Lead Opinion
delivered the opinion of the Court,
This is a products liability case. Cipriano Shears, his wife and children sued Caterpillar, Inc. and B.D. Holt Company for personal injuries Shears suffered in a collision of two front-end loaders. The rollover protective structure or “ROPS” for the loader Shears was operating was not installed at the time of the accident. Shears alleged that Caterpillar, the manufacturer of the loader, and B.D. Holt, which sold the loader to Shears’ employer, were negligent and strictly liable because the ROPS was designed to be removable, and the defendants did not warn him of the hazards of operating a loader without a ROPS. Based on favorable jury findings, the trial court rendered a judgment for Shears for actual and punitive damages. The court of appeals affirmed the award of actual damages but reversed and rendered a take-nothing judgment as to the punitive damages.
I.
At the time of the accident, Shears was operating a Caterpillar model 920 front-end loader, also called a payloader. It is a four-wheeled, multi-purpose vehicle that is about nineteen feet long and weighs 18,000 pounds. It is used in logging, excavation, construction, mining, material handling, and other industries. The loader has a hydraulic arm in the front which users equip with various devices, typically a bucket for scooping up loose material. Caterpillar manufactured the model 920 with a detachable ROPS as standard equipment. The ROPS on the Caterpillar model 920 is a device with four posts that supports a canopy over and around the driver’s seat. Users can remove the ROPS, which weighs 700 pounds, by unbolting twenty-four high-torque bolts and lifting it off with a crane. Removing the ROPS takes twenty or thirty minutes.
In 1979, B.D. Holt, an independent Caterpillar dealer, sold a model 920 front-end loader to Dix Shipping, Inc., which provides stevedore services for the dockyard in Brownsville, Texas. Dix Shipping removed the ROPS in order to use the loaders to unload the cargo of ships with limited clearance between decks. Regulations of the Occupational Safety and Health Administration (OSHA) authorize removing a ROPS for loaders intended for low-clearance use. See 29 C.F.R. § 1918.73(b)(5) (1994). Dix Shipping personnel testified that if the ROPS could not have been otherwise removed, they would have cut it off with a cutting torch.
At the time of the accident, Dix Shipping had hired Shears to move sodium sulphate. Following its transport by railroad to the warehouse, workers unloaded the sulphate onto a conveyer belt, which carried the sulfate into the warehouse and dumped it into a pile. Loader operators moved the sulfate to storage piles in other areas of the warehouse, where it was held until it could be loaded onto ships.
Shears and Jesus Sanchez were using Caterpillar model 920 front-end loaders to move the sulphate from the pile near the conveyer belt to the storage piles. Dix Shipping provided safety personnel to direct Shears’ and Sanchez’ movements and to keep them in different areas of the warehouse, but blowing sulphate dust limited visibility to a few feet. Shortly before quitting time, Shears stopped his loader to dump a load of sulphate. Sanchez’ loader struck Shears’ loader from behind, pinning Shears between the seat and the console of the loader and severely injuring him. It is undisputed that if the ROPS that Dix Shipping had removed from Shears’ loader had been installed, it would have prevented his injuries.
Shears brought this products liability action against Caterpillar and B.D. Holt, alleging negligence and strict liability. Following trial, the jury found that the defendants failed to warn Shears of the danger of operating a loader without its ROPS: Caterpillar’s design of a removable ROPS was unreasonably dangerous; and that both defendants were negligent. Consequently, the jury apportioned causation 0% to Shears, 70% to Caterpillar, and 30% to B.D. Holt. It awarded $5,000,000 in damages to Shears, $650,000 to his wife, and $100,000 to each of his two children. The jury also assessed exemplary damages of $4,095,000 against Caterpillar and $1,755,000 against B.D. Holt for gross negligence. The trial court rendered judgment accordingly. The court of appeals affirmed the judgment on the basis of the defendants’ breach of the duty to warn and their negligence, and did not reach the design defect theory of liability.
We first consider the defendants’ duty to warn under the theory of strict liability.
II.
