Preview
FILED
DALLAS COUNTY
5/12/2017 2:54:50 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-13-05222
CARL and SANDRA JOHNSON, § IN THE DISTRICT COURT OF
§
Plaintiffs, §
§
vs. § DALLAS COUNTY, TEXAS
§
§
DAYTON SUPERIOR CORP.; CMC STEEL §
FABRICATORS, INC. D/B/A CMC §
CONSTRUCTION SERVICES; and §
COMMERCIAL METALS COMPANY, §
§
Defendants. § 68TH JUDICIAL DISTRICT
DEFENDANT CMC’S REPLY IN SUPPORT OF ITS NO EVIDENCE MOTION FOR
SUMMARY JUDGMENT AND OBJECTION TO PLAINTIFFS’ SUMMARY
JUDGMENT EVIDENCE
COMES NOW CMC Steel Fabricators, Inc. d/b/a CMC Construction Services, and
Commercial Metals Company (“Defendants” or “CMC”) and files this Reply in Support of its
No Evidence Motion for Summary Judgment and Objections to Plaintiffs’ Summary Judgment
Evidence, and in support thereof respectfully shows as follows:
I. SUMMARY
Given Plaintiffs’ Response to CMC’s Motion, summary judgment is required as a matter
of law. Plaintiffs’ Response and the conclusory allegations presented in support of Plaintiffs’
Response are insufficient as a matter of law to preclude summary judgment on Plaintiffs’ claims.
Plaintiffs Carl Johnson and Sandra Johnson assert the following claims against both Defendants
in their Fourth Amended Petition: 1) negligence; 2) negligent undertaking; 3) breach of implied
warranty of merchantability; 4) breach of implied warranty of fitness for a particular purpose; 5)
strict liability; and 6) punitive damages. In their Response, Plaintiffs fail to present any
competent summary judgment evidence to establish the existence of a genuine issue of material
REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT
AND OBJECTIONS TO PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE PAGE 1
2585294v.1
fact upon which precludes summary judgment. Instead, Plaintiffs make a series of incorrect and
conclusory allegations not supported by the evidence or testimony in this matter. CMC is
entitled to summary judgment on all of Plaintiff's’ causes of action as a matter of law.
Additionally, CMC objects to Plaintiffs’ proffered evidence set forth as evidence in
Exhibits 5-7 as unauthenticated hearsay which is incompetent summary judgment evidence.
Plaintiffs misrepresent that Exhibit 5 is a “Diagrams of Use of Products Supplied by CMC”
when in fact all but one of the diagrams were created by former co-Defendant Dayton and not
CMC. Exhibit 6 is an email which is inadmissible hearsay. Exhibit 7 is a site visit report which
is also inadmissible hearsay and is not competent summary judgment evidence. CMC
respectfully requests that the Court sustain its objections as set forth herein and disregard Exhibit
D of Plaintiffs’ Response.
II. ARGUMENTS AND AUTHORITIES
I. No Material Issue of Fact Exists as to Plaintiffs’ Negligence Claim
Plaintiffs fail to establish that CMC owed any independent or individual duty of care to
Plaintiffs. Without a legal duty, a defendant cannot be held liable in tort. Kroger Co. v. Elwood,
197 S.W.3d 793, 794 (Tex. 2006). Whether a party has a duty is a question of law, and such a duty
may arise either by statute or common law. Id. Because Plaintiffs cannot present any evidence
giving rise to a duty owed to Plaintiffs by CMC either by statute or under common law, their
negligence cause of action automatically fails. Moreover, even if CMC did have a duty, there was
no act or omission committed by CMC that beached such a duty or that any of its acts or omissions
proximately or directly caused injury to Plaintiffs.
It is undisputed that CMC was not present on the job site at the time of the accident nor
did CMC approve the specific attachment method used by Plaintiff at the time of the accident.
REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT
AND OBJECTIONS TO PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE PAGE 2
2585294v.1
The evidence shows that Hensel Phelps, as Plaintiff’s employer, controlled and directed
Plaintiff’s work and owed Plaintiff a duty of care which Hensel Phelps breached, proximately
causing Plaintiffs’ injuries. Hensel Phelps failed to properly train and instruct Plaintiff on the
appropriate procedures relating to the use of the subject column form and bracing and failed to
provide a place of employment free from recognized hazards. Hensel Phelps’ breach of its duties
as Plaintiff’s employer is the proximate cause of Plaintiff’s damages. Here, Plaintiffs have no
evidence that CMC owed any duty to Plaintiff in the first place, and even if it did, that it
breached such duty, causing Plaintiff to be injured. Plaintiffs have provided no evidence with
regard to any of the essential elements (duty, breach proximate cause) and therefore CMC is
entitled to summary judgment on Plaintiffs’ negligence claim.
II. No Material Issue of Fact Exists as to Plaintiffs’ Negligent Undertaking Claim
Plaintiffs cannot establish any of the three elements necessary to a negligent undertaking
cause of action. There is no evidence CMC undertook to perform services that were necessary
for Plaintiff’s protection. CMC is merely a supplier of products and Hensel Phelps at all times
was responsible for Plaintiff’s protection and safety. Second, there is no evidence that CMC
failed to exercise reasonable care in performing any services. CMC merely provided requested
products to the jobsite per the instruction of Plaintiff’s employer Hensel Phelps. Third, there is
no evidence Plaintiff relied on any performance by CMC or that CMC somehow increased the
risk of Plaintiff’s harm. It is undisputed that CMC was not present on the job site at the time of
the accident nor did CMC approve the specific attachment method used by Plaintiff at the time
of the accident. To the contrary, Plaintiff was not using the connecting hardware that CMC
provided at the time of the accident. The evidence shows that Hensel Phelps, as Plaintiff’s
employer, controlled and directed Plaintiff’s work and owed Plaintiff a duty of care which
REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT
AND OBJECTIONS TO PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE PAGE 3
2585294v.1
Hensel Phelps breached, proximately causing Plaintiffs’ injuries. Plaintiffs have no evidence as
to any element of their negligent undertaking claim. As such, CMC is entitled to summary
judgment on Plaintiffs’ negligent undertaking claim.
III. No Material Issue of Fact Exists as to Plaintiffs’ Breach of Implied Warranty of
Merchantability Claim
Plaintiffs cannot prove this cause of action because Plaintiffs have no evidence that the
subject goods were unmerchantable. While Plaintiffs allege that the subject product was
inherently dangerous there is no evidence that the products in question actually were inherently
dangerous. Further, the manufacturer Dayton Superior obtained summary judgment in this
matter on the basis that the product itself was NOT defective or inherently dangerous. Plaintiffs
cannot prove that that the product was defective at the time they left the possession of the seller,
CMC. Plaintiffs have no evidence that the product at issue had a manufacturing, design, or
marketing defect. Instead, the evidence shows that Plaintiff’s supervisor at Hensel Phelps, and
no one else, approved the attachment method being used at the time of the accident. There is no
evidence CMC was asked for input or advice regarding the attachment method that Hensel
Phelps used on the day of the accident. Accordingly, Plaintiffs have no evidence to support a
breach of implied warranty of merchantability claim and CMC is entitled to summary judgment
on this claim.
IV. No Material Issue of Fact Exists as to Plaintiffs’ Breach of Implied Warranty of
Fitness for a Particular Purpose Claim
Plaintiffs cannot prove this cause of action because Plaintiffs have no evidence that the
product at issue were unfit for a particular purpose. The evidence in this matter is that the
decision made as to installation of brace in question to column form in question was made by
REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT
AND OBJECTIONS TO PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE PAGE 4
2585294v.1
Plaintiff’s supervisor, Joe Ayala of Hensel Phelps. Further, Plaintiff went to his supervisor Joe
Ayala and told him he had a concern about the way the brace was connecting to the column
form. Plaintiff was instructed by his employer “to tighten it real tight” and it would be fine. It is
undisputed that Hensel Phelps never came to CMC with any concerns that anyone at Hensel
Phelps had with this attachment method with this column form and bracing. Plaintiffs have no
evidence that Hensel Phelps was relying upon CMC to do anything other than supply the
products Hensel Phelps requested. Further, at the time of the accident, the Plaintiff and Hensel
Phelps were not using the connecting hardware provided by CMC for the subject products.
