File: 050529F - From documents
transmitted: 10/08/2007
AFFIRMED IN
PART, REVERSED and REMANDED IN PART; Opinion Filed
October 8, 2007.
S
In The
Court of
Appeals
Fifth District of Texas at
Dallas
............................
No. 05-05-00529-CV
............................
SHAUN T. MIAN CORP. D/B/A MIDWAY TOWER, IRVING L.
HUMPHREY,
AND CALVIN OTTE,
Appellants
V.
HEWLETT-PACKARD COMPANY, Appellee
.............................................................
On Appeal from the 193rd Judicial District
Court
Dallas County,
Texas
Trial Court Cause No.
03-00408
.............................................................
OPINION
Before Justices
Morris, Moseley, and FitzGerald
Opinion By
Justice Moseley
Shaun T. Mian Corp. d/b/a
Midway Tower, Irving L. Humphrey, and Calvin Otte, appellants, sued appellee Hewlett-Packard Company (“HP”), claiming
a printer/fax machine it manufactured was defective and caused a fire that
damaged their property. They also alleged HP was negligent in the design,
manufacturing, and marketing of the machine. HP filed a combined “no-evidence”
and traditional motion for summary judgment, see Tex. R. Civ. P. 166a(i),
166a(c), which the trial court granted. As discussed herein, we conclude
appellants' circumstantial evidence was sufficient to raise an issue of material
fact as to each contested element of their manufacturing defect claim. Thus, we
reverse the trial court's judgment as to that claim and remand it to the trial
court for further proceedings. We affirm the trial court's summary judgment as
to appellants' other claims.
I. Standard of Review
A party may “move for
summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which
an adverse party would have the burden of proof at trial.” Tex. R. Civ. P.
166a(i). Assuming such a motion otherwise complies with the rule, it must be
granted unless the non-movant produces summary judgment evidence raising a
genuine issue of material fact as to the contested element or elements.
Id.; see W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.
2005).
A party may also move for
summary judgment on traditional grounds, i.e. there is no genuine issue as to a specified material fact and, therefore, the
moving party is entitled to judgment as a matter of law. Tex. R. Civ. P.
166a(c). For a defendant to prevail on a traditional motion for summary
judgment, it must either disprove at least one element of the plaintiff's claim
as a matter of law or conclusively establish all elements of an affirmative
defense to that claim. Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d
280, 282 (Tex. 1996). If the movant meets its burden, then and only then must
the non-movant respond and present evidence raising an issue as to the material
fact(s) in question. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217,
222-23 (Tex. 1999); Tex. R. Civ. P. 166a(c).
We review de novo a
summary judgment granted on either no-evidence or traditional grounds, examining “the entire record in the light most
favorable to the nonmovant, indulging every reasonable inference and resolving
any doubts against the motion.” Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.
2006) (per curiam) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 823
(Tex.2005)). We cannot affirm a summary judgment on grounds other than those
specified in the motion. Tex. R. Civ. P. 166a(c), 166a(i). However, if the trial
court's order does not specify the grounds on which it granted summary judgment,
we affirm if any of the grounds specified in the motion are meritorious. See
Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.
2003). When the motion for summary judgment presents both no-evidence and
traditional grounds, we first review the propriety of the summary judgment under
the rule 166a(i) no-evidence standards. See Ford Motor Co. v. Ridgway,
135 S.W.3d 598, 600 (Tex. 2004) (appellate court reviews no- evidence summary
judgment before addressing traditional summary judgment).
We affirm a
no-evidence summary judgment if, as to an essential element of the claim or defense identified in the motion: (a) there is a
complete absence of evidence; (b) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered; (c) the evidence
offered is no more than a mere scintilla; or (d) the evidence conclusively
establishes the opposite. See King Ranch, Inc. v. Chapman, 118 S.W.3d
742, 751 (Tex. 2003) (citing Merrell Dow Pharms., Inc.
v. Havner, 953 S.W.2d 706, 711 (Tex.1997)). See Footnote 1
Thus, to avoid a no-evidence summary judgment, the non-moving party must bring
forth more than a scintilla of probative evidence to raise a genuine issue of
material fact as to the element or elements attacked. Id. More than a
scintilla of evidence exists when the evidence “rises to a level that would
enable reasonable and fair-minded people to differ in their conclusions.”
Id. (quoting Merrell Dow Pharms., Inc., 953 S.W.2d at 711). On the
other hand, the evidence amounts to no more than a scintilla if it is “so weak
as to do no more than create a mere surmise or suspicion” of a fact.
Id.
We affirm a traditional
summary judgment if the evidence submitted in support of the motion and any response shows that no genuine issue of material
fact exists, and the moving party is entitled to judgment as a matter of law.
Tex. R. Civ. P. 166a(c).
II. Factual and
Procedural Background
A.
Background
Facts
About two months before
the fire, Otte purchased a new HP printer/fax machine from a retail merchant in Los Angeles. The printer arrived in a
sealed box and was undamaged when delivered to Otte. Following the instructions
provided with the printer, Otte unpacked and set up the printer in his office.
He placed it on the left end of the credenza behind his desk, near the box
housing his computer's central processing unit (CPU). He plugged the printer
into a power strip and placed the printer's power supply cord on the floor
beneath the printer. The printer performed without apparent problem until the
fire. Nothing was ever spilled on the printer, and it was never repaired,
serviced, or modified. According to Otte's affidavit, the printer was the only
electrical device on the credenza that was plugged in, and the printer power
supply was the only electrical device at floor level behind, beneath or beside
the credenza near the printer.
About two months after
Otte purchased the printer, a fire broke out in Otte's office. The fire occurred on a Saturday morning, and no one was in the
office at the time. The fire damaged Otte's and other offices in the building.
The printer was severely damaged in the fire.
B.
