Finding that the design of trailor from which driver fell was not defective, Supreme Court throws out Court of
Appeals' contrary ruling
Timpte Industries, Inc. v. Gish, No. 08-0043 (Jun. 5, 2009)(Medina)
(product liability, Supreme Court finds no defect) (no-evidence motion for summary judgment found
sufficiently specific; NE-MSJ adequately identified element lacking evidentiary support)
HOLDING AS TO ADEQUACY OF NO-EVIDENCE SUMMARY JUDGMENT MOTION: The court concludes
that Defendant Timpte’s motion gave fair notice to Plaintiff Gish that it was challenging both whether the
alleged defect rendered the trailer unreasonably dangerous and whether the defect was the producing cause
of Gish’s injury. Timpte’s motion was not the type of “conclusory motion or general no-evidence challenge
to an opponent’s case” barred by Rule 166a(i). The issues of design defect and producing cause were
clearly raised in Timpte’s motion and joined in Gish’s response.
CONCLUSION AS TO THE MERITS: Finding no evidence that the design defects alleged by Plaintiff
rendered the trailer unreasonably dangerous, the supreme court reverse the Seventh' Court of Appeals’
judgment and renders judgment reinstating the trial court’s summary judgment.
TIMPTE INDUSTRIES, INC. AND TIMPTE INC. v. ROBERT GISH AND PINNACOL ASSURANCE; from Hale
County; 7th district (07-06-00215-CV, ___ SW3d ___, 11-30-07)
The Court reverses the court of appeals' judgment and renders judgment.
Justice David Medina delivered the opinion of the Court. [pdf version of opinion]
Link to --> Electronic Briefs in supreme court's website
Related terms: product liability law | defective design | unreasonable danger | duty to warn |
Timpte Industries, Inc. v. Gish, (Tex. 2009)
Argued March 11, 2009
Justice Medina delivered the opinion of the Court.
Robert Gish was seriously injured when he fell from the top of a trailer into which he was attempting
to load fertilizer. He sued Timpte Industries, the manufacturer of the trailer, alleging, among other
things, that several features of the trailer were defectively designed, rendering the trailer
unreasonably dangerous. The trial court granted a no-evidence summary judgment in Timpte’s favor,
but the court of appeals reversed. 2007 Tex. App. LEXIS 9411, 2007 WL 4224411 (mem. op.).
Finding no defect, we reverse the court of appeals’ judgment and render judgment reinstating the
trial court’s summary judgment.
On the morning of June 19, 2002, Robert Gish, a long haul trucker for Scott Hinde Trucking, arrived
at the Martin Resources plant in Plainview, Texas, to pick up a load of ammonium sulfate fertilizer.
Gish was familiar with the plant, as he had picked up fertilizer there once or twice a week for
approximately the past year. That morning Gish checked his trailer, weighed it, and waited for
another customer to finish loading.
Gish’s Peterbilt truck was hauling a forty-eight foot Super Hopper trailer manufactured by Timpte
Inc., a subsidiary of Timpte Industries. The Super Hopper trailer is a standard open-top, twin
hopper trailer, that 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.
After the truck ahead of him finished loading, Gish backed his trailer under the downspout attached
to the fertilizer plant and yelled to a Martin employee to begin loading. In a typical delivery, an
employee inside the Martin plant uses a front-end loader to drop fertilizer into a hopper. The fertilizer
is then dropped onto a conveyer system that moves it to the downspout outside the plant and into the
To prevent the granulated fertilizer from being blown away during the loading process, Gish
attempted to lower the downspout by using a rope attached to it. The rope was attached to the
downspout for that purpose, but Gish could not get it to work. He had previously complained to
Martin employees about problems lowering the downspout, but he did not do so again that morning.
Instead, using the ladder attached to the front of the trailer, Gish climbed atop the trailer (as he had
on several other occasions when the downspout would not lower) and attempted to lower the
downspout by hand while standing on the trailer’s top rail. This top rail is also the top of the trailer’s
side wall. It is made of extruded aluminum, is between 5 and 5.66 inches wide, and is nine-and-a-
half feet above the ground.
While Gish was standing on the top rail working with the downspout, a gust of wind hit him from the
back, causing him to fall. This fall fractured his legs, broke his ankles, and ruptured an Achilles
tendon. Gish was in a wheelchair for six months, and he still has difficulty walking and standing.
