Opinion issued December 20,=20
2007
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; &nbs=
p; =
; =
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
;
In The =
Court of =
Appeals
For=20
The
First District of =
Texas
NO. 01-06-00823-CV
__________
LARRY=20
GENE MOTT AND CHERYL ANN MOTT, Appellants
V.
RED=E2=80=99S SAFE=20
AND LOCK SERVICES, INC. D/B/A RED=E2=80=99S HARDWARE AND SECURITY, =
AND RED=E2=80=99S TRUE=20
VALUE HARDWARE, Appellees
On Appeal from the 151st=20
District Court
Harris County,=20
Texas
Trial Court Cause No.=20
2004-52093
OPINION
<=
/SPAN>In this appeal, =
Larry=20
Gene and Cheryl Ann Mott present two =
issues=20
challenging the trial court=E2=80=99s grant of two no-evidence =
motions for=20
judgment against them for claims against Red=E2=80=99s Safe and Lock =
Services, Inc.,=20
d/b/a Red=E2=80=99s Hardware and Security, and Red=E2=80=99s True =
Value Hardware=20
(collectively =E2=80=9CRed=E2=80=99s=E2=80=9D) involving an =
allegedly=20
defective product. The Motts argue that their response to =
the first=20
motion for summary judgment raised more than a scintilla of =
evidence on=20
the challenged elements of their negligence claim. They also =
assert that=20
the second no-evidence motion for summary judgment was deficient =
as a=20
matter of law, and, alternatively,=20
allege that their response raised more than a scintilla of =
evidence on the=20
elements challenged by the second motion. We reverse the trial =
court=E2=80=99s=20
grant of Red=E2=80=99s no-evidence motions for summary judgment =
and remand the=20
case for further proceedings.
Background
<=
/SPAN>On=20
September 21, 2002, Cheryl rented=20
an Easy Rooter from Red=E2=80=99s, for her husband, Larry, =
to use in=20
unclogging the sewer line running to their house. Cheryl claims =
that the=20
only instructions or warnings given to her by Red=E2=80=99s was =
that the Easy=20
Rooter was operated by a foot pedal and had an on/off toggle =
switch.=20
Cheryl brought the Easy Rooter home, and she and Larry unloaded it =
and=20
placed it in their backyard. Larry testified that he plugged the =
Easy=20
Rooter into a grounded=20
outlet in his garage using a three-prong extension cord. He =
stepped=20
on the foot pedal to see if the machine would run, and it did. He =
then=20
removed his foot from the foot pedal, knelt down, either on dry =
grass or=20
on a piece of plywood, and grabbed the head of the drill bit of =
the Easy=20
Rooter with his right hand. Larry alleges that, as soon as he =
grabbed the=20
drill bit, he received a severe electrical shock. After the shock, =
he fell=20
to the ground and called to Cheryl for help. An emergency room =
X-ray=20
showed that a bone in Larry=E2=80=99s shoulder had been shattered, =
and he=20
underwent shoulder surgery a few days later.
