NO. 07-0533 IN THE SUPREME COURT OF TEXAS AUSTIN, TEXAS DAIMLERCHRYSLER CORP. Petitioner v. YVONNE MORAN, INDIVIDUALLY, AS NEXT FRIEND OF AUTUMN RHAE MORAN AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BART MORAN, DECEASED, ALLIEDSIGNAL, INC., AND LUVH RAKHE Respondents MORAN RESPONDENTS’ REPLY TO CHRYSLER’S PETITION FOR REVIEW Filemon Vela, Jr. William R. Edwards SBN: 06465000 Rhodes & Vela, LLP William R. Edwards, III SBN: 06465010 4659 Everhart, Suite 106 John Blaise Gsanger SBN: 00786662 Corpus Christi, Texas 78411 THE EDWARDS LAW FIRM Phone: (361)688-5900 P.O. Box 480 Fax: (361)887-8010 Frost Bank Plaza, Suite 1400 (78470) Corpus Christi, Texas 78403-0480 Telephone: (361) 698-7600 Facsimile: (361) 698-7614 ATTORNEYS FOR RESPONDENTS, Yvonne Moran, Individually, as Next Friend of Autumn Rhae Moran, and as Personal Representative of the Estate of Bart Moran, Deceased i TABLE OF CONTENTS TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. CAUSATION WAS ESTABLISHED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 II. THE JURY CHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 A. Chrysler Neither Requested Nor Obtained a Product Liability Question as to AlliedSignal . . . . . . . . . . . . . . . . . 6 B. Regardless of Waiver, the Trial Court Correctly Charged the Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 III. A MOTION REMAINS PENDING IN THE COURT OF APPEALS . . . . . 13 PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 SIGNATURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 ii INDEX OF AUTHORITIES Cases American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 434, 437 (Tex. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Atascosa County Appraisal Dist. v. Tymrak, 815 S.W.2d 364, 366 (Tex. App.– San Antonio 1991), aff'd, 858 S.W.2d 335 (Tex.1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 384 (Tex. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 782 (Tex.App.-Houston [1st Dist.] 2004, no pet.) . . . . . . . . . . 7 Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 427, 432 (Tex. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Farley v. M.M Cattle Co., 529 S.W.2d 751, 756 (Tex. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Ford Motor Co. v. Cammack, 999 S.W.2d 1, 7 (Tex. App. – Houston [14th Dist.] 1998, pet. denied) . . . . . . . 5 General Motors Corp. v. Sanchez, 997 S.W.2d 584, 587 (Tex. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 In re D .S., 76 S.W.3d 512, 518 (Tex. App.– Houston [14th Dist.] 2002, no pet.) . . . . . . . . 2 J.K. and Susie L. Wadley Research Inst. & Blood Bank v. Beeson, 835 S.W.2d 689, 698 (Tex. App. – Dallas 1992, writ denied) . . . . . . . . . . . . . . . 5 Kroger Co. v. Betancourt, 996 S.W.2d 353, 356-58 (Tex. App.–Houston [14th Dist.] 1999, pet. denied) . . 7 iii Lee v. Lee, 981 S.W.2d 903, 905-06 (Tex. App.– Houston [1st Dist.] Nov 12, 1998) . . . . . 2 Loom Craft Carpet Mills, Inc. v. Gorrell, 823 S.W.2d 431, 432 (Tex. App.–Texarkana 1992, no writ) . . . . . . . . . . . . . . . 11 McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 789 (Tex. 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Meritor Automotive, Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 87-91 (Tex. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Morgan v. Compugraphic Corp., 675 S.W.2d 729, 732 (Tex. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Oser v. Wal-Mart Stores, Inc., 951 F.Supp. 115, 118-19 (S.D. Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Read v. Scott Fetzer Co., 990 S.W.2d 732, 736 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Rosell v. Central West Motor Stages, Inc., 89 S.W.3d 643, 656-57 (Tex. App.–Dallas 2002, pet. denied) . . . . . . . . . . . . . 10 Torrington v. Stutzman, 46 S.W.3d 829, 844 (Tex. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Statutes TEX. CIV. PRAC. & REM. CODE ANN. § 33.003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 TEX. CIV. PRAC. & REM. CODE ANN. § 33.011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 TEX. CIV. PRAC. & REM. CODE ANN. § 82.002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 TEX. CIV. PRAC. & REM. CODE ANN. § 82.005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 iv Rules TEX. R. CIV. P. 278 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 TEX. R. APP. P. 49.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 TEX. R. APP. PROC. 53.2(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Other Authorities RESTATEMENT (THIRD) OF TORTS – APPORTIONMENT OF LIABILITY (1999) . . . . . . 