Turner v. General Motors Corp.

probably influenced in the reduction of $474

by the accusation jury arguments plot” there was a “sham or a to “build

those up high. medical bills real higher bills, obviously medical he got has to be

hurt if got he has all of those medical bills. good

It will look jury.” front of a

I would affirm the of the Court

of Civil Appeals. JOHNSON, J.,

SAM D. joins in this dis-

sent. TURNER, Petitioner,

Robert A.

GENERAL MOTORS CORPORATION et

al., Respondents.

No. B-7747.

Supreme Court of Texas.

June 1979.

Rehearing July Denied Gunn, Austin, Krist, Reavley,

Thomas M. Neumann, Ronald D. Krist Weller & Houston, Weller, Jr., petition- for Harvill E. er. Elkins, Thompson, Raybourne

Vinson & McAninch, Nickens, Cop- Jr. and Jack C. Jaworski, Teltschik, pock Pulbright & & Machines, A. and Robert James B. Sales Houston, respondents.

ON FOR REHEARING MOTIONS STEAKLEY, Justice. March delivered thereon,

21, 1979, judgment based and the following is now the are withdrawn. The opinion of the Court. his 1969 A. Turner overturned

Robert sedan, Impala manufactured Chevrolet Corporation, while sold General Motors seeking ably dangerous” given jury by avoid a collision with a truck. trial lan- substantially The car rolled over once and the roof caved court was in the same guage Corp. Hop- in at the used in driver’s corner when it contacted kins, ground. (Tex.1977), the Court Although his seat belt buckled, was not ruled that Turner was struck on his head and and that proper in a crashworthiness case resulting suffered a crushed vertebra in balance jury the should be instructed to paralysis. It is the not contended that de- determining whether or specific factors in sign of the the automobile or roof had injury design causing the was defec- not the part causing in the accident. tive: Turner sued and the deal- the that the follow- We are of er, Kliesing Company, products in Motor balanced, direct- ing as factors should be action on a strict tort theo- Turner, making the determina- by ed in ry, alleging the uncrashworthiness of the is not design is or tion of whether the automobile. General Motors did not inter- (1) product to defective: plead the driver or owner of the truck. as a whole public the user and to the a venue appeal it was ruled that under this and likeli- weighed against gravity doctrine a manufacturer may and retailer use; (2) the avail- its injury hood of from strictly be held liable in tort for a defective- ability substitute ly designed automobile which enhances the not be need and would meet the same injuries plaintiff of the but does not cause (3) unreasonably expensive; unsafe or the accident. Turner v. Motors General eliminate ability manufacturer’s Corp., (Tex.Civ.App.1974, with- the unsafe character of the e.). writ ref’d n. r. seriously impairing usefulness out its Upon subsequent trial of the merits costs; (4) significantly increasing its Turner’s action now before us the of the dan- anticipated user’s awareness following answered the issue in the affirm- gers and their inherent ative: general public avoidability because knowledge of the obvious condition SPECIAL NO. 1 ISSUE product, or of the existence of suitable you preponderance Do find from a warnings or instructions.

the evidence that at the time the automo- at 818. question by bile in was manufactured court court the trial also ruled that General was Motors roof structure an indus- excluding erred in evidence that defectively designed? strength, for roof try practice or standard By “defectively designed” the term as admitted Motors and offered General design used in this issue is meant a that is evidence, subsequently embodied was into unreasonably dangerous. Safety Standard in Federal Motor Vehicle “Unreasonably dangerous” means dan- promulgated in was No. 216. standard gerous beyond to an extent that which December, 1971, Highway by the National contemplated by ordinary would be and became Safety Traffic Administration it, purchases consumer ordi- who The car in September effective on nary knowledge common to the communi- and the in 1969 purchased was ty as its characteristics. April, 1971. accident occurred jury similarly produc- answered the writ granted applied for and Turner ing response issue cause issue and in rulings of the inter- these of error to review $1,140,000. damages on the sum of assessed reply Motors in its mediate court. General court also erred (a) that the trial The trial court for Turner was asserted dangerous by Appeals reversed its definition of Court of Civil expectations requiring Af- that consumer the cause remanded. 567 S.W.2d 812. reasonable, refusing the alternate stating ter “unreason- that the definition of

