A products liability action is defined as any action against a manufacturer or seller for recovery of damages arising out of personal injury, death or property damage allegedly caused by a defective product whether the action is based in strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty, or any other theory or combination of theories. Tex. Civ. Prac. & Rem. Code Ann. § 82.001(2).
Defective Product Defined. The Texas Products Liability Act does not contain a definition of "defective product." See Tex. Civ. Prac. & Rem. Code Ann. § 82.001. The Supreme Court of Texas has held that the term refers to "a product unreasonably dangerous because of a defect in marketing, design, or manufacturing." Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 88 (Tex.2001)(citing Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex. 1995)).
Manufacturer and Seller Defined. Under the Act, manufacturer and seller are defined as follows: "Seller" means a person who is engaged in the business of distributing or otherwise placing, for any commercial purpose, in the stream of commerce for use or consumption a product or any component part thereof. "Manufacturer" means a person who is a designer, formulator, constructor, rebuilder, fabricator, producer, compounder, processor, or assembler of any product or any component part thereof and who places the product or any component part thereof in the stream of commerce. Id. § 82.001(2)-(4). Under these definitions, "all manufacturers are also sellers, but not all sellers are manufacturers." Gen. Motors Corp. v. Hudiburg Chevrolet, Inc., 199 S.W.3d 249, 256 (Tex. 2006).
Elements of a Defective Design Claim. To recover for a products-liability claim alleging a design defect, the plaintiff must prove that (1) the product was defectively designed so as to render it unreasonably dangerous; (2) a safer alternative design existed; and (3) the defect was a producing cause of the injury for which the plaintiff seeks recovery. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009); Hernandez v. Tokai Corp., 2 S.W.3d 251, 256-57 (Tex. 1999); see also Tex. Civ. Prac. & Rem. Code Ann. § 82.005(a) (Vernon 2011) (providing that, in design defect cases, claimant must prove by preponderance of evidence that safer alternative design existed and defect was producing cause of injury). "Safer alternative design" is defined as "a product design other than the one actually used . . . ." Tex. Civ. Prac. & Rem. Code Ann. § 82.005(b); see Honda of Am. Mfg., Inc. v. Norman, 104 S.W.3d 600, 605 (Tex. App.--Houston [1st Dist.] 2003, pet. denied) (tacitly approving jury charge that followed language of section 82.005). "Proof of a product failure, standing alone, is not sufficient to raise a fact question as to whether the product was defective or that it was defective when it left the hands of the manufacturer." Zavala v. Burlington N. Sante Fe Corp., 355 S.W.3d 359, 370 (Tex.App.–El Paso 2011, no pet.).
Elements of a Manufacturing Defect. A manufacturing defect exists when a product deviates, in its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous. BIC Pen Corp. v. Carter, 346 S.W.3d 533, 540 (Tex. 2011); Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A plaintiff must prove: (1) that the product was defective when it left the hands of the manufacturer and (2) that the defect was a producing cause of the plaintiff's injuries. Ridgway, 135 S.W.3d at 600. Expert testimony is generally required in manufacturing defect cases to prove that the specific defect caused the accident. BIC Pen, 346 S.W.3d at 542; see Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006) ("Proof other than expert testimony will constitute some evidence of causation only when a layperson's general experience and common understanding would enable the layperson to determine from the evidence, with reasonable probability, the causal relationship between the event and the condition.").
Elements of a Marketing Defect Claim. To prevail on her negligent marketing claim, as opposed to a strict liability marketing defect claim, the appellee was required to establish four elements: (1) a duty by appellant to act according to an applicable standard of care; (2) a breach of the applicable standard of care; (3) an injury; and (4) a causal connection between the breach of care and the injury. Cobb v. Dallas Fort Worth Med. Ctr. - Grand Prairie, 48 S.W.3d 820, 824-825 (Tex. App.—Waco 2001, no pet.) (citing Denton Reg. Med. Ctr. v. LaCroix, 947 S.W.2d 941, 950 (Tex. App.—Fort Worth 1997, pet. dism'd by agr.)). Generally, expert testimony is required in the context of strict liability marketing defect claims.
Manufacturer’s Duty to Indemnify. Section 82.002 requires the manufacturer of an allegedly defective product to indemnify an innocent seller for any loss arising out of a products-liability action. Tex. Civ. Prac. Rem. Code Ann. § 82.002(a); see also Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 867 (Tex. 1999). The Act provides that a manufacturer shall indemnify and hold harmless a seller against loss arising out of a products liability action, except for any loss caused by the seller's negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable. Tex. Civ. Prac. Rem. Code Ann. § 82.002(a). The term "loss" is defined to include "court costs and other reasonable expenses, reasonable attorney fees, and any reasonable damages." Id. § 82.002(b). The manufacturer has an obligation to indemnify "[a]nyone who qualifies as a 'seller,'" even if the seller is not "proven to have been in the chain of distribution." Fitzgerald, 996 S.W.2d at 867 (citing Tex. Civ. Prac. & Rem. Code § 82.001(3)). The statute requires the manufacturer of the allegedly defective product to indemnify the seller against all direct allegations against the seller that relate to [the] plaintiff's injury. Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex. 2001). The duty includes an obligation to pay the attorney's fees and costs that a seller incurs defending against claims that the seller negligently maintained the product and was therefore independently liable for the plaintiff's injuries. Id. at 87.
Triggering the Duty to Indemnify. The duty to indemnify is triggered by the injured claimant's pleadings and is imposed only on the manufacturer of a product claimed in a petition or complaint to be defective. Gen. Motors Corp. v. Hudiburg Chevrolet, Inc., 199 S.W.3d 249, 256 (Tex. 2006). The pleadings need not "actually name" the manufacturer to trigger the manufacturer's duty, Id. at 257, but they must at least allege that the manufacturer's product was defective. Id.; see also Fitzgerald, 996 S.W.2d at 867 ("[O]nly manufacturers of a product alleged by a plaintiff to have been defective are subject to a claim of indemnity.").
Statute of Limitations. The statute of limitations for negligence actions is two years. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a). With certain exceptions, a products liability action must be commenced within 15 years after the date of sale of the product by Defendant. Tex. Civ. Prac. & Rem. Code Ann. § 16.012(b).
© 2015 Mark Courtois