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Walls v. Prudential Property & Casualty Insurance Company6/23/2000
to prove, as a matter of law, either lack of causation or lack of duty. In his affidavit, Watson opines as to the producing causes of Kevin Walls' death, two of which related to the condition of the fan. Watson states:
In my opinion the producing causes of the accident were:
. . . the electrical alteration of the line cord of the fan by the removal of the grounding pin by persons unknown at an unknown time . . . the damage to the yellow, field coil wire of the motor...Through photographs taken of the fan prior to the accident, but after it left North Dallas, Watson was able to establish the yellow wire was intact. However, Watson admits the ground pin was removed by an "unknown person at an unknown time." Watson does not establish the ground pin was intact at the time it was delivered to the Walls' residence. We conclude Watson's affidavit raises a fact issue as to whether the fan was unreasonably dangerous when it was delivered by North Dallas. North Dallas has not conclusively negated the causation element of the Walls' negligence claim. We sustain point of error six. North Dallas also moved for summary judgment on the ground of absence of duty. The determination of whether a legal duty exists is generally a question of law for the court. C & R Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex. 1966). This determination is based on the facts surrounding the occurrence in question. Webb v. City of Lubbock, 380 S.W.2d 135 (Tex. Civ. App.--Amarillo 1964, writ ref'd n.r.e.). Therefore, the existence of a duty is a question of law only when all of the essential facts are undisputed. Bennett v. Span Industries, Inc., 628 S.W.2d 470, 474 (Tex. App.-Texarkana 1981, writ ref'd n.r.e.). When the evidence does not conclusively establish the pertinent facts or reasonable inferences to be drawn therefrom, the question becomes one of fact for the jury. Id. A particularly appropriate case for such a rule is one where knowledge and forseeability are important elements of duty. Carlisle v. J. Weingarten, Inc. 137 Tex. 220, 152 S.W.2d 1073 (1941); Southwestern Portland Cement Co. v. Bustillos, 216 S.W. 268 (Tex.Civ.App._El Paso 1919, no writ). Because Watson's affidavit raises a fact issue as to whether North Dallas knew or should have know the fan was defective, dangerous, or both, duty, in this case is a question for the jury. We sustain point of error seven
Because North Dallas did not establish it was entitled to judgment as a matter of law. We sustain the Walls' fifth point of error contending generally that the trial court erred by granting summary judgment. We reverse summary judgment at to North Dallas and remand to the trial court for further proceedings.
Accordingly, we affirm summary judgment with regard to Prudential and reverse and remand as to North Dallas.
Do Not Publish
Tex. R. App. P. 47
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