Procedural
History
Appellants sued HP for
damages caused by the fire, alleging the printer was defectively designed, manufactured, and marketed and that it caused the
fire. Appellants also alleged HP was negligent in designing, manufacturing, and
marketing the printer.
After discovery was
completed, HP filed a combined traditional and no-evidence motion for summary judgment on appellants' products liability
and negligence claims. In its motion, HP contended appellants had no evidence:
(1) of a defect in the printer or that it caused the fire; (2) that the fire
would normally not have occurred in the absence of negligence; and (3) that the
instrumentality causing the injury was under HP's control. In response to HP's
no-evidence summary judgment motion, appellants presented the affidavit of Otte
and the depositions of their two experts on fire origin and cause: Captain
Martinez of the Dallas Fire Department and Edward Roberts, a private fire origin
and cause investigator.
HP's motion also asserted
that its summary judgment evidence proved as a matter of law the printer could not have caused the fire. In support of
its traditional motion for summary judgment, HP presented the affidavit and
report of its electrical engineering expert, Donald Galler; portions of the
depositions of appellants' two fire origin and cause experts (Martinez and
Roberts); and portions of the deposition of appellants' electrical engineering
expert, Glenn Hardin.
The trial court granted
HP's motion for summary judgment without specifying the grounds therefor. Appellants timely perfected their appeal.
III. Preliminary
Matters
To simplify the
discussion of the principal issues presented, we first dispose of appellants' negligence and design and marketing defect
claims.
In addition to their
products liability claims, appellants alleged that HP was negligent in its design, manufacturing, and marketing of the
printer, and pled reliance on the doctrine of res ipsa loquitur. Although HP's
motion directly addressed whether res ipsa loquitur was applicable to prove
negligence, it did not otherwise address appellants' negligence claims. However,
the trial court's summary judgment disposed of appellants' negligence claims as
well as their products liability claims.
On appeal, appellants
present two issues; only the second issue can be said to relate to appellants' negligence claims. In that issue,
appellants assert the trial court erred in “granting HP's motion for summary
judgment on appellants' res ipsa loquitur claim because appellants' summary
judgment evidence raised a genuine issue of material fact with regard to whether
a fire of this nature would ordinarily occur absent negligence and whether the
negligence occurred while the printer was under HP's management and control.”
HP's brief responds in kind, asserting the trial court properly entered summary
judgment on “appellants' res ipsa loquitur claim.”
Referring to res ipsa
loquitur as a distinct cause of action is misleading. Res ipsa loquitur is not a separate cause of action independent of a
negligence cause of action; it is “simply a rule of evidence by which negligence
may be inferred by the jury.” Haddock v. Arnspiger, 793 S.W.2d 948, 950
(Tex. 1990). Thus, we address appellants' second issue in connection with their
negligence causes of action.
Normally, strict products
liability and negligence are separate causes of action with different elements. See Ford Motor Co. v. Miles, 141 S.W.3d
309, 315 (Tex. App.-Dallas 2004, pet. denied) (considering claims for strict
liability and negligence); Otis Spunkmeyer, Inc. v. Blakely, 30 S.W.3d
678, 690 (Tex. App.-Dallas 2000, no pet.) (considering claims for manufacturing
defect and breach of implied warranty of merchantability). However, here
appellants alleged no negligence other than conduct relating to whether the
printer was unreasonably dangerous when sold. As a result, appellants'
negligence theories are encompassed and subsumed in their defective product
theories, and appellants' burden at trial would be to prove injury resulting
from a product defect. See Miles, 141 S.W.3d at 315; see also
Simms v. Sw. Tex. Methodist Hosp., 535 S.W.2d 192, 197 (Tex. Civ. App.-San
Antonio 1976, writ ref'd n.r.e.). Therefore, any error in disposing of
appellants' negligence claims cannot have caused the rendition of an improper
judgment or prevented appellants from properly presenting their case to this
Court. See Tex. R. App. P. 44.1(a). Appellants' rights to recover against
HP stand or fall on the outcome of their products liability claims. We thus
affirm the trial court's judgment as to appellants' negligence causes of action.
Appellants also alleged all
three products liability theories: defective design, defective manufacturing, and defective marketing.
See Footnote 2
Although HP's motion for summary judgment focused on the elements of appellants'
defective manufacturing claim, the trial court's summary judgment disposed of
all products liability claims, not just the defective manufacturing claim.
However, on appeal appellants assert no issue complaining of the trial court's
disposition of their defective design and defective marketing claims. Therefore,
we affirm the trial court's summary judgment as to them. See Pat Baker Co. v.
Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (“It is axiomatic that an appellate
court cannot reverse a trial court's judgment absent properly assigned error.”);
Eichelberger v. Mulvehill, 198 S.W.3d 487, 491 n.2 (Tex. App.-Dallas
2006, pet. denied).
Having disposed of
appellants' negligence claims and their defective design and defective marketing products liability claims, we are left
with appellants' core cause of action: a claim for damages resulting from a
manufacturing defect. It is in the context of this claim that we further
consider whether the trial court properly granted summary judgment.
IV. Appellants'
Manufacturing Defect Claim
A.
Elements of Appellants'
Claims
Products liability
imposes strict liability on the manufacturer of an unreasonably dangerous product that is a producing cause of a plaintiff's
injuries. See Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 613
(Tex. 1996); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 788-89
(Tex. 1967). The plaintiff must prove the product was defective when it left the
hands of the manufacturer and that the defect was a producing cause of the
plaintiff's injuries. Ridgway, 135 S.W.3d at 600. A manufacturing defect
exists “when a product deviates, in its construction or quality, from the
specifications or planned output in a manner that renders it unreasonably
dangerous.” Id. B.