«47 standard; (b) Appeals, the Court of Civil as well prudent manufacturer that a balancing specific factor instruction in re- con- upon expectations spects required Ap- by the of Civil sumer, trial of may be admissible peals is essential in a conscious this, however, disap- we such cases. As to case, here, crashworthiness in distinction prove holding of the Court alleged to cases where the defect is to have that the instructed is to be resulting caused the accident as well as factors, specifically balance enumerated injury; (c) only authoritative Civil Court of whether those listed strength standard for roof was the one sub- Appeals, or otherwise. sequently adopted govern- by the federal “unreasonably dan 2. The definition ment and the was entitled to know consist the trial court is gerous” given by itself, both the standard and its source. writings in Hender previous ent with our Kliesing Motor Com- (Tex. Co., son Motor 519 87 v. Ford S.W.2d pany applications filed conditional for writ Hopkins, 1974) Corp. v. and General Motors granted. which were also Certain of their (Tex.1977). Signal also See 548 S.W.2d 344 points will be summarized because of their Products, 572 & Co. v. Universal Oil Oil Gas relevance rulings to the discussion and im- v. Cater (Tex.1978); Gonzales S.W.2d 320 follow; mediately to others will be noted (Tex. Co., 867 pillar Tractor 571 S.W.2d argued thereafter. It is that conscious de- Co., Laundry Machine 1978); Bock Miller v. sign cases should be properly more con- v. (Tex.1977); and Rourke 568 648 S.W.2d negligence engineering ceived as mal- Garza, (Tex.1975). 794 practice cases with the existence of a defec- design tive dependent upon the reasonable- previ- of these Upon 3. re-examination ness of the manufacturer’s action and the writings ous we have determined exercised; due care that was the fact find- liability henceforth in the trial of strict required ers should bo to evaluate the con- design defects the issue and involving cases duct of the manufacturer and to evalu- include accompanying will not instruction itself; ate the and that conscious of the consumer either the element design cases in crashworthiness contexts are manufacturer; prudent or of the principle different in from all other con- respects, Hea- extent of conflict in such design scious alleged cases where the defect Hopkins are overruled. derson and caused the accident. general terms jury may be instructed We will reverse the of the and the utility of the consider the Court judg- and affirm the in its use.1 risks involved ment of doing the trial court. In so we application reaffirm the principles of the Doctrine The Crashworthiness strict liability to suits based on conscious products entering defects in is central to concept of defect channels of commerce. We further hold: brought on a strict products liability action the defect be liability theory, tort whether liability govern 1.The rules of strict manufacture design, or in the conscious cases where the defect caused the accident marketing of the product, of the or in the resulting injuries, and the and in crashwor- See, product. v. Ford Motor Henderson thiness cases where the defect is the cause Co., Darryl v. injuries (Tex.1974); 519 only. upon S.W.2d 87 Evidence factors (Tex.1969); utility of risk and such as those enumerated Ford Motor By “defectively designed” as used the term SPECIAL ISSUE NO. is unrea- in this issue is meant a you preponderance Do find from a of the taking sonably dangerous designed, into [product] evidence that at the time the question product and consideration the was manufactured manufac- [the the risk involved in its use. [product] defectively de- turer] not.” “We do” or “We do Answer: signed? v, Affiliates, Inc., logical McKisson A extension Sales rationale (Tex.1967).2 these in Huff succinctly decisions is stated 104, 109 (7th Corp., F.2d v. White Motor Citing Affiliates, Inc., McKisson v. Sales 1977): Cir. (Tex.1967), 416 S.W.2d 787 we wrote in injured One who is as a result of Pittsburg Bottling Coca-Cola Works of mechanical defect in a motor vehicle Ponder, Pittsburg (Tex. protected should be under the doctrine 1969), yield of our final to the irrefutable liability though strict even the defect was logic rule of strict is pre- not the cause collision only practical protecting vehicle for cipitated injury. There no rational public against harm caused defective limiting lia- basis for the manufacturer’s