Deborah Williams and Frank Williams v. AbilityOne Corporation d/b/a Sammons Preston and Ambulatory Products International Corporation d/b/a Trek Medical--Appeal from 150th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00278-CV

Deborah WILLIAMS & Frank WILLIAMS,

Appellants

v.

ABILITYONE CORP. d/b/a Sammons Preston and Ambulatory Products International Corp. d/b/a Trek Medical,

Appellee

From the 150th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CI-11707

Honorable David A. Berchelmann, Jr., Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: December 7, 2005

AFFIRMED

In the underlying litigation, Deborah and Frank Williams sued AbilityOne Corp. for damages resulting from injuries Deborah Williams suffered when a leg bracket of a bedside commode failed while she was assisting a patient to the commode. The Williamses asserted claims for negligence in placing a defective product into the stream of commerce, negligence in the design and manufacture of the product, and strict liability due to a manufacturing defect and design defect in the product. AbilityOne filed a no-evidence motion for summary judgment on the Williamses claims. The Williamses later abandoned their negligence and manufacturing defect causes of action and proceeded only with the design defect theory. Therefore, the only cause of action before the trial court when it considered the motion for summary judgment was the Williamses design defect claim. // The trial court granted the motion. We affirm. STANDARD OF REVIEW

We review a no-evidence summary judgment de novo by construing the record in the light most favorable to the non-movant and disregarding all contrary evidence and inferences. Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex. App. San Antonio 2000, no pet.). A party may move for a no-evidence summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). A no-evidence summary judgment motion is improperly granted when the non-movant brings forth more than a scintilla of probative evidence that raises a genuine issue of material fact. Id.; Gomez v. Tri City Cmty. Hosp., Ltd., 4 S.W.3d 281, 283 (Tex. App. San Antonio 1999, no pet.). More than a scintilla of evidence exists if the evidence would allow reasonable and fair-minded people to differ in their conclusions. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). Less than a scintilla of evidence exists if the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Id.

In one issue on appeal, the Williamses claim they presented sufficient evidence to overcome a no-evidence summary judgment under a strict products liability theory. On appeal we address only whether the Williamses brought probative evidence to defeat AbilityOne s entitlement to summary judgment on their design defect claim.

A defendant is liable in a design defect action based on proof that: (1) the product was defectively designed when sold; (2) the product was unreasonably dangerous (weighing the risk and utility) to the user; (3) the product reached the user without substantial change in the condition in which it was sold; and (4) the defective and unreasonably dangerous condition of the product caused physical harm to the user. Jaimes v. Fiesta Mart, Inc., 21 S.W.3d 301, 306 (Tex. App. Houston [1st Dist.] 1999, pet. denied). In addition, when a plaintiff alleges a design defect, he must show (1) there was a safer alternative design and (2) the defect was a producing cause of the injury. Tex. Civ. Prac. & Rem. Code Ann. 82.005(a) (Vernon 1997); Daimlerchrysler Corp. v. Hillhouse, 161 S.W.3d 541, 552 (Tex. App. San Antonio 2004, pet. filed). AbilityOne s motion for summary judgment alleged that the Williamses have no evidence that...a safer alternative design existed at the time the product was manufactured or sold. In response to AbilityOne s motion for summary judgment, the Williamses did not assert, nor offer any evidence of a safer alternative design. Because a plaintiff must show there was a safer alternative design to recover for a design defect, and there was no such showing here, we conclude the trial court did not err in granting the no-evidence motion for summary judgment on the Williamses design defect claim.

CONCLUSION

We overrule the Williamses issue on appeal and affirm the trial court s judgment.

Sandee Bryan Marion, Justice