                IN THE SUPREME COURT OF TEXAS
                                       ════════════
                                         NO. 13-0042
                                       ════════════


                            GENIE INDUSTRIES, INC., PETITIONER,

                                                 v.


RICKY MATAK, BELINDA MATAK AND MISTY SONNIER, AS REPRESENTATIVE OF THE
      ESTATE OF WALTER PETE LOGAN MATAK, DECEASED, RESPONDENTS
               ══════════════════════════════════════
                           ON PETITION FOR REVIEW FROM THE
                 COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS
               ══════════════════════════════════════


       JUSTICE BOYD, joined by JUSTICE LEHRMANN and JUSTICE DEVINE, dissenting.

       If I had been a juror at this trial, I probably would have decided that Genie Industries’ AWP

40-S aerial work platform lift is not unreasonably dangerous and thus not defectively designed.

But I’m not sure, nor need I be, because no one is asking what I would have decided if I had been

a juror. We are not asked in this case which alleged facts are true and which are false, nor are we

asked whether the lift’s risks outweigh its utility. Instead, Genie is asking the only evidentiary

question it can ask this Court: whether the trial record contains any evidence—anything more than

a “mere scintilla”—that would allow a reasonable juror to find that the lift’s risks outweigh its

utility, making the lift unreasonably dangerous and thus defectively designed. As the Court

explains, this risk-utility balancing determination is a question of fact for the jury, and we cannot

trump the jury’s decision unless no reasonable juror hearing the evidence in this case could

possibly have reached it. This record contains at least some evidence that it was both foreseeable
and likely that untrained non-professionals would use the Genie lift, that they would destabilize it

while the platform was raised and occupied despite the warnings and the allegedly obvious

dangers, and that doing so would result in serious injuries and death, no matter how high the

platform is elevated. Because this evidence, viewed in the light most favorable to the jury’s verdict,

would permit a reasonable juror to find that the lift’s risks outweigh its utility, I respectfully

dissent.

                                                    I.
                                          The Standard of Review

        Our well-established standard of review controls my decision in this case. The issue of

“whether a product is unreasonably dangerous . . . is a question of fact for the jury” to decide,

“taking into consideration the utility of the product and the risk involved in its use.” Am. Tobacco

Co. Inc. v. Grinnell, 951 S.W.2d 420, 432 (Tex. 1997). The factors relevant to that balancing

analysis are “for the jury to consider when determining whether a product was defectively

designed.” Id.1 In fulfilling its duty, the jury may rely on both direct and circumstantial evidence,

and often, “proof of the defect . . . can only be made by circumstantial evidence.” Pittsburg Coca-

Cola Bottling Works of Pittsburg v. Ponder, 443 S.W.2d 546, 548 (Tex. 1969). The jury “may

believe one witness and disbelieve others” and “resolve inconsistencies in the testimony of any

witness.” McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). The jury may draw

reasonable inferences from the evidence, and on appeal, “[w]hether other possible inferences may



        1
           See also Boatland of Hous., Inc. v. Bailey, 609 S.W.2d 743, 746 (Tex. 1980) (“The jury may consider many
factors before deciding whether a product’s usefulness or desirability are outweighed by its risks.”); Turner v. Gen.
Motors Corp., 584 S.W.2d 844, 851 (Tex. 1979) (describing question and instructions to be presented to jury when
“considerations of utility and risks are present in the state of the evidence, and in such cases should serve as an
appropriate aid to the jury in its deliberations”).


                                                         2
be drawn from the evidence is not the relevant inquiry.” Havner v. E-Z Mart Stores, Inc., 825

S.W.2d 456, 459 (Tex. 1992) (emphasis added).

