*1 to, stances, if it was autho- jury, chose testimo- from medical to believe
rized witness, that the appellant’s
ny to be appellee him received caused
injury by pain which otherwise
disabled evi- at that Such
not have occurred time. support jury’s anwer to
dence would issue, the dis- making
the sole cause thus compensable
ability our workmen’s
compensation law. af- judgment of the trial court
firmed. TURNER, Appellant,
Robert CORPORATION, MOTORS
GENERAL Appellee.
No. 1005. Appeals Texas, Civil
Court of (14th Hist.). Houston
Sept. 11, 1974.
Rehearing Denied Oct. 1974. *2 Krist, Weller,
Ronald D. Harvill E. Jr., McConnico, Houston, Krist & appel- for lant. Crane, B. Jr., Hyde, Daniel A. Vin- Jeff
son, Elkins, Searls, Smith, Connally & Houston, Malone, Ross L. Thomas W. Watkins, Detroit, Mich., appellee. for COULSON, Justice. appeal
This is an from order sustain- plea privilege in a liabili- ty Appellant case. sued Robert Turner Corporation, appellee, Raymond Kliesing Kliesing Motor d/b/a per- in tort for Company sonal rolled received when brought in an over accident. Suit Cqunty, purchased Turner Brazoria where Kliesing the automobile Motors. plea privilege filed a 'of General Motors county be sued in the residence Texas, County. a con- Harris Turner filed troverting asserting affidavit that venue in Brazo- General Motors was County, ria on basis of Subdivision truck, attempted to make truck Tex.Rev.Civ. Article Vernon’s up to Turner came turn when left-hand privi- plea After Stat.Ann. right avoid pulled it. Turner judge Gen- lege the trial sustained hearing, he at- the road. When and left collision findings of fact plea and filed eral Motors’ road, he over- tempted to return and conclusions of law. *3 top. on the car landed and turned immediately be- speed his estimated Turner 4 of Article Subdivision twenty thirty miles at roll-over fore the more pertinent part: “If two or states in buckled, was belt Turner’s seat per hour. counties, in defendants reside different suit portion the roof col- right-front of the may any county brought in where one his head. lapsed into contact with and came necessary of the defendants resides.” The and paralyzed Turner’s hands This contact 1) 4 are: venue facts under Subdivision legs. suit; county one in the of defendant resides privilege party making plea the of 2) the Barron, expert as an called Mr. James at party; 3) least the Turner, that he had stated witness against a bona claim the resident de fide the Chev- design engineer for as a worked Hare, fendant. O. P. Leonard Trust v. Motors from of General rolet Division (Tex.Civ.App. S.W.2d 833 Texarkana in then worked 1963 to writ It that the first dism’d). uncontested capacity Motors for for American same present two facts are in this venue case. testified that years. Barron over five proving The third fact consists of venue pro- designed future Motors for General by a preponderance of the each evidence he years in five advance and duction against element of a bona fide claim in Im- of was involved Stockyards resident Nat. Bank defendant. superiors at informed his pala. Barron Maples, (Tex.Comm’n desirability put- App.1936, opinion adopted). Turner sued cars, the roof of their ting a roll bar in lia Kliesing General Motors program. bar on a roll and Barron worked bility in defectively designed tort for a bar be ex- that a roll He testified roof on his his automobile which enhanced relatively inex- option, but pensive as an injuries, but did not cause the accident. birth on if on all cars their pensive put fact, judge, The trial findings program bar assembly line. The roll necessary found all facts for this al discontinued, told this and Barron was action, leged if cause of such a cause cost reasons and “primarily was due [to] exist; action sustaining does fact that the conjunction with the cost was, effect, plea privilege holding pay- he what not see consumer could that no such cause of in Tex action exists that “it supervisor him told ing for.” His as. something to the pass on is difficult money it charge him here whether a manufac- consumer strictly and retailer lia- it.” turer held he cannot see defectively designed ble in tort for a auto- impos- it would be Barron testified that enhances the mobile which He de- proof car. crash sible to plaintiff, but the accident. does cause as “crashworthiness” fined the term haz- plea normal hearing, At Turner “to withstand privilege ability of a car was bro- April driv- testified that of 1971 was Crashworthiness ard conditions.” following categories: road in on a two-lane farm-to-market into the ken down shell; four-door, Impala, of the car’s integrity his 1969 Chevrolet the structural ob- post. sharp protruding He or hardtop with a