Plaintiff was moving the column form in an unsafe manner and this was the proximate cause of
Plaintiffs’ injuries. In sum, Plaintiffs cannot prove any of the elements necessary for its breach
of implied warranty of fitness for a particular purpose and Defendant is entitled to summary
judgment on this claim.
V. No Material Issue of Fact Exists as to Plaintiffs’ Strict Liability Claim
In this matter, Plaintiffs are asserting only a marketing defect claim against CMC.1 To
prevail on a manufacturing defect claim, Texas law requires a plaintiff to show that the finished
product deviates “in terms of construction or quality, from the specifications or planned output in
a manner that renders it unreasonably dangerous.” Ford Motor Co. v. Ledesma, 242 S.W. 3d 32,
41-42 (Tex. 2007). Plaintiffs have not and cannot establish that the subject products were in
some way defective, rendering the products unreasonably dangerous. But, even if Plaintiffs had
evidence to support this allegation, which they do not, Plaintiffs also must establish a causal
connection with the injury made the basis of this lawsuit. Lucas v. Texas Indus., Inc., 696 S.W.2d
1
Plaintiffs’ Fourth Amended Petition, ¶ 6.06
REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT
AND OBJECTIONS TO PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE PAGE 5
2585294v.1
372, 377 (Tex. 1984). Plaintiffs’ Response fails to proffer any evidence that would allow them
to clear these hurdles.
“A marketing defect such as a failure to warn occurs when a defendant knows or should
have known of a potential risk of harm presented by the product but markets it without
adequately warning of the danger or providing instructions for safe use.” Sipes v. General
Motors Corp., 946 S.W.2d 143, 156 (Tex. App.—Texarkana 1997, writ denied) (citing Bristol-
Meyers Co. v. Gonzales, 561 S.W.2d 801, 804 (Tex. 1978). “The existence of a duty to warn of
dangers or instruct as to the proper use of a product is a question of law.” Robins v. Kroger Co.,
982 S.W.2d 156, 160 (Tex. App.— Houston [1st Dist.] 1998, pet. denied). “The determination of
whether a manufacturer has a duty to warn is made when the product leaves the manufacturer.”
Id. Because Plaintiffs have no evidence of any defect in the subject products, Plaintiffs have no
evidence to support a duty “to warn” or duty “to instruct” on the part of CMC. As such, CMC is
entitled to summary judgment on Plaintiffs’ strict liability marketing defect claim.
V. No Material Issue of Fact Exists as to Plaintiffs’ Punitive Damages Claim
To be liable for punitive damages for gross negligence, Plaintiffs must prove that CMC
as a corporation committed gross negligence. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921-
22 (Tex. 1998); Fort Worth Elevators, Co. v. Russell, 70 S.W.2d 397, 406 (1934), overruled on
other grounds by Wright v. Gifford–Hill & Co., 725 S.W.2d 712 (Tex. 1987). Because
corporations can only act through its agents, the Texas Supreme Court holds that a corporation is
only liable for punitive damages if it authorizes or ratifies an agent’s gross negligence or for the
grossly negligent actions or inactions of its vice-principals. Mobil Oil Corp., 968 S.W.2d at 921-
22. Here, Plaintiffs fail to prove that their claim for gross negligence because (1) the alleged act
REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT
AND OBJECTIONS TO PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE PAGE 6
2585294v.1
was not committed by a vice-principal of CMC, (2) the act was not ratified by CMC, (3) the act
was not objectively grossly negligent, and (4) the act was not subjectively grossly negligent.
