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Transcorp Carriers, Inc. v. Great Dane Limited Partnership

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United States District Court, E.D. Texas, Texarkana Division

Transcorp Carriers, Inc.

v.

Great Dane Limited Partnership

 

No. 5:12CV88

5:12–cv–00088Filed 09/17/2013

 

David Lynn Sargent, Colleen O’Connell McCoy, Hermes Sargent Bates LLP, Dallas, TX, for Transcorp Carriers, Inc.

 

Kyle Harold Dreyer, Hartline Dacus Barger Dreyer, LLP, Dallas, TX, Mark E. Abraham, Robert A. Carson, Gould & Ratner LLP, Chicago, IL, for Great Dane Limited Partnership.

 

ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATE MAGISTRATE JUDGE

MICHAEL H. SCHNEIDER, UNITED STATES DISTRICT JUDGE

*1 The above-entitled and numbered civil action was heretofore referred to United States Magistrate Judge Caroline M. Craven pursuant to 28 U.S.C. § 636. The Report of the Magistrate Judge, which contains her proposed findings of fact and recommendations for the disposition of such actions (Doc. No. 60), has been presented for consideration. Plaintiff Transcorp Carriers, Inc. (“Transcorp”) filed objections (Doc. No. 64) to the Report and Recommendation. Also before the Court is Defendant Great Dane’s response (Doc. No. 65) to the objections.

 

On August 16, 2013, the Magistrate Judge issued an extensive 29–page Report and Recommendation, recommending Great Dane’s Motion for Summary Judgment (Doc. No. 41) be granted and that Plaintiff’s above-entitled cause of action be dismissed with prejudice. Transcorp objects to the Report and Recommendation, asserting that (1) it considers improper summary judgment evidence; (2) it fails to consider circumstantial evidence of defect; (3) it is based upon arguments not asserted by Great Dane; (4) it adopts Great Dane’s version of the facts; (5) it assumes Transcorp is claiming only improper installation and ignores assertions that the MTIS system itself was defective; and (6) it assumes Transcorp must prove the MTIS system caused the fire rather than proving the MTIS system failed in its ordinary purpose, which was to warn the driver of a leak that could lead to a tire fire.

 

Among other things, Transcorp asserts the Magistrate Judge considered improper summary judgment evidence. Specifically, Transcorp objects to Great Dane’s summary judgment Exhibit H, a blank-form incomplete warranty relied upon by Great Dane in its reply. As explained in Great Dane’s motion for leave to correct and substitute certain exhibits, due to a clerical error, Great Dane’s exhibits in support of its motion for summary judgment were incomplete as originally filed. Within two business days, Great Dane sought leave to substitute and correct certain exhibits. The Magistrate Judge, in her discretion, granted Great Dane leave to correct and substitute the exhibits. Transcorp was not prejudiced by the substitution as it had in its possession the correct deposition transcripts and pages which were correctly referenced in the summary judgment motion. The blank-form limited warranty, which Plaintiff objects to as unauthenticated, did not factor into the Magistrate Judge’s recommendation. The terms of the limited warranty were not the basis of the Magistrate Judge’s ruling as evidenced from the following:

 

The Court has already found that Plaintiff has not presented summary judgment evidence controverting Defendant’s evidence that the MTIS System as installed was not defective. As there is no evidence that the tire inflation system (or any other part of the trailer) was defective, Plaintiff’s breach of implied warranty claims fail as a matter of law.

 

(Doc. No. 60 at p. 27) (citation omitted). The Court is not convinced the limited warranty was relied upon by the Magistrate Judge.

 

*2 In its objections, Transcorp provides a timeline of events supposing the occurrence of a “tire failure” before the tire blowout and fire, asserting the Magistrate Judge erred in adopting Great Dane’s version of the facts equating the “tire failure” as the blowout. As explained in the Report and Recommendation, Plaintiff’s own expert, Lancelot Furber stated in his report as follows:

 

Tire core wires from the right rear inside tire were found wrapped very tightly around the axle housing (Photographs 0092 and 0094). The ends of the wires, from the sidewall of this tire, were found to be shredded (Photographs 0095, 0096, and 0098).Both of these findings are evidence of a tire failure in which, after the failure, the vehicle continued to travel for a great distance prior to the failure being addressed. The friction caused by this activity can cause enough heat to ignite the rubber compound of the tire.

 

(Furber Report at p. 3). Mr. Furber explicitly states in his report as follows: “[t]here were no signs of tire failure prior to the fire.” (Doc. No. 33–2, p. 3:8–9). As noted by the Magistrate Judge, Mr. Furber’s use of the phrase “tire failure” is not an indication of a leaky tire that failed to activate the MTIS warning light in advance of a blowout. Rather, Mr. Furber’s use of “tire failure” indicates the blowout itself.

 

Transcorp’s driver Jimmy Burris heard, saw, and felt the tire blowout and continued to travel one-half mile to two miles until he pulled over and discovered the tire on fire. He had checked the tire inflation 45 minutes earlier, and there was no indication of any tire inflation problem or tire failure before the blowout. There is no evidence of any product malfunction or failure prior to the blowout.

 

Transcorp further asserts the Magistrate Judge erroneously recommends summary judgment be granted on Transcorp’s breach of implied warranty of fitness for a particular purpose claim, based on grounds not argued by Great Dane. In its motion, Great Dane argued Transcorp cannot recover for breach of implied warranty of fitness for a particular purpose because (1) implied warranties were excluded by the written Limited Warranty; and (2) there was no evidence of defect or product malfunction. As noted above, the Magistrate Judge found with regard to Plaintiff’s breach of the implied warranty of merchantability claims as follows: “[a]s there is no evidence that the tire inflation system (or any other part of the trailer) was defective, Plaintiff’s breach of implied warranty claims fail as a matter of law.” (Doc. No. 60 at p. 27). Specifically regarding Transcorp’s breach of the implied warranty of fitness for a particular purpose, the Magistrate Judge found that Transcorp did not present any evidence suggesting that Great Dane had reason to know of some particular non-ordinary purposes for which Transcorp intended to use the trailer with the installed MTIS System. Although not specifically raised by Great Dane, such evidence is a necessary element to a claim for breach of implied warranty of fitness for a particular purpose. Bass v. Stryker Corp. 669 F.3d at 501, 516 (5th Cir. 2012), quoting Hartford v. Lyndon–DFS Warranty Services, Inc., 2010 W.L. 2220443, *10–11 (Tex.App.–Houston [1st Dist] May 28, 2010, no pet.).

 

In its objections, Transcorp asserts the “non-ordinary purpose” of the MTIS System was to warn drivers of a leaking tire in order to prevent tire blowouts and tire fires. However, elsewhere in its objections, Transcorp states the two essential functions of the MTIS System are to equalize tire pressure and to warn the driver of a system leak. As such, the Court is not persuaded by Transcorp’s alternative argument that warning drivers of low-pressure or leaking tires is a “non-ordinary” function of the MTIS system.