products. recognized We that McKisson bility to instances where a structur- those committed the the rule of strict and re- al defect has caused the collision liability expressed in 402A Section of The if sulting This even injury. is so because Law American Institute’s Restatement of by a a collision is not caused structural Ed.). (2d the Law of Torts We wrote fur- defect, may precipitate a collision ther: part cause of a defective malfunction prime requirement imposing the colli- injury. that circumstance liability on a seller under rule sion, defect, injury inter- and the are plaintiff proof by strict as a dependent be viewed and should injured that he was of a defec- because is the an event combined event. Such product tive condition in the left when it risk a manufacturer foreseeable that the hands particular Jack seller. should assume. Roach-Bissonet, Puskar, Inc. v. 417 case, e., i. In each where the 262, (Tex.1967). S.W.2d at 278 This is not injuries resulting causes accident and that say proof of defect must be damage or where causes evidence; made or it direct of is one injury only, causative defect usually can only be made circumstan- no dis valid design conscious and there example, Darryl tial As an see evidence. a con in between tinction strict Co., v. (Tex. Ford Motor [440 causing an accident and design scious defect 1969)]. causing injury. an a conscious defect 443 at S.W.2d 548. token, is no rational By the same there Later, in Henderson v. Ford Motor of for a in manner basis difference 87, 92, 519 we at wrote: issues to be determined submission of the The car manufacturer and its dealer required by the fact finder. We have dangerous are liable unreasonably jury for in balancing enumerated factors of and, products designed defectively writings, previous our submission —whether of produced earlier, ruling improperly designed, disapprove or we stated designed or whether such perfectly Appeals im- Court of Civil that case. properly defectively required produced. a crashworthiness feet, Montgomery (1963); upon question & 41 855 There is much literature of Tex.L.Rev. Theory Owen, on and Adminis- Reflections The actionable defect. See RESTATEMENT Liability (SECOND) (1965); Defective Products of Tort for tration OF TORTS 402A Liability: Products, (1976); A Product & How Good Does Have Sales S.C.L.Rev. 803 27 Be?, Liability Fischer, Perdue, (1967); Tort Products Law of Strict 42 301 The Ind.L.J. Defect, Liability Meaning Texas, Traynor, (1976-77); of Mo.L. 39 14 Hous.L.Rev. 1 —The Keeton, Ways Meanings (1974); Lia- Manufacturer’s Rev. 339 The of Defective Products bility: Meaning Liability, The of In (1965); "Defect” The Manu- and Strict 32 363 Tenn.L.Rev. Products, Design Liability Syracuse facture And of Wade, 20 Tort On The Nature of Strict Liability Keeton, (1969); Products, Product (1973); L.Rev. 559 For L. Frum- 44 Miss.L.J. 825 Defect, Meaning Mary’s The And of Friedman, St. L.J. Liability, 5 16A§ er & M. Products Liability Liability (1973); Keeton, Products — Requirement Without Fault The A De- And of Disap- difficulty formulating Legal Liability of of tion and for Product a series specific 1109, pointment, factors which the fact finders will 1370—71 60 Va.L.Rev. factors). instructed to balance is obvious. The (1974) (thirteen majority of the Court of Civil enu- question of whether speaking require merated four it would to be factors jury find- support evidence to there was determining balanced in the fact issue of unreasonably dan- ing was that design; justice defective dissenting Garza, 530 gerous, we wrote in Rourke require sug- a fifth factor. These “Thus, 794, (Tex.1975): gested apparently factors were derived concluding that the risk justified in from two cited law review articles: that of the cleatless outweighed the harm Wade, Liability Dean Strict Tort of Manu- they were there- scaffold boards and facturers, 5,17 (1965) suggesting Sw.L.J. dangerous.” There was fore factors; Keeton, seven and that Dean Rourke, however, suggestion no Liability: Meaning Manufacturer’s instructed to balance should have been Design “Defect” in the Manufacture and against utili- specific factors of risk of harm Products, Syracuse L.Rev. ty- (1969), suggesting four factors. Dean evidence pointed It has been out that the Wade, article, in a later On Nature appropriate ele necessary to address the Liability Products, Strict Tort 44 Miss. be overt balancing ments of criteria should 825, 