sedan center the elimination interior; truck, passenger restraint following pull which started jects post-crash devices; right onto the Turner accelerat- and the elimination shoulder. fifty pass that, in the context sixty per hour to miles Barron estimated fire. possible types accidents, of all judge roll-overs found that Kliesing was an autho- percent in twenty occur of all accidents in- dealer, rized General Motors that Turner’s volving injuries. “principal” collapsed injured roof him in the acci- dent, and that immediately the auto before diagram Barron drew a Impala’s of the the accident was in substantially the same roof structure and termed the roof “cos- condition inwas when sold. The court’s metic,” in that it provided protection from finding crucial is that the car was rain, provide sun and but it would not ade- quate protection in an regardless overturn defectively designed in that the roof was the speed. categorized He roof not a sufficient support structural definitely defective, “uncommonly danger- prevent the roof collapsing ous,” “unreasonably dangerous.” thereby injuriously encroaching into the Impala’s per- passenger roof was called compartment in the event of *4 haps way roof, the weakest an overturn of the automobile and this Barron said that all of the roof structure defective rendered the automobile Impala in this collapsed. had There was unreasonably dangerous the user or nothing in the roof of car consumer, which would e., i. dangerous to an extent support the car in beyond an overturn. contemplat- that which would be by ordinary user or consumer suggested Barron many that there were with the knowledge available to him as ways alternative a roof more to the characteristics of a 1969 Chevrolet safely specifically proposed the roll four-door post. sedan with a center (the cage is, effect, bar or roll in latter connected double roll bar a rec- forming by The defect judge was found the trial tangle awith bar at each attaching proximate corner be a producing cause of the body frame injuries, of the car). possibility Roll and the of overturn ac- bars cages and roll known to clearly been cidents was held to be foreseeable Barron since and he stated that Gen- General Motors. put eral Motors them on test cars and rac- The trial judge’s sustaining of General In opinion, cars. Mr. Barron’s roll plea Motors’ of privilege ruling, was a greatly bars would inju- minimize roll-over effect, prove that Turner had failed to ries. Barron admitted mass-pro- that no bona fide against Kliesing. light claim duced automobile in the United States had fact, judge’s findings the trial it is equipped ever come with a roll bar or roll clear implicit that his conclusion of law cage and Impala’s conceded that the roof was that strict tort Texas does no dangerous was more than the roof encompass of a manufac- any produced other car at that time. He product turer or retailer of a defective frankly stated that he considered the roofs injuries when the defect enhances the of á on all defectively American cars designed, plaintiff, plays causing no role in
including
currently
those
manufactured
presented
The
accident.
thus
(West Germany’s
Targa
Porsche
impression
one
first
in Texas.
only production
car cited
Barron as
being equipped
bar).
with a roll
genesis
The
found in
of this issue can be
Corporation,
Evans v. General Motors
Raymond Kliesing,
dealer,
the defendant
822 (7th
(applying
F.2d
Cir.
Indiana
1966)
that,
testified
forty-five
based
his
law), cert. den.
385 U.S.
S.Ct.
years
experience,
of sales
average
con-
plaintiff
5Q1
expected
it is
to and does reach
(b)
car, despite
fact that
rails on
the user
consumer without substan-
the collision.
had not caused
defect
change
tial
the condition
held
the manufacturer
Seventh Circuit
acci-
sold.
duty
design or make
owed
The court
fool-proof car.
dent-proof or
ap-
stated
(2)
(1)
The rule
Subsection
of a car
purpose
the intended
also said that
plies although
in colli-
participation
its
does not include
Motors Cor-
possible
all
(a)
sions.
In Larsen v. General
the seller
exercised
1968)
Cir.
(8th
preparation
F.2d 495
in the
poration, 391
care
and sale of his
Michigan
law),
product,
(applying
that his
principles
negligence
claimed under
(b)
the user or consumer has not
defectively
designed in that
product
bought
from or entered
protruded in front of
steering shaft
any contractual
into
relation with the
injuries were enhanced
axle so that his
seller.
in the left front.
his car
struck
when
man-
an auto
Eighth
Circuit said that
bystanders
was extended to
doctrine
and con-
has a
ufacturer
Darryl
well
as ultimate consumers.
reasonably
fit
product
to be
struct
Company,
Motor
Ford
and free of hidden defects
its intended use
(Tex.Sup.1969).