Gish sued Martin and Timpte, asserting a cause of action for premises liability against Martin and
causes of action for marketing, manufacturing, and design defects, misrepresentation, and
breach of warranty against Timpte. Specifically, Gish asserted that the warning labels on the
Super Hopper trailer were insufficient to warn him of the danger of climbing on top of the trailer, and
that the trailer contained two design defects:
* The top two rungs of the ladders attached to the front and rear of the trailer allow a person to
climb atop the trailer; and
* The top rail of the trailer is too narrow and slippery and contains too many tripping hazards for
a person to walk safely along it.
The two ladders on the trailer are made of rectangular tubing with rungs spaced twelve inches apart.
The front ladder that Gish used to climb atop the trailer has five rungs–two below the observation
platform (which is 38½ inches below the top of the front wall of the trailer), one approximately level
with the platform, and two above the platform. The top rung of the ladder is thirteen inches below the
top of the front wall of the trailer, and the rung second from the top is twelve inches below that. A
metal bar approximately the length of the platform is mounted above the platform and near the top of
the trailer to serve as a handhold while the operator stands on the platform.
Just below the middle rung of the ladder, Timpte has placed a rectangular warning label, which
1. EXERCISE EXTREME CAUTION WHILE CLIMBING ON ACCESS SYSTEM.
2. ALWAYS MAINTAIN 3-POINT CONTACT.
(2 HANDS & 1 FOOT OR 2 FEET & 1 HAND)
3. DO NOT WEAR RINGS OR ANYTHING THAT CAN CATCH ON LADDER.
4. USE LADDER SIDE RAIL FOR HAND HOLD, NEVER USE THE RUNG.
5. NEVER CLIMB OVER THE TOP OF THE TRAILER AND ENTER THE INSIDE
COMPARTMENTS FOR ANY REASON.
FAILURE TO FOLLOW THESE WARNINGS COULD RESULT IN SERIOUS INJURY OR DEATH.
As previously noted, the top rail of the trailer is made of extruded aluminum, which is extremely
slippery. The seven bars that support the tarp also intersect with the top rail, presenting the alleged
To remedy these alleged design defects, Dr. Gary Nelson, Gish’s expert witness, proposed three
* Remove the top two rungs of the ladders attached to the trailer to make it impossible for a
person to climb atop the trailer;
* Provide an adequate foothold and handhold at the top of the trailer so that a user on top of the
trailer can maintain three-point contact with the trailer at all times; and
* If an adequate handhold cannot be provided, then widen the side rail to at least 12 inches to
provide an adequate foothold.
Timpte moved for a no-evidence summary judgment which the trial court granted. The trial court
then severed Gish’s claims against Timpte from the remainder of the case, making the summary
judgment final for purposes of appeal. The court of appeals affirmed the trial court’s judgment as to
all of Gish’s claims except his claim for design defect, concluding that there was “some evidence
upon which reasonable factfinders could disagree as to whether the trailer’s design was both
unreasonably dangerous and a cause of Gish’s fall.” 2007 Tex. App. LEXIS 9411, at *11-12, 2007
WL 4224411, at *4.
A no-evidence summary judgment motion under Rule 166a(i) is essentially a motion for a
pretrial directed verdict; it requires the nonmoving party to present evidence raising a genuine
issue of material fact supporting each element contested in the motion. Tex. R. Civ. P. 166a(i); Mack
Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006). When reviewing a no-evidence
summary judgment, we “review the evidence presented by the motion and response in the light most
favorable to the party against whom the summary judgment was rendered, crediting evidence
favorable to that party if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not.” Mack Trucks, 206 S.W.3d at 582 (citing City of Keller v. Wilson, 168 S.
W.3d 802, 827 (Tex. 2005); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002)).
We begin with the grounds for Timpte’s no-evidence summary judgment motion. Gish contends that
Timpte’s motion challenged only Gish’s allegation that a design defect in the Super Hopper was the
producing cause of his injury, not that there was a defect rendering the product unreasonably
dangerous. Because the motion did not raise this issue, Gish concludes that the trial court erred in
rendering its no-evidence summary judgment in favor of Timpte.
It is well settled that a trial court cannot grant a summary judgment motion on grounds not presented
in the motion. Brewer & Pritchard, P.C., 73 S.W.3d at 204; Science Spectrum, Inc. v. Martinez, 941
S.W.2d 910, 912 (Tex. 1997). Our no-evidence summary judgment rule similarly requires that the
moving party identify the grounds for the motion:
After adequate time for discovery, a party without presenting summary judgment evidence may
move for summary judgment on the ground that there is no evidence of one or more essential
elements of a claim or defense on which an adverse party would have the burden of proof at trial.
