It Shouldn't be Necessary to State the Obvious


A motorcycle could be made safer by adding two additional wheels
and a cab, but then it is no longer a motorcycle.

Background

The claimant was operating a Caterpillar model 920 front end loader, which is nineteen feet long and weighs 18,000 pounds. The 920 is manufactured with a ROPS protection device which is typically a cage protecting the driver. The ROPS in this case weighed 700 pounds and was removable, although removal required twenty to thirty minutes to accomplish.

The subject loader was owned and operated by a stevedoring firm in Brownsville, Texas, which used the device to unload cargo ships with limited clearance between decks. Regulations of the Occupational Safety and Health Administration (OSHA) authorize removing a ROPS for loaders intended for low-clearance use 1 . The owner's personnel testified that if the ROPS had not been removable, it would have been cut off with a cutting torch.

1 See 29 C.F.R. §l1918.73(b)(5)(1994).

On the day of the accident, dust from the product being moved kept visibility down to a few feet. Shortly before quitting time, claimant stopped his loader to dump a load of product. A co-worker's loader hit claimant's loader from behind, injuring claimant. It was undisputed that claimant would not have been injured had the ROPS been in place.

Claimant brought a products liability suit against Caterpillar and its distributor. Following trial, a jury found that the defendants failed to warn claimant of the dangers of operating a loader without a ROPS. The jury found that Caterpillar's design of the removable ROPS was negligent and unreasonably dangerous. The jury verdict awarded approximately $6 million in actual damages and approximately $6 million in exemplary damages. These awards were reduced to judgment and entered.

The court of appeals affirmed the judgment of the trial court. The Supreme Court of Texas reversed the decision of the court of appeals and rendered a take-nothing judgment for claimant.

The Court's Analysis and Holdings

The Court stated a simple survey of Texas product liability law to date, as follows, in pertinent part:

This court has adopted the theory of strict products liability expressed in section 402A of the Restatement (Second) of Torts? The law of products liability does not guarantee that a product will be risk free, since most products have some risk associated with their use. The Restatement imposes liability only for products sold "in a defective condition unreasonably dangerous to the user or consumer." (emphasis added)... A product may be unreasonably dangerous because of a defect in manufacturing, design, or marketing... A defendant's failure to warn of a product's potential dangers when warnings are required is a type of marketing defect... Liability will attach if the lack of adequate warnings or instructions renders an otherwise adequate product unreasonably dangerous.
911 S.W.2d at, 381-82 (citations omitted).

1. Marketing Defect - Warning.

Defendant's position was that they had no duty to warn claimant about operating the loader without its ROPS because the danger, if any, was obvious and therefore a warning would not have prevented injury.

Referring to defendants' position, the Court noted that: (1) a number of courts have adopted the position that there is no duty to warn of obvious or commonly-known dangers, (2) the Texas Supreme Court has recognized that there is no duty to warn when the risks associated with a particular product are matters "within the ordinary knowledge common to the community," and (3) a number of courts have observed that a warning that merely states the obvious would accomplish very little and to the contrary may actually be counterproductive; the fact that a risk is readily apparent serves the same function as a warning.

Rather than examine the question of a duty to warn of obvious risks as a question of law, the court of appeals concluded that the question was an issue for the jury.

Defendants then argued that the court of appeals' analysis was in conflict with the Supreme Court's holding in Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385 (Tex. 1991) that the existence of a duty to warn of a product's dangers is a question of law.

The court analyzed the Seagram decision from two aspects: (1) whether recognition of a risk "is within the ordinary knowledge common to the community," and (2) whether the risk of injury was common knowledge as a matter of law.

Concerning the first aspect of the Seagram decision, the court determined that: (a) the inquiry whether a recognition of risk "is within the ordinary knowledge common to the community" is an objective standard, (b) the determination of whether a product has obvious dangers requires an objective standard, (c) the determination whether a manufacturer has a duty to warn is made at the time the product leaves the manufacturer, (d) courts necessarily must make the judgment of whether a product is unreasonably dangerous from an objective viewpoint, and (e) the testimony of one individual does not control a court's determination of whether a risk is open and obvious as a matter of law under an objective standard.