       The jury found in this case that the Genie lift’s risks outweigh its utility, and Genie

contends that no legally sufficient evidence supports that finding. To prevail in this appeal, Genie

must show that there is “no more than a mere scintilla” of evidence that the lift’s risks outweigh

its utility. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). In deciding

whether the record contains legally sufficient evidence, we must view the evidence “most

favorably in support of the [jury’s] finding.” Havner, 825 S.W.2d at 458. As an appellate court we

are “not a fact finder,” and we may not “substitute [our] judgment for that of the jury, even if the

evidence would clearly support a different result.” Maritime Overseas Corp. v. Ellis, 971 S.W.2d

402, 407 (Tex. 1998). That is not to say that the evidence in every case will always create a jury

issue on the risk-utility determination. “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.” Timpte Indus.,

Inc. v. Gish, 286 S.W.3d 306, 312 (Tex. 2009). In describing what the appropriate case is, we have

explained that “the 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.” Hernandez v. Tokai Corp., 2 S.W.3d 251, 261 (Tex. 1999).

       Thus, we cannot reverse this jury’s determination unless the evidence was such that

“reasonable minds cannot differ on the risk-utility analysis considerations.” Id. This Court “cannot

substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of

reasonable disagreement.” City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 1995). Under this

standard of review, the outcome of a risk-utility balance will “rarely” be decided as a matter of


                                                   3
law in design defect cases “when any of these elements is disputed.” AM. L. PROD. LIAB.3D § 28:19

(1997). As the Supreme Court of Georgia has observed, by adopting the risk-utility analysis as the

basis for design-defect liability and entrusting juries to conduct that balancing analysis, we have

necessarily “increased the burden of a defendant, in seeking a judgment as a matter of law, to show

plainly and indisputably an absence of any evidence that a product as designed is defective.”

Ogletree v. Navistar Int’l Transp. Corp., 522 S.E.2d 467, 470 (Ga. 1999) (emphasis in original).

       In short, we cannot “second guess” the jury. State v. $11,014.00, 820 S.W.2d 783, 785

(Tex. 1991). This is not simply our rule; it is a principle that derives directly from our

Constitution’s guaranty of the right to trial by jury, and “courts must not lightly deprive our people

of this right by taking an issue away from the jury.” Universe Life Inc. Co. v. Giles, 950 S.W.2d

48, 56 (Tex. 1997). Our duty in this case, therefore, is well-established: we must determine whether

the evidence that the jury heard and observed “would enable reasonable and fair-minded people to

differ in their conclusions.” City of Keller, 168 S.W.3d at 822. If “the evidence falls within this

zone of reasonable disagreement,” we must accept the jury’s verdict. Id. We can only reject the

jury’s finding if, in light of the evidence, “reasonable minds cannot differ.” Timpte, 286 S.W.3d at

312 (quoting Hernandez, 2 S.W.3d at 260–61).

                                              II.
                                    Unreasonably Dangerous

       To prevail on their claim that Genie defectively designed the lift, the Mataks were required

to 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.” Timpte, 286 S.W.3d at 311. Genie does not dispute that the

evidence supports the third element (producing cause), and the Court and I agree that the Mataks

                                                  4
offered legally sufficient evidence of the second (safer alternative design). Unlike the Court,

however, I conclude that the record contains legally sufficient evidence to support the jury’s

finding of the first element: that the lift was unreasonably dangerous. The evidence certainly did

not conclusively establish this, and it probably would not have been enough to persuade me if I

had been on the jury. But on this record, I cannot conclude that no reasonable and fair-minded

juror could disagree with me. Instead, I conclude that, on this record, reasonable minds can differ.

A.       The Risk-Utility Analysis

         To decide whether a product design is unreasonably dangerous, the jury must balance the

product’s utility against the risks involved in its use. Caterpillar, Inc. v. Shears, 911 S.W.2d 379,

383–84 (Tex. 1995); Turner v. Gen. Motors Corp., 584 S.W.2d 844, 850 (Tex. 1979). We have

identified five factors that may be relevant to the jury’s risk-utility balancing determination:

         (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.

