GANN v. ANHEUSER-BUSCH, INC. No. 08-11-00017-CV.
394 S.W.3d 83 (2012)
Marty Danielle GANN, Appellant, v. ANHEUSER-BUSCH, INC. and Falls Distributing Company, Inc., Appellees.
Court of Appeals of Texas, El Paso.
July 25, 2012.
Mark Barber , Wichita Falls, TX, for Appellant.
Richard C. Danysh , Bracewell & Giuliani, San Antoni, TX, for Appellees.
Before McCLURE, C.J., RIVERA, and ANTCLIFF, JJ.
CHRISTOPHER ANTCLIFF, Justice.
In this case, the issue we must address is whether the Appellees, the manufacturer and seller and the distributor of a "longneck" glass beer bottle, are liable for the injuries sustained by Appellant when she was struck in the face by a patron at a bar wielding the bottle as a weapon. Concluding that Appellant has failed to produce more than a scintilla of evidence that the longneck bottle was defectively designed so as to render it unreasonably dangerous and failed to establish that Appellees owed her a legal duty to protect her from the criminal acts of a third person, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
While celebrating a friend's birthday at a bar known for its violence, Gann was assaulted by a patron wielding a Budweiser "longneck" glass beer bottle. Struck twice in the face with the longneck bottle, Gann suffered five lacerations resulting in permanent scarring. Among those entities Gann sued were Anheuser-Busch, Inc., the manufacturer and seller of the longneck bottle, and Falls Distributing, Inc., the distributor of the longneck bottle. Gann sought recovery from Anheuser-Busch and Falls Distributing pursuant to the following theories of liability: (1) strict products liability; (2) negligence; and (3) breach of warranty. Anheuser-Busch and Falls Distributing each moved for summary judgment on all of Gann's causes of actions on no-evidence grounds.
NO-EVIDENCE SUMMARY JUDGMENT STANDARD OF REVIEW
In conducting our de novo review of a trial court's summary judgment on no-evidence grounds, we must ascertain whether the non-movant produced summary-judgment evidence raising a genuine issue of fact as to the essential elements attacked in the no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206-08 (Tex.2002). In so doing, we consider all the summary-judgment evidence in the light most favorable to the non-movant, crediting evidence favorable to the non-movant if reasonable jurors could, and
PRODUCTS LIABILITY LAW — DESIGN DEFECT
In her first point of error, Gann contends that the trial court erred by granting summary judgment for Anheuser-Busch on Gann's design defect claim. We disagree.
In a products liability action in which a claimant alleges a design defect, a claimant must prove by a preponderance of the evidence that: (1) the defect renders the product "unreasonably dangerous;" (2) the defect was a producing cause of the personal injury, property damage, or death for which the claimant seeks recovery; and (3) there was a safer alternative design. TEX.CIV.PRAC. & REM.CODE ANN. § 82.005(a)(West 2011); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009). To determine whether a product was defectively designed so as to render it unreasonably dangerous, we apply a risk-utility analysis that requires consideration of the following factors:
Timpte Indus., Inc., 286 S.W.3d at 311. The risk-utility analysis does not operate in a vacuum, but rather in the context of the product's intended use and its intended users. Id. at 312. Although whether a product is defective is generally a question of fact, in the appropriate case, it may be determined as a matter of law. Id.
Among other bases, Anheuser-Busch argued in its motion for summary judgment that Gann produced no evidence as to any of the elements of her design defect claim, including evidence that the risk of injury from the longneck bottle outweighs its utility.
In the single paragraph in her response devoted to analyzing the risk-versus-utility element of her design defect claim, Gann does not address the majority of the factors enumerated in Tokai Corp. and Timpte Indus., Inc. For example, Gann fails to address: (1) whether manufacturing a stubby glass bottle or plastic bottle is economically feasible; (2) whether eliminating the unsafe character of a longneck bottle significantly impairs its usefulness or significantly increases its costs; and (3) what the expectations of the ordinary consumer are. See Timpte Indus., Inc., 286 S.W.3d at 311; Tokai Corp., 2 S.W.3d at 257. Gann does develop her analysis more fully in her brief by rigorously scrutinizing the evidence she identified in her response and by including an assertion that "[t]he costs of plastic bottles is now the same as glass bottles."
