Torres v. Caterpillar, Inc.
| Decision Date | 24 July 1996 |
| Docket Number | No. 04-94-00789-CV,04-94-00789-CV |
| Citation | 928 S.W.2d 233 |
| Parties | Josefina Acosta TORRES; Adeodato Torres; and Reymundo Ignacio Torres, Appellants, v. CATERPILLAR, INC., et al., Appellees. |
| Court | Texas Court of Appeals |
Rene Rodriguez, Corpus Christi, for appellants.
JoAnn Storey and Tracy J. Willi, Womble & Spain, Houston, for appellee Caterpillar Industrial, Inc.
Before RICKHOFF, STONE and HARDBERGER, JJ.
This appeal arises from a suit involving the death of Reymundo Torres for which appellants contended appellee Caterpillar Industrial, Inc. ("Caterpillar") was responsible under a strict product liability theory. A partial motion for summary judgment was granted in favor of Caterpillar with regard to appellants' manufacturing defect and design defect claims, 1 and the jury found in favor of Caterpillar with respect to appellants' failure to warn defect claim. In five points of error, appellants raise the following complaints contending the trial court erred by: (1) granting the partial summary judgment dismissing the design defect claim; (2) instructing the jury regarding Caterpillar's agency relationship with its authorized dealers; (3) instructing the jury that Torres' employer, Rymco, Inc. ("Rymco"), was in default and negligent by failing to appear; (4) admitting the testimony of an improperly designated fact witness; and (5) accepting a jury verdict containing an irreconcilable conflict. The trial court's judgment is affirmed in part and reversed in part.
In May of 1989, Reymundo Torres was unloading containers from a light truck with a 1968 forklift manufactured by Caterpillar. As he was backing the forklift out of the truck, the forklift fell between the loading dock and the back of the truck, killing Mr. Torres.
Torres was working for a warehouse that was owned and operated by Rymco, a non-subscribing employer under Texas workers' compensation laws. Mr. De La Rosa, the president of Rymco, testified he purchased the forklift from a dealer in San Antonio, but he could not recall the name of the dealer, only that the agent worked in Laredo. The forklift was manufactured by Caterpillar; however, the overhead guard, which was standard equipment on forklifts delivered by Caterpillar to its dealers, was missing. The overhead guard was designed to protect the driver from falling debris rather than as a rollover protection device.
Appellants brought suit against both Rymco and Caterpillar. Appellants claimed Rymco's negligence caused Mr. Torres' injury while appellants' claim against Caterpillar was for strict product liability. Prior to trial, a partial summary judgment was granted in favor of Caterpillar as to the following: (1) Caterpillar, Inc., who was not the manufacturing entity, was dismissed from the suit with prejudice; (2) all allegations with regard to a manufacturing defect were dismissed; and (3) all allegations with regard to a design defect in the original overhead guard were dismissed. At trial, Rymco failed to appear and defend against appellants' claims; however, the case was tried before a jury as to appellants' claim against Caterpillar for a failure to warn or marketing defect. 2
The jury failed to find that any marketing defect was a producing cause of Mr. Torres' death. The jury found the following percentage causation: (1) Mr. Torres--45%; (2) Rymco--50%; and (3) Caterpillar--5%. The jury awarded a total of $425,000 in damages, and the trial court entered a judgment against Rymco for the full amount. 3 The trial court's judgment also reflected that appellants took nothing by their suit against Caterpillar.
In five points of error, appellants raise the following complaints contending the trial court erred by: (1) granting the partial summary judgment dismissing the design defect claim; (2) instructing the jury regarding Caterpillar's agency relationship with its authorized dealers; (3) instructing the jury that Rymco was in default and negligent by failing to appear; (4) admitting the testimony of an improperly designated fact witness; and (5) accepting a jury verdict containing an irreconcilable conflict. We address the points of error in the order raised by appellants.
In their first point of error, appellants contend that the trial court erred in rendering the partial summary judgment dismissing the design defect allegation. Appellants contend that their expert's affidavit raised a fact issue as to whether the overhead guard was defectively designed and could have been designed as a safer more effective rollover protective structure. Caterpillar counters that appellants' argument is raised for the first time on appeal since the expert affidavit presented by appellants to the trial court did not criticize the removability of the overhead guard.