Proof of Manufacturing
Defect
“Both direct and
circumstantial evidence may be used to establish any material fact.” Ridgway, 135 S.W.3d at 601. However, a product
consumer or user is not in a position to know the manufacturing process or how a
defect might have occurred; he is ordinarily ignorant of both the product's
intricacies and its maker's activities. See Sipes v. Gen. Motors Corp.,
946 S.W.2d 143, 155 (Tex. App.-Texarkana 1997, writ denied). Thus, a plaintiff
is not required to show by direct proof how the product became defective or to
identify a specific engineering or structural defect. See id.; V.
Mueller & Co. v. Corley, 570 S.W.2d 140, 143 (Tex. Civ. App.-Houston
[1st Dist.] 1978, writ ref'd n.r.e.). If the plaintiff “has no evidence of a
specific defect in the design or manufacture of the product, he may offer
evidence of its malfunction as circumstantial proof of the product's defect.”
Gen. Motors Corp. v. Hopkins, 548 S.W.2d 344, 349-50 (Tex. 1977),
overruled in part on other grounds by Turner v. Gen.
Motors Corp., 584 S.W.2d 844, 851 (Tex. 1979); Sipes, 946 S.W.2d at
155. See
Footnote 3
A malfunction may be shown by testimony of the product's user about the
circumstances surrounding the event in question. Sipes, 946 S.W.2d at
155.
However, “[t]he inference
of defect may not be drawn . . . from the mere fact of a product- related accident.” Ridgway, 135
S.W. 3d at 602 (quoting Restatement (Third) of Torts: Products Liability § 3
reporter's note to cmt. D (1998)). Thus, proof of a product failure, standing
alone, is not sufficient to raise a fact question as to whether the product was
defective or that it was defective when it left the hands of the manufacturer.
See Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 807 (Tex.
2006).
The tension between these
two concepts-that circumstantial evidence can be used to prove a product defect and that proof of a product failure
standing alone is insufficient to raise a fact issue as to a product defect-is
aptly summarized in Justice Hecht's concurring opinion in Ridgway: “Few
would question the use of circumstantial evidence to prove products liability in
appropriate cases. The hard issue is not whether it can be done, but when and
how.” Ridgway, 135 S.W. 3d at 603 (Hecht, J., concurring). To illuminate
this hard issue-when and how circumstantial evidence is sufficient to prove a
products liability claim-we examine in more detail the supreme court's opinions
in Ridgway and Mendez, as well as the opinion of the Amarillo
court of appeals in Turbines, Inc. v. Dardis, 1 S.W.3d 726, 732 (Tex.
App.-Amarillo 1999, pet. denied).
1.
Ridgway
Ridgway involved a
products liability claim against a pick-up truck manufacturer for damages resulting when the vehicle caught fire while
being driven. The Ridgways, plaintiffs in the case, were the third owners of the
pick-up. The pick-up's first owner drove it for approximately 7,000 miles and
installed a spotlight in the front left door frame. The second owner drove the
pick- up approximately 47,000 more miles and had it repaired four times in an
effort to fix a “clunking noise” that occurred during hard turns. Three of these
repairs also involved the fuel system in an attempt to increase the pick-up's
mileage. The Ridgways drove the pick-up for one month and made no repairs or
modifications before it caught fire. Ridgway, 135 S.W.3d at
599.
In response to the
manufacturer's motion for summary judgment, the Ridgways presented evidence that the fire occurred and an affidavit
from an expert stating he suspected the fire was caused by the electrical
system. However, the expert declined to eliminate all portions of the fuel
system as a possible cause of the accident, conceding “the actual cause of the
fire has not been determine [sic] yet.” Id. at 600.
The supreme
court held that the Ridgways' circumstantial evidence was no more than a scintilla of evidence as to the existence of a
defect in the pick-up at the time it left the manufacturer. Id. at 602.
In doing so, the court declined to decide whether Texas law was reflected in section 3 of the Restatement (Third) of
Torts, See
Footnote 4
stating that if such an inference of product defect can be made, “it would
generally apply only to new or almost new products. Such products typically have
not been modified or repaired, therefore making a product defect the likely
cause of an accident.” Id. at 601.
Justice Hecht's
concurring opinion, however, further explored section 3 to explain his contention that, “while Texas law would allow
proof of products liability by circumstantial evidence in certain cases,
[section 3] does not accurately restate Texas law.” Id. at 602 (Hecht,
J., concurring). According to Justice Hecht, section 3 is modeled on the Restatement (Second) of Torts provision dealing with res
ipsa loquitur (section 328D). See Footnote 5
Id. at 603. However, “[s]ections 3(a) and (b) are less strict than the
parallel provisions in sections 328D(1)(a) and (b),” and the “differences in the
two provisions are such that section 3 is not an analogue of section 328D but
rather a kind of res ipsa B lite!” Id. at 604. Justice Hecht noted that
Texas law on res ipsa loquitur is “at least as strict as section 328D” and that
there was “no reason to allow an inference of products liability any more freely
than an inference of negligence.” Id.
Using the facts in
Ridgway, Justice Hecht illustrated the difference between the
section 3 of the third Restatement and Texas
law:
Section 3(a) “requires only that an injury-causing incident be the kind
of thing that ordinarily results from a product
defect, not that the incident is the kind of thing that ordinarily does
not result unless there is a defect. A pickup suddenly bursting
into flames for no discernible reason is the kind of thing that ordinarily
occurs as a result of a product defect in the sense that product defects do
cause such things. Thus Ridgway has satisfied section 3(a), even though it is
also true that fires in vehicles ordinarily occur for many reasons other than
product defect.
Id. at 603 (emphasis added). However, under section
328D (and Texas law), the Ridgways had not shown
that fires in pick-ups do not ordinarily occur absent a product defect; as
Justice Hecht noted, “they ordinarily occur for all sorts of reasons.”
Id. at 604. Nor had the Ridgways eliminated by evidence the existence of
other possible causes of the fire; given the circumstances, they had not shown
“another cause was impossible or even improbable.”