12, 13 1 SUMMARY OF ARGUMENT It is unchallenged that (1) the Gen-3 buckle is defective because it does not minimize the risk of accidental release; (2) Bart Moran wore his seat belt; and, (3) Bart Moran was ejected and killed because the Gen-3 buckle in his minivan unlatched during the wreck. The Gen-3 buckle is unique among seat belt buckles in its susceptibility to accidental release: while the release button on other seat belt buckles must be pressed below the edge of the outer cover, the Gen-3 releases before the button moves below the edge of the cover. The Gen-3 fails an industry standard test that other buckles pass, and the Gen-3 has unlatched in multiple crash tests. Chrysler engineers developed the Gen-4 buckle solely to minimize the demonstrated propensity of the Gen-3 buckle to unlatch. Given these established and uncontested facts and in the absence of evidence of any other cause, a reasonable person would conclude that, more likely than not, the defective buckle’s established pattern of releasing during collisions was the cause in fact of the buckle releasing in this collision. The court of appeals properly held that Chrysler waived its alleged charge error. Aside from the waiver, the court’s charge was proper. In a product liability case where a fact finder determines that a defect existed at the time the product left the possession of a member of the marketing chain, that member of the chain is responsible for the product defect. If the fact finder determines that the defect existed when the product left the possession of more than one member of the chain of distribution, each such member is responsible for the defect. Here, the jury determined that a product was defective when it left the possession of Chrysler, a determination that Chrysler is responsible under product liability. 1In re D .S., 76 S.W.3d 512, 518 (Tex. App.– Houston [14th Dist.] 2002, no pet.) (finding of fact not challenged on legal or factual sufficiency grounds is binding on appellate court); Lee v. Lee, 981 S.W.2d 903, 905-06 (Tex. App.– Houston [1st Dist.] Nov 12, 1998) (unchallenged fact findings binding on appellate court); Atascosa County Appraisal Dist. v. Tymrak, 815 S.W.2d 364, 366 (Tex. App.– San Antonio 1991), aff'd, 858 S.W.2d 335 (Tex.1993) (same). 25 RR 123; 6 RR 9; 7 RR 100-02; 9 RR 103-05, 109-110; 10 RR 137-39. 3In its Petition, Chrysler acknowledges that, “At trial, the principal issues were whether Mr. Moran was wearing his seat belt at the time of the accident, whether his seat belt inadvertently released during the accident, whether the seat belt was defective, and whether there existed a safer alternative design.” Pet. for Review, p. 1. 2 ARGUMENT I. CAUSATION WAS ESTABLISHED Jury Question No. 2 is an unchallenged jury finding that the Gen-3 buckle is defective because the buckle is dangerously prone to unlatching during wrecks. CR 825 (App. B to Pet. for Review). Jury Question No. 1 is an unchallenged jury finding that Bart Moran wore his seat belt immediately before the wreck. CR 824. Because DCC makes no challenge to either fact finding, the court of appeals and this Court are bound to accept as an established fact that the buckle is defective due to its propensity to unlatch during wrecks and that Bart Moran wore his seat belt as this wreck began.1 It is also uncontested that Bart Moran was killed because he was ejected during the wreck.2 The parties and experts at trial agreed that Bart Moran was ejected because he was unrestrained – the crucial question was whether he was unrestrained because he did not wear his seat belt, or because the seat belt he wore was defective and unlatched during the wreck.3 3 Gen-4 Gen-3 Causation was a given, as admitted by Chrysler’s own injury causation expert, who testified that if Mr. Moran had worn his belt, it most likely would not have released: Q: “Had Mr. Moran been wearing the available safety belt, it would have remained secure and he would have survived the crash and most probably have received no more than minor to moderate bodily injuries.” Is that correct? A. Yes, sir, that is correct. Q. Is that – as worded there, is that still your testimony? A. It is. Q. And is that based upon reasonable engineering probability? A. Yes, it is. 10 RR 138-39. The Moran family’s expert testified that both the patent literature and the Federal Motor Vehicle Safety Standards recognize unlatching due to inadvertent contact as a known risk which safety belt buckles must be designed to minimize. 6 RR 192-93; PX-85; PX-56; PX-57. Yet a visual comparison of Gen-3 to the Gen-4 buckles demonstrates that the Gen-3 fails to properly protect against the risk: 4 The Gen-3 buckle is uniquely designed so that it rises above the buckle cover instead of setting flush with the cover as on most other buckles. 