This Court has adopted the theory of strict products liability expressed in section 402A of the Restatement (Second) of Torts. McKisson v. Sales Affiliates, Inc.,
Caterpillar and B.D. Holt contend that they had no duty to warn Shears about operating the loader without its ROPS because the danger, if any, was obvious and therefore a warning would not have prevented the injury. A number of courts have adopted the position that there is no duty to warn of obvious or commonly-known dangers. See, e.g., Hagans v. Oliver Mach. Co.,
Similarly, this Court has recognized that there is no 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,
A number of courts have observed that a warning that merely states the obvious would accomplish very little and to the contrary may actually be counterproductive. The fact that a risk is readily apparent serves the same function as a warning. See Hagans,
The court of appeals did not expressly examine if Caterpillar and B.D. Holt had no duty to warn of obvious risks. However, it
To understand our holding in Seagram, two aspects of the opinion are particularly important. First, the inquiry whether a recognition of risk “is within the ordinary knowledge common to the community” is an objective standard. See id. at 388. Likewise, we conclude that whether a product has obvious dangers requires an objective standard. See Restatement (Second), supra, § 402A cmt. i; Keeton et al., Pkosser and Keeton on the Law of Torts § 96, at 686-687 (5th ed. 1984). The determination whether a manufacturer has a duty to warn is made at the time the product leaves the manufacturer. Saenz,
A second important aspect of the Seagram opinion is that we decided whether the risk of injury was common knowledge as a matter of law.
III.
A number of courts are of the view that obvious risks are not design defects which must be remedied. See, e.g., Gray,
Caterpillar designed the model 920 loader for multiple purposes in a wide variety of work environments. The manufacturer designed the loader’s ROPS to withstand 37,-000 pounds of pressure from above and 14,-000 pounds from the side. The ROPS will absorb energy upon impact and bend, protecting the operator. Caterpillar intentionally made the ROPS removable. Thus, if a collision damages the ROPS, it can be removed and replaced with a new one to restore the integrity of the original design.
Caterpillar also designed the ROPS to be removable so that operators could use the loader in low clearance areas. Dix Shipping purchased the model 920 loader in which Shears was injured for that very reason. At the time Dix Shipping purchased the loader, its principal business was unloading ships’ cargoes. Unless the ROPS was removed, the company could not use the loader to unload material stored between ship decks. Although OSHA requires the use of a ROPS in most situations, see 29 C.F.R. § 1926.1000(b) (1994), it specifically allows use of a loader without a ROPS in certain low-clearance working environments and where there is little risk of a rollover. Id. § 1918.73(b)(5).
Shears’ expert witness testified that no loader should ever be built unless it has a permanently installed ROPS. The expert’s design defect theory was that a loader should be configured so that the ROPS is not removable or so that its removal would render the machine inoperable. Shears presented into evidence a number of designs used by other manufacturers, in which removal of the ROPS also removes the cab and engine controls. He also presented evidence of loader designs in which the ROPS was permanently attached. In response to Caterpillar’s claim that buyers needed removable ROPS on loaders to be used in low clearance areas, the expert said that Caterpillar should make models in different sizes for different jobs, so there would be no reason to take off the ROPS of a larger machine to do the work of a smaller machine. (He offered no suggestions on how users can bear the expense of multiple single-purpose machines, each suited to the height of a single work area). Shears’ expert did not testify, and there is no evidence elsewhere in the record, of a safer alternative design for a front-end loader that could fulfill the multi-purpose role of Caterpillar’s model 920 with a removable ROPS.
We evaluate whether a product has a design defect in light of the economic and scientific feasibility of safer alternatives. See Boatland of Houston, Inc. v. Bailey,
IV.
Shears also alleged that the defendants were negligent in their design of the front-end loader and in their failure to warn of the loader’s dangers. The focus for negligence is on the supplier’s standard of care. This perspective differs from that of strict liability, as follows:
The care taken by the supplier of a product in its preparation, manufacture or sale, is not a consideration in strict liability; this is, however, the ultimate question in a negligence action. Strict liability looks at the product itself and determines if it is defective. Negligence looks at the acts of the manufacturer and determines if it exercised ordinary care in design and production.