liability has been
Strict
*5
that use.
render it unsafe for
which would
encompass products
held to
which have
was
The court found that
the real
issue
defectively
Inn,
designed.
been
Pizza
Inc.
in-
that
the
one of
use and said
intended
v. Tiffany,
(Tex.Civ.App.-
persuaded by logic the of Larsen. cy Corp., 357 v. S.W.2d writ), no (Tex.Civ.App.-Dallas 430 in The evolution Texas alleged negligently to was an automobile proceeded steadily Supreme since the be removed designed key the could because Affiliates, Court, in McKisson v. Sales gear was in ignition the car from the while Inc., (Tex.Sup.1967), 416 ex- S.W.2d 787 court engine The running. and the scope beyond tended for' human food using appellant “was not that the held consumption adopted Section 402A purpose for for the in manner and car (Second) the Restatement of Torts appellants intended —at least which it provides: Section 402A being prove the car that failed to have Chrysler v. at Kahn Id. 435. so used.” any product who in a de- sells (1)One (S.D.Tex. F.Supp. 221 677 Corporation, unreasonably dangerous fective condition negligent allegation an 1963), involved proper- to his or consumer or to user sharp, protruding tail- design regard physical ty subject for boy awas plaintiff on a car. fins user to the thereby harm caused ultimate bicycle into fin. his ridden who had property, to his consumer or that Muncy, held court, heavily on relying “duty of the automobile engaged in the busi- (a) seller vehicle. ordinary use of extends selling product, ness such a 502 has no ob the manufacturer of defective crashworthiness.
. But Chrysler Corporation, his automobile that In Willis v. 264 F. ligation so bicycle Supp. (S.D.Tex.1967), plaintiff was ride his be safe for a child to will per parked.” traveling seventy miles hour and Id. at 679. at into it while the car moving head-on another car decision was struck Supreme Court’s Because of Wood, extremely high an rate Company undetermined but v. 436 S. Elevator Otis speed. plaintiff’s broke will auto com- (Tex.Sup.1968), W.2d two, pletely directly the front infra, that these behind discussed we believe both seat, overly brought and suit was breach of have taken an narrow decisions warranty. of “intend manufacturer’s The court held restrictive view of the standard duty Kerby that a manufacturer has “no use.” General Motors also cites high an that withstand a College, v. Christian automobile could Abilene S.W.2d speed collision and maintain its structural which involved a find (Tex.Sup.1973), then, part integrity.” agreed ing contributory negligence on the The court with purpose Evans the. failing close the slid intended van; participation door had does not include its in colli- act substan tially simply disagree plaintiff’s sions. we with increased the While acceptance played part Evans causing accident. court’s law Texas, held, do not Larsen im- The court at 528: we believe that poses automobile which sharp We draw distinction between type high-speed, will withstand the negligence contributing accident head-on collision described Willis. negligence contributing to the dam- ages Contributory negligence sustained. pertinent agree We find with South must the causal have connection with Thomison, Austin Drive-In Theatre accident but for the conduct the ac- (Tex.Civ.App.-Austin S.W.2d 933 happened. Negli- cident would not have case, e.). writ ref’d n. r. the driv- *6 gence merely that to increases or adds riding er a lawn mower ve- backed the injury the extent of the loss or occa- hicle into a child and knocked him down. sioned negligence another’s not attempted boy away, pull The driver to contributory negligence de- will pinned by but found him the machine. recovery. feat boy rejected a leg. The lost The court foreseeability, arguments manufacturer’s holding explicitly This restricts the basic misuse, industry custom. manu- scope contributory negligence, does not negligently facturer was held have de- to primary deal with actionable negligence, signed the mower in to a failing have think, expresses and we simply the Court’s guard gear over the drive chain and rejection denying of the harsh doctrine of sprocket, despite fact this that any recovery a an because of had not caused the accident. court part omission playing in causing no the ac- said, 421 at 949: cident from which his flow. Gen- Kerby eral Motors would construe to stand We believe it is a correct statement general for the proposition pre-exist- say the law to manufacturer] [the ing negligence injury which causes duty owed a to use reasonable care actionable if another’s intervening negli- power and manufacture of its gence specifically sparks prevent the accident. injury mower to the user and to This is not the law of persons Texas. See Robert to should [the manufacturer] Walker, Burgdorf, R. Inc. v. 150 Tex. reasonably expect be vicinity to in the (1951). S.W.2d 506 probable the mower’s use.
