Lead Opinion
delivered the opinion of the Court with respect to Parts I and II,
In this crashworthiness case, the Mileses contend that the tension eliminator in the seatbelt system of a Ford Ranger pickup truck was defectively designed and failed to prevent severe injuries to Willie Searcy. Because venue was improper in the county in which this case was tried, we reverse the judgment of the court of appeals in part and remand this case to the trial court for transfer to Dallas County and a new trial. We
I
Fourteen-year-old Willie Searcy, his younger brother Jermaine Searcy, and his stepfather Kenneth Miles were passengers in a 1988 Ford Ranger pickup truck when it was involved in a collision in Dallas County. The accident occurred on IH-35 when a Mercury Cougar traveling in the opposite direction on the other side of the interstate veered across the median into oncoming traffic and struck the Ranger. Willie Searcy is a quadriplegic as a result. He breathes only with the assistance of a ventilator and requires continuous care. Jermaine Searcy and Kenneth Miles suffered less severe injuries from which they substantially recovered.
Kenneth Miles was driving the Ranger and when the collision occurred was wearing a three-point lap and shoulder belt restraint system. Jermaine Searcy was in the middle seat and wore a lap belt. Willie Searcy occupied the right passenger seat and wore a three-point restraint identical to that worn by his stepfather. Expert witnesses for the plaintiffs testified that Willie Searcy’s injuries were more severe than they otherwise would hаve been because Ford defectively designed a “tension eliminator” that was part of the seat belt assembly. There was evidence that Willie Searcy had leaned forward to retrieve some trash from the floor of the pickup, and the Mileses’ experts theorized that when he did so, six to eight inches of slack were introduced into the shoulder harness and remained when Willie Searcy settled back into his seat. The Mileses contended that this caused his severe injuries either because the slack prevented the belt from adequately restraining Willie Searcy or because the belt caught his head and neck and tore his head from his spinal cord.
Susan Miles, who is Willie and Jermaine Searcy’s mother, and her husband Kenneth Miles brought suit against Ford Motor Company and Doug Stanley doing business as Doug Stanley Ford, the Dallas dealership from which Kenneth Miles had purchased the Ranger. The suit was instituted in Rusk County, although the collision occurred in Dallas County, the Ranger was purсhased in Dallas County, and the Mileses and the Sear-cys all resided in Dallas County. The Miles-es contend that venue was proper in Rusk County because a Ford dealership is located there, although the Mileses concede that the Rusk County dealership has no connection with the collision or to the Ranger. Ford requested the trial court to transfer venue to Dallas County, and that motion was denied.
The damages sought from Ford and Stanley included loss of consortium by Willie Searcy’s brother and stepfather because of Willie’s severe injuries. Ford and Stanley moved for partial summary judgment on these claims, contending that the common law of Texas does not recognize a right of recovery by siblings and stepparents. The trial court granted that motion prior to trial. The remaining claims were submitted to a jury which found against Ford on all theories of liability and awarded $80 million in actual and $10 million in punitive damages. However, the jury refused to find against Doug Stanley Ford on any theory. The trial court entered judgment against Ford alone in accordance with those findings. Both Ford and the Mileses appealed. The court of appeals reversed the punitive damages award, holding that there was insufficient evidence to support the jury’s findings of gross negligence and malice. The court of appeals then remanded the gross negligence and malice issues for retrial, but refused to order a retrial of the negligence issue. The trial court’s judgment was affirmed in all other respects.
Ford challenges the judgment of the court of appeals on numerous grounds, including the remand of only gross negligence for another trial. Because the entire ease must be retried, we do not reach that issue, which is considered by Justioe Gonzalez in his concurring opinion. The judgment of the court of appeals must be reversed and the matter remanded for a new trial because venue did not lie in Rusk County.
With regard to the conditional cross-аpplication filed by the Mileses, we affirm the judgment of the court of appeals that the
II
The first question that we must resolve is whether the trial court erred in failing to grant Ford’s motion to transfer venue to Dallas County. The collision occurred in Dallas County, and the dealership from which Kenneth Miles purchased the Ford pickup is located in Dallas County. Ford, а foreign corporation, has its regional headquarters in Dallas, and its principal place of business in Texas is in Dallas County.
