Wellborn v. Sears, Roebuck & Co. - 970 F.2d 1420 (5th Cir. 1992)

Rule:

In wrongful death cases, Texas law provides for the recovery of damages for mental anguish and loss of society and companionship and, in awarding such damages, the jury "may consider (1) the relationship between husband and wife, or a parent and child; (2) the living arrangements of the parties; (3) any absence of the deceased from the beneficiary for extended periods; (4) the harmony of family relations; and (5) common interests and activities.

Facts:

Plaintiff mother Marilyn Wellborn purchased an automatic garage door opener from defendant’s Sears, Roebuck & Co. store made by defendant manufacturer. When plaintiff installed the opener, she read the instruction manual and tested the opener's reverse function. Unfortunately, her 14-year-old son was killed when the door closed on him. An expert later determined that the garage door did not reverse because of faulty installation. Plaintiff sued defendants for wrongful death and violation of the Deceptive Trade Practices-Consumer Protection Act (DTPA), Tex. Bus. & Prof. Code Ann. § 17.41. Following trial, the jury found that plaintiff and her son were not contributorily negligent, thus, returned a verdict in favor of plaintiff. Defendants then moved for judgment notwithstanding the verdict, for a new trial, for remittitur, and to alter or amend the judgment. The district court denied defendant's motion but deleted the DTPA damages award since plaintiff did not provide defendant manufacturer with proper statutory notice. Both parties appealed.

Issue:

Was the trial court’s judgment awarding damages to plaintiff proper?

Answer:

Yes.

Conclusion:

The court affirmed the judgment awarding plaintiff damages against defendants after a garage door opener malfunctioned and crushed her son. The court held that the evidence was sufficient to support the jury’s award for pecuniary loss, loss of society and companionship, and mental anguish as the court found that plaintiff and her son had a very close relationship and that the death of her son was especially difficult for plaintiff. However, the court certified the question of whether the claim under the DTPA survived to the state supreme court. As the court found that defendants challenged the sufficiency of the evidence on the contributory negligence finding, however, since defendants failed to move for a directed verdict, the court's review was limited to a determination of whether there was any evidence to support the jury's finding or whether plain error was committed. In this case, the court concluded that there was evidence to support the finding of no contributory negligence.