Id.
Justice Hecht concluded
with the following statement as to when circumstantial evidence is legally sufficient under Texas law to prove a products
liability claim:
An inference of products liability is really two inferences: that the
product was defective, and that the defect
existed at the time of sale. Applying the principle underlying res ipsa
loquitur, neither inference [regarding products liability] can be drawn without
evidence that the injury would not ordinarily have occurred absent a
product defect and that the defect probably existed when the product was
sold.
Id. (emphasis added).
2.
Mendez
In
Mendez, the plaintiffs sued a tire manufacturer for damages resulting
from a single-vehicle traffic accident.
Mendez, 204 S.W.3d at 799. The plaintiffs alleged the accident occurred
when a tire lost its tread as a result of a manufacturing defect. After
concluding the trial court erred in admitting the testimony of the plaintiffs'
experts, the supreme court addressed whether circumstantial evidence in the
record could sustain the jury's finding of a manufacturing defect. After noting
that a defect cannot be inferred from the mere fact of a product-related
incident, citing Ridgway and the reporter's note to comment D of section
3, the supreme court explained:
The mere fact that the tire failed
would amount to evidence of a manufacturing defect “so slight as to make any inference a guess [and] is in legal effect no
evidence.” [Ridgway, 135 S.W.3d] at 601. As we discussed in [General
Motors Corp. v.] Hopkins, circumstantial evidence of a product defect
may be offered, but where, in another case, “[t]he record contained no proof of
the [product's] defect except the malfunction itself,” and the product had been
in use for years and subjected to many adjustments and changes, the cause of the
product failure and proof of original defect “could not be answered except by
speculation.” [Hopkins,] 548 S.W.2d at 349-50.
Mendez, 204 S.W.3d at 807 (first brackets original).
See Footnote 6
The court
also adjudged legally insufficient the plaintiffs' expert testimony attempting to eliminate other causes of the tire failure,
stating “[t]he universe of possible causes for the tire failure is simply too
large and too uncertain to allow an expert to prove a manufacturing defect
merely by the process of elimination.” Id. at 807-08. The court noted
that the record contained (apparently undisputed) evidence that: the tire at
issue had 30,000 miles on it; it had a hole from a nail that had penetrated
completely through the tire; and two of the plaintiffs' experts admitted a nail
hole or other puncture can cause tread separation. The court concluded: “In
these circumstances we hold that plaintiffs' attempts to eliminate other
possible causes for the tire failure were legally insufficient to establish a
manufacturing defect.” Id. at 808.
3.
Turbines,
Inc.
Turbines, Inc.
involved a products liability claim against the seller of a used aircraft engine. The plaintiff, Dardis, and his company
retrofitted crop dusting aircraft with turbine engines to increase their
performance. Turbines, Inc., 1 S.W.3d at 730. Dardis obtained a used
Pratt & Whitney turbine engine from Turbines, Inc., performed the retrofit,
and was flying the plane back to his customer when the plane stalled and crashed
shortly after takeoff, injuring Dardis.
According to Dardis, the
engine lost power as he was performing a standard maneuver. Id. Dardis's expert was able to rule out other systems,
such as the fuel system, as the source of any failure, but found that the
engine's compressor bleed valve was missing after the crash. Id. at 732.
Because he could not examine the valve and had excluded other malfunctions in
other systems, the expert concluded the engine lost power as a result of a
failure in the bleed valve. Id. The crash occurred in 1994; the evidence
indicated the valve was on the engine from at least 1968, and possibly as early
as 1964 when the engine was built. There was also evidence the engine had been
used in a mechanics school for several years and had only 900 hours of flight
time, a very low number of hours.
Turbines, Inc. argued
the crash was not caused by mechanical failure but by pilot error. Id. at 730. Several experienced pilots who witnessed
the crash testified Dardis used a very short ground roll before takeoff, climbed
at a very steep angle, and made a 180-degree turn with a high bank angle. These
maneuvers significantly increased the airspeed necessary to avoid a stall. The
pilots testified the plane stalled and crashed into the hangar. They agreed
there was no change in the engine sound during the flight. Id. at 731.
The trial court entered a judgment in favor of Dardis based on the jury's
findings of liability.
The court of appeals
noted that whether the engine failed was a heavily disputed issue, unlike the situation in Sipes, where it was
undisputed the airbag did not activate. Id. at
736. See
Footnote 7
Dardis's argument, and his expert's conclusion, began with the assumption that
the engine failed. The only evidence that the bleed valve failed was “the
inference made [by Dardis's expert] that the bleed valve must have failed
because he excluded the possibility of malfunction of other engine systems.”
Id. This inference was then used as circumstantial
evidence that there was a defect of some unknown type in the bleed
valve. See
Footnote 8
The court rejected Dardis's product defect theory not because of the
circumstantial nature of the evidence, but because the theory required the use
of one inference as circumstantial evidence to support another inference to
establish the ultimate fact. Id. “It is well established that facts may
not be found based on chains of inferences.” Id. The court concluded
there was no evidence of a defect in the design, manufacture, or marketing of
the engine. Id. at 737.
4.
Summary
From the supreme court's
opinions in Ridgway, Mendez, and the other supreme court opinions cited herein, and the logic underlying
Justice Hecht's concurring opinion in Ridgway, the Amarillo court's
opinion in Turbines, Inc., and the other intermediate appellate court
opinions cited herein, we make the following observations with respect to when
evidence is sufficient to avoid summary judgment on a manufacturing defect
products liability claim.