The motion must state the elements as to which there is no evidence. The court must grant the
motion unless the respondent produces summary judgment evidence raising a genuine issue of
material fact. Tex. R. Civ. P. 166a(i). We have further explained that “[t]he motion must be specific in
challenging the evidentiary support for an element of a claim or defense; paragraph (i) does not
authorize conclusory motions or general no-evidence challenges to an opponent’s case.” Id. at
The underlying purpose of this requirement “is to provide the opposing party with adequate
information for opposing the motion, and to define the issues for the purpose of summary judgment.”
Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 771, 772 (Tex. 1978). We have analogized this
purpose to that of the “fair notice” pleading requirements of Rules 45(b) and 47(a). Id. at 772-73; see
also Tex. R. Civ. P. 45(b) (requiring a party’s pleadings to give “fair notice” to the opponent); Tex. R.
Civ. P. 47(a) (requiring a plaintiff’s pleadings to give “fair notice of the claim involved”).
After setting forth the elements of a design defect claim, Timpte’s motion stated “Plaintiff has
presented no evidence of a design defect which was a producing cause of his personal injury.” In a
subsequent paragraph labeled “Conclusion” Timpte restated: “There is no evidence of the product
being defective or unreasonably dangerous, and there is no evidence the trailer was the proximate
or producing cause of the Plaintiff’s injuries.” The motion thus unambiguously set out the elements of
Gish’s design defect claim and Timpte’s belief that there was no evidence that its trailer was either
unreasonably dangerous or the producing cause of Gish’s injury. Although such a motion may be
insufficient to give fair notice in a case involving a complex product or raising complicated issues of
design defect, here the complaint was simple and straightforward; the record reveals no confusion of
Gish’s claim or Timpte’s assertions of no evidence. Gish responded thoroughly as to both elements,
indicating his understanding of Timpte’s motion.
We conclude that Timpte’s motion gave fair notice to Gish that it was challenging both whether the
alleged defect rendered the trailer unreasonably dangerous and whether the defect was the
producing cause of Gish’s injury. Timpte’s motion was not the type of “conclusory motion or
general no-evidence challenge to an opponent’s case” barred by Rule 166a(i). The issues of
design defect and producing cause were clearly raised in Timpte’s motion and joined in Gish’s
To recover for a products liability claim alleging a design defect, 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. Hernandez v. Tokai Corp., 2 S.W.3d 251, 256-57 (Tex. 1999); Tex. Civ.
Prac. & Rem. Code § 82.005(a); see also McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.
1967) (adopting Restatement (Second) of Torts § 402A (1965)). To determine whether a product
was defectively designed so as to render it unreasonably dangerous, Texas courts have long
applied a risk-utility analysis that requires consideration of the following factors:
(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.
American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 432 (Tex. 1997); see also Hernandez, 2 S.W.
3d at 256 (citing Turner v. Gen. Motors Corp., 584 S.W.2d 844, 847 (Tex. 1979)).
The risk-utility analysis does not operate in a vacuum, but rather in the context of the product’s
intended use and its intended users. Hernandez, 2 S.W.3d at 259-60 (risk-utility analysis of a
cigarette lighter must be conducted in light of its intended adult users); Caterpillar Inc. v. Shears, 911
S.W.2d 379, 383-84 (Tex. 1995) (risk-utility analysis of a front-end loader with a removable canopy
conducted in light of its specialized use in low-clearance areas). Although whether a product is
defective is generally a question of fact, in the appropriate case, it may be determined as a matter of
law. Hernandez, 2 S.W.3d at 260-61 (“[T]he issue of whether the product is unreasonably dangerous
as designed may nevertheless be a legal one if reasonable minds cannot differ on the risk-utility
analysis considerations.”); Grinnell, 951 S.W.2d at 432.
In this regard, we have also rejected the contention that Texas should follow the “open and obvious
A number of courts are of the view that obvious risks are not design defects which must be
remedied. See, e.g., Gray [v. Manitowoc Co.], 771 F.2d [866,] 870 [(5th Cir. 1985)] (applying
Mississippi law); Delvaux v. Ford Motor Co., 764 F.2d 469, 474 (7th Cir. 1985) (applying Wisconsin
law); Young v. Tide Craft, Inc., 270 S.C. 453, 242 S.E.2d 671, 680 (1978).
