Amanullah Khan v. Velsicol Chemical Corporation

In this product liability case, summary judgment was rendered for the manufacturer. Amanullah Khan and members of his family sued Miss Phoebes Pest Control, Inc. and Velsicol Chemical Corporation for personal injuries and property damage resulting from Miss Phoebes application to their home of a termiticide manufactured and supplied by Velsicol. The Khans suit against Velsicol alleges strict liability in tort, breach of an implied warranty under sections 2.314 and 2.315 of the Texas Business and Commerce Code, breach of common law warranty, and violations of the Texas Deceptive Trade Practices Act. Velsicol moved for summary judgment asserting that, upon undisputed facts, it was entitled to judgment as a matter of law because: (1) Miss Phoebe, who treated the Khans home for termites, was a "learned intermediary" between Velsicol and Khan, (2) Miss Phoebes misuse of the termiticide was the sole producing cause of the injury, (3) Miss Phoebe was the Khans agent, and (4) the Khans did not as a matter of law rely on any representation made by Velsicol. The trial court granted summary judgment in favor of Velsicol and severed the Khans claim against Miss Phoebe. We reverse and remand.