First, the evidence is
sufficient to avoid summary judgment when, viewing all the evidence in the light most favorable to the non-movant and indulging
every reasonable inference and resolving any doubts against the motion, more
than a scintilla of probative evidence exists as to whether: (1) the product was
defective when it left the hands of the manufacturer; and (2) the defect was a
producing cause of the plaintiff's injuries. Such evidence must do more than
create a mere surmise or suspicion with respect to these two elements. See
Sudan, 199 S.W.3d at 292; Ridgway, 135 S.W.3d at 600; King Ranch,
Inc., 118 S.W.3d at 751; Firestone Steel Prods. Co., 927 S.W.2d at
613. Thus, if the evidence is such as to render any inference of these elements
no more than a guess, it is insufficient. Ridgway, 135 S.W.3d at 601;
see also Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.
1998) (circumstantial evidence is legally insufficient if it admits of two
equally plausible but opposite inferences because selecting one inference over
the other is speculation). This is merely a restatement of the summary judgment
standard of review in the specific context of a manufacturing defect
claim.
Second, “[b]oth direct
and circumstantial evidence may be used to establish any material fact.” Ridgway, 135 S.W.3d at 601. Thus, the “more
than a scintilla” of evidence necessary to avoid summary judgment on a
manufacturing defects claim can be supplied through direct evidence,
circumstantial evidence, or a combination of both.
Third, however, for
circumstantial evidence to support an inference that the product was defective, it must do more than raise the
possibility the injury could have resulted from a defect. This is because
the product's failure, standing alone, provides no more than a basis for
guessing as to whether the product was defective or whether it failed as a
result of other causes. See id. at 601-02 (vehicle fire); see also
Mendez, 204 S.W.3d at 807 (tire failure).
See Footnote 9
For circumstantial evidence to support an inference that the product was
defective, it must provide a reasonable basis for concluding the injury would
not ordinarily have occurred absent a defect. See Ridgway,
135 S.W.3d at 604 (Hecht, J., concurring).
Fourth (and similar to
the third observation), for circumstantial evidence to support an inference that the defect existed when it left the
manufacturer, it must do more than raise the possibility the defective condition
could have existed at that time. Again, this is because evidence that the
product failed, standing alone, provides no more than a basis for guessing as to
whether the product was defective when it left the manufacturer's control. For
the circumstantial evidence to support such an inference, it must provide a
reasonable basis for concluding the defective condition did not arise
subsequent to the manufacturer's exercise of control over the product.
See id.; Hopkins, 548 S.W.2d at 350.
Sometimes this basis can
be provided by evidence of the age of the product and its history of usage up to the time of failure. “The age and use of
[a] product during the time intervening between [its] purchase and malfunction
will tend to support or defeat the circumstantial weight of the malfunction as
proof of original defect.” Hopkins, 548 S.W.2d at 350. New or nearly new
products “typically have not been modified or repaired, therefore making a
product defect the likely cause of an accident.” Ridgway, 135 S.W.3d at
601. Thus, an inference of original product defect may be warranted from the
malfunction of a relatively new or sealed product. See Darryl, 440 S.W.2d
at 631 (three-month-old truck with 600 to 700 miles and no repairs);
Sipes, 946 S.W.2d at 146, 155 (sealed airbag system in new car). However,
such an inference may not be warranted if the product was worn, misused,
damaged, repaired, or altered after it left the manufacturer's control.
See Mendez, 204 S.W.3d at 808 (tire with 30,000 miles and nail
puncture); Ridgway, 135 S.W.3d at 599 (two-year-old truck with 54,000
miles and three repairs to fuel system); Turbines, Inc., 1 S.W.3d at 732
(allegedly defective valve in 30-year-old aircraft engine).
Fifth, for
circumstantial evidence to support inferences that a product was defective and the defect existed at the time it left the
manufacturer, the evidence need not disprove all other possible causes for the
injury. See Darryl, 440 S.W.2d at 632; Parsons v. Ford Motor Co.,
85 S.W.3d 323, 331 (Tex. App.-Austin 2002, pet. denied). For example, “[t]he
plaintiff is not required to exclude an appreciable chance that the event might
have occurred in some other way. Expressed otherwise, a conclusion of causal
connection may be inferred by a balance of probabilities.” Sharp v. Chrysler
Corp., 432 S.W.2d 131, 135 (Tex. Civ. App.-Houston [14th Dist.] 1968, writ
ref'd n.r.e.) (product case). However, the likelihood of other possible causes
must be so reduced that the fact-finder could reasonably find by a preponderance
of the evidence that the cause of the product failure lies at the manufacturer's
door. See Ridgway, 135 S.W.3d at 604 (Hecht, J., concurring) (citing
Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 251 (Tex. 1974) (negligence
case)); see also Merrell Dow Pharms., 953 S.W.2d at 720 (in toxic tort
products case, evidence must exclude other plausible causes of the injury or
condition “with reasonable certainty”).
Sixth, a number of
inferences may be drawn from a single fact situation. See McClure v. Allied Stores of Tex., Inc., 608 S.W.2d
901, 904 (Tex. 1980) (citing Farley v. M M Cattle Co., 529 S.W.2d 751,
756 (Tex. 1975) (proposition that a number of inferences may be drawn from
single fact situation is “well established”)). Thus, circumstantial evidence can
give rise to both the inference of a product defect and the inference that the
defect existed at the time of sale. However, “an inference stacked only on other
inferences is not legally sufficient evidence.” Marathon Corp. v.
Pitzner, 106 S.W.3d 724, 728 (Tex. 2003) (citing Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001)).
See Footnote 10
This principle is illustrated in Turbines, Inc., in which the plaintiff
used one inference (that the engine's bleed valve must have failed because the
expert excluded the possibility of malfunction in the other engine systems) as
the sole circumstantial evidence supporting another inference (that there was a
defect of an unknown type in the bleed valve). Turbines, Inc., 1 S.W.3d
at 736. With these principles in
mind, we turn to the grounds for summary judgment presented in this case.
V. Summary Judgment
Grounds
A.