 

*3 Transcorp contends the Magistrate Judge failed to consider circumstantial evidence of a defect, and there is a question of fact regarding whether the MTIS system malfunctioned. As urged by Great Dane, Transcorp would ask the jury to infer the existence of a defect by the mere fact that a fire occurred. However, there is no circumstantial evidence of a defect or malfunction of the MTIS system nor is there any evidence of causation. Mr. Burris did not identify any problem with tire inflation or tire failure prior to the blowout and fire. As noted above, Mr. Furber opined there was no evidence of tire failure prior to the fire. Even if the Court were to assume that any failure of the warning light to illuminate at the time of the blowout shows a malfunction of the MTIS system, the required element of causation is still absent. Not only did non-party Meritor manufacture the MTIS system, but Mr. Burris also testified that he knew exactly when the blowout occurred, because he heard, saw, and felt it. It was driving for a long distance after the blowout that caused the tire to ignite.

 

Transcorp also asserts the Magistrate Judge assumes that Transcorp must prove the MTIS system caused the fire, rather than prove only that the MTIS system failed in its ordinary purpose (or alternatively its non-ordinary purpose) which was to warn the driver of a leak that could lead to a tire fire. Specifically, Transcorp relies on the following summary judgment evidence: (1) there is expert testimony that the MTIS system should have warned the driver; (2) Mr. Burris testified no warning light came on prior to the fire; and (3) there is expert testimony that the ignition source of the fire was the heat of friction due to a tire failure when the vehicle continued to travel for a great distance.

 

As noted by Great Dane, however, there is a gap in Transcorp’s reasoning that if the tire inflation system failed to warn the driver of a tire failure, such failure is actionable even if the tire inflation system itself did not cause the fire. As explained in detail by the Magistrate Judge, Mr. Burris checked the tire inflation 45 minutes prior to the blowout, and there is no evidence to suggest that a tire leak of any kind existed (thus triggering the MTIS light to illuminate) within the 45 minutes prior to the tire failure (or at any other time). Mr. Burris knew about the blowout at the time it occurred, and there is no evidence Mr. Burris would have pulled over any sooner if the indicator light had come on, especially when he testified he heard, felt, and saw the blowout.

 

In sum, there is no evidence of any defect or malfunction in the tire inflation system or any other part of the trailer sold by Great Dane. The Court finds Transcorp’s objections are without merit. The Court has conducted a de novo review of the Magistrate Judge’s findings and conclusions. The Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct. Therefore, the Court hereby adopts the Report of the United States Magistrate Judge (Doc. No. 60) as the findings and conclusions of this Court. Accordingly, it is hereby

 

ORDERED that Defendant Great Dane Limited Partnership’s Motion for Summary Judgment (Doc. No. 41) is GRANTED. It is further

 

ORDERED that Plaintiff’s above-entitled and numbered cause of action is DISMISSED WITH PREJUDICE.

 

It is SO ORDERED.

 

SIGNED this 17th day of September, 2013.

 

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

CAROLINE M. CRAVEN, UNITED STATES MAGISTRATE JUDGE

The above-referenced case was referred to the undersigned United States Magistrate Judge for pre-trial purposes in accordance with 28 U.S.C. § 636. Before the Court are the following pending motions: (1) Defendant Great Dane Limited Partnership’s Motion for Summary Judgment (Docket Entry # 41); (2) Defendant Great Dane Limited Partnership’s Motion for Partial Summary Judgment as to Damages (Docket Entry # 42); and (3) Defendants’ Motion for Leave to Correct and Substitute Certain Exhibits to Defendants’ Motion for Summary Judgment (Docket Entry # 44–1). The Court, having reviewed the relevant briefing, grants Defendants’ motion for leave to correct certain exhibits to its motion for summary judgment. The Court further recommends Defendant’s motion for summary judgment on liability be GRANTED and that Plaintiff’s above-entitled and numbered cause of action be DISMISSED WITH PREJUDICE.FN1

 

FN1. Given the Court’s recommendation, the Court need not address Defendant’s separate Motion for Partial Summary Judgment regarding damages.

 

I. BACKGROUND

*4 This is a subrogation claim for $329,673.70 arising from a trailer fire on October 26, 2011, near New Boston, Texas. Transcorp Carriers, Inc. (“Plaintiff”) alleges the trailer fire was caused by a defective Meritor Tire Inflation System (“MTIS” or “tire inflation system”) installed in the trailer manufactured by Great Dane Limited Partnership (“Defendant”). The fire destroyed the trailer and its cargo, being a load of cigarettes. Plaintiff seeks damages based on claims of strict liability, negligence, breach of implied warranty and merchantability, and res ipsa loquitor.

 

In its motion for summary judgment regarding liability, Defendant asserts Plaintiff had exclusive control of the trailer for a nearly two year period prior to the accident; Plaintiff replaced the trailer’s tires on two occasions; and Plaintiff also inspected and modified the tire inflation system. Even though Plaintiff has designated two expert witnesses, Defendant asserts there is no evidence that the tire inflation system (or any other part of the trailer) was defective or that Defendant caused or contributed to the fire in any way. Defendant asserts Plaintiff’s experts do not identify any defect in the trailer or tire inflation system that caused the fire, and there is no expert testimony or other admissible evidence to support any claim of product defect, negligence, breach of implied warranty, or res ipsa loquitor against Defendant. Thus, Defendant asserts it is entitled to judgment on all claims as a matter of law.

 

In its response to Defendant’s motion for summary judgment, Plaintiff asserts that the MTIS failed in its essential purpose of warning the driver of tire failure. Expert testimony and reports identify the ignition source of the fire as the heat of friction due to a tire failure, and Plaintiff argues the MTIS (specifically the warning light) was designed to warn the driver of precisely such tire failure by timely illumination and it did not. Plaintiff asserts there is sufficient evidence to suggest defective manufacturing, design, or installation. Plaintiff contends the MTIS’ failure in its essential purpose of warning the driver constitutes sufficient circumstantial evidence to support an inference that a product defect (based on manufacturing, design, or installation) existed at the time the system left the manufacturer.

 

Plaintiff argues that a breach of an implied warranty of merchantability can be established by circumstantial evidence alone, and evidence of Defendant’s improper installation of the control box constitutes such evidence. Regarding the implied warranty of fitness for a particular purpose, Plaintiff states Defendant fails to meet its burden under Rule 56 and misrepresents Texas law. In conclusion, Plaintiff argues there is sufficient evidence for the jury to decide the products liability claims pursuant to res ipsa loquitor, breach of implied warranties of merchantability, implied warranty of fitness for a particular purpose, negligence, and strict liability.

 

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the movant is able to demonstrate that the pleadings, affidavits, and other evidence available to the Court establish that there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The movant bears the responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Topalian v. Ehrman, 954 F.2d 1125 (5th Cir. 1992), cert. denied, 506 U.S. 825 (1992).

 

*5 The nonmovant is not required to respond to a motion for summary judgment until the movant first meets its burden of demonstrating that there are no factual issues warranting trial. Ashe v. Corley, 992 F.2d 540 (5th Cir. 1993). Once the movant has shown the absence of material fact issues, however, the opposing party has a duty to respond, via affidavits or other means, asserting specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e). It is not enough for the party opposing summary judgment to rest on mere conclusory allegations or denials in his pleadings. Topalian, 954 F.2d at 1131. The nonmovant must point out, with factual specificity, evidence demonstrating the existence of a genuine issue of material fact on every component of the nonmovant’s case. Dunn v. State Farm & Casualty Co., 927 F.2d 869, 872 (5th Cir. 1991). If the nonmoving party fails to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In assessing the proof, the court views the evidence in the light most favorable to the nonmovant. Matshusita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).