To be a vice-principal, the agent must be either (1) a corporate officer, (2) an individual
with authority to employ, direct, and discharge employees, (3) an individual engaged in the
performance of non-delegable or absolute duties of the employer, or (4) an individual to whom
an employer has confided the management of the whole business or a department or division of
the business. See Mobil Oil Corp., 968 S.W.2d at 921-22; Garrett v. Great W. Distrib. Co. of
Amarillo, 129 S.W.3d 797, 802-03 (Tex. App.—Amarillo 2004, pet. denied); Cigna v. Pybas,
127 S.W.3d 400, 418 (Tex. App.—Dallas 2004, no pet.). Furthermore, it must be shown that the
tortious act was encompassed with the duties to the agent. See Garrett, 129 S.W.3d at 802-03;
Cigna, 127 S.W.3d at 418. Having some supervisory authority over others without the ability to
hire and fire is not enough. See Garrett, 129 S.W.3d at 802; Cigna, 127 S.W.3d at 418.
Similarly, if the employee has no autonomy to make decision for the corporation without first
going to another individual in the company, he is not a vice-principal. See Garrett, 129 S.W.3d
at 802; Cigna, 127 S.W.3d at 418.
Plaintiffs have no evidence that Defendants ratified an employee’s allegedly grossly
negligent act. Ratification only occurs when the employer or vice-principal confirms, adopts, or
fails to repudiate the acts of its employee—not when the employee simply takes some action or
inaction in their role or in their delegated duties. Cigna, 127 S.W.3d at 418; Eikon King St.
Manager, L.L.C. v. LSF King St. Manager, L.L.C., 109 S.W.3d 762, 768 (Tex. App.—Dallas
2003, pet denied). In other words, ratification requires a person to adopt or confirm a prior act
that did not then legally bind that person and which that person had the right to repudiate. Eikon
REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT
AND OBJECTIONS TO PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE PAGE 7
2585294v.1
King St. Manager, L.L.C., 109 S.W.3d at 768. Ratification is a matter of intent that requires the
person to “adopt or confirm with knowledge of all material facts.” Id.
Plaintiffs have no evidence of an act or omission from CMC which when viewed
objectively from the standpoint of the actor at the time of its occurrence involved an extreme
degree of risk considering the probability and magnitude of the potential harms to others. An
“extreme degree of risk” means “not a remote possibility of injury or even a high probability of
minor harm, but rather the likelihood of serious injury to [Plaintiffs].” Dillard Dep’t Stores, 148
S.W.3d at 374; see also Smith v. O’Donnell, 288 S.W.3d 417, 423-24 (Tex. 2009) (“The
objective prong is a function of both the magnitude and the probability of potential injury and is
not satisfied if the defendant’s conduct merely creates a remote possibility of serious injury.”).
Even if Plaintiffs could meet the objective prong (which they cannot), Plaintiffs fail to
present evidence that CMC had actual, subjective knowledge of the risk involved yet proceeded
with conscious indifference to the safety of others. The Supreme Court of Texas explained that
the subjective prong requires that the “defendant knew about the peril, but its acts or omissions
demonstrated that it did not care.” Mobil Oil Corp., 968 S.W.2d at 921. Importantly, “an actor’s
failure to pursue the safest course available . . . does not equate to a want of caring” to meet the
requisite mens rea. Agrium U.S., Inc. v. Clark, 179 S.W.3d 765, 767 (Tex. App.—Amarillo 2005,
pet. denied) (citing Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 597-98 (Tex. 1999)). Indeed
“the circumstances of each case must stand on their own. . . . [A]ll the circumstances are pivotal,
and unless they permit a reasonable jury to develop a firm conviction or belief that the defendant
‘did not care’ about the risk, there can be no gross negligence.” Id. at 768. For the foregoing
reasons, CMC is entitled to summary judgment on Plaintiffs’ punitive damages claim.
REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT
AND OBJECTIONS TO PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE PAGE 8
2585294v.1
III. CONCLUSION
WHEREFORE, CMC asks this Court to sustain its objections to Plaintiffs’ summary
judgment evidence, grant summary judgment in CMC’s favor and render a final judgment
granting CMC the relief requested in this Motion, and grant CMC all other such relief as to
which it may be justly entitled.
Respectfully Submitted,
WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER, LLP
/s/Allison J. Maynard
Lee L. Cameron, Jr.
