*1 right freely cise of her first amendment Relators cite no federal or Texas cases religion. Supreme holding 16-year-old exercise her The Illinois that a minor has a right, Court held that a “mature minor” under the United States Constitution law, refuse medical treatment. or the Texas Constitution and common transfusion, to refuse a blood and we have note, however, We that several distinc- However, found none. we do not reach persuasive authority tions reduce the these issues. Supreme opinion. Illinois Court’s Instead, we hold that the law is not set- First, the court held that a “mature mi- concerning tled in relators’ favor whether a right nor” has a under Illinois com- 16-year-old has constitutional and com- and, mon law to refuse medical care unlike rights mon-law to refuse a blood transfu- appeals, the court of refused to address the sion. Because state and federal law is E.G., first amendment issue. In re issues, unsettled on these there was 816, Ill.Dec. at 549 N.E.2d at 328. The given evidence that the minor not would be opinion does not address federal constitu- they blood transfusions unless were neces- tional law or Texas constitutional and com- sary, relators have shown no abuse of dis- adopted mon law. Nor has Texas the “ma- respondent’s appointment cretion in the ture minor” standard. temporary managing CPS as conservator Second, developed the evidence in the Abor, of the minor. greatly trial Illinois court differs from that We overrule the motion for leave to file developed in the instant case. At the hear petition for writ of mandamus. ings, E.G.’s doctor testified that E.G. was competent consequences to understand the treatment, accepting rejecting impressed maturity

that he was with her sincerity

and the of her beliefs. In re

E.G., 811, 139 Ill.Dec. at 549 N.E.2d at 323. general The associate counsel for the Univ McGUIRE, Wayne Appellant, Ronald ersity Chicago Hospital corroborated v. Further, testimony. E.G.’s doctor’s Id. SONS, INC., E. SEAGRAM & JOSEPH psychiatrist testified that E.G. had the ma al., Appellees; et turity 21-year-old level of an 18 to competence that she had the to make an BENOIT, Individually and as John W. informed decision to refuse transfu blood Representative of the Estate of Eva sions, if this choice was fatal. even Id. Benoit, al., Appellants, Mae et 812, In the Ill.Dec. at 549 N.E.2d at 324. case, only testimony instant similar SONS, INC., JOSEPH E. SEAGRAM & testimony that the minor un father’s al., Appellees; et derstood that the refusal of a transfusion could fatal. David FREEMAN & Inez Third, testified the Illinois E.G. before Freeman, Appellants, court, thereby demonstrating her com- trial consequences petence to understand INCORPORATED, HIRAM WALKER case, mi- In the instant her refusal. al., Appellees. et testimony presented was not nor’s No. 09-89-092 CV. trial court. Texas, 1) apply Appeals court did not feder- Because Court Texas constitutional Beaumont. al constitutional law or law, 2) or common the record before 24, May testimony establish- Illinois court contained Rehearing Denied June 3) ing competency, and the minor’s court, do not find the minor testified we opinion per- Supreme

Illinois Court’s

suasive. *3 Beaumont, Umphrey, Robert M.

Walter Associates, Campbell, Daing- Harold Nix & erfield, appellants. for Weber, Martin, Regi B. O.J. Elizabeth Pratt, Gonsoulin, Weber, Mehaffy, Keith & Beaumont, Ichel, W. V. David Michael Cor- March, Thacher & rigan, Simpson, Bruce I. Bartlett, Low, City, New York Gilbert I. Beaumont, Tucker, Theo- Orgain, Bell & Voorhees, Jr., Lister, Laird dore Charles D.C., Hart, Reich, Washington, F. Steven Green, McGown, H. R. Edward Michael Weller, Beaumont, Green, Re- Wheelus & Schupbach, Corp., F. becca Brown-Forman Louisville, Adams, Adams, Ky., Kent M. Bernsen, Donaldson, Duesler & David E. Benckenstein, Norvell, Grove, E. David Nathan, Ledyard, Bernsen & David W. Scheer, Strong, Pipkin, L. Nelson Richard Bissell, Beaumont, Tex., appellees. for & OPINION BROOKSHIRE, Justice. separate consol- litigations