 

III. SUMMARY JUDGMENT EVIDENCE

A. Defendant’s evidence

In its motion for summary judgment, Defendant relies on the following summary judgment evidence: (1) Excerpts of deposition of Fred Best, President of Transcorp Carriers, Inc. (“Best Depo.”); (2) Bill of Lading; (3) Plaintiff’s First Amended Original Petition (“Am. Compl.”); (4) maintenance records; (5) Excerpts of deposition of Jimmy Burris, Transcorp Driver (“Burris Depo.”); (6) Study from Lancelot Furber, Certified Fire Investigator (“Furber Report”); (7) Desk review study from Frank Miller, Senior Forensic Engineer (“Miller Report”); and (8) Great Dane Warranty. Defendant’s evidence reveals as follows.

 

Defendant manufactured the trailer involved in the accident, which was delivered to Plaintiff (along with 15 other trailers) on November 16, 2009, with a Meritor Tire Inflation System installed. (Best Depo. at 71:5–13; 72:17–22; see also Bill of Lading). Plaintiff was the operator of the trailer and was in the business of interstate transportation. (Am. Compl. ¶ 2). Transcorp picked up the subject trailer on or about November 16, 2009 at Great Dane’s branch in Charlotte, NC. (Bill of Lading). The maintenance records reflect that over the twenty-three months of ownership and operation all eight tires on the subject trailer had been replaced by Plaintiff on two separate occasions prior to the fire. (Best Depo. at 40:24–25, 41:1–6, 64:23–25 & 65:1–9). The hoses to the tire inflation system had to be disconnected and reconnected in the course of replacing the tires. (Id. at 66:4–16). The maintenance records show that the tire inflation system was also inspected on several occasions, and was manually recalibrated to a higher pressure setting approximately eight months after the trailer was put into service. (Id. at 46:13–16 & 64:23–65:9).

 

The trailer was in Plaintiff’s exclusive possession and control for the nearly two years from delivery on November 16, 2009 to the accident on October 26, 2011. (See Bill of Lading; see also Best Depo. at 71:5–13; 72:17–22). On October 25, 2011, Plaintiff’s driver, Jimmy Burris, picked up a load of cigarettes from Greensboro, North Carolina that was destined for San Bernardino, California. He was going to switch the trailer with a team close to the Dallas–Fort Worth beltway. (Burris Depo. at 11:13–18; 16:10–17). Burris traveled for approximately eleven hours and then pulled over at a ramp on I–30 in Texas to sleep. (Id. at 12:12–13:6). On October 26, 2011, after awakening and conducting his pre-trip inspection which included the tires, Burris traveled on I–30 heading westbound for about 45 minutes when, as he was passing a Celadon truck, he heard his right inside rear tire “pop” and saw pieces flying off the tire. (Id. at 13:9–14:18; 17:19–18:24). It took at least half a mile for Burris to stop as he had to get past the Celadon truck and get over to the side of the road. (Id. at 18:25–19:13).

 

*6 Pursuant to Federal Rule of Civil Procedure 26(a)(2), Plaintiff has disclosed reports from two experts: (1) a fire investigator, Lancelot E. Furber; and (2) a senior forensic engineer Frank, J. Miller, Jr., P.E. According to Defendant, neither of the experts identified a defect in the trailer or in the tire inflation system that caused the Plaintiff’s losses. Furber determined that the ignition source of the fire was the heat of friction due to a tire failure. (Furber Report at pg. 2). Furber further stated as follows:

 

The Meritor Inflation System should have alerted the drive to this tire failure by the illumination of a white light mounted on the front left of the trailer. This light was removed and found to be operational. The electrical system for this inflation system was constructed of combustible materials and was consumed by the fire. Due to this, it was not determined if this system alerted the driver of this tire failure or if the driver did not notice or react to its warning.

 

(Id. at pg. 3).

 

Miller concluded based on a “desk review” that “the fire was determined to have originated in the area of the right rear inside tire of the trailer’s tandem wheel assembly and the ignition source was friction created by continued operation of the vehicle for an extended period of time after tire failure.” (Miller Report at pg. 2). After making several observations as to the operation of the MTIS system, Miller further concluded that “the MTIS system, including control box, connections, and fittings, were installed per the manufacturer’s installation instructions.” (Id. at pgs. 2–3). However, due to the fire in the “proximity of the manufacturer recommended installation,” Miller was unable to perform “detailed analysis to determine if the fire created by the overheated tire was the result of improper operation of the air flow switch/indicator light of the MTIS or due to inattention by the vehicle’s driver.” (Id.). Miller’s only criticism of the tire inflation system was that the “control box placement and retention method is considered to be a poor design from the standpoint of having any type of post-fire artifact for determination of the cause of fire in the trailer’s wheels.” (Id. at pg. 3).

 

Under his Summary of Conclusions, Miller asserts as follows:

 

* The MTIS (tire inflation system) system’s indicator light only illuminates when there is sufficient air flow through the airflow sensing switch.

 

* The air flow sensing switch is mounted in a plastic control box and the control box is intended by the manufacturer to be installed on the subframe, in close proximity to the trailer’s tandem wheels.

 

* The control box’s placement and retention method makes it vulnerable to rapid fire impingement and failure in the event of fire in one of the trailer’s tandem wheels.

 

* The control box placement and retention system is considered to be a poor design from the standpoint of being able to make any type of post-fire determination of the cause of a fire in the trailer’s tires.

 

(Id. at pg. 4).FN2

 

FN2. Defendant has separately filed a motion to exclude any testimony by Mr. Miller related to an alleged design defect of the location or placement of the tire inflation system’s control box. The Court will consider for purposes of this summary judgment motion Mr. Miller’s opinions and denies Defendant’s motion to exclude (Docket Entry # 43).

 

B. Plaintiff’s evidence

In response to Defendants’ motions for summary judgment, Plaintiff relies on the following summary judgment evidence: (1) Excerpts of Best’s deposition; (2) Excerpts of deposition of Barry Mitchell, Director of Customer Service and Warranty for Great Dane (“Mitchell Depo.”); (3) Excerpts of Burris’ deposition; (4) Excerpts of deposition of James Brown, Great Dane Employee in Customer Service and Warranty (“Brown Depo.”); (5) Deposition on written questions to Meritor (“Meritor Depo.”); (6) Deposition excerpts of Lancelot Furber (“Furber Depo.”);(7) Declaration of Frank Miller (“Miller Decl.”); and Excerpts from deposition of Dan Carter (“Carter Depo”). Plaintiff’s evidence reveals the following.

 

*7 Plaintiff is in the business of interstate transportation, utilizing tractor-trailers typical of the long-haul business. Plaintiff purchased a refrigerated van trailer (model number SUP–1114–11053 and vehicle identification number 1GRAA0621AW703587) from Defendant, which was delivered on November 16, 2009. (Bill of Lading, attached to Defendant’s mot.) Plaintiff elected to add the MTIS system as an option on that trailer. Defendant manufactured the trailer and installed the MTIS system prior to delivery. (Best Depo. at pgs. 22–24).