General Motors cites one case applying
Preliminary
ques-
to
a discussion
Texas law which
crashworthiness,
does deal with the issue
tion of
it
noted
must be
to de
duty
duty; this
create the
pertinent to
arguments
er’s
the issues
However, Larsen
crash-proof car.
essentially
sign
the same
a
are
neg-
merely to hold
seeks
brought
general
under
suit is
whether
crashworthy vehi
duty
liability.
designing
Most
strict tort
ligence or under
duty
is no
that there
jurisdictions
agree
all
cle. While
from other
of the decisions
car,
has
crash-proof
one court
brought
design a
were
involving crashworthiness
sequitur”
use
it a “non
they are nevertheless
termed
but
negligence,
under
saying there is
a basis for thus
manufac-
truism as
issue
applicable here. The
crashworthy
Ba
duty
car.
negli-
under
care
turer’s exercise
due
Corporation, 11
has
dorek v. General
gence becomes
issue whether
Cal.Rptr. 305, 316
Cal.App.3d
919, 90
unreasonably
product in-
put
dangerous
an
ground
Larsen is not
The rule of
(1970).
li-
of commerce under strict
the stream
upon foreseeability,
upon the %mrea-
but
foreseeability
ability,
and the issues of
injury
risk of
in the event
sonable
negligence are
intended use under
trans-
ques
strict
collision. Under
use
into the issue of normal
formed
in each case turns
tion
liability.
product
is in a defective con
whether
concedes that
could
General Motors
“unreasonably dangerous.”
dition which
foresee that
would be involved
variety,
accidents of
infinite
includ-
controlling
issue
the crash-
Its
fore-
ing roll-overs.
is that
foreseeability,
inquiry is not
worthiness
seeability
equated
duty.
cannot be
with
argues that
intended use. General Motors
General Motors characterizes the Larsen
normal and
of an automo
use
that,
being
argument as
since car accidents
participation
bile does
include its
foreseen,
duty
can
there is a
The Evans court said that colli
collisions.
the injuries
cars to reduce
from these acci-
purpose of the
sions are not an intended
duty
dents.
If
were commensurate with
though the manufacturer
automobile even
foreseeability, then an automobile manu-
“possibility”
foresee
collisions.
Hoenig
facturer would
an insurer.
&
“proba
The Larsen court terms collisions a
Werber, Automobile “Crashworthiness”:
bility;” the court stated that between one-
Doctrine,
An Untenable
20 Clev.St.L.Rev.
two-thirds of all
fourth and
automobiles
However,
589-90
during their
are involved
life
a collision
properly
solely
never
been defined
by fore-
death, according
producing injury or
Green,
seeability.
Foreseeability Negli-
*7
Automobile,
O’Connell, Taming the
58
gence Law,
61 Colum.L.Rev.
1417-18
(1963). It is irrele
Nw.U.L.Rev.
argument
expressed
This
whether the occurrence of an accident
vant
follows,
the Seventh Circuit in Evans as
possibility or
involving particular
a
car is a
dent, can be logical distinction one that situation and drawn between foreseeability agree We alone a injury in foreseea- cannot define an automobile a manufactur- which defect causes ap- Supreme expressly Court then hold that an automobile The ble accident. We view, thereby strictly proved adopting liable this what be held manufacturer inju- might the “environment” produces a be termed defini- for defective which ries, of intended use. The roads and public not tion but the accident.
highways are the natural environment
Supreme
Elevator
The
Court
Otis
use under
lia-
automobiles. Normal
strict
Wood,
expan-
Company
supra, gave
an
bility
re-
logically
given
cannot
a more
use.
reading
concept of
sive
intended
than
meaning
strictive
intended use.
plaintiff
a
There the
went to the rescue of
doctrine
crashworthiness
over an escalator
leaning
small child
rail,
man
a
does not make insurers
automobile
pulled
plaintiff in
Circuit,
adopt
ufacturers. The Fourth
suspended
manner that she became
between
Larsen,
noted that
wall of
the escalator and
second-
whether a manufacturer had
an
balcony railing.
created
upheld
floor
The Court
injury
unreasonable risk of
involves a tra
jury’s findings
negligent design
balancing
gravity
likeli
ditional
addressed the
that the
against
hood
pre
of harm
the burden of
its
putting
escalator to
intend-
cautions
avoid the harm. Dreisonstok v.
rejected
argument,
ed use. The Court
G.,
Volkswagenwerk,
(4th
A.
