Opinion issued July 26, = 2007
=
In=20 The
For=20 The
RANGER =
CONVEYING=20
& SUPPLY COMPANY, Appellant DARYL =
DAVIS,=20
Appellee
On =
Appeal from the=20
61st District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2001-57214
OPINION =
ON=20
REHEARING We issued=20
an opinion in this case on May 3, 2007. Ranger appeals a judgment, =
entered in=20
accordance with the jury's verdict, in favor of Davis, in the =
amount of=20
$1.6 million for injuries Davis received when a 580-pound bale of =
paper=20
pulp fell from a clamp truck owned by Davis's employer, the =
Pasadena Paper=20
Company ("Pasadena Paper"). The falling bale hit Davis's arm and =
pinned=20
his hand to a spike on a conveyor that was manufactured by Ranger. =
After=20
Davis presented his case-in-chief, Ranger moved for an instructed =
verdict,=20
which the court denied. The jury found Ranger liable for a =
marketing=20
defect. Ranger moved for a new trial and for judgment =
notwithstanding the=20
verdict (JNOV), but the trial court denied the motions. In its third issue, Ranger =
contends that=20
the trial court erred by denying Ranger's motion for JNOV because =
"Ranger=20
did not owe or breach any duty to Davis" or owe a duty to Pasadena =
Paper=20
"to formulate facility policies." We conclude that Ranger had no =
duty to=20
warn about the interface area of Pasadena Paper's clamp truck and =
Ranger's=20
conveyor because (1) the jury determined that there was no design =
defect=20
in the conveyor itself, which was what Ranger was hired to design, =
produce, and install, and (2) the interface area was part of the =
larger=20
system that included the loading of bales with the use of the =
clamp truck,=20
and Ranger was not hired to and did not participate in the =
integration of=20
the conveyor into the larger system. We reverse and render a take =
nothing=20
judgment in favor of Ranger. Davis worked for Pasadena Paper =
for 12=20
years, and had worked in the hydropulper department for several =
months.=20
The purpose of the hydropulper department is to convert large =
bales of raw=20
material into pliant material that can be pressed into sheets of =
paper.=20
Before the installation of the conveyors manufactured by Ranger, =
Pasadena=20
Paper employees lifted bales one at a time into the hydropulper =
machine=20
after cutting the wires from the bales. To increase productivity by =
allowing more=20
bales to be processed by the hydropulper, Pasadena Paper =
contracted with=20
Ranger to design, manufacture, build, and install conveyors. The =
purchase=20
order called for "two [20-inch] spiked chain dewiring conveyors, =
with=20
support, drive, motor starter, safety stop cable on both side[s], =
each=20
designed to support 8 bales at 580 [pounds per] bale." In December =
1998,=20
Ranger installed the conveyor that was involved in this incident, =
a 20- to=20
25-foot-long conveyor that moved a bale from one end, after the =
bale was=20
placed onto the conveyor by a clamp truck, to the other end, where =
the=20
bale was deposited into the hydropulper. The design of the Ranger =
conveyor=20
included spikes to hold the bale up and away from the conveyor's =
surface=20
so that employees could more easily cut and remove the wire that=20
surrounded the bale before it entered the hydropulper. Each bale =
was=20
large, weighing approximately 580 pounds, and measuring 32 inches =
wide by=20
32 inches deep by 16 to 18 inches high. Each bale was bound by =
wire that=20
needed to be cut off before the bale entered the hydropulper. =
A clamp truck moved the bales =
of paper=20
pulp throughout the plant. The bales were usually in stacks of =
six,=20
because they arrived on trains stacked that way. When the clamp =
truck=20
moved the stack of six bales, it used vertical clamps to grasp the =
bottom=20
three bales to lift the entire stack of six bales, which left the =
top two=20
to three bales unrestrained by the clamp. Using the Ranger conveyor, four =
employees=20
worked together as a crew to move bales into the hydropulper. One =
employee=20
operated the clamp truck to lift a stack of six bales to transport =
them to=20
the end of the conveyor. The stack was then placed onto the end of =
the=20
conveyor. Once on the conveyor, the clamp truck operator moved the =
clamp=20
apparatus to hold the second through fourth bales, thus allowing =
the=20
bottom bale to be released and carried down the conveyor. This =
process was=20
repeated until the entire stack of bales was placed on the =
conveyor. As=20
the bales worked their way down the conveyor, one employee would =
cut the=20
wire binding, while another employee pulled off the wire. A fourth =