Three appeal. Although there are sev- idated they to for plaintiffs, eral will be referred McGuire; harmful health. 12. Alcohol is brevity as the several defendants Seagram. The latest be referred to per will harm- (2) day drinks Over two 13. his Fifth pleading of McGuire is live ful to health. peti- Original Petition. In that Amended signs They to warn failed damages certain McGuire seeks tion symptoms of alcoholism. diseases, ruin, injuries, bodily financial symp- on the They failed to instruct anguish, and loss of consortium mental toms alcoholism. brought by the “ad- caused about use They to instruct on safe failed drug, named dictive alcohol”. above drug. various causes of action and elements *4 They failed to warn alcoholism 17. basically RE- damages are founded on discord, family prob- causes marital (SECOND) OF sec. STATEMENT TORTS problems. and lems financial (1965), according plead- to 402A McGuire’s They 18. failed to warn alcoholism and ings. recovery of Other theories conjugal destroy will deteriorate or pleaded. Among also causes of action are relations. implied of negligence, these are breaches They 19. failed to warn alcoholism fitness, merchantability of and warranties is a disease and that recov- lifetime Trade conspiracy, Deceptive the Texas and ery impossible. is McGuire, charging negli- Practices Act. prohibits That addicts from 20. “denial” to and to warn and failure gence failure recognizing an addiction and receiv- instruct, alleged Seagram negligent ing treatment. failing “and all to warn Ronald McGuire following particular Americans” in the mat- is 21. That treatment addiction ters: very costly beyond and the econom- ic means of most alcohol addicts.

Failure to and Warn Instruct latent, They 22. failed to warn These defendants failed warn Ron- hazards, to hidden concealed de- and that; ald McGuire and all Americans dangerous fects and effects of drug alcohol. alco- 1. Continued use or excess use of They to warn Ronald hol the liv- 23. failed would cause cirrhosis of family and friends of the er. McGuire’s signs symptoms alcoholis. drug. 2. Alcohol is a [sic] depressant. 3. Alcohol is a They to instruct Ronald 24. failed 4. Alcohol causes of the stom- diseases McGuire, to family friends ach and duodenum. encourage help him to seek 5. inhibits medical treatment. Alcohol symptoms first of alcoholism. cells 6. Alcohol is toxic the brain Seagram pleaded negligences, To and tissues. A special exceptions. basic thrust leveled toxic to Alcohol is tissues Seagram’s special exceptions that the stomach, liver heart. commonly are beverage effects of Drinking pleasure alcohol for Seagram contends there is no known. purposes may lead recreational the consumer of this common to warn psychological physical depend- knowledge. ency. (SECOND) OF TORTS compromises immune RESTATEMENT

