When does a products liability action become inextricably intertwined with family law? Apparently, when the case is brought in Texas. In Crenshaw v. Kennedy Wire Rope & Sling Co., — S.W.3d —, 2010 WL 2601662 (Tex. App. – San Antonio 2010, no pet. h.), the court of appeals was confronted with issues relating to the alleged defectiveness of a wire rope sling as well as the elements of common law marriage in Texas.
That wrongful death case centered around the death of a floorhand who was killed while “moving two casing bails with the use of a braided wire rope sling.” The Defendants were Newco Manufacturing Company, the maker of a component hook, and Kennedy Wire Rope & Sling Company, the manufacturer of the integrated sling itself. Although the action was initially brought by the floorhand’s parents (who later settled), the appeal centered around the claims of the intervenor-common law wife of the floorhand, against whom a take nothing judgment was entered because the jury found that they had never been married. Thus, the jury never reached any of the liability issues in the case. However, the two defendants cross-appealed, contending the trial court erred in refusing to grant their motions for directed verdict, both on the issue of common law marriage as well as the underlying products liability claims.
After a lengthy analysis, the court ultimately concluded that the trial court’s jury instruction on common law marriage was flawed. Accordingly, it turned to the products liability issues.
In its appeal, Newco argued that “the evidence conclusively established that its component hook did not fail, and that it was not in any way involved in the design of the integrated wire rope sling.” Agreeing, the court of appeals rejected the common law wife’s reliance on the testimony of a Newco manager and the Plaintiff’s petroleum engineering expert. Although the common law wife had argued that the Newco manager had essentially admitted the hook was defective, the court noted that the manager’s testimony indicated only that the manager believed that the “whole assembled product” was dangerous, and only then under certain conditions, when there was slack in the line. As for the testimony of the retained expert, the court noted that he had conceded that the Newco hook had in no way broken or failed and that his belief was that slack in the line caused the accident, not the hook. Accordingly, the court of appeals found that Newco was entitled to summary judgment on the stated liability grounds.
Kennedy Wire was not so lucky. In rejecting its cross appeal, the court found that “reasonable minds could differ” on the application of Texas’s five risk-utility factors (which, as the court noted, “are used to determine whether the defective design of a product rendered it unreasonably dangerous”). In so doing, the court explained:
The evidence established that the particular design of the braided wire rope sling with a Newco hook was chosen by Kennedy. Before recommending the “improved” sling product to H & P, Kennedy made the decision to use braided wire rope, rather than single wire rope, and then chose the Newco number 3 choker hook for assembly with the braided rope, knowing it did not have a safety latch. Ryles testified that not only does Newco sell a similar hook with a safety latch, although only for use with single wire rope, but a competitor, Crosby, also sells a hook with a safety latch that can be used with braided wire rope. In addition, Ryles testified that the sling should have incorporated a hook with a safety latch in order for the whole product to be as safe as possible for lifting overhead loads-in case slack got in the line. McClay testified that the hook without a safety latch was “inappropriate for that particular job;” specifically, McClay stated that, although the hook itself was not defective and did not fail, the sling design incorporating a hook without a safety latch allowed the load to come unhooked when slack got in the line, causing the accident. In addition, there is evidence that Kennedy had the ability to make the integrated sling product safer for lifting overhead loads without impairing its usefulness or significantly increasing costs. Further, the testimony of Hubler and Garland Kennedy shows that Kennedy was well aware of H & P’s prior problems with chain slings that broke or failed and its need for a safer sling for use on it rigs, and yet recommended a sling that incorporated a hook without a safety latch. Hubler testified he would have liked to know about the option of using a hook with a safety latch, and that the additional cost would not have been an issue. Kennedy testified that incorporating a choker hook with a safety latch was feasible and would not have reduced the sling’s utility.
Accordingly, the court of appeals remanded that portion of the case back to the trial court.