State Bar No. 03675380
Allison J. Maynard
State Bar No. 24055923
Bank of America Plaza
901 Main Street, Suite 4800
Dallas, Texas 75202-3758
Telephone (214) 698-8000
Facsimile (214) 698-1101
Lee.Cameron@wilsonelser.com
Allison.Maynard@wilsonelser.com
ATTORNEYS FOR DEFENDANTS CMC
STEEL FABRICATORS, INC. D/B/A CMC
CONSTRUCTION SERVICES AND
COMMERCIAL METALS COMPANY
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document was
served via electronic service in accordance with the Texas Rules of Civil Procedure on this 12th
day of May, 2017.
/s/Allison J. Maynard
Allison J. Maynard
REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT
AND OBJECTIONS TO PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE PAGE 9
2585294v.1
Preview
FILED DALLAS COUNTY 5/12/2017 2:54:50 PM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-13-05222 CARL and SANDRA JOHNSON, § IN THE DISTRICT COURT OF § Plaintiffs, § § vs. § DALLAS COUNTY, TEXAS § § DAYTON SUPERIOR CORP.; CMC STEEL § FABRICATORS, INC. D/B/A CMC § CONSTRUCTION SERVICES; and § COMMERCIAL METALS COMPANY, § § Defendants. § 68TH JUDICIAL DISTRICT DEFENDANT CMC’S REPLY IN SUPPORT OF ITS NO EVIDENCE MOTION FOR SUMMARY JUDGMENT AND OBJECTION TO PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE COMES NOW CMC Steel Fabricators, Inc. d/b/a CMC Construction Services, and Commercial Metals Company (“Defendants” or “CMC”) and files this Reply in Support of its No Evidence Motion for Summary Judgment and Objections to Plaintiffs’ Summary Judgment Evidence, and in support thereof respectfully shows as follows: I. SUMMARY Given Plaintiffs’ Response to CMC’s Motion, summary judgment is required as a matter of law. Plaintiffs’ Response and the conclusory allegations presented in support of Plaintiffs’ Response are insufficient as a matter of law to preclude summary judgment on Plaintiffs’ claims. Plaintiffs Carl Johnson and Sandra Johnson assert the following claims against both Defendants in their Fourth Amended Petition: 1) negligence; 2) negligent undertaking; 3) breach of implied warranty of merchantability; 4) breach of implied warranty of fitness for a particular purpose; 5) strict liability; and 6) punitive damages. In their Response, Plaintiffs fail to present any competent summary judgment evidence to establish the existence of a genuine issue of material REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE PAGE 1 2585294v.1 fact upon which precludes summary judgment. Instead, Plaintiffs make a series of incorrect and conclusory allegations not supported by the evidence or testimony in this matter. CMC is entitled to summary judgment on all of Plaintiff's’ causes of action as a matter of law. Additionally, CMC objects to Plaintiffs’ proffered evidence set forth as evidence in Exhibits 5-7 as unauthenticated hearsay which is incompetent summary judgment evidence. Plaintiffs misrepresent that Exhibit 5 is a “Diagrams of Use of Products Supplied by CMC” when in fact all but one of the diagrams were created by former co-Defendant Dayton and not CMC. Exhibit 6 is an email which is inadmissible hearsay. Exhibit 7 is a site visit report which is also inadmissible hearsay and is not competent summary judgment evidence. CMC respectfully requests that the Court sustain its objections as set forth herein and disregard Exhibit D of Plaintiffs’ Response. II. ARGUMENTS AND AUTHORITIES I. No Material Issue of Fact Exists as to Plaintiffs’ Negligence Claim Plaintiffs fail to establish that CMC owed any independent or individual duty of care to Plaintiffs. Without a legal duty, a defendant cannot be held liable in tort. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006). Whether a party has a duty is a question of law, and such a duty may arise either by statute or common law. Id. Because Plaintiffs cannot present any evidence giving rise to a duty owed to Plaintiffs by CMC either by statute or under common law, their negligence cause of action automatically fails. Moreover, even if CMC did have a duty, there was no act or omission committed by CMC that beached such a duty or that any of its acts or omissions proximately or directly caused injury to Plaintiffs. It is undisputed that CMC was not present on the job site at the time of the accident nor did CMC approve the specific attachment method used by Plaintiff at the time of the accident. REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE PAGE 2 2585294v.1 The evidence