employee would operate controls to move the conveyor forward so =
that the=20
bales would be dropped into the hydropulper vat. On the night of November 2, =
1999, Davis's=20
job was to cut the binding wire as the bale moved from one end to =
the=20
other end of the conveyer. When the clamp truck brought a stack of =
six=20
bales to the end of the conveyor, it set one bale down, and moved =
the=20
clamps to clasp the second through fourth bales. The first bale =
had=20
already been moved up the conveyor to approach the position where =
its=20
wires would be removed. The second bale had not yet been placed =
onto the=20
conveyor. When the accident occurred, both the clamp truck and the =
conveyer were stopped. The top bales that were stacked on the =
clamp truck,=20
but were not held by the clamps, fell. Davis was standing at the =
designated=20
place for cutting wires, which was about one-and-one-half to two =
feet from=20
the conveyor. Davis tried to spin away to avoid the falling bales, =
but one=20
hit him, impaling his hand on one of the conveyor's spikes. Davis =
was=20
taken away by ambulance and began an arduous course of medical=20
treatment. After Davis's injury, changes =
were made=20
to prevent a similar accident. The operator of the clamp truck was =
immediately instructed to lift only three bales at a time while =
loading=20
bales onto the conveyor. About a week after Davis's injury, =
Pasadena Paper=20
had a cage installed between the clamp truck and the conveyor to =
block=20
bales from falling from the clamp truck onto the conveyor. The =
cage was=20
not attached to the conveyor, but instead was mounted to another=20
structure. The cage has successfully prevented further injuries =
from=20
falling bales. Ranger did not place warning =
labels on=20
the conveyor system telling workers to avoid the area at the =
interface of=20
the conveyor and clamp truck due to the falling hazard, nor did it =
provide=20
Pasadena Paper with instructions or warnings that employees should =
be kept=20
away from that area. Additionally, Ranger did not provide Pasadena =
Paper=20
with an operator's manual. Warren Pearson, Ranger's employee who =
sold the=20
conveyor to Pasadena Paper, acknowledged that he did not provide =
any=20
safety documents or safety sheets with the conveyor, even though =
he=20
occasionally provides those documents to people who are going to =
be using=20
conveyors sold by Ranger. Ranger was not asked to provide, and did =
not=20
provide, any information or training to the workers who were going =
to be=20
working on the conveyor system. At trial, the parties disputed =
whether=20
Ranger was asked to design a conveyor that was to be loaded with =
bales one=20
at a time, or in stacks of six by use of a vertical clamp truck. =
According=20
to Ranger, Pasadena Paper requested a conveyor that was to be =
loaded with=20
bales one at a time. Pearson testified that his understanding was =
that=20
Pasadena Paper would load bales one at a time with a clamp truck, =
and that=20
it was never the plan for six bales in a vertical stack to be =
loaded onto=20
the conveyor at once. After the conveyor was installed, Pearson =
examined=20
the conveyors in use at the plant. Pearson testified that he =
observed=20
bales lined up horizontally on the conveyor, but never saw bales=20
vertically stacked on the conveyor. Scott Collier, a Ranger =
employee, was the=20
draftsman that designed the conveyor. Collier testified that he =
did not=20
see the purchase order, but acknowledged that if he had seen the =
purchase=20
order for a 25-foot conveyor, it "would have brought to attention =
some=20
type of vertical orientation of the bales, which would have =
included some=20
other framework or something for safety versus just the conveyor =
itself"=20
and he would have designed a safety device to incorporate that =
vertical=20
association of bales. Collier denied knowledge that a clamp truck =
was=20
going to be loading the conveyor. Davis's expert, William =
Purcell, who=20
specializes in safety engineering, testified that the problem with =
the=20
conveyor was that there was a possibility that a bale could slip =
and fall=20
at the interface between the clamp truck and the conveyor. The =
"problem=20
with the way Ranger designed" the conveyor, according to Purcell,=20
was In contrast to Ranger's =
testimony, Davis=20
contended at trial that Ranger was informed that the bales would =
be loaded=20
onto the conveyor by the clamp truck in stacks of six. Tuan =
Nguyen,=20
Pasadena Paper's senior project engineer, ordered the conveyor =
from Ranger=20
after discussing his desires for the project with Pearson, =
