NO CV IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS ISABEL MOLINA, Appellant VS. JOLLY CHEF EXPRESS, INC.

Transcription

1 NO CV IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS ORAL ARGUMENT REQUESTED ISABEL MOLINA, Appellant VS. JOLLY CHEF EXPRESS, INC., Appellee On Appeal from the 101 st Judicial District Court Dallas County, Texas Trial Court Cause No E Hon. Martin Lowy, Presiding APPELLEE S BRIEF D. Bradley Dickinson State Bar No DICKINSON BARTLETT, P.C Greenville Avenue, Suite 1550 Dallas, Texas (214) (Telephone) (214) (Facsimile) ATTORNEYS FOR APPELLEE

2 IDENTITY OF PARTIES AND COUNSEL In addition to those persons and entities referenced in Appellant s Brief, Appellee submits the following: Name D. Bradley Dickinson DICKINSON BARTLETT, P.C Greenville Avenue, Suite 1550 Dallas, Texas Relationship Appellate Counsel for Jolly Chef

3 TABLE OF CONTENTS INDEX OF AUTHORITIES... iii STATEMENT OF FACTS... 2 SUMMARY OF THE ARGUMENT... 5 ARGUMENT AND AUTHORITIES... 7 A. STANDARD OF REVIEW... 7 B. APPELLANT HAS WAIVED HER CHALLENGE TO THE SUMMARY JUDGMENT BY FAILING TO PROPERLY CHALLENGE ALL POSSIBLE GROUNDS ON WHICH SUMMARY JUDGMENT COULD HAVE BEEN GRANTED C. THE TRIAL COURT PROPERLY GRANTED JOLLY CHEF S NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON THE PRODUCTS LIABILITY CAUSE OF ACTION Elements of a marketing defect claim There was no evidence of a duty to warn of the dangers of using gasoline as a cleaning agent There was no evidence of any risk of harm arising from the intended or reasonably anticipated use of the catering truck There was no evidence that Jolly chef actually knew or should have foreseen the risk of harm at the time the product was marketed There was no evidence that the catering truck in question was rendered unreasonably dangerous because of the absence of any warning or instruction CONCLUSION AND PRAYER FOR RELIEF CERTIFICATE OF SERVICE... 23

4 INDEX OF AUTHORITIES CASES Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420 (Tex. 1997)... 11, 13, 14 Bristol-Myers Co. v. Gonzales, 561 S.W.2d 801 (Tex. 1978) Brown Forman Corp. v. Brune, 893 S.W.2d Browning v. Prostok, 165 S.W.3d 336 (Tex. 2005)... 9 Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623 (Tex. 1996)... 8 Caterpillar, Inc. v. Shears, 911 S.W.2d 379 (Tex. 1995)... 11, 13, 14, 15 Dickey v. Club Corp., 12 S.W.3d 172 (Tex. App. Dallas 2000, pet. denied)... 7 D.R. Horton-Tex., Ltd. v. Markel Intern. Ins. Co., Ltd., 300 S.W.3d 740 (Tex. 2009)... 9 General Motors Corp. v. Saenz, 873 S.W.2d 353 (Tex. 1993) Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (Tex. 1952)... 7 Guzman v. Synthes (USA), 20 S.W.3d , 14 Hagans v. Oliver Mach. Co., 576 F.2d 97 (5th Cir. 1978)... 15

5 Hanus v. Texas Utilities Company, 71 S.W.3d , 16 In re Mohawk Rubber Company, 982 S.W.2d 494 (Tex. App.--Texarkana 1998, no pet.)... 8 Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385 (Tex. 1991)... 13, 14 Kindred v. Con/Chem, Inc., 650 S.W.2d 61 (Tex. 1983)... 8 King Ranch v. Chapman, 118 S.W.3d 742 (Tex. 2003)... 8 Lozano v. H.D. Indus., Inc., 953 S.W.2d 304 (Tex. App.-El Paso 1997, no pet.) Lozano v. Lozano, 52 S.W.3d 141 (Tex. 2001)... 8 Lucas v. Texas Indus., Inc., 696 S.W.2d 372 (Tex. 1984) McCombs v. Children's Med. Ctr., 1 S.W.3d 256 (Tex. App. Texarkana 1999, pet. denied)... 8 Murray v. Cadle Co., 257 S.W.3d 291 (Tex. App.-Dallas 2008, pet. denied)... 9 Natividad v. Alexsis, Inc., 875 S.W.2d 695 (Tex. 1994)... 7 Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)... 7 Orozco v. Dallas Morning News, Inc., 975 S.W.2d 392 (Tex. App. Dallas 1998, no pet.)... 9, 11 Rodarte v. Investeco Group, L.L.C., 299 S.W.3d 400 (Tex. App-Houston [14 th Dist.] 2009, no pet.)... 9, 11 Sauder Custom Fabrication, Inc. v. Boyd,

