Bailey v. Boatland of Houston, Inc.

On by appellant, cross-examination Thor- again

man stated:

Q. you And telling particular are us this

chisel had rubber around it. Yes,

A. sir. Pitts,

J. R. present also the accident

testified:

A. It long (indi- was a chisel about

cating). It has edge an each side like maybe

an axe piece with a of rubber

on the end.

It is now the well settled law of this

state that in reviewing “no evidence”

points, only the support evidence in

finding Calvert, will be considered. “No

Evidence” and “Insufficient Evidence” Error,

Points of (1960). 38 Tex.L.Rev. 361

We find that there was

which the jury could base its Ac answer.

cordingly, we appellant’s overrule third

point of error. of the trial court is af-

firmed. al., Appellants,

Valerie T. et BAILEY HOUSTON,

BOATLAND OF

INC., Appellee.

No. 17323.

Court of Appeals Texas, Civil (1st Dist.).

Houston

June 1979.

Rehearing Aug. Denied 1979. Watkins,

Kronzer, James E. & Abraham Robinson, Houston, appellants. for Butler, Binion, Rice, Knapp, Don- Cook & III, McFall, Gray, E. Hous- ald B. Richard ton, appellee.

WALLACE, Justice. judgment deny- appeal

This is an from wrongful death action ing recovery on a two brought by surviving widow and Bailey, who was adult children of Samuel boating killed in a May 27,1978, Appellants’ accident on point fourth of error is Livingston. on Lake admissibility action was based directed to the es on strict liability in technologi tort state of tablishing existing the seller of the industry bass boat deceased was boating cal advancement operating at the time of features, his death. regards the ab to certain sence assert render the appellants of which jury adversely answered appel- to question defectively designed boat in so as special lants issues inquiring whether: to “unreasonably dangerous,” primarily (1) The question defective, boat in was because there were no devices installed (2) Decedent ques- misused the boat in engine kill the automatically would tion, operator in the event the was thrown from (8) Decedent failed to follow proper Appellants’ the boat. to pretrial motion

