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otis Spunkmeyer, Inc. v. Blakeley

November 01, 2000


On Appeal from the 95th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 93-08546-D

Before Justices Ovard, *fn1 Moseley, and Roach

The opinion of the court was delivered by: Jim Moseley, Justice

Reversed and Remanded and Opinion Filed November 1, 2000


Justice Moseley

After the second jury trial in this case, the trial court rendered judgment holding appellant, Otis Spunkmeyer, Inc. ("Spunkmeyer"), liable for personal injuries sustained by appellee, Nancy Blakely ("Blakely"), when she bit into a cookie produced by Spunkmeyer that contained a foreign object. Spunkmeyer appeals, arguing:

(1) the trial court abused its discretion in granting Blakely's motion for new trial after the first trial on the merits; (2) there was no jury finding that Spunkmeyer proximately caused Blakely's injuries; (3) the evidence is legally and factually insufficient to support the jury's findings concerning both liability and damages; (4) the jury's findings are in irreconcilable conflict; (5) the trial court should have rendered judgment on the findings the jury made before it was given an amended jury charge; and (6) the trial court erred in amending the charge after the jury had already begun deliberating. For the reasons set forth below, we reverse and remand this cause for a new trial.


Blakely suffers from a condition known as temporomandibular joint dysfunction (TMJ) that affects the jaw bone joints. In 1982, 1986, and 1990, Blakely had surgeries on her joints affected by TMJ. Blakely testified that following these surgeries, she had virtually recovered from her TMJ symptoms.

On November 21, 1991, Blakely bit into an oatmeal-raisin cookie manufactured by Spunkmeyer. The cookie contained a hard object. Spunkmeyer contends the object was a raisin stem; a subsequent laboratory report stated the object was "a herbaceous stem, possibly a heat processed peanut plant." Blakely immediately experienced pain and swelling in her jaw. Blakely's jaw remained swollen for twelve days until she was able to see a doctor. As a part of the treatment she received for these injuries, she eventually underwent surgery on January 22, 1992. On September 14, 1994, Blakely underwent total joint replacement surgery.

Blakely sued Spunkmeyer and the cookie vendor. In 1997, the case went to trial and the jury reached a verdict in Spunkmeyer and the cookie vendor's favor. However, the trial court determined the jury had reached its verdict because it had concluded that Blakely was not an "ordinary user" of the cookie because of her TMJ and that the jury did not believe Spunkmeyer was responsible because it had complied with certain health codes. Therefore, the trial judge granted Blakely's motion for new trial as to Spunkmeyer. *fn2

A second trial ensued, in which Blakely claimed that Spunkmeyer was liable based on causes of action for:

(1) negligence; (2) strict liability for a manufacturing defect in Spunkmeyer's production of the cookie; and (3) breach of implied warranty of merchantability. During jury deliberations, the jury sent a note to the trial judge asking the judge to clarify the meaning of the term "injury" in the charge. The jury asked if "injury" concerned the trauma immediately after the incident or the surgeries. The trial judge answered the jury by referring it to the portion of the charge that stated:

"When words are used in this charge in a sense that varies from the meaning commonly understood, you are given a proper legal definition, which you are bound to accept in place of any other meaning." Afterward, while the jury continued deliberating, the trial judge decided to amend the charge. While the trial judge was preparing the amended charge, the jury apparently answered all of the questions in the unamended charge before it. However, the trial judge refused to accept the answers as the jury's verdict. The trial judge gave the jury the amended charge and instructed the jury to continue its deliberations.

The jury questions relevant to this appeal, along with the amendments made by the trial judge and the jury's answers, are set forth below. Words through which a line is drawn indicate words the judge deleted from the charge by hand during the deliberations. The judge added the italicized words and judge's initials ("SLM") onto the charge by hand.


Was there a manufacturing defect in the cookie at the time it left the possession of Otis Spunkmeyer, Inc. that was a producing cause of the occurrence in question?

A "defect" means a condition of the product that renders it unreasonably dangerous. An unreasonably dangerous product is one that is dangerous to an extent beyond that which would be contemplated by the ordinary user of the product, with the ordinary knowledge common to the community as to the product's characteristics.

"Producing cause" means an efficient, exciting or contributing cause, that in a natural sequence, produced the injury occurrence / SLM. There may be more than one producing cause.

Answer "Yes" or "No":

No [by the jury]


Was the cookie dough supplied by Otis Spunkmeyer, Inc. unfit for the ordinary purposes for which such cookie dough is used because of a defect, and, if so, was such unfit condition a proximate cause of the injury occurrence / SLM in question?

A "defect" means a condition of the goods that renders them unfit for the ordinary purposes for which they are used because of a lack of something necessary for adequacy.

"Proximate cause" means that cause which, in a natural and continuance [sic] sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.

Answer "Yes" or "No":

Yes [by the jury]


What sum of money, if paid now in cash, would fairly and reasonably compensate Nancy Blakely for her injuries, if any, that resulted from the occurrence in question?

Consider the elements of damages listed below and none other. Consider each element separately. Do not include damages for one element in any other element. Do not include interest on any amount of damages you find.

SLM Do not include any amount for any condition existing before the occurrence in question, except to the extent, if any, that such other condition was aggravated by any injuries that resulted from the occurrence in question.

Do not reduce the amounts, if any, in your answers because of the negligence, if any, of Nancy Blakely.

Answer in dollars and cents for damages, if any, that were sustained in the past and that in reasonable probability will be sustained in the future.


a. Physical pain

$25,000 [by the jury]

b. Loss of earning ...

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