838, (1973), L.J. offered a revised in a strict liabil ly parties advanced both list of seven factors which seemed to him to action; ity this does not necessari but that significance be of applying the unreason- ly lead to the conclusion that ably dangerous posed standard. He concerning specifically instructed should be proposed of how the are standards Donaher, See, Pieh these considerations. actually to be used in the trial of case and ler, Weinstein, Technologi Twerski and wrote design] that “It is here [unsafe Liability Litigation, Expert cal in Products the policy very important, issues become (1974). See 52 Tex.L.Rev. 1307-08 and the factors which were enumerated also, Green, Liability Under Sections above must carefully be collected and Litigation, 54 402A A Decade of and 402B: weighed. It is here that the court —wheth- 1185, Tex.L.Rev. 1203-06 appellate er trial or consider these —does deciding issues in whether to submit the case to jury. . . . Should Charge Jury The to the be told about the list of seven factors which Gener now to the attack of We turn were set forth above? The answer should Kliesing on the definition al Motors and ” normally be ‘no.’ His conclusion is that in the dangerous” contained “unreasonably the analysis helpful and can be used most earlier, the charge jury. quoted to As by appellate judges, and trial stu- “unreasonably trial court defined the term commentators, dents and but that it is not dangerous” follows: normally given Many jury. to the other means dan- “Unreasonably dangerous” suggested commentators have factors to be gerous beyond to an extent See, Dickerson, utilized. Liability: Products ordinary contemplated would be Be?, How Good Does A Product Have To it, the ordi- purchases consumer who 301, (1967) factors); (five Ind.L.J. communi- nary knowledge common to the Fischer, Meaning Liability Products —The ty as to its characteristics. Defect, 339, (1974) (fif- 39 Mo.L.Rev. to this objection of General Motors One factors); Owen, Montgomery teen Re- & substitute, definition, request its for a flections Theory On The And Administra- as follows: in the trial record is recorded tion of Liability Strict Tort For Defective likewise Products, Motors (1976) (four General S.C.L.Rev. defendant Special Issue factors); Shapo, Representational Theory objects A to the submission Doctrine, submission it is an incorrect of Consumer Func- No. 1 because Protection: pertaining of the law to the defect manufacturer aware of the risk involved (2) which is before in Turner the automo- the court vs. its use or the extent that Motors Corporation Kliesing expecta- General bile would not the reasonable meet Company. Motor ordinary tions of the consumer to its The use test was safety. of the alternative special issue defines incorrectly made clear in The trial court had Hopkins. unreasonably dangerous. term except for submitted the test Henderson At time the defendant Mo- General use of “and” “or.” This error in lieu of Corporation request tors would pointed out it in a footnote wherein correctly unreasonably court define dan- part: was said in gerous following to include the definition: emphasized The use of here is of ‘and’ “Unreasonably dangerous danger- means consequence case, present no ous to the extent automobile so disjunc- be proper definition would designed would not placed chan- using ‘and.’ ‘or’ rather than of commerce by prudent nels a manufac- tive — turer aware of the risks involved in its 548 S.W.2d 347-348. use or to the extent that automobile Although expressly we have never con- expecta- meet the reasonable point complaining sidered of error safety ordinary tions as to consum- the bifurcated or only part use of one ordinary knowledge er with the common affirmed, test, without disjunctive we have community to the as to its characteris- suggestion disapproval, several cases tics.” gave only where the trial court time, And at this in reference our (SECOND) OF TORTS RESTATEMENT objection Special No. 1 and Issue 402A, (i) of “unrea- comment definition unreasonably dangerous definition of dangerous”: sonably Corporation defendant General Motors dangerous’ means dan- ‘Unreasonably issue, requested special would tender its gerous beyond to an extent that which which contains the correct definition of contemplated by would be dangerous. it, who with the purchases consumer ordi- special This issue tendered court nary knowledge to the communi- common Special

