IN THE SUPREME COURT OF
════════════
No. 02-1097
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FFE Transportation Services,
Inc., Petitioner
v.
Larry Fulgham
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On Petition for Review from the
Court of Appeals for the Fifth District of
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Argued
Justice Smith delivered the opinion of
the Court.
Larry and Debra Fulgham brought products liability and negligence claims against FFE Transportation Services, Inc. arising out of a tractor-trailer accident. The trial court granted a directed verdict in favor of FFE at the close of the plaintiffs’ case-in-chief, finding that FFE could not be held strictly liable and that there was no evidence to support the negligence claim.
The court of appeals reversed and remanded for a new trial, holding that strict products liability was applicable because the agreement between FFE and Larry constituted a lease of the relevant trailer, that expert testimony was not necessary to establish FFE’s negligence, and that there was some evidence of each of the required elements of negligence. ___ S.W.3d ___. We disagree.
In resolving this case, we conclude:
1) strict products liability is inapplicable when, as here, a company gratuitously provides a product to an independent contractor working for the company for the sole purpose of accomplishing the company’s business purposes;
2) on appeal, a trial court’s determination regarding whether expert testimony is necessary to establish negligence should be reviewed de novo;
3) the trial court did not err in finding that the standard of care for the proper inspection and maintenance of a refrigerated trailer is beyond the experience of the layman and therefore must be established by expert testimony; and
4) no probative expert testimony regarding the relevant standard of care was admitted.
Accordingly, we reverse the court of appeals’s judgment and remand to the court of appeals to consider the two points of error raised by the Fulghams that were not considered by it.
I
FFE
was in the business of transporting freight by motor vehicle. Larry Fulgham was a
long-haul trucker. On
On
Under the written contract between FFE and Larry, Larry operated his tractor and the FFE trailers assigned to him under the exclusive direction and control of FFE. As Larry testified: “You’ve got to be at a certain place at a certain time. They give you an appointment time, delivery time, and a time that you’re supposed to pick the load up.” FFE instructed Larry which trailer to pick up, and the trailer was usually different each time. The contract specified that Larry could not use the tractor he furnished to carry FFE loads to perform work for other carriers. Bill Robinson, FFE’s director of equipment and maintenance, testified that this was FFE’s standard policy. The contract also stated that FFE “shall have exclusive possession, control and use” of Larry’s tractor. At oral argument, the Fulghams’ counsel acknowledged that Larry was authorized only to use FFE’s trailers for the purpose of undertaking the deliveries that FFE had dispatched to him.
Under the terms of the contract, Larry was entitled to seventy percent of the freight bill for each delivery he completed. The court of appeals concluded that the contract constituted a lease of the relevant trailer, asserting that Larry paid thirty percent of the transport fee to FFE as rent. ___ S.W.3d at ___.[3] However, under the contract, Larry was not required to pay any fee or other charge to FFE for the use of its trailers. Instead, FFE paid Larry for both his personal services and the exclusive use of his tractor.
In early 1998, FFE arranged for loads to be carried on approximately 600 trucks driven by owner-operators like Larry and on about 1,300 company trucks driven by FFE employees. The owner-operators were independent contractors who provided their own tractors. Significantly, FFE did not lease or otherwise provide any of its 3,000 trailers for use in carrying loads other than those that FFE contracted to transport. Neither Larry nor the other drivers for FFE had any direct contractual relationships with FFE’s customers. Instead, all of their assignments for hauling commodities originated with FFE. Larry, like the other drivers for FFE, took temporary possession of various FFE trailers, including the one at issue here, incident to his exclusive work for FFE.
It is undisputed that the specific trailer in this case, designated by FFE as trailer number 16634, was never released by FFE to anyone except its employees and independent contractors for the sole purpose of transporting FFE loads. FFE was the owner and end user of trailer number 16634, and Larry used it only when acting as FFE’s paid agent.
In their Third Amended Original Petition, the Fulghams alleged that trailer number 16634 was defective because the bolts and plates anchoring the upper coupler assembly to the trailer were missing or weak or both due to rust and inadequate torque.[4] The Fulghams also alleged that FFE failed to timely and properly inspect and maintain the trailer, and more specifically, its upper coupler assembly.