The sole basis for venue in Rusk County is that Premier Ford Mercury, Inc., a Ford dealership unrelated to the purchase of the truck by Kenneth Miles or to the collision, is located in Rusk County. The Mileses assert that venue is sustainable pursuant to former section 15.037 of the Texas Civil Practice and Remedies Code, which was in effect at the time this suit was filed. Act of June 3, 1987, 70th Leg., 1st C.S., ch. 4, § 1,1987 Tex. Gen. Laws 52, 53 (formerly codified at Tex. Crv. Prac. & Rem.Code § 15.037), repealed by Act of May 8, 1995, 74th Leg., R.S., ch. 138, § 10, 1995 Tex. Gen. Laws 978, 981.
If there is any probative evidence in the entire record that Ford maintained an agency or had a representative in Rusk County, even if the prеponderance of the evidence is to the contrary, we must defer to the trial court’s determination that venue was proper in the county of suit. Ruiz v. Conoco, Inc.,
This Court has long held that the terms “agency” and “representative” as used in the former venue statutes are not to be interpreted in light of the law of respondeat superior. Milligan v. Southern Express, Inc.,
The Mileses argue that thе Premier dealership in Rusk County was an agency of Ford Motor Company because Ford owned 77% of Premier’s stock and by virtue of that stock ownership, Ford ultimately received 78.08% of any profits generated by the dealership. The ownership of some or even all of the stock of a corporation does not establish that the corporation is an “agency” or “representative” of its stockholders within the meaning of former section 15.037. We held in Atchison, Topeka and Santa Fe Ry. Co. v. Stevens,
The question for venue purposes is whether Premier possessed broad power to act for Ford. Ruiz,
Another instructive decision isRouse v. Shell Oil Co.,
In contrast, in Milligan, two comрanies were engaged in the business of shipping freight.
The court of appeals concluded that because warranty work, pre-delivery preparations, and recall corrections were performed fоr Ford by the Premier dealership in Rusk County, and because the sales contracts executed by Premier created warranty obligations for Ford, there was some evidence that Premier was Ford’s agent or representative. At least two decisions of courts of appeals that predate Ruiz similarly concluded that pre-delivery inspections or the power to bind a manufacturer to a warranty would support venue under former article 1995(27). See General Motors Corp. v. Ramsey,
While warranty and recall work may entail some discretion on the part of an automobile dealer, it is not the type of “broad power of attorney” contemplated in Milligan,
The Mileses point to testimony that Ford had once told a sales manager at yet another Ford dealership, the Henderson Ford-Mercury, Inc. dealership in Rusk County, that “[y]ou are Ford Motor Company in this area [Rusk County].” Even assuming that a statement made to an employee of an unrelated entity was relevant in determining the power of Premier to act for Ford, it cannot rеasonably be inferred from this testimony that Premier possessed the broad discretionary authority necessary for venue under former section 15.037. In the CIG v. MAPCO case discussed above, CIG’s employees were “CIG” in Moore County, but that fact says nothing substantive about the power to act for the foreign corporation. An employee who wears a company’s uniform or lapel pin plainly represents that company to the public, but this Court’s decision in Milli-gan made clear that “the presence in the county of a mere servant” is not the equivalent of the presence of an agent or representative for venue purposes. Milligan,
There is no evidence in the record to support the trial court’s conclusion that Premier was the agent or representative of Ford within the meaning of former Tex. Crv. Prac. & Rem.Code § 15.037, and venue did not lie in Rusk County. The Legislature has declared that improper venue cannot be harmless error. Tex. Crv. Prac. & Rem.Code § 15.064(b). Accordingly, we remand this case to the trial court with instructions to transfer the case to Dallas County.
We turn to the loss of consortium issue.
Ill
The Mileses filed a conditional application for writ of error asking that we recognize a cause of action by siblings and stepparents for loss of consortium. The trial court and the court of appeals correctly declined to permit such a recovery.
This Court held in Reagan v. Vaughn,
Respondents have suggested that recognition of this cause of action will somehow have the snowball effect of leading to recognition of actions in favor of siblings, grandparents, close friends, and so on. We have little difficulty limiting recovery to the parent-child relationship.