Timpte, 286 S.W.3d at 311 (citing Grinnell, 951 S.W.2d at 432).2


        2
          This Court has never explained how, or even whether, appellate courts should utilize these factors when
conducting a no-evidence review of a jury’s verdict. In all of the cases in which we utilized these five factors, we were
reviewing a trial court’s decision on summary judgment, not a jury verdict. See Timpte, 286 S.W.3d at 308; Hernandez,
2 S.W.3d at 255; Grinnell, 951 S.W.3d at 425. We referred to various factors when reviewing a jury verdict in
Martinez, but we did not utilize them in our no-evidence analysis. Martinez, 977 S.W.2d at 335. In other cases

                                                           5
         By design, this risk-utility analysis is a fluid process. The first factor sets forth the basic

balancing test that the jury must conduct: weighing the product’s usefulness (its utility) against the

likelihood and seriousness of injuries that its use may cause (its risks). To oversimplify the

analysis, if the product’s risks outweigh its utility, it is unreasonably dangerous, and if its utility

outweighs its risks, it is not. But neither the determination of a product’s utility and risks nor the

weighing of the two is that simple. A product’s utility is not just its usefulness, but its degree of

usefulness and the relative uniqueness of that usefulness as compared to other products. In this

sense, the second and third factors—the availability of a substitute product and the ability to

eliminate the unsafe character of the product—aid in determining the weight of the product’s

utility. If a product is extremely useful, but other safer products or designs are similarly or more

useful, its utility may be relatively low, in spite of its extreme usefulness. By contrast, if it is only

minimally or rarely useful, but no safer products or designs are as useful, then its utility might be

very high.

         Similarly, a product’s risks are not just the dangers it creates, but the nature, likelihood,

and extent of those dangers. In this sense, the fourth and fifth factors—the user’s awareness and




involving a jury verdict—including our most recent decision—we “analyze[d] the evidence in light of the charge as
given,” without ever referring to the factors. Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex. 2014); see also
Caterpillar, 911 S.W.2d at 384. Whether and how appellate courts should utilize the factors when reviewing a jury
verdict is a relevant issue because we have held that the factors should not be included in the jury instructions, so the
jury will never actually be aware of these factors when making its decision. Turner, 584 S.W.2d at 849 (explaining
that “the analysis [of the factors] is most helpful and can be used by appellate and trial judges, and by students and
commentators, but that it is not normally given to the jury”). It makes little sense for appellate courts to utilize specific
factors to determine whether evidence supports a jury’s verdict when the jury was not instructed to consider those
factors. Since the factors, at least in theory, limit the scope of the risk-utility analysis, the better rule would be that
appellate courts, when reviewing a jury verdict, should consider whether any evidence supports the jury’s finding
when measured against the jury instructions, whether that evidence fits within the factors or not. Since neither party
raises this issue in this case, however, and since there is evidence to support the jury’s verdict even when analyzed in
light of the listed factors, we need not decide that issue here.


                                                             6
the avoidability of the dangers due to general knowledge, obviousness, warnings, and the ordinary

consumer’s expectations—aid in determining the weight of the product’s risks. If a product is

extremely dangerous, but consumers and users are aware of those dangers and consistently avoid

them, its actual risks may be quite low. But a relatively safe product may present a very high risk

if unsuspecting users are severely injured by the rare danger it does present. A product with very

high utility, due to its great usefulness and the unavailability of substitute products or designs, is

unlikely to be unreasonably dangerous unless the risks are also extremely high. A product that

creates very high risks, by contrast, is likely to be unreasonably dangerous unless its utility is also

extremely high.

         We have made it very clear that the fluid process that this risk-utility analysis requires is

not susceptible to absolutes. For example, the analysis does not absolutely require manufacturers

to warn of a product’s risks, especially if those risks are obvious and apparent to the ordinary user.

Caterpillar, 911 S.W.2d at 382. 3 But it also does not absolutely absolve a manufacturer that

provides an adequate warning, because “it is not at all unusual for a person to fail to follow basic

warnings and instructions.” Martinez, 977 S.W.2d at 337 (quoting Gen. Motors Corp. v. Saenz,