shows that Hensel Phelps, as Plaintiff’s employer, controlled and directed Plaintiff’s work and owed Plaintiff a duty of care which Hensel Phelps breached, proximately causing Plaintiffs’ injuries. Hensel Phelps failed to properly train and instruct Plaintiff on the appropriate procedures relating to the use of the subject column form and bracing and failed to provide a place of employment free from recognized hazards. Hensel Phelps’ breach of its duties as Plaintiff’s employer is the proximate cause of Plaintiff’s damages. Here, Plaintiffs have no evidence that CMC owed any duty to Plaintiff in the first place, and even if it did, that it breached such duty, causing Plaintiff to be injured. Plaintiffs have provided no evidence with regard to any of the essential elements (duty, breach proximate cause) and therefore CMC is entitled to summary judgment on Plaintiffs’ negligence claim. II. No Material Issue of Fact Exists as to Plaintiffs’ Negligent Undertaking Claim Plaintiffs cannot establish any of the three elements necessary to a negligent undertaking cause of action. There is no evidence CMC undertook to perform services that were necessary for Plaintiff’s protection. CMC is merely a supplier of products and Hensel Phelps at all times was responsible for Plaintiff’s protection and safety. Second, there is no evidence that CMC failed to exercise reasonable care in performing any services. CMC merely provided requested products to the jobsite per the instruction of Plaintiff’s employer Hensel Phelps. Third, there is no evidence Plaintiff relied on any performance by CMC or that CMC somehow increased the risk of Plaintiff’s harm. It is undisputed that CMC was not present on the job site at the time of the accident nor did CMC approve the specific attachment method used by Plaintiff at the time of the accident. To the contrary, Plaintiff was not using the connecting hardware that CMC provided at the time of the accident. The evidence shows that Hensel Phelps, as Plaintiff’s employer, controlled and directed Plaintiff’s work and owed Plaintiff a duty of care which REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE PAGE 3 2585294v.1 Hensel Phelps breached, proximately causing Plaintiffs’ injuries. Plaintiffs have no evidence as to any element of their negligent undertaking claim. As such, CMC is entitled to summary judgment on Plaintiffs’ negligent undertaking claim. III. No Material Issue of Fact Exists as to Plaintiffs’ Breach of Implied Warranty of Merchantability Claim Plaintiffs cannot prove this cause of action because Plaintiffs have no evidence that the subject goods were unmerchantable. While Plaintiffs allege that the subject product was inherently dangerous there is no evidence that the products in question actually were inherently dangerous. Further, the manufacturer Dayton Superior obtained summary judgment in this matter on the basis that the product itself was NOT defective or inherently dangerous. Plaintiffs cannot prove that that the product was defective at the time they left the possession of the seller, CMC. Plaintiffs have no evidence that the product at issue had a manufacturing, design, or marketing defect. Instead, the evidence shows that Plaintiff’s supervisor at Hensel Phelps, and no one else, approved the attachment method being used at the time of the accident. There is no evidence CMC was asked for input or advice regarding the attachment method that Hensel Phelps used on the day of the accident. Accordingly, Plaintiffs have no evidence to support a breach of implied warranty of merchantability claim and CMC is entitled to summary judgment on this claim. IV. No Material Issue of Fact Exists as to Plaintiffs’ Breach of Implied Warranty of Fitness for a Particular Purpose Claim Plaintiffs cannot prove this cause of action because Plaintiffs have no evidence that the product at issue were unfit for a particular purpose. The evidence in this matter is that the decision made as to installation of brace in question to column form in question was made by REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE PAGE 4 2585294v.1 Plaintiff’s supervisor, Joe Ayala of Hensel Phelps. Further, Plaintiff went to his supervisor Joe Ayala and told him he had a concern about the way the brace was connecting to the column form. Plaintiff was instructed by his employer “to tighten it real tight” and it would be fine. It is undisputed that Hensel Phelps