No Evidence
Motion
1.
Summary Judgment
Evidence
In response to the motion
for summary judgment, appellants presented Otte's affidavit and the depositions of two fire origin and cause experts:
Captain Martinez of the Dallas Fire Department and Edward Roberts, a private
fire origin and cause
investigator.
According to
Otte's affidavit, the printer was new, arrived in a sealed box, and appeared undamaged. He set up and used the printer according
to HP's instructions for approximately two months without problem. The printer
was not damaged, repaired, or modified before the fire. The printer was located
on the left end of the credenza in Otte's office and plugged into a power strip.
The printer's power supply was on the floor beneath the printer. (According to
HP's expert, the printer's power supply was never found after the fire.) The
printer was the only electrical device on the credenza that was plugged in, and
the printer's power supply was the only electrical device at floor level near
the printer and credenza. Otte stated the printer was severely damaged in the
fire.
Captain Martinez is a
trained arson and fire investigator; at the time of the fire he had four years' experience as a fire investigator.
According to his deposition, Martinez investigated the fire scene the day after
the fire during salvage operations. He interviewed firefighters and other
people, including Otte, about the fire, the arrangement of the office, and the
location of the furniture and equipment. Martinez said Otte described everything
that was on the desk and surrounding tables and did not indicate anything was
missing. From interviewing Otte, Martinez understood how the office equipment
was placed in the office and reconstructed the scene according to where Otte
said the equipment was positioned.
Martinez determined the
area of origin by going from the area of least burn damage to the area of most burn damage. He concluded the origin was
toward the window by a desk or credenza. The amount of fire damage to the
credenza and the items on the credenza indicated the origin of the fire. The
printer was more damaged than the other pieces of equipment he examined. The
greater amount of fire damage to the printer indicated it burned longer than
other items, leading him to conclude that was where the fire started. He
determined that some type of electrical malfunction in the printer caused the
fire, although he admitted he was not an electrician and could not say whether
the printer was defective. Martinez also determined the fire damage to the other
computer equipment in the office was due to exposure from another
source.
Roberts was a private
fire origin and cause investigator with eight years' experience at the time of his deposition. He inspected the site shortly
after the fire and retrieved several bags of debris from the dumpster. Roberts
interviewed Otte and Martinez about the fire and the layout of the office before
the fire. There was a large desk in front of the credenza and a small table between the credenza and desk on the north
wall. See
Footnote 11
The credenza was located on the east wall near the northeast corner of the
office. The printer was located on the north end of the
credenza. Photographs See
Footnote 12
of the office indicated the faceplate of the electrical outlet (duplex
receptacle) on the north wall was undamaged.
Roberts did not see the
credenza after the fire, but viewed photographs of the fire damage to the credenza and discussed it with Martinez and Otte. The
northern end and back of the credenza were significantly damaged. Photographs
showed the northern end of the credenza had fallen over. In contrast, there was
fire damage to the right-hand drawers of the desk (in front of the left end of
the credenza), but a lack of fire damage underneath the desk.
Based on the
burn patterns in the office and the evidence that the credenza and table were more damaged than the desk, Roberts determined the
fire originated in the northeast corner. He also determined the fire did not
originate on the floor because the tops of the desk and credenza were more
damaged than the bottoms.
Two computer monitors
were in the office, one on the large desk and the other on the table between the desk and credenza. Roberts examined a computer
monitor and keyboard that had been located on the table between the desk and
credenza. The underside of both were relatively undamaged and the damage to them
had directional patterns indicating the fire spread to
them from another source (rather than originating in them).
See Footnote 13
After
determining the point of origin, Roberts looked at the potential ignition
sources in the area. He said, “In this case, the
only thing that was there was this printer that had been more heavily damaged
than anything else in the room . . . .” The printer “had much more
damage to it and it's the only heat producing item in the area of origin.
Nothing else was plugged in over there.” He explained that the printer was “by
far more damaged than anything there, than the CPUs, than the monitor, than the
keyboard, than any of the electrical items associated with the structure, duplex
receptacles things of that nature.”
Roberts explained his
conclusion that the printer was the only ignition source at the point of origin of the fire:
Q.
And you're not even
saying it's possible then that the printer was the cause of this accident.
You're just saying that that's where you
determined that the origin was and the printer happened to be there; is that
right?
A.
The printer is the only
possible ignition source there, yes.
Q.
But you don't even know
that the printer is a possible ignition source, do you?
A.
Yes, I
do.
Q.
Why?
A.
It was plugged in at the
time, located right at the point of origin and no other ignition source
is there.
Q.
Well, you don't know that
just being plugged in can make it a source of ignition, do you?
A.
Well the fact that its
[sic] burned and it started there indicates to me that it can.
Roberts was questioned
about a letter report from David Sneed concerning the origin of the fire. (Sneed's letter is not in the summary judgment
record; however, Roberts testified as to why he disagreed with the letter's
conclusion that the monitor could have been a source of the fire or that the
fire originated at or near the floor level.) The computer equipment on the floor
at that place had insignificant damage and the underside of the monitor and
keyboard on top of the table were also undamaged. Roberts testified that the
lack of damage to the underside of the monitor and keyboard and to the CPUs and
the more extensive damage to the printer and credenza cannot be explained by
Sneed's theory that the fire originated with the monitor or at or near floor
level.
HP asserts that
appellants' engineering expert, Glenn Hardin, testified he was unable to find any electrical defect in the printer. However,
this statement is not in the summary judgment evidence. Hardin did say he was
unable to form an opinion about whether or not the printer caused the fire. He
also testified the printer “had the capability of starting the fire. And as to
whether or not it actually caused the fire, I'm not prepared to make that
statement.” He concluded the printer had power going to it and “[c]omponents can
fail inside electronic products. Can and do fail.”