6 967 S.W.2d 349 (Tex. 1998)... 13, 21 Sims v. Washex Mach. Corp., 932 S.W.2d , 13, 18, 21 Star-Telegram, Inc. v. Doe, 915 S.W.2d 471 (Tex. 1995)... 9, 10 State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374 (Tex. 1993)... 9 The Ritz Car Wash, Inc. v. Kastis, 976 S.W.2d 812 (Tex. App. Houston [1 st Dist.] 1998, pet. denied)... 16, 17 Turner v. Church of Jesus Christ of Latter-Day Saints, 18 S.W.3d 877 (Tex. App.--Dallas 2000, pet. denied)... 8 Turner v. General Motors Corp., 584 S.W.2d 844 (Tex. 1979) USX Corp. v. Salinas, 818 S.W.2d 473 (Tex. App.--San Antonio 1991, writ denied)... 12, 13, 17, 21 STATUTES & RULES TEX.RAPP.P TEX. R. CIV. P passim

7 CERTIFICATE OF COMPLIANCE I certify that this submitted attachment of the brief complies with the following requirements of the Court: 1. The brief is submitted by attachment; 2. The attachment is labeled with the following information: A. Case Name: Isabel Molina v. Jolly Chef Express, Inc. B. The Appellate Case Number: CV C. The Type of Brief: Appellee s opening brief D. Party for whom the brief is being submitted: Appellee Jolly chef Express, Inc. E. The Word Processing Software and Version Used to Prepare the Brief: Word The attachment contains only an electronic copy of the brief and the appendix. The documents in the appendix conform to the requirements of Texas Rules of Appellate Procedure 9.8 and 38.1(k). 4. The attachment is free of viruses or any other files that would be disruptive to the Court=s computer system. The following software, if any, was used to ensure the brief is virus-free: AVG. 5. I understand that a copy of this brief may be posted on the Court=s website and that the electronically filed copy of the brief becomes part of the Court=s record. 6. Copies have been sent to all parties associated with this case. (Signature of filing party and date) D. Bradley Dickinson Dickinson Bartlett, P.C.

8 NO CV IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS ISABEL MOLINA, Appellant VS. JOLLY CHEF EXPRESS, INC., Appellee On Appeal from the 101 st Judicial District Court Dallas County, Texas Trial Court Cause No E Hon. Martin Lowy, Presiding APPELLEE S BRIEF Appellee Jolly Chef Express, Inc. ( Jolly Chef ) files this Appellee s Brief and respectfully submits that the summary judgment and subsequent Final Judgment entered by the trial court is correct in all respects and should be affirmed.

9 STATEMENT OF FACTS Pursuant to Rule 38.1(f) of the Texas Rules of Appellate Procedure, Jolly Chef submits that the Statement of Facts contained in Appellant s Brief contains inaccuracies. Accordingly, Jolly Chef submits the following Statement of Facts for consideration by this Court. Appellee Jolly Chef was in the business of entering into lease-purchase agreements regarding catering trucks. (CR 8). Prior to entering into the agreement, Jolly Chef and the purchaser would conduct a walk through of the truck and determine if there was anything on the vehicle that needed to be corrected. (Supp CR 79). The purchaser would be asked if he or she knew how to operate the vehicle and turn pilot lights on and off. (Supp CR 80). If it was a new purchaser, the individual would be told how to operate everything - what to light and what to turn off on the truck. (Supp CR 81). Juan Mike Bonilla purchased catering trucks from Jolly Chef. (Supp CR 80). In fact, Bonilla owned twelve (12) catering trucks in addition to the catering truck involved in the incident at issue. (Supp CR 80). Bonilla knew how to turn the pilot lights off and on. (Supp CR 80). Jolly Chef s vice-president, John Gray, candidly acknowledged in response to a vague inquiry that pilot lights could be dangerous. (Supp CR 81). However, he also explained that the person buying the catering truck knows that the grill and deep fryers have to be turned on to cook food such as hamburgers and French fries. (Supp CR 81).

