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GANN v. ANHEUSER-BUSCH, INC.
MARTY DANIELLE GANN, Appellant,
v.
ANHEUSER-BUSCH, INC. and FALLS DISTRIBUTING COMPANY, INC., Appellees.
No. 08-11-00017-CV.
Court of Appeals of Texas, Eighth District, El Paso.
July 25, 2012.
Before McClure, C.J., Rivera, and Antcliff, JJ.
OPINIONCHRISTOPHER 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 BACKGROUNDWhile 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.1 Without stating its reasons, the trial court granted both motions for summary judgment and dismissed Gann's claims against Anheuser-Busch and Falls Distributing. This appeal followed.2 NO-EVIDENCE SUMMARY JUDGMENT STANDARD OF REVIEWIn 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 disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). Summary-judgment evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). When, as here, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm the summary judgment if any of the independent summary-judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
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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