Ranger's=20
salesman. Nguyen explained that his requirements for the conveyors =
that he=20
ordered were that he wanted the spiked conveyors to hold each bale =
up from=20
the conveyor's surface so that the wires that surrounded each bale =
could=20
more easily be removed by the workers. According to Nguyen, the =
plan was=20
for the clamp truck to bring a vertical stack of bales to the =
conveyor,=20
then the clamp truck would drop each bale on the conveyor until =
five or=20
six bales were lying across the conveyor. The workers would not =
move in=20
until the stack of five or six bales were laid across the =
conveyor. The=20
workers would then cut the wires from all the bales that were =
lying across=20
the conveyor, and then the bales would all be moved into the =
hydropulper=20
at once. Nguyen testified that he described to Pearson "the entire =
process" of transporting pulp bales, from removing them from the =
rail cars=20
to placing bales on the end of the conveyor. Nguyen said =
that Nguyen approved the drawings of =
the=20
conveyor design, inspected the conveyor after it was built, and =
accepted=20
it. Nguyen personally looked at the conveyor and felt it was safe, =
as did=20
Pasadena Paper's safety and quality division. Pasadena Paper acknowledged =
that it was=20
responsible for training employees to use the conveyor. Bayless, a =
supervisor at the plant, and Spinks each testified that workers at =
the=20
plant were trained on the operation of the conveyors by =
supervisors.=20
Spinks, however, said that employees were not warned about the =
danger of=20
falling bales near the conveyors. The Ranger conveyors were =
already being=20
used by the hydropulper department when Davis started working in =
that=20
department, and Davis said that he received "no training =
whatsoever" on=20
how to operate the conveyors. Ranger acknowledged that it was =
responsible for designing a safe conveyor, and it contends that it =
complied with that request by installing the emergency stop cord =
on the=20
conveyor. According to Frank Loeffler, an expert who testified for =
Ranger,=20
the conveyor produced by Ranger was "a standard conveyor" that had =
been=20
used for many years. Loeffler explained that Ranger does not have =
the=20
expertise to advise a paper company how to use a clamp truck or =
how to=20
deliver a product onto the conveyor belt. According to Loeffler, =
Ranger=20
did not agree to provide extraneous safety features that were not =
actually=20
part of the conveyor. He also specifically testified that there =
was no=20
agreement for Ranger to install a bale guard. At trial, the evidence showed =
that after=20
Ranger installed the conveyor, but before the incident involving =
Davis,=20
Pasadena Paper made additions and changes to the Ranger conveyor =
system.=20
Pasadena Paper added a Davis sued Ranger for =
negligence and=20
strict products liability, alleging both a design defect and a =
marketing=20
defect. The jury found in favor of Davis on the marketing defect =
issue and=20
for Ranger on the design defect and negligence issues. =
Duty to =
Warn of=20
Danger at the Interface Area In its third issue, Ranger =
contends that=20
the trial court erred by denying Ranger's motion for JNOV because =
"Ranger=20
did not owe or breach any duty to Davis under the facts of this =
case" or=20
"to [Pasadena Paper] to formulate facility policies." Ranger =
explains that=20
"[t]he alleged hazard arose from [Pasadena Paper's] operations and =
not=20
from a risk of harm inherent in the product." According to Ranger, =
the=20
hazard "arose from [Pasadena Paper's] practice of utilizing a =
clamp truck=20
to lift more bales than could be supported by the clamps of the =
truck" and=20
not from the "conveyor [that] operated the way it was intended to=20
operate." Ranger explains, There is and should be a =
distinction=20
between a conveyor and a company's system of transporting goods =
throughout=20
a facility. Unquestionably, Ranger would be involved in the safety =
of the=20
conveyor. However, [Pasadena Paper] determined and controlled the =
conveyor=20
system which included multiple stages. A.=20
Preservation of Error In his=20
motion for rehearing, Davis contends that Ranger did not preserve =
the=20
issue of what he characterizes as the "component-parts defense" =
for=20
appeal. Davis contends that (1) Ranger failed to plead the defense =
and (2)=20
under the Texas Supreme Court's recent decision in Equistar =
Chemicals,=20
L.P. v. Dresser-Rand Co., No. 04-0121, 2007 WL 1299161 (Tex. =
May 4,=20
2007), Ranger's general JNOV was insufficient to preserve the=20
component-parts issue. Davis=20
