen Slentz (the Slentzes) sued appellees American Airlines (American), J.J. Security, and Mary Finau, alleging that Floyd was injured when he was knocked down in the Dallas/Fort Worth Airport by an electric passenger cart owned by American Airlines, operated under contract by J.J. Security, and driven by its employee, Mary Finau. The Slentzes sued American, J.J. Security, and Finau, alleging acts of negligence and gross negligence. In addition, they sought to recover from American on theories of breach of contract, breach of implied warranties, and violation of the Texas Deceptive Trade Practices--Consumer Protection Act based on the breach of implied warranties. See Tex.Bus. & Com.Code Ann. §§ 17.41 et seq. (1987 & Supp.1991) (DTPA).

Background

On December 23, 1985, the Slentzes flew on an American Airlines plane from Oakland, California, to the Dallas/Fort Worth Airport, where they were to change planes in the American terminal. While walking to their assigned gate, Floyd Slentz, ninety-two years old, became separated from his wife. The Slentzes charged that, with the cart she was driving, Finau hit either Floyd or the bag of gifts he was carrying, causing him to fall. The injuries he suffered when he fell required a partial hip replacement.

Among their claims, the Slentzes sought recovery under the DTPA for American's alleged breach of its implied warranty of safe carriage. A breach of an implied warranty may give rise to a DTPA claim even though the DTPA does not create any warranties. La Sara Grain v. First Nat'l Bank, 673 S.W.2d 558, 565 (Tex.1984); DTPA § 17.50(a)(2); Alderman & Rosenthal, A Consumer Update: Recent Developments Under the Texas Deceptive Trade Practices Act, 20 St. Mary's L.J. 495, 509 (1989). The Slentzes alleged that by agreeing to transport them American impliedly warranted, but failed, to do the following:

1. Safely carry or transport appellants to their destination;

2. Render special care and assistance necessary to ensure the safety of appellants;

3. Maintain its equipment and facilities in a safe condition suitable for appellants to occupy while awaiting transportation to their final destination;

4. Protect appellants from dangers and abuse caused by others; and

5. Exercise that high degree of care and diligence which it owes to its passengers for their safety.

American specially excepted to these allegations on the ground that Texas law does not recognize, in a common carrier/passenger relationship, the implied warranties the Slentzes urged. The trial court sustained the special exceptions and struck those portions of appellants' petition alleging breach of implied warranties and violation of the DTPA. Nevertheless, inquiries on these issues were submitted to the jury.

The jury failed to find that any party was negligent and refused to find that American had acted in a manner that violated any of the standards of safe carriage earlier enumerated. Based on this verdict, the trial court rendered a take-nothing judgment against the Slentzes and overruled their motion for new trial.

Implied Warranty of Safe Carriage

In their first two points of error, the Slentzes attack the trial court's actions granting American's special exceptions, striking the excepted portions of the Slentzes' pleadings, and denying the Slentzes an opportunity to amend. The trial court has broad discretion in ruling on special exceptions, and the ruling will not be disturbed on appeal absent an abuse of discretion resulting in harm. Davis v. Quality Pest Control, 641 S.W.2d 324, 328 (Tex.App.1982, writ ref'd n.r.e.)

The Slentzes complain that the trial court erred by sustaining American's special exceptions. They argue that compelling public policy reasons exist for extending the theory of implied warranty recognized in other performance contracts to a provider of air transportation services. See Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 352-54 (Tex.1987); Kriendler, Aviation Accident Law § 3.03 (1987). Although appellants contend that an implied warranty of safe carriage exists under Texas law, they acknowledge that no Texas court has ever discussed or recognized it. ² Instead, the law has long held that a common carrier is not an insurer of the safety of its passengers but owes them that high degree of care that a very cautious, prudent, and competent person would use under the same or similar circumstances. City of Dallas v. Jackson, 450 S.W.2d 62, 63 (Tex.1970); Delta Airlines, Inc. v. Gibson, 550 S.W.2d 310, 312 (Tex.Civ.App.1977, writ ref'd n.r.e.). We cannot say that the trial court abused its discretion by basing its ruling on existing law.

The Slentzes further complain that the trial court erred in striking their pleadings without giving them an opportunity to amend. Appellants' argument assumes the trial court denied them the opportunity to amend their pleadings. The trial court did not prevent them from exercising their right to amend, however, and they had time to do so as the trial was not set until several weeks after the hearing. Appellants amended their petition to add a new claim for recovery at the time of the hearing on American's exceptions and twice thereafter, but before trial, filed supplemental pleadings. Appellants do not invite our attention to any instance in which the trial court denied leave to amend.

The Slentzes' position is generally correct; a party should usually have an opportunity to amend a defective pleading. See State v. Houdaille Industries, 632 S.W.2d 723, 724 (Tex.1982). This is unnecessary, however, if the pleading defect is of a type that amendment cannot cure. James v. Hitchcock Indep. School Dist., 742 S.W.2d 701, 704 (Tex.App.1987, writ den.); Geochem Laboratories, Inc. v. Brown & Ruth Laboratories, Inc., 689 S.W.2d 288, 290 (Tex.App.1985, writ ref'd n.r.e.); Jacobs v. Cude, 641 S.W.2d 258, 261 (Tex.App.1982, writ ref'd n.r.e.). The crux of the Slentzes' complaint is that, for the first time, Texas should impose upon common carriers an implied warranty of safe carriage and should recognize a cause of action for its breach. Their pleadings were stricken because, under existing law, relief could not be granted on the cause asserted. Theirs was not a defect they could cure by amendment. Indeed, on appeal they do not suggest any different manner of stating their action but instead urge us to adopt their stricken allegations as the law.

Finally, error resulting from the trial court's ruling, if any, is not reversible because appellants cannot show that they suffered any resulting harm. Despite its pretrial ruling, the trial court admitted evidence on the issues and submitted questions to the jury concerning American's performance of each implied warranty, but the jury failed to find that American had acted negligently or breached any duty allegedly warranted. Even assuming appellants should have been permitted to plead an action for breach of the implied warranty of safe carriage, based on the stricken pleadings and the jury's verdict, the same judgment would have been rendered. In this instance, the trial court's submission of the charge cured any error. Appellants failed to convince the jury that American violated the standards appellants sought to impose. Therefore, appellants have not shown that any trial court error caused the rendition of an improper judgment. See Tex.R.App.P.Ann. 81(b)(1) (Pamph.1991). Because on this record we must uphold the trial court's judgment, we need not decide whether Texas recognizes an implied warranty of safe carriage. We overrule points of error one and two.

The Slentzes' Remaining Point of Error

In their third point of error, appellants state:

The trial court erred in overruling plaintiffs' motion for new trial, because the negligence of Mary Finau, J.J. Security and American Airlines that proximately caused the occurrence in question and Floyd and ...