Id.
We adhere to the boundaries we established for loss of consortium in Reagan. We first note that historically, the common law did not recognize a cause of action for the death of a loved one. It was only with the passage of wrongful death statutes in this and other states that a spouse or child of the deceased could recover for the loss they suffered. See generally W. Page Keeton et al., PROSSER AND KEETON ON THE LAW OF TORTS § 127, at 945-47 (5th Ed.1984). Our current wrongful death statute limits recovery to “the exclusive benefit of the surviving spouse, children, and parents of the deceased.” Tex. Civ. Prac. & Rem.Code § 71.004. Our decision in Reagan was not inconsistent with the wrongful death statute when we held that under the common law, children suffer a compensable loss not only when a parent dies but also when that parent suffers a debilitating, serious, and permanent injury. However, it would be anomalous to recognize a cause of action for loss of consortium for a severe injury to a loved one when there is no recovery for the death of that same family member.
The Legislature has determined that only spouses, parents, and children may sue for wrongful death. While we are not bound by these policy decisions when we consider who may recover as a result of injuries to another person under the common law, the boundaries the Legislature has drawn do inform our decision.
We are further mindful of the course other jurisdictions have charted in this area. We noted in Reagan when we recognized a child’s right to recover for the loss of consortium of a parent that we were among a minority of jurisdictions. Reagan,
Similarly, the Mileses have offered no authority for permitting a stepparent to recover for loss of consortium, and we have found no such authority. As already noted, the majority of jurisdictions do not even permit a natural or adoptive parent to recover loss of consortium for injury to a child.
Although we recognize that there will be cases in which a stepparent or other relative has assumed the role of a parent in a child’s life, we correctly concluded in Reagan that “the two relationships likely to be most severely affected by a negligent injury to a person are the husband and wife relationship and that of parent and child.”
The distinction between the interests of children and those of other relatives is rational and easily applied.... Thus, by limiting the plaintiffs in the consortium action to the victim’s children, the courts would ensure that the losses compensated would be both real and severe.
Id. (quoting Theama v. City of Kenosha,
IV
The Court’s decision regarding venue is dispositive of the judgment that will be entered in this case. However, other substantial and significant issues have been raised, and some of those questions undoubtedly will persist on remand. To permit those issues to linger, perhaps necessitating a third trial, would be patently unjust to the parties and would result in a waste of judicial resources. Only recently, all nine members of this Court joined in considering an issue “not essential to [the] disposition of this case” in order to “provide the trial court with guidance in the retrial” of the case. Edinburg Hosp. Auth. v. Trevino,
The trial court instructed the jury that a manufacturer has a duty to “reasonably design, manufacture and market the vehicle so as not to subject occupants of the vehicle to
The charge included definitions of proximate cause and producing cause followed by this paragraph:
The manufacturer of a motor vehicle has a duty to reasonably design, manufacture and market the vehicle so as not to subject occupants of the vehicle to unnecessary and avoidable injuries in the event of a collision. A motor vehicle manufacturer is not an insurer of the safety of its product and is only required to design, manufacture and market a product that is reasonably safe for its intended use. A defective product, negligence or breach of warranty may be a proximate or producing cause of an injury, whether or not such defective product, negligence or breach of warranty actually caused the particular collision in question.
Six liability issues that each included either producing or proximate cause were then submitted, and those issues encompassed theories of design defect, manufacturing defect, marketing defect, negligence, fitness for ordinary purposes (breach of warranty), and implied warranty of fitness for a particular purpose. The instruction quoted above applied globally to each of these issues. The jury found against Ford and for the Mileses in response to all questions.
At the outset, the Mileses’ contention that Ford waived its objections to the part of the instruction that imposed a “duty ... not to subject occupants ... to unnecessary and avoidable injuries” should be briefly addressed.
A
The Mileses contend that Ford’s objections did not adequately apprise the trial court of why the instruction was error, citing Castle-berry v. Branscum,
In the trial court, Ford leveled the following objections to the global instruction describing Ford’s duty:
Your Honor, our objection to this sentence focuses on the use of the words unnecessary and avoidable. And the objections are these. First of all, that by using that phrase, this sentence, this instruction is a materially incorrect statement of Texas law.