 

MTIS systems are not stock or standard on Great Dane’s refrigerated van trailers. (Carter Depo. at pgs. 53–56). Plaintiff elected to add the MTIS system to the standard tractor trailer because the MTIS system would provide over-the-road pressure maintenance and would provide a warning to the driver when the system detected a leak. (Best Depo. at pgs. 22, 24, 31–33, & 35–36). As represented by Defendant, the MTIS system would extend tire life, increase fuel economy, decrease fleet maintenance costs, improve safety, reduce roadside assistance calls, and reduce tire blowouts. Id. Meritor/P.S.I. (“Meritor”) manufactured the MTIS system. (Mitchell Depo. at pgs. 5, 10–13, 26–28, & 36–39).

 

MTIS harnesses the trailer’s existing air supply to keep the trailer’s tires fully inflated when the vehicle is in operation. (Miller Report at pg. 2). Air from the trailer air supply is distributed to each tire as needed. When a tire gets low on pressure, the MTIS system pumps air into the tire to equalize the pressure. (Burris Depo. at pgs. 9–10). When functioning properly, an indicator light will signal a warning to the driver when the system detects a leak. (Id. at pg. 10; Best Depo. at pgs. 35–36; Miller Report at pg. 3).

 

In the course of maintaining and servicing the trailer, Plaintiff replaced the tires as needed and recommended by maintenance standards. (Best Depo. at pgs. 9 & 48–49). According to Best, Plaintiff’s service and maintenance of the trailer did not involve the MTIS control box; it only involved tire replacement and adjustment of the applicable tire pressure. (Id. at pgs. 9, 48–49 & 68). Best testified that generally 85% of tire failures occur from underinflated tires. (Id. at 35:11–15). He also testified a person can run over an object like a nail, causing air to escape and the damaged tire to heat up and then explode. (Id. at 35–36).

 

In addition to the testimony outlined above in the discussion of Defendant’s evidence, Burris testified the MTIS indicator light did not come on. Burris Depo. at pgs. 10–11, 17 & 22. The trailer, including its MTIS system, was so consumed by the fire that it was impossible for experts to perform any post-fire study of the MTIS system. Miller Report at pgs. 3–4. However, from inspecting the available evidence, Plaintiff’s expert Furber concluded that the ignition source of the fire was the heat of friction due to a tire failure, when the vehicle continued to travel for a great distance prior to the failure being addressed. Furber Report at pgs. 3–4. Defendant’s employee James Brown accompanied Furber on his inspection; Defendant asked Brown to inspect the trailer fire. Brown Depo. at pgs. 4, 7 & 25. Brown agreed with Furber’s conclusion as to the cause and source of the fire. Id. at pg. 27. Brown also confirmed in his deposition that the MTIS control box was so consumed by the fire it could not be tested. Id. at pg. 26.

 

On May 31, 2013, Dan Carter, Defendant’s manager of product safety and compliance, testified regarding the functionality of the “malfunction indicator lamp in the Meritor system.” Carter Depo. at 12:4–6 & 37:9–10. Regarding the basic operation, Carter testified as follows:

 

*8 That basically the lamp would light when there was a flow in excess of a pressure differential of three to four PSI, that as the air was flowing at that rate the lamp would light and stay lit and that as you continue with air flow like that the light would light. I asked [Marty Watterson at Meritor] also whether the lamp functioned and did a bulb check when you first powered it up and he said, no, it did not.

 

Id. at 37:15–24.

 

According to Carter, during a quality audit performed by Meritor at Defendant’s facility in April 2010, it was noted there were issues with “PSI box mounting.” Id. at 53:11–13.

 

IV. MOTION FOR SUMMARY JUDGMENT REGARDING LIABILITY

A. Whether there are genuine issues of material fact regarding Plaintiff’s strict liability claims

 

1. Plaintiff’s allegations

 

Plaintiff alleges a defect in the air tire pressure monitoring system’s manufacturing and/or design. Am. Compl., ¶ 10. Specifically, Plaintiff alleges as follows:

 

The air tire pressure monitoring system, as designed, was unreasonably dangerous and defective due to a material and design defect. Specifically, at the time the air tire pressure monitoring system was installed by Great Dane on the trailer, it was in a condition not contemplated by the ultimate consumer and was unreasonably dangerous to that consumer for its intended use and foreseeable uses as designed, taking into consideration the utility of the product, the risk involved in its use, and that safer designs were available. Specifically, the air tire pressure monitoring system installed on the trailer failed to alert the driver that a tire was underinflated. The air tire pressure monitoring system as designed should have warned the driver of the tire pressure issue. The electrical system for the inflation system was constructed of combustible materials and consumed by the fire. The design was dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchased it, with the ordinary knowledge common to the community as to its characteristics. The design defect was a proximate and producing cause of the damages for which the Plaintiff brings suit.

 

Id. at ¶ 11. Plaintiff further alleges:

The air tire pressure monitoring system was unreasonably dangerous and defective for its intended use and foreseeable uses, and Great Dane knew or reasonably should have known about the danger. Great Dane was in a position to detect and warn consumers that the air pressure monitor system had a propensity to fail, but failed to do so. Great Dane’s failure to warn of the dangerous and defective air tire pressure monitoring system was a proximate and producing cause of the loss and damages for which the Plaintiff brings suit.

 

Id. at ¶ 12.

 

In summary, Plaintiff alleges (1) a design defect because the MTIS system installed on Defendant’s trailer failed to warn Burris that a tire was underinflated, and (2) Defendant failed to warn Plaintiff that the MTIS system had a propensity to fail. These are the allegations that give rise to Plaintiff’s strict liability claims.

 

2. Applicable law

Texas recognizes the theory of strict liability premised upon the Restatement (Second) of Torts § 402A, which provides in relevant part:

 

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

 

*9 (a) the seller is engaged in the business of selling such a product, and

 

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

 

Id. at § 402A; see also Smith v. Aqua–Flo, Inc., 23 S.W.3d 473, 477 (Tex.App.–Houston [1st Dist.] 2000, writ denied). A product may be unreasonably dangerous due to a defect in the manufacturing process (manufacturing defect) or in its design (design defect), or because of the manufacturer’s failure to provide adequate warnings or instructions on the product’s use (marketing defect). Keene Corp. v. Gardner, 837 S.W.2d 224, 228 (Tex.App.–Dallas 1992, writ denied).

 

Under Texas law, 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…. A plaintiff must prove that the product was defective when it left the hands of the manufacturer and that the defect was a producing cause of the plaintiff’s injuries.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004) (citations omitted). “Under the Restatement, liability may not be imposed merely because a product involves some risk of harm or is not entirely safe for all uses. Products liability does not mean that a seller is an insurer for all harm resulting from the use of his product. Rather, a product is ‘defective’ under the Restatement only if it is ‘unreasonably dangerous’ to the ultimate user or consumer.” Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1087 (5th Cir. 1973). The requirement that the defect render the product unreasonably dangerous “reflects a realization that many products have both utility and danger. The determination that a product is unreasonably dangerous, or not reasonably safe, means that, on balance, the utility of the product does not outweigh the magnitude of the danger.” Id. For a product to be unreasonably dangerous, “it must be so dangerous that a reasonable man would not sell the product if he knew the risk involved.” Id. at 1088. A seller is “under a duty to warn of only those dangers that are reasonably foreseeable. The requirement of foreseeability coincides with the standard of due care in negligence cases in that a seller must exercise reasonable care and foresight to discover a danger in his product and to warn users and consumers of that danger.” Id.

