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Olympic Arms12/30/2004
at trial, and Schuetz testified elsewhere that he had depended on his suppliers for quality control of the steel.
Olympic took the position at trial that the steel was not defective, and Green and O'Day both took the position that the steel was defective. If the jury disagreed with Olympic and agreed with Green and O'Day, then Olympic was entitled to have the jury examine and compare responsibility between it and the settling defendants for the faulty steel. See Tex. Civ. Prac. & Rem. Code Ann. § 3.011. The jury had evidence from which it could conclude, and from which Olympic could frame a closing argument, that part of the responsibility for Green's injuries rested with the steel suppliers. We hold that legally sufficient evidence exists to support the submission of a comparative causation issue. Thus, the trial court erred in not submitting the issue of EMJ and Nortec's proportionate responsibility. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 4.05, 2003 Tex. Gen. Laws 847, 856 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 33.011(5) (Vernon Supp. 2004-2005)).
With regard to Olympic's complaint that Green's name also should have been submitted to the jury, the record indicates that neither Olympic, O'Day, nor Green offered evidence sufficient to raise an issue as to Green's comparative fault for the accident. Moreover, Olympic provides neither argument nor record citations to support its assertion that Green caused the barrel explosion. See Tex. R. App. P. 38.1(h). Accordingly, we hold that the trial court did not err in refusing to submit Green's responsibility for comparative causation purposes.
A reversal is warranted if the trial court denies a proper submission of a valid theory of recovery raised by the pleadings and the evidence, and the error probably caused the rendition of an improper judgment. Tex. R. App. P. 44.1; see Lone Star Gas Co. v. Lemond, 897 S.W.2d 755, 756--57 (Tex. 1995); Exxon Corp. v. Perez, 842 S.W.2d 629, 631 (Tex. 1992). We must therefore determine whether the error probably caused the rendition of an improper judgment.
A liable defendant is generally responsible only for the percentage of damages found by the trier of fact equal to that defendant's percentage of responsibility with respect to those damages. See Act of May 18, 1995, 74th Leg., R.S., ch. 136, § 33.013, 1995 Tex. Gen. Laws 971, 974 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 33.013 (Vernon Supp. 2004-2005)). Here, the jury attributed 50% of the cause of Green's injuries to Olympic and 50% to O'Day. Had it properly been instructed, the jury could have attributed part of the causation placed on Olympic to EMJ, to Nortec, or to both. The jury heard legally sufficient evidence that the settling parties' product could have contributed to the cause of Green's injuries; thus, we cannot conclude that the trial court's failure to submit EMJ's and Nortec's responsibility was harmless error. See Tex. R. Civ. P. 44.1.
We hold that the trial court's error in failing to submit the settling co-defendants' responsibility warrants reversal. We now turn to Olympic's legal sufficiency complaints to evaluate whether we should render judgment or, instead, remand the cause for a new trial based upon the charge error.
IV. Legal Sufficiency of the Evidence--Green's Claims
Olympic contends that the trial court erred in denying its motion for judgment notwithstanding the verdict on Green's products liability, breach of warranty, and negligence claims. We review the denial of a motion for judgment notwithstanding the verdict as a challenge to the legal sufficiency of the evidence. See Moore v. Bank Midwest, N.A., 39 S.W.
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