9. Alcohol (1965) 402A system. sec. people genetically predis- are

10. Some sought damages and avidly also posed alcoholism. alleged causes for relief on certain pleaded upon the action founded RESTATE- Psychological and social factors (SECOND) sec. 402A person MENT OF TORTS predispose a to alcohol- sum, 402A, (1965). “Strict In brief Section ism. separate paragraph In a Liability”, liability deals the strict with (or manufacturer) imposed liability should be the seller or a consumer. another physical harm to a user defendants because of (1) provides (SECOND) one who sells Subsection violation of RESTATEMENT any product in a condition unrea- (1965). defective The thrust of OF TORTS sec. 402A sonably dangerous to the consumer sub- allegation is that physical thereby harm ject produced whiskey other manufacturers had consumer if the sell- caused to the ultimate products placed and other alcoholic selling that engaged er is in the business of Some of same in the stream of commerce. expectation is that product and the McGuire, consumed never- them were reach the consumer product will and does theless, collectively these defendants knew change in substantial its condition without known at the time that the or should have sold the manufacturer or seller. when hu- injurious sold would to the although applies rule the seller has body of body especially man prepara- possible exercised all care Hence, the failure to warn McGuire. although sale of his tion and use, safe and to instruct as to *5 bought product has not the the consumer thereby rendered the and other any rela- from or entered into contractual unreasonably danger- beverages alcoholic excep- tionship the seller. Additional with the same marketed and that ous as were by Seagram major to a tions leveled in- failures to and failures to warn simply legal no effect that the lawsuit had if not a producing struct were a cause claim or basis and was not an actionable made proximate cause of the occurrences Furthermore, cause of action. the lawsuit litigation. of the the basis pleaded supportable by the of is not law Then, alleges that he suffers McGuire product liability. strict or strict This dis- from the disease of alcoholism. tack, Seagram’s group later On a second psycho- physical ease of alcoholism is a and special exceptions pronounced that a logical dependency on alcohol. Alcoholism product permitted by law to be manufac- requir- put special in a class McGuire consumption in tured or that is safe for ing adequate warnings. full limited, quantity, although precludes some charges although fully then aware any product strict the manufacturer from beverage nature of alcohol the addictive liability. defendants, others, being Seagram and the any warnings to totally provide failed to Duty to Warn McGuire, stating Seagram and further that pleading a on the McGuire also had at all times ma- the other defendants were unreasonably to warn in connection with an material terial and have been at all times alleges that dangerous product. McGuire increasing number fully aware of the ever provide in- a to warn and a suffering serious of Americans from this structions for the safe use sets forth disease of alcoholism. McGuire it initially arises in law when is known concerning development of pleadings the that a reasonably foreseeable development of the ad- alcoholism and the danger pose serious risk of harm or when thereto, pleadings con- diction as well as reasonably foresee- used for its intended or addict, becoming cerning process the misuses. McGuire purposes or able averring process begins as a that such Seagram and others knew of pleasurable activity, least to seemingly prod- harm users of their potential the extent it some sort of bad the relieves alleges that based ucts. McGuire feelings. pro- and for the public policy considerations However, then, drug period of the over a general public that the strict tection of the drinking time and after a duration of placed must on the liability doctrines unsuspecting way to usage, becomes in an products marketing of alcohol when the user a means or method which in the stream of commerce placed same are attempts personal individual user to solve or distillers or brewers. by their makers individually conspiratori- fendants, and in a feelings. negative handle problems and intentionally have charges that alcohol al concert with DISCUS dogmatically to warn the drug negligently the brain failed an addictive and also is presence of the in detail in his accustomed as set out public becomes American higher dosage drug higher original petition. DISCUS fifth amended drug required intake Spirits Council of stands for Distilled psychological effect and produce the same States, unequivocally Inc. McGuire United heavy that the becomes a user of individual are of alcoholism pleads that drug increasingly preoccupied known, vehemently charging commonly not actually consumption thereof and with dangerous products are to an that alcoholic drug is drug craves when the absent. beyond extent that which would be contem- Hence, individual becomes alcohol de- ordinary pur- who plated by an consumer pendent. other like or similar Numerous ordinary products chases with the such allegations pleads exist. McGuire that ad- community knowledge as to common disorder, is a progressive diction to alcohol its characteristics. beginning social recreational drink- with allegations, many factual There are other ing developing psychological but into de- one of is that and the other which pendency physical dependency then to special have had defendants decades many users. knowledge dangerous propensities there Appellant maintains that are drug unreasonably dangerous known those who have become or will become representa- commonly as alcohol and that genetic pre- alcoholics certain because industry tives the alcoholic DISCUS *6 disposition complex certain or because of many and have attended seminars meet- psychological social factors. McGuire ings disabling ef- where the medical and are, fact, states in sick and that alcoholics fects of alcohol were discussed. Further- diseased a people who suffer from disease more, industry that research revealed Thus, industry, known as the alcoholism. each of the harmful effects involved. being the distillers and and brewers ven- Moreover, the defendants and DISCUS and dors, has a to warn social and recrea- industry the had full knowl- alcohol have tional of the addictive nature of imbibers edge consumption increased of the alcohol industry alcohol. The has a warn consequential ravagings society and its of genetic predispositions of to alcoholism or II since the end of World War and that that psychological or social factors industry these defendants and the have predispose person a addiction. alcohol promoted profited from increased Other duties are set forth. These are Therefore, charges consumption. McGuire mainly types. duties to warn of various industry that the defendants and the have substance, In he claims that warn- dangers consuming of to warn ings specific must be in certain cases. product, being unreasonably dangerous charges McGuire that and the the drug alcohol. beverages other manufacturers of alcoholic says proper, McGuire that full and ade- past per- have in the known that over effective, quate warnings would be inform- profits cent of their from come about inexpensive. appro- ative The cost for percent public of the American that suffers priate significant warnings would not from disease of alcoholism alcohol fact, In be burdensome. the cost of such Nevertheless, abuse. these makers alco- warnings labeling esti- reasonably hol and sellers alcohol maintain their per penny mated at about one bottle. year glamorous billion two dollar media warnings addition to the labels and there- advertisements and inducements which en- on, employed have courage these defendants could percent population this 13 advertising some methods to instruct ade- greater greater quanti- consume even products. quately in the safe of their drug ties of use alcohol. McGuire distillers, brewers, contrary, only message But on that these vintners and given have is that alcohol is vendors and other manufacturers and de- the defendants that the manufacturers consumption defect. He avers consumption and that safe for placed in the stream of ages and manufactured and any by amount all is safe being products, every stage of adult commerce these alcoholic continuously through by McGuire. whiskey which was consumed life. defendants knew or says that the unaware of he was McGuire avers that developed reasonably by the exercise alcoholic addic- signs symptoms of foresight have skills and should human public upon the advertise- tion. He relied whiskey was at the time that the known magazines newspapers, and bill- ments in the hu- injurious it sold that would defendants. These issued boards Therefore, failure to warn body. man instilled McGuire that advertisements as to the safe or to instruct way life drinking was a that was alcohol whiskey thereby unrea- use rendered the rich, affluent, safe, socially accept- happy, was mar- sonably dangerous as the same family people And that business and able. keted, warn and and that this failure to pinna- reached their who were successful cause of producing failure to instruct was a drinking they and that cles of success damages. injuries pinnacles their success and also rewarded by drinking. McGuire of achievement Commercial Code athletes, big game hunt- charges that even Uniform according to the adver- sportsmen, ers acts and pleads also that certain media, tising people who drank alco- im- to a omissions amounted breach ages beverages; people of all holic merchantability, stating plied warranty of drink, age. ripe old These even those herein are the defendants in McGuire the created advertisements merchants, whiskey sold to and that drinking and false false illusion belief because it McGuire was not merchantable his health. McGuire avers was safe for adequately labeled and was not properly had he been advised about alcoholic, McGuire, fit for the it was not destroys toxicity the fact that purpose for which it was ordinary use or slow, painless, unobservable and brain whiskey did not con- actually sold and the *7 that he would have undetectable manner that promises form to the and affirmations sought help and have avoided alco- would radio, mag- many newspaper, were made Furthermore, had he been holic addiction. azine, advertise- billboard and television consuming alcohol or advised that warned was a ments and that the unfit condition would, according petition, to his cause ques- of the occurrences proximate cause ultimately damage, liver disease and brain injuries to damages and of the and tion death, definitely heeded he have would ANN. TEX.BUS. & COM.CODE McGuire. warnings. not know of such But he did 2.715. secs. 2.314 and He disastrous matters. became these there existed also McGuire drug from alcohol. His victim of addiction implied warranty of fitness a breach of an damage. addiction resulted in brain ANN. TEX.BUS. & COM.CODE under con- allegations exist Numerous other out that the and 2.715. He sets secs. 2.315 mental and cerning physical, McGuire’s sellers of defendant manufacturers and He psychological health or lack thereof. the sales had ade- whiskey at the time of of the acts every avers that each and one pur- particular to know the quate reason para- in his or omissions that are set out whiskey sold and pose for was which these graph negligence V was and McGuire, alcoholic, used or consumed cause of negligent proximate acts were him. and others and others like damages injuries to McGuire. upon whiskey sell- relying then to furnish a suit- judgment ers’ skill and Issue Warning Nevertheless, Defect whiskey product. able was unfit at material times that was sold paragraph he sets forth another Sons, purchased purpose for which it was for the Joseph E. & warnings of the it did not have Inc., warning correctly founded because indus- Hence, Publicly the alcohol promoted 1. hazards of alcoholism. drinking is condition, try position that alcohol especially in an unfit injurious unfit to health. like him. This not McGuire and others proximate was the cause condition from around 2. Monitored literature suit. the basis of the occurrences made and its effects the world on alcohol body attempted