 

In order to recover for an injury on the theory of strict liability, the plaintiff bears the burden of proving the defendant: “(1) placed in the stream of commerce a product; (2) that such product was in a defective or unreasonably dangerous condition; and (3) that there was a causal connection between such condition and the plaintiff’s injuries or damage.” Bass v. Stryker Corp., 699 F.3d 501, 514–15 (5th Cir. 2012), citing Houston Lighting & Power Co. v. Reynolds, 765 S.W.2d 784, 785 (Tex. 1988). “Strict product liability applies only if a product is expected to and does reach the user without substantial change in the condition in which it is sold.” Id.

 

*10 With regard to the causal connection required, negligence requires a showing of proximate cause, while producing cause is the standard in strict liability. See Ford Motor Co. v. Cammack, 999 S.W.2d 1, 7 (Tex.App.–Houston [14th Dist.] 1998, pet. denied). Common to both standards of producing cause and proximate cause is “cause in fact.” Id. at 7. Cause in fact requires proof that an act or omission was a substantial factor in bringing about an injury that would not otherwise have occurred. See Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex. 1995).

 

Under Texas law, an innocent seller may be held liable for the harm caused by a defective and unreasonably dangerous product, although the manufacturer of the product is required to indemnify the seller except for any loss caused by the seller’s negligence, intentional misconduct or other act or omission. SSP Partners v. Gladstrong Investments (USA) Corp., 275 S.W.3d 444, 449 (Tex. 2008); Manchester Tank & Equipment Co. v. Engineered Controls Intern., Inc., 311 S.W.3d 573, 576 (Tex.App.–Waco 2009); Tex. Civ. Prac. & Rem. Code Ann. § 82.002(a) (Vernon 2009). A seller does not have a duty to inspect or test a product manufactured by another for latent defects and thus cannot be held liable for failure to test or inspect. Champion Mobile Homes v. Rasmussen, 553 S.W.2d 237, 243 (Tex. Civ. App. 1977).

 

Here, Plaintiff seeks to hold Defendant liable for improperly installing the MTIS, asserting the installation caused the warning light malfunction that failed to alert the driver of the need to stop driving. All claims asserted by Plaintiff against Defendant require Plaintiff show defect and causation.

 

3. Analysis

 

a. Defect theory under strict liability

 

The Court first considers whether the evidence is sufficient to create a genuine issue of material fact that the MTIS system was defective or in an unreasonably dangerous condition as supplied by Defendant and that such a condition caused Plaintiff harm. Plaintiff claims the MTIS warning light failed to warn Burris of tire failure, thereby causing him to continue to operate the vehicle for an extended period of time after tire failure, thus causing the tire to blowout and catch on fire.

 

The only evidence produced by Plaintiff that the tire inflation system was installed or sold by Defendant in a defective condition unreasonably dangerous to the user is the testimony of Dan Carter, Defendant’s manager of product safety and compliance, regarding an audit performed by Meritor, the manufacturer of the tire inflation system. Carter Depo at pg. 53. When specifically asked about mounting issues, Carter explained as follows:

 

A: I don’t think there was a—I don’t know of any issues we were having ongoing. Apparently there was a question that came up during the supplier report from somewhere else. But when there was an audit done it was noted and addressed.

 

The issue was the mounting angle that the control box mounts to was turned inward rather than outward. And it placed the box a little closer inboard of the subframe than sticking out a little bit. So it was the direction of the mounting angle that it was facing. So when it says it was addressed, it needs to turn out this way instead of turning in.

 

Q: And why is that? I’m just trying to get your understanding, too close, too far. What happens if it’s too close?

 

A: Well, I think it’s just a matter of where it’s located. It’s an L-shaped mounting bracket. And if you turn the tabs one way it puts the plate farther in or farther out by an inch or two. So by turning it one way it bring the control box out to the front part of the subframe. Turning it the other way it gets a little bit inboard of the trailer and it’s just a little less clearance.

 

*11 Id. at 53:15–54:12. Plaintiff asserts this evidence indicates Defendant was improperly installing the MTIS system prior to April 2010, which would be during the time period when Defendant installed the MTIS system on the trailer in question. According to Plaintiff, Defendant’s practice of mounting the control box was improper and constitutes evidence of a defect. The Court disagrees.

 

In considering the evidence in the light most favorable to Plaintiff, the Court can find no evidence Defendant had a practice or ongoing issue of inwardly mounting the brackets of the control box during the relevant time period. Carter’s own testimony reveals he did not think any mounting issues were “ongoing.” Id. at 53:15–16. Defendant installed non-party Meritor’s system as an “add-on” component option pursuant to Plaintiff’s request. Mr. Miller, Plaintiff’s expert, even stated the MTIS system was installed according to Meritor’s instructions.

 

Additionally, the Court is not convinced the angle or the installation of the MTIS as a whole was unreasonably dangerous, as Plaintiff fails to establish a causal link between the alleged improper installation of the MTIS (specifically the inward angle mounting of the control box) and the alleged warning light malfunction. While the effect of the mounting angle on the MTIS system is unclear, nothing suggests that the mounting angle impacted the functioning of the warning light or the eventual tire failure that caused the fire. No witness or document suggests the system would not work if installed inwardly. The Court is not convinced the trailer or tire inflation system was sold in a defective condition unreasonably dangerous to the user.FN3

 

FN3. Plaintiff implies that some outstanding discovery to nonparty written deposition questions directed to Meritor should be considered. Discovery has been closed since June 8, 2013. Plaintiff’s Subpoena and Demand for Deposition on Written Questions was served on June 11, 2013, calling for response on June 28, 2013. Plaintiff has not requested relief under Federal Rule of Civil Procedure 56(d), which provides a procedure for relief in a case of absent material evidence, nor has it submitted the necessary affidavit or declaration as required under that rule.

 

Even if Plaintiff’s allegation that the MTIS system was unreasonably dangerous as installed or supplied by Defendant was supported by sufficient evidence to create a genuine issue of material fact, Plaintiff still falls short on evidence of overall causation. Because the tire inflation system (including the warning light) was designed and manufactured by Meritor, Plaintiff must produce evidence of a causal link between Defendant’s installation and tire failure which caused the fire. Defendant asserts Miller’s conclusions do not support Plaintiff’s contention that the installation of the tire inflation system was defective or that it contributed in any way to the cause of the fire. Miller opines the control box placement and retention system is considered to be a “poor design,” but only from the standpoint of not being able to make any type of post-fire determination of the cause of a fire in the trailer’s tires. Id. at pg. 4. He does not address whether the design or installation of the system in any way affected the functionality of the warning light or contributed to the cause of the fire. Miller states he was unable to conduct a detailed analysis on whether the fire was the result of improper operation of the MTIS warning light or due to driver inattentiveness, specifically noting it was due to the fire in the “proximity of the manufacturer recommended installation.” Id. at pg. 3 (emphasis added). He does not address Defendant’s installation, outside of noting Defendant installed the system according to Meritor’s instructions. Simply put, there is no evidence the placement of the control box had anything to do with the blowout or the resulting fire. As urged by Defendant, none of Miller’s opinions support Plaintiff’s defect claims in this case.

