Affirm and Opinion Filed December 21, 2018




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-01050-CV

                             JOHN DUBIEL, Appellant
                                      V.
                 DR. PEPPER SNAPPLE GROUP, INC., ET AL, Appellees

                       On Appeal from the 191st Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. DC-13-04664

                             MEMORANDUM OPINION
                        Before Justices Stoddart, Whitehill, and Boatright
                                  Opinion by Justice Boatright
       While John Dubiel was shopping at a Tom Thumb grocery store, he removed two six-packs

of Dr. Pepper bottles from the top shelf of a stand-alone display on the soft drink aisle. As he did

so, he jostled another six-pack of Dr. Pepper. Several bottles from the jostled six-pack fell from

the display and exploded or broke. Flying glass from the bottles injured Dubiel’s eye.

       Dubiel filed a lawsuit against twelve Dr. Pepper entities (Dr. Pepper Snapple Group, Inc.,

Dr. Pepper/Seven Up Bottling Group L.P., Dr. Pepper Bottling Company of Texas, Dr. Pepper

Bottling Company, Dr. Pepper Bottling Company of Dallas, The American Bottling Company, Dr.

Pepper Bottling Holdings, Inc., DPS Holding Inc., Dr. Pepper/Seven-Up Beverage Sales

Company, Dr. Pepper/Seven-Up Manufacturing Company, Dr. Pepper/Seven Up, Inc., and Splash

Transport, Inc., collectively Dr. Pepper), Safeway, Inc. (as parent company of Tom Thumb),

Temple Bottling, Ltd., Vitro Packaging LLC, and Vitro Packaging de Mexico, S.A. de C.V. He
brought claims against all of the defendants for strict liability and negligence; he asserted a claim

for breach of implied warranty of merchantability against the Vitro entities only; and he asserted

a premises liability claim against Safeway. Several years later, the defendants filed a joint motion

for a no evidence summary judgment on all remaining causes of action asserted by Dubiel.

       The trial court granted the defendants’ no evidence motion as to Dr. Pepper and Safeway,

and denied the motion as to Temple and the Vitro entities. The court subsequently entered an order

granting defendants’ motion to sever the case against Temple and Vitro from the case against Dr.

Pepper and Safeway. Dubiel appeals the trial court’s order granting summary judgment as to Dr.

Pepper and Safeway. We affirm.

                                          DISCUSSION

       In three issues, Dubiel contends that the trial court erred in granting the no evidence

summary judgment because there is more than a scintilla of evidence with respect to each

challenged element of his claims against Dr. Pepper and Safeway. We review a grant of summary

judgment de novo. Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017) (per

curiam). We review the summary judgment evidence in the light most favorable to the party against

whom the summary judgment was rendered, crediting evidence favorable to that party if

reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.

Boerjan v. Rodriguez, 436 S.W.3d 307, 311–12 (Tex. 2014).

       In a no evidence motion for summary judgment, the movant contends that no evidence

supports one or more essential elements of a claim on which the nonmovant would have the burden

of proof at trial. TEX. R. CIV. P. 166a(i). The trial court must grant the motion unless the nonmovant

raises a genuine issue of material fact on each challenged element. KCM Fin. LLC v. Bradshaw,

457 S.W.3d 70, 79 (Tex. 2015). No evidence summary judgment is proper if the nonmovant fails




                                                 –2–
to bring forward “more than a scintilla of probative evidence” as to an essential element for which

the movant contends no evidence exists. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009).

A. Strict Liability

        In Dubiel’s strict liability claim against Dr. Pepper and Safeway, he alleged that the glass

Dr. Pepper bottles “exploded” and that they were defective and unreasonably dangerous. He also

alleged that Dr. Pepper and Safeway designed, manufactured, and/or supplied the defective bottles.

In Texas, the seller of a defective product is subject to strict liability for damages caused by the

product. SSP Partners v. Gladstrong Invs. (USA) Corp., 275 S.W.3d 444, 446 (Tex. 2008). The

doctrine of strict liability applies to any person engaged in the business of selling products for use

or consumption. Armstrong Rubber Co. v. Urquidez, 570 S.W.2d 374, 375 (Tex. 1978). It is not

necessary that the defendant actually sell the product, but only that he be engaged in the business

of introducing the product into channels of commerce. Id. However, the product must reach the

user in essentially the same condition as when it left the seller’s possession. Id.