F.2d
relying heavily
Boyle-Mid-
Spruill v.
1974) (applying Virginia law).
way, Incorporated,
Cir.
(4th
308 F.2d
Cir.
taking pre
court stated that the burden of
1962).
Spruill
boy
died
cautions
included
consideration of
drinking furniture
re-
polish, and the court
vehicle,
particular purpose
style
of the
jected the
defense
in-
manufacturer’s
model,
or
appeal
aesthetic
Otis,
supra,
tended use. The
Court
change
cost of the
and of the
vehicle. So
quoted
following
lan-
viewed, it is
Spruill,
obvious
manufacturers
guage from
are
the safest
“Intended
adap-
use”
but a convenient
car,
only
reasonably
sible
safe one.
tation of the
instance,
basic test
“reasonable For
a change
foreseeability”
specifi-
framed to more
safety,
ugly
add little
render the vehicle
cally fit
the factual
inappropriate
situations out
particular
for
purpose,
questions
which arise
of a manufactur-
purchase
and add
small fortune to the
er’s liability
negligence.
price, then a court should rule as a matter
Normally a
en-
seller or
of law that the manufacturer had not cre
anticipate
titled to
he
product
that the
ated
unreasonable risk of harm.
deals in will
only
pur-
be used
for the
type
same
of balancing of factors
pose for which it is manufactured and
place
takes
liability.
Section
sold;
thus
is expected
reasonably
402A states that a
strictly
manufacturer is
only injuries
foresee
arising in the
liable
product
for a
in a defective condi-
course of such use.
tion “unreasonably dangerous” to the user
*8
or consumer. Comment i to
402A de-
§
However,
expected
he must also be
“unreasonably
fines
dangerous” as “dan-
anticipate the environment which is nor-
gerous
beyond
to an extent
that which
mal for the use
product
of his
and
would
contemplated by
be
ordinary
the
where,
here,
as
that environment
the
purchases it,
consumer who
with the ordi-
home,
anticipate
he must
reasonably
the
nary knowledge
community
common to the
foreseeable risks of the
prod-
use of his
as to its
type
characteristics.” The same
uct in such an environment. These are
balancing process
contemplated by the
risks which are inherent in
Dreisonstok crashworthy case
engaged
use for
product
which is
is manufac-
this
Court in
tured.
case of Metal Window Products Co. v.
Holford,
community.
knowledge of
(Tex.Civ.App.-
Magnusen,
485 S.W.2d
Liability for Product
The Limits
Strict
1972,
ref’d
writ
Houston
Dist.]
[14th
Manufacture,
L.Rev.
52 Texas
and
Design
court, sitting
e.).
r.
There
trial
n.
re-
approach would
(1973). This
95-96
jury, had found a
without a
that,
ply
pontoon
the Evans’
negligence
liable
average
as matter of
consumer
a
a slid while
plaintiff had walked into
when the
float,
expect
not
his car to
law does
injuries,
ing glass door and sustained
al
expect the roof of that car
well
glass
had not shattered. Under
though
integrity
in a roll-
maintain
structural
predicated
liability was
402A
seen
§
over accident.
defect,
finding
then
upon an initial
degree
rose to
finding
danger
that the
a
approach
moderate
of Dreisonstok
plaintiff
the level of “unreasonable.”
should dis-
to the issue of crashworthiness
defectively de
that the door was
asserted
pel
Motors’ fears of absolute lia-
bar,
a
decals or
signed
failing
have
approach may
bility. This
be contrasted
be
could
but this Court doubted
with that of Cronin v. B. E.
Cor-
Olson
J.
all,
such
at
because
considered defect
poration, 8
501 P.2d
Cal.2d
very
change the
nature
addition would
There,
Cal.Rptr.
hold-
clasp
spa
destroy
illusion of
glass doors and
delivery
trays on a
failed
bread
truck
the doors
ciousness which
caused
collision, sending
in a
trays
to hold the
Assuming
public.
ar-
popular
so
with the
plain-
through the windshield.
driver
defect,
said,
guendo the
of a
we
existence
allegation
tiff
under his
recovered
de-
358:
liability. The
in strict
court
fective
popularity
[Gjiven
general
ac-
adopted Larsen and then stated that was
doors,
ceptance
glass
it must
clear
necessary
for a
establish
considered doubtful that the risk of colli-
unreasonably danger-
product
that the
sion
breakage
without
due to the trans-
ous
he had shown a defect and cau-
after
parency
outweighs
utility
involved
sation,
requirement
because such a
and value such doors
attained.