         3
            The Court relies on Caterpillar to support its matter-of-law conclusion that the Genie lift’s risks do not
outweigh its utility. When addressing the plaintiff’s defective-design claim in Caterpillar, however, the Court held
that the claim failed as a matter of law not because there was no evidence that the product’s risks outweighed its utility,
but because the plaintiff “offered no evidence of a safer design . . . that could perform the same tasks” as the product
at issue. Id. at 384. The Court resolved the defective design claim in that case based on the lack of any evidence of a
safer alternative design, not based on the risk-utility determination. The Court also held as a matter of law that the
manufacturers “did not have the duty to warn” because the dangers were obvious to the product’s ordinary user. Id. at
383. The Court relied on Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385 (Tex. 1991), in which the
Court held as a matter of law that the defendant owed no duty to warn of “the danger of developing the disease of
alcoholism from prolonged and excessive consumption of alcoholic beverages.” Id. at 385. We have recognized that
“the duty to warn of defects is distinct from the duty to design safe products,” and that the obviousness of a risk is not
determinative of the latter duty in Texas. Timpte, 286 S.W.3d at 313. Moreover, “[i]t is firmly established in Texas
that the existence and elements of a common law duty are ordinarily legal issues for the court to decide.” Humble
Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 181 (Tex. 2004). In short, the Court’s matter-of-law conclusions in
Caterpillar did not involve the risk-utility analysis at all.


                                                            7
873 S.W.2d 353, 358 (Tex. 1993)). Nor does it absolutely absolve a manufacturer when “the defect

is apparent.” Id. at 336; Timpte, 286 S.W.3d at 312 (“liability for a design defect may attach even

if the defect is apparent”); Turner, 584 S.W.2d at 850 (same).

       It used to be the law in Texas that the plaintiff’s awareness and appreciation of the risk,

whether due to warnings or to the obviousness of the risk, was an absolute defense against a

defective-design claim. See Rourke v. Garza, 530 S.W.2d 794, 800 (Tex. 1975) (“It is an

appropriate defense that the user voluntarily exposed himself to the risk posed by the defective

product with knowledge and appreciation of the danger.”), abrogated on other grounds by Ford

Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007). But we have since rejected such absolutes,

holding that an “open and obvious” and “generally known” danger can give rise to liability, see

Timpte, 286 S.W.3d at 313, and an otherwise adequate warning is not a bar to liability, id. at 313–

14. Under the risk-utility analysis, “warnings and safer alternative designs are factors, among

others, for the jury to consider in determining whether the product as designed is reasonably safe.”

Martinez, 977 S.W.2d at 337. A product may thus be unreasonably dangerous as designed even if

the defect is apparent or the manufacturer has adequately warned of the dangers, because the

anticipated awareness and avoidability of the dangers and the ordinary consumer’s expectations

are not absolutes. Instead, they “are but two factors for the jury to consider when determining

whether a product was defectively designed.” Grinnell, 951 S.W.2d at 432; see also Hernandez, 2

S.W.3d at 257; Martinez, 977 S.W.2d at 335–37.

       We have rejected such absolute rules in favor of the more fluid risk-utility analysis because

that analysis provides a more effective way to “encourage manufacturers to reach an optimum

level of safety in designing their products.” Timpte, 286 S.W.3d at 314. A design that eliminates a


                                                 8
risk is safer than a design that retains the risk, even if the risk is open and obvious or warned

against. Id. As “we have long recognized[,] . . . the duty to warn of defects is distinct from the duty

to design safe products,” even “in the context of an obvious risk.” Id. at 313. “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.” Id.

        In this case, the Court concludes, as a matter of law, that the Genie lift was not unreasonably

dangerous because its risks were both obvious and warned against. While those facts are certainly

important to the risk-utility analysis, the Court’s own precedent rejects the idea that they make the

lift safe as a matter of law. “The fact that a product user is or should be aware of the existence and

avoidability of dangers inherent in a product’s use that are obvious, commonly known, or warned

against, . . . may . . . be decisive in a particular case.” Hernandez, 2 S.W.3d at 258. But such a

determination cannot be based merely on the existence of a warning or obviousness of the dangers,

as if either were “an absolute bar—like certain affirmative defenses—to liability for a defective

design.” Id. We must therefore review the record in this case to determine whether it contains any

evidence that would allow a reasonable juror to conclude that the risks of the Genie lift outweigh

its utility, in spite of the warnings and the allegedly obvious nature of its risks.

