Lujan v. Tampo Mfg. Co., Inc.

Citations: 825 S.W.2d 505; 1992 Tex. App. LEXIS 424; 1992 WL 27794Docket: 08-91-00214-CV

Court: Court of Appeals of Texas; February 18, 1992; Texas; State Appellate Court

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Eva Lujan, the Appellant, filed a personal injury lawsuit after being run over by a Tampo Pneumatic Roller SP 950 while working as a flag person on a construction site. She sued Tampo Manufacturing Company, the roller's manufacturer, and Rust Equipment Company and Rust Tractor Company, its lessors, claiming strict product liability, negligence, and breaches of express and implied warranties. Lujan contended that the roller lacked an audible alarm, making it defectively designed and unsafe. 

In response to their motion for summary judgment, the Appellees presented an affidavit from Fred Bean, an engineer, asserting the roller was safe, equipped with a horn, and compliant with federal regulations, as a backup alarm was not mandated due to the driver's unobstructed view. Lujan countered with her affidavit claiming an alarm was necessary under federal regulations and included another affidavit from Alfredo Lucero, indicating he was instructed to omit certain safety information in the injury report and that safety devices were ordered after Lujan's accident.

The trial court granted the Appellees’ motion for summary judgment, resulting in a take-nothing judgment against Lujan. On appeal, she raised four points of error. The appellate court, following the Texas Supreme Court's guidelines, determined whether the Appellees had established there was no genuine issue of material fact and that they were entitled to judgment as a matter of law. The court ultimately affirmed the trial court's decision.

In assessing whether a disputed fact exists that would prevent summary judgment, evidence favorable to the non-moving party must be accepted as true, with all reasonable inferences and doubts resolved in their favor. If the defendant, as the moving party, presents evidence negating at least one element of the plaintiff's case, summary judgment is warranted. Expert witness testimony can support a summary judgment if it is clear, credible, and uncontroverted, even if it is not contradicted directly. Conclusory statements from experts are insufficient; the opposing party must counter with other expert testimony if the moving party presents adequate evidence.

In the case presented, Lujan challenges the legal sufficiency of Fred Bean's affidavit, which asserts that Tampo and Rust were not negligent due to compliance with regulations. Lujan argues this conclusion is erroneous, but it was determined that she did not waive this argument by failing to raise it in her response to the motion for summary judgment. The court notes that Lujan is not required to respond to contest the legal sufficiency of the grounds for summary judgment. 

The examination of Bean's affidavit reveals he only states compliance with regulations, not negligence absolution. Lujan's first point of error is overruled. In her second point, Lujan contests the affidavit's sufficiency due to Bean's lack of personal knowledge or inspection of the roller. The court finds that this challenge, if treated as factual, was waived since Lujan did not address it in her response. Even if viewed as a legal challenge, it fails as Bean asserts he has personal knowledge regarding the SP 950 roller. Thus, the second point of error is also overruled.

Lujan challenges the summary judgment on two main points. First, she claims that affidavits from Alfredo Lucero and Eva Lujan create a genuine issue of material fact, arguing that Bean, an engineer, should not be considered an expert witness since he was never formally accepted as such by the court. However, Lujan waived this argument by not raising it in her response to the motion for summary judgment. The rules do not provide a specific method for accepting expert witnesses in summary judgment, yet Bean's qualifications as an expert in earth compacting machinery design were implied in his affidavit, which is sufficient under Texas law. Lujan attempts to counter Bean's assertions with Lucero's affidavit, but it fails to meet necessary legal standards as it lacks personal knowledge, does not establish Lucero’s competency to testify, and is merely lay testimony, thus insufficient to challenge Bean's expert testimony. Lujan's own affidavit similarly lacks the required basis of personal knowledge and does not effectively dispute Bean’s claims.

In her fourth point of error, Lujan asserts that the summary judgment was improperly granted because Tampo and Rust did not address all her claims, specifically those related to marketing defects and breaches of express and implied warranties regarding the roller's quality. According to Texas law, a summary judgment cannot be granted on claims not addressed in the proceedings. Lujan's petition alleges negligence in the design, manufacturing, and marketing of the Tampo Pneumatic Roller.

The defendant manufacturer and lessors were found negligent for marketing the Tampo Pneumatic Roller without an audible alarm, which a reasonable manufacturer would have installed. They also failed to inform users that federal regulations required such an alarm prior to operation. The plaintiff's claim of strict liability for defective design and manufacturing was dismissed based on an affidavit from Bean, asserting the roller was not defectively designed or manufactured. The plaintiff did not allege a marketing defect but focused on negligence related to the absence of an alarm and warnings. The definition of a marketing defect involves inadequate warnings or instructions, but the assertion that an alarm was federally mandated was countered by Bean's testimony. The plaintiff also claimed breach of express and implied warranties regarding the roller's quality and fitness for purpose. For implied warranty claims, proof of a defect is necessary; since Bean’s testimony negated any defect, this claim was also dismissed. An express warranty requires an affirmation made by the seller to the buyer, and the plaintiff could not establish privity with the buyer, thereby negating her claim for personal injuries under express warranty. The court upheld the summary judgment, affirming the trial court’s decision.

Fred Bean's affidavit supports Tampo's and Rust's motion for summary judgment. He confirms his competence to testify and asserts personal knowledge of the facts presented. As the Engineering Department Manager at Vibro Industries, Inc., and previously at Tampo Manufacturing Company, he has 16 years of experience as a mechanical designer and holds a B.S. in Mechanical Engineering. Bean asserts familiarity with the pneumatic roller (SP 950) involved in the case, stating it was not defectively designed or manufactured. He indicates the SP 950 complied with OSHA regulations, including having a required horn and not necessitating a backup alarm due to unobstructed rear visibility. He concludes that the SP 950 adheres to all relevant governmental statutes, rules, and regulations. The affidavit is signed by Fred Bean.