<=
/SPAN>On=20
September 21, 2004, Larry and Cheryl filed a petition against =
Red=E2=80=99s for=20
negligently renting a defective product that was unsafe and caused =
their=20
injuries. ![3DFootnote](3D"")
The Motts also sued the =
manufacturer of the=20
Easy Rooter, General Wire Spring Company, but later nonsuited =
them. Red=E2=80=99s=20
filed a no-evidence motion for summary judgment, arguing that =
there was no=20
evidence that the Easy Rooter was defective, and, therefore, no =
evidence=20
that Red=E2=80=99s breached a duty to the Motts. Red=E2=80=99s =
also asserted that there=20
was no evidence that the Motts were injured by any actions or =
omissions of=20
Red=E2=80=99s. The Motts filed a response to Red=E2=80=99s =
no-evidence motion for=20
summary judgment and amended their original petition, alleging =
additional=20
claims against Red=E2=80=99s under products liability, breach of =
the implied=20
warranties of merchantability and fitness for a particular =
purpose, and=20
the Texas Deceptive Trade Practices Act (=E2=80=9CDTPA=E2=80=9D). =
The trial court granted Red=E2=80=99s motion =
for summary=20
judgment on the Motts=E2=80=99 negligence claim. Red=E2=80=99s =
then filed a second=20
no-evidence motion for summary judgment, challenging the =
Motts=E2=80=99 additional=20
claims. The Motts filed a response and also supplemented their =
amended=20
petition by pleading res ipsa loquitur in connection with =
their=20
negligence and strict products-liability claims. The trial court =
granted Red=E2=80=99s second =
no-evidence=20
motion, which was dispositive of the Motts=E2=80=99 remaining =
claims. The Motts=20
now appeal. No-Evidence Summary=20
Judgment
<=
/SPAN>In=20
their first issue, the =
Motts argue=20
that the trial court =
erred in=20
granting Red=E2=80=99s first no-evidence motion for summary =
judgment.=20
Specifically, the Motts contend that their response clearly =
raised=20
more than a scintilla of evidence on the challenged elements of =
their=20
negligence claim. In =
their second=20
issue, the Motts assert that the trial court erred in granting =
Red=E2=80=99s=20
second no-evidence motion for summary judgment. They allege =
that=20
this motion was deficient as a matter of law, because it failed to =
challenge specifically any element of their claims. Alternatively, =
the=20
Motts argue that the summary judgment evidence that they produced=20
affirmatively raised more than a scintilla of evidence on the elements of =
their=20
products-liability, breach of implied warranty, and DTPA =
claims=20
that Red=E2=80=99s attempted to challenge.
Standard of=20
Review
<=
/SPAN>To prevail on =
a no-evidence =
summary judgment =
motion, a=20
movant must allege that there is no evidence of an essential =
element of=20
the adverse party=E2=80=99s cause of action. Tex. R. Civ. P. 166a(i); =
Fort Worth=20
Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 =
(Tex.=20
2004). We review a no-evidence summary judgment =
under the=20
same legal sufficiency standard used to review a directed verdict. =
Boaz v. =
Boaz, 221 S.W.3d 126, =
130 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 2006, no pet.). Although the =
non-movant=20
need not marshal its proof, it must present evidence that raises a =
genuine=20
issue of material fact on each of the challenged elements. Tex. R. Civ. P. =
166a(i);=20
Ford Motor=20
Co. v. Ridgway, 135 S.W.3d 598, =
600 (Tex.=20
2004). A no-evidence summary judgment =
motion may=20
not properly be granted if the non-movant brings forth more than a =
scintilla of evidence to raise a genuine issue of material fact on =
the=20
challenged elements. Ridgway, 135 S.W.3d at =
600. More=20
than a scintilla of evidence exists when the evidence =E2=80=9Crises to a level =
that would=20
enable reasonable and fair-minded people to differ in their=20
conclusions.=E2=80=9D=20
Merrell Dow=20
Pharms., Inc. v. Havner, 953 S .W.2d 706, =
711 (Tex.=20
1997).
