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GANN v. ANHEUSER-BUSCH, INC.
Court of Appeals of Texas, Eighth District, El Paso.
July 25, 2012.
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. NEGLIGENCEIn 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. Applicable LawTo 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, that party has a duty to take precautions against it. Id. A second exception may apply to a person who is not in control of the property at the time of the injury, but nevertheless creates a condition that permits or brings into being the criminal actions that result in the claimant's injury. Lefmark Mgmt. Co., 946 S.W.2d at 54, citing Strakos v. Gehring, 360 S.W.2d 787 (Tex. 1962). Whether a duty exists under either theory is a question of law for the court to decide from the facts surrounding the occurrence at issue. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998); Siegler, 899 S.W.2d at 197; Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Discussion
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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