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Larry Tidwell and Nancy Tidwell v. Terex Corporation, Terex Cranes, Inc., and Koehring Cranes, Inc.
Citation: Not availableDocket: 01-10-01119-CV
Court: Court of Appeals of Texas; August 30, 2012; Texas; State Appellate Court
Original Court Document: View Document
On August 30, 2012, the Court of Appeals for the First District of Texas issued an opinion regarding the case of Larry and Nancy Tidwell against Terex Corporation and its subsidiaries after Larry Tidwell was injured in a crane accident. During a seven-day trial, the jury found Terex not liable for the accident, concluding that there were no design or marketing defects and that Tidwell was 70% responsible. The Tidwells appealed, arguing that the evidence was insufficient to support these findings and that the trial court made several errors, including not including their proposed jury instruction, admitting expert testimony from Terex, and excluding evidence of subsequent remedial measures and a similar incident. At the time of the accident, Tidwell, a crane operator for TNT Crane and Rigging, was using a Terex RT230 crane. He inspected the crane based on a checklist that did not include checking the Axle Oscillating Lockout System (AOLS), which was later found to be disabled. While Tidwell was clearing debris from the crane, it tipped over, causing him to fall approximately fifteen feet and sustain significant injuries. The RT230 crane can operate on tires alone but also has outriggers for stability. The Operator Manual warned against performing lifts solely on tires without proper precautions to prevent tipping. Testimony varied on whether the swing brake was engaged during the incident, and it was agreed that the AOLS had been disconnected for about thirty days prior to the accident. The appellate court affirmed the trial court's judgment. TNT provided Tidwell with a checklist, while Terex supplied a ten-chapter Operator Manual for the crane, which emphasized the necessity of understanding all manuals before use. The manual included a 'Suggested Rough Terrain Crane Inspection Check List' and a 'Machine Maintenance Check List,' detailing periodic inspections but not explicitly instructing users to check the Axle Lockout System (AOLS). However, it mandated daily AOLS checks when operating on rubber, outlining specific procedures for testing the system's functionality. During the trial, the Tidwells contended that the instructions were inadequate. Expert Kenneth Laughery criticized the placement of AOLS check instructions, arguing they should have been more prominently featured, which he claimed constituted a marketing defect contributing to the accident. He acknowledged that Tidwell did not use the Rough Terrain Checklist on the incident day but noted that crane operators typically create their own checklists based on manufacturer manuals. Following the accident, Terex updated the Operator Manual to include AOLS checks in the checklists. Terex argued that Tidwell was responsible for the accident due to his failure to check the AOLS, set the swing brake, or deploy outriggers. Testimony indicated that other crane operators would have known to check the AOLS in similar circumstances. Additionally, evidence suggested Tidwell operated the crane roughly and exited the cab without setting the outriggers, which may have contributed to the accident. Testimony from crane operator James Headley Jr. indicated that the accident could have been prevented if Tidwell had left the outriggers deployed while cleaning the cab, noting that operating solely on tires without outriggers was atypical. Expert Donald Jordan also testified about the accident's potential causes, asserting that setting the swing brake would have prevented the incident, but found no stability issues when testing an identical crane with the AOLS in place, even without the swing brake. Jordan stated that a daily AOLS check was not standard practice at the time of the accident. Initially, the Tidwells filed claims of negligence and strict liability for design and marketing defects. However, they did not pursue the negligence claim during the jury charge conference. The jury concluded that there was neither a design nor marketing defect contributing to the accident and identified Tidwell as a proximate cause. The jury incorrectly addressed proportional responsibility and damages, attributing seventy percent responsibility to Larry Tidwell while awarding zero damages. The trial court disregarded these findings and issued a take nothing judgment, leading to the Tidwells’ appeal. In evaluating the sufficiency of evidence, the standard of review requires that a party claiming legal insufficiency demonstrate that the evidence conclusively supports the desired finding. For factual sufficiency, the party must show that the adverse finding is against the great weight of the evidence. The Tidwells argued that evidence was insufficient to support the jury's finding of no defect in the crane when it was possessed by the defendant, asserting that it was undisputed the AOLS was nonfunctional at the time of the accident and that the accident would not have occurred had it been operational. To establish a design defect, the Tidwells needed to demonstrate three key points: (1) the existence of a safer alternative design, (2) that this design would have