First No-Evidence Motion for Summary=20
Judgment
=
In=20
their first issue, the Motts argue=20
that the trial court erred in granting Red=E2=80=99s first =
no-evidence motion for=20
summary judgment. Red=E2=80=99s first motion challenged the =
Motts=E2=80=99=20
negligence claim, asserting that there was (1) no evidence that =
Red=E2=80=99s=20
breached a duty to the Motts=20
because there was no evidence that the Easy Rooter was defective =
and (2)=20
no evidence that the Motts were damaged by the actions or =
omissions of=20
Red=E2=80=99s. Because Red=E2=80=99s no-evidence motion =
properly challenged=20
elements of the Mott=E2=80=99s negligence claim, the Motts bore =
the burden of=20
producing more than a scintilla of evidence as to the challenged =
elements=20
of their negligence claim. See =
Ridgway, 135 S.W.3d at=20
600.=20
<=
/SPAN>Breach=20
=
We=20
begin by reviewing the Motts=E2=80=99 summary judgment evidence =
concerning the=20
breach prong of their negligence claim. In his affidavit and =
deposition,=20
Larry =
testified=20
that he plugged the Easy Rooter into an extension cord, which he =
inserted=20
into a grounded outlet in his garage. He stated that he tested the =
machine, turned it off, and then received an electrical shock when =
he=20
grabbed the drill bit head. Additionally, the Motts presented the=20
affidavit of their electrical expert, Robert E. Thornborrow, who =
testified=20
that he tested the extension cord used by Larry and found it fully =
operable without any flaws. Thornborrow stated that he examined =
the=20
electrical outlet into which the extension cord was plugged and =
found it=20
to be grounded. He also found that the hot wire and neutral wire =
were=20
reversed in the outlet, but noted that such a reversal would not =
affect=20
the powering of the Easy Rooter or explain Larry=E2=80=99s shock. =
The Motts also=20
attached a part of the deposition testimony of General Wire Chief=20
Executive Officer, Arthur Silverman, who testified =
that he did=20
not expect people to be shocked when using an Easy=20
Rooter.=20
The Motts contend that, because this evidence shows that Larry was =
shocked, even though he properly attempted to use the Easy Rooter, =
the=20
machine was defective.
=
Circumstantial =
evidence can=20
be used to establish an issue of material fact as to a product =
defect.=20
See id. =
at =
601. To raise a =
genuine issue of=20
material fact, however, the evidence must transcend mere =
suspicion. Id.=20
Evidence that is so slight as to make any inference a guess is =
in=20
legal effect no evidence. Id. =
While Larry admitted during =
his=20
deposition that his allegation that the machine was defective was =
based=20
solely on the fact that he was shocked, =
=E2=80=9C[e]vidence of proper use=20
of the goods together =
with a malfunction =
may be=20
sufficient evidence of a defect.=E2=80=9D =
See Plas-Tex, Inc. =
v.=20
U.S. =
Steel=20
Corp., 772 S.W.2d =
442,=20
444=E2=80=9345 (Tex. 1989); see also =
Parsons=20
v. Ford Motor Co., 85 S.W.3d 323, 329=E2=80=9330 (Tex. =
App.=E2=80=94Austin 2002, pet.=20
denied).=20
=
The Motts =
produced=20
more than a scintilla of evidence that a malfunction=20
occurred=20
after Larry properly set up the Easy Rooter. Because such =
evidence may=20
be circumstantial evidence of a product defect, we hold that the =
Motts=20
raised a=20
genuine issue of material fact as to whether =
Red=E2=80=99s breached a=20
duty to the Mott=E2=80=99s by renting them a defective Easy Rooter. =
=
Damages
=
We next address =
whether the=20
trial court erred in granting summary judgment on Red=E2=80=99s =
assertion that=20
there is=20
no evidence that the Motts were damaged by the actions or =
omissions of=20
Red=E2=80=99s.=20
This =
is a=20
challenge to the causation element of the Motts=E2=80=99 =
negligence=20
claim.=20
The =
components=20
of proximate cause are cause in fact and =
foreseeability. Thomas v. CNC =
Investments,=20
L.L.P., 234=20
