Appeal from Bexar County.
For Appellant: Thomas H. Crofts, Jr., San Antonio, Texas.
For Appellee: Phillip D. Hardberger, San Antonio, Texas, Joe D. Jarrard, Asst. A.G., Austin, Texas 78763.
Blair Reeves, Associate Justice.
BLAIR REEVES, Associate Justice
Suit was brought against the manufacturer of a pear burner to recover, under the theory of strict liability, for burns sustained by plaintiff while using a pear burner. The district court entered a judgment on the jury's verdict for plaintiff and the manufacturer appealed. Judgment reversed and remanded.
Appellant, Blackwell Burner Company, Inc. (Blackwell) sold the Texas State Department of Highways and Public Transportation,*fn1 a quantity of pear burners. A pear burner is a pressure vessel device made of a metal tank which serves as a container for kerosene; attached to the tank is a flexible rubber hose with a tip or wand at the end of the hose which emits a flame of fire, and a pump to create the pressure in the metal tank. It is used by cattlemen to burn prickly pear cactus; hence the name pear burner. It is used by the highway department to heat asphalt to a degree where the material becomes pliable or soft enough to patch highways.
On February 23, 1976, appellee, Felipe P. Cerda, Sr. (Cerda) was working as foreman of a five-man highway department crew doing asphalt patch work on a public highway. Just prior to the accident, Cerda and a co-worker were standing in the bed of a dump truck using two burners to heat cold asphalt. There is some conflict between the witnesses as to the location of Cerda immediately prior to the accident, but it is uncontroverted that the hose on the pear burner that Cerda was using became disconnected from the pressure tank causing kerosene to spew on Cerda. The kerosene caught fire and Cerda was burned.
Cerda went to work for the highway department in 1966 as a maintenance man. He performed general maintenance work such as mowing the grass, patching highways, and repairing rails situated on the right-of-way of highways. By the date of the accident, he had been promoted to crew chief. During the ten years he had worked with the highway department he had used a pear burner many times. In fact, Cerda testified that he had used a pear burner at the age of 15 years while assisting his father on a ranch.
On the date in question, Cerda was using a Blackwell manufactured pear burner that he had never used before. This particular pear burner, in lieu of a clamp the manufacturer used to secure the wand to the hose, was secured by a piece of bailing wire. There was testimony from a maintenance employee of the highway department that bailing wire secured the wand to the hose better than the clamp. An expert witness called by Blackwell stated that in his opinion the cause of the accident was the use of the bailing wire in the place of the clamp. Cerda testified that he had never seen or heard of the hose separating from a pear burner. The equipment contained no warning or instructions how to use the device.
Appellant's first three points of error are closely related to each other and will be considered together. They are:
1. Legal insufficiency of the evidence to support the finding of the jury that failure to place a warning on the pear burner rendered it defective.
2. Legal insufficiency of the evidence that the absence of a warning was a producing cause of the accident.
3. The failure of the jury to find that Cerda had assumed the risk was against the great weight and preponderance of the evidence and therefore manifestly wrong and unjust.
Cerda's action is grounded upon strict liability.
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection 1 applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
Restatement (Second) of Torts § 402A (1905).
The defense of assumption of the risk in strict liability cases is set out in comment n to § 402A:
[T]he form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceed unreasonably to make use of the product and is injured by it, he is barred from recovery.
Restatement (Second) of Torts § 402A comment n (1965).
The theory of products liability expressed in § 402A of the Restatement of Torts has been adopted by the Supreme Court of Texas. McKisson v. Sales Affiliate, Inc., 416 S.W.2d 787, 789 (Tex. 1967). As used in the Restatement, the terms "defective" and "unreasonably dangerous," are synonomous. Mitchell v. Fruehauf Corporation, 568 F.2d 1139, 1142 n.1 (5th Cir. 1978).
The Supreme Court in Technical Chemical Co. v. Jacobs, 480 S.W.2d 602 (Tex. 1972) defined a product as unreasonably dangerous or defective when an ordinary man would not have marketed the product without "supplying warnings as to risks and dangers involved in using the product as well as instructions as to how to avoid those risks and dangers." Id. at 605. Moreover, "[i]mplicit in the duty to warn is the duty to warn with a degree of intensity that would cause a reasonable man to exercise for his own safety precaution commensurate with the potential danger." Bituminous Casualty Corporation v. Black & Decker Manufacturing Co., 518 S.W.2d 868, 872 (Tex. Civ. App.--Dallas 1974, writ ref'd n.r.e.).
A manufacturer can be found responsible through the doctrine of strict liability even though its product is faultlessly manufactured and designed, if the product marketed is unreasonably dangerous or likely to harm the user unless properly used. In such case the product would be in a defective condition and unreasonably dangerous by virtue of the absence of the adequate warnings. Lopez v. Aro Corporation, 584 S.W.2d 333, 335 (Tex. Civ. App.--San Antonio 1979, writ ref'd n.r.e.). The manufacturer has a duty to warn against foreseeable misuse and improper maintenance. See Bristol-Myers Co. v. Gonzales, 561 S.W.2d 801, 804 (Tex. 1978); Gierach v. Snap-on Tools Corp., 79 Wis. 2d 47, 255 N.W.2d 465, 468 (Wis. 1977). There was evidence introduced that a pressure vessel can be dangerous if not used properly. Indeed the handbook that Blackwell sought to introduce into evidence advised that careful inspection should be given pressure vessels.
An expert witness for the plaintiff gave his opinion that Blackwell should have placed a warning and instructions on the ...