asserts that the component parts defense is an affirmative defense =
and as=20
such, must be pleaded or it is waived. Davis cites to no authority =
that=20
states that the component-parts defense is an affirmative defense. =
In=20
contrast, Texas cases discuss the liability of a component-parts=20
manufacturer in terms of duty. See Brocken v. Entergy Gulf =
States,=20
Inc., 197 S.W.3d 429, 437 (Tex. App.--Beaumont 2006, no pet.) =
("The=20
Brockens failed to show that Cooper, a component-part =
manufacturer, under=20
these facts and circumstances, had a duty to warn Entergy =
of the=20
dangers of using a recloser for the special purpose that the =
Brockens=20
assert Entergy used it.") (emphasis added); Toshiba Int'l =
Corp. v.=20
Henry, 152 S.W.3d 774, 783 (Tex. App.--Texarkana 2004, no =
pet.)=20
("Toshiba had no duty to the Henrys because it did not=20
participate in the integration of its component part into the =
scrap winder=20
system.") (emphasis added). Whether a=20
duty exists is a question of law for the courts. See Humble =
Sand &=20
Gravel, Inc. v. Gomez, 146 S.W.3d 170, 181 (Tex. 2004). In =
other=20
words, an assertion of lack of a legal duty is not an affirmative =
defense=20
because: The burden=20
is on a plaintiff to prove the existence and violation of a legal =
duty=20
owed by the defendant in order to establish tort liability. =
Coleman v.=20
Hudson Gas & Oil Corp., 455 S.W.2d 701, 702 (Tex. 1970). =
Lack of=20
duty is not an affirmative defense because duty is an essential =
element of=20
a plaintiff's case. Id. Toles v. Toles, 113 =
S.W.3d 899,=20
909 (Tex. App.--Dallas 2003, no pet.). Because the component parts =
issue=20
goes to the existence of a duty, it is not an affirmative defense =
that=20
must be pleaded. See id. Thus, Ranger's failure to plead =
that it=20
was a component parts manufacturer cannot be the basis to find =
that it=20
failed to preserve the issue as Davis contends. Davis further asserts that the =
recent=20
supreme court opinion in Equistar Chemicals shows that =
Ranger=20
failed to preserve the component parts issue for appeal. In =
Equistar=20
Chemicals, the defendant, Dresser-Rand, appealed a jury =
verdict in=20
favor of the plaintiff, Equistar. Equistar Chemicals, =
2007 WL=20
1299161, at *2. On appeal, Dresser-Rand contended that its =
no-evidence=20
objections to the damages question and its motion for JNOV were =
sufficient=20
to preserve error on the grounds that the economic loss rule =
precluded=20
Equistar's recovery. Id. The supreme court noted that=20
Dresser-Rand only objected to the jury charge regarding damages on =
no-evidence grounds. Id. at *1. Dresser-Rand did not =
object to=20
the damages question or instruction as submitted, and thus waived =
any=20
error. Id. at *3. The supreme court cited to Texas Rule =
of Civil=20
Procedure 274, which states, in pertinent part, "A party objecting =
to a=20
charge must point out distinctly the objectionable matter and the =
grounds=20
of the objection. Any complaint as to a question, definition, or=20
instruction, on account of any defect, omission, or fault in =
pleading, is=20
waived unless specifically included in the objections." Tex. R. =
Civ. P.=20
274; Equistar Chemicals, L.P., 2007 WL 1299161, at *3. =
Further,=20
the supreme court noted that even if the no-evidence points raised =
by=20
Dresser-Rand necessarily encompassed the contention that no tort =
duty was=20
owed under the facts of the case, the question as to how much =
damages, if=20
any, Equistar could recover was an issue that "existed in the suit =
independent of the tort issues and questions." Equistar=20
Chemicals, 2007 WL 1299161, at *4. However, All the evidence in this case =
has been=20
that this conveyor was a component part of a larger system. The =
Supreme=20
Court in--I can't think of the case name, but it's within the last =
six=20
months--has decided that the manufacturer of a non-defective =
component=20
part is not strictly responsible to the plaintiff for any injuries =
that he=20
suffered because of a defect in the system. Because the facts of this case =
are=20
distinguishable from those in Equistar Chemicals and =
because=20
Ranger expressly asserted the component parts doctrine to the =
trial court,=20
we conclude that Ranger has preserved this issue for our review.=20
See=20
Chavez Constr., Inc., 177 S.W.3d at 598 (holding that =
"general=20
no-evidence-of-negligence" ground asserted in motion for new trial =
preserved question of no duty for appellate review). B.=20
Products Liability and Component Parts In order to recover for an =
injury on the=20
theory of products liability, the plaintiff bears the burden of =