B.      The Utility of the Lift

        The evidence regarding the lift’s utility is essentially undisputed in this case. As the Court

explains, the evidence established that the lift, while able to reach heights exceeding forty feet, is

relatively lightweight, portable, compact enough to fit through ordinary doorways, capable of

being moved and operated by a single person working alone, and relatively inexpensive. Genie’s


                                                   9
corporate representative and director of product safety, Rick Curtin, emphasized that the lift’s

portability was “very important,” and was “the key thing that makes the machine useful.” The

Mataks essentially offered no evidence to contradict this. Instead, they sought to prove that, as

useful as Genie’s lift may be, the fact that safer alternative designs exist reduces the weight of its

utility, and that the risk of serious injury from misuse was also substantial. The Court

acknowledges this evidence, but concludes that the “factors . . . conclusively establish that the

[Genie lift] is not . . . unreasonably dangerous.” Ante at __. I agree that the evidence conclusively

establishes that the lift’s utility is substantial. But the jury concluded that its risks outweighed its

utility, however great its utility may be. Thus, we must decide whether there is more than a “mere

scintilla” of evidence that the lift’s risks outweighed its undisputed utility.

C.      Identifying the Relevant Risk

        To conduct the risk-utility analysis, we must first identify the product’s relevant risk. The

first factor identifies the risk as “the gravity and likelihood of injury from [the product’s] use.” The

evidence in this case conclusively established that the toppling of a lift could cause extremely

grave injuries: this lift’s fall from forty feet resulted in Logan Matak’s death, and everyone agrees

that a fall from even lower heights can also cause serious injury or death. Moreover, Genie

admitted that it is foreseeable that the lift will tip over if the leveling jacks attached to the outriggers

are raised while the lift is extended and occupied. Genie warned against this very danger:

“Attempting to move the machine with the platform raised will tip the machine over and

cause death or serious injury.” According to the Mataks, the evidence supports the jury’s finding

that the lift was unreasonably dangerous because, despite the foreseeability of such accidents and

the likelihood of such serious injuries, Genie “did nothing to eliminate this risk” and instead just


                                                    10
put a warning on it.

        In response, Genie contends that these risks arise only if the lift is misused, in a way that

is contrary to the instructions and disregards both the warning and the “open and obvious dangers.”

Genie relies on our decision in Timpte, in which we found no evidence that a dual-hopper grain

trailer was unreasonably dangerous and noted that “any risk from [the defendant’s product] itself

stems only from the risk that a user will ignore both [the defendant’s] warnings and open and

obvious dangers.” Timpte, 286 S.W.3d at 314. According to Genie, our “analysis [in Timpte] about

how to weigh facts involving a high utility product where the associated risk is obvious and

described in clear warnings and where the risk arises only in the unlikely event of intentional

misuse should be dispositive here.” Because the lift’s utility is undeniably high and the only risks

are obvious risks that result only from misuse, Genie contends, we should hold that the product is

not unreasonably dangerous as a matter of law, just as we did in Timpte.4

        We did not hold in Timpte, however, that risks that arise only from the misuse of a product

are irrelevant to the risk-utility analysis, or that a product cannot be unreasonably dangerous if its

only risks result from misuse. To the contrary, we explained in Hernandez that “the fact that the

foreseeable risk of harm is due to a misuse of the product, rather than an intended use, is not an

absolute bar to liability for that portion of an injury caused by a product’s defective design.”

Hernandez, 2 S.W.3d at 257. “Instead,” we explained, “misuse of a product is a factor that must



        4
           Two amicus curiae, the Texas Association of Defense Counsel and the Association of Equipment
Manufacturers, have filed briefs supporting Genie’s argument on this point. The TADC asserts that, contrary to our
decision in Timpte, the court of appeals here gave “controlling weight to risks caused by intentional misuse and
disregarding obvious risks,” when “the risk of harm arises only when users disregard adequate warnings and obvious
dangers.” Similarly, the AEM contends that, contrary to Timpte, the court of appeals “gave no weight at all to the
intentional misuse, the significant warnings included on the Genie platform, and the obviousness of the risk.”