However, our Court has held that liability for a design defect may attach even if the defect is
apparent. Turner, 584 S.W.2d at 850.
Shears, 911 S.W.2d at 383; see also Hernandez, 2 S.W.3d at 258 (“[I]n general, the obviousness of
danger in and of itself is not an absolute bar . . . to liability for a defective design.”). We have
noted, however, that 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.” Hernandez, 2 S.W.3d at 258.
Gish alleges that the Super Hopper trailer was defectively designed in two ways: (1) the top rail of
the trailer was too narrow and presented tripping hazards; and (2) the top two rungs of the ladders
mounted on the trailer were unnecessary and allowed the operator to climb to the top of the trailer.
Essentially, Gish complains 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.
There is no evidence, however, that the top rail of the trailer is unreasonably dangerous in light of its
use and purpose. As already noted, the top rail from which Gish fell is only 5 to 5.66 inches wide and
made of extruded aluminum, an extremely slippery surface. Timpte’s executive vice president of
manufacturing and engineering, Jeffrey Thompson, testified that the top rail was designed this way
for two reasons: (1) the width of the top rail is only as wide as necessary to support the front end of
the trailer; and (2) the top rail is made of extruded aluminum and slants slightly towards the inside of
the trailer so that any commodity that spills onto the top rail will slide into the trailer. Thompson
testified that, were the top rail to be widened, it would add to the total weight of the trailer thereby
reducing the weight of the commodity that the trailer would be permitted to carry. The utility of this
design–maximizing the amount of commodity that the trailer can haul while keeping the structure of
the trailer sound–is undeniably very high.
The corresponding risk of someone being injured the way Gish was is extremely low. 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.” See Caterpillar Inc. v. Shears, 911 S.W.2d 379, 382 (Tex. 1995) (internal quotation
Whether the risk of injury is common knowledge is a question of law, not fact. Id. at 383. In Shears,
we determined that the proper inquiry is whether an average user of the product would recognize the
risks entailed by the use of the product as-is. Id.; see also Sauder Custom Fabrication Inc. v. Boyd,
967 S.W.2d 349, 350-51 (Tex. 1998) (per curiam) (“The consumer’s perspective is that of an
ordinary user of the product, not necessarily the same as that of an ordinary person unfamiliar with
the product.”). Applying that principle, we held as a matter of law that the risks presented by the open
cab of a front-end loader were obvious to the average user, such that no warning was required.
Shears, 911 S.W.2d at 383. The risk of falling from the top of the trailer while trying to balance on a
five-inch strip of extruded aluminum is equally obvious to an average user of the Super Hopper trailer.
As noted though, the fact that the alleged defect is open and obvious, although an important
consideration, is generally not determinative in Texas. Hernandez v. Tokai Corp., 2 S.W.3d 251, 258
(Tex. 1999). Timpte, however, asks that we revisit this rule, arguing that, in other contexts, the open
and obvious nature of a danger is decisive. Gen. Elec. Co. v. Moritz, 257 S.W.3d 211 (Tex. 2008)
(premises owner owes no duty to warn an independent contractor’s employees of an open and
obvious danger); Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 183-84 (Tex. 2004)
(product seller owes no duty to warn of commonly known risks of the product’s use).
But we have long recognized that, in the context of an obvious risk, the duty to warn of defects is
distinct from the duty to design safe products. Compare Turner v. Gen. Motors Corp., 584 S.W.
2d 844, 850 (Tex. 1979) (recognizing design defect claim even if defect is apparent), with Joseph E.
Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 387-88 (Tex. 1991) (no duty to warn of risks
associated with prolonged and excessive alcohol consumption because such risks are common
knowledge). As the Restatement notes:
Warning of an obvious or generally known risk in most instances will not provide an effective
additional measure of safety. Furthermore, warnings that deal with obvious or generally known risks
may be ignored by users and consumers and may diminish the significance of warnings about non-
obvious, not-generally-known risks. Thus, requiring warnings of obvious or generally known risks
could reduce the efficacy of warnings generally. Restatement (Third) of Torts: Products Liability § 2
cmt. j (1998).
