Opinion
No. 05-07-01092-CV
Opinion issued April 26, 2011.
On Appeal from the 101st Judicial District Court, Dallas County, Texas, Trial Court Cause No. 03-05067-E.
Before Justices MORRIS, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
Isabel Molina was severely burned in a fire on a catering truck when a pilot light ignited gasoline being used to clean the floor. Appellants sued Jolly Chef Express, Inc. and others claiming negligence, premises liability, gross negligence, strict product liability, unauthorized practice of insurance, breach of contract, and misrepresentation. The trial court granted Jolly Chef Express, Inc.'s motion for partial summary judgment on, among other things, appellants' strict product liability claims. Following trial, the jury found Juan Miguel Bonilla, lessor-purchaser of the catering truck, liable on the remaining claims and awarded appellants over $1.8 million in damages. In this appeal, appellants challenge the trial court's partial summary judgment in favor of Jolly Chef on their strict product liability claim.
We affirm.
In a no evidence summary judgment motion, the movant contends that there is no evidence of one or more essential elements of the claims for which the non-movant would bear the burden of proof at trial. Tex. R. Civ. P. 166a(i). The trial court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. Id. The respondent is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008). We review a no evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We review the evidence that was before the court at the time of the ruling on the motion for summary judgment. Plotkin v. Joekel, 304 S.W.3d 455, 486 (Tex. App.-Houston [1st Dist.] 2009, pet. denied).
In their eighth amended petition, appellants alleged the truck in question was defectively designed and marketed. Specifically, they claimed appellees failed to give adequate warnings of the truck's dangers which were known or which by the application of reasonably developed human skill and foresight should have been known, and failed to give adequate instructions to avoid such dangers, which failures rendered the truck unreasonably dangerous to an extent beyond that which would be contemplated by ordinary users of the truck with the ordinary knowledge common to the community as to such truck's characteristics. Jolly Chef filed a no evidence motion for summary judgment asserting there was no evidence the catering truck in question was defectively marketed. Jolly Chef specifically alleged there was no evidence: of any inherent risk of harm in the catering truck; of harm arising from the intended or reasonably anticipated use of the catering truck; Jolly Chef had actual knowledge of or should have reasonably foreseen any alleged risk of harm for the catering truck; the catering truck was rendered unreasonably dangerous because of the absence of warnings or instructions; the lack of warnings or instructions caused the injuries alleged by appellants; Jolly Chef had a duty to warn Molina; or Jolly Chef had a duty to warn Molina of the dangers of using gasoline as a cleaning agent.
Appellants' response to the no evidence motion stated the "summary judgment evidence raises a fact issue as to whether the pilot lights constituted a defect rendering the truck unreasonably dangerous in the absence of Jolly Chef's failure to warn or instruct Bonilla in how to minimize such danger." Appellants' summary judgment evidence included an excerpt of Bonilla's deposition testimony, Bonilla's written responses to questions attached as an exhibit to his deposition testimony, and the fire investigation report from the Dallas Fire Department.
A defendant's failure to warn of a product's potential dangers when warnings are required is a type of marketing defect. Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex. 1995). Liability will attach if the lack of adequate warnings or instructions renders an otherwise adequate product unreasonably dangerous. Id. The law of products liability does not require a manufacturer or distributer to warn of obvious risks. Id. Nor is there is a duty to warn when the risks associated with a particular product are matters "within the ordinary knowledge common to the community." Joseph E. Seagram Sons, Inc. v. McGuire, 814 S.W.2d 385, 388 (Tex. 1991) (holding no duty to warn of dangers of excessive or prolonged use of alcohol since such dangers already so widely recognized); see Sauder Custom Fabrication, Inc. v. Boyd, 967 S.W.2d 349, 351 (Tex. 1998) (refusing to allow recovery on either products liability or negligent failure to warn claim when risk would be obvious to average user of product); Caterpillar, 911 S.W.2d at 382 (concluding, as matter of law, no duty to warn of dangers of operating front-end loader without rollover protective structure because average person would recognize risk).
In its no evidence motion for summary judgment, Jolly Chef specifically alleged there was no evidence Jolly Chef had a duty to warn of the dangers of using gasoline as a cleaning agent because "there is no duty to warn consumers of dangers that are so clearly obvious as to be apparent to even the most ignorant and uncaring." In response, appellants argued only that Jolly Chef did not give any warnings or instructions about the dangers posed by the pilot lights or the need to extinguish them before using "potentially flammable cleaning solutions." Appellants did not respond to Jolly Chef's argument it had no duty to warn because the risk of using gasoline as a cleaning agent in the presence of open flames was within the ordinary knowledge common to the community. Although in the trial court, appellants did not argue or refute that the flammable solution was gasoline, they argue on appeal they did not allege and "it was never established at trial-let alone at the summary judgment stage-that it was in fact gasoline" that caused the fire.
The summary judgment evidence attached to appellants' response showed the flammable liquid used to clean the floor was gasoline. The Dallas Fire Department investigation report stated, "This fire happened when a person was using gasoline to clean the floor of a Jolly Chef food truck. The pilot light inside the truck ignited the gasoline fumes and caused a flash fire inside the passenger area of the vehicle." In addition, in the exhibit attached to the excerpt of Bonilla's deposition testimony, Bonilla stated it was Fabricio Fernandez who put gasoline on the floor of the truck and closed the door, leaving Molina inside. Because the dangers associated with gasoline and an open flame are within the ordinary knowledge common to the community, we conclude Jolly Chef had no duty to warn of the dangers or risks associated with using gasoline to clean floors while pilot lights are lit. Because there was no duty to warn, the trial court did not err in granting summary judgment on the strict product liability claim. We overrule appellants' sole issue. We affirm the trial court's judgment.