Preview
FILED
DALLAS COUNTY
6/8/2017 8:18:58 AM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-13-05222
CARL AND SANDRA JOHNSON, § IN THE DISTRICT COURT OF
§
PLAINTIFFS, §
§
v. §
§ 68TH JUDICIAL DISTRICT
CMC STEEL FABRICATORS, INC. §
D/B/A CMC CONSTRUCTION §
SERVICES; AND COMMERCIAL §
METALS COMPANY, §
§
DEFENDANTS. § DALLAS COUNTY, TEXAS
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ TRIAL BRIEF
ON SUBMISSION OF PRODUCTS LIABILITY QUESTIONS
TO THE HONORABLE JUDGE OF THIS COURT:
Plaintiffs Carl Johnson and Sandra Johnson, by and through their attorneys of record, file
Plaintiffs’ Response to Defendants’ Motion for Directed Verdict and show this Honorable Court
the following:
BACKGROUND
On June 28, 2011, Plaintiff Carl Johnson (“Mr. Johnson”) suffered a broken femur and
permanently damaged knee while working in the course and scope of his employment with
Hensel Phelps Construction Company (“Hensel”). On the day of the incident, Plaintiff was
working on a project for the construction of a new terminal at Love Field Airport in Dallas,
Texas. Part of the project required the construction of architectural columns two (2) feet in
diameter and thirty-four (34) feet in height.
The column form was designed and manufactured by Dayton Superior Corporation and
supplied to Mr. Johnson’s employer by Commercial Metals Company and CMC Steel
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ TRIAL BRIEF 1
ON SUBMISSION OF PRODUCTS LIABILITY QUESTIONS
Fabricators, Inc. d/b/a CMC Construction Services (collectively “CMC”). CMC markets
themselves as a global, low-cost metals recycling, manufacturing, fabricating and trading
enterprise.
The bracing for the column forms that Mr. Johnson was using on the date of the incident
were different than the bracing for the column forms that CMC had previously supplied for this
same type of task. Mr. Johnson and fellow crewmembers were lifting the form in question with
the help of a crane, just as they had done with previous forms. While in the process of lifting the
forms for pouring the concrete columns, the large metal brace attached to one of the forms came
loose and crushed Carl Johnson’s leg. Mr. Johnson suffered severe and permanently disabling
injuries to his leg for which he has been forced to seek ongoing medical treatment; including a
total knee replacement in the immediate future.
Because of the permanent injuries suffered by Plaintiffs, Carl and his wife Sandra
brought claims against Dayton Superior for negligence and strict liability and against CMC Steel
Fabricators, Inc. d/b/a CMC Construction Services, and Commercial Metals Company for 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. See Exhibit A.
At the conclusion of both Plaintiffs’ and Defendants’ cases-in-chief, Defendant
Commercial Metals Company submitted its argument for a directed verdict with respect to
Plaintiffs’ products liability claims against Defendants. Defendants’ argument centered around
the Supreme Court of Texas case of Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661
(Tex.1999), as Defendants argued Plaintiffs had identical claims for its strict liability and
products liability claims, and for this reason, was entitled to a directed verdict. Defendants
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ TRIAL BRIEF 2
ON SUBMISSION OF PRODUCTS LIABILITY QUESTIONS
appear to want this Honorable Court to consolidate Plaintiffs’ claims into fewer questions for the
jury.
ARGUMENTS & AUTHORITIES
A court should not direct a verdict if the evidence does not conclusively prove a fact that
establishes or negates as a matter of law a party’s right to judgment. Prudential Ins. Co. v. Fin.
Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000); Westchester Fire Ins. Co. v. Admiral Ins. Co.,
152 S.W.3d 172, 191 (Tex.App.—Fort Worth 2004, pet. denied); see Envtl. Processing Sys., L.C.
v. FPL Farming Ltd., 457 S.W.3d 414, 425-26 (Tex.2015).
Specifically, this Honorable Court should not grant Defendants’ motion because, as
established by the Hyundai ruling, “liability for personal injuries caused by a product's defective
design can be imposed under several legal theories, among them negligence, breach of warranty,
and strict products liability.” Hyundai Motor Co., 995 S.W.2d at 664. The Hyundai ruling is
distinct from this matter because of the fact that Hyundai concerned two jury questions – one
regarding a design defect (not a marketing defect as is the case here), and the other regarding a
jury question and instruction on a breach-of-warranty claim with the following wording and
instruction:
Was the automobile supplied by [Hyundai] unfit for the
ordinary purposes for which such automobiles are used because of
a defect, and, if so, was such unfit condition a proximate cause of
the injury in question?