6 RR 194-95. And while the release button on other buckles must be pressed below the cover to activate the release, on the Gen-3 buckle the button activates the release before it is pressed below the cover. 6 RR 194. Both the predecessor Gen-2 and the improved Gen-4 have release buttons that must be pressed below the edge of the cover to release the buckle. 5 RR 114; 6 RR 201-02. And without objection and without contradiction, the Moran family’s expert testified that this feature made the Gen-4 buckle less susceptible to accidental release. 6 RR 201-02, 208. Other evidence substantiated that the uniquely exposed release button on the Gen-3 buckle uniquely failed to protect against the risk of accidental release. Members of the automotive industry have adopted a “ball test” as an objective measure of a buckle’s propensity for inadvertent unlatching. 5 RR 103-04,135-36; 6 RR 207; 7 RR 103-09, 131. The ball test is a simple pass-fail test – a ball of specified diameter is pressed against a latched buckle, and it either stays latched or releases. 5 RR 92, 134-35; 6 RR 206. General Motors uses a 30-mm ball test. 5 RR 37-39; 6 RR 206; 7 RR 104. Ford Motor Company uses a 32-mm ball test. 6 RR 207. A buckle that passes a ball test is less likely to result in accidental release than a buckle that cannot meet the test. 7 RR 131-32 Chrysler used a 30-mm ball test to develop the Gen-2, the predecessor to the Gen-3 buckle, 5 RR 37, 40, 111-12, but for some unexplained reason “threw out” the 30-mm ball 4 PX-90 (AlliedSignal e-mail: “Chrysler’s latest design effort [on the Gen3] has thrown out the 30mm ball test requirements.”). See also, PX-89 (AlliedSignal letter: The design of the release button on the Gen3 “was based on the elimination of a 30 mm ball test from the requirements.”). 5See General Motors Corp. v. Sanchez, 997 S.W.2d 584, 587 (Tex. 1999) (plaintiffs presented circumstantial evidence to support their theory of how accident happened, even though little is known first hand about the circumstances of the accident); Farley v. M.M Cattle Co., 529 S.W.2d 751, 756 (Tex. 1975) (causation, like any other fact, may be established with circumstantial evidence); J.K. and Susie L. Wadley Research Inst. & Blood Bank v. Beeson, 835 S.W.2d 689, 698 (Tex. App. – Dallas 1992, writ denied) (causation may be established by direct or circumstantial evidence); Ford Motor Co. v. Cammack, 999 S.W.2d 1, 7 (Tex. App. – Houston [14th Dist.] 1998, pet. denied) (circumstantial evidence and inferences therefrom are sufficient basis for finding causation). 5 test when developing the Gen-3.4 Chrysler did adopt a less stringent 40-mm ball test as a design parameter for the Gen-3, 5 RR 38-39, 41, 115; 7 RR 108-09, yet the Gen3 meets neither ball test – it fails both the 30- and 40-mm ball tests. 5 RR 117-19, 122; 6 RR 207. Still more evidence substantiated that the unique design of the Gen-3 buckle made it uniquely prone to inadvertent release. During crash tests of two Chrysler vehicles originally designed with Gen-3 buckles, the Dakota and Durango, the Gen-3 buckles unlatched due to inadvertent contact, either by an appendage of the dummy or by an instrument cable. 5 RR 16-17, 25-26. In response to these buckle releases in the crash tests, the department in charge of the Dakota and Durango developed the Gen-4 by altering the cover of the buckle to better shield the release button. 5 R.R. 15-18, 22-28. The sole reason for developing the Gen-4 buckle was to prevent accidental release due to inadvertent contact. 5 RR 16-22. A plaintiff may prove his product liability case, including causation, with direct or circumstantial evidence.5 Given the uncontested facts and in the absence of evidence of any 6 other cause, a reasonable person would conclude that, more likely than not, the defective buckle’s established pattern of releasing during collisions was the cause in fact of the buckle releasing in this collision. II. THE JURY CHARGE A. Chrysler Neither Requested Nor Obtained a Product Liability Question as to AlliedSignal The court of appeals held that the plaintiffs waived their product liability cause of action against AlliedSignal by failing to submit a jury issue on whether there was a design defect in the seat belt at the time it left the possession of AlliedSignal. Slip Op., pp. 3-7. Chrysler likewise failed to obtain such a finding. At trial, AlliedSignal (not Chrysler) objected, “Also with respect to the submission of issue number four as a conditional question to issue number two, we believe that the Charge fails to submit independent responsibility of AlliedSignal.” 