                                                       11
be considered in allocating responsibility for the injury.” Id. When misuse is a factor in the risk-

utility analysis, and the product’s only dangers result from its misuse, the nature of the relevant

risk necessarily changes. We made this point clear in Hernandez, in which the plaintiff alleged

that a cigarette lighter was defectively designed and unreasonably dangerous because it lacked a

child-resistant safety mechanism. Id. at 255. We explained in that case that the relevant risk “is not

that a child who plays with a lighter may harm himself. We assume that that risk is substantial. . .

. Rather, the risk is that a lighter will come into a child’s hands.” Id. at 260. “The relevant risk,”

we explained, “includes consideration of both the likelihood that adults will allow children access

to lighters and the gravity of the resulting harm.” Id.

       In the same way, the question here is not whether it was foreseeable and likely that raising

the leveling jacks while the lift is elevated and occupied would cause the lift to tip over and

seriously harm its occupant. No one disputes here that it was. The question here is whether this

misuse was foreseeable and likely in spite of both the allegedly obvious dangers and the existence

of the warning. As Genie argues, the Mataks “conflate the risks arising from a misuse with the risk

that a product will be misused in the first place.” I agree with Genie that the relevant risk in this

case is “the likelihood that the product will be misused” in a way that results in injury. Thus, the

relevant risk here was the risk that operators would raise the leveling jacks and attempt to move

the lift when the platform is elevated and occupied, despite the warning and the allegedly obvious

and open dangers.

D.     The Evidence of the Relevant Risk

       Genie contends, and the Court agrees, that there is no evidence in this record that the risk

of this kind of misuse was foreseeable and likely despite the warning and obvious dangers. Genie


                                                 12
acknowledges that the record contains three reports regarding similar accidents that occurred when

those operators, like the operators in this case, raised the leveling jacks while the platform was

elevated and occupied.5 The jury heard testimony and received accident reports about those similar

accidents. But Genie contends that all of those accidents involved less serious injuries because the

platform was much lower when the lifts tipped over. And more importantly, Genie asserts that the

evidence of those three accidents did not indicate a “likelihood” of such accidents because the

evidence also established that Genie has sold “hundreds of thousands” of these lifts worldwide,

and they have been used without incident “literally ‘millions’ of times.” Genie contends that the

evidence thus conclusively establishes that the relevant risk is “very slight.”

         The Court agrees with Genie, emphasizing that the evidence in this record of similar

accidents and misuses did not indicate that the platform was “fully elevated” when the users tried

to move the lift in those cases, and concluding that the evidence thus establishes only that “the

chance that anyone would attempt to [move the lift] with the platform fully elevated is only one in

millions.” Ante at ___. This conclusion ignores both our precedent regarding the role of evidence

of similar accidents and, more importantly, the evidence of how and why the accident at issue here

actually occurred.

         With regard to the role of evidence of similar accidents, we acknowledged in Hernandez

that it is difficult to apply the risk-utility analysis when the evidence suggests that it is unlikely

that a product will cause any accidental harm, but when it does the harm will likely be severe. 2

S.W.3d at 261. In that case, we agreed that the evidence established that although “children will


         5
           Genie’s director of product safety also acknowledged that he had reports of “eight or nine or ten instances
of people not doing it right.” Whether there was evidence of thirteen instances of similar misuse or only three, however,
is not significant to my conclusion.


                                                          13
almost certainly obtain access to lighters, . . . this will not happen often in comparison with the

number of lighters sold, but . . . when it does happen the harm caused can be extreme.” Id. at 260.

In light of this, the manufacturer urged us not to apply the risk-utility analysis and instead

determine the product’s dangerousness based solely on whether the product was more dangerous

that ordinary consumers would expect it to be. Id. at 261. The manufacturer noted that the

Legislature has adopted just that approach for cases involving firearms and ammunition, 6 and

urged us to judicially adopt the same approach for cigarette lighters, as courts in other jurisdictions

had done. Id. at 261–62. We refused to do so, explaining that “we are reluctant to carve out

exceptions to the risk-utility test that we have employed for years and that has been adopted by the

Restatement, especially when consumer expectation is a factor to be considered in applying the

risk-utility test and may in some cases outweigh all other considerations.” Id. at 262 (emphasis

omitted).