warnings instructions, and suggest exclude evidence which would the unavailability of kill the switches (4) Decedent assumed the risk of his time of the manufacture and sale of the death. question Appellants boat in was overruled. Based these answers the trial court granted running objection were a to such entered for defendant. ap- On By point state of the art evidence. error of peal, appellants contend that the evidence four, appellants number the trial assert was such that the boat’s defective condition objection court overruling erred in their at the time it was by appellee sold was allowing appellee to introduce evidence law, established as a matter of or the jury’s of the unavailability of kill switches. Such findings of “no defect” are the is evidence relevant the issue of care great weight and preponderance of the evi- by appellee, which not in a a defense dence; that the trial court erred in admit- strict tort agree action. We ting “state evidence; of the art” and that appellants point and this is sustained. the evidence was insufficient to raise the Testimony appellants was elicited defensive issues of assumption risk, from the inventor of kill that such switches misuse, and failure to warnings. follow relatively simple device awas mechanical Appellants’ point first of error one significantly that would increase the directed to the trial court’s exclusion of a safety of probably boats and would have part of the testimony of the witness Jim prevented Appellants the accident. also in- Buller. The location of the accident was quired into the development date of the of shown other testimony, part so that of the (November 1972) kill switch and the Buller’s testimony which was excluded applied date the patent inventor for a on would been have point, on this cumulative 1973). (January device The date of the and it is overruled. 27,1973. question accident in Ad- May was ditionally, the inventor testified that appellants’ points In of error num concept of kill switches was not new three, bers they two and contend that that the National Outboard Association had boat was defective as a matter been using types various kill switches Further, of law. they contend that thirty years racing boats. defect was so overwhelming finding to contrary Appellee was testimony elicited from the in- manifestly wrong unjust. A review ventor specifics that no one knew of the the record reveals evidence that the obtaining patent boat his prior invention to his question was not testimony manufacturing defective. the switch. Additional- experts the three called appellee ly, was the inventor testified that his switch was factually sufficient to support August issue. not of 1974 and his marketed until points These are overruled. investigation no prior to this time revealed Thus, other such devices were although marketed to establish liability under 402A the § he knew of individuals who made “home- plaintiff must show the was dan- made” kill switches. gerous beyond expectation of the ordi- nary Proponents consumer. of the admissi- Appellee testimony introduced from its bility argue: of state art evidence expert witnesses to the effect that kill “Since whether or not a is defec- switches concept as a existed and various depends upon tive or whether kinds were in prior limited use to the manu- danger ap- involved in its use would be question. However, facture of the boat in consumer, parent to a reasonable state of none commercially were available at the art evidence can be useful in estab- Further, time. accepted it was not lishing that the involved is simi- practice place industrial kill switches on type lar to all other of that bass boats because were not available. therefore an consumer It is the admissibility of this evidence ordinary knowledge with the common to appellants that strenuously objected to at the as to characteristics community its the time of trial and of which now potential danger would have the realized complain appeal on Ap- as reversible error. represented the machine Since pellants’ position is that the “unavailabili- the highest degree safety attainable at ty” evidence admitted in this case is imma- time, by the manufac- as evidenced other terial in a strict liability They action. as- being func- products, turers’ while still sert such evidence could be relevant to tional it it was not defective because part establish “care” on the of the manufac- present didn’t danger which would not boat, designing turer in the and that is not anticipated by be a reasonable consumer.” in issue. 654, Murray, supra p. 655. products An extensive review liability Corp., also See Bruce v. Martin-Marietta caselaw reveals the of the admissi- (10th 1976). 544 F.2d 442 We do not Cir. bility relevancy of state of the art feel, however, purpose that the intent and evidence has not been addressed in Texas liability by of strict tort would be satisfied holdings the jurisdictions other are expectations being the consumers not in agreement. divergent philoso- Two defined the actions of manufacturers phies have developed leading opposite suppliers products may whose be defec- conclusions. the philosophy presupposes tive. This that expectation ordinary as to of an consumer argument advanced in favor of product of a is determined admissibility of state of the art evidence generally accepted practices trade within is that it product is relevant to show a reasoning re- industry. That line of defective as defined the Restate quires presumption ordinary an that ment. Murray, The State of the Art De ex- all the technical consumer is aware of fense in Liability, Products Marq. Strict 57 manufacturers, pertise who are (1974); Friedman, L.Rev. 649 Fromer & charged expert knowledge having Liability, 16A(4)(i). Products The Re § ordinary expectation the field. The of the provides statement that in impose order to experience consumer should be based strict liability: itself, expert tech- product with the not the “The article must dangerous be to an of the manufacturers nological knowledge beyond extent that which would be con- industry. within the templated by consumer who purchases it, jurisdictions and commenta ordinary knowledge with the Several that state community common in the have the conclusion as its char- tors reached (2nd) to a acteristics.” Restatement of Torts of the art evidence is not relevant 402A, (1965). Foglio comment I v. Western § at 352-53 strict action.