have
place
plaintiffs.
too
a burden
onerous
approach to
Such an
crashworthiness does
Adopting the
test Comment i as to what
indeed make insurers of manufacturers.
expect,
reasonable consumer would
we
stated,
was neither nor un- Larsen), (eighteen In 1966 months before reasonably dangerous. Traffic and Congress National enacted Act, Safety 15 U.S.C.A. Motor Vehicle §§ When Comment i instructs applied to 1381-1431. Sec Section . crashworthiness, balancing Transportation Dreisonstok’s to establish motor retary of test governs 1397(a) for negligence safety vehicle standards.1 Section characteristics product ordinary prohibits lie within the the manufacture vehicles *9 Secretary’s (“roof applied 1. less, Standard of the roof No. 216 is the corner ever to passenger provides cars”) crush than five inches. not the roof more must move resistance — equal (1973). that a force one one-half § 49 571.216 O.F.R. weight 5,000 pounds, of the vehicle or which 506 compliance with these preponderance standards. How- of the evidence. The
ever, provides: “Compliance 1397(c) expert witness below admitted that no § any safety mass-produced with Federal motor vehicle automobile had ever been subchapter standard issued under this does in the manufactured United States with a any exempt person any liability not agreed from cage, roll bar or roll and he that under is common law.” It obvious from the roof of Turner’s vehicle no more language this that the federal standards unsafe than the roof on other vehicles of supplement were meant rather than ob- manufacturing the same era.
viate law of negligence princi Motors relies General that, liability. It suggested has been while pally upon two cases for these evidence regulations propounded by the federal points. Dyson Corpora v. General Motors Secretary law, do preempt not the common tion, F.Supp. in (E.D.Pa.1969), they may strong serve as evidence negli- volved roof deformation in the roll-over se, not gence, negligence per regard hardtop. aof accident to vehicles before the effective date require argued that to roofs which would regulation. Page, each Nader & Automo- perfectly be to be safe in a roll-over would Process, Design bile and the Judicial unreasonbly dangerous declare convertibles (1967). Calif.L.Rev. 669-70 per adopted court Larsen and se. The question safety of whether standards said, F.Supp. at 1073-1074: regulation should be left to federal presents separate question a that from necessarily manufacturer was not [T]he congressional However, intent. we are not provide hardtop obligation necessity aware that which would be as model resistant regulation of federal has been made re- sedan; damage roll-over a four-door as gard design defects which cause acci- my required, but defendant dents, we any cannot why see reason view, hardtop provide automobile defects any which are cause reasonably was a safe which version more in need federal control. The dan- model, such and which was not substan- ger juries will arrive conflicting tially hardtop other mod- less safe than every conclusions is a hazard els. nationally who distributes runs. The com- plex, questions facing juries, technical aid- Dreisonstok, Volkswagen supra, a by expert testimony, cannot be more in a van front-end collision. was involved questions than difficult fields engine not vehicle does have Such malpractice. Finally, as argu- medical front, experts plaintiff’s declared that a single jury may ment verdict have compar- defectively designed van to be profound consequences disrupting an essen- passenger it to a 1966 mid-sized Ford industry tial has been characterized con- Circuit, amplifying car. Fourth tending desirability immunity impermissible; Dyson, held that directly proportional to the type vehicles of the must be com- same magnitude of Comment, the risk created. pared in order to determine defective de- Design Liability: Automobile Larsen v. sign. These two do stand for the cases General Motors and its Aftermath, 118 U. proposition that defective must Pa.L.Rev. plaintiff’s comparing shown vehicle expert indict- similar vehicles. The below Assuming existence of for a industry, possibility ed the entire causing injuries, defect but not the This is in Dreisonstok does foreclose. accident, argues General Motors that, with the accord law Texas while judge’s finding trial defective industry conformance to custom admissi- supported by evidence, insufficient evi- ble negligence, on the the cus- dence, or is contrary great weight negligent. itself to be tom shown
507 beyond meaning “dangerous to an extent Lundell, 344 S.W.2d 162 Tex. v. Brown by the contemplated the ex- that which would think We (Tex.Sup.1961). 863 it, purchases with industry ordinary for its consumer who of pert’s condemnation ordinary knowledge a suf- common roll constitutes to install bars failure community Re- as to characteristics.” itself was that the custom showing ficient Torts, Explanatory (Second) Motors’ statement unreasonably dangerous. General 402A, i at *11 (Tex.Civ.App.-Eastland 338 S.W.2d (5th 1971). F.2d 1176 Cir. In this case e.). writ ref’d n. r. legally evidence is insufficient prove defect in the of the roof struc- witness, Barron, plaintiff’s expert plaintiff’s ture of the car. as follows: testified Now, Barron, Q your opinion, is it Mr.