In its motion for summary judgment, Caterpillar asserted the overhead guard was manufactured and delivered as standard equipment and was removed by unidentified third parties who were not under the control of Caterpillar. In support of this assertion, Caterpillar presented the affidavit of Martin T. Robertson, a staff engineer, who stated the forklift was initially sold and shipped to an authorized dealer in Cleveland, Ohio, who subsequently sold it to Republic Supply Co. in Northeastern, Ohio. Mr. Robertson further stated in his affidavit that the forklift was sold with the overhead guard as standard equipment, the overhead guard complied with A.S.A. B56.1-1959, and that the removal of the overhead guard is permissible in limited circumstances under O.S.H.A. regulations. 4 Finally, Mr. Robertson stated Caterpillar never regained possession of or exercised control over the forklift after initial delivery nor did it ever redesign the overhead guard.
Caterpillar also presented the excerpted deposition testimony of Mr. De La Rosa, the president of Rymco, who provided the following information regarding his purchase of the forklift:
Q. Did you buy the forklift involved in the accident on May 17, 1989 used or new?
A. Used.
Q. And who did you buy it from?
A. Caterpillar.
Q. A dealer?
A. In San Antonio.
Q. Do you remember the name of the dealer there?
A. The agent worked in Laredo. I don't recall the name right now.
Q. When did you buy it?
A. Fifteen years ago--I don't know.
In their response to Caterpillar's motion for summary judgment, appellants specified the forklift had the following defects: (1) the overhead guard, which was standard safety equipment on the forklift as manufactured, was removed before it was marketed and/or sold to Rymco by an agent, employee or representative operating under the control of Caterpillar; (2) the forklift contained no warnings regarding the danger in operating the forklift without the overhead guard; and (3) the overhead guard was defective in merely providing "falling object protection" and not "rollover protection." 5 Appellants presented the affidavit of Dr. Jeffrey Ketchman in support of their contention that genuine issues of material fact were raised as to whether each of these defects caused or contributed to Mr. Torres' death.
Dr. Ketchman stated in his affidavit that if an overhead guard had been in place at the time of the incident, "it would have provided a significant measure of protection such that the severity of Mr. Torres' injuries would have been significantly reduced (along with the probability of his death)." Dr. Ketchman further stated "another defect of the subject forklift is defective warnings and instructions," and the absence of such safety warnings and instructions to alert the user that the forklift was initially designed with an overhead guard was another contributing factor that caused Mr. Torres' injuries and death. Finally, Dr. Ketchman concluded the forklift should have been designed with a rollover protective structure, and the absence of such a structure rendered the forklift design defective, contributing directly to Mr. Torres injuries and death.
As previously noted, the trial court granted a partial summary judgment dismissing any allegation with regard to either a manufacturing defect or a design defect in the original overhead guard. Appellants' contention regarding the failure to warn defect was tried to the jury; therefore, the summary judgment only affected appellants' contentions regarding the absence of the overhead guard and the absence of a rollover protective structure.
The standard for reviewing a motion for summary judgment has been clearly established. The movant for summary judgment is first required to disprove at least one of the essential elements of each of the plaintiff's causes of action in order to prevail on summary judgment. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). This initial burden requires the movant to show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In determining whether a material fact issue exists to preclude summary judgment, evidence favoring the non-movant is taken as true, and all reasonable inferences are indulged in favor of the non-movant. Id. Any doubt is resolved in favor of the non-movant. Id.
Texas law recognizes summary judgment to be a harsh remedy requiring strict construction. Garcia v. John Hancock Variable Life Ins. Co., 859 S.W.2d 427, 435 (Tex.App.--San Antonio 1993, writ denied). The reason for applying such a strict standard is because a summary proceeding is "not a conventional trial, but an exception to the usual and traditional formal procedure whereby witnesses are heard in open court and documentary proof is offered and received into evidence." Id. A summary judgment is not intended to permit a trial by deposition or affidavit and should not be resolved by weighing the relative strength of the...
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