As to the second aspect of the Seagram decision, the court examined the question of whether risk of injury was common knowledge as a matter of law. It warned, parenthetically, that it did not foreclose the possibility that the issue might be one of fact in "some situations". In the Seagram case, the court was able to decide as a matter of law that the dangers of prolonged and excessive use of alcohol were "so well known to the community as to be beyond dispute." The court treated the loader here in a similar fashion. The inquiry here was not whether the average person would know that a ROPS would make the loader safer, but rather, whether the average person would recognize that operating an industrial vehicle with open sides and top presents a degree of risk of serious harm to the operator. The court found as a matter of law that the average person would understand that, without the ROPS, nothing protected the driver from the rear or above. The court concluded, therefore, as a matter of law, that the defendants did not have a duty to warn of the dangers of operating a loader without a ROPS.

2. Design Defects.

The court next examined whether liability should attach to the defendants on the grounds that the loader was poorly designed, so as to have presented such an obvious risk to the operator.

The court noted that a number of courts in the United States have taken the position that obvious dangers are not design defects which must be remedied. By contrast, however, the Texas Supreme Court has held that liability for a design defect may attach even if the defect is apparent. It referred to the new Restatement of Torts (Third) draft which takes the position that the absence of a duty to warn of an obvious danger does not necessarily mean there is no duty to make the product safer.

The court stated that it has previously determined that the question of whether a design is unreasonably dangerous requires balancing of the utility of the product against the risks involved in its use.

The court examined the evidence here and determined that loaders must be used in low clearance situations. It further determined that a loader with a ROPS attached could not be used in low clearance situations; even OSHA had determined the same via its authorization to use loaders in such conditions without ROPS. The court then examined the testimony of the claimant's expert.

Several rules from prior cases were stated by the court: (1) whether a product has a design defect is to be determined in light of the economic and scientific feasibility of safer alternatives, (2) the degree of feasibility is one factor courts weigh in balancing the utility of a product versus its risks, and (3) if there are no safer alternatives, a product is not unreasonably dangerous as a matter of law 2 . The court found that the claimant had not offered any evidence of a safer design for a loader that could perform the same tasks as the subject model, and therefore held that the product was not defectively designed as a matter of law.

2 The Court stated: "We agree that 'Texas law does not require a manufacturer to destroy the utility of his product in order to make it safe.'"

3. Negligent Design and Failure to Warn.

The claimant in this case had also alleged that the defendants were negligent in their design of the front-end loader and in their failure to warn of the loader's dangers. The court noted that the focus for negligence is on the supplier's standard of care, and that such perspective differed from that of strict liability:

  • The care taken by the supplier of a product in its preparation, manufacture or sale, is not a consideration in strict liability; that is, however, the ultimate question in a negligence action. Strict liability looks at the product itself and determines if it is defective. Negligence looks at the acts of the manufacturer and determines if it exercised ordinary care in design and production.

The court examined the evidence and determined that there was no evidence to support liability in negligence for either the manufacturer or distributor defendants.

The Supreme Court's final comments offer a valuable summary of its thoughts on the subject of strict products liability law:

  • A motorcycle could be made safer by adding two additional wheels and a cab, but then it is no longer a motorcycle. A convertible can be made safer by fully enclosing the cab, but then it is just an ordinary car. The law of products liability demands that manufacturers and distributors take feasible steps to make their products reasonably safe. It is not rational, however, to impose liability in such a way as to eliminate whole categories of useful products from the market. If the inherent dangers in a class of products are obvious to a person of ordinary knowledge, there should be no duty to state the obvious.

Conclusion

The court's decision can be "boiled down" as follows:
  • 1.
  • The trial court should determine whether a risk of danger is obvious by applying an objective standard of whether such risk is so well known in the community as to be apparent to the average person. In some situations, a jury may have to answer this question. If the risk is obvious then, as a matter of law, there is no duty to warn of such risk.
  • 2.
  • Liability for a design defect, as distinguished from liability for a warning, may attach even if the defect is apparent.
  • 3.
  • Texas law does not require a manufacturer to destroy the utility of his product in order to make it safe.
  • 4.
  • Where an allegation of defective design is made because of such an obvious danger, the utility of the product must be considered. A design may be defective if evidence is presented of a safer alternative which preserves the utility of the product. In the absence of such evidence, a product will not be considered defectively designed, as a matter of law.
  • 5.
  • Questions of negligence focus the examination on the manufacturer's care in the design and production of the product, rather than on the innate qualities of the product itself. A fact issue is presented in connection with this standard of care.