809 Auto Supply, 470, 56 Cal.App.3d (2) (1) 128 Cal. The rule stated in Subsection Rptr. (1976); 545 Cunningham v. MacNeal applies although Hospital, Memorial 47 Ill.2d 266 N.E.2d (a) possible the seller has exercised all (1970); Mathews v. Warner Stewart care preparation and sale of his ” Corp., 20 Ill.App.3d 314 N.E.2d 683 . (1974); Co., Mfg. McKasson v. Zimmer The rationale for the doctrine of strict lia- Ill.App.3d 429, 299 (1973); N.E.2d 38 Scar bility is stated in comment C to Restate- zafava, An Analysis of Liability Products ment, 402A, provides: Section Defenses, Mary’s (1977); 9 St. L.J. 261 Ka- theory, justification On whatever for rasik, “State of the Art or Science”: It is a strict has been said to be that Defense to Liability? Products 60 Ill.B.J. seller, by marketing his 348 (1972). argument advanced for consumption, use and has undertaken and position this express provisions that special assumed responsibility toward provide Restatement strict tort liabil consuming member of the public who ity for a dangerously defective will it; may injured by public be that the has imposed notwithstanding “the seller has right expect, to and does in the care of possible exercised all prepara care in the for which needs and for which tion and sale of product.” his Restatement seller, it is rely upon forced to that of Torts (2d) Therefore, 402A. § reputable sellers will stand behind their pertaining to existing state of the art goods; public policy demands that addresses the irrelevant issue of care. To injuries burden accidental caused allow a defense to strict liability on the by products consumption intended for product basis a was made in accordance placed them, upon those who market with the best practices available and exist and be production treated as a cost of ing technology in the industry at the time liability insurance can be production, argued, it is would emascu obtained; and that the of such consumer late the doctrine of strict tort liability and pro- is entitled to the maximum “signal a return to a negligence theory.” someone, tection at the hands of and the Cunningham v. MacNeal Hospi Memorial proper persons, to afford it are those who tal, supra, 266 p. N.E.2d at agree. 902. We products.” (at p. 349-50). market In Affiliate, McKisson v. Inc., Sales 416 In the Turner recent case of v. General S.W.2d (Tex.1967), 787 the court adapted Motors, 844, 1979), 584 court S.W.2d the rule of strict liability in Texas as stated expressly a in held that definition of unrea- Section 402A of the (2nd) Restatement sonably dangerous should not be submitted Torts. The Supreme recog- Court has since jury. nized that that court stated: represented decision “our yield to the logic irrefutable that the rule of persuaded “We are to this conclusion liability strict is the only practical vehicle jur- inconclusiveness idea for protecting the public against harm ors would know what consumers caused a product. defective Pittsburg expect consumption would or use Coca Bottling Cola Works of Pittsburg v. jurors a product, or that would or Ponder, 443 (Tex.1969). S.W.2d 546 apply any could outside standard or test experiences expecta- that of their

Section 402A of the (2nd) Restatement tions. . . *. The stated reason for provides: Torts prudent alternative test of the manu- “(1) One any product who sells in a justify facturer does not its continued defective condition unreasonably danger- (at 851) use.” p. ous to the user or consumer ... is subject liability Nonetheless, physical for the tri- majority suggested harm thereby error, caused to the although ultimate user . al court committed harm-

less, failing prudent to submit the manu- 810

facturer disjunctive element of the test of distinction must be drawn between strict an “unreasonably dangerous” product. liability negligence court actions. The prudent manufacturer element is not in- stated: “ cluded in the Restatement definition of suppli- . . The care taken “unreasonably dangerous.” Camp- Justice product preparation, er of a in its manu- bell, concurring opinion, in a states: facture, sale, or is not a consideration overruling