S.W.3d 111, 124 (Tex. App.=E2=80=94Houston [1st Dist.] 2007, no =
pet.). These elements =
cannot be=20
established by mere conjecture, guess, or speculation. =
Id. The test for =
cause in fact=20
is whether the negligent =E2=80=9Cact or omission was a =
substantial factor in bringing about =
injury,=E2=80=9D=20
without which the harm would not have occurred. =
Id. =
(quoting =
Prudential Ins. =
Co. v.=20
Jefferson Assocs., Ltd., 896 S.W.2d 156, =
161 (Tex.=20
1995)). Here, =
Red=E2=80=99s no-evidence=20
motion challenged only the cause in fact component of proximate=20
cause.=20
Therefore, the Motts had the burden of raising a genuine issue of =
material=20
fact on whether a negligent act or =
omission of =
Red=E2=80=99s was a substantial =
factor in=20
bringing about their =
injuries, without which the =
harm=20
would not have occurred.In his sworn =
affidavit,=20
Larry testified that, after being shocked by the Easy Rooter, his =
=E2=80=9Cleft=20
shoulder was severely injured which resulted in surgery . . . =
within the=20
next several weeks.=E2=80=9D Likewise, in his deposition, Larry =
gave a detailed=20
account of how he was shocked and the subsequent medical treatment =
that he=20
received, which included shoulder surgery a few days after the =
incident.=20
We have already =
held that=20
the =
Motts=20
raised a genuine issue of material fact as to the breach element =
of their=20
negligence claim, specifically, as to the issue of the =
defectiveness of=20
the Easy Rooter. Because the Motts=E2=80=99 summary judgment =
evidence also raises=20
a fact question as to whether=20
Larry was injured by a shock he received from the Easy Rooter,=20
the Motts produced =
more than=20
a scintilla of evidence as to whether Red=E2=80=99s rental of a =
defective Easy=20
Rooter was a substantial factor in causing Larry=E2=80=99s shock, =
without which,=20
the harm would not have occurred. Therefore, because the Motts =
raised a=20
genuine issue of material fact as to the challenged elements of =
their=20
negligence claim, we hold that the trial court erred in granting =
Red=E2=80=99s=20
partial summary=20
judgment.
=
Red=E2=80=99s=20
first issue is sustained.
Second No-Evidence =
Motion for Summary Judgment=20
=
In=20
their second issue, the Motts assert that the trial court erred in granting =
Red=E2=80=99s second=20
no-evidence motion for summary judgment. In its second=20
motion,=20
Red=E2=80=99s asserted that the trial court should grant summary =
judgment as to=20
the Motts=E2=80=99 remaining claims because
no evidence =
whatsoever has=20
been offered to show that [the Easy Rooter] was unfit for the =
purposes for=20
which it was intended so as to create liability on behalf of =
[Red=E2=80=99s] under=20
their later pled theories of products liability, breach of implied =
warranty, and/or [DTPA]. Furthermore, there is no evidence that =
the=20
plaintiffs were damaged by any alleged actions and/or omission of =
[Red=E2=80=99s].=20
=
In=20
their response to the motion, the Motts argued that the motion did =
not=20
specifically set forth the elements of =
the claims=20
for which Red=E2=80=99s was asserting there is no evidence. See =
Tex. R. Civ. P.=20
166a(i). =
Alternatively, the Motts, after =
stating=20
what they best perceived Red=E2=80=99s challenge to be, produced summary =
judgment=20
evidence in response to the =
presumably challenged elements of their claims. =
=
Sufficient=20
Challenge
=
We begin by =
addressing the=20
Motts=E2=80=99 contention that Red=E2=80=99s second no-evidence =
motion=20
was insufficient for failing to challenge specifically any elements of =
their=20
claims. Red=E2=80=99s=20
argues that, because the Motts=E2=80=99 response addressed the no-evidence =
challenges=20
Red=E2=80=99s was making, they clearly understood what =
elements of=20
their claims were being challenged. We interpret this argument to =
mean=20
that, because the Motts had fair notice of what elements =
Red=E2=80=99s was=20
challenging in its motion, the motion was sufficient.