        Under this theory, Dubiel was required to prove that: (1) Dr. Pepper and Safeway

introduced the product into the stream of commerce; (2) the product was in a defective or

unreasonably dangerous condition; and (3) there was a causal connection between the defective or

unreasonably dangerous condition and Dubiel’s injuries or damages. Id. In their no evidence

motion, Dr. Pepper and Safeway challenged the second and third elements of Dubiel’s claim. On

appeal, Dubiel argues that there is clearly more than a scintilla of evidence supporting both of these

elements.

        Dubiel asserts that a product may be unreasonably dangerous because of a defect in

marketing, design, or manufacturing. However, he does not support his assertion with evidence of

a defect in the marketing, design, or manufacturing of the Dr. Pepper bottles that broke. Instead,

he argues that his deposition testimony that the bottles exploded is sufficient circumstantial

                                                 –3–
evidence that the bottles were defective and unreasonably dangerous. Citing Franks v. National

Dairy Prods. Corp., 282 F.Supp. 528, 531 (W.D. Tex. 1968), he contends that this is an “exploding

bottle” case and as such, “where an explosion is involved . . . the defect is so obvious as to warrant

little or no discussion.” We note, however, that in Franks, the court clarified that it was referring

to an explosion of a product that did not ordinarily explode when properly used. Id. Generally,

“exploding bottle” cases involve factual scenarios in which the bottle exploded while being

properly used and without some extraneous harmful force. See, e.g., Pittsburg Coca-Cola Bottling

Works v. Ponder, 443 S.W.2d 546, 549 (Tex. 1969) (bottle exploded while being carried from

storeroom to cooler); Hankins v. Coca-Cola Bottling Co., 249 S.W.2d 1008, 1008 (Tex. 1952)

(plaintiff was carrying a carton of Coca-Cola from his car to his house when a bottle inside the

carton exploded). However, to prevail on a strict liability claim—even in an “exploding bottle”

case—a plaintiff must negate the possibility of an intermediate actor and prove that the bottle

underwent no change since delivery. Royal Crown Bottling Co. v. Ward, 520 S.W.2d 797, 800

(Tex. App.—Beaumont 1975, no writ).

       Dr. Pepper and Safeway contend there is no evidence that the bottles exploded. Instead,

they assert that the evidence establishes that in removing two six-packs of Dr. Pepper bottles from

the display, Dubiel jostled another six-pack of bottles, causing three or four bottles to fall from the

display to the floor. They insist that the bottles did not explode, they broke. The only evidence that

the bottles “exploded” is Dubiel’s deposition testimony that he saw “exploding glass and dark

liquid and foam.” He also stated that the bottles “exploded” when they hit the ground and the glass

flew up. Dubiel has not come forward with any evidence that the bottles would have exploded, or

broken, if they had not been knocked off the display.

       Dubiel suggests that we apply the principles in Waller v. Coca Cola Bottlers Ass’n, 523

S.W.2d 306 (Tex. App.—Houston [1st Dist.] 1975, no writ) to reasonably infer that his testimony

                                                 –4–
that the bottles exploded is sufficient evidence that the bottles were defective. In Waller, a grocery

shopper was injured by glass shards from broken bottles. Waller lifted a six-pack carton of Sprite

from a store display but before she could place the carton into her shopping basket, the bottom of

the carton fell out and bottles fell to the floor and broke, lacerating her leg. Id. at 308. The court

noted that in order to sustain her burden, Waller was required to prove that she made ordinary and

reasonable use of the carton, in a manner anticipated by the grocery store, and that she was injured

as a result of an identifiable defect in the carton. Id. Waller testified that she was not aware that

anything was wrong with the carton until the bottles fell from it. She could not testify as to any

specific defect, but the court determined that it was not her burden to establish the specific nature

of the deficiency in the bottom of the carton that caused it to come apart. Id. It was sufficient that

she proved by the circumstances that the bottom of the carton was so defective that it would not

support the weight of the bottles under ordinary use. Id.