A defect means a condition of the goods that renders it unfit for the
ordinary purposes for which it is used because of a lack of
something necessary for adequacy.
Hyundai Motor Co., 995 S.W.2d at 663.
The trial court refused to include the breach-of-warranty question and instruction. Id.
The jury failed to find Hyundai liable and rendered a take-nothing judgment against the plaintiff,
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ TRIAL BRIEF 3
ON SUBMISSION OF PRODUCTS LIABILITY QUESTIONS
and the plaintiff appealed. Id. The court of appeals reversed the judgment and remanded the
case for trial on the plaintiff’s breach of implied warranty claim. Id. The Supreme Court of
Texas reversed the court of appeals’ decision and concluded that the trial court’s refusal was
proper to avoid both confusing the jury and possibly creating an inconsistent finding. Id. at 665.
However, the Supreme Court also noted the narrow nature of this ruling:
We recognize, too, that the consequences of liability
determinations under strict liability and breach of warranty theories
are different. Liability for breach of an implied warranty of
merchantability is restricted to merchants; strict liability is not so
limited. A breach of warranty may be a basis for recovery under the
Deceptive Trade Practices--Consumer Protection Act; strict liability
is not. For breach of an implied warranty a plaintiff may recover
only actual damages, but recovery under the DTPA may include
statutory damages and attorney fees; in an action for strict liability a
plaintiff may recover actual and punitive damages, but not attorney
fees. The statute of limitations is four years on a breach of warranty
claim but only two years on a strict liability claim. These are but
some of the differences (none of which were involved in this case).
Plaintiffs are generally entitled to obtain findings that will support
alternative theories of recovery, even if those theories address but a
single injury. In such cases, the trial court should structure the
jury charge to obtain findings that will allow the plaintiff to
elect a basis of recovery, and the defendant to assert defenses
that may not be available to all theories.
Our holding today does not hamper the trial court from
submitting a charge on multiple theories. We hold only that the
jury should not be asked to consider the identical defect finding
in response to questions relating to strict-liability and breach-
of-implied-warranty claims.
Hyundai Motor Co., 995 S.W.2d at 668.
Hyundai’s ruling does not apply in this matter. As stated above, in Hyundai, the
court’s decision centered on factually identical design defect claims, which is not the case here.
In the present matter, Plaintiffs’ cause of action with respect to strict liability presents the
argument that the column forms supplied by CMC to Hensel Phelps were defective and
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ TRIAL BRIEF 4
ON SUBMISSION OF PRODUCTS LIABILITY QUESTIONS
unreasonably dangerous because the forms lacked adequate warnings and instructions – a
marketing defect. Plaintiffs’ breach of warranty claims (warranty of merchantability and
warranty for a particular purpose) center around CMC’s failure to provide a heavy-duty brace
bracket and/or heavy duty shoe to Hensel Phelps when supplying the column forms and
bracing involved in Carl Johnson’s injury. These are clearly different and distinct claims, and
as such, this Honorable Court should deny Defendants’ motion.
CONCLUSION & PRAYER
For these reasons, Plaintiffs respectfully request this Honorable Court deny Defendant’s Motion
for Directed Verdict as Defendant fails to conclusively prove CMC is entitled to a directed
verdict with respect to any issue related to the Supreme Court of Texas’s ruling in Hyundai
Motor Co. v. Rodriguez.
Respectfully Submitted,
/s/ Eugene L. Tagle
___________________
Michael A. Crozier
Texas Bar No. 24064603
crozier@kelleyfirm.com
Eugene L. Tagle
Texas Bar No. 24067894
tagle@kelleyfirm.com
THE KELLEY LAW FIRM, P.C.
2614 Main Street
Dallas, Texas 75226
P: (972) 850-0500
F: (972) 850-0400
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ TRIAL BRIEF 5
ON SUBMISSION OF PRODUCTS LIABILITY QUESTIONS
CERTIFICATE OF SERVICE
I certify that on June 8, 2017 a true and correct copy of this instrument was served on all
counsel of record by the method indicated below in accordance with the Texas Rules of Civil
Procedure.