After the Fulghams rested, FFE orally moved for a directed verdict. FFE asserted that there was no evidence of duty, breach, or causation to support the negligence claim, and that the Fulghams had failed to present the necessary expert testimony. As to the strict liability claim, FFE asserted that there was no evidence that it had placed the trailer into the “stream of commerce.” With regard to the Fulghams’ negligence claim, the trial court concluded that expert testimony was required to establish the applicable standard of care, and that the Fulghams had not presented any probative expert testimony. The trial court also determined that the Fulghams’ products liability claim should not go to the jury. Accordingly, the trial court granted FFE’s motion for directed verdict.
The
court of appeals reversed and remanded, concluding that expert testimony on the
standard of care and breach of the standard of care was not necessary to
establish negligence in this case because “the inspection and detection of
loose and rusty bolts connecting parts of a trailer” was not a factual inquiry
beyond the experience of the layman. ___
S.W.3d at ___. Additionally, the court
concluded that products liability was applicable because the contract between
FFE and Larry was a “lease” through which FFE had introduced the trailer into
the “stream of commerce.”
II
In
McKisson v. Sales Affiliates, Inc., 416
S.W.2d 787, 788B89 (
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
Restatement (Second) of Torts § 402A(1) (1965). Even though section 402A literally applies only to the sale of a defective product, McKisson concluded that strict products liability would apply to a product that was given free of charge, if the product were given “with the expectation of profiting therefrom through future sales [of the product].” McKisson, 416 S.W.2d at 792.
To
incur strict liability in
In
Urquidez, the widow of a test driver employed
by an independent tire testing company unsuccessfully sought to hold Armstrong
Rubber Company, a tire manufacturer, strictly liable for the death of her
husband due to a tire blowout. The
specific tire that blew out was “never sold and, more importantly, never
entered the stream of commerce,” though it was identical to thousands of other
tires that had been placed in the “channels of commerce” by Armstrong
Rubber.
Finally,
two federal courts applying
We
now consider how this case fits with previous
FFE
was not in the business of selling or leasing its trailers to “ordinary users
or consumers” per Urquidez, 570 S.W.2d at 376,
but instead used its trailers solely for its own business purposes. For purposes of section 402A, FFE was the end
user and consumer of trailer number 16634.
Like Armstrong Rubber in Urquidez, FFE
“never released the [allegedly defective product] to an ordinary user or
consumer within the meaning of the Restatement.”
In
their briefing, the Fulghams cite four cases that we
discussed and distinguished in Urquidez. See id. at 376B77. We distinguished those cases by noting that
the plaintiffs in the cases were all customers of seller-defendants, while
neither Mr. Urquidez nor his employer was a customer
of Armstrong Rubber, which neither sold nor leased the specific tire that was
alleged to be defective.
Based on the foregoing, we conclude that the trial court properly dismissed the Fulghams’ strict products liability claim.
IV
FFE asserts that the court of appeals erred in not granting deference to the trial court’s determination that an expert witness was necessary to establish the Fulghams’ negligence claim. In reversing the trial court on this issue, the court of appeals did not state whether it applied a de novo or abuse of discretion standard when reviewing the trial court’s determination regarding the necessity of expert testimony.
There
is no
In
response, the Fulghams assert: “The determination
whether expert testimony is necessary is not an admissibility of evidence
question, which admittedly would be reviewed under an abuse of discretion
standard, but a question of what legal weight should be given to the non-expert
evidence in the record. This is a
question of law . . . .” We agree and
therefore conclude that de novo is the appropriate standard of review in this
context. See Choate v. San
Antonio & A. P. Ry. Co., 44 S.W. 69, 69 (Tex.
1898) (“[I]t is elementary that whether there be any evidence or not to support
an issue is a question of law . . . .”); Barber v. Colo. Indep.
Sch. Dist., 901 S.W.2d 447, 450 (
Although we have never addressed this question, we have implicitly recognized that de novo is the proper standard of review in this context. See, e.g., Alexander v. Turtur & Assocs., 146 S.W.3d 113, 119 (Tex. 2004) (holding, after reviewing the record in a legal malpractice case, that “[w]ithout expert testimony, the jury had no direct evidence explaining the legal significance of the omitted evidence”); Texarkana Mem’l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 841 (Tex. 1997) (remanding to the trial court because, without expert testimony on medical expenses, the plaintiffs had presented no evidence in support of the trial court’s judgment); Haddock v. Arnspiger, 793 S.W.2d 948, 954 (Tex. 1990) (holding, after reviewing the evidence, that an expert was needed because the nature of the case was beyond the “common knowledge of laymen”); Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 355 (Tex. 1987) (holding that the “jurors had sufficient knowledge” without expert testimony because the standard was within the common knowledge of laymen); Rabb v. Coleman, 469 S.W.2d 384, 388 & n.2 (Tex. 1971) (holding that expert testimony is not required when the standard can be determined by a ten-year-old child). In none of these cases did we defer to the trial court’s determination regarding whether expert testimony was required; accordingly, the de novo standard has always been the standard we have implicitly applied.