10 Appellant Isabel Molina was injured while working on one of the catering trucks leased by Jolly Chef to Bonilla. (CR 9). Specifically, Molina was cleaning on the truck when an unsafe, flammable substance was being used on the floor of the catering truck to clean grease. (CR 9, 147). The flammable substance being used as a cleaning agent was gasoline. (CR 24, 26; Supp CR 12, 74). Jolly Chef s vice-president testified that never in [his] wildest dreams did he think that somebody would clean their truck with gas before this incident. (Supp CR 78). Gray also testified that he had no earthly idea why somebody would clean with gas. (Supp CR 78). Molina filed a lawsuit against Jolly Chef, Molina and others to recover damages for personal injuries. (CR 5). Molina asserted numerous causes of action against Jolly Chef including negligence, gross negligence, breach of contract, misrepresentation, unauthorized practice of insurance, and products liability. (CR 5 17). With regard to the products liability cause of action, Molina asserted that a marketing defect existed based upon the alleged lack of warnings regarding the use of flammable substances in an area that had pilot lights. (CR 12). After an appropriate time to complete discovery, Jolly Chef filed traditional and no evidence motions for partial summary judgment. (CR 18). The no evidence motion asserted the following as a basis for summary judgment on the product liability cause of action: There was no evidence that the catering truck in question was unreasonably dangerous;

11 There was no evidence the catering truck in question was defectively marketed; There was no evidence of any risk of harm arising from the intended or reasonably anticipated use of the catering truck in question; There was no evidence that Jolly Chef had actual knowledge of any alleged risk of harm for the catering truck in question; There was no evidence that Jolly Chef should have reasonably foreseen any alleged risk of harm for the catering truck in question; There was no evidence that the catering truck in question was rendered unreasonably dangerous because of the absence of any warning or instruction; There was no evidence that the lack of any warning or instruction caused the injuries alleged by the Plaintiffs; There was no evidence that Jolly Chef had a duty to warn Isabel Molina; There was no evidence that Jolly Chef had a duty to warn Isabel Molina of the dangers of using gasoline as a cleaning agent. (CR 25-26). After due consideration of the motion, the trial court granted Jolly Chef s motion on the product liability cause of action. (CR 118) 1. The trial court s order does not specify the basis for the court s ruling. The case proceeded to trial on April 9, Following the conclusion of the evidence, the jury determined that Jolly Chef was not negligent with regard to the incident. (CR 132). However, the jury did find that Bonilla exercised or retained control over the manner in which the catering truck was cleaned and that Bonilla s negligence 1 The trial court also granted Jolly Chef s motion on the causes of action for breach of contract, misrepresentation, and the unauthorized practice of insurance. (CR 118).

12 was the proximate cause of Molina s injuries. (CR 132). Moreover, the jury determined that Jolly Chef was not negligent with respect to any condition that existed on the premises or on the truck. (CR 133). The jury concluded that Bonilla was negligent with respect to any such condition. (CR 133). On May 22, 2007, the trial court entered a Final Judgment in favor of Jolly Chef on all claims asserted against it and judgment in favor of Molina on her claims against Bonilla. (CR ). Molina filed a motion for new trial and amended motion for new trial, which were subsequently denied by the trial court. (CR 146, 151, 158). This appeal ensued. (CR 159). SUMMARY OF THE ARGUMENT Appellee Jolly Chef was in the business of entering into lease-purchase agreements regarding catering trucks. Juan Mike Bonilla purchased 12 catering trucks from Jolly Chef. Bonilla knew how to turn the pilot lights off and on. Appellant Isabel Molina was injured while working on one of Bonilla s catering trucks. Molina was cleaning on the truck when an unsafe, flammable substance (gasoline) being used on the floor of the catering truck to clean grease ignited. Jolly Chef filed a no evidence motion for partial summary judgment on Molina s product liability cause of action and asserted that there was no evidence of numerous elements of her cause of action and no evidence of a duty to warn of the hazards of using gasoline as a cleaning agent. The trial court granted Jolly Chef s motion and the order does not specify the basis for the court s ruling. A trial court's decision to grant a motion for summary judgment is a question of law, which is subject to a de novo review.

13 Initially, because the trial court granted the motion without specify the grounds upon which the summary judgment was granted, Molina is obligated to challenge all grounds that may support the judgment. However, Molina only challenged some of the grounds asserted by Jolly Chef in its motion. Thus, this Court should affirm the summary judgment. The existence of a duty to warn of the dangers of a product in strict liability claims is a question of law to be determined by the court. In a marketing defect case, an unreasonably dangerous product must present a threat of a harm that would elude the common perception of the product. The potential hazards of gasoline are a matter of common knowledge. Jolly Chef had no duty to warn of the perils of using gasoline as a cleaning agent and any alleged hazard was open and obvious. Molina was also required to establish that the alleged risk of harm was inherent in the product or arose from the intended or reasonably anticipated use of the product. The risk of harm in this case is not inherent in the product (a pilot light in a catering truck) or arose from the use of the product. Bonilla knew how to turn the pilot lights off and on. The alleged hazard arose from the conduct of someone using a known flammable substance to clean in an enclosed area. Summary judgment was also proper because there was absolutely no evidence to support the requirement that Jolly Chef knew or reasonably should have foreseen the risk of harm. In fact, Molina s own summary judgment evidence established the contrary. Jolly Chef had no earthly idea that someone would clean a vehicle with gasoline.