/s/ Eugene L. Tagle
_______________________
Eugene L. Tagle
Lee L. Cameron Jr. via e-mail: lee.cameron@wilsonelser.com
Allison J. Maynard via e-mail: allison.maynard@wilsonelser.com
Wilson, Elser, Moskowitz,
Edelman & Dicker, LLP
Bank of America Plaza
901 Main Street, Suite 4800
Dallas, TX 75202
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ TRIAL BRIEF 6
ON SUBMISSION OF PRODUCTS LIABILITY QUESTIONS
Preview
FILED DALLAS COUNTY 6/8/2017 8:18:58 AM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-13-05222 CARL AND SANDRA JOHNSON, § IN THE DISTRICT COURT OF § PLAINTIFFS, § § v. § § 68TH JUDICIAL DISTRICT CMC STEEL FABRICATORS, INC. § D/B/A CMC CONSTRUCTION § SERVICES; AND COMMERCIAL § METALS COMPANY, § § DEFENDANTS. § DALLAS COUNTY, TEXAS PLAINTIFFS’ RESPONSE TO DEFENDANTS’ TRIAL BRIEF ON SUBMISSION OF PRODUCTS LIABILITY QUESTIONS TO THE HONORABLE JUDGE OF THIS COURT: Plaintiffs Carl Johnson and Sandra Johnson, by and through their attorneys of record, file Plaintiffs’ Response to Defendants’ Motion for Directed Verdict and show this Honorable Court the following: BACKGROUND On June 28, 2011, Plaintiff Carl Johnson (“Mr. Johnson”) suffered a broken femur and permanently damaged knee while working in the course and scope of his employment with Hensel Phelps Construction Company (“Hensel”). On the day of the incident, Plaintiff was working on a project for the construction of a new terminal at Love Field Airport in Dallas, Texas. Part of the project required the construction of architectural columns two (2) feet in diameter and thirty-four (34) feet in height. The column form was designed and manufactured by Dayton Superior Corporation and supplied to Mr. Johnson’s employer by Commercial Metals Company and CMC Steel PLAINTIFFS’ RESPONSE TO DEFENDANTS’ TRIAL BRIEF 1 ON SUBMISSION OF PRODUCTS LIABILITY QUESTIONS Fabricators, Inc. d/b/a CMC Construction Services (collectively “CMC”). CMC markets themselves as a global, low-cost metals recycling, manufacturing, fabricating and trading enterprise. The bracing for the column forms that Mr. Johnson was using on the date of the incident were different than the bracing for the column forms that CMC had previously supplied for this same type of task. Mr. Johnson and fellow crewmembers were lifting the form in question with the help of a crane, just as they had done with previous forms. While in the process of lifting the forms for pouring the concrete columns, the large metal brace attached to one of the forms came loose and crushed Carl Johnson’s leg. Mr. Johnson suffered severe and permanently disabling injuries to his leg for which he has been forced to seek ongoing medical treatment; including a total knee replacement in the immediate future. Because of the permanent injuries suffered by Plaintiffs, Carl and his wife Sandra brought claims against Dayton Superior for negligence and strict liability and against CMC Steel Fabricators, Inc. d/b/a CMC Construction Services, and Commercial Metals Company for 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. See Exhibit A. At the conclusion of both Plaintiffs’ and Defendants’ cases-in-chief, Defendant Commercial Metals Company submitted its argument for a directed verdict with respect to Plaintiffs’ products liability claims against Defendants. Defendants’ argument centered around the Supreme Court of Texas case of Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661 (Tex.1999), as Defendants argued Plaintiffs had identical claims for its strict liability and products liability claims, and for this reason, was entitled to a directed verdict. Defendants PLAINTIFFS’ RESPONSE TO DEFENDANTS’ TRIAL BRIEF 2 ON SUBMISSION OF PRODUCTS LIABILITY QUESTIONS appear to want this Honorable Court to consolidate Plaintiffs’ claims into fewer questions for the jury. ARGUMENTS & AUTHORITIES A court should not direct a verdict if the evidence does not conclusively prove a fact that establishes or negates as a matter of law a party’s right to judgment. Prudential Ins. Co. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000); Westchester Fire Ins. Co. v. Admiral Ins. Co., 152 S.W.3d 172, 191 (Tex.App.—Fort Worth 2004, pet. denied); see Envtl. Processing Sys., L.C. v. FPL Farming Ltd., 457 S.W.3d 414, 425-26 (Tex.2015). Specifically, this Honorable Court should not grant Defendants’ motion because, as established by the Hyundai ruling, “liability for personal injuries caused by a product's defective design can be imposed under several legal theories, among them negligence, breach of warranty, and strict products liability.” Hyundai Motor Co., 995 S.W.2d at 664. The Hyundai ruling is distinct from this matter because of the fact that Hyundai concerned two jury questions – one regarding a design defect (not a marketing defect as is the case here), and the other regarding a jury question and instruction on a breach-of-warranty claim with the following wording and instruction: Was the automobile supplied