never came to CMC with any concerns that anyone at Hensel Phelps had with this attachment method with this column form and bracing. Plaintiffs have no evidence that Hensel Phelps was relying upon CMC to do anything other than supply the products Hensel Phelps requested. Further, at the time of the accident, the Plaintiff and Hensel Phelps were not using the connecting hardware provided by CMC for the subject products. Plaintiff was moving the column form in an unsafe manner and this was the proximate cause of Plaintiffs’ injuries. In sum, Plaintiffs cannot prove any of the elements necessary for its breach of implied warranty of fitness for a particular purpose and Defendant is entitled to summary judgment on this claim. V. No Material Issue of Fact Exists as to Plaintiffs’ Strict Liability Claim In this matter, Plaintiffs are asserting only a marketing defect claim against CMC.1 To prevail on a manufacturing defect claim, Texas law requires a plaintiff to show that the finished product deviates “in terms of construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous.” Ford Motor Co. v. Ledesma, 242 S.W. 3d 32, 41-42 (Tex. 2007). Plaintiffs have not and cannot establish that the subject products were in some way defective, rendering the products unreasonably dangerous. But, even if Plaintiffs had evidence to support this allegation, which they do not, Plaintiffs also must establish a causal connection with the injury made the basis of this lawsuit. Lucas v. Texas Indus., Inc., 696 S.W.2d 1 Plaintiffs’ Fourth Amended Petition, ¶ 6.06 REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE PAGE 5 2585294v.1 372, 377 (Tex. 1984). Plaintiffs’ Response fails to proffer any evidence that would allow them to clear these hurdles. “A marketing defect such as a failure to warn occurs when a defendant knows or should have known of a potential risk of harm presented by the product but markets it without adequately warning of the danger or providing instructions for safe use.” Sipes v. General Motors Corp., 946 S.W.2d 143, 156 (Tex. App.—Texarkana 1997, writ denied) (citing Bristol- Meyers Co. v. Gonzales, 561 S.W.2d 801, 804 (Tex. 1978). “The existence of a duty to warn of dangers or instruct as to the proper use of a product is a question of law.” Robins v. Kroger Co., 982 S.W.2d 156, 160 (Tex. App.— Houston [1st Dist.] 1998, pet. denied). “The determination of whether a manufacturer has a duty to warn is made when the product leaves the manufacturer.” Id. Because Plaintiffs have no evidence of any defect in the subject products, Plaintiffs have no evidence to support a duty “to warn” or duty “to instruct” on the part of CMC. As such, CMC is entitled to summary judgment on Plaintiffs’ strict liability marketing defect claim. V. No Material Issue of Fact Exists as to Plaintiffs’ Punitive Damages Claim To be liable for punitive damages for gross negligence, Plaintiffs must prove that CMC as a corporation committed gross negligence. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921- 22 (Tex. 1998); Fort Worth Elevators, Co. v. Russell, 70 S.W.2d 397, 406 (1934), overruled on other grounds by Wright v. Gifford–Hill & Co., 725 S.W.2d 712 (Tex. 1987). Because corporations can only act through its agents, the Texas Supreme Court holds that a corporation is only liable for punitive damages if it authorizes or ratifies an agent’s gross negligence or for the grossly negligent actions or inactions of its vice-principals. Mobil Oil Corp., 968 S.W.2d at 921- 22. Here, Plaintiffs fail to prove that their claim for gross negligence because (1) the alleged act REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE PAGE 6 2585294v.1 was not committed by a vice-principal of CMC, (2) the act was not ratified by CMC, (3) the act was not objectively grossly negligent, and (4) the act was not subjectively grossly negligent. To be a vice-principal, the agent must be either (1) a corporate officer, (2) an individual with authority to employ, direct, and discharge employees, (3) an individual engaged in the performance of non-delegable or absolute duties of the employer, or (4) an individual to whom an employer has confided the management of the whole business or a department or division of the business. See Mobil Oil Corp., 968 S.W.2d at 921-22; Garrett v. Great W. Distrib. Co. of Amarillo, 129 S.W.3d 797, 802-03 (Tex. App.—Amarillo 2004, pet. denied); Cigna v. Pybas, 127 S.W.3d 400, 418 (Tex. App.