11 RR 14 (App. A). Assuming that this is an objection that the charge failed to ask a predicate question on whether the seat belt buckle was defective at the time it left the possession and control of AlliedSignal, which is not entirely clear, Chrysler never made such an objection. And neither AlliedSignal nor Chrysler tendered to the trial court a question concerning defect at the time the buckle left the possession and control of AlliedSignal. 11 RR 4-17 (App. A). Moreover, pleadings remain the cornerstone of any jury submission, and Chrysler did not plead any cross-claim against AlliedSignal. TEX. R. CIV. P. 278 (“court shall submit the questions ... 7 which are raised by the written pleadings”). See Kroger Co. v. Betancourt, 996 S.W.2d 353, 356-58 (Tex. App.–Houston [14th Dist.] 1999, pet. denied) (section 33.003 requires submission of settling defendant only if pleadings allege and evidence supports submission; because defendant [Kroger] filed no cross-action against settling defendant, Kroger had no pleading supporting submission of a comparative responsibility issue). Despite the lack of a cross-claim against AlliedSignal and despite its failure to ask the trial court to submit a product liability question as to AlliedSignal, Chrysler claims that it preserved error when, after AlliedSignal made six-pages worth of objections to the charge including multiple objections to the damages questions, Chrysler’s counsel threw in, “Your Honor, we join in those objections made by Mr. Crews with respect to his client AlliedSignal.” 11 RR 17. This “me too” objection was insufficient to preserve Chrysler’s claimed error that the trial court failed to submit a separate question asking whether the buckle was defective at the time it left the control and possession of AlliedSignal. C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 782 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (party cannot adopt charge objections of another party). Finally, even if Chrysler preserved error in the trial court with respect to the failure to submit a question asking if the seat belt buckle was defective at the time it left the possession and control of AlliedSignal, Chrysler did not raise it in the court of appeals: On appeal, [Chrysler] has not raised a jury charge error regarding the absence of a strict liability question as to Allied. 6See also Torrington v. Stutzman, 46 S.W.3d 829, 844 (Tex. 2000) (“plaintiffs had to show that the ... defect was a producing cause of the plaintiffs’ injuries”); American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 434, 437 (Tex. 1997) (“plaintiff must establish ‘a causal connection between [the defective] condition and the plaintiff’s injuries or damages’” and while “strict liability focuses on the condition of the product, ‘[n]egligence looks at the acts of the manufacturer’”); Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 384 (Tex. 1995) (“The care taken by the supplier of a product in its preparation, manufacture or sale, is not a consideration in strict liability.... Strict liability looks at the product itself and determines if 8 Slip Op., p. 31. See Read v. Scott Fetzer Co., 990 S.W.2d 732, 736 (Tex. 1998) (issue not raised in appellate court not considered by Texas Supreme Court); TEX. R. APP. PROC. 53.2(f) (“If matter complained of originated in trial court, it should have been preserved for appellate review in trial court and assigned as error in court of appeals.”).The court of appeals correctly held that Chrysler waived its alleged error. B. Regardless of Waiver, the Trial Court Correctly Charged the Jury Under Texas products liability law, each “member of the marketing chain is held purely vicariously liable” for the product independent of culpable conduct. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999); see also Oser v. Wal-Mart Stores, Inc., 951 F.Supp. 115, 118-19 (S.D. Tex. 1996) (under Texas law, retailers and manufacturers are jointly and severally liable for injuries caused by defective products). Under this vicarious liability, the “fault or conduct of the products defendant is not at issue” because the jury “is to compare the harm caused by the defective product” and “the liability of the members of the marketing chain should be submitted as one” with “each defendant member of the marketing chain ... liable to the plaintiff.” Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 427, 432 (Tex. 1984).6 it is defective. Negligence looks at the acts of the manufacturer and determines if it exercised ordinary care in design and production.”); Morgan v. Compugraphic Corp., 675 S.W.2d 729, 732 (Tex. 1984) (“liability is established by proving that a product was placed in the stream of commerce containing a defect which was a producing cause of the event made the basis of suit. It is this causal nexus between the conduct of the defendant and the event sued upon that is admitted by default.”); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 789 (Tex. 1967) (recognizing “a special rule applicable to sellers of products. The rule is one of strict liability, making the seller subject to liability to the user or consumer even though he has exercised all possible care in the preparation and sale of the product”). 