14 Finally, Molina was required to present evidence that the absence of the warning and/or instructions rendered the product unreasonably dangerous to the ultimate user or consumer of the product. The perspective is that of an ordinary user of the product, not necessarily the same as that of an ordinary person unfamiliar with the product. In this case, the absence of warnings did not render the catering truck to be unreasonably dangerous. The catering truck and pilot light worked exactly as intended. The summary judgment evidence submitted by Molina established that Bonilla was aware of the existence of the pilot lights and how to operate the same. Thus, the summary judgment entered by the trial court should be affirmed. ARGUMENT AND AUTHORITIES A. STANDARD OF REVIEW The purpose of the summary judgment rule is to eliminate unmeritorious claims or untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (Tex. 1952). A trial court's decision to grant a motion for summary judgment is a question of law, which is subject to a de novo review. See Natividad v. Alexsis, Inc., 875 S.W.2d 695 (Tex. 1994); Dickey v. Club Corp., 12 S.W.3d 172, 175 (Tex. App. Dallas 2000, pet. denied). A party may file a traditional or no evidence motion for summary judgment or both. See TEX. R. CIV. P. 166a. The standard of review applicable to summary judgment motions is well established. See Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, (Tex. 1985).

15 Under Rule 166a(i), a party may move for summary judgment on the ground that "no evidence" exists to support one or more essential elements of a claim. See TEX. R. CIV. P. 166a(i); Turner v. Church of Jesus Christ of Latter-Day Saints, 18 S.W.3d 877, 898 (Tex. App.--Dallas 2000, pet. denied). Once properly raised, Rule 166a(i) employs a no-evidence standard and places the burden on the non-movant to produce evidence on each and every challenged element of the claim. In re Mohawk Rubber Company, 982 S.W.2d 494, 498 (Tex. App.--Texarkana 1998, no pet.). Although the nonmoving party need not "marshal its proof, it must produce more than a scintilla of probative evidence to raise a genuine fact issue on each of the challenged elements. McCombs v. Children's Med. Ctr., 1 S.W.3d 256, 258 (Tex. App. Texarkana 1999, pet. denied). More than a scintilla of evidence exists only if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact s existence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). On the other hand, no more than a scintilla of evidence exists when the evidence offered to prove a vital fact is so weak so as to do no more than create a mere surmise or suspicion of its existence. King Ranch v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Evidence that fails to constitute more than a mere scintilla is, in legal effect, no evidence at all. Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001). When, as here, the trial court does not specify the grounds upon which a summary judgment was granted, the appellate court will affirm summary judgment if any of one the theories presented to the trial court and preserved for appellate review is meritorious. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996); Browning v. Prostok

16 165 S.W.3d 336, 344 (Tex. 2005). Further, if the trial court does not specify the basis for granting summary judgment, the appealing party must challenge all grounds that support the judgment. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993). If the appealing party fails to negate or challenge all possible grounds on which summary judgment could have been granted, the appellate court will uphold the summary judgment on those grounds. Id.; Orozco v. Dallas Morning News, Inc., 975 S.W.2d 392, 394 (Tex. App. Dallas 1998, no pet.). Therefore, if the appellee moved for summary judgment on a particular ground, and the appellant does not raise the ground as one on which the trial court erred in granting summary judgment, the appellant waives any challenge to that ground. See Tex. R. App. P. 38.1; Rodarte v. Investeco Group, L.L.C., 299 S.W.3d 400, 412 (Tex. App-Houston [14 th Dist.] 2009, no pet.). In addition, [i]ssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. D.R. Horton-Tex., Ltd. v. Markel Intern. Ins. Co., Ltd., 300 S.W.3d 740, 743 (Tex. 2009) (quoting Tex. R. Civ. P. 166a(c); Tex. R. App. P. 33.1(a)(1)); see, e.g., Murray v. Cadle Co., 257 S.W.3d 291, 296 n.4 (Tex. App.-Dallas 2008, pet. denied). Jolly Chef respectfully submits that an application of these standards to the evidence compels the determination that the trial court properly granted summary judgment.