=
Rule 166a(i) =
states that=20
=E2=80=9C[t]he motion must state the elements as to which =
there is no=20
evidence.=E2=80=9D=20
Tex. R. Civ. P.=20
166a(i) (emphasis =
added).=20
Moreover, a=20
comment to Rule 166a(i), which =E2=80=9Cis =
intended to inform =
the=20
construction and application of the rule,=E2=80=9D =
states: =
=E2=80=9CThe motion =
must be=20
specific in challenging the evidentiary support for an element of =
a claim=20
or defense; paragraph (i) does not authorize conclusory motions or =
general=20
no-evidence challenges to an opponent=E2=80=99s case.=E2=80=9D Tex. R. Civ. P. 166a, =
1997 cmt. (emphasis =
added). A no-evidence =
challenge=20
that only generally challenges the sufficiency of the =
non-movant=E2=80=99s case=20
and fails to state specific elements is fundamentally defective =
and=20
insufficient to support summary judgment as a matter of =
law. See =
Weaver v. =
Highlands Ins.=20
Co., 4 S.W.3d 826, 829 =
n.2 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 1999, no pet.); see also =
Roventini v.=20
Ocular Sciences, Inc., 111 S.W.3d 719, 722 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 2003, no pet.) (noting that the =E2=80=9Cmotion must =
specify which=20
essential elements of the opponent=E2=80=99s claim or =
defense lack=20
supporting evidence=E2=80=9D). Because =
Rule 166a(i) uses =
the=20
unconditional term =E2=80=9Cmust=E2=80=9D in expressly directing =
no-evidence summary=20
judgment movants to state the=20
elements as to which there is no evidence, we decline to =
extend a=20
=E2=80=9Cfair notice=E2=80=9D exception to the elements =
requirement of a no-evidence=20
motion for summary judgment. See Callaghan Ranch, =
Ltd. v.=20
Killam, 53 S.W.3d 1, 4 =
(Tex.=20
App.=E2=80=94San Antonio 2000, pet. denied).
=
We begin by =
reviewing the=20
sufficiency of =
Red=E2=80=99s challenge=20
that there is no evidence that the Easy Rooter =E2=80=9Cwas =
unfit for the=20
purposes for which it was intended so as to create liability . . . =
under .=20
. . products liability, breach of implied warranty, and/or=20
[DTPA].=E2=80=9D One of=20
the elements of a =
products-liability claim=20
that a plaintiff must prove is that the product was in a defective =
or=20
unreasonably dangerous condition. Houston Lighting =
& Power=20
Co. v. Reynolds, 765 S.W.2d 784, =
785 (Tex.=20
1988). However, whether a product is =
unfit for=20
its intended purpose is not an element of products liability and =
is a=20
significantly different question than whether a product =
is=20
unreasonably=20
dangerous.=20
See Plas-Tex, 772 S.W.2d at 444 (warning that =
=E2=80=9C[p]ractitioners=E2=80=94as well as the=20
courts=E2=80=94should exercise care to see that these terms are =
used=20
precisely=E2=80=9D). A product can be =
unreasonably dangerous =
while at=20
the same time fit for its intended purposes. See=20
Everett v. =
TK-Taito,=20
L.L.C., 178=20
S.W.3d 844, 854 (Tex. App.=E2=80=94Fort Worth 2005, no pet.). =
Therefore, we hold=20
that Red=E2=80=99s motion was insufficient to challenge the =
=E2=80=9Cdefective or=20
unreasonably dangerous condition=E2=80=9D =
element of the =
Motts=E2=80=99=20
products-liability claim.
