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Olympic Arms12/30/2004
In its appeal of this products liability case, appellant, Olympic Arms, Inc. ("Olympic"), appeals a judgment on a jury verdict in favor of appellee, Phillip Green. Green sued Olympic and its co-defendant, Kerry O'Day, for left hand injuries that Green sustained when a rifle barrel---which Olympic had manufactured and O'Day had assembled---exploded. On appeal, Olympic contends that the Civil Practice and Remedies Code required the trial court to submit jury questions that included two settling parties and the plaintiff, so that the jury could compare Olympic's causation with theirs. Olympic further contends that (1) no evidence, or alternatively, insufficient evidence supports Green's claims against Olympic; (2) Olympic conclusively established its substantial alteration defense as a matter of law; (3) the trial court erred in refusing to instruct the jury as to Olympic's defensive theories; (4) the trial court erred in admitting evidence from Green's experts and in excluding evidence supporting Olympic's defensive theories; and (5) the trial court erred in denying Olympic's motion for judgment notwithstanding the verdict as to the jury's failure to award Olympic its attorney's fees and expenses. In his appeal, Green asserts one point of error, in which he contends that the trial court erred in its calculation of pre-judgment interest.
We conclude that the trial court erred in refusing to submit a comparative causation issue to the jury that included the two settling co-defendants and that the error is harmful. We further conclude that legally sufficient evidence supports the jury's verdict, and Olympic is not entitled to rendition of judgment on Green's claims. We therefore reverse the judgment and remand the case for a new trial.
I. Facts
In January 1998, Green met O'Day, a gunsmith, at the Houston Safari Show. O'Day enjoyed a reputation for making highly accurate, lightweight guns. In March 1998, Green contracted with O'Day to construct a custom .300 Weatherby Magnum rifle. O'Day ordered the gun barrel for the rifle from Olympic, prepared the barrel and its other component parts, and assembled the firearm.
Olympic sells gun barrel blanks to gunsmiths like O'Day, who then incorporate the Olympic barrels into custom rifles. The gun barrel blank is a steel tube that has been bored, rifled, and contoured to Olympic's specifications. A gunsmith consumer chooses a barrel from the options that Olympic makes available in its catalog. Olympic offers six different barrel contours, including an "Ultra Light Contour"---the one O'Day purchased for Green's rifle.
In July 1998, Green retrieved the rifle and six boxes of hand-loaded ammunition from O'Day and test-fired it. Dissatisfied with the accuracy of the rifle, Green returned it to O'Day, who in turn returned it to Olympic. Olympic replaced the barrel with another Ultra Light Contour barrel.
In August 1998, Green again retrieved the rifle, with the replaced barrel, and test-fired it. Satisfied with its accuracy, Green took it with him on a Canadian hunting trip later that month. Upon arrival, he planned to test-fire the rifle to ensure that its accuracy had not been affected during transit. Green loaded the rifle and pulled the trigger. The rifle barrel exploded, severing his left thumb and injuring two fingers on his left hand.
II. Procedural History
In addition to suing Olympic and O'Day, Green sued O'Day's company, Match Grade Arms & Ammunition, Inc. ("Match Grade"); Olympic's steel supplier, Earle M. Jorgenson Company ("EMJ"); and EMJ's supplier, Nortec Specialty Steels Company, Inc. ("Nortec"). Green alleged claims for design, manufacturing, and mark
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