“In prior is, however, this court’s decisions liability; strict this the ulti- by discarding the Restatement’s defini- negligence mate in a action. unreasonably tion of dangerous, the liability ma- at the itself Strict looks jority opinion give cognizance fails to Negli- due determines if is defective. to the underlying policy purpose gence looks at the acts of the manufac- tort, strict liability in merges strict liabili- turer and determines if it exercised ordi- ty into negligence liability, nary and for all in design production.” care practical purposes abolishes strict Corp. Hopkins, In General Motors 548 in tort as to design. Liability defective (Tex.1977) supreme S.W.2d our negligence imposed for violation of court said: legal duty to exercise the care of an “[Liability supplier of a does not rest] ordinary prudent person under the same upon what have known he knew or should or similar circumstances. Strict prod- when he manufactured or sold in tort of a places manufacturer who uct; placing into the it rests his defective in the stream of com- stream which is of commerce a merce imposed, not for violation of a demonstrated trial to have been at the duty care, to exercise due but because dangerous.” public policy imposition favors of the bur- Similarly, Professor Green in his article en- den of a product upon defective the man- Liability titled Strict Under 402A Sections ufacturer instead of the consumer. The Litigation, and 402B: A 54 Tex. Decade of public requires interest in human safety (1976), L.Rev. states: possible protection maximum for the duty “The violation of the seller’s in- user product; of the the manufacturer thing. only specific product volves in a position better potential know the —the similarity Its has to the measurement no dangers product in the and test for and of the de- measurement of conduct guard against same while the consumer negligence fendant in a case the con- generally rely and does must on the man- In ordinary prudent duct of the man. skill, ufacturer’s knowledge and warnings products liability, the measure is the dan- unexpected and, of dangers; generally gerously quality specific of the defective the manufacturer is in position a better average product litigation to bear the loss from a faultless but dan- —not of of the same kind.” gerous product than the consumer. James, General Manu- Products —Should admitting The trial court erred in facturers Negligence? Be Liable Without unavailability of kill 24 (1957); Prosser, Tenn.L.Rev. 923 The manufacturing switches at the time of the Pall of the (Strict Liability Citadel to the selling question. The of the boat in Consumer), (1966); 50 Minn.L.Rev. 791 is on the focus in a strict case Keeton, Liability Products Obser- —Some product reasoning the manu not the behind Risks, vations About Allocation 64 Mich. design or the care adoption facturer’s of the (1966).” (at p. 853). L.Rev. 1329 making exercised the manufacturer position This prior is consistent with Su- such decision. preme Court decisions. In Gonzales v. Cat- erpillar Co., Tractor holding unduly 571 S.W.2d This is not harsh (Tex.1978) position the court took the that a cases. defendants in strict e.). court in expressly Turner ref’d n. r. App.-San held that while Antonio writ is not to be the burden theory instructed to balance Misuse is defensive specifically alleged weigh proof appellee. enumerated factors to The acts was on (1) the risk utility of the misuse were product, by appellee to constitute upon lookout, (3) “evidence (2) per- the factors speed, improper of risk and utili- unsafe ty boat, (4) such as those enumerated stand in the mitting passengers Court Appeals, Civil expec- position. as well as in tilt having the motor consumer, tations may of the be Appellee expert as witnesses Mr. called admissible in the trial of such cases.” Hudson, company founder of the who was Those (1) utility factors include: of the designed bass and manufactured the product to the user public and to the as a Cornelius, question. boat in Mr. an officer weighed against whole gravity and like- company bought of the the boat from injury lihood (2) from its use: the availa- company appel- Mr. Hudson’s and sold it to bility of a product substitute which would lees, Nessmith, presi- and Mr. founder and meet the same need and not be unsafe or appellee corporation. dent of Mr. Nessmith unreasonably expensive; (3) the manufac- testified that when he sold the bass boat in ability turer’s to eliminate the unsafe char- question he was aware that it would be acter of the seriously without im- submerged used in areas where there were pairing its usefulness or significantly in- trees, stumps; brush and he was aware that costs; creasing (4) its the user’s antici- boats; people are thrown from he was pated awareness of dangers inherent in person aware that if a were thrown for- and their avoidability because ward out stick question, of the boat in with general public knowledge of the obvious controls, steering it would and stick throttle condition product, of the or of the existence likely pushed be that the controls would be instructions, warnings (at suitable p. or forward, increasing speed of the boat 846). The manufacturer is free to intro- causing sharply right; it to circle duce all available engineer- evidence of the being anticipate and that he could the boat ing design features of the operated passengers standing. Mr. order to show that it is not unreasonably gave Nessmith further testified that he Mr. dangerous. However, permit this does not deceased, Bailey, the an instruction booklet him to bolster his testimony by the cliche warning operate him to the boat with the everyone “But doing else is it.” position motor in tilt while in an area of The admission of the evidence of the una- submerged objects. warning was to vailability of kill switches was erroneous. might the effect that the motor and boat It did not “utility” address the prod- damaged object if an was struck with the uct or process by establish the which the way motor extended all the down. This design adopted was emphasized reasonably but rather suggests appellee that the could the by manufacturer, care exercised the anticipate might operated and the boat that manufacturers, other designing down, the boat with the motor than in a tilt rather question. The by appellee position. care exercised testimony The of Mr. Hudson and is not in issue. Mr. Cornelius conformed with that of Mr. al- points. Nessmith on these All the acts Appellants’ sixth points and seventh part the of leged by appellee as “misuse” on of error are directed to the submission of anticipated reasonably the deceased were the “misuse” jury. Appellants issue to the not by appellee. The misuse issue should correctly contend that misuse can be based have been submitted. only on appellants’ actions deceased not reasonably by appellee. ninth, foreseeable Appellants’ Gener tenth al Corp. Hopkins, Motors Magic to the supra points eleventh of error are directed Sibley, Chef v. (Tex.Civ. warnings S.W.2d 851 issue. Warn- submission of the ings and instructions issues in a strict liabil- that pecuniary suffered no a loss as ity death, case any must be directed result of their father’s to the defects so error alleged on the issue is as these to have harmless to plaintiff’s injury. caused the appellants. Chaparral Chrysler- Mitchell v. Appellee states in its brief that does not Plymouth, (Tex.Civ.App.- 572 S.W.2d 359 contend warnings that was a defense in this e.). Fort Worth writ ref’d n. r. The defense, case. If it was not a the issue judgment of the trial court as to these should not have been submitted. appellants is therefore affirmed. Appellants’ twelfth and thirteenth the trial as to of court points of error are directed to the submis appellant Bailey Valerie is severed and re- sion of the assumption of the risk issue. versed, and as to her the cause is remanded This was a defensive issue and it was in for a new trial.