17 B. APPELLANT HAS WAIVED HER CHALLENGE TO THE SUMMARY JUDGMENT BY FAILING TO PROPERLY CHALLENGE ALL POSSIBLE GROUNDS ON WHICH SUMMARY JUDGMENT COULD HAVE BEEN GRANTED Jolly Chef s no evidence motion for partial summary judgment on Molina s products liability cause of action was premised on several alternative grounds. Specifically, Jolly Chef asserted that there was no evidence: (1) that the catering truck was unreasonably dangerous; (2) that the catering truck was defectively marketed; (3) that there was any risk of harm arising from the intended or reasonably anticipated use of the catering truck; (4) that Jolly Chef had actual knowledge of any alleged risk of harm; (5) that Jolly Chef should have reasonably foreseen any alleged risk of harm for the catering truck; (6) that the catering truck was rendered unreasonably dangerous because of the absence of any warning or instruction; (7) that the lack of any warning or instruction caused the injuries alleged by Molina; (8) that Jolly Chef had a duty to warn Molina; and (9) that Jolly Chef had a duty to warn Molina of the dangers of using gasoline as a cleaning agent. (CR 25-26). The trial court granted the motion without specifying the grounds upon which the summary judgment was granted. (CR 118). Thus, Molina is obligated to challenge all grounds that may support the judgment. Star-Telegram, Inc., 915 S.W.2d at 473; S.S., 858 S.W.2d at 381. In this Court (as well as the trial court), Molina only challenged Jolly Chef s motion on the basis that there were no warnings about the dangers of pilot lights and pilot lights can be dangerous around potentially flammable cleaning solutions. (Supp CR

18 17-18). Molina does not mention or address Jolly Chef s contention that there was no evidence that the catering truck was unreasonably dangerous; that there was any risk of harm arising from the intended or reasonably anticipated use of the truck; that Jolly Chef had actual knowledge of any alleged risk of harm; that Jolly Chef should have reasonably foreseen any alleged risk of harm; that the lack of any warning or instruction caused the injuries alleged by Molina; or that Jolly Chef had a duty to warn Molina (or anyone else) of the dangers of using gasoline as a cleaning agent. (CR 25-26). In light of Molina s failure to present evidence on these issues or even address them in this Court or the trial court, this Court should affirm the summary judgment. Orozco, 975 S.W.2d at 394; Rodarte, 299 S.W.3d at 412. C. THE TRIAL COURT PROPERLY GRANTED JOLLY CHEF S NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON THE PRODUCTS LIABILITY CAUSE OF ACTION In addition to the fact that Molina has waived her challenge to the trial court s ruling, Jolly Chef respectfully submits that Molina failed to present legally sufficient evidence on the elements specified by Jolly Chef in its motion. 1. Elements of a marketing defect claim The law of products liability does not guarantee that a product will be risk free, since most products have some risk associated with their use. Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 381 (Tex. 1995). A product may be unreasonably dangerous due to a defect in its manufacture (manufacturing defect) or design (design defect), or because of a failure to provide adequate warnings or instructions (marketing defect). Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 426 (Tex. 1997); Turner v. General Motors

19 Corp., 584 S.W.2d 844, 847 (Tex. 1979). A defendant's failure to warn of a product's potential dangers when warnings are required is a type of marketing defect. Lucas v. Texas Indus., Inc., 696 S.W.2d 372, 377 (Tex. 1984). Liability will only attach if the lack of adequate warnings or instructions renders an otherwise adequate product unreasonably dangerous. Id. A marketing defect occurs when a defendant knows or should know 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. Bristol-Myers Co. v. Gonzales, 561 S.W.2d 801, 804 (Tex. 1978); Sims v. Washex Mach. Corp., 932 S.W.2d 559, 562 (Tex. App.- Houston [1 st Dist.] 1995, no writ); USX Corp. v. Salinas, 818 S.W.2d 473, 482 (Tex. App.-San Antonio 1991, writ denied). The focus is on whether the product's risks were reasonably foreseeable by the manufacturer at the time of manufacture, whether the lack of warnings or instructions created an unreasonable danger, and whether any warnings given were adequate. Brown Forman Corp. v. Brune, 893 S.W.2d 640, 644 (Tex. App.- Corpus Christi 1994, writ denied). A marketing defect cause of action consists of five elements: (1) a risk of harm must exist that is inherent in the product or that may arise from the intended or reasonably anticipated use of the product; (2) the manufacturer must actually know or reasonably foresee the risk of harm at the time the product is marketed; (3) the product must possess a marketing defect; (4) the absence of the warning and/or instructions must render the product unreasonably dangerous to the ultimate user or consumer of the product; and (5) the failure to warn and/or instruct must constitute a causative nexus in