9 The product sellers’ vicarious liability for the product is inherent in the Texas statutory law codifying products liability. Texas product liability statutes expressly mandate proof of a causal connection between the product and the harm suffered instead of requiring proof of a causal connection between a product defendant’s conduct and the harm suffered. TEX. CIV. PRAC. & REM. CODE ANN. § 82.005(a) (claimant must prove that product’s “defect was a producing cause of the personal injury, property damage, or death for which the claimant seeks recovery”). In fact, the Texas statutory codification of products liability expressly recognizes that product sellers may be liable “for all losses from a products liability suit where the seller was not at fault.” Meritor Automotive, Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 87-91 (Tex. 2001) (discussing TEX. CIV. PRAC. & REM. CODE ANN. § 82.002 which acknowledges circumstances where a product seller may be held strictly liable without reference to its own “negligence, intentional misconduct, or other act or omission”). Chrysler would invert all of this statutory law so that the claimant would now have to prove that a product defendant’s negligence, intentional misconduct, or other act or omission – instead of the product – was a proportionate cause of the claimant’s damages. 10 Moreover, the trial court’s charge was consistent with Chapter 33 of the Texas Civil Practice and Remedies Code. Section 33.003 provides: The trier of fact, as to each cause of action asserted, shall determine the percentage of responsibility, stated in whole numbers, for the following persons with respect to each person’s causing or contributing to cause in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these: (1) each claimant; (2) each defendant; (3) each settling person; and (4) each responsible third party who has been joined under Section 33.004. TEX. CIV. PRAC. & REM.CODE ANN. § 33.003 (emphasis added). To “determine the percentage of responsibility” for “each defendant” does not equate to submitting each defendant by name, so long as the defendant’s responsibility is determined. In a respondeat superior case, for example, the “trier of fact” would “determine the percentage of responsibility” for the defendant employer under section 33.003 by assigning a percentage of responsibility to the negligent employee. See Rosell v. Central West Motor Stages, Inc., 89 S.W.3d 643, 656-57 (Tex. App.–Dallas 2002, pet. denied) (“it would not be proper for an employer to be included along with the driver if its only responsibility was that of respondeat superior. Section 33.003 has not been used to require both a driver and employer to be submitted in the apportionment question in that situation.”). The employer is clearly a defendant in such a case, but the employer is not submitted by name in the proportionate responsibility question under section 33.003. 11 Likewise, in a negligent entrustment case, the “trier of fact” would “determine the percentage of responsibility” for the defendant entrustor under section 33.003 by assigning a percentage of responsibility to the negligent entrustee. See Loom Craft Carpet Mills, Inc. v. Gorrell, 823 S.W.2d 431, 432 (Tex. App.–Texarkana 1992, no writ) (“the better rule is to apportion fault only among those directly involved in the accident, and to hold the entrustor liable for the percentage of fault apportioned to the driver”). The entrustor is clearly a defendant in such a case, but the entrustor is not submitted by name in the proportionate responsibility question under section 33.003. Similarly, in a products liability case, the “trier of fact” would “determine the percentage of responsibility” for a product-defendant under section 33.003 by assigning a percentage of responsibility to the product. More than one member of the chain of distribution may be a defendant in such a case, but they are not submitted by name in the proportionate responsibility question under section 33.003. This reasoning is reinforced by the statutory definition of the term “percentage of responsibility,” which expressly anticipates that responsibility can be attributable to a party: “Percentage of responsibility” means that percentage, stated in whole numbers, attributed by the trier of fact to ... each defendant ... with respect to causing or contributing to cause in any way ... by any defective or unreasonably dangerous product ... the personal injury, property damage, death, or other harm for which recovery of damages is sought. TEX. CIV. PRAC. & REM. CODE ANN. § 33.011(4) (emphasis added). 