cumbent on appellee provide to evidence that the dangers deceased was aware of the EVANS, Justice, dissenting. resulting of, from complained the defects majority I of the agree cannot with the further, voluntarily that he assumed availability court that evidence to the of as produced by the risk danger. such Hender I the kill-switch was inadmissible. As read son v. Company, Ford Motor 519 S.W.2d 87 Supreme the Texas decision in Court’s (Tex.1974). completely The record is silent Turner, longer it holds that the is no to as to any knowledge such part on the of the be instructed on the definition of “unrea- Appellee produced deceased. evidence dangerous”. sonably It does not hold that to show that the deceased was a fisherman availability safety of evidence as to the who was familiar with the area where the by the feature should not be considered occurred, accident was familiar with the jury, and, contrary, opin- the court’s operation boats, of familiar was with strongly suggests ion evidence that such is the weather date conditions the of the to jury’s relevant consideration the design process. accident. This evidence did not touch on of “assumption essentials of the risk”: majority of the ultimate effect hold- that the deceased was aware of the defects ing, impose if stand, to abso- allowed is to made the basis this suit and lute manufacturer knowledge full of those defects and the danger- which is “unreasonably dangers arising therefrom, voluntarily he marketed, ous” time it is but which assumed Appellants’ such risk. twelfth and subsequent so reason of the becomes points marketing safety thirteenth are sustained. of a feature invention dangerous to making less brings This us to the permitted to consumer. If the consumer whether the effect of admission of the showing applicability offer evidence unavailability design process, evidence as to the of kill feature in the plus manufacturer should be allowed offer switches submission the defen showing the relative cost and misuse, sive assumption issues of of the risk availability safety feature at obey warnings, failure to when com time the marketed. Unless the bined, prejudice were sufficient ap permitted these circum- seller is to show pellants presentation of their case stances, only partial jury is afforded jury determining influence the in and, thus, does design process view of the question whether the boat in was defective. an informed de- not have facts essential to We find that did. termination was of whether dangerous. unreasonably Appellants Cherry Jerry Paula Bailey, decedent, adult children of unreasonably dan- Where a is not assign finding failed to gerous error to the is marketed and be- at the time it only comes so when some later invention

makes it greater safety, function with evi-

dence regarding availability of the new should,

invention my opinion, be admit- jury’s

ted for the Contrary consideration. the majority’s statement evidence of

availability relevant “care”, such manufacturer’s

is essential understanding reasonable the process under par- which the design

ticular adopted. was If the jury is evidence, allowed to such consider

may impose liability upon the manufacturer though

even item was not rea-

sonably available at the time the

was marketed.

The absolute character of liability im-

posed by not, the majority my opinion,

justified by Turner and constitutes a dan-

gerous extension of the strict doc-

trine.

I would affirm the of the trial

court.

FIRST NATIONAL BANK OF GRAPE-

VINE, Texas, Appellant, TRANSPORTS, INC.,

NU-WAY

Appellee.

No. 18121.

Court of Appeals Texas, Civil

Fort Worth. 28,

June 1979.

Rehearing Aug. Denied 1979.

Second Rehearing Motion for

Overruled Sept. 1979.

Case Details

Case Name: Bailey v. Boatland of Houston, Inc.

Court Name: Court of Appeals of Texas

Date Published: Jun 28, 1979

Citation: 585 S.W.2d 805

Docket Number: 17323

Court Abbreviation: Tex. App.