proving=20
that (1) the defendant placed a product into the stream of =
commerce; (2)=20
the product was in a defective or unreasonably dangerous =
condition; and=20
(3) there was a causal connection between that condition and the=20
plaintiff's injuries or damages. Houston Lighting & Power =
Co. v.=20
Reynolds, 765 S.W.2d 784, 785 (Tex. 1988); Armstrong =
Rubber Co.=20
v. Urquidez, 570 S.W.2d 374, 376 (Tex. 1978). However, "the =
law of=20
products liability does not guarantee that a product will be risk =
free,=20
since most products have some risk associated with their use."=20
Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 381 (Tex.=20
1995). A product may be unreasonably =
dangerous=20
due to a defect in its manufacture (manufacturing defect) or =
design=20
(design defect), or because of a failure to provide adequate =
warnings or=20
instructions (marketing defect). Am. Tobacco Co. v. =
Grinnell, 951=20
S.W.2d 420, 426 (Tex. 1997); Caterpillar, 911 S.W.2d at =
382;=20
Turner v. Gen. Motors Corp., 584 S.W.2d 844, 847 (Tex. =
1979).=20
Here, the jury found a marketing defect. A marketing defect is =
proven when=20
the evidence shows that a defendant fails to warn of a product's =
potential=20
dangers, when warnings are required, and that the lack of adequate =
warnings or instructions renders an otherwise adequate product=20
unreasonably dangerous. See Lucas v. Tex. Indus., Inc., =
696=20
S.W.2d 372, 377 (Tex. 1984); Benavides v. Cushman, Inc., =
189=20
S.W.3d 875, 881 (Tex. App.--Houston [1st Dist.] 2006, no pet.) =
(citing=20
Grinnell, 951 S.W.2d at 426). The elements of a marketing =
defect=20
cause of action are (1) a risk of harm must exist that is inherent =
in the=20
product or that may arise from the intended or reasonably =
anticipated use=20
of the product, (2) the supplier of the product knows or =
reasonably should=20
foresee the risk of harm at the time the product is marketed, (3) =
the=20
product has a marketing defect, (4) the lack of instructions or =
warnings=20
renders the product unreasonably dangerous to the ultimate user or =
consumer of the product, and (5) the failure to warn or instruct =
causes=20
the user's injury. Olympic Arms, Inc. v. Green, 176 =
S.W.3d 567,=20
578 (Tex. App.--Houston [1st Dist.] 2004, no pet.). A component part manufacturer =
who does=20
not participate in the integration of the component into the final =
system=20
or product is not liable for defects in the final system or =
product if the=20
component itself is not defective. Bostrom Seating, Inc. v. =
Crane=20
Carrier Co., 140 S.W.3d 681, 683 (Tex. 2004); Molina v. =
Kelco=20
Tool & Die, Inc., 904 S.W.2d 857, 861 (Tex. App.--Houston =
[1st=20
Dist.] 1995, writ denied) ("A component part manufacturer that =
supplies a=20
product in accordance with a purchaser's specifications is free =
from=20
strict liability if the component part itself is not =
defective."). Bostrom Seating =
and=20
Henry both cite to and rely on the Restatement (Third) of =
Torts.=20
Bostrom Seating, 140 S.W.3d at 683; Henry, 152 =
S.W.3d at=20
783. The Restatement provides: One engaged=20
in the business of selling or otherwise distributing product
(a) the=20
(b)(1) the=20
seller or distributor of the
(b)(2) the=20
integration of the
(b)(3) the=20
defect in the product causes the harm. Restatement (Third) of Torts: =
Products=20
Liability =A7 5. The comments and reporters' note to section 5 =
clarify the=20
extent of liability that is based on a failure to warn. A =
component seller=20
has a "duty to supply reasonable instructions and warnings to the=20
component buyer." Id. cmt. b. Additionally, "the duty is =
to warn=20
only immediate buyers and not to warn users of integrated final =
products."=20
Id. cmt. b Reporters' Note. Finally, the Restatement =
acknowledges=20
that components may "function on their own but still may be =
utilized in a=20
variety of ways by assemblers of other products" or may "include =
products=20
that can be put to different uses depending on how they are =
integrated=20
into other products." Id. cmts. a, d. In that case, a =
"safety=20
feature important for one adaptation may be wholly unnecessary or=20
inappropriate for a different adaptation." Id. cmt. =
d. C. =
Analysis As noted in our original =
opinion, Ranger=20
designed, produced, and installed the conveyor that was =
undisputedly a=20
component of the plant's larger bale-handling system that was =
composed of=20
the clamp trucks that loaded the bales onto the conveyor itself, =
at one=20
end, and the hydropulper that processed the de-wired bales, at the =
other=20
end. In his motion for rehearing, Davis contends that this Court =