—Dallas 2004, no pet.). Furthermore, it must be shown that the tortious act was encompassed with the duties to the agent. See Garrett, 129 S.W.3d at 802-03; Cigna, 127 S.W.3d at 418. Having some supervisory authority over others without the ability to hire and fire is not enough. See Garrett, 129 S.W.3d at 802; Cigna, 127 S.W.3d at 418. Similarly, if the employee has no autonomy to make decision for the corporation without first going to another individual in the company, he is not a vice-principal. See Garrett, 129 S.W.3d at 802; Cigna, 127 S.W.3d at 418. Plaintiffs have no evidence that Defendants ratified an employee’s allegedly grossly negligent act. Ratification only occurs when the employer or vice-principal confirms, adopts, or fails to repudiate the acts of its employee—not when the employee simply takes some action or inaction in their role or in their delegated duties. Cigna, 127 S.W.3d at 418; Eikon King St. Manager, L.L.C. v. LSF King St. Manager, L.L.C., 109 S.W.3d 762, 768 (Tex. App.—Dallas 2003, pet denied). In other words, ratification requires a person to adopt or confirm a prior act that did not then legally bind that person and which that person had the right to repudiate. Eikon REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE PAGE 7 2585294v.1 King St. Manager, L.L.C., 109 S.W.3d at 768. Ratification is a matter of intent that requires the person to “adopt or confirm with knowledge of all material facts.” Id. Plaintiffs have no evidence of an act or omission from CMC which when viewed objectively from the standpoint of the actor at the time of its occurrence involved an extreme degree of risk considering the probability and magnitude of the potential harms to others. An “extreme degree of risk” means “not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to [Plaintiffs].” Dillard Dep’t Stores, 148 S.W.3d at 374; see also Smith v. O’Donnell, 288 S.W.3d 417, 423-24 (Tex. 2009) (“The objective prong is a function of both the magnitude and the probability of potential injury and is not satisfied if the defendant’s conduct merely creates a remote possibility of serious injury.”). Even if Plaintiffs could meet the objective prong (which they cannot), Plaintiffs fail to present evidence that CMC had actual, subjective knowledge of the risk involved yet proceeded with conscious indifference to the safety of others. The Supreme Court of Texas explained that the subjective prong requires that the “defendant knew about the peril, but its acts or omissions demonstrated that it did not care.” Mobil Oil Corp., 968 S.W.2d at 921. Importantly, “an actor’s failure to pursue the safest course available . . . does not equate to a want of caring” to meet the requisite mens rea. Agrium U.S., Inc. v. Clark, 179 S.W.3d 765, 767 (Tex. App.—Amarillo 2005, pet. denied) (citing Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 597-98 (Tex. 1999)). Indeed “the circumstances of each case must stand on their own. . . . [A]ll the circumstances are pivotal, and unless they permit a reasonable jury to develop a firm conviction or belief that the defendant ‘did not care’ about the risk, there can be no gross negligence.” Id. at 768. For the foregoing reasons, CMC is entitled to summary judgment on Plaintiffs’ punitive damages claim. REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE PAGE 8 2585294v.1 III. CONCLUSION WHEREFORE, CMC asks this Court to sustain its objections to Plaintiffs’ summary judgment evidence, grant summary judgment in CMC’s favor and render a final judgment granting CMC the relief requested in this Motion, and grant CMC all other such relief as to which it may be justly entitled. Respectfully Submitted, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP /s/Allison J. Maynard Lee L. Cameron, Jr. State Bar No. 03675380 Allison J. Maynard State Bar No. 24055923 Bank of America Plaza 901 Main Street, Suite 4800 Dallas, Texas 75202-3758 Telephone (214) 698-8000 Facsimile (214) 698-1101 Lee.Cameron@wilsonelser.com Allison.Maynard@wilsonelser.com ATTORNEYS FOR DEFENDANTS CMC STEEL FABRICATORS, INC. D/B/A CMC CONSTRUCTION SERVICES AND COMMERCIAL METALS COMPANY CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was served via electronic service in accordance with the Texas Rules of Civil Procedure on this 12th day of May, 2017. /s/Allison J. Maynard Allison J. Maynard REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE PAGE 9 2585294v.1