is marked No. Issue to its ty as characteristics. hereby tendered to the court and has Signal Co. v. Universal Oil Oil & Gas See been marked honor. refused his (Tex.1978); Products, 572 Gon- writings this Court Henderson Co., 571 Caterpillar zales v. Tractor Hopkins require disjunctive do not (Tex.1978); Laundry Bock Ma- Miller v. “unreasonably dangerous” definition of re- (Tex.1977); Gen- chine 568 648 S.W.2d quested by General The Motors. stated Simmons, Corp. 558 eral Motors v. concept Hopkins of Henderson and was that Garza, v. (Tex.1977); Rourke perspective prudent the additional of the (Tex.1975). was This definition advantage manufacturer is and for Appeals in by the approved injured plaintiff now, of an benefit is appeal before us the venue of the case available to him if under the facts de- in a although the was considered definition apparent, fect is or if it is felt that the fact different context. might finders be diverted the lack of any event, fail any error in the regard

expectations of the consumer prudent ure to submit manufacturer product design. details test was harm disjunctive element of the any complaint that jury The bifurcated test instructs less error. There is no Motors relative unreasonably dangerous that the evidence offered by General that (1) jury found persons if the to this was The threatens harm excluded. defectively designed using the automobile to the extent that the automobile was ordi incorporating the designed placed so not be an automobile would under instruction immaterial prudent It was nary in the channels of consumer test. commerce necessarily implies balancing jury might concept whether the that have also found that the defectively danger.” roof structure was de- product’s utility against of a signed standpoint prudent from the earlier, re-ex we have As indicated manufacturer test. a conscious the manner in which amined General Kliesing Motors and further con- is to be hereafter design strict case tend “unreasonably that the definition of doing, we have jury. In so submitted to the dangerous” given by the trial court was test and the the bifurcated determined that requiring expecta- erroneous in not that the Hop writing as to this in Henderson ordinary tions of the consumer be reasona- per govern. We are longer kins will no this, too, argued ble. It is required that by the inclusive suaded to this conclusion writings under our Hop- in Henderson and know jurors ness of the idea that would Again kins. we disagree. parties The do expect in would what consumers authority, not cite to an and we have found or that product, use of a consumption or none, requiring, not, or the addition of the or jurors apply any standard could expectation reasonable concept to the defi- experiences test outside that of their own nition. The Court of Civil found Green, Liabili charge expectations. here in See to be defective in A Dec respects ty other Under 402A and 402B: point but no was made of Sections the definition unreasonably dangerous Litigation, in ade of 54 Tex.L.Rev.