The record also contains
the affidavit and report of HP's electrical engineer, Galler. This evidence is described in more detail in the section on the
traditional motion of summary judgment, but briefly, Galler concluded from
examining the remains of the printer and other evidence that appellants' experts
had not scientifically proven the printer could have caused the fire, the
printer did not cause the fire, damage to the computer monitor was consistent
with the fire origin reported by Sneed, and an electrical failure in the monitor
or its power cord could have been a cause of the fire.
2.
Application
Viewing all
the summary judgment evidence in the light most favorable to appellants-including the expert evidence as to cause and
origin of the fire and the circumstantial evidence upon which that testimony is
based-reasonable fact-finders could differ in their conclusions as to whether
the fire started in the printer. Office printers-especially new or nearly new
printers that have not been damaged or abused-do not ordinarily catch fire
absent a product defect. The record further shows the printer was new and had
not been altered or repaired by third parties. From this and the other evidence
in the record, reasonable fact-finders could differ in their conclusions as to
whether the printer was defective and that the defect probably existed at the
time it left the manufacturer. See Ridgway, 135 S.W.3d at 604 (Hecht, J.,
concurring); see also Redman Homes, Inc. v. Ivy, 920 S.W.2d 664, 668
(Tex. 1996) (concluding in breach of warranty case that circumstantial evidence
from fire origin and cause expert was some evidence of defect in wiring of
mobile home). Thus, reasonable minds could differ in their conclusions as to
whether the printer was defective when it left the hands of the manufacturer and
that the defect was a producing cause of appellants' injuries.
HP argues
appellants did not exclude all other possible ignition sources. However, both Martinez and Roberts testified that, in their
opinion, the fire started on the credenza where the printer was located and gave
the reasons supporting their opinions. There is also evidence the printer was
the only device located on the credenza that was plugged in. We conclude this is
sufficient evidence from which reasonable fact-finders might reach differing
conclusions as to whether the fire started in the printer.
3.
Summary
Reviewing the summary
judgment evidence in the light most favorable to appellants, we conclude reasonable minds could differ in their
conclusions as to whether the printer was defective at the time it left HP's
control and whether it was a producing cause of appellants's injury.
Accordingly, the trial court erred in granting summary judgment based on the
no-evidence motion. B.
Traditional
Motion
HP's traditional motion
for summary judgment was based on the affidavit and report of its electrical engineering expert, Galler, which HP contends
conclusively establish that the printer did not cause the fire.
Galler is an
electrical engineer with more than fifteen years' experience in failure
analysis including electrical failure analysis.
He does not purport to be an expert in the investigation of the origin and cause
of fires. Galler reviewed the reports and depositions of Hardin, Roberts, and
Martinez. He also reviewed x-rays of the damaged printer, schematics of the
printer, the Underwriter's Laboratory report on the HP model printer, and
examined and tested an exemplar model printer and AC adapter. He later examined
the remains of the printer and of the computer monitor and keyboard. Galler
expressed the following opinions: (1) plaintiff's experts have not
scientifically proven that it is possible for the printer to cause a fire under
any circumstances; (2) the printer did not cause the fire; (3) the damage to the
monitor power cord and enclosure is consistent with the fire origin reported by
Sneed; and (4) an electrical failure of the monitor or the monitor power cord
could have been a cause of the fire.
Galler determined the
printer cartridges were in the parked position, indicating the machine was in idle mode at the time of the fire. He
examined the printed circuit board in the printer and found it to be heavily
charred on the component side with only a few components remaining. The damage
was uniform and the bottom of the circuit board was less damaged than the top.
He would expect the portions of the circuit board to be completely destroyed if
the printer had been the cause of the fire because the circuit board is where
the eighteen-volt direct current power is connected and distributed to the
motors in the printer. Galler noted the plastic enclosure of the printer was
completely consumed in the fire, but the paper tray had a stack of paper about
three-eights of an inch thick. The paper was charred around the edges, but
otherwise unburned. Stacked paper does not burn as well as loose paper, but
Galler was surprised so much paper survived the fire if the fire originated in
the printer. Galler also observed the printer's AC power adapter was not found.
His report indicates the monitor was damaged on the side and top, but the base
was still intact. He examined a power cord that matched the remains of a power
cord which had been connected to the monitor. The cord insulation was intact
except near the end where several small copper-colored beads were found
indicating some arcing had taken place. Galler stated the beading could have
been caused by a fire attack damaging the insulation while the monitor was
energized or by a failure in the cord due to mechanical stress, resulting in
heating and arcing. This arcing could have been an initiating event in the fire
origin.
In contrast, there is
evidence the fire originated at the place the printer was located and the printer was the only device plugged into an
electrical source at that location. The printer was the most heavily damaged
piece of equipment in the office. Roberts explained that Sneed's report is not
consistent with the location of the fire origin and Sneed did not account for
the greater damage to the printer and the lack of damage to the CPUs and the
underside of the monitor and keyboard. There is no evidence of mechanical stress
to the power cord other than Galler's speculation. Galler was not an expert in
determining fire origin and cause, and he did not explain how the fire could
have originated in the printer without a product defect. We also note that
Sneed's experience, methodology, and actual opinions on the origin of the fire
are not in the summary judgment record.
Galler's opinion that the
printer did not cause the fire is some evidence that, if believed, could negate appellants' product liability claim.
However, HP's burden on a traditional motion for summary judgment is to negate
an essential element of appellants' cause of action as a matter of law.
Friendswood Dev. Co., 926 S.W.2d at 282. As discussed above, there is
evidence in the record from which reasonable fact-finders could differ in their
conclusions as to whether the printer was defective, the defect existed when it
left the manufacturer, and the defective printer caused the fire and appellants'
injury. In view of the other evidence in the record, Galler's opinion does not
negate as a matter of law an essential element of appellants' manufacturing
defect claim.
