By Nicholas J. Kaster, J.D.
The feasibility, cost, and availability of a safer alternative design demonstrated that the danger present in the product was unreasonable in light of the product’s intended use.
The Texas Supreme Court has ruled that legally sufficient evidence supported a jury’s finding of a design defect in an air conditioning unit and that the trial court’s jury charge did not result in an improper verdict. In affirming the judgment of the state appellate court, the Texas high court found that the evidence supported the jury’s finding that the unit’s compressor and terminal had design defects that made them unreasonably dangerous, causing the claimant’s injuries (Emerson Electric Co. v. Johnson, April 16, 2021, Bland, J.).
Background. The claimant, an experienced and licensed HVAC technician, maintained the air conditioning units on the rooftop of a food store. In August 2012, the owner of the store called the technician because the store’s air conditioning was not working. The technician determined that the HVAC unit’s compressor would have to be replaced. That day, he purchased and installed a new compressor, made and sold by Emerson Climate Technologies. The compressor incorporated an electric terminal designed by Emerson Electric Company, sold under the business name of "Fusite."
The Emerson compressor contains an electric motor that pumps refrigerant fluid through an HVAC unit. To do so, the compressor must keep the fluid under constant high pressure and the unit must remain sealed airtight. Electricity enters the compressor through the terminal to run the motor. The electric terminal welded to the compressor in this case was a Fusite 600 series model. For at least 15 years before the technician bought the Emerson compressor at issue, Fusite marketed another terminal, the 700 series, for essentially the same cost. The difference was that the older of the two designs was significantly more susceptible to catastrophic failure.
Despite his experience in the HVAC industry, the technician could not know that the brand-new compressor incorporated the outdated technology inside the unit; nor did he know that the unusual noise emitting from the new compressor the day after he installed it was a sign of imminent danger. When the compressor became overheated, the terminal emitted scalding pressurized fluids that ignited and covered the technician, resulting in serious burns. The unintended release of a compressor’s pressurized contents when the seal breaks on the terminal is known in the industry as "terminal venting."
The technician brought a product liability suit against Emerson and Fusite. The case went to trial and the jury found that the compressor and terminal had design defects that made them unreasonably dangerous, causing the technician’s injuries. The jury further found that Emerson failed to provide adequate warnings about the risk of terminal venting. The jury allocated proportionate responsibility for the technician’s injuries, assigning 75 percent to Emerson, 15 percent to Fusite, and 10 percent to the technician. The trial court rendered judgment on the jury’s verdict, with Emerson liable for the damages awarded less the technician’s responsibility, and Fusite jointly and severally liable for part of that amount.
Emerson and Fusite appealed, challenging the legal sufficiency of the evidence supporting the design defect claims. They also challenged the trial court’s charge to the jury. The court of appeals affirmed [see Products Liability Law Daily’s October 19, 2018 analysis].
In their appeal before the Texas Supreme Court, Emerson and Fusite challenged the legal sufficiency of the evidence supporting liability. In the alternative, they contended that jury charge error required a new trial.
Design defect claim. In determining whether a product is defectively designed, the jury must conclude that the product is unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use. Emerson and Fusite conceded that the jury heard evidence that the compressor was dangerous but contended that it heard no evidence supporting a finding that the product was unreasonably dangerous.
In American Tobacco Co. v. Grinnell, 951 S.W.2d 420 (1997), the Texas Supreme Court identified five types of evidence admissible in design defect cases: (1) the utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use; (2) the availability of a substitute product which would meet the same need and not be unsafe or unreasonably expensive; (3) the manufacturer’s ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs; (4) the user’s anticipated awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions; and (5) the expectations of the ordinary consumer.
A determination of whether the risk-utility evidence presented is legally sufficient requires consideration of the Grinnell factors, although they are not themselves elements of a design defect claim. Rather, the jury must balance this evidence to decide whether the product is or is not unreasonably dangerous. The court does not disturb that balance "unless the evidence allows but one reasonable conclusion."
At trial, the parties disputed the obviousness of the risk and the feasibility of a safer design. On this point, the jury heard evidence that Fusite’s 700 series terminal was a safer alternative design and was available for practically the same cost as the more-dangerous 600 series terminal. Emerson and Fusite argued that the existence of a safer alternative design was not a "substitute" for the Grinnell factors. The court explained that the Grinnell factors describe the types of evidence admissible to show an unreasonably dangerous product. In this case, the court said, the evidence that showed the feasibility, cost, and availability of a safer alternative design also addressed the Grinnell factors, providing evidentiary support for the jury’s design defect finding.