that the the roof structure Impala subject the 1969 is more
deformation than
roof structures of other vehicles manufacturing
about the same era? MOORE, Independent Derrell Executrix No, sir, they A are all I believe about Moore, Deceased, Estate of Morris B. the same. Appellant, Q generally That is classified as six v. sedan, not, passenger is it sir ? MOHON, ux., Olga Mohon, J. V. et Appellees.
A I believe that is correct. No. 5343. Q passenger If we six took the sedans Appeals Texas, Court of Civil Chrysler, Waco. manufactured American Ford, as far as the roof Sept. 19, 1974. they crush characteristics would be approximately same, all is that
true? degree
A I say within of close-
ness, yes.
Q opinion Your then concerning this
design of roof structure condemns all
domestically manufactured automo-
biles of the era which car was manufactured,
designed it does
not, sir?
A encompasses I am afraid that even
the era that are in present we at the
as well.
Q up today That right, on until ? Yes,
A sir.
It is clear that the of the roof of only car in did not violate
any governmental safety regulations but fully
also conformed standards of industry. conformity
the automotive Such irrefutably
does establish that the de-
sign unreasonably dangerous, was not
strong necessary prove evidence is conforming design was defective. See Company, Manufacturing Hobart
Ward Notes Comment 352 points are overruled. § evidence way knowing the term is no There is re- of the trial court judgment “unreasonably same dangerous” had the versed, here rendered judgment opin- Barron. His meaning the witness privilege is over- plea of Motors’ ion, therefore, tending was evidence ruled. unreasonably prove that dan- gerous. Radkey, v. See Carr 393 S.W.2d (Tex.Sup.1965). 806 TUNKS, Chief Justice. 402A the Sec. Restatement of Torts respectfully dissent. I impose does not on the manufacturer incapa- automobiles that are opinion majority of the with the agree I injuries arising producing ble from their is that there that would hold except I purpose use they for the for which were question the car evidence that intended. The in- not an plaintiff, unreasonably dangerous. The against surer Fuel loss. Shamrock therefore, prove a of action cause failed Tunks, v. Oil & Sales Co. seller, as against the resident defendant (Tex.Sup.1967). It is liable for a do under subdivision required only defect if the characteristic cre- prove He failed to Article 1995. also ates an danger unreasonble its intended against the nonresident cause of action use. danger The unreasonableness of the manufacturer, as corporate re- defendant by absence cage created of a roll on the quired 23 and For that subdivisions 27. question car in involves the consideration judgment I affirm reason would many factors, cost, including economy sustaining plea privilege trial court operation, maneuverability, effect on Corpora- of the defendant General Motors appearance. It weighing also involves tion. good bad particular effects is no evidence that car in There design against many factors that must statutory question any failed conform Henderson, be considered. Re- Judicial safety regulations any regulations or to im- Choices, Design view of Conscious posed by body. administrative Adjudication, Limits 73 Colum.L.Rev. witness, plaintiff’s expert Barron, said (1973). The record fails to show because the absence of a roll bar roll many that the witness Barron took these “uncommonly cage it was car’s roof (except into factors consideration admitted, however, dangerous.” He vague general cost) language as to the roof structures cars of other manufac- forming opinion. of an value about tured the United “are all States opinion expressed by a witness is no the same.” stronger than the facts on based. If it is based relevant affirmatively Barron Mr. answered and, probative facts it has no force stand- plaintiff’s attorney as to alone, ing legally will not be sufficient to the design whether car was “unrea- Railway fact question. raise a Dallas & sonably dangerous.” The term “unreason- Gossett, Company Terminal v. Tex. ably dangerous” special legal mean- Texas (Tex.Sup.1956); S.W.2d 377 in a case. The term Meeks, Railway Company defined in the Restatement of Torts as and Pacific