20 the product user's injury. Sims, 932 S.W.2d at 562; USX Corp., 818 S.W.2d at The courts will examine the possible existence of a duty to warn of the dangers of a product in strict liability claims as a question of law. Am. Tobacco, 951 S.W.2d at 426; Firestone Steel, 927 S.W.2d at 613; Hanus v. Texas Utilities Company, 71 S.W.3d 874, 879 (Tex. App. Fort Worth 2002, no pet.). The Texas Supreme Court has recognized on numerous occasions that there is no 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) (no duty to warn of the dangers of excessive use of alcohol since the dangers are widely recognized). The Court has also stated that this rationale applies to products with risks that are obvious to anyone who uses the product. The standard is that of an ordinary user of the product, not that of an ordinary person unfamiliar with the product. Sauder Custom Fabrication, Inc. v. Boyd, 967 S.W.2d 349, 351 (Tex.1998). Thus, the duty to warn is limited and applies only to hazards of which the consumer is unaware. Caterpillar, Inc., 911 S.W.2d at Stated differently, in a marketing defect case, an unreasonably dangerous product must present a threat of a harm that would elude the common perception of the product. Hanus v. Texas Utilities Company, 71 S.W.3d 874 (Tex. App. Fort Worth 2002, no pet.). A manufacturer has no duty to warn of obvious risks because a readily apparent danger serves the same function as a warning. Caterpillar, 911 S.W.2d at 382. Finally, causation is an essential element of a cause of action for products liability. See General Motors Corp. v. Saenz, 873 S.W.2d 353, 357 (Tex. 1993); Guzman v.

21 Synthes (USA), 20 S.W.3d 717, 720 (Tex. App.-San Antonio 1999, pet. denied). In a marketing defect case, a manufacturer is liable to a claimant if its failure to warn renders a product unreasonably dangerous and the manufacturer's failure to warn was a producing cause of injury to the claimant. See Guzman, 20 S.W.3d at 720. Thus, plaintiffs are required to show that adequate warnings would have made a difference in the outcome, i.e., that the warnings would have been followed. Saenz, 873 S.W.2d at There was no evidence of a duty to warn of the dangers of using gasoline as a cleaning agent The existence of a duty to warn of the dangers of a product in strict liability claims is a question of law to be determined by the court. Am. Tobacco, 951 S.W.2d at 426; Firestone Steel, 927 S.W.2d at 613. In this case, Jolly Chef challenged Molina s products liability cause of action on the basis that there was no duty to warn of the dangers of using gasoline as a cleaning agent. (CR 25-26). The courts of Texas have adopted the position that in a marketing defect case, an unreasonably dangerous product must present a threat of a harm that would elude the common perception of the product. Stated differently, there is no duty to warn a consumer of risks associated with the use of a product when the risks are generally known and recognized and are within the ordinary knowledge common to the community. Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 388 (Tex. 1991) This doctrine was discussed by the Supreme Court in Caterpillar, Inc. v. Shears, 911 S.W.2d 379 (Tex. 1995). In that case, Shears sued Caterpillar for personal injuries

22 Shears suffered in a collision of two front-end loaders. The rollover protective structure ("ROPS") for the loader Shears was operating was not installed at the time of the accident. Shears alleged that Caterpillar did not warn him of the hazards of operating a loader without a ROPS. Following trial, the trial court rendered a judgment for Shears and the court of appeals affirmed. In the Supreme Court, Caterpillar contended that it had no duty to warn because the danger, if any, was obvious and therefore a warning would not have prevented the injury. In upholding Caterpillar s contention, the Supreme Court stated that it has recognized that there is no duty to warn when the risks associated with a particular product are matters "within the ordinary knowledge common to the community." Caterpillar, Inc. v. Shears, 911 S.W.2d at 382. The Court held that the Seagram's rationale applies with equal force to products with risks that are obvious to anyone who observes the product. Caterpillar, Inc., 911 S.W.2d at 382. In those circumstances, a warning is not required. Thus, the duty to warn is limited in scope, and applies only to hazards of which the consumer is unaware. Id. The Court further explained its rationale by referencing the observation of a number of courts that a warning that merely states the obvious would accomplish very little and may actually be counterproductive. The fact that a risk is readily apparent serves the same function as a warning. Id. at 382; see also Hagans v. Oliver Mach. Co., 576 F.2d 97, 102 & n. 5 (5 th Cir. 1978). Moreover, consumers are prone to ignore warnings of obvious dangers, thereby diminishing the importance given by users to warnings about non-obvious hazards. Caterpillar, Inc., 911 S.W.2d at 382; Lozano v.