terms of the ordinary consumer with the the alternative test of The stated reason for ordinary knowledge common to the commu- justify prudent manufacturer does nity. its continued use. The court in Corp. v. Sim- form of Accordingly, approve we mons, 545 (Tex.Civ.App.1976), forepart submission stated in granted

writ grounds, on other in the trial to be effective (Tex.1977), considered the contention after the date on defect strict cases the court’s definition of becomes final. herein our dangerous should include the element of the in this will be issue and instruction expectations reasonable of the ordinary con- utility and form when the considerations of sumer as safety product. to the the evi present risks are in the state of pointed court out that the definition under dence, as an should serve such cases attack was taken language from the used in its delibera appropriate aid 402A of (SECOND) the RESTATEMENT noted, recognized previously we tions. As TORTS, (i); OF comment and that Garza, under the supra, in Rourke v. court could find no Texas case where this justified evidence there the particular objection had been discussed. harm out concluding that the risks of suggestion court cited the Pyatt And, product. weighed Engel Equipment, Inc., 17 Ill.App.3d Upright, in Ross v. stated the Court (3rd 1974), N.E.2d 225 Dist. Inc., 1968), the (5th Cir. 402 F.2d (i) comment definition in its reference to the defect render the demand “that ordinary use and ordinary knowledge a realiza unreasonably dangerous reflects carried the connotation of the reasonable products . . have many tion that . man standard. See also Mitchell v. Frue danger.” utility both and Corp., 1145, hauf 568 F.2d at where it was urged by evidentiary points There were said that the balancing urged, test there i. General Motors before the Court e., risks, the balancing and costs of here, considered Appeals, and which were the current design, and alternative was sim overruled. by the intermediate court and ply expression an concept of unrea attacking the le- Among points sonably dangerous; and, these were quoting from Bo sufficiency of the evidence gal rel v. and Paper Corp., Fibreboard Products factual Special Issues (5th F.2d 1076 to 1973) (interpreting support Cir. the answers Tex to law) as was “unreasonably dangerous” that that the roof structure is “a One and Two joint industry independent

defectively designed produc- which was the effort of the and Turner; laboratories; ing cause of the the standard was tested injury to and by points by independent laboratories and attacking qualifications and tes- both industry; automotive manufacturers timony expert of Turner’s witnesses. Other do importing vehicles into the United States points relate to the exclusion of evidence of testing; not use other method of experiment an out-of-court conducted to which vehicles have this is the standard during agree General Motors the trial. We 1973; passenger since and that been built adopt writing and of the Court of today vehicles sold in the United States Appeals overruling points. Civil these comply practice. with the Safety Federal Motor Vehicle Standard presented The last witness in the trial promulgated No. 216 was in December of about questioned General Motors was Highway the National Traffic Safe- acci- paper prepared clinical he on rollover ty Administration and became effective on relating to published dents in 1972 but back 1, 1973, September as a minimum standard pre- studied for collisions that he had subsequently for all cars manufactured. It cross-examination, ceding years. five On strength requirement pas- sets forth a for testified: the witness senger existing car roofs and embodies an Now, recognize Q. you you tell me that industry practice. proved Engineers Society of Automobile industry practice standard as an but the as authoritative? proof trial court excluded that the standard adopted had been mean by agencies just you of the federal A. I am not sure what authoritative, government years as the subsequent certainly to the manufacture is an gone by, have have been —it Impala sale of Turner’s Chevrolet wom- independent group of men and question. the accident in The Court of Civil all en worldwide who are devoted found error exclusion of interests, as far proof; kinds of automotive but because of errors also found in not sure being authority, I am charge jury, the