 

*12 Cause in fact requires proof that an act or omission was a substantial factor in bringing about an injury that would not otherwise have occurred. See Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex. 1995). Plaintiff must show that Defendant’s actions or omissions here were a substantial factor in causing the tire failure or blowout, which would not otherwise have occurred. Plaintiff’s expert, Mr. Furber, found “evidence of a tire failure in which, after the failure, the vehicle continued to travel for a great distance prior to the failure being addressed. The friction caused by this activity can cause enough heat to ignite the rubber compound of the tire.” According to Defendant, Furber’s testimony regarding a “tire failure” is consistent with Burris’ testimony that he heard and saw the blowout, traveled at least half a mile, and pulled over to find the wheel area on fire. Defendant’s position equates the tire failure with the blowout.

 

However, in its surreply, Plaintiff provides an alternative timeline of events, asserting it is supported by Furber’s Report: the tire failed (presumably a leak in the tire); the warning light failed to illuminate the driver; Burris continued to drive for a great distance due to a lack of warning; friction and heat caused a blowout and then the fire. Furber’s Report does not support Plaintiff’s assertion that the “tire failure” preceded the blowout. Furber stated as follows:

 

Tire core wires from the right rear inside tire were found wrapped very tightly around the axle housing (Photographs 0092 and 0094). The ends of the wires, from the sidewall of this tire, were found to be shredded (Photographs 0095, 0096, and 0098). Both of these findings are evidence of a tire failure in which, after the failure, the vehicle continued to travel for a great distance prior to the failure being addressed. The friction caused by this activity can cause enough heat to ignite the rubber compound of the tire.

 

(Furber Report at pg. 3). Furber’s use of the phrase “tire failure” is not an indication of a leaky tire that failed to activate the MTIS warning light in advance of a blowout. Furber’s use of “tire failure” indicates the blowout itself. Neither Mr. Furber nor Mr. Burris (nor any other expert) suggested there was any evidence of a leak in the tire prior to the blowout that should have caused the indicator light to illuminate. Although Best testified around 85% of tire failures occur from underinflated tires, he also testified that you can run over a nail, causing air to escape and then explode if you are not aware of it. (Best Depo. at pgs. 35–36).

 

Texas law requires expert testimony in technically complicated cases such as this. Romo v. Ford Motor Co., 798 F.Supp.2d 798, 810 (S.D. Tex. 2011). Plaintiff has not identified expert testimony to support its claim that the tire inflation system was sold to Plaintiff in a defective condition unreasonably dangerous to the user or that blowouts occur from underinflated tires the majority of the time. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)(finding the plaintiff’s expert’s affidavit was insufficient to defeat manufacturer’s summary judgment motion as it failed to identify a defect in the truck at the time it left the manufacturer and could not rule out part of the fuel system as a possible cause of the truck fire). Burris testified that he bounced a three-pound hammer off the tires to check for proper inflation as part of his pre-trip inspection of the tires. As he had been on the road about 45 minutes when the tire failed, Burris’ pre-trip inspection, including the inflation of the tires, would have been about 45 minutes prior to the blowout. (Burris Depo. at 8:1–10). There is no evidence to suggest that a tire leak of any kind existed (thus triggering the MTIS light to illuminate) within the 45 minutes prior to the tire failure (or at any other time).

 

*13 Plaintiff next asserts that if both the tire failure and blowout occurred at the same time, as Defendant contends, then the MTIS system failed to issue one warning at the time of the blowout. Although there is evidence indicating the MTIS system is designed to pump air into the tires when low and illuminate a warning light if one of the tires has a leak, there is no evidence the system is designed to illuminate in a complete blowout. Regardless, whether or not the indicator light illuminated (or was supposed to illuminate) at the time of the blowout is immaterial because it would only alert the driver to what he already knew. Burris did not need a warning of the blowout, testifying that he heard, felt, and saw the blowout when it occurred. According to Burris, after awakening and conducting his pre-trip inspection which included the tires, Burris traveled for about 45 minutes when, as he was passing a Celadon truck, he heard his right inside rear tire “pop” and saw pieces flying off the tire. (Burris Depo. at 13:9–14:18; 17:19–18:24). When asked if he knew the tire blew because he heard a “pop,” Burris stated, “oh yes.” (Id. at 18:8–10). Best testified that on the morning of the fire Burris told him the indicator light never came on indicating he was losing air pressure, but Burris knew he had a tire problem when the tire blew. (Best Depo. at 31–32). It took at least half a mile for Burris to stop as he had to get past the Celadon truck and get over to the side of the road. (Id. at 18:25–19:13). There is no evidence Burris would have pulled over any sooner if the indicator light had come on, especially when he testified he heard, felt, and saw the blowout.

 

There are no genuine issues of material fact regarding whether the trailer or tire inflation system was sold in a defective condition unreasonably dangerous to the user. Nor is there sufficient evidence regarding causation.

 

b. Failure to warn theory under strict liability

There is also no evidence that the tire inflation system or trailer had any “dangerous propensities” of which Defendant failed to warn or that the failure to warn somehow caused any damages. See Romo v. Ford Motor Co., 798 F.Supp.2d 798 (S.D. Tex. 2011) (applying Texas law and recognizing that a failure to warn claim must establish that the product had dangerous propensities and must establish causation); see also Munoz v. Gulf Oil Co., 732 S.W.2d 62, 65 (Tex. App. 1987) (seller can be liable under duty to warn theory only where adequate warnings were not provided of a product’s “dangerous propensities or without adequate instruction for their safe use.”). There is no evidence the tire inflation system had a propensity to fail or was improperly installed, or that any such failure caused any damage. Nor is there any evidence that Defendant knew of any propensity of the tire inflation system to fail.

 

For the above reasons, the Court recommends Defendant’s motion for summary judgment on Plaintiff’s strict liability claim be granted. The Court now consider whether there is sufficient evidence to create a fact issue as Plaintiff’s negligence claims.

 

B. Whether there are genuine issues of material fact regarding Plaintiff’s negligence claims

 

1. Plaintiff’s allegations

 

Plaintiff’s negligence claims are factually similar to its strict liability claims. Plaintiff alleges Defendant owed a duty to Plaintiff’s insured and to Plaintiff to exercise reasonably prudent and ordinary care in the design, manufacturing, and marketing of the trailer installed with the air tire pressure monitoring system through is agents, representatives, and employees. According to Plaintiff, Defendant violated that duty by negligently designing, manufacturing, fabricating, inspecting, marketing, distributing and/or supplying the MTIS installed on the trailer and by failing to timely warn and otherwise act as a reasonably prudent person would have done under the same or similar circumstances. Am. Compl., ¶ 16.