on human suppress reports. unfavorable to Alcohol Alleged Effects Harmful reports. Challenged 3. unfavorable harm- alleges some of the influence Diluted diminished the 4. liver, fatty alco- effects of alcohol are: ful reports. of unfavorable liver, cardiac hepatitis, cirrhosis of holic Generated, pre- arrhythmias and cardiac contractil- caused to be reduced 5. or refuting muscle ity, myopathy, cardiac non-cardiac and articles pared, papers disease, gastritis, gastric ul- hypertension, consumption harmful that alcohol disease, diabetes, pan- body. cers and intestinal disease, disease, kidney anemia and creatic grants per- Carefully 6. controlled malnutrition, bleeding, system dys- immune issue sons institutions that would susceptibility increased function with reports articles favorable diseases, pneumonia and other infectious industry. drug alcohol mouth, tongue, lar- pharynx, cancer Intentionally negligently dis- 7. liver, ynx, esophagus and breast cancer in- misleading seminated false females, Syndrome, Fetal Alcohol sexual drug. formation about alcohol problems, gonadal atrophy and other en- negligently sup- Intentionally dysfunctions, dangerous docrine reactions pressed and medical infor- scientific drugs medicinal which with inhibit mation beneficial consumers. dis- complicate medical treatment for other Acted in with the alcohol concert eases, depression leading to alcohol-induced industry positions to take uniform suicide, dependence dangerous with suppression of on information reactions, cognitive dysfunc- withdrawal creating con- a false illusion in the including damage tions brain and the Wer- drug sumers mind about the alco- Syndrome, impaired nicke-Korsakoff abili- hol. ty operate machinery equip- to drive and