court did not so, deposito- they that it’s but are have occasion to re- determine work group people. ries as a We quired by Rule Texas Rules of Civil together changes. to make Procedure, e., i. whether this error amount- Well, they would Q. you ed to such feel that rights a denial of the of General on the function Motors as reasonably was calculated to authoritative regards to a se- cause vertical restraint probably did cause the rendition atbelt, belt, car lap in the event a of an improper judgment. are concerning what belts overturns rule, post-event regulations As a supposed to do? are inadmissible. See Simms Southwest I am certainly a standard. A. There Hospital, Texas Methodist 535 S.W.2d 192 area, quote it but I can’t sure in that e.) (Tex.Civ.App.1976, writ ref’d n. r. authority you, it is an whether Super-Market, Bell v. Buddies has today, the Federal Government e.). (Tex.Civ.App.1974, writ ref’d n. r. standards authority to set this, Apart from from we have determined design. vehicles —for vehicle an examination of the record that the ex Au- Q. Society of you recognize Do subsequent clusion of the federal standard authoritative Engineers tomotive reasonably calculated to cause and not, Siegel? Mr. probably did not cause the rendition of an Well, authority. they are not A. Hulse, improper Dennis v. verdict. See authority is the Federal Govern- (Tex.1962) v. Texas Walker design. ment in automotive Assoc., Employers’ 155 Tex. Insurance extent foregoing It was established illustrates the to the that by employee-witness presented by an Gen which it was shown Motors industry practice proved by General industry practice eral Motors was a that the industry-wide acceptance principle finding was of a of and ob- that when of either servance, re- ground of supports that two alternatives a inference it was covery defense, party asserting regarded as such The case authoritative. un- ground has the recovery of or defense period over a approximately tried of two questionable finding of right to waive a and the developed weeks evidence was at rely solely on either of the alternatives great length by competent expert coun- possible the other. error in this To intimate parties. sel for We do not believe it regard error rule the harmless resort to reasonable to conclude that verdict of only can of the bar and result in confusion would have different had been bench. proof been allowed of additional fact industry-wide practice had been prior Court’s decisions overruling this subsequently adopted by agencies federal as by discarding the Restatement’s definition a standard for strength. automobile roof majority dangerous, unreasonably cognizance due give fails to Finally, requested a lia underlying purpose of strict policy and special instruction to the to the effect tort, bility merges strict into that an award damages to Turner would negligence practical and for all liability, subject not be to federal income taxation. purposes liability in tort abolishes strict This was refused the trial court. As negli Liability for design. defective pointed majority out in the opinion of the gence legal violation of a imposed for Appeals, Court Civil it was heretofore duty to exercise the care of an ruled Missouri-Kansas-Texas Railroad prudent person the same or similar under McFerrin, 69, Co. v. 156 Tex. 291 S.W.2d a circumstances. in tort of 931, (1956), an such instruction prod manufacturer a defective places who improper would be introducing wholly imposed, uct in the commerce is stream of collateral matter damage into the issue. due duty for to exercise violation of We reaffirm stating McFerrin as the cor care, impo policy public but because favors rect rule. a defective sition of the burden of The Motion Rehearing filed on behalf upon instead of the con the manufacturer of Robert A. granted. Turner is The Mo- safety public sumer. The in human interest Rehearing tion for filed on behalf of Gener- requires possible protection the maximum Corporation al Motors is overruled. The product; the manufac for the user of the opinion of the Court delivered March position turer is in to know a better the judgment based thereon are potential dangers and test withdrawn and set aside. same while the con guard against for and the Court of Civil Appeals is reversed rely and does on generally sumer must trial skill, knowledge court is affirmed. and warn manufacturer’s and,