23 H.D. Indus., Inc., 953 S.W.2d 304, 314 (Tex. App.-El Paso 1997, no pet.) ( A party has no duty to warn of obvious risks, since a readily apparent danger serves the same function as a warning. ); Hanus v. Texas Utils. Co., 71 S.W.3d 874, 880 (Tex. App.-Fort Worth 2002, no pet.) ( a manufacturer has no duty to warn of obvious risks because a readily apparent danger serves the same function as a warning ). The potential hazards of gasoline are a matter of common knowledge. In The Ritz Car Wash, Inc. v. Kastis, 976 S.W.2d 812 (Tex. App. Houston [1 st Dist.] 1998, pet. denied), plaintiff was injured while he was in the process of draining gasoline tainted with water from a van. Id. at 813. When he took the gas cap off the van, gasoline gushed out of the tank and onto plaintiff. He then jumped back and knocked over a drop light which ignited the gasoline resulting in serious burn injuries. Id. At trial, the jury determined that there was a defect in the marketing of the gasoline which was a producing cause of the injuries. Id. On appeal, Ritz argued that it had no duty to warn plaintiff about the dangers of working with gasoline because the dangers associated with gasoline were well known to plaintiff, and were within the knowledge common to the community. Id. at 814. The court of appeals agreed and stated that it is indisputable that the flammable nature of gasoline is obvious and well known to the community. Id. An application of these precepts to the facts of this case conclusively establishes that Jolly Chef had no duty to warn of the perils of using gasoline as a cleaning agent in an area where food is cooked and that any alleged hazard was open and obvious. In fact, the summary judgment evidence tendered by Molina supports Jolly Chef s position. The summary judgment evidence reflects that Jolly Chef never believed that anyone would

24 clean a truck with gasoline. (Supp CR 78). Moreover, the individual buying and operating the catering truck knows that the same has grills, deep fryers and other cooking equipment on board. (Supp CR 81). It defies logic and common sense for an individual to not recognize the obvious hazard inherent in using gasoline as a cleaning agent in an area where cooking equipment is located. The alleged hazard at issue was open and obvious. Accordingly, there was no evidence of a duty on the part of Jolly Chef to warn of the alleged hazard and the Final Judgment entered by the trial court should be affirmed. 3. There was no evidence of any risk of harm arising from the intended or reasonably anticipated use of the catering truck Molina was also required to establish that the alleged risk of harm was inherent in the product or arose from the intended or reasonably anticipated use of the product. USX Corp., 818 S.W.2d at Jolly Chef moved for summary judgment on that element of her cause of action and Molina failed to provide any evidence in support of her contention. The risk of harm in this case is not inherent in the product (a catering truck or pilot light) or arose from the foreseeable use of the product. The product is a catering truck with a pilot light that is used on the cooking equipment on the truck. The pilot light s function is solely to start the cooking equipment. (Supp CR 81). Bonilla owned twelve (12) catering trucks. (Supp CR 80). Bonilla knew how to turn the pilot lights off and on. (Supp CR 80).

25 The intended or reasonably anticipated use of the catering truck was to cook and present food to patrons. There is and should be a distinction between a product and the manner in which someone determines to clean the product. Molina presented absolutely no evidence that the use of gasoline as a kitchen cleaning agent was foreseeable or a reasonably anticipated use of the catering truck. The alleged hazard was not inherent in the pilot light or the catering truck and did not arise from their use. Rather, the alleged hazard arose from the conduct of someone using a known flammable substance to clean in an enclosed area. Thus, the Final Judgment entered by the trial court should be affirmed. 4. There was no evidence that Jolly Chef actually knew or should have foreseen the risk of harm at the time the product was marketed In addition to the fact that there was no evidence of a duty owed by Jolly Chef and the alleged risk of harm was not inherent in the product or arose from the intended or reasonably anticipated use of the product, there was absolutely no evidence to support the requirement that Jolly Chef knew or reasonably should have foreseen the risk of harm. One of the elements of a marketing defect cause of action is the requirement that the manufacturer must actually know or reasonably foresee the risk of harm at the time the product is marketed. Sims, 932 S.W.2d at 562. In this case, there was absolutely no evidence that Jolly Chef was aware of the risk of harm. In fact, Molina s summary judgment evidence establishes the contrary. The summary judgment evidence proffered by Molina establishes that:

26 Never in [his] wildest dreams did the vice-president of Jolly Chef think that somebody would clean their truck with gas before this incident. (Supp CR 78); and The vice-president had no earthly idea why somebody would clean with gas. (Supp CR 78). Moreover, Molina s summary judgment evidence does not support her assertion that Jolly Chef was aware of any danger inherent in a pilot light and failed to inform Bonilla. In this regard, Molina s selective use and editing of the testimony of Jolly Chef s representative is very misleading. Specifically, Molina s brief contains the following quote from the testimony of Gray: Q. Now, when they did the walk through, did you show them about all the hidden pilot lights? A. He is asked if he knows how to operate the vehicle, if he knows how to turn pilots on and off, yes. Mike Bonilla was not asked that. (Appellant s Brief, p. 9). Molina primarily relies upon that excerpt for the proposition that Jolly Chef was aware of a problem but did not inform Bonilla. However, the complete answer actually provided by Gray is as follows: Q. Now, when they did the walk through, did you show them about all the hidden pilot lights? A. He is asked if he knows how to operate the vehicle, if he knows how to turn pilots on and off, yes. Mike Bonilla was not asked that. He owns 12 other trucks. He knows how to turn pilots off and on. (Supp CR 79-80). Needless to say, there is a vast difference between the actual evidence and Molina s characterization of the same.

27 In addition, the summary judgment evidence presented by Molina negates Molina s assertion that there were no warnings or instructions regarding the pilot lights. Molina s summary judgment evidence also contained the following excerpt: Q. Why wouldn t you make sure that they knew where the pilot lights were? A. The the a person buying a catering truck knows he has to turn on certain items to cook food. Without turning on your grill, you re not going to cook a hamburger. Without turning on a deep fryer, there s no French fries. If if it s a person that s never been in the catering business before, yes, complete walk-through, you light this, you turn this off, that kind of stuff. Somebody that already owns 12 trucks, no. I d be insulting his intelligence. (Supp CR 81). Thus, the actual summary judgment evidence submitted by Molina establishes that Bonilla was aware of the existence of the pilot lights and how to operate the same. (Supp CR 80). Molina presented absolutely no evidence that Jolly Chef anticipated or had reason to believe that there was a risk of harm at the time that the truck was marketed. Molina s reliance upon the testimony of the Jolly Chef representative that pilot lights can be dangerous is insufficient to defeat summary judgment. The vague question and responsive testimony did not relate to the hazard at issue (an explosion caused by the use of gasoline as a cleaning agent) as opposed to a simpler scenario, for example, that a pilot light could cause a burn if the flame were touched. There was no evidence that Jolly Chef knew or had any reason to believe that individuals would use gasoline, a highly flammable substance, as a cleaning agent for grease in the catering trucks.

28 In sum, even though Jolly Chef was aware of the fact that there was a pilot light, the owner of the truck had the same knowledge and there is no one that anticipated that gas would be used as a cleaning agent on the floors. Thus, the Final Judgment entered by the trial court should be affirmed. 5. There was no evidence that the catering truck in question was rendered unreasonably dangerous because of the absence of any warning or instruction Molina was also required to present evidence that the absence of the warning and/or instructions must render the product unreasonably dangerous to the ultimate user or consumer of the product. Sims, 932 S.W.2d at 562; USX Corp., 818 S.W.2d at The perspective is that of an ordinary user of the product, not necessarily the same as that of an ordinary person unfamiliar with the product. Sauder Custom Fabrication, Inc., 967 S.W.2d at 351. In this case, the absence of warnings did not render the catering truck to be unreasonably dangerous. The catering truck and pilot light worked exactly as intended. The only potential danger was caused by the unforeseeable use of gasoline as a cleaning agent a protocol that was not and could not have foreseen by Jolly Chef. (Supp CR 78). Simply stated, there was absolutely no evidence that the catering truck in question was rendered unreasonably dangerous because of the absence of any warning or instruction or that any warning would have made a difference. Thus, the summary judgment entered by the trial court should be affirmed.

29 CONCLUSION AND PRAYER FOR RELIEF Accordingly, Appellee Jolly Chef Express, Inc. respectfully prays that this Court affirm the Final Judgment of the trial court in all respects. Respectfully submitted, By: D. Bradley Dickinson State Bar No DICKINSON BARTLETT, P.C Greenville Avenue, Suite 1550 Dallas, Texas (214) (Telephone) (214) (Facsimile) MICHEAL V. WINCHESTER State Bar No JACK CONNER State Bar No MICHEAL WINCHESTER & ASSOCIATES, P.C Granite Parkway, Suite 410 Plano, Texas (214) (Telephone) (214) (Facsimile) ATTORNEYS FOR APPELLEE

30 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument has been served upon the following counsel of record via overnight mail on October 21, 2010: Charles M. Noteboom J. Mark Sudderth Noteboom The Law Firm 669 Airport Freeway, Suite 100 Hurst, Texas Attorneys for Appellant D. Bradley Dickinson