There is, Your Honor, no duty in Texas of a manufacturer to undertake, without qualifications, all steps, no matter how costly or cumbersome that might avoid an injury in the event of a collision, yet this instruction, by inclusion of the terms unnecessary and avoidable injuries, is telling the jury precisely that, that Ford had a duty in this case to do everything that was physically possible, no matter how many billions of dollars it might cost. Even if it was technology that was only available for use on the space shuttle now, that still would be something that this jury was instructed that Ford had a duty to incorporate in this Ranger pickup, because it was a physically possible thing to do, if it was something that could avoid an accident.
After further objections to the same instruction, which are not material here, Ford continued: “Not only is it surplusage, but it is designed and has the effect of nudging the jury towards a Plaintiffs’ verdict in the case.”
In Acord, we approved “the Pattern Jury Charges issue and instruction for design defect cases,” and disapproved “the addition of any other instructions in such cases, however correctly they may state the law.” 669
B
The basic error in the instruction given by the trial court is that it is at odds with the risk versus utility analysis that lies at the core of products liability design defect law in Texas. See Boatland of Houston, Inc. v. Bailey,
The instruction tells the jury that Ford had a duty to “reasonably design, manufacture and market” the Ranger pickup bought by Kenneth Miles “so as not tо subject occupants of the vehicle to unnecessary and avoidable injuries in the event of a collision.” The instruction implies that a manufacturer has a duty to prevent any “unnecessary and avoidable injuries in the event of a collision.” This Court has long recognized that ‘“[a] manufacturer or distributor of products is not an insurer,’ ” Acord,
The Mileses argue that the inclusion of the word “reasonable” after “duty” saves the instruction. That argument should be rejected. The jury was not told what the duty to “reasonably” design meant in this context. The jury could have concluded that cost should not be a factor. Or, the jury could have concluded that the tension eliminator was not reasonably designed to prevent Willie Searcy’s injuries even though the jury may also have concluded that the tension eliminator prevented thousands of other injuries. An example included in an amicus brief in this case illustrates the рroblem. Under the trial court’s instruction, a jury could find that it was not reasonable to design a vehicle capable of exceeding the speed of 55 m.p.h., which was formerly the legal limit in most states. The instruction does not tell the jury to balance the increased risk of injury in collisions that occur while traveling in excess of 55 m.p.h. against the utility of designing vehicles that can exceed 55 m.p.h. In other words, neither the risk nor the utility side of the equation was adequately captured in the trial court’s instruction which simply stated that the duty was to “reasonably” design.
This Court specifically approved the following design defect issue and instruction for use in crashworthiness cases in an effort to instruct the jury regarding its duty to weigh risk against utility:
Do you find from a preponderance of the evidence that at the time the [product] in question was manufactured by [the manufacturer] the [product] was defectively designed?
By the term “defectively designed” as used in this issue is meant a product that is unreasonably dangеrous as designed, taking into consideration the utility of the product and the risk involved in its use.
Turner,
We approved a similar, although not identical, issue and instruction in Acord,
The Mileses alternatively contend that the second sentence of the global instruction to which Ford objects was added at Ford’s insistence and cured any harm. The second sentence says: “A motor vehicle manufacturer is not an insurer of the safety of its product and is only required to design, manufacture and market a product that is reasonably safe for its intended use.” This language does not direct the jury to engage in a risk/utility analysis, which it is required to do in order to find a design defect. The sentence says only that the рroduct must be “reasonably” safe. For the reasons already discussed, the inclusion of only the concept of “reasonableness” is insufficient.
It should be noted that an instruction similar to the second sentence of the instruction submitted in this case was specifically disapproved in Acord,
The erroneous instruction was harmful error. It infected the entire charge. It was given in connection with the definitions of proximate and producing cause. Either proximate or producing cause was an element in each of the six liability issues. The instruction expressly defined Ford’s duty with regard to the design, manufacture, and marketing of the Ford Ranger. The instruction ended by admonishing that a “defective product, negligence or breach of warranty may be a proximate or producing cause of an injury, whether or not such defective product, negligence or breach of warranty actually caused the particular collision.”