       Dubiel suggests that—like Waller—he does not have the burden to establish the specific

nature of the defect that caused the bottles to explode. He argues that it is sufficient that he prove

by the circumstances that the bottles were so defective that they exploded when they fell from the

display. However, the facts in this case are distinguishable from Waller. The salient distinction is

that in Waller, it was the carton that was held to be defective, and not the bottles that broke upon

falling. In addition, Waller established that she made ordinary and reasonable use of the carton in

a manner anticipated by the seller. Here, there is no evidence of Dubiel’s ordinary and reasonable

use. Instead, the evidence suggests that Dubiel caused the bottles to fall to the floor and break.

Thus, circumstantial evidence in this case does not support an inference that the bottles were

defective.

       “Texas law does not generally recognize a product failure or malfunction, standing alone,

as sufficient proof of a product defect.” Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 42 (Tex.

                                                 –5–
2007). Instead, a specific defect must be identified by competent evidence and other possible

causes must be ruled out. Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 137 (Tex. 2004). Here,

there is no evidence as to when the bottles were delivered and when the stand-alone display was

stocked. We find no evidence that the bottles had undergone no change since delivery or negating

the possibility of an intermediate actor. We find no evidence that Dubiel handled the bottles with

ordinary and reasonable care. Because Dubiel has failed to bring forward more than a scintilla of

probative evidence as to the essential element that the bottles were in a defective and unreasonably

dangerous condition, the trial court did not err in granting appellees’ no evidence summary

judgment on Dubiel’s strict liability cause of action against Dr. Pepper and Safeway. We overrule

Dubiel’s first issue.

B. Negligence

        In his Second Amended Petition, Dubiel alleged that both Dr. Pepper and Safeway were

negligent because they knew or should have known that their actions or inactions could lead to

exploding bottles which would cause injury. Dubiel does not appeal the trial court’s order granting

summary judgment to Safeway on Dubiel’s negligence claim. Instead, his second issue and

argument pertain solely to his negligence claim against Dr. Pepper.

        Dubiel asserts that Dr. Pepper breached its duty to exercise ordinary care in the design,

manufacturing, and marketing of the bottles. To prevail on his negligence claim, Dubiel must

establish: (1) the existence of a legal duty; (2) a breach of that duty; and (3) damages proximately

caused by the breach. Bustamante v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017). In the no evidence

motion, Dr. Pepper challenged the second and third elements, arguing that there is no evidence of

a breach of legal duty to Dubiel or damages proximately caused by such a breach.

        Dubiel asserts that Dr. Pepper breached its duty of ordinary care by specifying glass bottles

for its carbonated beverage but failing to check the amount of burst pressure in the bottles when it

                                                –6–
picked them up from the bottler to place in the grocery store. In support of his assertion, Dubiel

cites to the deposition testimony of Vito Biundo, Dr. Pepper’s corporate representative for

document retention issues. However, the record does not support Dubiel’s assertion. When asked

who would have information about the carbonated pressure in the bottles at the time of delivery,

Biundo testified that Temple, the filler of the bottles, would have that information. Biundo did not

testify that Dr. Pepper had a duty to check the pressure when it picked up the bottles from Temple.

In fact, Biundo expressly stated that it was the responsibility of the bottler to monitor the

carbonation in the bottles it filled. Dubiel does not direct us to any evidence in the record that

suggests that Dr. Pepper breached a duty by not checking the pressure in the bottles. Furthermore,

there is no evidence that excessive pressure in the bottles caused them to break.

       Dubiel also contends that Dr. Pepper breached its duty of ordinary care in designing the

top shelf of its stand-alone display. He asserts that Dr. Pepper designed a display that would cause

the bottles to fall from a height if they were jostled. The record contains evidence that the stand-

alone display was waist height with three or four shelves. However, there is no evidence that the

display collapsed or tipped, or that top shelf of the display malfunctioned. Dubiel testified that

when he removed two six-packs of Dr. Pepper bottles from the top shelf of the display, he jostled

another six-pack of Dr. Pepper bottles and three or four bottles fell to the floor. There is no

evidence that the top shelf of the display caused the bottles to fall from the display falling to the

floor. And Dubiel has not come forward with more than a scintilla of evidence that the top shelf

of the display was not designed properly.