The court noted that the existence of the safer 700 series terminal was evidence of the "utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use" because the 700 and 600 series terminals have the same utility and are made by the same manufacturer for about the same cost.
To be clear, the court said, the existence of an alternative design is not proof that a product’s design is unreasonably dangerous. The cost, feasibility, and availability of the alternative design relative to the claimed danger must demonstrate that the danger present in the product is unreasonable in light of the product’s intended use. That evidence was present here, the court found.
The jury heard that Fusite simultaneously marketed two designs that accomplished the same function for essentially the same cost and had data before it that showed that the older design was significantly more likely to terminally vent and cause serious injury. Hence, the court found that legally sufficient evidence supported the jury’s finding that the Fusite terminal and Emerson compressor were unreasonably dangerous.
Emerson and Fusite also challenged the lack of evidence supporting the ignition source of the fluid that vented through the terminal and covered the technician, suggesting that he would not have been injured had the fluid not caught fire as it vented. Like the court of appeals, the Texas Supreme Court concluded that the jury had no need to resolve the source of the ignition of the escaping fluid to conclude that a design defect was a producing cause of the technician’s injuries.
In this case, the court noted, it was undisputed that the terminal’s escaping fluid fueled the flames. While it may be that not every instance of terminal venting results in ignition, the jury heard evidence that serious burn injuries are a foreseeable consequence of terminal venting. Emerson and Fusite pressed the importance of the ignition source because, they argued, it indicated that the technician was at fault by "unwisely" reconnecting the electricity to the compressor before he opened the terminal cover. The jury heard disputed evidence in support of that theory, and it assigned some responsibility for the accident to the technician.
Even accepting Emerson and Fusite’s argument about this disputed evidence, however, it did not demonstrate that the causation evidence supporting the verdict was legally infirm, the court stated. The jury reasonably could have credited the testimony that a defective design caused the terminal to vent scalding fluid and was "a substantial factor in bringing about" the technician’s injuries, with or without ignition.
Thus, the court held that legally sufficient evidence supported the jury’s finding that a design defect was a producing cause of the technician’s injuries.
Jury charge. Emerson and Fusite also complained that the jury charge failed to include the Grinnell factors in the design defect liability question. The court of appeals rejected this complaint, observing that "[t]he jury need not and should not be burdened with surplus instructions" when balancing various factors in design defect cases.
The trial court instructed the jury based on the Texas Pattern Jury Charge (PJC), hewing closely to Texas Civil Practice and Remedies Code section 82.005. It asked the jury to consider "the utility of the product and the risk involved in its use." Emerson and Fusite claimed that this charge omitted the first Grinnell factor: "the utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use." The instruction to the jury to "tak[e] into consideration the utility of the product and the risk involved in its use," however, adequately captured this factor, the Texas Supreme Court held.
The first Grinnell factor differs from the PJC’s "utility" in that it focuses on the "utility to the user and to the public as a whole." Although a proper design defect charge should include the entire explanatory phrase, its omission was not harmful error in this case, the court found. The failure to instruct the jury to separately consider the utility of the compressor to the technician and to the public did not cause an improper verdict, the court stated.
The first Grinnell factor also instructs the jury to consider "the gravity and likelihood of injury," which was encompassed by the charge’s "risk involved in its use." A charge in a personal injury products case should focus the jury on "the gravity and likelihood of injury." But the ordinary definition of "risk" is the "possibility" (or likelihood) "of suffering harm or loss." It would have been better to instruct the jury to consider the likelihood and the gravity of the injury, the court said. Its omission was not harmful error, however, because "risk" encompasses "likelihood." The omission of a reference to the "gravity" of the injury did not cause the jury to render an improper verdict in this case, the court concluded. Accordingly, the court held that Emerson and Fusite failed to show that the omission of the Grinnell factors from the charge in this case required a new trial.
This case is No. 18-1181.
Attorneys: David M. Gunn (Beck Redden LLP) for Emerson Electric Co. d/b/a Fusite, and Emerson Climate Technologies, Inc. Jeffrey S. Levinger (Levinger PC) for Clarence Johnson.
Companies: Emerson Electric Co. d/b/a Fusite; Emerson Climate Technologies, Inc.
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