NO. 07-00-0344-CV

	IN THE COURT OF APPEALS

	FOR THE SEVENTH DISTRICT OF TEXAS

	AT AMARILLO

	PANEL D

	JANUARY 17, 2001

	______________________________

	JEREMY JAMES WILSON, APPELLANT

	V.

	CINCINNATI, INC., APPELLEE

	_________________________________

	FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

	NO. 98-503-161; HONORABLE J. BLAIR CHERRY, JR., JUDGE

	_______________________________

Before BOYD, C.J., and QUINN and REAVIS, JJ.

	Jeremy James Wilson appeals from a summary judgment that he recover nothing

by his action against Cincinnati, Inc.  By three issues, Wilson contends the trial court erred

in granting summary judgment in favor of Cincinnati because (1) there is evidence of a

design defect in Cincinnati’s Laser Center,  (2) there is evidence of a marketing defect in

the Laser Center, and  (3) the evidence does not establish as a matter of law the alteration of the Laser Center was the sole proximate cause of his injuries.  Based upon the rationale

expressed herein, we affirm. 

	On August 21, 1996, Wilson was employed by Scott Manufacturing as a machine

operator.  One of the machines that Wilson used in the scope of his employment is the CL-

7 CNC Laser Center, which was designed and manufactured by Cincinnati.  The Laser

Center is a large machine that is used to cut metal of varying thickness into various shapes

with the use of a laser.  The laser itself is attached to a gantry that moves back and forth

and side to side in order to move the laser into position to cut each piece of sheet metal. 

As originally purchased by Scott Manufacturing, the Laser Center was equipped with a

safety mat installed on the floor alongside the machine, which, when stepped on, would

stop the movement of the gantry.  This fail-safe mechanism on the safety mat protected

the operator of the Laser Center from either being struck by the gantry or from being

pinned between the gantry and the control panel. 

	The Laser Center was designed to allow either water or a coolant to flow in a

regulated manner to cool the metal being cut by the laser.  The water or coolant would then

run into a trough on the side and into a drain.  Sometimes, however, the drain would get

clogged, causing the liquid to spill over onto the floor getting the safety mat wet and thus

triggering the fail-safe mechanism which would shut the machine down.  Approximately

one month before Wilson’s accident, this drain became clogged and production was shut down.  To keep production moving, the owner of Scott Manufacturing and one of his

employees decided to bypass the safety mat and the protections it afforded by using

alligator clips to rewire and disable the safety mat.  

	On the day of his injury, Wilson leaned over the Laser Center to make certain that

the laser was cutting a piece of metal correctly.  When he noticed the gantry moving toward

him, he put both of his feet on the safety mat in an attempt to stop its movement. 

However, the gantry did not stop and Wilson suffered severe injuries as a result of his body

being crushed between the gantry and the control panel.  

	Wilson now challenges the summary judgment granted in favor of Cincinnati

contending that there is evidence of (1) a design defect, (2) a marketing defect, and (3) that

the alteration by Scott to the Laser Center was not the sole proximate cause of his injuries. 

We first set forth the applicable standard of review.

 STANDARD OF REVIEW  

	In reviewing a summary judgment, this Court must apply the standards established

in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985), which are: 

1.  The movant for summary judgment has the burden of showing that

there is no genuine issue of material fact and that it is entitled to

judgment as a matter of law. 

2.  In deciding whether there is a disputed material fact issue

precluding summary judgment, evidence favorable to the non-movant

will be taken as true. 

3.  Every reasonable inference must be indulged in favor of the

non-movant and any doubts resolved in its favor.

	For a party to prevail on a motion for summary judgment, he must conclusively

establish the absence of any genuine question of material fact and that he is entitled to

judgment as a matter of law.  Tex. R. Civ. P. 166a(c).  A movant must either prove all

essential elements of his claim, MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986), or negate

at least one essential element of the non-movant's cause of action.  Randall's Food

Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).  Once the movant has

established a right to summary judgment, the non-movant has the burden to respond to

the motion for summary judgment and present to the trial court any issues that would

preclude summary judgment.  City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 

671, 678 (Tex. 1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston [1st Dist.] 1996, writ denied).  When a summary judgment does not specify or state the grounds

relied on, the summary judgment will be affirmed on appeal if any of the grounds presented

in the motion are meritorious.  Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989);

Insurance Co. Of N. Am. v. Security Ins., 790 S.W.2d 407, 410 (Tex.App.--Houston [1st  Dist.] 1990, no writ). 