ment, poisoning by and accidental alcohol. positions Took before Federal its agencies

Government and *8 contrary wel- health and DISCUS of Americans on con- fare all alcohol lengthy pleadings McGuire has adverse sumption mak- profit to further the Distilled Spirits Council of the Unit- ing industry. of the alcohol States, Inc., acronym of by ed known against stand warn- 11. Took uniform with DISCUS. McGuire DISCUS ings, labeling and dissemination of being organizational manu- an arm of the unreasonably information about drug spirits facturers distilled and the dangerous product; governing being its com- alcohol with board in ad- industry 12. the alcohol Guided top companies prised of executives of the vertising greater to influence manufacture, sell, and distribute existing consumption by continued actions, poli- The drug profit. alcohol for to attract new alcohol users and public representations and the and mis- cies drug consumers. reality in representations of DISCUS have Intentionally failed to disseminate industry. those of been the alcohol on the harmful effects information own, pleads that its DISCUS on of alcohol. acting conspiracy also in a with but industry, Intentionally follow- failed warn engaged in the alcohol and, consumption hazards ing matters: Intentionally plaintiffs failed to instruct on the entire lawsuit was dismissed safe use of alcohol and instruct on prejudice with and the order of dismissal drug. addiction to the special was based exceptions, we approach appeal must in accordance Hence, by pleading DISCUS indi- with certain precedents. well-established fraud, vidually negligence, liable for con- The prejudice dismissal with the State cealment, suppression misrepre- and also court proceeding is limited. When the further, sentation. And actually that has pleadings action, state cause of a dismis- conspir- become liable of its because active sal with prejudice special excep- based on acy Sons, Inc., Joseph with E. & tions testing is incorrect and in whether the Inc., Distributors, Tarrant and the alcohol pleadings action, state a cause of we are industry. accept contents, bound to as true the alle- gations Deceptive Texas Trade reasonable intendments of the plaintiffs pleadings. Practices Act live We must neces- sarily assume that all allegations Additionally, up lengthy McGuire sets alleged material facts are true. El pleadings and detailed under the TEX.BUS. Poole, Corp. (Tex. Chico 732 S.W.2d 306 17.41, & seq., COM.CODE ANN. sec. et 1987); White, Wheeler 398 S.W.2d 93 commonly known as the Texas Deceptive (Tex.1966). balanced, It’s a reasoned state Trade Practices and Consumer Protection pronounce Seagram’s ment to special Act. He further unequivocally states that exceptions were sustained theory on the practices unlawful acts and described that the commonly effects of alcohol are within the DTPA were knowing- committed known and that no exists to warn of ly by the defendants. addictive, debilitating deadly ef McGuire states he has injuries sustained fects of pleadings alcohol. In view of the and resulting proxi- disabilities which were of McGuire we hold that a does exist mately by gross caused negligence pleadings coupled under the with their rea breach of the various warranties. Further- logical, sonable intendments compel more, says he placed that the defendants ling, necessary inferences therefrom. the stream unreasonably of commerce an holding exists, perceive that a we dangerous product, having been marketed that the law is not inflexible dead letter. with misrepresentations. material There The law can and should in certain areas misrepresentations, acting together, have experience reasonable evolution. See Otis resulted in being producing cause of the Clark, Engineering Corp. v. injuries, damages, and disabilities suffered (Tex.1983). Texas courts have with these, McGuire. As a result of consistency made modifications in the law pleads damages for all of allowed of torts as the need therefor arose in a including, to, law past but not limited changing, modern society. industrialized anguish, future mental past and future Schindler, See Sanchez v. physical pain 651 S.W.2d 249 suffering, past and fu- (Tex.1983); Park, Inc., Highland Parker v. physical ture impairment, earnings loss of (Tex.1978); 565 S.W.2d 512 McKisson v. past, earning capacity loss of in the *9 Inc., (Tex. future, Affiliates, Sales 416 S.W.2d 787 past expenses. and future medical 1967); Sons, Capps, Decker & Inc. v. 139 He asked damages pursuant for additional 609, (1942). Tex. 164 S.W.2d 828 to Section 17.50 Deceptive of the Texas Trade Although Practices Act. there are negli The common law doctrine of many other allegations significant gence ordinary or failure to use due or care pleadings purpose it would serve no useful composed prerequisite is of three elements. elongate to portion this opinion. of the legal duty by per The first is a owed one

