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GANN v. ANHEUSER-BUSCH, INC.
Court of Appeals of Texas, Eighth District, El Paso.
July 25, 2012.
(4) the user's anticipated awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions; and (5) the expectations of the ordinary consumer. 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. DiscussionAmong 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.3 In response, Gann contends that there is more than a scintilla of evidence that the risk of injury from the longneck bottle outweighs its utility. Specifically, Gann refers to evidence that beer bottles are used commonly in assaults in the local community, as well as overseas, that the longneck portion of the bottle is cosmetic and serves no useful purpose, and that Anheuser-Busch uses stubby glass bottles and plastic bottles as containers for beer. However, contrary to her assertion, Gann has failed to produce evidence raising a genuine issue of fact that the risk of injury from the longneck bottle outweighs its utility and therefore that the bottle was defectively designed so as to render it unreasonably dangerous. 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."4 However, notwithstanding that Gann failed to preserve her assertion that manufacturing an alternate product is economically feasible, Gann still fails to address whether eliminating the unsafe character of a longneck bottle significantly impairs its usefulness or significantly increases its costs and what the expectations of the ordinary consumer are. 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 on this issue consists of conclusory allegations. The failure to provide citations to the record in a brief or to refer to summary-judgment evidence in a response results in the waiver on appeal of the contentions made. See TEX.R.APP.P. 38.1(g)(requiring the appellant's brief to contain citations to the record in support of the contentions made); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994)(appellate court has discretion to waive error due to inadequate briefing); see also Aleman v. Ben E. Keith Co., 227 S.W.3d 304, 309 (Tex.App.-Houston [1st Dist.] 2007, no pet.)("In determining whether a respondent to a no-evidence motion for summary judgment has produced sufficient evidence to raise a genuine issue of material fact, courts are not required to search the record without guidance.").
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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