by [Hyundai] unfit for the ordinary purposes for which such automobiles are used because of a defect, and, if so, was such unfit condition a proximate cause of the injury in question? A defect means a condition of the goods that renders it unfit for the ordinary purposes for which it is used because of a lack of something necessary for adequacy. Hyundai Motor Co., 995 S.W.2d at 663. The trial court refused to include the breach-of-warranty question and instruction. Id. The jury failed to find Hyundai liable and rendered a take-nothing judgment against the plaintiff, PLAINTIFFS’ RESPONSE TO DEFENDANTS’ TRIAL BRIEF 3 ON SUBMISSION OF PRODUCTS LIABILITY QUESTIONS and the plaintiff appealed. Id. The court of appeals reversed the judgment and remanded the case for trial on the plaintiff’s breach of implied warranty claim. Id. The Supreme Court of Texas reversed the court of appeals’ decision and concluded that the trial court’s refusal was proper to avoid both confusing the jury and possibly creating an inconsistent finding. Id. at 665. However, the Supreme Court also noted the narrow nature of this ruling: We recognize, too, that the consequences of liability determinations under strict liability and breach of warranty theories are different. Liability for breach of an implied warranty of merchantability is restricted to merchants; strict liability is not so limited. A breach of warranty may be a basis for recovery under the Deceptive Trade Practices--Consumer Protection Act; strict liability is not. For breach of an implied warranty a plaintiff may recover only actual damages, but recovery under the DTPA may include statutory damages and attorney fees; in an action for strict liability a plaintiff may recover actual and punitive damages, but not attorney fees. The statute of limitations is four years on a breach of warranty claim but only two years on a strict liability claim. These are but some of the differences (none of which were involved in this case). Plaintiffs are generally entitled to obtain findings that will support alternative theories of recovery, even if those theories address but a single injury. In such cases, the trial court should structure the jury charge to obtain findings that will allow the plaintiff to elect a basis of recovery, and the defendant to assert defenses that may not be available to all theories. Our holding today does not hamper the trial court from submitting a charge on multiple theories. We hold only that the jury should not be asked to consider the identical defect finding in response to questions relating to strict-liability and breach- of-implied-warranty claims. Hyundai Motor Co., 995 S.W.2d at 668. Hyundai’s ruling does not apply in this matter. As stated above, in Hyundai, the court’s decision centered on factually identical design defect claims, which is not the case here. In the present matter, Plaintiffs’ cause of action with respect to strict liability presents the argument that the column forms supplied by CMC to Hensel Phelps were defective and PLAINTIFFS’ RESPONSE TO DEFENDANTS’ TRIAL BRIEF 4 ON SUBMISSION OF PRODUCTS LIABILITY QUESTIONS unreasonably dangerous because the forms lacked adequate warnings and instructions – a marketing defect. Plaintiffs’ breach of warranty claims (warranty of merchantability and warranty for a particular purpose) center around CMC’s failure to provide a heavy-duty brace bracket and/or heavy duty shoe to Hensel Phelps when supplying the column forms and bracing involved in Carl Johnson’s injury. These are clearly different and distinct claims, and as such, this Honorable Court should deny Defendants’ motion. CONCLUSION & PRAYER For these reasons, Plaintiffs respectfully request this Honorable Court deny Defendant’s Motion for Directed Verdict as Defendant fails to conclusively prove CMC is entitled to a directed verdict with respect to any issue related to the Supreme Court of Texas’s ruling in Hyundai Motor Co. v. Rodriguez. Respectfully Submitted, /s/ Eugene L. Tagle ___________________ Michael A. Crozier Texas Bar No. 24064603 crozier@kelleyfirm.com Eugene L. Tagle Texas Bar No. 24067894 tagle@kelleyfirm.com THE KELLEY LAW FIRM, P.C. 2614 Main Street Dallas, Texas 75226 P: (972) 850-0500 F: (972) 850-0400 PLAINTIFFS’ RESPONSE TO DEFENDANTS’ TRIAL BRIEF 5 ON SUBMISSION OF PRODUCTS LIABILITY QUESTIONS CERTIFICATE OF SERVICE I certify that on June 8, 2017 a true and correct copy of this instrument was served on all counsel of record by the method indicated below in accordance with the Texas Rules of Civil Procedure. /s/ Eugene L. Tagle _______________________ Eugene L. Tagle Lee L. Cameron Jr. via e-mail: lee.cameron@wilsonelser.com Allison J. Maynard via e-mail: allison.maynard@wilsonelser.com Wilson, Elser, Moskowitz, Edelman & Dicker, LLP Bank of America Plaza 901 Main Street, Suite 4800 Dallas, TX 75202 PLAINTIFFS’ RESPONSE TO DEFENDANTS’ TRIAL BRIEF 6 ON SUBMISSION OF PRODUCTS LIABILITY QUESTIONS