Finally, our conclusion is consistent with those of other state supreme courts. For example, the Wisconsin Supreme Court has held that whether expert testimony is necessary to establish negligence is a question of law. See Netzel v. State Sand & Gravel Co., 186 N.W.2d 258, 261B62 (Wis. 1971); see also D.P. v. Wrangell Gen. Hosp., 5 P.3d 225, 228 (Alaska 2000) (“Whether expert testimony is required to show a breach of a duty of care represents a question of law to which we apply our independent judgment.”); Vandermay v. Clayton, 984 P.2d 272, 277 (Or. 1999) (“Defendant’s motion for a directed verdict raised a question of law for the trial court, namely, whether plaintiff was required to present expert testimony to establish that defendant had breached the standard of care.”); Bauer v. White, 976 P.2d 664, 666 (Wash. 1999) (“The question here is one of law. Must a patient present an expert medical opinion that unintentionally leaving a foreign body in a surgical patient violates the standard of care for physicians in this state to withstand a motion for summary judgment? Because the question is one of law, review is de novo.”). We join these other jurisdictions in reviewing de novo a trial court’s determination regarding whether expert testimony is necessary to prove a negligence claim.
V
We now review de novo the trial court’s determination that expert testimony was necessary in this case to establish the applicable standard of care.
“Expert testimony is necessary when the alleged negligence is of such a nature as not to be within the experience of the layman.” Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982) (holding that diagnosis of skull fractures is not within the experience of the layman); see also Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738 (Tex. App.CAmarillo 1999, pet. denied) (holding that inspection and repair of an aircraft engine are not within the experience of the layman); Hager v. Romines, 913 S.W.2d 733, 734B35 (Tex. App.CFort Worth 1995, no writ) (holding that operation of an aircraft and aerial application of herbicide are not within the experience of the layman).
In this case, the court of appeals reversed because it concluded that expert testimony was not necessary:
The Fulghams argue that this case is similar to the detection
and repair of a deteriorating pipeline in Scurlock
Oil Co. v. Harrell, 443 S.W.2d 334, 337 (Tex. Civ.
App.CAustin
1969, writ ref’d n.r.e.). There, the court determined that because the
owner of a pipeline had the duty of ordinary care to “protect people and
property in the vicinity of the line from the types of harm ordinarily
resulting from such line, . . . it has a duty to properly install and maintain
its lines and to avoid dangers from occurrences such as leaks and breaks in the
line.”
___ S.W.3d at ___.
In
determining whether expert testimony is necessary to establish negligence,
Few people not involved in the trucking industry are familiar with refrigerated trailers, the mechanisms for connecting them to tractors, and the frequency and type of inspection and maintenance they require. While the ordinary person may be able to detect whether a visible bolt is loose or rusty, determining when that looseness or rust is sufficient to create a danger requires specialized knowledge.[6] Therefore, the layman does not know what the standard of care is for the inspection and maintenance of the upper coupler assembly, kingpin, and base rail of a refrigerated trailer.
While the inspection and repair of an aircraft engine and the aerial application of herbicide are somewhat more complicated than the inspection and maintenance of refrigerated trailers and the mechanisms that connect them with tractors, the standard of care for inspecting and maintaining refrigerated trailers is not significantly more familiar to the layman than the equipment and techniques at issue in Turbines and Hager.
Based on the foregoing, we conclude that the trial court correctly determined that expert testimony was necessary to establish FFE’s negligence.
VI
The Fulghams assert that, even if expert testimony was necessary to establish FFE’s negligence, probative expert testimony was presented to establish the applicable standard of care.
The Fulghams point to the testimony of Bill Robinson, an expert witness for FFE at trial. Robinson testified that, in addition to inspecting each of its trailers annually,[7] FFE conducted inspections of the trailers every sixty days and that, as part of the inspections, maintenance personnel were required to visually check for loose or missing bolts, loose rivets, and excessive rust in the base rail. Robinson also testified that the relevant bolts are tightened by the trailer manufacturer at the factory and do not normally come loose. Finally, he testified that FFE utilized a computer program to maintain schedules for each trailer’s annual and 60‑day inspections and maintained a hard copy file documenting the work performed on each trailer.
