Ramirez v. Volkswagen of America, Inc.

788 S.W.2d 700, 1990 WL 47289
CourtCourt of Appeals of Texas
DecidedMay 17, 1990
Docket13-88-577-CV
StatusPublished
Cited by9 cases

This text of 788 S.W.2d 700 (Ramirez v. Volkswagen of America, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ramirez v. Volkswagen of America, Inc., 788 S.W.2d 700, 1990 WL 47289 (Tex. Ct. App. 1990).

Opinions

OPINION

NYE, Chief Justice.

This is an appeal from a suit against Volkswagen of America, Inc., (Volkswagen) and the estate of Santana Martinez for which appellants sought recovery for personal injury and wrongful death. The suit arose from an automobile collision in which Felix Ramirez, Jr., Arturo Ramirez and Christopher Lyon Wilson were killed when the Volkswagen van occupied by them collided with a vehicle driven by Santana Martinez. Appellants, the surviving family members of the decedents, sued Volkswagen alleging strict liability and common law negligence concerning defects in the design, marketing and manufacture of the Volkswagen van. The jury answers on issues of liability were favorable to Volkswagen although the jury found damages in the amount of $1,450,000.00. The judge entered judgment that Ramirez take nothing against Volkswagen. Ramirez appeals. We affirm.

The evidence shows that on the night of August 20, 1982, a Ford Grand Torino, driven by Santana Martinez, skidded sideways around a highway curve and was broadsided by a Volkswagen van driven by Arturo Ramirez. The impact cut the Tori-no into two pieces. Santana Martinez died at the scene. The van’s front seat passenger, Felix Ramirez, Jr., was alive and trapped inside the van. Passersby tried to extricate him from the van but a fire inside the van prevented them. He died at the scene along with the van’s driver and another one of its passengers, Christopher Lyon Wilson. The van’s fourth passenger, Jason Ramirez, was thrown from the van and survived the crash.

By their first point of error, appellants allege that the trial court submitted an erroneous charge to the jury. The complained-of charge reads as follows:

A product is not in a defective condition, thus not unreasonably dangerous when sold, when the unreasonably dangerous condition is caused by a substantial change or alteration of the product after it is sold, and but for which unreasonably dangerous condition the event would not have occurred. Substantial change or alteration means that the configuration or operational characteristics of the product are changed or altered by affirmative conduct of some person in a [702]*702manner that the defendant could not have reasonably foreseen would occur in the intended or foreseeable use of the product. Substantial change or alteration does not include reasonably foreseeable wear and tear or deterioration.

We note that this instruction tracks the instruction given in 3 State Bar of Texas, Texas Pattern Jury Charges PJC 70.05 (1982). According to PJC 70.05, when the elements of substantial change or alteration are raised by the evidence, an instruction on these elements should be submitted following the definition of “unreasonably dangerous.” Federal Pacific Electric Co. v. Woodend, 735 S.W.2d 887, 892 (Tex.App.—Fort Worth 1987, no writ); see also Woods v. Crane Carrier Co., Inc., 693 S.W.2d 377, 379-80 (Tex.1985) and Caterpillar Tractor Co. v. Gonzales, 599 S.W.2d 633, 636-37 (Tex.Civ.App.—El Paso 1980, writ ref’d n.r.e.).

Appellants contend this instruction is both defective and erroneous in a products liability case, particularly a design defect case. They also argue that this instruction amounts to a comment on the weight of the evidence, that it is superfluous, that it tends to distract the jurors’ attention from the issue at hand and that it is not supported by the evidence. At trial, however, appellants objected to the submission of this instruction on the grounds that it was superfluous, and they also objected that they were not allowed to give rebuttal testimony.

New or different objections to a charge cannot be raised for the first time in a motion for new trial or on appeal. Champion v. Wright, 740 S.W.2d 848, 856-57 (Tex.App.—San Antonio 1987, writ denied); Tex.R.Civ.P. 274. In the instant case, the only argument preserved for our review pertains to the instruction being superfluous. The evidence shows that Arturo Ramirez, the van’s driver, earned his living as a traveling photographer. In order to store his photographic supplies, he removed the van’s middle seat and built in its place a large wooden box covering the entire area between the van’s front and rear seats. He stored a locker on top of the wooden box. He also stored inside the van a photographic backdrop, numerous photographic props, a camera and fishing equipment. Volkswagen’s witness, Leslie Warren Parr, testified that the van in question included a Y-shaped frame and other design features that receive impact and transfer this energy to other parts of the van. This stabilizes the passenger compartment during a collision. Nevertheless, when the van collided with the Grand Torino, the forward movement of the unsecured cargo and the wooden box hampered the designed operation of this crash control system. We find that the evidence was sufficient to support the submission of the instruction.

By their second point of error, appellants complain the trial court erred by limiting the testimony of their expert witnesses, Michael Pish and Jerry Walling-ford. In order to address this point of error, we must explain the procedural history involved.

On October 19, 1984, Volkswagen forwarded interrogatories to appellants. By interrogatory number one, Volkswagen requested appellants to: (1) provide the identity of their expert witnesses; (2) provide the subject matter upon which their expert witnesses might testify; (3) acknowledge whether these experts have rendered written reports; (4) assuming experts have rendered written reports, state verbatim the contents of the expert’s report or provide a copy; and (5) state the opinions that the expert holds with regard to the subject matter upon which he may testify and the factual basis for the opinion. On February 19, 1985, appellants filed their answers to these interrogatories, stating that they had not yet designated any expert witnesses. On June 6, 1986, Volkswagen filed a “MOTION TO COMPEL PLAINTIFFS’ RESPONSE TO INTERROGATORY NO. 1.” On September 3, 1986, a hearing was held on Volkswagen’s motion to compel. As a result of this hearing, the trial court issued an order, dated September 3, 1986, indicating that appellants agreed to fully and completely respond on or before September 15, 1986, to interrogatory number one and to provide written reports from all expert [703]*703witnesses designated in such responses. The trial court also ordered appellants to fully and completely respond on or before September 15, 1986, to this interrogatory by providing “a written report from each such expert witness fully and completely setting forth mental impressions and opinions held by the expert and the facts known to the expert (regardless of when or how the factual information was required) which would relate to or form the basis of such mental impressions and opinions.”

On September 17, 1986, Volkswagen received reports from appellants’ experts, Michael Pish and Jerry Wallingford. On September 24,1986, Volkswagen filed its “MOTION FOR SANCTIONS,” complaining that Pish’s and Wallingford’s reports did not satisfy the trial court’s September 3, 1986 order.

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Ramirez v. Volkswagen of America, Inc.
788 S.W.2d 700 (Court of Appeals of Texas, 1990)

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788 S.W.2d 700, 1990 WL 47289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ramirez-v-volkswagen-of-america-inc-texapp-1990.