The district entity person entity. court entered an or son or to another or special exceptions der on sustaining the duty. The second is a breach of that Third same, and plaintiffs dismissed the Fifth are resulting damages proximately that are Amended prejudice. Petition with by duty by Since caused the breach of the the or

851 prod- of the consumption or safe use offending safe negligence party. of the Rosas Store, 534 uct. Food 518 S.W.2d v. Buddie’s describing (Tex.1975). defining or ultimate A manufacturer seller’s “duty”, Supreme has written the Court distribute, mar manufacture or decision to negligently if generally party one at times product necessitates ket and sell a it then becomes creates a situation against utility balancing product’s it in order to duty something to do about dangers. A factor in this deci its known reasonably

prevent injury to others it if important derived may sion be the benefits him that appear to appears or should prod consumption or from the use in their law- the exercise of persons other in uct. lack of realistic cer The benefits rights thereby suffer- injured, ful be so, tain is to considered. Even cases be Rose, ing 138 damages. See Buchanan when balanced decision leads (1942). 390, Tex. 109 product be mar that the should conclusion duty in is the fore- important A element keted, manufacturer or seller has a seeability Corp., of the risk. El Chico responsibility duty to and en and a advise foreseeability the addressing supra, In Su- lighten the consumer of the risk harm. that it known preme Court stated have the to in These same actors knowledge that distorts common in consumer the safe use or struct reactions, perceptions, impairs slows motor product. The failure to consumption of the operation in the of a motor skills while warnings in give adequate and sufficient respect deep affording vehicle. Id. While indeed, may, and directions ren structions (SECOND) for the RESTATEMENT OF dangerous. product unreasonably der the (1965), to 402A we decline TORTS sec. Paper Products Borel v. Fiberboard Cor h, i, j bound all of the sentences in (5th Cir.1973), 1076 poration, 493 F.2d except set out under Section 402A. We 869, den’d, 42 cert. U.S. 95 S.Ct. pointedly i. to (1974). reasoning The behind L.Ed.2d principle this that the consum pleadings McGuire Under the judgment er is to exercise his own entitled we conclude that in addition to the manu at his own choice as to wheth to arrive separate facturer’s there is a warn product’s utility er or not the or benefits provide adequate information exposing himself to justify consumer safely will enable the consumer the risk involved. Id. Sales, product. Duty use the Use Warn and Instruct Safe Accountability of Defendants Liability, Strict Tort 13 ST. MARY’S L.J. (1982). The manufacturer is to be held to Directions instructions product knowledge expert. This proper consumption and skill use expertise cogent are deter purposes subserve different which dis material given. warnings mining tinct Directions whether the manufacturer knew from dangers and enlighten should have known of the instructions the consumer safe, risks the manufactur proper, user of the in the involved and whether negligent failing efficient, use of er was to communicate non-harmful expert knowledge and infor proper procedures superior, unsafe and the to avoid consumption. or unsafe the other mation to consumer. Borel Fiber uses On Likewise, hand, board, supra. manufacturer’s warnings to the ulti communicate expert definitely connotes that mate inherent status consumer the keep must current on product. pages 553- the manufacturer the use Id. at Thus, prod knowledge, discoveries *10 general scientific scientific awareness of presumption A exists dangerous may relieve and other advances. uct’s characteristics knowledge of a to warn of the manufacturer duty manufacturer characteristics; Fur what these fresh discoveries reveal. dangerous those known ther, nevertheless, duty to has an the manufacturer has a test manufacturer ad testing and research product. out for the his ditional set instructions 852 involving prod- knowledge such in sensus of the risk commensurate with

