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Stewart v. Transit Mix Concrete & Materials Co.12/16/1998
James and Frances Stewart appeal a summary judgment granted in favor of Transit Mix Concrete and Materials Company on their causes of action for failure to warn in strict liability, negligence, deceptive trade practices, and breach of warranties. Transit Mix filed a no evidence summary judgment motion challenging the element of causation.
The Stewarts contend the evidence raises a genuine issue of material fact on causation. The Stewarts also contend the trial court erred in not awarding them sanctions and attorney's fees against Transit Mix. Lastly, the Stewarts contend the trial court erred in granting summary judgment on each of their causes of action based on causation because a material fact issue was raised.
There was summary judgment proof showing the following facts. On February 25, 1997, James Stewart went to Transit Mix to purchase gravel or a less expensive alternative to lay a foundation for his driveway. Stewart spoke with an employee of Transit Mix, Andrew Grier, who recommended either crushed limestone or a product called "washout." Stewart purchased washout.
Washout is concrete, which contains cement, that is left over after a commercial or residential construction job . The remaining concrete is washed out of the mixer truck. Water is added, and it is placed into a pit where it is left for a day or more. Transit Mix scrapes the washout from the pit with a front-end loader and sells it to customers. Grier described it as a gray, clumpy material with sand and rock when it is dry.
Cement has an alkali base which can cause burns. Calcium chloride, which is often mixed with concrete to accelerate the setting time, can also cause burns. Stewart said Grier told him that water activates the calcium chloride. Calcium chloride is added to the concrete by customers after it is sold or prior to sale by Transit Mix upon a customer's request. There is no summary judgment proof whether calcium chloride was added in this case.
Washout was sold in bulk and was not sold in containers. Here, Transit Mix scooped up the gray clumpy material with a front-end loader and dumped it into the bed of Stewart's pickup. Transit Mix gave Stewart a numbered invoice. The invoice (Exhibit Number One) attached to the summary judgment motion contains the following language:
CAUTION! Cement powder or freshly mixed concrete, grout, or mortar may cause serious skin injury. Avoid contact with skin and wash exposed skin areas immediately with water. If any cement powder or mixture gets into the eyes, rinse immediately and repeatedly with water and get prompt medical attention.
KEEP OUT OF REACH OF CHILDREN!
The upper left hand corner contains a paragraph with a different wording not at issue on appeal. Immediately above these paragraphs is a shaded box containing the capitalized words "UNLOADING" and "CAUTION" in bold type. These words are separated by a large space within the shaded box. Beneath the paragraphs is another shaded box containing the time, date, customer's name, and ticket number. Below that shaded area is an unshaded box, followed by another shaded box that contains headings for columns reading from left to right "Quantity Ordered," "Quantity Delivered," "Product Code," "Product Description," "Unit of Measure," "Unit Price," and "Extended Price." Beneath the column entitled "Product Description" is a line containing the words "EXTRA PRODUCTS." On the next line, beneath the words "EXTRA PRODUCTS" are the words "WASH OUT PER\YARD." The remaining portion of the invoice showing the columns and lines is blank with the exception of the tax and total in the lower right hand corner under the extended price column.
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