erred by=20
characterizing the conveyor as "undisputedly a component =
of the=20
plant's larger bale-handling system." (Emphasis added). =
Specifically,=20
Davis contends that "Ranger's conveyors stood alone and that their =
only=20
purpose was to act as conveyors." In support of this contention, =
Davis=20
relies on the following testimony: =95 Purcell testified that =
The operation that goes on =
there at the=20
conveyor is de-wiring. The conveyor itself does nothing but =
receive=20
material and move the materials horizontally. That is all the =
conveyor=20
does. It does not de-wire. The people do the de-wiring. It's =
just--it=20
receives material and moves it horizontally into where--until it =
drops=20
into the Hydropulper. =95=20
Pearson testified that the conveyors were intended to be "just =
part of a=20
process that they were instituting to get bales into the =
hydropulper."=20
However, he also referred to the conveyors as the new "system" =
installed=20
at the plant. =95 Loeffler characterized the =
"system" at=20
Pasadena Paper's plant as beginning with unloading bales from rail =
cars=20
and ending with completed paper. He specifically stated that the =
conveyor=20
is "just a component piece of an overall system." However, he also =
testified that "[t]he new system was two brand new conveyors."=20
Davis also identifies Purcell's =
testimony=20
that an interface is "where two pieces of equipment come together" =
and=20
that the clamp truck and the conveyor had to interface as further =
support=20
that the conveyor is not a component. Davis further attempts to =
distinguish the=20
cases cited in our original opinion to show that the conveyor was =
not a=20
component part. In Bostrom Seating, the component was a =
driver's=20
seat that was integrated into a garbage truck. 140 S.W.3d at 683. =
In=20
Molina, a die was incorporated into a press. 904 S.W.2d =
at 859.=20
In Toshiba International Corp., the defendant =
manufactured an=20
inverter--a device that converted and regulated power flow--that =
was=20
incorporated into the control panel of a larger machine. 152 =
S.W.3d at=20
777. In Buonanno v. Colmar Belting Co., Inc., a wing =
pulley was=20
integrated into a conveyor. 733 A.2d 712, 714 (R.I. 1999). Davis =
is=20
correct in pointing out that in each of these cases, the component =
was a=20
part of a larger final machine or product, and not, like the =
conveyor, a=20
product in and of itself. Davis, however, fails to distinguish =
other cases=20
cited in the original opinion with facts analogous to this case, =
in which=20
the injury results from the interface of the product with other=20
equipment. In our original opinion in this =
case, we=20
cited to Cipollone v. Yale Indus. Prods., Inc., 202 F.3d =
376, 379=20
(1st Cir. 2000) (applying Massachusetts law), which was cited =
favorably by=20
the supreme court in Bostrom Seating. See Bostrom=20
Seating, 140 S.W.3d at 683. In Cipollone, the =
component was=20
a "customized dock lift" that was integrated into a =
"material-handling=20
system." Cippollone, 202 F.3d at 378 (emphasis =
added).=20
The court applied the Restatement (Third) of Torts, section 5, to =
the dock=20
lift--a complete product in itself. Id. at379. In =
addition, in=20
Brocken, a recloser (a circuit breaker) was installed as =
a part=20
of a utilities' electrical distribution system. 197 S.W.3d at=20
432.=20
Further, in Davis v. =
Komatsu=20
American Industries Corp., also cited favorably by the =
supreme court=20
in Bostrom Seating, the defendant manufactured a press =
that was=20
incorporated into an assembly line made up of various stages, =
including=20
multiple individual presses and a conveyor. 42 S.W.3d 34, 36-37 =
(Tenn.=20
2001). The Tennessee Supreme Court adopted and applied section 5 =
of the=20
Restatement (Third) of Torts, although the press was a completed =
product=20
and part of an assembly line. Id. at 35. Thus, contrary =
to=20
Davis's assertions, courts have applied the component parts =
doctrine to=20
components, complete in and of themselves, that function as part =
of a=20
larger "system." See also Zaza v. Marquess and Nell, =
Inc., 675=20
A.2d 620, 626-27 (N.J. 1996) (citing draft of Restatement (Third) =
of Torts=20
and applying component parts doctrine to tank that was "component =
part for=20
an integrated manufacturing system" for decaffeinating coffee=20
beans). As a component part =
manufacturer, Ranger=20
has no duty to warn of dangers unless (1) the component itself is=20
defective or (2) it actively participated in the integration of =
the=20
component into the final system. See Bostrom Seating, 140 =
S.W.3d=20
