Opinion
CAUSE NO. 2:03-CV-0177-J.
June 9, 2004
ORDER
Before the Court is a motion for summary judgment filed by Defendants Wittke, Inc., Northside Group, Inc., and Federal Signal Corporation (collectively, the "Wittke Defendants") on May 4, 2004. The motion is granted in part and denied in part.
Plaintiff's left arm was amputated in June of 2003 while he was riding on a sanitation truck sold by Wittke to the City of Canyon. Plaintiff was riding on a step that was installed on the truck by the City of Canyon after the truck was delivered to the city in May of 1995. Plaintiff's arm was inside the opening of door on the right side of the truck when the driver activated the compactor. This right-side hand load door was original to the truck. Plaintiff sued the Defendants alleging theories of products liability, negligence, breach of implied warranty, and violations of the Texas Deceptive Trade Practices Act ("DTPA"). A key issue in this case is the lack of a safety switch at the right-side hand load door.
The Wittke Defendants present three grounds for summary judgment:
(1) That the City of Canyon's unilateral modification to the truck substantially changed the condition of the truck;
(2) That the Wittke Defendants are immune from liability in this case because the truck was constructed in strict compliance with detailed specifications provided by the city;
(3) And that Plaintiff has no claim against the Wittke Defendants under the DTPA.
With respect to the first argument, the summary judgment evidence creates a fact issue and the motion must be DENIED on this basis.
For their second argument, the Wittke Defendants state that they are immune from suit under the government-contractor defense and because they were acting as agents for the City of Canyon. The only Texas case cited by Wittke to support its government-contractor defense theory is Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2001). In that case, the court stated that the government-contractor defense is "a federal common-law defense" that addresses "conflict[s] between state tort law and the federal interest in immunizing the federal government from liability for performing a `discretionary function,' an act for which the government may not be sued under the Federal Tort Claims Act." Id. at 846. The Wittke Defendants have presented no argument that would lead this Court to predict that the Texas state courts would extend this federal doctrine to cases against those who contract with municipalities in the state of Texas. The only state the Wittke Defendants identify as having extended a similar doctrine in this manner is New York, where the doctrine has been part of New York common law since at least 1924. See Ryan v. Feeney Sheehan Bldg. Co., 145 N.E. 321 (N.Y. 1924). Accordingly, the motion is DENIED on this ground.
Alternatively, the Wittke Defendants argue that they had official immunity because they were under contract with the City of Canyon to provide discretionary governmental duties. This argument is completely without merit and the cases cited by the Wittke Defendants, Putthoff v. Ancrum, 934 S.W.2d 164 (Tex.App.-Fort Worth 1996, no writ) and Knowles v. City of Granbury, 953 S.W.2d 19 (Tex.App.-Fort Worth 1997, writ denied), readily distinguish themselves from Plaintiff's case. Moreover, the section of the Texas Civil Practice Remedies Code cited by the Wittke Defendants provides that "[a] municipality is liable . . . for damages arising from its governmental functions . . . including but not limited to . . . (2) health and sanitation services." TEX. CIV. PRAC. REM. CODE § 101.0215(a) (Vernon 1997) (emphasis added). The motion for summary judgment is DENIED on this basis.
The Wittke Defendants' final basis for summary judgment is that Plaintiff has no claim under the DTPA. The Wittke Defendants claim that the DTPA does not apply to this case and that Plaintiff does not have standing as a "consumer" within the meaning of the DTPA. The first argument is premised on the second — in order for the DTPA to apply in a case of bodily injury, Plaintiff must be a consumer. TEX. BUS. COM. CODE §§ 17.49(e), 17.50 (Vernon 2002). Under the DTPA, a consumer is one who "seeks or acquires, by purchase or lease, any goods or services." Id. § 17.45(4). When the purported consumer is an employee of the actual purchaser of goods or services, recent Texas cases hold that the employee has consumer status under the DTPA only when the employer purchases the goods or services "primarily for the employee's benefit." See Kennedy v. Sale, 689 S.W.2d 890, 892 (Tex. 1985); Brandon v. American Sterilizer Co., 880 S.W.2d 488, 492 (Tex.App.-Austin 1994, no writ). Even where an employee's allegation is that a security system failed to protect her, Texas courts have held that the employee is not a consumer within the meaning of the DTPA because the employer purchased the security system and monitoring services primarily to protect its property. Banzhaf v. ADT Security Sys. S.W., Inc., 28 S.W.2d 180 (Tex.App.-Eastland 2000, writ denied). In Plaintiff's case, the purchase of the sanitation truck was not primarily for Plaintiff's benefit. Plaintiff does not have standing to bring this suit under the DTPA. Accordingly, the motion for summary judgment is GRANTED with respect to Plaintiff's DTPA claims against the Wittke Defendants and those claims are DISMISSED.
It is SO ORDERED.