The Texas Supreme Court last week upheld summary judgment in a design defect case, finding that under the risk-utility test, the commercial trailer at issue was not defective as a matter of law. See Timpte Industries Inc. v. Gish, Texas, No. 08-0043, (6/5/09).
Readers of MassTortDefense recognize that in a strict products liability claim, the risk-utility test has been the dominant test of “defectiveness” employed by state courts. The opinion offers an interesting example of the potential relevance of an obvious design risk (even in a jurisdiction that has rejected the obvious danger rule), and the interplay of warnings and design issues.
Plaintiff Gish was seriously injured when he fell from the top of a commercial “Super Hopper” trailer into which he was attempting to load fertilizer. He sued Timpte, the manufacturer of the trailer, alleging, among other things, that several features of the trailer were defectively designed, rendering the trailer unreasonably dangerous. The Super Hopper trailer is a standard open-top, twin hopper trailer, which is loaded from above through use of a downspout or other device and is emptied through two openings on its bottom. Once the trailer is loaded, a tarp is rolled over the top
to protect its contents. A ladder and an observation platform are attached to the front and rear of the trailer to allow the operator to view its contents.
The downspout that was loading fertilizer into the trailer was not lowering properly on the day of the accident. Gish pulled on a rope to lower it, but that was unsuccessful, so he climbed up the front platform ladder and climbed onto the top rail to work with the downspout. A gust of wind hit him from the back, causing him to fall.
Plaintiff alleged defects in the top two rungs of the ladders attached to the front and rear of the trailer which allowed a person to climb atop the trailer; and a defect as to the top rail of the trailer, which was allegedly too narrow and slippery and contained too many tripping hazards for a person to walk safely along it.
To recover for a products liability claim alleging a design defect, under Texas law, a plaintiff must prove that (1) the product was defectively designed so as to render it unreasonably dangerous; (2) a safer alternative design existed; and (3) the defect was a producing cause of the injury for which the plaintiff seeks recovery. To determine whether a product was defectively designed so as to render it unreasonably dangerous, Texas courts have long applied a form of the risk-utility analysis that requires consideration of the following factors: (a) 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; (b) the availability of a substitute which would meet the same need and not be unsafe or unreasonably expensive; (c) the manufacturer’s ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs; (d) 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 (e) the expectations of the ordinary consumer.
The court emphasized that risk-utility analysis does not operate in a vacuum, but rather in the context of the product’s intended use and its intended users. Specifically, while Texas has rejected the “open and obvious danger rule” under which obvious risks are not design defects which must be remedied, 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.
Essentially, Gish complained that the trailer’s design failed to prevent him from climbing atop the trailer and then, once he was up there, failed to protect him from the risk of falling. The court found no evidence, however, that the top rail of the trailer was unreasonably dangerous in light of its use and purpose. The risk of falling while trying to balance on a 5 inch wide strip of extruded aluminum nearly ten feet above the ground is an obvious risk that is certainly within the ordinary knowledge common to the community. Timpte warned users to always maintain three-point contact with the trailer, which is impossible for a user standing on the top rail. Had Gish adhered to this warning, his accident would not have happened. Additionally, widening the side walls of the trailer so as to convert the top rail into a safe walkway, as Gish’s expert proposed, would have increased the cost and weight of the trailer while decreasing its utility.
Moreover, Gish’s injury was only remotely related to the ladder’s top two rungs: they allowed him to climb atop the trailer, where he was subsequently injured. Timpte warned users not to use the ladder to climb into the trailer itself, and the obvious nature of the risk of climbing onto the top rail negated the need for any additional warning. The two top rungs were necessary to maintain the stability of the ladder and provide an emergency handhold in the event someone slips on the ladder. Their utility was high, the court concluded, and Gish’s injury was “only remotely related” to those rungs.