significantly reduced the risk of injury without substantially impairing the product's utility, and (3) that the alternative was technologically and economically feasible at the time the product left the manufacturer. They bore the burden of proof, needing to show that the safety benefits of their proposed design outweighed its costs, including any potential reduction in usefulness or safety. If no evidence of a safer design is presented, the product is deemed not unreasonably dangerous as a matter of law. In the jury instructions, a design defect was defined as a condition of the product that rendered it unreasonally designed, considering its utility and associated risks. The jury was asked whether there was a design defect in the crane that was a producing cause of the accident, with the charge emphasizing the need for a safer alternative design that was economically and technologically reasonable based on existing knowledge. During the trial, expert witness Jack Madeley identified six design defects in the crane that contributed to the accident: (1) poor placement of the AOLS, (2) a design allowing the AOLS to be entirely disabled, (3) lack of a warning light for the AOLS status, (4) absence of an indicator for crane swing angle, (5) no redundancy system for AOLS failure, and (6) absence of a fail-safe system for safe crane positioning. However, Madeley did not provide testimony on the economic feasibility of all alternative designs, except for the warning light. The Tidwells did not provide sufficient evidence regarding the economic feasibility of alternative designs for five out of six alleged design defects, failing to prove all essential facts for their claim. While Madeley presented evidence for one defect—the absence of a warning light—there was conflicting testimony. Madeley claimed it would cost $800 per crane to install such a light, and noted its use by other crane manufacturers. In contrast, Terex’s expert, Bradley Closson, argued that no rough terrain crane manufacturers include a warning light and stated that such a light would not enhance safety, potentially misleading operators about the AOLS's functionality. Evidence favored Terex, supporting the jury's conclusion that no design defect caused the incident. Regarding the Tidwells' challenge of factual sufficiency, the jury's finding was not against the overwhelming weight of the evidence, as they were entitled to disbelieve the Tidwells' expert testimony. The Tidwells' fourth issue regarding marketing defects was also deemed insufficient. They contended that the seven-step check in the Operator Manual did not serve as an adequate warning, being neither prominent nor clear about risks such as crane tip-over. They argued for a presumption that Tidwell would have followed a proper warning had it been provided, but the jury's negative response to this claim was upheld as legally and factually sufficient. To establish a marketing defect claim, a plaintiff must demonstrate: (1) inherent risk of harm in the product from its intended use, (2) the supplier’s knowledge or reasonable foresight of the risk at the time of marketing, (3) the existence of a marketing defect, (4) that the lack of warnings or instructions renders the product unreasonably dangerous, and (5) that the failure to warn caused the injury. A marketing defect is characterized by inadequate warnings of known dangers or insufficient instructions to avoid such dangers. Adequate warnings must be attention-catching and comprehensible to the average user, effectively indicating the nature and extent of the danger. The legal framework allows for multiple producing causes of an incident, defined as substantial factors in bringing about the occurrence. If a manufacturer fails to provide adequate warnings, there is a rebuttable presumption that the user would have read and followed them. This presumption can be countered by evidence showing that the user was unable to heed warnings due to factors like blindness or intoxication, thus requiring a jury to resolve the issue. If a warning is provided but not read by the plaintiff, no presumption exists that a better warning would have been heeded. If following the existing warning would have prevented the injury, the warning’s inadequacy is not the cause of the injury, precluding a failure-to-warn claim due to lack of causation-in-fact. The Tidwells argue that the instructions for daily checks of the AOLS in the Operator Manual are inadequate warnings, lacking specific mention of the risk of tip-over, being incomprehensible to the average user, and not prominently displayed. They claim a presumption that Tidwell would have heeded a warning had one been provided, which is only applicable when no warning was given, as established in *Magro*. The Operator Manual does instruct users to perform a daily check, detailing a seven-step process, but Tidwell did not read this section. The Texas Supreme Court in *Saenz* held that if a warning that could have prevented injury is ignored, no presumption exists that a different warning would have been heeded. However, if a warning is inadequately prominent, a plaintiff may still claim the presumption that reasonable notice would have been observed. Tidwell references *Saenz* to argue the instructions should have been more prominent, but the court found that adequate placement of warnings, such as a