at 683-84; Molina, 904 S.W.2d at 861; Restatement (Third) =
of=20
Torts: Products Liability =A7 5. The jury answered "No" in =
response to the=20
design defect question in the charge. Thus, the jury did not find =
that a=20
design defect in the conveyor was the cause of Davis's injury, =
despite the=20
failure to attach a guard at the interface area to prevent the =
vertical=20
stack of bales from falling on the conveyor. Davis has not =
challenged the=20
jury's verdict that there was no design defect in the Ranger =
conveyor that=20
was the cause of his injuries. As a component part manufacturer, =
Ranger=20
had no duty to warn of dangers of a non-defective component. =
See=20
Bostrom Seating, 140 S.W.3d at 683 (holding that, because no =
evidence=20
showed that seat was defective and seat manufacturer did not =
participate=20
in integration of seat into truck design, seat manufacturer was =
not liable=20
for defect in truck); Because the component itself =
was not=20
defective, Ranger only had a duty to warn if it actively =
participated in=20
the integration of the component into the final system. See =
Bostrom=20
Seating, 140 S.W.3d at 683; Molina, 904 S.W.2d at =
861. No=20
evidence shows that Ranger actively participated in the =
integration of the=20
conveyor into the larger conveyor system. The evidence is =
undisputed that=20
Ranger was not hired to and did not participate in the design, =
production,=20
or installation of the larger system of transporting bales at the =
plant,=20
which included the use of the clamp truck and the ultimate deposit =
of the=20
bales into the hydropulper. The evidence is undisputed that Ranger =
was=20
hired only to design, produce, and install the conveyor itself.=20
Davis contends that Ranger is =
liable for=20
failure to warn of the dangers at the interface area because =
Ranger "knew=20
or should have known of the danger posed by bales stacked at the =
end of=20
the spiked conveyor." The interface area, however, was not part of =
the=20
conveyor itself, but was part of the larger system that included =
the=20
loading of bales with the clamp truck. Davis described the =
interface area=20
in his brief as follows: The=20
risk was in the interface between the clamp truck with its stack =
of bales=20
and the spiked conveyor. More specifically, the danger was that a =
worker's=20
hand could be punctured in one side and out the other by a spike =
in the=20
conveyor if a bale were to fall during loading. =
According to Davis, the =
interface area is=20
the area where the clamp truck meets the conveyor, but that area =
was=20
undisputedly part of the larger bale-handling system that included =
the=20
clamp truck. As Ranger points out, Ranger had no duty to warn of =
the=20
interface area because that was a hazard that arose from Pasadena =
Paper's=20
practice of utilizing a clamp truck to lift more bales than could =
be=20
supported by the clamps of the truck and not from the "conveyor =
[that]=20
operated the way it was intended to operate." See Crossfield =
v.=20
Quality Control Equip. Co., 1 F.3d 701, 703-04 (8th Cir. =
1993)=20
(holding no liability for failure to warn because no evidence =
showed that=20
component "malfunctioned or failed to perform as =
intended"). Cases from other jurisdictions =
have=20
applied section 5 of the Restatement (Third) of Torts in analogous =
situations. See Cipollone, 202 F.3d at 379 (applying=20
Massachusetts law); Buonanno, 733 A.2d at 716. In=20
Cipollone, Cipollone filed suit against Yale, alleging =
that there=20
was a defect or unreasonably dangerous condition in a loading dock =
lift=20
that Yale manufactured. Cipollone, 202 F.3d at 378. Yale=20
manufactured the lift as specified by Cipollone's employer, FedEx, =
and the=20
lift was made a part of a larger package-handling system that =
FedEx=20
designed with an outside consultant. Id. After Cipollone =
was=20
injured, he alleged that the narrow spacing between the lift and =
an=20
adjacent catwalk created an unreasonably dangerous condition. =
Id.=20
The trial court granted summary judgment for Yale. Id. =
The court,=20
citing section 5 of the Restatement (Third) of Torts, noted that a =
dock=20
lift that was integrated into a larger package-handling system was =
a=20
product that "function[s] on [its] own but still may be utilized =
in a=20
variety of ways by assemblers of other products." Id. at =
379=20
(quoting Restatement (Third) of Torts: Products Liability =A7 5 =
cmt. a). The=20
court affirmed the summary judgment in favor of Yale because there =
was no=20
evidence that the lift was defective and it was "merely a =
component of=20
FedEx's larger package-handling system." Id. In Buonanno, Buonanno =