After reviewing the
summary judgment evidence in the light most favorable to appellants, we conclude HP did not meet its summary judgment
burden of negating as a matter of law an essential element of appellants' cause
of action.
VI. Conclusion
Based on the summary
judgment evidence, we conclude there is a genuine issue of material fact as to whether the printer was defective when it
left the manufacturer and caused the fire. We also conclude that HP did not
negate an essential element of appellants' claims as a matter of law.
Accordingly, we sustain appellants' issues regarding the manufacturing defect
claims. We affirm the trial court's summary judgment as to appellants'
negligence and design and marketing defect claims. We reverse the trial court's
summary judgment on the manufacturing defect claim and remand the case for
further proceedings.
JIM
MOSELEY
JUSTICE
050529f.p05
Footnote
1
In turn, Merrell Dow
Pharmaceuticals, Inc. cites Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of
Error, 38 Tex. L. Rev. 361, 362-63 (1960)).
Footnote
2
A product may be unreasonably
dangerous because of a defect in marketing,
design, or manufacturing. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420,
426 (Tex. 1997).
Footnote
3
Indeed, in a products liability
case circumstantial evidence will often be the
only available evidence of a defect:
It would be equally difficult, if not impossible, for the plaintiff to
rebut by direct evidence all of the conceivable
possibilities which would account for the defective condition other than the
existence of the defect at the time of the sale. Such direct evidence should not
be required, particularly when dealing with a latent defect.
See Darryl v. Ford
Motor Co., 440 S.W.2d 630, 632 (Tex. 1969) (“To exclude circumstantial evidence that the product was defective at the
time of the sale would frustrate the beneficial purposes of the [strict
liability] doctrine.”).
Footnote
4
Section 3
states:
It may be inferred that
the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without
proof of a specific defect, when the incident that harmed the
plaintiff:
(a) was of the kind that
ordinarily occurs as a result of a product defect; and
(b) was not,
in the particular case, solely the result of causes other than the product defect existing at the time of sale or
distribution.
Restatement (Third) of Torts: Products Liability § 3
(1998).
Footnote
5
Section 328D
states:
(1) It may be inferred that harm
suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a
kind which ordinarily does not occur in the absence of negligence;
(b) other responsible
causes, including the conduct of the plaintiff and third persons, are
sufficiently eliminated by evidence;
and
(c) the indicated
negligence is within the scope of the defendant's duty to the plaintiff.
Restatement (Second) of Torts § 328D
(1965).
Footnote
6
The court also held the mere
fact that the tire failed was insufficient to
establish a manufacturing defect because the failure could have been caused by a
design defect-a theory not tried and about which the jury was not asked.
Id. at 799, 807, 808.
Footnote
7
The Turbines, Inc.
opinion mistakenly refers to the Hopkins case as the one where it was undisputed the vehicle airbag did not
activate. Hopkins involved the defective design of a carburetor, 548
S.W.2d at 346-47, while Sipes involved an alleged defect in the airbag
system of an automobile. 946 S.W.2d at 146, 156.
Footnote
8
Yet, the same expert stated the
failure was due to age and “there was no defect
in the design, manufacture, or marketing of the component.” Turbines,
Inc., 1 S.W.3d at 736.
Footnote
9
See also Mack Trucks, Inc. v.
Tamez, 206 S.W.3d 572, 583-84 (Tex. 2006)
(circumstantial evidence that fire quickly reached driver following truck
rollover, although consistent with plaintiffs' theory that fire originated from
allegedly defective fuel system and location of ignition sources, “does not make
it more likely than not that the battery or some other allegedly improperly
located ignition source ignited diesel from the tractor, as opposed to other
possible sources of ignition such as the cargo of crude oil”); Gen. Motors
Corp. v. Iracheta, 161 S.W.3d 462, 470-72 (Tex. 2005) (mere possibility that
fire in truck occurred in manner plaintiff suggested was not enough to support
jury's findings).
Footnote
10
This “purported rule” has been
criticized: “Actually, that is not a separate
rule of decision; it is also but another way of saying that the vital fact may
not reasonably be inferred from the meager facts proved in the particular case.”
Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of
Error, 38 Tex. L. Rev. 361, 365 (1960); see also Phoenix Ref. Co.
v. Powell, 251 S.W.2d 892, 902 (Tex. Civ. App.-San Antonio 1952, writ ref.
n.r.e.) (“This form of statement is often employed by the courts, and has been
used by this writer, as and for a shorthand rendition of the rule which requires
that verdicts be based upon more than surmise and guesswork. The rule can not be
literally applied in all factual circumstances.”); William V. Dorsaneo, III et
al., Texas Litigation Guide § 146.03[6][e][ii][B] (online ed. 2007) (“Texas
courts would be much better off to abandon the inference-piling approach to “no
evidence” review because it is hard to apply, easy to manipulate, and simply not
a reliable tool for assessing the reasonableness of an inference.”); 1A John H.
Wigmore, Evidence § 41 (Tillers Rev. 1983) (“There is no such orthodox rule; nor
can there be. If there were, hardly a single trial could be adequately
prosecuted.”).
Footnote
11
The deposition testimony
references diagrams of the office, but these
diagrams were not included in the summary judgment record.
Footnote
12
The actual photographs mentioned
in the deposition testimony are not included in
the summary judgment record.
Footnote
13
Apparently the photographs of
the monitor and keyboard did not show one side
was more damaged than the other. However, based on his examination at the time,
it appeared to Roberts that the direction of fire travel was from the east to
the monitor. HP's expert, Donald Galler, an electrical engineer, also noted the
monitor was more damaged on one side. Roberts's deposition refers to a
photograph showing the power cord to the monitor located on the desk, but does
not describe the condition of this cord.
File Date[10/08/2007]
File Name[050529F]
File
Locator[10/08/2007-050529F]