=
We=20
next determine whether Red=E2=80=99s challenge that =E2=80=9Cthere =
was no evidence that=20
the Easy Rooter was unfit for the purposes for which it was=20
intended=E2=80=9D sufficiently =
challenged an=20
element of the Motts=E2=80=99 claims for breach of the implied =
warranties of=20
merchantability and fitness for a particular purpose. An essential =
element=20
of the implied warranty claims is showing that a breach of the =
warranty=20
occurred. Tex. Bus. & Com. Code Ann.=20
=C2=A7=20
2.314 =
cmt. 13=20
(Vernon 1994) (=E2=80=9CIn an action based on breach of warranty, =
it is of course=20
necessary to show . . . that the warranty was broken.=E2=80=9D). A plaintiff can =
show that an=20
implied warranty of merchantability was broken by showing the =
goods were=20
not =E2=80=9Cfit for the ordinary purposes for which such goods =
are used.=E2=80=9D=20
Id. =C2=A7 2.314(b)(3). Likewise, a =
plaintiff shows=20
that the implied warranty of fitness for a particular purpose was =
breached=20
by showing the goods were unfit for the particular purpose for =
which they=20
were intended. See id. =
=C2=A7 2.315. We hold that Red=E2=80=99s =
motion was sufficient=20
to challenge the breach element of the Motts=E2=80=99 implied =
warranty=20
claims. Furthermore, =
because the=20
Motts=E2=80=99 DTPA claim is based upon the breach of these =
implied warranties,=20
Red=E2=80=99s also=20
sufficiently challenged the breach element of their DTPA claim. =
Cf.=20
Ketter v. ESC Medical Systems, Inc., 169 S.W.3d 791, 796 (Tex. =
App.=E2=80=94Dallas =
2005, no pet.) (noting=20
that, because the =E2=80=9Cproduct=E2=80=99s merchantability is a =
necessary part of the .=20
. . warranty [claim] under both the UCC and the =
DTPA,=E2=80=9D =E2=80=9Cthere is =
no relevant=20
distinction between [the] UCC =
and DTPA=20
breach-of-warranty claims=E2=80=9D). =
=
We=20
next review the sufficiency of Red=E2=80=99s challenge that there =
is no=20
evidence that=20
the Motts =E2=80=9Cwere damaged by any alleged actions and/or =
omissions of =
[Red=E2=80=99s].=E2=80=9D=20
Under a =
products-liability=20
or DTPA claim, a plaintiff must prove that the defendant=E2=80=99s =
failure was a=20
producing cause of the plaintiff=E2=80=99s injuries. See =
Amstadt=20
v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996); General Motors =
Corp. v.=20
Saenz, 873 S.W.2d 353,=20
357 (Tex. 1993). Under a breach of implied =
warranty=20
claim, =E2=80=9Cit is . . . necessary to show . . . that the =
breach of the=20
warranty was the proximate cause of the loss sustained.=E2=80=9D =
Tex. Bus. & Com. Code=20
Ann. =C2=A7 =
2.314 cmt. 13.=20
However,=20
both proximate cause and producing cause require a plaintiff to =
prove that=20
the defendant was the cause in fact of the plaintiff=E2=80=99s =
injuries. See Saenz, 873 S.W.2d at=20
357. =
Once again, =
the test for cause =
in fact is=20
whether the negligent =E2=80=9Cact or omission was a substantial =
factor in=20
bringing about injury,=E2=80=9D without which the harm would not =
have occurred.=20
Thomas, 234 S.W.3d at=20
124. =
Therefore,=20
we hold that, by asserting that there is no evidence that the =
Motts=E2=80=99=20
injuries stem from Red=E2=80=99s acts or omissions, Red=E2=80=99s =
sufficiently challenged=20
the causation element of the Motts=E2=80=99 products-liability, =
breach of implied=20
warranty, and DTPA=20
claims.
&nbs=
p;Sufficient=20
Evidence
=
Having held that =
Red=E2=80=99s=20
second no-evidence motion =
for=20
summary judgment sufficiently challenged the breach element of the =
Motts=E2=80=99=20
breach of implied warranty and DTPA claims and the causation =
element of=20
the Motts=E2=80=99 products-liability, breach of implied warranty, =
and DTPA=20
claims, we now must =
determine=20
whether the Motts produced more than a scintilla of evidence as to =
the=20
challenged elements.