ings dangers; generally of unexpected Concurring opinion CAMPBELL, J., position in a better the manufacturer joined by JOHNSON, SAM D. J. dangerous faultless but bear the loss from a James, product than is consumer. Gen CAMPBELL, Justice, concurring. Be eral Manufacturers Products —Should I result, concur in the the future 24 Tenn.L.Rev. Negligence?, Liable Without consequences expressions of certain (1957); Prosser, The Fall of the Citadel pronouncements majority opinion (Strict Consumer), Liability 50 Minn. compel express me to my dissent. Keeton, (1966); Products Liabili L.Rev. 791 General Motors’ contention that the trial ty About Allocation Observations —Some erred failing Risks, court in its to include defini- This Mich.L.-Rev. tion of dangerous both alter- recognized distinction between natives of the so-called bifurcated definition and strict liabili negligence the theories of rejected Caterpillar should unequivocally ty by stating a sim- in Gonzales ple obvious, (Tex.1978): declaration of the Tractor unassailable 854

“ evidentiary the such factors by suppli- jury . . . The taken the to consider care product preparation, compels jury er a its manu- to determine issue of facture, sale, solely or the manufac- is not a consideration on fault or non-fault of however, is, Furthermore, liability; by strict the ulti- instruction this turer. such question negligence jury’s mate in a action. evidentia- implied limits the exclusion liability product solely utility looks at the itself and risk ry to consideration Negli- you and determines if it is defective. “Do find by reason of the clause gence at looks the acts of the manufac- from a of the evidence” preponderance turer and if it determines exercised ordi- on whether jury usually decide the case will nary care in design production.” Though prod- a utility outweighs the risk. be removed danger that could uct bears a recog also Restatement’s definition generally its would pennies, for a use few focusing solely nizes this on distinction the risk. outweigh contemplation danger by of the consum implication er without of the manufac liability of a merge I strict would contemplation turer’s or considerations. negligence issue into a mere manufacturer causation, Apart only finding from nec between but maintain distinction would essary liability for strict under the Restate liability of separate these theories two product dangerous ment is that the to prior decisions our has the Restatement and beyond an extent con that which be Affiliates, 416 S.W.2d v. McKisson Sales templated by consumer who Darryl Motor Com (Tex.1967); 787 v. Ford it, purchases ordinary knowledge with the (Tex.1969); Pittsburg pany, 440 630 S.W.2d to its community common to the charac (Tex. Ponder, 546 Coca v. 443 S.W.2d Cola (Second) teristics. Restatement Lab., Winthrop 514 1969); v. Crocker means, Torts 402A. simply This v. Motors (Tex.1974); General S.W.2d 429 superior reason of the manufacturer’s (Tex.1977); Simmons, Miller 558 S.W.2d characteristics, knowledge product’s a if (Tex. Laundry, v. Bock S.W.2d danger beyond contemplation a Urquidez, 570 1978); Armstrong v. Rubber exists, ordinary consumer the manufacturer v. Cater (Tex.1978); Gonzales warn the to must alter the or user (Tex. Co., pillar Tractor bring danger the extent to such necessary 1978); Universal Oil Signal Oil & Gas v. contemplation. a jury within his When is Products, (Tex.1978). 572 S.W.2d 320 a its or merely product, asked if condition reasons have my satisfactory no unreasonably dangerous, without departure support to our been advanced definition, only question the above can from decisions. these interpreted by a to mean “more definition of bifurcated dangerous it been than would have had the in Gen- dangerous pronounced prudent manufacturer manufac acted as Corp. Hopkins, eral Motors turer.” Such even more conclusive when (Tex.1977), permits improperly specific negligence are also submitted issues one or strict negligence to find “the because reasonable care is defined as agree with the disjunctive and I person ordinary prudence care be ex- should definition majority that such Ed would use under like circumstances.” pressly overruled. v. Texas & R. 135 Tex. miston N. O. states its majority opinion Lastly, This is made even be hereaf- new submission instruction, form majority’s more obvious design defect ter the trial of effective in definition, part “taking into that is a not state liability cases does strict consideration of submission new risk, whether method Utility, involved use.” the risk in its factual other apply shall or not economics, etc., apply evidence on the are mere of strict ambit the former negligence in situations within issue of a manufacturer’s place will ambiguity failing to in tort. Such marketing remove state limbo therein, jurists in a danger practitioners or lessen the instruct

«55 having in the trial of all strict cases

alleged defects in addition to or other than design.

those of The form of submission

given by case, the trial court in this in exact

conformity to that of The Restatement

(Second) 402A, of Torts was authored to

cover and does every in fact cover factual

situation purview within the of strict liabili-

ty in tort and should be declared proper

Court to be the submission in Texas.

For reasons, the above I dissent from the

respected views of the majority as to the particulars.

stated JOHNSON, J.,

SAM D. joins in this con-

curring opinion.

EMPIRE LIFE INSURANCE COMPANY al., Petitioners,

OF AMERICA et MOODY, Jr., Respondent.

Shearn

No. B-8027.

Supreme Court of Texas.

July

Case Details

Case Name: Turner v. General Motors Corp.

Court Name: Texas Supreme Court

Date Published: Jun 13, 1979

Citation: 584 S.W.2d 844

Docket Number: B-7747

Court Abbreviation: Tex.