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GANN v. ANHEUSER-BUSCH, INC.
Court of Appeals of Texas, Eighth District, El Paso.
July 25, 2012.
PRODUCTS LIABILITY LAW — DESIGN DEFECTIn 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. Applicable LawIn 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: (1) the utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use; (2) the availability of a substitute product which would meet the same need and not be unsafe or unreasonably expensive; (3) the manufacturer's ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs;
1. In response to Gann's strict products liability and breach of warranty claims, Falls Distributing adopted and incorporated into its no-evidence motion for summary judgment the same arguments Anheuser-Busch raised in its no-evidence motion for summary judgment in response to these claims.
2. Gann does not challenge the trial court's summary judgment in favor of Anheuser-Busch and Falls Distributing on her breach of warranty claims. In addition, Gann does not challenge the trial court's summary judgment in favor of Falls Distributing on her strict products liability claim. Accordingly, we do not address the propriety of the trial court's summary judgment with respect to these claims.
3. Anheuser-Busch also contends that we should hold that, as a matter of law, Anheuser-Busch had no legal duty to design the longneck bottle against purposeful and criminal misuse because it satisfied its one and only legal duty: to design the bottle to ensure that the bottle was safe for its intended and ordinary use — storing beer.
In support of its argument, Anheuser-Busch cites to Venezia v. Miller Brewing Co., 626 F.2d 188 (1st Cir. 1980) and Diggles v. Horwitz, 765 S.W.2d 839 (Tex.App.-Beaumont 1989, writ denied). In Venezia, the federal appeals court applied Massachusetts state law to hold that the plaintiff, who was injured by the broken shards of the beer bottle he deliberately threw against a pole, could not recover from Miller Brewing under a theory of negligent design because the deliberate misuse of the beer bottle could not be characterized as an intended or ordinary use of the beer bottle. 626 F.2d at 189, 191-92. In Diggles, the Beaumont Court of Appeals held that a gun manufacturer owed no duty to protect against hazards created by the misuse of its product. 765 S.W.2d at 840-42. However, the Texas Supreme Court has since held that because a design defect case is one involving a product made exactly as intended but nevertheless unreasonably hazardous, we must weigh the utility of the product against the risk involved in its use when determining whether a product was defectively designed so as to be unreasonably dangerous. See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009); Hernandez v. Tokai Corp., 2 S.W.3d 251, 257 (Tex. 1999). Because the question of duty is not specifically germane to our holding today, we decline to address it.
4. In responding to Anheuser-Busch's summary judgment motion, Gann never raised the argument at trial that "[t]he costs of plastic bottles is now the same as glass bottles." It is well settled that all theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. Chessher v. Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983)(summary judgment may not be granted on issues not "expressly presented" to trial court). By failing to raise the argument at trial that manufacturing a stubby glass bottle or plastic bottle is economically feasible, Gann failed to preserve it for our consideration on appeal.
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