 

2. Applicable law

“Under Texas law, strict liability and negligence, although sharing similar and common elements, are two entirely separate theories of recovery in a products liability action.” McLennan v. American Eurocopter, Corp., Inc., 245 F.3d 403, 431 (5th Cir. 2001), quoting Syrie v. Knoll Intern., 748 F.2d 304, 309 (5th Cir. 1984). Whereas strict products liability focuses upon the product itself and requires a showing that the manufacturer placed a product into the stream of commerce that was unreasonably dangerous for a foreseeable use, “[p]roducts liability premised upon a showing of negligence … focuses upon the conduct of the manufacturer in placing that product into the stream of commerce, and requires a determination of whether that conduct complies with the applicable standard of care.” McLennan, 245 F.3d at 431. To prove a products liability claim premised upon a theory of negligence, a plaintiff must demonstrate: (1) that the manufacturer owed a duty to the plaintiff; (2) that the manufacturer breached that duty; (3) that the plaintiff was injured; and (4) that the manufacturer’s breach of the duty was the proximate cause of the plaintiff’s injury or damages. Id. Proximate cause consists of both cause in fact and foreseeability. Union Pump Co. v. Allbritton, 898 S.W.2d 773, (Tex. 1995).

 

3. Analysis

*14 The Court first notes the Fifth Circuit Court of Appeals has determined that when a plaintiff’s negligence claims are premised solely on a defect in the product and there is no other evidence as to any other potentially negligent conduct in designing or manufacturing a product, the absence of a defect negates an essential element of a negligence claim. Hayles v. Gen. Motors Corp., 82 F.Supp.2d 650, 658 (S.D. Tex. 1999). The Fifth Circuit in Garrett v. Hamilton Standard Controls, Inc., 850 F.2d 253 (5th Cir. 1988) stated as follows:

 

[A]lthough a negligence claim requires a different showing from a strict liability claim, a manufacturer logically cannot be held liable for failing to exercise ordinary care when producing a product that is not defective because: (1) if a product is not unreasonably dangerous because of the way it was manufactured, it was not negligent to manufacture it that way and (2) even if the manufacturer was somehow negligence in the design or production of the product, that negligence cannot have caused the plaintiff’s injury because the negligence did not render the product ‘unreasonably dangerous.’ Thus … the jury’s rejection of strict liability precludes a negligence claim.

 

Id. at 257. The Fifth Circuit has also noted that when the evidence is “ ‘directed entirely to the issue of whether the product was unreasonably dangerous’ and the plaintiffs offered no evidence as to other potentially negligent conduct in designing or manufacturing the product, the absence of a defect negated an essential element of a negligence claim.” Hayles, 82 F.Supp.2d at 658–59, quoting Garrett, 850 F.2d at 257.

 

Plaintiff’s “negligence claims suffer from the same gaps as the strict liability claim.” Hayles, 82 F.Supp.2d at 658. As discussed in detail above with strict liability, there is no evidence to suggest there was a defect in the MTIS system or in the trailer at issue. The Court is not convinced the trailer or the installed tire inflation system was sold in a defective condition unreasonably dangerous to the user. Based on the above cases, the failure of Plaintiff’s strict liability claim precludes Plaintiff’s negligence claim.

 

Another element of Plaintiff’s negligence claim to consider is proximate cause. In order to establish that Defendant’s actions proximately caused the fire that consumed the trailer, Plaintiff must show that Defendant’s actions caused a malfunction of the warning light, which ultimately caused the trailer fire. For the reasons discussed above, the Court finds Plaintiff has not established the installation of the system or the failure of the warning light was a substantial factor in bringing about an injury that would not otherwise have occurred Carter’s testimony regarding “the issue of PSI box mounting” during 2010 or 2011, even when viewed in the light most favorable to Plaintiff, does not indicate the control box on Plaintiff’s trailer was mounted inward rather than outward. Carter Depo. at 53:4–22. Even assuming the control box was mounted at an inward angle, there is no evidence to suggest that the mounting angle had any effect on the functioning of the warning light. According to Carter, turning the mounting bracket inward results in “a little less clearance.” Id. at 54:9–12. This evidence does not suggest that less clearance would impact MTIS (or specifically the warning light) functionality and is insufficient to establish a causal link between the control box mounting and the alleged failure of the warning light (which Plaintiff asserts ultimately resulted in the fire).

 

*15 Finally, in Texas the standard of care is the same in failure to warn cases brought under negligence and strict liability theories. Garrett v. Hamilton Standard Controls, Inc., 850 F.2d 253, 256 n.4 (5th Cir. 1988). The Fifth Circuit noted in Sprankle that courts “differ in the extent to which they find conceptual differences in failure to warn cases brought under” these theories, but concluded that the courts that recognize a distinction also recognize that “while a greater showing (i.e., the additional proof of negligence) may be required of a plaintiff suing under a negligent failure to warn theory than one suing under strict products liability theory, in no event is ‘less’ required.” Sprankle v. Bower Ammonia and Chemical Co., 824 F.2d 409, 413–14 n. 5 (5th Cir. 1987). For the same reasons discussed above, there is no evidence to support Plaintiff’s failure to warn negligence claim. The Court recommends Defendant’s motion for summary judgment regarding Plaintiff’s negligence claim be granted.

 

C. Whether res ipsa loquitor provides a presumption of defect and causation for Plaintiff’s strict liability and negligence claims

The Court considers whether Plaintiff’s res ipsa loquitor theory applies to provide a presumption of defect and causation. “The rule of res ipsa loquitur allows an inference of negligence, absent direct proof, only when injury would ordinarily not have occurred but for negligence, and defendant’s negligence is probable.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 604 (Tex. 2004) (concurring opinion). Plaintiff contends the nature and character of the loss and resulting damages would not have ordinarily occurred in the absence of negligence.

 

There are two requirements a plaintiff must show before the doctrine of res ipsa loquitur can apply to his claims. First, the plaintiff must show the character of the accident is such that it ordinarily would not occur in the absence of negligence. Soto v. Texas Indus., Inc., 820 S.W.2d 217, 219 (Tex.App.–Fort Worth 1991, no writ). Second, the instrumentality causing the accident must be shown to have been under the “sole management and control of the defendant.” Parsons v. Ford Motor Co., 85 S.W.2d 323, 332 (Tex.App.–Austin 2002). “The first element ensures there is support for the inference of negligence and the second supports the inference that defendant was the negligent party.” Id.

 

According to Plaintiff, the MTIS’ failure in its essential purpose to warn Mr. Burris of the tire failure indicates the system malfunctioned, satisfying the first prong of the res ipsa loquitor. Regarding the second prong, Plaintiff asserts it made no modifications to the MTIS’ control unit or to its placement. Although Plaintiff acknowledges it replaced the tires and recalibrated the pressure setting to an appropriate setting for the new tires, Plaintiff maintains there is no evidence that the control unit of the MTIS itself was “meddled with” or modified, thus satisfying the second prong of the doctrine.

 

Regarding the first element, Plaintiff has not produced any evidence showing the character of the accident is such that it ordinarily would not have occurred in the absence of negligence. Without expert testimony to the contrary, a blowout could occur for various reasons, one of which might be the air pressure. There is no indication that the tire failure resulted from a leak in tire pressure, which is what the MTIS system is designed to address. Even though Mr. Furber states the MTIS system should have alerted the driver to the tire failure by illumination of a light, there is no expert testimony stating the MTIS system was designed to alert the driver to this type of tire failure. Nor is there evidence suggesting the light’s not illuminating could have caused or prevented the cause of the fire. As noted above, there is no evidence Burris would have pulled over any sooner if the light had come on, especially when he testified he heard, felt, and saw the tire failure.