The focus of a design defect claim, however, is whether there was a reasonable alternative design
that, at a reasonable cost, would have reduced a foreseeable risk of harm. Id. § 2 cmt. d. Thus, if it is
reasonable for a product’s designer to incorporate a design that eliminates an open and obvious
risk, the product reaches a more optimum level of safety by incorporating the safer design than by
keeping the current design with the open and obvious risk. See id. § 2 cmt. a. We see no reason to
discard the risk-utility analysis that Texas courts have long-applied to encourage manufacturers to
reach an optimum level of safety in designing their products.
Nevertheless, the risk-utility factors here confirm that the design of the Super Hopper trailer was not
defective as a matter of law. 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. The Federal Highway Administration generally
limits the gross vehicle weight of a commercial motor vehicle to 80,000 pounds; therefore, any
increase in the unloaded weight of the trailer results in a decrease of the amount of commodity the
trailer can haul, thus reducing its overall utility to users. 23 C.F.R. § 658.17 (2008). The width of the
top rail of the Super Hopper trailer is therefore not a design defect that renders the trailer
There is also no evidence that the top two rungs of the ladder are a design defect that renders the
trailer unreasonably dangerous. Thompson testified that the top two rungs are necessary to maintain
the structure and stability of the ladder when the side rails are under pressure; without them, the
ladder could twist or bend. Additionally, even though Timpte warned users to use the side rails of the
ladder as a handhold when climbing the ladder, were a user’s hands to slip, the additional rungs
provided additional handholds and an additional measure of safety. Thus, the utility of the ladder as
constructed is high.
Conversely, the risk of injury from the use of the ladder is very slight. Gish’s injury is 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 negates the need for any additional warning.
See Caterpillar Inc. v. Shears, 911 S.W.2d 379, 382-83 (Tex. 1995). Therefore, any risk from the
ladder itself stems only from the risk that a user will ignore both Timpte’s warnings and open and
Additionally, as noted above, removal of the top two rungs, although it might have prevented Gish’s
injury, might also increase the risk of injury to others who might need those rungs as a failsafe
handhold. Removing the top two rungs could also cause the ladder to bend or become unstable
under pressure, thereby increasing the risk of danger from its use. The inclusion of the top two rungs
of the ladder is therefore not a design defect that renders the Super Hopper unreasonably
* * * * *
Because there is no evidence that the design defects alleged by Gish rendered the trailer
unreasonably dangerous, we reverse the court of appeals’ judgment and render judgment reinstating
the trial court’s summary judgment.
David M. Medina
OPINION DELIVERED: June 5, 2009
 Because the interests of Timpte Inc. and Timpte Industries are the same throughout these proceedings,
we refer to them collectively as “Timpte.”
 The tarp assembly consists of two end caps–one on the front and one on the rear of the trailer–a latch
plate that runs the length of the driver’s side of the trailer, and seven curved metal bars that cross the trailer
at approximately even intervals. These bars curve up towards the middle of the trailer, such that they form a
peak down the trailer’s center line. Two other metal bars run the length of the trailer on either side of this
peak. This assembly supports the tarp when it is rolled over the trailer, and the latch plate allows the operator
to tighten the tarp taut over the trailer.
 Pinnacol Assurance, the workers’ compensation insurance carrier for Gish’s employer, Scott Hinde
Trucking, intervened in the suit and asserted its rights to subrogation for the more than $150,000 it has paid
in benefits as a result of Gish’s accident. Because Pinnacol’s interests are aligned with Gish’s, we refer to
them collectively as “Gish.”
 There were several other warning labels on the front of the trailer, but none are relevant to Gish’s claims.
 This is also the rule adopted by the Restatement. Restatement (Third) of Torts: Products Liability § 2 cmt.
d (1998) (“Subsection (b) does not recognize the obviousness of a design-related risk as precluding a finding
of defectiveness. The fact that a danger is open and obvious is relevant to the issue of defectiveness, but
does not necessarily preclude a plaintiff from establishing that a reasonable alternative design should have
been adopted that would have reduced or prevented injury to the plaintiff.”).
 We again recognize that in some situations, however, “there could be a fact question about whether
consumers have common knowledge of risks associated with a product.” Shears, 911 S.W.3d at 383. This is
not such a situation.
 Widening the side rail would also encourage other users of the Timpte trailer to use the side rail as a
walkway, thus actually making it less safe.
 As the observation platform is only 38½ inches below the top rail of the trailer, Gish could have climbed
atop the trailer from this perch even if the top two rungs of the ladder had been removed.
 Before this appeal, Gish’s premises liability claims against Martin Resources were severed from the claims
against Timpte and left pending in the trial court.