Wellborn v. Sears, Roebuck & Co.

Citations: 970 F.2d 1420; 1992 U.S. App. LEXIS 19378; 1992 WL 201984Docket: 91-4387

Court: Court of Appeals for the Fifth Circuit; August 21, 1992; Federal Appellate Court

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In the case before the United States Court of Appeals for the Fifth Circuit, Marilyn Wellborn, both individually and as the administratrix of her deceased son Bobby Wellborn's estate, filed a products liability lawsuit against Sears, Roebuck & Co. and the Chamberlain Group, Inc. after Bobby was killed due to a malfunction of a Chamberlain automatic garage door opener. The garage door opener, purchased by Wellborn in late 1986 and installed by her friend Jerome Smith in 1987, had been subjected to improper testing, as Wellborn and Smith used a two-by-four instead of the one-inch obstacle specified in the manual. Following installation, Wellborn failed to conduct the annual maintenance test.

On the night of November 2, 1988, while Wellborn was working, she found that her son was unresponsive when she called home. Smith discovered Bobby pinned beneath the garage door with his skateboard nearby. Although the garage door operated correctly when tested by investigating officers, it failed to reverse when tested with a hand placed eight inches from the ground. An expert later concluded that the failure to reverse was due to improper installation, including maximum force adjustments and an incorrectly sized door arm.

During the trial, evidence was presented regarding Bobby's awareness of the dangers associated with the garage door and his past behavior of racing under closing doors. Testimony suggested that Bobby likely lost consciousness after hitting his head on the concrete before the garage door struck him, leading to his eventual death. The court affirmed part of the trial's findings and certified a legal question to the Texas Supreme Court regarding the survivability of a decedent's cause of action under the Texas Deceptive Trade Practices-Consumer Protection Act in accordance with the Texas Survival Statute.

The jury found that Wellborn and Bobby were not contributorily negligent, leading to a verdict in favor of Wellborn, which the district court accepted. Sears and Chamberlain subsequently filed motions for judgment notwithstanding the verdict, a new trial, remittitur, and to amend the judgment. The district court denied the motions for judgment n.o.v., a new trial, and to alter the judgment, but granted remittitur, removing additional DTPA damages against Chamberlain due to Wellborn's failure to provide proper statutory notice.

The appeal raises several issues: the sufficiency of evidence supporting the jury's finding of no contributory negligence, correct application of the statute of limitations, Bobby's status as a consumer under the DTPA, survivability of a DTPA cause of action, potential excessiveness of jury awards, and the requirement for actual notice under the DTPA.

Sears and Chamberlain challenge the jury's finding of no contributory negligence, asserting that Bobby's and Wellborn's actions caused the accident. However, since the defendants did not move for a directed verdict on this issue, the court cannot review the evidence's sufficiency. Established case law dictates that such sufficiency is not appealable unless a directed verdict motion was made in the trial court. The court's review is limited to whether any evidence supports the jury's verdict, focusing on the potential for plain error that could lead to a miscarriage of justice.

Evidence supporting the jury’s findings includes Wellborn and Smith's adherence to the owner's manual, proper installation of the garage door, testing of safety mechanisms, and Wellborn's warning to Bobby about keeping items clear from the garage door.

Bobby and Wellborn's actions were consistent with their lack of knowledge about the risks associated with the garage door opener, which was designed to reverse if obstructed. The owners' manual did not imply that the opener would behave differently when encountering a child versus a solid object. Consequently, evidence supports the jury's finding that neither was contributorily negligent. 

The defendants argued that Wellborn's DTPA claim was barred by the statute of limitations, asserting she failed to plead the discovery rule after they invoked the limitations defense. However, Wellborn contended she adequately pleaded the discovery rule. Under Texas law, while the statute of limitations applies, federal law dictates pleading standards, which require only sufficient facts to inform the defense of the complaint's basis. Wellborn met this standard, as she purchased the opener in late 1986, installed it in mid-1987, and was unaware of any potential dangers until Bobby's death on November 2, 1988. She filed her lawsuit about thirteen months later, which the court found was timely because neither she nor Bobby should have discovered the malfunction until his accident.

The defendants further contended that Bobby did not qualify as a 'consumer' under the DTPA since he did not acquire the garage door opener. They claimed he was merely an incidental user. The DTPA defines a consumer as someone who seeks or acquires goods or services, and Texas courts have broadly interpreted this definition to ensure consumer protection against deceptive practices. Thus, a direct contractual relationship with the defendant is not necessary; rather, consumer status is determined by the individual's relationship to the transaction. Therefore, even if Bobby did not purchase the opener himself, he could still be considered a consumer if the product was acquired for his benefit.

Bobby, although not in a contractual relationship with the defendants, was deemed a consumer under the Texas Deceptive Trade Practices Act (DTPA) due to his acquisition and use of a garage door opener purchased by Wellborn for her residence, which he lived in and utilized regularly. Wellborn intended the opener to enhance Bobby's security during nights he was home alone. The text examines whether a DTPA cause of action survives the consumer's death, noting a split among Texas courts of appeals on this issue. While one court ruled against survivability, two others determined that it does survive, with the Texas Supreme Court yet to provide a definitive ruling, prompting certification of the question to the Supreme Court.

The jury awarded Wellborn $1,002,836 as administratrix of Bobby's estate and $1,275,000 for her own losses, which the defendants challenged as excessive. They sought remittitur or a new trial, asserting that the jury's decisions should only be overturned under extreme circumstances. In particular, the defendants disputed the $1,000,000 award for Bobby's pain and suffering, arguing he was unconscious after a skateboard accident before being struck by the garage door. Conversely, Wellborn claimed evidence indicated Bobby was conscious prior to his death, which would justify recovery for pain and suffering. The conflicting evidence on Bobby’s consciousness after the incident is central to the appeal.

Wellborn's expert testified that Bobby was conscious for about three to five minutes after a fall, while the coroner indicated he was alive for approximately thirty minutes. The defendants' pathologist agreed that if Bobby was conscious under the garage door, death could have taken several hours. The jury's $1,000,000 award for Bobby's conscious pain and suffering is upheld. The defendants challenged the jury's awards for Wellborn's pecuniary loss, loss of companionship, and mental anguish, arguing they were influenced by passion or prejudice. Texas law permits recovery for such damages in wrongful death cases, allowing the jury to consider familial relationships.

Evidence showed Wellborn had been Bobby's sole caretaker since their divorce in 1979, and they shared a close bond, engaging in various activities together. Wellborn's description of Bobby and her presentation of his letters illustrated their relationship. Following his death, Wellborn experienced significant emotional distress, missed work, required medication, and attended therapy. More than two years later, she continued to struggle with the loss, maintaining Bobby's room and visiting his grave regularly. The jury's $1,225,000 award for her mental anguish and loss of companionship, as well as the $50,000 for her pecuniary loss, is supported by evidence of Bobby’s contributions at home and the expected future contributions.

Additionally, Wellborn's cross-appeal regarding further damages against Chamberlain was denied because she failed to provide the necessary pre-suit notice as required by the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA). Her notice letter addressed to Sears did not mention Chamberlain or specific complaints against it. Therefore, the court affirmed the district court's judgment in full, while certifying a question to the Texas Supreme Court regarding the survival of a decedent's cause of action under the DTPA.