 

*16 Turning to the second element, the evidence fails to show the tire inflation system was under the sole management and control of Defendant as required. On November 16, 2009, Plaintiff purchased the trailer from Defendant, including the MTIS system which had been installed by Defendant as an add-on pursuant to Plaintiff’s request. Plaintiff’s records reflect it owned and operated the trailer over twenty-three months prior to the incident. Plaintiff’s operation included the replacement of eight tires and the disconnection and reconnection of the hoses to the MTIS system in order to remove the tires (Best Depo. at 66:4–16). Plaintiff also recalibrated the pressure setting to an appropriate setting for the new tires. Defendant lacked exclusive or sole control over the instrumentality in question.

 

Although the possibility of other causes does not have to be completely eliminated, their likelihood must be so reduced that the jury can reasonably find by a preponderance of the evidence that the negligence, if any, lies at the defendant’s door. Ford Motor Co., 135 S.W.3d at 604. This cannot be said based on the facts involved in this case. The Court, having viewed the evidence in light most favorable to Plaintiff, finds res ipsa loquitor does not apply in this case.

 

D. Whether there are genuine issues of material fact regarding Plaintiff’s breach of implied warranty of merchantability and fitness for a particular purposes claims

 

1. Plaintiff’s allegations

 

Plaintiff further alleges as follows:

 

When Great Dane sold the trailer equipped with the air tire pressure monitoring system, it impliedly warranted that the trailer and the air tire pressure monitoring system installed on the trailer was of merchantable quality and would properly and safely operate without causing damage to its intended and foreseeable uses.

 

When Great Dane sold the trailer equipped with the air tire pressure monitoring system, it impliedly warranted that trailer with the installed air tire pressure monitoring system was fit for a particular purpose.

 

Am. Compl., ¶¶ 13–14. According to Plaintiff, the trailer with the installed air tire pressure monitoring system was not of merchantable quality at the time of sale, did not properly and safely operate without failing and causing damages, and was not fit for its particular purpose. Plaintiff alleges the MTIS installed on the trailer was dangerous for the intended and reasonably foreseeable use which could be contemplated by the ordinary consumer who purchased it with ordinary knowledge common to the community as to its characteristics. Id. at ¶ 15.

 

2. Plaintiff’s breach of the implied warranty of merchantability claims

To prevail on a breach of the implied warranty of merchantability, a plaintiff must prove that: (1) the defendant sold or leased the product to the plaintiff; (2) the product was unmerchantable; (3) the plaintiff notified the defendant of the breach; and (4) the plaintiff suffered injury. Purcel v. Advanced Bionics Corp., 2010 WL 2679988, *6 (N.D. Tex. 2010). “A plaintiff in an implied merchantability case must prove that the good complained of was defective at the time it left the manufacturer’s or seller’s possession.” Hayles, 82 F.Supp.2d at 659 (internal citations omitted). In the context of an implied warranty of merchantability case, the word “defect” means a condition of the goods that renders them unfit for the ordinary purposes for which they are used because of a lack of something necessary for adequacy. Plas–Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 444 (Tex. 1989).

 

The Court has already found Plaintiff has not presented summary judgment evidence controverting Defendant’s evidence that the MTIS system as installed was not defective As there is no evidence that the tire inflation system (or any other part of the trailer) was defective, Plaintiff’s breach of implied warranty claims fail as a matter of law. Hayles, 82 F.Supp.2d at 659–60 (holding that a failure to present competent summary judgment evidence establishing a defect for a strict liability claim precludes implied warranty claims as a matter of law).

 

*17 Even if Plaintiff’s implied warrant claims were not precluded, to establish the MTIS system was unmerchantable, Plaintiff must prove that it was unfit for its ordinary purposes. Specifically, Plaintiff must prove that Defendant’s actions made the product (MTIS) inadequate for its intended purpose or unreasonably dangerous.

 

According to Plaintiff’s expert, Defendant installed the MTIS system on the trailer pursuant to Meritor’s instructions. Plaintiff used it for close to two years without any complaints. There is no indication Defendant had prior knowledge of the tire inflation system’s inadequacy or of it being unreasonably dangerous. In addition, there is no evidence that Defendant’s installation made the tire inflation system inadequate or unreasonably dangerous for its intended purpose (which was to warn of a reduction in tire pressure). Burris testified the indicator light had illuminated at other times while he was driving. (Burris Depo. at 10:25–11:2). He was not sure the light would light up in the case of a blown out tire. (Id. at 10:20–24).

 

As explained above, there is no evidence to suggest that control box mounting installation rendered the MTIS system unreasonably dangerous or inadequate, or that Defendant knew from prior dealings with Meritor that its installation procedures in any way made the MTIS unreasonably dangerous or inadequate for its intended purpose of detecting and compensating for a leak in tire pressure. For these reasons, the Court recommends Defendant’s motion for summary judgment regarding Plaintiff’s implied warranty of merchantability claim be granted.

 

3. Plaintiff’s breach of the implied warranty of fitness for a particular purpose claims

“To establish a breach of the implied warranty of fitness for a particular purpose, the plaintiff must establish that (1) the seller had reason to know any particular purpose for which the goods were required at the time of contracting and (2) the buyer was relying on the seller’s skill or judgment to select or furnish suitable goods.” Bass, 669 F.3d at 516, quoting Hartford v. Lyndon–DFS Warranty Servs., Inc., 2010 WL 2220443, *10–11 (Tex.App.–Houston [1st Dist.] May 28, 2010, no pet.). The “particular purpose,” however, must be a particular non-ordinary purpose. Chandler v. Gene Messer Ford, Inc., 81 S.W.3d 493, 503 (Tex.App.–Eastland 2002, pet. denied).

 

Plaintiff does not present any evidence suggesting that Defendant had reason to know of some particular non-ordinary purposes for which Plaintiff intended to use the trailer with the installed MTIS system. The Court recommends Plaintiff’s breach of implied warranty of fitness for a particular purpose be granted.

 

V. RECOMMENDATION

Based on the foregoing, it is

 

RECOMMENDED that Defendant Great Dane Limited Partnership’s Motion for Summary Judgment (Docket Entry # 41) be GRANTED.

 

RECOMMENDED that Plaintiff’s above-entitled and numbered cause of action be DISMISSED WITH PREJUDICE.

 

Within fourteen (14) days after receipt of the magistrate judge’s report, any party may serve and file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C.A. 636(b)(1)(C). Failure to file written objections to the proposed findings and recommendations contained in this report within fourteen days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings and recommendations and from appellate review of factual findings accepted or adopted by the district court except on grounds of plain error or manifest injustice. Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th Cir. 1988). It is further

 

*18 ORDERED that Defendants’ Motion for Leave to Correct and Substitute Certain Exhibits to (1) Defendants’ Motion for Summary Judgment and (2) Defendant’s Motion to Exclude Certain Expert Testimony of Plaintiff’s Expert Frank J. Miller, Jr. (Docket Entry # 44) is hereby GRANTED.

 

SIGNED this 16th day of August, 2013.

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