Did the trial court err by failing to submit Ferris' responsibility under Chapter 82 of the
Civil Practice and Remedies Code to the jury?
In his first issue, Daniel complains that the trial court failed to submit a liability question asking the
jury to determine whether Ferris, the manufacturer of the mower, was liable under Chapter 82 of the
Texas Civil Practice and Remedies Code. Daniel also complains that the trial court erred by failing to
include a question regarding Ferris' proportional responsibility in the jury charge.
Chapter 82 of the Texas Civil Practice and Remedies Code imposes a duty upon manufacturers to
"indemnify and hold harmless" sellers "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 (Vernon 2005). The purpose of this section is to require
a manufacturer to indemnify an innocent seller for certain damages and litigation expenses arising
out of a products liability action and to require sellers to bear the damages and expenses for the
losses they cause. Gen. Motors Corp. v. Hudiburg Chevrolet, Inc., 199 S.W.3d 249, 262 (Tex. 2006).
Chapter 82 defines a "products liability action" 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) (Vernon 2005).
Richardson's lawsuit against Daniel was based on alleged violations of the Texas Deceptive Trade
Practices Act, with Richardson asserting that both the characteristics of the lawn mower and Daniel's
ability to service that mower had been misrepresented to him during the sale. At trial, Richardson
sought only to recover the economic value of the contract he entered based upon the
misrepresentations (the difference in the amount he paid for the mower and what the jury believed it
to actually be worth) and the business he lost as a result of not being able to use the mower as he
intended. He did not seek damages "arising out of personal injury, death, or property damage," and
he therefore did not assert a "products liability" action under Chapter 82. Accordingly, Chapter 82
did not apply to the lawsuit at issue and the trial court properly denied Daniel's request for such a
Daniels v. Richardson (Tex.App.- Houston [1st Dist.] Apr. 16, 2009)(Hanks)
(product liability, claims against seller vs. manufacturer, warranty, DTPA, issue of jury charge error)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Chief Justice Radack, Justices Alcala and Hanks
Jack Daniels d/b/a Daniel's Rentals v. Edward Richardson d/b/a Blue Saphire Lawn Care
Appeal from County Court at Law No 1 & Probate Ct of Brazoria County
Trial Court Judge: Hon. Jerri Lee Mills
Further, Daniel complains that the trial court failed to submit a question asking the jury to assess the
proportional responsibility of Ferris under Chapter 33 of the Texas Civil Practice and Remedies
Code. We conclude that Daniel has waived this argument on appeal because he failed to object to
the court's charge on these grounds at trial. See Tex. R. App. P. 33.1(a)(1) (to preserve complaint
for appellate review, the complaint must be made to the trial court by "a timely request"); Tex. R. Civ.
P. 278; Lopez v. S. Pac. Transp. Co., 847 S.W.2d 330, 333 (Tex. App.-El Paso 1993, no writ)
(stating under Rule 278 "purported error regarding an omitted jury instruction is deemed waived
absent the request and tender, in writing, of an instruction in substantially correct form").
Accordingly, we overrule Daniel's first issue.
MORE PRODUCT LIABILITY CASES FROM HOUSTON COURTS OF
Brockert v. Wyeth Pharmaceuticals, Inc. (Tex.App. – Houston [14th Dist.] Apr. 14, 2009)(Brown)
(federal preemption, product liability drugs FDA, defective design claim)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Brown
Before Chief Justice Hedges, Justices Guzman and Brown
14-07-00445-CV Susan Brockert v. Wyeth Pharmaceuticals, Inc., Kay Lamberth, Lana Pavlesic,
James Ty, Ann Callan, and Patrick Tyrrell
Appeal from 151st District Court of Harris County
Trial Court Judge: Caroline Elizabeth Baker
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