Werner Co. v. DeVallee

Decision Date25 March 2021
Docket NumberNo. 02-19-00043-CV,02-19-00043-CV
CourtTexas Court of Appeals

On Appeal from the 442nd District Court Denton County, Texas

Trial Court No. 2011-40709-362

Before Kerr, Birdwell, and Wallach, JJ.

Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION

In this products-liability case, appellant Werner Co. appeals a sizeable judgment in favor of appellee John DeVallee. Werner challenges the legal sufficiency of the evidence to support the core elements of DeVallee's products-liability claim, as well as the factual sufficiency of the evidence to support his damages. We find the evidence legally sufficient to bear out DeVallee's design-defect theory. But we agree with Werner that at least one category of future damages was unsupported by factually sufficient evidence. We therefore suggest a remittitur.

I. Background

On February 16, 2011, DeVallee went to Oklahoma to make sales calls for his employer Enpro Distributing, which sold window blinds. While DeVallee was in the area, Enpro sent him to repair a broken chain on a set of blinds at an AT&T store. DeVallee entered the store with a four-foot Werner ladder that he had purchased the month before. He set the ladder up beneath the blinds, climbed it, and began working on the chain.

At some point, the ladder tipped over to the left, and DeVallee with it. There were differing accounts of how the accident occurred. According to DeVallee, he was standing on the second step, squarely centered and working on the chain directly in front of him when something caused him to fall; he testified that his recollection was foggy due to his injuries and loss of consciousness. According to a store employeenamed Thomas Vance, DeVallee was on the third step of the ladder, reaching up to the top of the blinds and leaning off to the left when he lost his balance.

When DeVallee tried to catch himself, he broke his right wrist and cracked his tooth. The wrist injury required multiple surgeries and left DeVallee with persistent pain and limited mobility. As relevant here, DeVallee sued Werner claiming that the ladder was defectively designed and marketed.

At trial, DeVallee's expert L.D. Ryan told the jury that the ladder suffered from a design defect: the ladder was overly flexible and allowed an ordinary user to inadvertently twist or "rack" the ladder several inches as he climbed it. According to Ryan, when an average ladder is racked, its legs are unevenly placed such that one leg dangles in the air, and it is inherently unstable and liable to shift underneath the user "like a bucking bronco." He theorized that the racking problem might have been exacerbated by the design of the ladder's front legs, which had a C-shaped design that could rotate when the ladder was under a load. Ryan opined that DeVallee must have inadvertently twisted the ladder when he climbed it and that the resulting instability caused him to fall. By Ryan's account, this flexible play in the ladder could be limited by at least three different feasible designs that would cost-effectively enhance the ladder's rigidity, and thus safety, without impairing its utility.1

Various other witnesses also testified at trial. DeVallee presented expert medical testimony concerning his injury and treatment, as well as his pain and medical needs. DeVallee's brother told the jury about the heavy toll that the accident had taken on DeVallee and his quality of life. Werner's expert and corporate representative Frederick Bartnicki disputed the notion that the ladder was defective; he testified that the ability to twist or rack is not a defect but an essential feature that allows the ladder to be safely used on uneven surfaces.

After the close of the evidence, the jury found that the ladder had design and marketing defects that caused various forms of damages in a total amount of $4,791,582.78. Werner appeals.

II. Legal Sufficiency of the Evidence on Defective Design

In its first issue, Werner asserts that the evidence is legally insufficient to show that the ladder suffered from a design or marketing defect and that any defect caused DeVallee's injury. As to defective design, Werner primarily relies on the evidence that it presented at trial to support the ladder's safety, to show that alternative designs would not meet the same needs, etc. However, the jury could have rationally disregarded that evidence and instead focused on the countervailing evidence that DeVallee presented concerning the same issues. As we explain, DeVallee's evidence provides more than ascintilla of support for each of the five factors by which we evaluate whether the ladder was defective.

We may sustain a legal-sufficiency challenge only when (1) the record bears no evidence of a vital fact, (2) the rules of law or of evidence bar the court 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, or (4) the evidence conclusively establishes the opposite of a vital fact. Shields L.P. v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017). In determining whether legally sufficient evidence supports the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and must disregard contrary evidence unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). We indulge "every reasonable inference deducible from the evidence" in support of the challenged finding. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018).

Anything more than a scintilla of evidence is legally sufficient to support a finding. Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996); see also 4Front Engineered Sols., Inc. v. Rosales, 505 S.W.3d 905, 909 (Tex. 2016) ("The evidence is legally sufficient if . . . there is more than a scintilla of evidence on which a reasonable juror could find the fact to be true."). Scintilla means a spark or trace. Scintilla, Black's Law Dictionary (10th ed. 2014). Morethan a scintilla exists if the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Rocor Int'l, Inc. v. Nat'l Union Fire Ins., 77 S.W.3d 253, 262 (Tex. 2002); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). On the other hand, when the evidence offered to prove a vital fact is so weak that it creates no more than a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

To recover on a products-liability claim based on an alleged design defect, a plaintiff must prove that (1) the product was defectively designed so as to render it unreasonably dangerous, (2) a safer alternative design existed, and (3) the defect was a producing cause of the injury for which the plaintiff seeks recovery. Genie Indus., Inc. v. Matak, 462 S.W.3d 1, 6 (Tex. 2015). Whether a defective design renders a product unreasonably dangerous depends on whether the product's risks outweigh its utility, considering a five-factor test: (1) the utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use; (2) the availability of a substitute product which would meet the same need and not be unsafe or unreasonably expensive; (3) the manufacturer's ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs; (4) the user's anticipated awareness of the dangers inherent in the product and their avoidability because of the general public knowledge of the obviouscondition of the product, or of the existence of suitable warnings or instructions; and (5) the expectations of the ordinary consumer. Id. at 9-10.

A. The utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use

According to Ryan, the ladder in question racked excessively, and he testified concerning the dangers of such a ladder. Ryan explained that when a ladder is twisted or racked, the ladder becomes unstable, and that instability directly contributes to the risk of injuries "because it's like a bucking bronco. The thing will move on you." Ryan testified that dating back to the 1970s, manufacturers had documented the need to address racking in order to make ladders safe. Ryan tested the model of ladder that was involved in DeVallee's accident, and he found that even under moderate stress, the ladder racked between 5.75 and 8.25 inches.

Moreover, the primary evidence concerning the ladder's alleged benefits was flawed. According to Werner's expert, the principal virtue of designing a ladder to allow significant racking is that it is conducive to use on uneven surfaces: the twisting and flexing of the ladder allows the legs to adjust to the contours of uneven terrain. However, in its written warnings on the ladder, Werner forbade using the ladder on uneven surfaces. Thus, the supposed benefit of the racking feature was forbidden to all prudent users. Werner's argument concerning the benefits of racking is self-defeating. See Jackson v. Michelin N. Am., Inc., No. 07-16-00325-CV, 2018 WL 4323624,at *5 (Tex. App.—Amarillo Sept. 10, 2018, pet. denied) (mem. op.) (reasoning that a products-liability party's "circuitous reasoning defeats itself").

To combat DeVallee's case on the relative merits and demerits of a racking ladder, Werner also introduced statistics reflecting that relatively few injuries had been reported regarding this particular model of ladder. We agree that this sort of evidence was probative in...

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