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Sears8/24/1995
Michael Menegay ("Mike") incurred burns over 27% of his body when a propane tank stored under his gas grill exploded. The gas grill was sold by Sears, Roebuck and Company ("Sears") and manufactured by Sunbeam Corporation ("Sunbeam"). Mike and his wife sued both Sears and Sunbeam on a variety of theories, and the jury returned a verdict in their favor. The jury also found the conduct of Sears and Sunbeam constituted gross negligence. The jury assessed exemplary damages of $140,000 against Sears and $35,000 against Sunbeam. On appeal, Sears and Sunbeam challenge only the award of exemplary damages. We reverse and render the exemplary damage award against Sears and affirm the exemplary damages award against Sunbeam.
In points of error one, two, and three, appellants argue the evidence was legally insufficient to support a finding of gross negligence upon which exemplary damages could be based. Appellants argue in point of error four that it was error for the trial court to admit the video tape deposition testimony of Everett Long ("Long") because appellees failed to establish that the accident Long testified to was reasonably similar to the accident in this case.
PRIOR ACCIDENTS
Before reviewing the legal sufficiency of the evidence under points of error one through three, we will address point of error four regarding the admissibility of Long's deposition. Before evidence of prior accidents can be introduced, the proponents of the evidence must lay a predicate showing that the "earlier accidents occurred under reasonably similar but not necessarily identical circumstances." Missouri Pac. R.R. Co. v. Cooper, 563 S.W.2d 233, 236 (Tex. 1978). An instructive application of this rule can be found in Rush v. Bucyrus-Erie Co., 646 S.W.2d 298, 301 (Tex. App. -- Tyler 1983, writ ref'd n.r.e.).
Rush involved a wrongful death suit based on product liability and negligence claims. Id. at 299. Wesley Rush was a construction worker assigned to disassemble the boom of a crane manufactured by the Bucyrus-Erie Company. Id. While standing under the boom removing the splice pins to disassemble it, the boom fell on Rush and crushed him to death. Id. At trial, plaintiffs sought to introduce evidence of the other incident reports of workmen being killed while standing under the boom disassembling it. Id. The trial court refused to admit the evidence. Id.
The court of appeals reversed the case ordering a new trial because the evidence of other accidents involving workers killed while dismantling similar booms manufactured by the same company with the same type of splice pins was reasonably similar to the accident being litigated to warrant admission. Id. at 301-02. The court in Rush noted, "The requisite degree of similarity is plainly not very high." Id. at 302 (quoting Mitchell v. Fruehauf Corp., 568 F.2d 1139, 1147 (5th Cir. 1978) (citing Magic Chef, Inc. v. Sibley, 546 S.W.2d 851, 855 (Tex. Civ. App. -- San Antonio 1977, writ ref'd n.r.e.)).
In his deposition, Long testified that he received a Sunbeam propane gas grill, model 4477W, for Father's Day in June 1986. Long used the grill many times between the summer of 1986 and 1987. During this period, Long did not use the fuel tank that came with the new grill; instead, he always used the fuel tank from his old grill.
In July 1987, Long decided to fill and use the new tank that came with the Sunbeam grill. After having the tank filled, Long took it home. Long could smell fuel from the newly filled tank and left the tank outside for several days. When Long checked the tank again by smelling it and using soapy water to detect air bubbles, he determined that the tank was no longer venting.
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