must be Vastly increas- beverage as alcohol. law. See and ucts applied Borel Texas volved. Brown-Forman, relationships between ing complexities 758 compare Brune v. (coupled with among beings human (Tex.App. Corpus Christi S.W.2d 827 — knowledge Later, of scientific 1988, the said order entire new fields granted). writ wisdom) judi- empirical importune denied. See and and writ was withdrawn conservatively, Houston, ciary and to Inc. v. to reexamine compare Boatland of Indeed, (Tex.1980). prudently, implant duties. See correlative 748 Bailey, 609 S.W.2d Prosser, Torts knows or W. Handbook the Law product of a if a manufacturer care, (4th 1971); Engineering ed. ordinary should know sec. Otis exercise of Clark, Corp. supra). to a user be v. potential harm or risk product, then a nature of the cause of the pleadings we Attuned to McGuire’s live placed upon the manu imposed and beverage alco- perceive alleged that he adequate warning of give an facturer unreason- hol and was an Bristol-Myers dangers or risks. Co. such him and that it ably dangerous product to (Tex.1984); Gonzales, beyond that dangerous to an extent Laboratories, Winthrop Crocker contemplated by the ordi- would be which (Tex.1974). S.W.2d 429 ordinary product with nary user of the community in knowledge common to the product may A deemed to be a product’s charac- which he lived as to that unreasonably danger if it is defective one the manufacturer teristics and adequate warnings or instruc ous because inadequate warnings and insuf- gave seller There provided to the user. tions are not reasonably safe ficient instructions for the fore, required to may be the manufacturer consumption of reasonably use and safe instructions and directions give adequate Indeed, argues product. product as to its on the container giv- warnings and no instructions were no give And this proper and safe use. en. includes the directions also instructions and against and to instruct

duty to warn Duties, misuses. Blackwell against foreseeable Liability: Products Plaintiffs’ Co., Cerda, 644 S.W.2d 512 Inc. v. Burner Duties Defendants’ ref’d (Tex.App. Antonio writ —San knows Basically, when a maker n.r.e.). danger or potential should know of a the nature injury to a consumer because of Corp., supra, Attuned to El Chico pro Wheeler, and its likelihood Borel, supra, we supra, use, maker of that longed then the pleaded a cause conclude that McGuire warning duty-bound give adequate dangerous showing that alcohol is a action provide injuries such and to dangerous prod unreasonably drug and an adequate instructions for plead and sufficient is based on uct. This conclusion product. Bristol-Myers wrought reason safe use of the courts have ings. Texas Co., discharge his duties supra. And to law of torts as changes in the common able liability concept products changing under the strict arose in a need therefore required to may be knowledge scien the maker and seller and new society. New as and instructions well products as furnish directions (involving such research tific concerning its warnings container alcohol) grounds for on the are sound beverage Inc., Industries, safe use. v. Texas pragmatic duties Lucas enlightened, pronouncing (Tex.1984). And 696 S.W.2d 372 pronouncements have These tort law. encompass the duties to warn prop duties also traditionally the historically and been con give instructions and directions and to judicial branch. With province of the er are foreseea cerning those misuses which respect prece and full judicial restraint Cerda, su Burner Co. v. dent, proper its am ble. Blackwell is within judiciary results from an changed When the defect drastically pra. simply recognize bit to labeling inadequate warn- inadequate scientifically new con- sound conditions and

