TEXAS PRODUCT LIABILITY RESOURCES
- 1 Defect in Design – the feasibility of alternative designs and consumer expectations
- 2 Misuse of Products
- 3 Unanticipated, Unforeseeable, or Unintended Use of Products
- 4 Alteration of Products
- 5 Unavoidably Unsafe Products
- 6 Duty to Warn - Dangerous or Obviously Unsafe Conditions
- 7 State of the Art Defenses
- 8 Government Contractor Defense
- 9 Statutes of Limitation and of Repose
In order to assert a design defect case in Texas, the plaintiff must prove by a preponderance of the evidence that:
(1) there was a safer alternative design; and
(2) the defect was a producing cause of the personal injury, property damage, or death for which the plaintiff seeks recovery.
See Texas Civil Practices & Remedies Code Ann. §82.005(a); See also Texas Pattern Jury Charge 71.4B. “Safer alternative design” means a product design other than the one actually used that in reasonable probability: (1) would have prevented or significantly reduced the risk of the plaintiff’s personal injury, property damage, or death without substantially impairing the product’s utility; and (2) was economically and technologically feasible at the time the product left the control of the manufacturer or seller by the application of existing or reasonably achievable scientific knowledge. See Texas Civil Practices & Remedies Code Ann. §82.005(b).
Texas courts have applied a risk-utility analysis to determine whether a defectively designed product is unreasonably dangerous under the statute. See Timpte Industries, Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009). These factors include:
(1)the utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use:
(2)the availability of a substitute product which would meet the same need and not be unsafe or unreasonably expensive;
(3)the manufacturer’s ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs;
(4)the user’s anticipated awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions; and
(5)the expectations of the ordinary consumer.
See American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 432 (Tex. 1997). This risk-utility analysis does not operate in a vacuum, but rather in the context of the product’s intended use and its intended users. Timpte, 286 S.W.3d at 312. If reasonable minds cannot differ on the risk-utility analysis, then whether the product is unreasonably dangerous as designed may be a question of law as opposed to one of fact. See Hernandez v. Tokai Corp., 2 S.W.3d 251, 260-61 (Tex. 1999). While Texas does not strictly follow the “open and obvious” danger rule, the obviousness of the claimed defect is an important consideration in determining whether the product is unreasonably dangerous and may even be decisive in a particular case.
Texas no longer permits the inclusion of a misuse jury instruction; misuse falls under the parameters of comparative responsibility. See Hernandez, 2 S.W.3d at 257. See alsoGeneral Motors Corp. v. Sanchez, 997 S.W.2d 584, 594 (Tex. 1999). For misuse to be a defense in a product liability case, it must be shown that such misuse was unforeseeable by the defendant. Misuse is rejected as a defense when the foreseeable use of the product is dangerous and the danger is a producing cause of injury to a user who has not himself made a foreseeable use of the product. See General Electric Co. v. Schmal, 623 S.W.2d 482, 486 (Tex.App.—Texarkana 1981, writ ref’d n.r.e.) (citing General Motors Corp. v. Hopkins, 548 S.W.2d 344 (Tex. 1977).
Texas law treats these issues under the same principles as those addressed above under “Misuse of Products.”
Texas permits the inclusion of the following jury instruction, if warranted:
“A product is not in a defective condition, thus not unreasonably dangerous when sold, if the unreasonably dangerous condition is solely caused by a substantial change or alteration of the product after it is sold, and but for which unreasonably dangerous condition the [occurrence] [injury] [occurrence or injury] would not have occurred. “Substantial change or alteration” means that the configuration or operational characteristics of the product are changed or altered by affirmative conduct of some person in a manner that the defendant could not have reasonably foreseen would occur in the intended or foreseeable use of the product. Substantial change or alteration does not include reasonably foreseeable wear and tear or deterioration.” See Texas Pattern Jury Charge 70.6.