	By this appeal, Wilson contends that the Laser Center has a design defect, a

marketing defect , and also that the alteration by Scott to the Laser Center was not the sole

proximate cause of his injuries.  The Supreme Court has adopted the Restatement

(Second) of Torts section 402A (1965) as the rule applicable to defective products and

imposes liability on the sellers of defective products that are unreasonably dangerous and

cause damage to a user or consumer.   See Restatement (Second) of Torts § 402A (1965); Armstrong Rubber Co. v. Urquidez, 570 S.W.2d 374, 375-76 (Tex. 1978).  Section 402A

defines the cause of action as:

	(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.

Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 613 (Tex. 1996) (quoting from

Restatement (Second) of Torts § 402A (1965)). 

	 The law is clear that under this cause of action the product must reach the user or

consumer without substantial change in the condition from which it left the manufacturer's or seller's possession.  See Restatement (Second) of Torts § 402A(1)(b) (1965); Armstrong Rubber Co., 570 S.W.2d at 375.  Therefore, this Court must focus upon whether the Laser Center was defective and unreasonably dangerous when it left the control of Cincinnati and

whether Wilson’s injuries were proximately caused by the defective condition.  We first

consider the issue of proximate cause.

	The matter of proximate cause is ordinarily a question of fact for the jury to

determine, Najera v. Great Atl. & Pac. Tea Co., 146 Tex. 367, 207 S.W.2d 365, 367

(1948), but may, under limited circumstances, be a question of law where evidence is

without a material dispute and where only one reasonable inference may be drawn

therefrom.  Rodriguez v. Moerbe, 963 S.W.2d 808 (Tex.App.--San Antonio 1998, pet.

denied).  The two elements of proximate cause are cause in fact and foreseeability. 

Campos v. Ysleta Gen. Hosp., Inc., 836 S.W.2d 791, 794 (Tex.App.--El Paso 1992, writ

denied).  Cause in fact denotes that the negligent act or omission was a substantial factor

in bringing about the injury and without which no harm would have occurred.  Id.  Foreseeability means that the actor, as a person of ordinary intelligence, should have

anticipated the dangers that his negligent act created for others.  Id.

	 An alteration must be substantial in order to relieve the manufacturer or seller of

liability, and not every change made to a product after it leaves the manufacturer will

suffice to preclude liability.  Generally, only alterations or modifications not reasonably

foreseeable by the manufacturer or seller are sufficient to preclude imposition of liability. 

Ford Motor Co. v. Russell & Smith Ford Co., 474 S.W.2d 549, 556 (Tex.Civ.App.--Houston [14th Dist.] 1971, no writ).  A substantial change or alteration is defined as meaning that the configuration or operational characteristics of the product are changed or altered by the

affirmative conduct of some person in a manner that the defendant could not have

reasonably foreseen would occur in the intended or foreseeable use of the product.  See id.1   

	If the injury is caused by a substantially altered product as the result of the alteration

rather than a defect existing at the time of manufacture, then the manufacturer is not liable

for the injury.  In other words, the post-sale conduct of the user may be so unreasonable

and unusual that the imposition of liability upon the manufacturer would produce an unfair

result.  USX Corp. v. Salinas, 818 S.W.2d 473, 490 n.16 (Tex.App.--San Antonio 1991, writ

denied).

	Such is the case here.  The facts show that the Laser Center was not in the same

condition as it was when it left Cincinnati’s control and had been significantly altered

through the re-wiring of the safety mat.  From Cincinnati’s viewpoint, it was not foreseeable

that someone would remove the protections afforded by the fail-safe mechanism on the

safety mat.  Nor would it be fair to impose liability upon the Cincinnati here, especially since

Cincinnati had previously warned Scott Manufacturing of the dangers associated with

operating the Laser Center without a safety mat in good working condition.  Indeed, the only reasonable inference that can be drawn from this accident is that Wilson’s injury would

not have occurred but for the re-wiring of the safety mat.  Therefore, we overrule appellantWilson’s

third

point

of

errorissue and hold that the sole proximate cause of Wilson’shis injuries was the re-wiring of the safety

mat by Scott Manufacturing.  As such, our consideration of Wilson’s first two issues are

pretermitted by our disposition of his third issue.

	Accordingly, the judgment of the trial court is affirmed.

							Don H. Reavis

						    	     Justice

Do not publish.