was=20
injured when his arm was caught in a "nip point" Here, Ranger manufactured a =
conveyor.=20
Like the lift in Cipollone, it is a product that can be =
put to=20
different uses depending on how it is integrated into other =
products.=20
See Cipollone, 202 F.3d at 379; Restatement (Third) of =
Torts:=20
Products Liability =A7 5 cmt. d. Because a product like the =
conveyor can be=20
used in a variety of ways, a "safety feature important for one =
adaptation=20
may be wholly unnecessary or inappropriate for a different =
adaptation."=20
Restatement (Third) of Torts: Products Liability =A7 5 cmt. d. For =
example,=20
a warning about falling bales would not be necessary if the =
conveyor was=20
used as part of a system that transported bales without stacking =
them.=20
Further, like the nip point and wing pulley in Buonanno, =
the=20
dangerous condition alleged by Davis--the "interface"--did not =
exist until=20
the Ranger conveyor was integrated into Pasadena Paper's =
bale-handling=20
system. See Buonanno, 733 A.2d at 717; see also=20
Restatement (Third) of Torts: Products Liability =A7 2 (defect =
must exist=20
"at the time of sale or distribution"); Bostrom Seating, =
140=20
S.W.3d at 683 (holding that "if the component-part manufacturer =
does not=20
participate in the integration of the component into the finished =
product,=20
it is not liable for defects in the final product if the component =
itself=20
is not defective") (citing Restatement (Third) of Torts: Products=20
Liability =A7 5); We sustain=20
Ranger's third issue. We reverse and render judgment =
that Davis=20
take nothing from Ranger. Elsa Alcala Justice Panel consists of Chief Justice =
Radack=20
and Justices Alcala and Bland.=20
Ranger=20
presents six additional issues in this appeal that we do not =
reach. In its=20
first issue, Ranger contends that the trial court erred by =
rendering=20
judgment in favor of Davis and by denying Ranger's motion for JNOV =
because=20
there was no evidence to support the jury's finding that there was =
a=20
marketing defect of the Ranger conveyor at the time it left the =
possession=20
of Ranger that was a producing cause of the injury or occurrence. =
In its=20
second issue, Ranger contends that the trial court erred by =
rendering=20
judgment in favor of Davis and by denying Ranger's motion for JNOV =
because=20
"as a matter of law, the alleged danger was open and obvious." In =
its=20
fourth, fifth, and sixth issues, Ranger contends that the trial =
court=20
erred by denying its motion for leave to file an amended answer to =
include=20
the issue of comparative negligence and refusing to instruct the =
jury=20
regarding comparative negligence and "sole cause." In its seventh =
issue,=20
Ranger asserts that "the trial court erred in denying Ranger's =
Motion for=20
New Trial because there was factually insufficient evidence to =
support the=20
jury's findings of a market defect and causation."=20
3. USX Corp. was a marketing defect =
case=20
involving an oil rig elevator. USX Corp. v. Salinas, 818 =
S.W.2d=20
473, 477 (Tex. App.--San Antonio 1991, writ denied). 4. Bostrom Seating was a design =
defect case.=20
Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d =
681, 682=20
(Tex. 2004). 5. In =
addition,=20
the conveyor itself had sharp spikes emanating from it that were =
open and=20
obvious, and, thus, Ranger had no duty to warn about those spikes. =
See=20
Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 =
(Tex. 1995)=20
(holding that there is no duty to warn of obvious risk associated =
with=20
front-end loader that had open cab without safety cage); =
Joseph E.=20
Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 388 =
(Tex. 1991)=20
(holding that there is no duty to warn of dangers of excessive or=20
prolonged use of alcohol since these dangers are already so widely =
recognized); Hagans v. Oliver Mach. Co., 576 F.2d 97, 102 =
&=20
n.5 (5th Cir. 1978) (after noting "obvious" dangers of table saw, =
stating=20
that "a warning of the dangers involved in using the saw would not =
have=20
informed [the plaintiff] of anything he did not already know").=20
6. "A 'nip point' is created where the =
conveyor belt=20
moves over the stationary portion of the conveyor-belt system, or =
the=20
'wing pulley.' The wing pulley prevents waste materials from =
getting=20
caught between the roller and the belt." Buonanno v. Colmar =
Belting=20
Co., Inc., 733 A.2d 712, 713 n.1 (R.I. 1999).=20
7. Ultimately, the court found that summary =
judgment=20
was improper because a fact issue existed on other theories of =
liability=20
presented to the trial court. Id. at=20
717.