An “unavoidably unsafe” product is a product that, in the present state of knowledge, cannot be made safe for its intended and ordinary use, no matter how carefully it is manufactured. Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1273-1274 (5th Cir. 1974 (Tex.)) (referring to Restatement [Second] of Torts § 402A, comment k). A manufacturer can be held liable for injuries caused by an unavoidably unsafe product in either of the two following circumstances:
(1)the product is so unsafe that marketing it at all is “unreasonably dangerous per se”; or
(2)the product has been introduced into the stream of commerce without sufficient safeguards and is, therefore, “unreasonably dangerous as marketed.”
An unavoidably unsafe product is “unreasonably dangerous per se” if the potential harmful effects of the product outweigh the legitimate public interest in the product’s availability. Even if a manufacturer is not liable for placing an unavoidably unsafe product into the stream of commerce, the manufacturer may be held liable for failing to provide proper warnings in selling the product, making it “unreasonably dangerous as marketed”. An unavoidably unsafe product is neither defective nor unreasonably dangerous if such a product is “properly prepared, and is accompanied by proper directions and warning.” Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1273-1274 (5th Cir. 1974 (Tex.)) (again referring to Restatement [Second] of Torts § 402A, Comment k).
The legal doctrine of “inherently unsafe” products is similar to, but distinct from, that of “unavoidably unsafe” products. Under Texas law, a manufacturer or seller is not liable for injuries resulting from the use or consumption of “inherently unsafe” products. This principle was enacted by statute for all cases filed on or after September 1, 1993. TEX. CIV. PRAC. & REM. CODE § 82.004. Under that statute, a manufacturer or seller is not liable if:
(1) the product is inherently unsafe and the product is known to be unsafe by the ordinary consumer who consumes the product with the ordinary knowledge common to the community; and
(2) the product is a common consumer product intended for personal consumption, such as:
A. sugar, castor oil, alcohol, tobacco, and butter, as identified in Comment i to Section 402A of the Restatement (Second) of Torts; or
B. an oyster.
Id. The statute applies to products liability cases, whether brought for negligence or strict liability, for design and marketing defects, but does not apply to actions based on a manufacturing defect or breach of an express warranty. American Tobacco v. Grinnell, 951 S.W.2d 420, 427 n.2 (Tex. 1997). In one case, for example, a restaurant patron broke her tooth while consuming a dish made of ground processed oyster meat. [[http://www.courtlistener.com/opinion/2285177/jones-v-landrys-seafood-inn-oyster-bar/ |Jones v. Landry’s Seafood Inn & Oyster Bar-Galveston, Inc., 328 S.W.3d 909 (Tex. App.—Houston [14th Dist.] 2010)]]. The restaurant defendant asserted Section 82.004 as an affirmative defense. On appeal, the Court of Appeals held that Section 82.004 did not apply to that case because Plaintiff’s claims were in the nature of a manufacturing defect because the restaurant allowed an inedible object to be incorporated into the product, thereby rending the finished product different from the intended product. As stated by the Court in that case, a manufacturing defect exists when a finished product deviates, in its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous. Id., at 913.
Generally, a manufacturer may be held liable for failing to provide an adequate warning of a dangerous characteristic of a product when the claimant establishes the following elements:
1. a risk of harm must exist that is inherent in the product or that may arise from the intended or reasonably anticipated use of the product;
2. the manufacturer must actually know or reasonably foresee the risk of harm at the time the product is sold;
3. the product must possess a marketing defect;
4. the absence of a warning or instructions must render the product unreasonably dangerous to the product’s ultimate user or consumer; and
5. a causal link must exist between the failure to warn or instruct and the product user’s injury.
DaimlerChrysler Corp. v. Hillhouse, 161 S.W.3d 541, 547 (Tex. App.—San Antonio 2004, pet. granted, judgment vacated w.r.m.); USX Corp. v. Salinas, 818 S.W.2d 473, 482-483 (Tex. App.—San Antonio, 1991, writ denied).