853 misrepre- misrepresentation. The upon di- the ings instructions and inadequate or public to may made the use, the is sentation be for then defect rections safe the misrepresents material fact about a separate as a matter from the considered of chattel quality characteristics the very product itself. See Technical Chemi- illus- (1972). the comments and 602 sold. Attuned to Jacobs, cal 480 S.W.2d Co. 402B, pro- liability following Section we Hence, an trations products in a case strict record, whiskey is a that, litigant does nounce under injured damaged not have 402B, 3, deals chattel. illustration proving or Section going of forward the burden by used women appreciation with a to be knowledge and that he lacked to giving “permanent Nor home for waves” danger does that involved. is in The findings their The bottles. have on these hair. plaintiff to obtain may made misrepresentation be plaintiff discharged The has his actionable issues. public. by showing the maker and distri- that duty. had a and breached the buter by pleadings a raised Rogers, & Dixon Van Waters against of effica cause action DISCUS (Tex.1984); S.W.2d Crocker v. Win- concerning ciously alleging conspiracy a supra. throp, greater alcoholic advertising that led course, consumption. pleadings There are also Of a manufacturer who that were to the effect that certain vital special knowledge prior scienter suppressed. Dam deleterious facts were potentially danger the safe use of a about aging ingestion of circumstances, consequences product, ous under certain long suppressed. These supply periods a that over special is under course, pleadings, accepted must knowledge and its be information to users and Fiberboard, they do a cause true. We decide state supra. consumers. Borel v. conspiracy

of action for conceal for a (SECOND) compare Rogers RESTATEMENT OF ment. See and v. R.J. TORTS (1965) Co., Reynolds sec. 402B Tobacco den’d). (Tex.App.—Beaumont writ plead We the live conclude plaintiff We conclude that the ings by buttressed reasonable intendments by pleadings raised under well-estab healthy stated cause of action RE under precedents lished the causes action that (SECOND) STATEMENT OF TORTS sec. Original pleaded he in his Fifth Amended (1965). gravamen 402B The Section Petition. 402B is that engaged one in the business of chattels, selling sum, by advertising plaintiffs’ la who we conclude pleadings pursuant bels makes a misrepresentation materi various to authorities character, plaintiffs al fact concerning precedents entitle the to a nature quality of a by entrepre chattel sold trial on all of the theories and causes recovery neur is or action subject rights as set out physical pleadings making harm user the dismis- to the consumer or various course, resulting justifiable when from a reliance sals erroneous. Of whether upon representation. proof upon misrepre and evidence the trial of support sentation is and cases will the various issues raised touchstone of action misrep pleadings another though such action will lie even matter—that day. fraudulently negli resentation was matter will have to await a future not error, plaintiffs in gently though made and Since we have found even consumer relationship open opportunities had have full or user no contractual court will remedies, proved if any with the seller or maker. to obtain their are Section 402A evidence, by probative, competent any upon misrepresen not based or founded depend injuries Section 402B due to TEX. tation. does actionable them. I, misrepresentation 13. The physical judgments followed CONST.Art. sec. reversed; re- harm a consumer of the chattel dismissal the causes are when are justifiable resulted harm from reliance manded.

Query: probata Will the sustain allegata?

meet the AND REMANDED.

REVERSED Justice,

WALKER, concurring. Chief concurrence is to

The reason for this inconsistency. The three

explain my own appeal into this all came

cases consolidated

from the 58th Judicial District Court where court, granted judge

I as of that Defen- Exceptions which Special effectually

dant’s of the Plaintiffs causes of

defeated all I

action. I did so because believed such proper under the

action to be State prior opinion as it existed to this and in

law

spite my personal philosophical feel- I

ings my own. believe this to be the judge spite argument a trial contrary. things

I cases in concur all

reversed and remanded for trial on the

merits. Appellant,

Mason STAGGS Abilene, Thedford, appel- for Davfd W. lant. Appellee. of Texas STATE Eidson, Abilene, Atty., James Crim. Dist. appellee. No. 11-89-146-CR. Texas, Appeals

Court of OPINION Eastland. DICKENSON, Justice. 31, May Staggs 16-year-old student Mason was a Cooper High he shot a School when Rehearing Denied June learning that he teacher in the face after grade report failing receive a on his would grading peri- for the second six card weeks trial as an adult od. He was certified for hearing juvenile court. After after a accepted plea guilty, his the trial court probation jury rejected request his years punishment at 14 and assessed felony degree the second confinement1 for (Vernon 1974) person provides convicted of 1. TEX.PENAL CODE ANN. 12.33 §