=
We=20
begin by determining =
whether the=20
Motts raised a genuine issue of material fact as to Red=E2=80=99s =
challenge to the=20
breach element of their implied warranty claims. =
The Motts =
specifically=20
addressed the challenge made to their claim for breach of the =
implied=20
warranty of fitness for a particular purpose, stating that the =
relevant=20
issue is whether =E2=80=9Cthe Easy Rooter was fit for its intended =
purpose=20
of cleaning out Mr. Mott=E2=80=99s sewer line and not whether it =
was defective.=E2=80=9D=20
They asserted that the Easy Rooter was clearly not fit for its =
intended=20
purpose of cleaning their sewer line, because Larry received an =
electrical=20
shock when he attempted to use it. In their response, =
the Motts=20
included evidence that Larry was shocked as he attempted to use =
the Easy=20
Rooter. Because this evidence raises a genuine issue of material =
fact on=20
whether the machine was fit for its intended purpose, we hold that =
the=20
trial court erred in granting summary judgment as to the =
Motts=E2=80=99 breach of=20
implied warranty of =
fitness for a=20
particular purpose claim.
&nbs=
p;As=20
for their claim for breach of the implied warranty of =
merchantability, the=20
Motts=E2=80=99 did not specifically address this warranty, but =
instead claimed=20
that the Easy Rooter in question was defective. In support, they =
direct us=20
to the same evidence that they used in their response to =
Red=E2=80=99s first=20
no-evidence motion for summary judgment to show that the Easy =
Rooter was=20
defective. For goods to breach the implied warranty of=20
merchantability, they must be =
defective,=20
that is, they must be =E2=80=9Cunfit for the =
ordinary=20
purposes for which they are used because of a lack of something =
necessary=20
for adequacy.=E2=80=9D=20
General=20
Motors Corp. v. Brewer, 966 S.W.2d 56, 57 (Tex. 1998) (quoting =
Plas-Tex, 772 S.W.2d at 443=E2=80=9344). The Motts=E2=80=99 =
produced some evidence=20
showing that Larry was shocked when he attempted to use the Easy =
Rooter.=20
Shocking its operator renders a machine defective and lacking =
=E2=80=9Csomething=20
necessary for adequacy.=E2=80=9D See id. Thus, we hold that =
the trial=20
court erred in granting summary judgment as to the Motts=E2=80=99 =
breach of=20
implied warranty of merchantability claim. Because the trial court =
erred=20
in granting summary judgment as to both of the Motts=E2=80=99 =
implied warranty=20
claims, it also erred in granting summary judgment as to their =
DTPA claims=20
based on the breach of the implied warranties.
=
We=20
next decide whether the Motts raised a genuine issue of material =
fact as=20
to the cause in fact portion of the causation element of their claims. In responding to =
this=20
challenge, the Motts directed the trial court to the same evidence =
that=20
they presented in their response to =
Red=E2=80=99s first=20
no-evidence motion. We =
held that=20
this evidence was sufficient to raise a fact issue as to =
the=20
causation element of the Motts=E2=80=99 negligence claim and, =
likewise, hold that=20
it is sufficient to =
raise a genuine issue =
of material=20
fact as to whether Red=E2=80=99s rental of=20
a defective Easy Rooter was a substantial factor in causing =
Larry=E2=80=99s shock,=20
without which, the harm would not have occurred, under the =
Motts=E2=80=99=20
products-liability, breach of implied warranty of fitness for a =
particular=20
purpose, and DTPA claims. See =
Thomas, 234 S.W.3d at=20
124.
&nbs=
p;Accordingly, we hold that =
Red=E2=80=99s second=20
no-evidence motion for summary judgment was insufficient to =
challenge the=20
breach element of the Motts=E2=80=99 products-liability claim and =
that the trial=20
court erred in granting Red=E2=80=99s second no-evidence motion, =
because the Motts=20
raised a question of fact concerning the causation element of =
their=20
products liability claim, as well as the breach and causation =
elements of=20
their breach of implied warranties and DTPA =
claims. =
=
The=20
Motts=E2=80=99 second issue is sustained.
Conclusion
&nbs=
p;We=20
reverse the trial court=E2=80=99s order granting Red=E2=80=99s =
first and second=20
no-evidence motions for summary judgment. We remand this =
case for=20
further proceedings consistent with our=20
opinion.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
;
George C. Hanks,=20
Jr.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of =
Justices=20
Taft, Hanks, and Higley. |