Except for a single instance, Gann does not refer to any portion of the summary judgment-evidence in her response at trial or in her brief in arguing that the risk of injury from the longneck bottle outweighs its utility. Rather, Gann's argument
In sum, Gann has failed to address the majority of factors enumerated in Tokai Corp. and Timpte Indus., Inc., and, consequently, to produce any evidence on these factors, in arguing that because the risk of injury from a longneck bottle outweighs its utility, the bottle was defectively designed so as to render it unreasonably dangerous. Moreover, notwithstanding that the evidence upon which Gann relies is not supported by citations to the record, this evidence constitutes no evidence that the bottle was defectively designed so as to render it unreasonably dangerous. Accordingly, Gann has failed to produce evidence raising a genuine issue of fact on all the elements of her design defect claim. We therefore hold that the trial court did not err by granting summary judgment for Anheuser-Busch on Gann's design defect claim. Gann's first point of error is overruled.
In her second and third points of error, Gann argues that the trial court erred by granting summary judgment for Anheuser-Busch and Falls Distributing, respectively, as to her negligence claims against them. We disagree.
To prevail on a common law negligence claim, a plaintiff must be able to prove three elements: (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damage proximately caused by the breach. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). The threshold inquiry in a negligence case is duty. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). A plaintiff must prove the existence and violation of a duty owed by the defendant. Id. If there is no duty, liability for negligence cannot exist. Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex.1999).
Generally, no person has a legal duty to protect another from the criminal acts of a third person. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex.1998). One exception to this rule may apply when a person controls the premises where the criminal acts occur. Id. "One who controls ... premises does have a duty to use ordinary care to protect invitees from criminal acts of third parties if he knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee." Id., citing Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997). This duty derives from the concept that the party with the "power of control or expulsion" is in the best position to protect against the harm. Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex.1993). When the party with the power of control should reasonably anticipate criminal conduct on the part of third persons on its premises,
Gann contends that in determining whether Anheuser-Busch and Falls Distributing had a duty to protect her from being assaulted by a third party using a longneck beer bottle as a weapon, the foremost and dominant consideration is the foreseeability of risk. Gann posits that because Anheuser-Busch and Falls Distributing admitted that the use of longneck bottles as weapons in bars was certainly reasonably foreseeable, Anheuser-Busch and Falls Distributing had a legal duty to protect her from being assaulted in such a situation. While we agree with Gann that it is reasonably foreseeable that a longneck bottle might be used as a weapon, she has failed to show why the general principle that no person has a legal duty to protect another from the criminal acts of a third person is inapplicable in this case. Gann bears the burden to establish that the trial court committed reversible error. See TEX.R.APP.P. 44.1 (stating that no judgment may be reversed on appeal absent a showing of harm); McCraw v. Maris, 828 S.W.2d 756, 758 (Tex.1992)(stating that complaining party needs to show harm to obtain reversal). We have no obligation — or even right — to perform an independent review of the record and applicable law to determine whether there was reversible error because, by doing so, we would abandon our role as neutral adjudicators and become an advocate. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.App.-El Paso 2007, no pet.); Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex.App.-Amarillo 2003, pet. denied). Gann was therefore required to have submitted a brief containing a clear and concise argument, with appropriate citations to authority, to persuade us that the trial court committed reversible error by granting summary judgment against her on her negligence claims. See TEX.R.APP.P. 38.1(h), (i)(requiring an appellant to provide a clear and concise argument supported by citations to authorities). Otherwise, she risked having her complaint waived on appeal for inadequate briefing. Hernandez v. Hernandez, 318 S.W.3d 464, 466 (Tex.App.-El Paso 2010, no pet.)(holding that when appellate issues are unsupported by argument or lack citation to legal authority, nothing is presented for appellate review).
Gann has failed to discharge her obligation. Rather than address why the principle that no person has a legal duty to protect another from the criminal acts of a third person is inapplicable, Gann chooses instead, in a portion of her brief encompassing only one-and-one-half pages, to cite to authority supporting her contention that foreseeability is the key to concluding duty exists here. Immediately thereafter, Gann proclaims, in two sentences, that since Anheuser-Busch and Falls Distributing were aware that longneck bottles can be used as weapons, they therefore owed her a duty to protect her from such reasonably foreseeable misuse. In another portion of her brief encompassing four pages, Gann recites the facts, without any citations to the record, that she believes are relevant to her negligence claims against Anheuser-Busch and Falls Distributing.
In light of the forgoing, we hold that that the trial court did not err by granting summary judgment for Anheuser-Busch and Falls Distributing on Gann's negligence claims. Gann's second and third points of error are overruled.
Having overruled Gann's three points of error, we affirm the trial court's order granting summary judgment in favor of Anheuser-Busch and Falls Distributing.
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