The Fulghams elicited testimony from their safety expert Jim Mallory concerning the applicable standard of care. However, that part of Mallory’s expert testimony was excluded by the trial court. Outside the presence of the jury, Mallory testified that federal law required annual inspections, that he was not aware of any standard of care for inspecting and maintaining refrigerated trailers in the industry, and that inspecting a refrigerated trailer, including the upper coupler assembly, kingpin, and base rail, every sixty days would be reasonable because that is “what FFE has determined to be an adequate inspection interval.” Mallory further testified outside the presence of the jury that, in his view, every sixty days a “reasonable inspection” would, “at a minimum,” check for torque “those critical bolts, such as we are talking about in this case, the ones that attach the upper coupler to the trailer” to “see if there is some looseness evidence.” The trial court refused to admit Mallory’s testimony concerning the applicable standard of care because it determined that he did not identify a standard that was universally shared or even prevalent throughout the industry.
Without taking into account the excluded part of Mallory’s expert testimony, we agree with the trial court that the Fulghams offered no probative expert testimony on the applicable standard of care. The admitted expert testimony was probative only of the frequency and nature of the inspections that FFE actually conducted, not what a reasonably prudent operator would do.
FFE’s self-imposed policy with regard to inspection of its
trailers, taken alone, does not establish the standard of care that a
reasonably prudent operator would follow.
As a
[I]f a health care facility, in striving to provide optimum care, promulgates guidelines for its own operations which exceed the prevailing standard, it is possible that care rendered at that facility by an individual practitioner on a given occasion may deviate from and fall below the facility’s own standard yet exceed the recognized standard of care of the medical profession at the time. A facility’s efforts to provide the best care possible should not result in liability because the care provided a patient falls below the facility’s usual degree of care, if the care provided nonetheless exceeds the standard of care required of the medical profession at the time. Such a result would unfairly penalize health care providers who strive for excellence in the delivery of health care and benefit those who choose to set their own standard of care no higher than that found as a norm in the same or similar localities at the time.
Accordingly, we conclude that the Fulghams presented no probative expert testimony regarding the applicable standard of care.
For the reasons stated above, we reverse the court of appeals’s judgment. In the court of appeals, the Fulghams brought four points of error. The first asserted: “The Trial Court erred in failing to consider spoliation of the sufficiency of evidence.” The fourth asserted: “The Trial Court erred in excluding part of the testimony of Jim Mallory.” The court of appeals did not reach these points of error. Accordingly, we remand to the court of appeals for consideration of these points of error.
_________________________________
Steven Wayne Smith
Justice
Opinion delivered:
[1] Larry testified that, pursuant to FFE policy, he was required
to visually inspect a trailer before leaving a customer’s facility. On March 7th, before leaving Hillshire Farms,
Larry completed a ADriver’s Daily Vehicle Inspection Report,@ which listed all of the trailer’s major components
next to boxes that he was to mark if he observed that a component was
defective. During his inspection, he did
not note any defective components.
[2] The Afifth wheel@ is a
coupling device attached to the tractor that supports the front of the trailer
and locks the tractor to the trailer.
The Aupper coupler assembly@ is the
surface on the underside of the front of the trailer that rests on the tractor’s
fifth wheel and has a downward protruding Akingpin,@ an anchor pin at the center of the upper coupler
assembly that is captured by the locking jaws of the fifth wheel.
[3] The court of appeals stated: AThe independent contractor agreement provided that
Larry would use FFE’s trailer and pay FFE a
percentage of the load. Thus, the
agreement provided that FFE conveyed to Larry the right to use the trailer in
exchange for a percentage of the load as rent.
We conclude this agreement is a lease whereby FFE introduced the trailer
into the stream of commerce.@
[4] The Fulghams also sued
Wabash National Corporation, the manufacturer of trailer number 16634. The Fulghams
settled with
[5] Urquidez, Rourke, and the Fulghams
use the phrase Achannels of commerce.@ Urquidez also
refers to the Astream of commerce.@ FFE uses the terms Achannels of commerce@ and Acourse of commerce.@ We treat the three phrases as having
identical meaning.
[6] For example, the corrosion rate of metal varies
according to many factors, including the type of metal, pollution, salinity,
and moisture. See, e.g., Sereda, American Society for Testing
[7] Applicable federal motor carrier safety regulations
required only that trailer inspections be conducted on an annual basis. See 49 C.F.R. § 396.17 (1997).