Gonzales v. Caterpillar Tractor Co.,
Shears attempted to show that B.D. Holt was negligent because (a) one of its salespersons sold the product; (b) the salesperson knew the customer, Dix Shipping, would have to remove the ROPS in order to use it; and (c) he encouraged Dix Shipping to remove the ROPS by offering to buy back the ROPS after the sale. The record shows that Dix Shipping purchased the loader with the intent of using it without its ROPS for unloading cargo on ships with low clearance, a practice authorized by OSHA. There is no evidence that anyone at B.D. Holt was aware of any other intended use. No evidence shows that the company lacked ordinary care in the sale of the model 920 loader.
Y.
A motorcycle could be made safer by adding two additional wheels and a cab, but then it is no longer a motorcycle. A convertible can be made safer by fully enclosing the cab, but then it is just an ordinary car. The law of products liability demands that manufacturers and distributors take feasible steps to make their products reasonably safe. It is not rational, however, to impose liability in such a way as to eliminate whole categories of useful products from the market. If the inherent dangers in a class of products are obvious to a person of ordinary knowledge, there should be no duty to state the obvious. Accordingly, we reverse the judgment of the court of appeals and render judgment that Shears take nothing of Caterpillar, Inc. and B.D. Holt Company.
Notes
. Two justices dissented from the majority’s holding that there was evidence to support an award of actual damages, but they concurred in the judgment eliminating punitive damages. Id. at 935 (Kennedy, J., concurring and dissenting, joined by Dorsey, J.). One justice would have affirmed the award of both actual and punitive damages. Id. at 939 (G. Hinojosa, J., concurring and dissenting).
. The tentative draft of the Restatement of Torts (Third) also notes that the very obviousness of an obvious risk conveys the same information as do warnings, and that warning of obvious risks tends to undermine the effectiveness of warnings of unobvious risks. See Restatement (Third) of Torts: Products Liability § 2, at 26-27 (Tentative Draft No. 1, 1994).
. The new Restatement of Torts (Third) draft also takes the position that the absence of a duty to warn of an obvious danger does not necessarily mean there is no duty to make the product safer. Restatement (Third), supra note 2, § 2, at 27.
Dissenting Opinion
dissenting, joined in Part A by PHILLIPS, Chief Justice.
Justice Spector’s dissent of June 29, 1995, is withdrawn, and the following is substituted in its place.
I agree that there is no duty to warn of open and obvious dangers “so well known to the community as to be beyond dispute.” Seagram & Sons, Inc. v. McGuire,
A.
In Seagram, this Court cited a litany of Texas cases indicating that as a matter of law the dangers of alcohol consumption are generally known to the community. Id. at 388. The Court also cited a comment in the Restatement noting that the dangers of alcoholism are common knowledge. Id. at 387-88 n. 4. In addition to these qualifications on its holding, the Court further narrowed its holding by referring to the “judicial notice rule”:
Because Seagram is asking this Court to determine common knowledge as a matter of law, we find the judicial notice rule helpful in providing a standard. Compare 33 S. Goode, O. Wellbourn, III & M. Shar-lot, Guide to Texas Rules of Evidence § 201.2 (Tex.Prac.1988) (requiring “high degree of indisputability” as prerequisite to judicial notice) with Bruñe v. Brown Forman Corp.,758 S.W.2d 827 , 830-31 (Tex.App.—Corpus Christi 1988, writ denied) (“common knowledge is information known by the public generally based upon indisputable facts”).
Based in part on this rule, we concluded:
Consequently, we hold that, because the danger of developing the disease of alcoholism from prolonged and excessive consumption of alcoholic beverages is and has been generally known and recognized, it is within the ordinary knowledge common to the community. Therefore, under the limited circumstances present in this cause, Seagram had no duty to warn or instruct of this particular danger arising from the prolonged and excessive consumption of alcoholic beverages.
Id. (emphasis added). This narrow holding was based on a correspondingly narrow view of “common knowledge.” As explained in one decision we relied upon, common knowledge includes only those things “so patently obvious and so well known to the community
The majority misapplies the Seagram standard when it states that the proper inquiry is “whether an average person would recognize that operating an industrial vehicle with open sides and top presents a degree of serious harm to the operator.” Supra at 383. Under the test delineated in Seagram, the jury must resolve this issue. To remove the issue from the jury’s province, the Court would have to determine that there has been a showing of a “high degree of indisputability” that the risk was commonly known. This is the test in Texas for open and obvious dangers, and Caterpillar has failed to satisfy it.