12 This same approach is endorsed by the Restatement (Third) of Torts – Apportionment of Liability, which confirms that defendants who are only vicariously liable should not be submitted to the jury for a separate assignment of comparative responsibility: Comment j. Single measure of responsibility for imputed culpability. Even before comparative responsibility, courts grouped together vicariously liable parties when the number of liable parties affected liability.... Since the adoption of comparative responsibility, courts have held that no separate assignment of fault should be imposed on a party liable only vicariously, and it appears that this is the practice even in courts that have not had occasion to address the issue. Few comparative-responsibility statutes address this issue, but those that do support this Comment. Model statutes and commentators strongly support the rule. RESTATEMENT (THIRD) OF TORTS – APPORTIONMENT OF LIABILITY, § 7 cmt. j (1999) (citations omitted); see also Id. § 13, cmt. d (“When one or more parties is held liable solely because of the tortious acts of another actor, the factfinder should treat the actor and all such vicariously liable parties as a single entity for the purpose of assigning comparative responsibility.”). When the Restatement refers to “vicariously liable parties” who should not be submitted for a separate assignment of responsibility, the term includes all parties to whom liability is imputed by the operation of law, such as product liability defendants: Comment a. Scope. In a number of contexts, the responsibility of one actor is legally imputed to another, and vicarious liability is imposed. The most familiar is respondeat superior – the liability of a principal for the tortious acts of an agent and of a master for tortious acts of a servant.... Many statutes make the owner of an automobile liable for the tortious acts of a driver using the automobile with permission of the owner. Retailers and other nonmanufacturer sellers of products may be held strictly liable for a defect attributable to the manufacturer, in effect imposing vicarious liability on the retailer. Some statutes impose vicarious liability on parents for their children's tortious acts. 13 Id., § 13 cmt. a (citations omitted, emphasis added). The conclusion is straight forward: the jury determined that a defect in the buckle “in the Moran’s Dodge Caravan” was defective at the time it left the possession of Chrysler, which is a determination that Chrysler is responsible for injury to the whole extent the buckle is found responsible. There is no similar finding that the buckle was defective when it left the possession of AlliedSignal (and before it was “in the Moran’s Dodge Caravan”), so there is no determination of responsibility attributable to AlliedSignal. III. A MOTION REMAINS PENDING IN THE COURT OF APPEALS On May 17, 2007, the Court of Appeals rendered judgment. On May 29, AlliedSignal filed a largely unopposed motion for correction of this judgment. On June 15, the Moran family responded to AlliedSignal’s motion for correction and simultaneously sought clarification of the opinion. On June 21, the Court granted AlliedSignal’s request for correction and withdrew its earlier judgment of May 17, and rendered a new judgment. See TEX. R. APP. P. 49.5 (“After a motion for rehearing is decided, a further motion for rehearing may be filed within 15 days of the court's action if the court: (a) modifies its judgment; (b) vacates its judgment and renders a new judgment; or (c) issues an opinion in overruling a motion for rehearing.”). The Moran family’s motion for clarification remains pending on the calendar for the Court of Appeals, which renders Chrysler’s petition premature 15 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing was forwarded on the 9th day of August, 2007, via U.S. Certified Mail, Return Receipt Requested to: Mr. Thomas F. Nye Vidaurri, Lyde, Gault & Quintana, LLP 717 Everhart Rd., Suite A Corpus Christi, Texas 78411 Attorneys for Defendants/Appellants AlliedSignal, Inc. Mr. Roy Spezia Mr. David Duggins Clark, Thomas & Winters P.O. Box 1148 Austin, Texas 78767 Attorneys for Defendants/Appellants DaimlerChrysler Corporation Ms. Vilma Luna HillCo Partners 823 Congress, Suite 900 Austin, Texas 78701 Attorney Ad Litem for Autumn Rhae Moran Mr. Monte English Mr. John M. Shutz Mr. L. Matt Dotin English & Clemons, LLP 539 N. Carancahua, Suite 4000 Corpus Christi, Texas 78401 Attorneys for Luvh Rakhe