sticker at eye level and clear manual instructions, provided reasonable notice. The court emphasized that while warnings could always be made more prominent, it is impractical to place every important warning in the most visible location. The critical issue is whether the actual placement of the instructions in the manual was sufficient for users to recognize the need for daily checks. At trial, the Tidwells contended the instructions were insufficient as they failed to specify the dangers of non-compliance, including the risk of tip-over, and there was conflicting evidence regarding whether the instructions were meant for operators like Tidwell or solely for maintenance personnel. Tidwell relied on safety expert Laughery's testimony, which asserted that the Operator Manual should have prioritized instructions for checking the AOLS in its first three chapters, aimed at operators rather than maintenance workers. However, the Operator Manual does not differentiate between sections for operators and maintenance personnel; it instructs all users to read and understand the entire manual before operating the crane. This comprehensive approach is designed to benefit both experienced and inexperienced operators by including critical details typically absent from similar manuals. The manual explicitly states that both operators and maintenance personnel should familiarize themselves with all provided materials, including the load rating chart and maintenance instructions. The evidence shows that Tidwell received the manual but only read the first three chapters, neglecting the Service and Adjustments Section that addresses daily checks of the AOLS when operating on rubber. While the manual does not specify the hazards of failing to check the AOLS, it indicates that such checks are necessary for safe operation. Tidwell did not contest the appropriateness of the instructions in the Service and Adjustments Section but only claimed a failure to warn about specific hazards. Importantly, if Tidwell had followed the general instruction to check the AOLS daily, he would have identified its inoperability, potentially averting the accident. Legal precedents, including Saenz and Gillespie, suggest that if a warning is provided and followed, it can prevent an accident, and there is no assumption that a more detailed warning would have been heeded. The Tidwells could not claim a presumption regarding the adequacy of warnings or instructions due to their failure to read the relevant sections of the manual. Consequently, the jury was entitled to disregard Laughery's testimony regarding the necessity of reading only specific portions of the manual and determine that any inadequacy in warnings was not a contributing factor to the accident. The evidence supports the conclusion that Tidwell's failure to read the AOLS instructions eliminated the possibility that Terex's lack of an alternative warning caused the accident. The evidence supports the jury's finding that no marketing defect caused the accident, and this finding is not contrary to the weight of the evidence. The Tidwells' argument regarding the sufficiency of the evidence for the jury’s findings on contributory negligence is overruled, as the jury's negative findings on liability rendered the contributory negligence findings immaterial. The jury's failure to identify a design or marketing defect means that any findings on Tidwell's contributory negligence could not affect the verdict. The Tidwells also claimed that the trial court erred by not instructing the jury that they should not consider Tidwell’s failure to detect or guard against product defects. The court's instruction must assist the jury, accurately state the law, and be supported by evidence. The appellate review of jury instructions generally applies an abuse of discretion standard, but legal correctness is reviewed de novo. An error in jury instructions is not grounds for reversal unless it likely led to an improper verdict, particularly if it pertains to a contested issue. In this case, any charge error was deemed harmless given the jury's other responses. The Tidwells argued that the trial court's refusal to instruct the jury to disregard any act or omission by Tidwell that was merely a failure to discover or guard against a product defect misrepresented the law in Questions 3 and 4. Even if there was an error in this refusal, it was deemed harmless because the jury's negative findings on liability questions (design and marketing defects) meant the responses to Questions 3 and 4 did not affect the verdict. The court referenced legal precedents indicating that such errors are harmless when the jury's findings render the questioned instructions immaterial. The Tidwells also challenged the admission of expert testimony from Bradley Closson, arguing he was not a licensed Texas engineer, which they claimed violated Texas Occupations Code section 1001.003. The review standard for admitting such testimony is based on whether the trial court abused its discretion, defined as acting without adhering to guiding principles. The Texas Engineering Practice Act states that only licensed individuals may practice engineering, which includes providing expert testimony. However, an exception allows non-licensed individuals to give testimony in judicial or administrative contexts, provided they comply with disciplinary