Unlike the Court in Seagram, the majority cannot cite cases standing for the proposition that the danger associated with the absence of “ROPS” on the vehicle was so commonly known and “highly indisputable” that the Court can take judicial notice that the absence of the safety device posed an open and obvious risk of harm. To the contrary, a number of courts have held that the question of whether the absence of “ROPS” is open and obvious is a fact question for the jury. See, e.g., Young v. Deere & Co.,
The danger associated with operating a Caterpillar 920 front-end loader without its safety guards is certainly not common knowledge. Photocopies of photographs in the record do not give rise to the “high degree of indisputability” that would justify what is akin to judicial notice of the obviousness of the danger. Cf., Ford Motor Co. v. Nowak,
Moreover, even if the risk of operating the 920 without ROPS was obvious, the protection that the ROPS would have afforded Shears certainly was not. There is no duty to warn of an obvious risk only because that warning would convey no additional information; the user is presumed to already know of the risk. See Keeton et al., Prosser and Keeton on the Law of ToRts § 96, at 686 (5th ed. 1984). If the benefit of a safety device is not obvious, however, then a warning that the device should not be removed does convey important information. In the present case, the protective function of the ROPS cannot be said to be indisputably obvious. Shears, who had previously used the 920, testified that he thought that the “ROPS” was more like a “cabin ... to protect us from the heat, the cold.” Caterpillar’s own brochures expressly state that one of the functions of the ROPS is to provide a comfortable environment for the operator.
B.
The majority’s extension of our holding in Seagram essentially resurrects assumption of the risk as an absolute bar to recovery in strict liability and negligence actions, despite the fact that Texas has adopted a system of comparative apportionment. See Tex.Civ.PRAC. & Rem.Code § 33.001; Bruñe,
What is most egregious in this case is that the majority imposes this doctrine on the injured worker while disregarding the requirement that he be subjectively aware of, and voluntarily encounter, the risk. Shears was required to use the 920 to perform his duties; he had no discretion or volition. In the present case, Shears testified that he did not know that the “ROPS” was there to protect him from injury; thus, he certainly did not understand the dire consequences resulting from the operation of the loader
Most of our sister states that have considered the open and obvious danger rule have chosen not to follow the majority’s approach. The Tennessee Supreme Court has held that the obviousness of the defect is only one factor to be considered when determining whether a defect is unreasonably dangerous. See Gann,
The Alabama Supreme Court recently applied similar reasoning in a products liability case against Bic for its failure to child-proof lighters:
Whether a danger [is] ‘open’ and ‘obvious’ does not go to the [legal] issue of the duty of the defendant under the [applicable products statute]. Instead, ‘open’ and ‘obvious’ danger relates to the affirmative defense of assumption of the risk, the alleged ‘defectiveness’ of the product, and the issue of causation.... Therefore, a summary judgment based upon the danger’s being open and obvious would be improper, as such a determination is a factual issue for the jury.
Bean v. BIC Corp., 597 So.2d 1350, 1353 (Ala.1992); see also Young v. Deere & Co.,
A Wisconsin court recently explained the incompatibility of the majority’s approach with comparative responsibility systems:
Some states that have adopted comparative negligence statutes have addressed the issue of the proper application of the open and obvious danger doctrine to ordinary negligence cases and have essentially abolished its use to preclude recovery based on a lack of duty.... These cases conclude that the application of the doctrine to preclude recovery because the defendant owes no duty to a plaintiff who confronts an open and obvious danger is merely a corollary to the assumption of the risk doctrine, which is abolished in most comparative negligence states.
Hertelendy v. Agway Ins. Co., 177 Wis.2d 329,
For the foregoing reasons, I would not extend Seagram to the facts of this case. I would uphold the jury’s determination that Caterpillar’s failure to warn was negligent and constituted a marketing defect. Accordingly, I respectfully dissent.