The instruction tainted all the findings of the jury in what was a closely contested case. The verdict was not unanimous, and, as the court of appeals .noted, “[t]he evidence is barely sufficient to find ordinary negligence ... [because] Ford relied on studies by [the National Highway Traffic Safety Administration] that consistently showed the risk-utility balance of tension eliminators weighed in favor of overall safety, and that the kind of tension eliminators Ford used were not unreasonably dangerous.”
Two of the decisions on which the Mileses rely in arguing the error in the charge was not harmful recognize that in a close case an erroneous instruction is more likely to result in the rendition of an improper verdict. In Reinhart v. Young,
One final observation about the charge in this case concerns the discussion in the briefing of alternative designs. We have held that “if there are no safer alternatives, a product is not unreasonably dangerous as a matter of law.” Caterpillar, Inc. v. Shears,
V
A second issue likely to recur is the admissibility of certain evidence. During trial, the Mileses played two videotapes of sled tests that Ford had conducted some years ago. Ford contends this evidence was highly prejudicial and inflamed the jury.
Experts for the Mileses had at least two theories of how the slack in the seat belt exacerbated Willie Searcy’s injuries. One was that during the impact of the collision, Searcy slid forward until his body completely loaded the lap belt and then his upper body continued forward until it reached the end of the slack in the shoulder belt and slammed into that belt. Experts called by the Mileses theorized that Willie’s head then continued forward with an enormous amount of acceleration while the rest of his body decelerated, and that these forces tore his skull from his spinal column. Another expert for the Miles-es was of the opinion that the lower part of Willie Searcy’s body “submarined” under his lap belt during the collision and that slack in the shoulder belt caught his neck and almost severed his head from his spinal column.
In 1966, Ford conducted a sled test on a Thunderbird vehicle. The videotape of that test graphically depicts the heads being torn off the two dummies belted into the sled. The tape shows the collision six different times from several different angles in slоw motion. It was played to the jury in its entirety then replayed, stopped, and restarted at various points while the Mileses’ expert Stephen Syson testified. The seat belt assembly in the Thunderbird was substantially different from the one in the 1988 Ranger and did not include a tension eliminator. The Mileses concede that the test is not similar to the collision in which Willie Searcy was injured.
The second videotape was of a sled test conducted in 1980 on a Ford Ranger. The dummies in that test were roughly the size of six-year-old children and were realistically dressed as children. The tape showed six slow motion views of the crash in which the child-like dummies were decapitated. The
It is undisputed that the belt system in the pickup used in this 1980 sled test had no tension eliminator and was different from the belt system in this case. Further, the Miles-es’ expert witness acknowledged that no slack had been introduced into the belt system for the 1980 test. This expert testified, however, that because the belt system in this vehicle had longer belt lengths, it provided a “simulation of the effect of slack here.”
The Mileses have never contended that the sled tests depicted in these videotapes were conducted under conditions similar to the collision in this case. Accordingly, the tapes should not have been admitted as evidence of how Willie Searcy was injured. The only basis urged by the Mileses for the admission of the tapes was for the limited purpose of impeaching Ford’s witnesses. The Mileses contend that Ford made statements in other cases and to the federal government to the effect that it had not conducted tests with slack in the seatbelts. The videotapes, the Mileses argue, pointedly demonstrate that Ford did conduct tests with slack in the seatbelts. The trial court originally ruled that the sled tests would be admitted for impeachment purposes, but gave no limiting instruction to the jury at the time the tapes were introduced into evidence.
As is evident from the testimony quoted above, the tapes were not used for impeachment. The record also reflects that after the 1966 sled test video had been played to the jury, an expert witness for the Mileses agreed that this was “information that Ford had about what seat belts would do when they weren’t snug against the chest and human neck,” and he then testified: “[tjhey at least show the effect of the seat belt and how the seat belt interacts with the neck of the test dummy, particulary children.” Ford objected to the admission of this and the other tape precisely because Ford feared that these tapes would be used to show what the Milesеs contend happened to Willie Searcy and not for legitimate impeachment purposes.