       Dubiel also argues that Dr. Pepper breached its duty of ordinary care by not placing

warnings on its packaging. He does not specify whether the warnings should have been placed on

the bottles, the six-pack packaging, the stand-alone display, or all three. A defendant’s failure to

warn of a product’s potential dangers when warnings are required is a type of marketing defect.

                                                –7–
Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex. 1995). Liability will attach if the lack of

adequate warnings or instructions renders an otherwise adequate product unreasonably dangerous.

Id. The law of products liability does not require a manufacturer or distributor to warn of obvious

risks. Id. Nor is there a duty to warn when the risks associated with a particular product are matters

“within the ordinary knowledge common to the community.” Joseph E. Seagram & Sons, Inc. v.

McGuire, 814 S.W.2d 385, 388 (Tex. 1991).

       Dubiel argues that Dr. Pepper should have warned that its pressurized glass bottles should

not be stacked or positioned in a way that could subject them to falling. He also argues that Dr.

Pepper should have warned that its bottles should be handled with care because excessive burst

pressure might cause them to explode. But the warnings Dubiel seeks are not in line with the facts

in this case. According to the evidence, the glass bottles broke because Dubiel knocked them off

the shelf and they fell to the floor. There is no evidence that the bottles were stacked improperly,

and there is no evidence that the bottles exploded because of excessive burst pressure. It is an

obvious risk, within ordinary knowledge, that if glass bottles are dropped on the floor, they may

break. Dr. Pepper did not have a duty to warn of this potential hazard.

       Dubiel has not come forward with more than a scintilla of evidence that Dr. Pepper

breached a legal duty—an essential element of Dubiel’s negligence cause of action. We conclude

the trial court did not err in granting summary judgment in favor of Dr. Pepper on Dubiel’s

negligence claim. We overrule Dubiel’s second issue.

C. Premises Liability

       In his third issue, Dubiel contends that the trial court erred in granting the no evidence

summary judgment because Safeway had constructive knowledge of a dangerous condition on its

premises and breached its duty of care by failing to either adequately warn him, or make the

condition safe. Dubiel contends that the dangerous condition was the stand-alone display of Dr.

                                                 –8–
Pepper bottles.1 He describes the display as being tall, having three or four shelves on which glass

bottles were precariously perched on top of glass bottles, and then on top of cans. He urges that

Safeway had a duty to either warn its customers not to jostle any of the bottles or to remove the

bottles from the display. Because Safeway failed to do either of these things, he argues that

Safeway breached its duty of care, and this breach proximately caused his injury.

            Safeway owed Dubiel, an invitee on the Tom Thumb premises, a duty to exercise

reasonable care to protect him from any unreasonably dangerous condition of which it had actual

or constructive knowledge. Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 407 (Tex. 2006).

The four elements of a premises liability cause of action are: (1) the owner had actual or

constructive knowledge of some condition on the premises; (2) the condition posed an

unreasonable risk of harm; (3) the owner did not exercise reasonable care to reduce or eliminate

the risk of harm; and (4) the owner’s failure to use such care proximately caused the plaintiff’s

injuries. Smith v. Mohawk Mills, Inc., 260 S.W.3d 672, 674 (Tex. App.—Dallas 2008, no pet.). In

the no evidence motion, Safeway asserted that Dubiel has no evidence of any of the elements.

            We first consider whether Safeway had actual or constructive knowledge of some condition

on the premises of the Tom Thumb store that posed an unreasonable risk of harm to Dubiel. There

is no one test for determining actual knowledge that a condition presents an unreasonable risk of

harm. Id. at 675. However, courts generally consider whether the premises owner has received

reports of the danger created by the condition or reports of prior injuries. Id. Dubiel did not produce

evidence that the display had ever collapsed, tipped over, or failed, or that Safeway had received

reports of any injuries involving the display in the Tom Thumb store where Dubiel was injured, or

in any other Tom Thumb grocery store. The Tom Thumb incident report for Dubiel’s injury stated:




1
    In his first issue, Dubiel argues that the hazardous condition was the ready-to-explode bottles of Dr. Pepper—not the stand-alone display.