regulations for negligence or misconduct. Rule 702 allows expert testimony on scientific, technical, or specialized subjects to aid fact finders in understanding evidence or determining factual issues, without requiring the expert to hold a specific license. Courts have consistently held that licensure is not necessary to qualify as an expert under this rule, as supported by case law such as Harnett v. State and Southland Lloyd’s Ins. Co. v. Tomberlain. The Texas Supreme Court reiterated that no specific license is required for expert qualification. The Tidwells argued that since the Texas Occupations Code defines engineering practice to include providing expert opinions and Closson lacks a Texas engineering license, his testimony should be inadmissible. However, precedent from Northborough Ctr. Inc. affirmed that non-licensed individuals could testify as experts, referencing a previous statutory exception allowing testimony for judicial purposes. The court emphasized that experience can suffice for expert qualification under Rule 702, citing Gregory v. State. The trial court's decision to admit Closson's testimony, based on his relevant experience with cranes and the applicable testimonial exception, was upheld as a proper exercise of discretion. The Tidwells' challenge to this ruling was overruled. The Tidwells contend that the trial court improperly excluded three pieces of evidence: the Rough Terrain Checklist and Maintenance Checklist, revised by Terex after Tidwell’s accident, and a report and testimony regarding a similar crane tipping incident. They argue that the checklists are relevant, with the Rough Terrain Checklist serving as evidence of a subsequent remedial measure and the Maintenance Checklist for impeachment purposes. The standard of review for a trial court's evidentiary decisions is an abuse of discretion. A trial court acts with abuse of discretion when it disregards applicable guiding rules. Its rulings must be upheld if there is any legitimate basis for them, and reversible errors occur only if they likely altered the judgment or hindered the appellant’s case. The Tidwells argue that the revised checklists should have been admitted under Texas Rule of Evidence 407(a), which allows for the admissibility of subsequent remedial measures for purposes other than proving negligence or culpable conduct. They assert that since this is a strict liability case, the rule does not preclude the admissibility of the checklists. However, Terex contends that the Tidwells’ negligence claim makes the checklists inadmissible. The trial court ruled against the Tidwells, stating that the revised checklist was not admissible under the rules and that it was feasible to implement the changes reflected in the documents. During the trial, Terex interrupted the Tidwells' questioning of their expert, Jordan, due to concerns about him referencing a subsequent remedial measure in exhibit 1B. The Tidwells' attorney clarified he would not discuss the axle lockout change or the checklist addition. Terex had updated its Rough Terrain Checklist post-accident, which included a requirement for a daily check of the AOLS, even when the crane was not operational on rubber. Terex's attorney objected, arguing that post-accident changes were irrelevant and prejudicial, asserting that any testimony regarding the checklist revision was inadmissible as a subsequent remedial measure. The trial court concluded it did not abuse its discretion in excluding exhibit 1B and related testimony. According to Texas Rule of Evidence 105, if evidence is excluded for one purpose but could be admissible for another, the proponent must explicitly offer it for the limited purpose to preserve the right to appeal. The Tidwells failed to request the admission of the evidence with a limiting instruction for the products liability claims, thus waiving their complaint. The Tidwells contended that the remedial measure should have been admissible to demonstrate control, but they did not present this argument during the trial, resulting in a failure to preserve it for appeal. Furthermore, the Tidwells argued that exhibit 1F, Terex's revised Maintenance Checklist, was admissible to impeach Terex's witness, Closson. During cross-examination, Tidwells’ counsel inquired whether the Operator Manual included a mention of checking the AOLS, to which Closson confirmed its inclusion in the checklist. Tidwells' counsel attempted to impeach witness Closson by introducing a revised Maintenance Checklist (exhibit 1F) that included instructions to check AOLS, arguing it contradicted Closson's assertion that checking hydraulic components was sufficient notification. The trial court denied this request, determining that exhibit 1F could not be used for impeachment since it was not a statement made by Closson, as supported by Texas Rule of Evidence 613(a) and the precedent set in Keetch v. Kroger Co. Furthermore, the Tidwells sought to introduce exhibit 61, related to a similar crane tip-over incident from 2003, arguing it was relevant. However, their counsel failed to adequately preserve the error by not providing reasons for admissibility, making an offer of proof, or addressing the trial court's objections. Consequently, the court ruled the evidence inadmissible, and the Tidwells waived their right to review this exclusion. The trial court's judgment was affirmed.