The videos should not have been admitted even for impeachment purposes. While the trial court has considerable discretion in the admission of evidence, it must balance the probative impact of evidence against the possibility of unfair prejudice, confusion of the issues, or misleading the jury. Tex.R. Civ. Evid. 403. The court of appeals correctly observed that relevant photographic evidence is admissible unless it is “ ‘merely calculated to arouse the sympathy, prejudice or passion or the jury’ where the photographs do not serve to illustrate disputed issues or aid the jury in understanding the case.”
# ⅜ ⅜ ⅜ ⅜
Because the motion to transfer should have been granted, we reverse the judgment of the court of appeals in part and remand this case to the trial court for transfer to Dallas County and a new trial.
Notes
. The Legislature repealed section 15.037 in 1995. Act of May 8, 1995, 74th Leg., R.S., ch. 138, § 10, 1995 Tex. Gen. Laws 978, 981. For causes of action commenced on or after September 1, 1995, venue is determined by Tex Civ. Prac. & Rem.Code § 15.002 (Vernon Supp. 1997). Act of May 8, 1995, 74th Leg., R.S., ch. 138, § 11, 1995 Tex. Gen. Laws 978, 981.
. Among those jurisdictions that have considered and rejected a cause of action by a parent for loss of consortium are: Smith v. Richardson,
A few states have recognized that a parent may recover for loss of consortium: Pierce v. Casas Adobes Baptist Church,
. The first question answered by the jury in this case was:
Was there a design defect in the occupant restraint system of the truck at the time it left the possession of the persons listed below that was a producing cause of the injuries to Willie Searcy?
A "design defect” is a condition of the product that renders it unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use.
Answer "Yes” or "No” for each of the following: Answers:
A. Ford Motor Company yes
B. Doug Stanley Ford no
Concurrence Opinion
joined by HECHT and ABBOTT, Justices, concurring.
I agree with the Court’s judgment and opinion. However, I write separately to draw attention to an issue the Court does not reach because of its disposition of the case: whether an appellate court may affirm the trial court’s judgment for actual damages based on negligence, but remand for a new trial only the issue of punitive damages.
Our appellate rules allow a partial new trial only if the part affected by error “is separable without unfairness to the parties.” Tex.R.App. P. 44.1(b) (formerly Tex R.App. P. 81(b)(1)). However, negligence and gross negligence are not separable causes of action but are inextricably intertwined. Negligence is a liability finding, involving duty, breach, and causation. Gross negligence presumes a negligent act or omission and includes two further elements:
(1) viewed objectively from the standpoint of the actor, the act or omission [i.e., harm-causing negligence] must involve an extreme degree of risk, and considering the probability and magnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others.
Transportation Ins. Co. v. Moriel,
Dissenting Opinion
I respectfully dissent from the Court’s opinion on the threshold and dispositive issue of venue.
The Court begins by citing the correct standard of review for venue determinations, but then fails to apply it properly. A reviewing court must defer to the trial court’s venue determination if any probative evidence supports the trial court’s venue ruling, even if the preponderance of the evidence is to the contrary. See Ruiz v. Conoco, Inc.,
The Mileses met the standard for maintaining venue in Rusk County by producing evidence that Premier exercised discretion on behalf of Ford in several respects. It promoted and advertised Ford vehicles, incorporated Ford warranties into Premier sales contracts, performed predelivery inspections, recall and safety corrections for Ford, and had final approval of warranty work done for Ford at the dealership. Under the deferential standard of review, this is some probative evidence that Premier retained broad discretion to act in some respects for Ford, and that Ford consequently maintained an agency or representative in Rusk County. See General Motors Corp. v. Ramsey,
As with its application of the standard of review, the Court’s analysis of the substantive standard for determining venue fails to give due weight to the particular facts of this ease. In rejecting the Mileses’ argument that they produced some probative evidence meeting the appropriate standard, the Court examines in detail only Colorado Interstate Gas Co. v. MAPCO, Inc.,
I disagree with the Court’s venue decision, and accordingly, I dissent. Because the Court remands for a new trial, it need not reach the jury charge or evidentiary issues Justice Owen discusses in Parts IV and V of her concurring opinion.