                                                                       –9–
“customer knocked over a display and the glass from the product got into his eye.” However, there

was nothing in the report to indicate that the display itself had caused or contributed to the incident,

or was a dangerous condition. In H.E. Butt Grocery Company v. Resendez, 988 S.W.2d 218, 219

(Tex. 1999), the Texas Supreme Court held that the mere fact that a store has customer-sampling

display could not, without more, be evidence of a condition on the premises that posed an

unreasonable risk of harm. We think that a stand-alone display of soft drinks, like the customer-

sampling display in Resendez, is not evidence of a condition on the premises that poses

unreasonable risk of harm.

       Safeway denies that it had actual knowledge of an unreasonably dangerous condition on

its premises. Safeway also contends the evidence does not support the description of the stand-

alone display set forth in Dubiel’s appellate brief. According to evidence—Dubiel’s deposition

testimony—the display was not tall. He testified that the six-packs of bottles on the top shelf of

the display were about stomach or waist height. There is no evidence that the bottles were

precariously stacked, or perched at a precarious height. Dubiel does not direct us to other evidence

of Safeway’s actual knowledge that the display was a dangerous condition that posed an

unreasonable risk of harm.

       Dubiel argues that because the dangerous condition existed for some time prior to the

bottles exploding, Safeway had, at a minimum, constructive knowledge of it. Dubiel’s evidence of

Safeway’s constructive knowledge consists of his deposition testimony that he had seen the stand-

alone display of Dr. Pepper bottles and cans in the soft drink aisle at the Tom Thumb store both

before and after the date on which he was injured. However, no evidence in the record indicates

that Safeway knew of the alleged risk.

       In Zook v. Brookshire Grocery Company, 302 S.W.3d 452 (Tex. App.—Dallas 2009, no

pet.), we held that, although proof that the premises owner created a condition that posed an

                                                 –10–
unreasonable risk of harm may constitute circumstantial evidence of knowledge, evidence of the

owner’s knowledge or appreciation of the dangerous condition must be established. Id. at 456.

Thus, in some cases, proof that the premises owner created the condition may constitute

circumstantial evidence of knowledge. However, in this case, Dubiel does not accuse Safeway of

creating the dangerous condition. In his appellate brief, Dubiel states that Dr. Pepper—not

Safeway or Tom Thumb—created and stocked the stand-alone display. Dubiel does not point to

any evidence that that Safeway knew that there was a problem with the display, that the display

could fail, or that the display was a dangerous condition that posed an unreasonable risk of harm.

       There is no evidence that Safeway had actual or constructive knowledge that the stand-

alone display of Dr. Pepper in its Tom Thumb store was a dangerous condition that posed an

unreasonable risk of harm. Therefore, Dubiel did not produce more than a scintilla of probative

evidence to raise a genuine issue of material fact with respect to an essential element of his

premises liability claim against Safeway. We conclude the trial court did not err in granting

summary judgment for Safeway. We overrule Dubiel’s third issue.

                                        CONCLUSION

       Having overruled all of Dubiel’s issues, we affirm the trial court’s judgment.




                                                  /Jason Boatright/
                                                  JASON BOATRIGHT
                                                  JUSTICE

171050F.P05




                                              –11–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 JOHN DUBIEL, Appellant                              On Appeal from the 191st Judicial District
                                                     Court, Dallas County, Texas
 No. 05-17-01050-CV          V.                      Trial Court Cause No. DC-13-04664.
                                                     Opinion delivered by Justice Boatright.
 DR. PEPPER SNAPPLE GROUP, INC.,                     Justices Stoddart and Whitehill
 ET AL, Appellees                                    participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

        It is ORDERED that appellees DR. PEPPER SNAPPLE GROUP, INC., ET AL recover
their costs of this appeal from appellant JOHN DUBIEL.


Judgment entered December 21, 2018




                                              –12–