A product supplier need not warn of dangers that are “common knowledge”, which include the following:
1. dangers that are so well known to the community to be beyond dispute. Joseph E. Seagram & Sons v. McGuire, 814 S.W.2d 385, 388 (Tex. 1991); or
2. dangers that are obvious to anyone who observes the product. Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex. 1995).
Whether a danger is common knowledge or obvious is determined according to an objective standard and from the perspective of an ordinary user of the product. Sauder Custom Fabrication, Inc. v. Boyd, 967 S.W.2d 349, 350-51 (Tex. 1998). Common knowledge is an “extraordinary defense” that applies only in limited circumstances, and the standard for finding common knowledge is a strict one. American Tobacco, Inc. v. Grinnell, 951 S.W.2d 420, 427 (Tex. 1997). For example, in the Grinnell case, the Court held that the general ill effects of smoking were common knowledge in 1952 when the injured customer started smoking, but the addictive nature of cigarettes was not.
In other contexts, the user’s or consumer’s knowledge of the risk or assumption of the risk is merely a factor to be considered in determining contributory negligence or comparative responsibility. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 428 (Tex. 1984). In failure to warn cases, however, knowledge of the risk is a complete defense because it negates the necessary element of producing cause. A consumer cannot claim that the failure to warn caused his or her injury if he or she knew of the danger but used the product anyway. Dougherty v. Santa Fe Marine, Inc., 698 F.2d 232, 235-236 (5th Cir. 1983).
Texas law does not recognize a “state of the art” defense as such. Rather, evidence of the state of the art at the time that a product was manufactured may be relevant either as an element of Plaintiff’s cause of action or as a factor to be considered by the trier of fact in its determination of liability.
Under the “safer alternative design” requirement, as referenced above and set forth in Section 82.005 of the Texas Civil Practice and Remedies Code, the Plaintiff is required to affirmatively show that a safer alternative design “was economically and technologically feasible at the time the product left the control of the manufacturer or seller by the application of existing or reasonably achievable scientific knowledge.” TEX. CIV. PRAC. & REM. CODE § 82.005(b)(2).
A manufacturer may also offer evidence of the state of the art as being relevant to one or more factors in the risk-utility test used to determine if a product is unreasonably dangerous, including whether a substitute product was available which would meet the same need and not be unsafe or unreasonably expensive, and whether the manufacturer was able to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs. Timpte Indus. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009).
Texas recognizes this defense but not for manufacturing defect cases. See The Torrington Co. v. Stutzman, 46 S.W.3d 829, 847 (Tex. 2001). This defense applies to federal government contractors, not state contractors. See Jones v. Houston Community College System, 816 F.Supp.2d 418, 425-26 (S.D. Tex. 2011). In order for the government contractor defense to apply, a contractor must show:
(1) the United States approved reasonably precise specifications for the design or manufacture of a product;
(2) the contractor’s product conformed to those specifications; and
(3) the contractor warned the United States about dangers associated with the use of the product known to the manufacturer but not to the government.
See Jones, 816 F.Supp.2d at 427 (citing Boyle v. United Technologies Corp., 487 U.S. 500 (1988).
Texas has a two-year general statute for personal injury or wrongful death actions. See Texas Civil Practices & Remedies Code Ann. §16.003. However, breach of warranty claims have a four –year statute of limitations running, generally, from tender of delivery of the product unless the warranty explicitly extends to future performance. See Texas Business & Commerce Code Ann. §2.725
With certain exceptions, a claimant must commence a products liability action against a manufacturer or seller of a product before the end of 15 years after the date of the sale of the product by that seller. See Texas Civil Practices & Remedies Code Ann. §16.012(b). An exception exists if the product was warranted to last safely more than 15 years, then the claimant must commence an action before the end of that warranty period. See Texas Civil Practices & Remedies Code Ann. §16.012(c). Another exception exists for latent diseases provided the exposure occurred during the 15 year period but the symptoms did not sufficiently manifest during that same period. See Texas Civil Practices & Remedies Code Ann. §16.012(d).