         Importantly, the “difficulties” that led the Legislature to reject the risk-utility analysis in

favor of the consumer-expectations test for firearms, like the “difficulties” that the manufacturer

asserted in Hernandez, arose from the fact that, with both guns and cigarette lighters, it is highly

unlikely that the product will cause any accidental harm, but when it does the harm is likely to be



         6
            For public policy reasons, the Legislature has declared that the risk-utility analysis does not apply to a
defective design claim against a manufacturer or seller of firearms or ammunition. See TEX. CIV. PRAC. & REM. CODE
§ 82.006(b) (“The claimant may not prove the existence of the defective design by a comparison or weighing of the
benefits of the firearm or ammunition against the risk of personal injury, property damage, or death posed by its
potential to cause such injury, damage, or death when discharged.”). Instead, a claimant may prove that a firearm was
defectively designed only by proving that the gun, as designed, did not function as an ordinary consumer of firearms
would have reasonably expected. Id. § 82.006(a)(1) (claimant must prove that “the actual design of the firearm or
ammunition was defective, causing the firearm or ammunition not to function in a manner reasonably expected by an
ordinary consumer of firearms or ammunition”). We thus noted in Hernandez that “[d]ifficulties in applying the risk-
utility test have prompted the Legislature to prescribe a consumer-expectation test for firearms and ammunition.” 2
S.W.3d at 261.


                                                         14
severe. Id. at 261 (explaining the manufacturer’s argument that “the risk-utility analysis is ill-suited

for cases like this when the utility of a product design is largely satisfaction of consumer preference

and the risk of harm, while improbable relative to the number of products sold, is often

calamitous”). Although we “recognize[d] that such circumstances make the use of the risk-utility

test difficult,” id., we refused to reject the risk-utility analysis and concluded instead that “[e]ach

of these considerations is relevant in assessing the risk,” id. at 260.

         We reached the same conclusion in Martinez, in which we acknowledged that “there ha[d]

been few reported [similar] accidents involving tires with this particular warning label.” Martinez,

977 S.W.2d at 337. We held that the relatively small number of similar accidents was “relevant,

and perhaps would persuade many juries,” but we stated that “we cannot say that it conclusively

establishes that the tire is reasonably safe when weighed against the other evidence.” Id. Under

Hernandez and Martinez, the Court’s matter-of-law conclusion here that the lift is not

unreasonably dangerous because the jury heard evidence of only a few similar accidents is simply

wrong. Although the number of similar accidents that the jury heard about was small compared to

the “millions” of uneventful uses of the lift worldwide, we have held that such evidence does not

conclusively establish that the relevant risk is “very slight.”

         In addition, the Court’s reliance on the relatively small number of similar accidents ignores

the evidence that the jury heard about how and why this accident occurred. Here, as in Martinez

and Hernandez, the record contains other evidence7 of the circumstances surrounding the accident,

which would permit a reasonable juror to conclude that the relevant risk was high even if the


         7
           The Court is simply incorrect when it says I conclude “a single accident is enough to show likelihood.”
Ante at ___. To the contrary, I conclude that the evidence I detail here is enough to show likelihood, or at least enough
for a reasonable juror to find a likelihood sufficient to conclude that the risk outweighs the utility.


                                                          15
number of actual accidents was relatively low.

        John Adams, the church’s employee in charge of audio and HVAC, testified that he and

the church’s other maintenance staff used the lift “just about every week,” and he asked someone

to raise the jacks and move the lift with him in it “[e]very time” he used it. The church’s IT director,

Clifton Ray Poe, testified that he also used the lift, and he agreed that it was “fairly common to

just loosen the feet and slide it over a little bit” with someone in it.

        Adams claimed that he had read the entire user’s manual, and admitted that he had seen

the warning on the lift, that his supervisor at his prior job had told him not to move the lift “if any

of the outriggers are raised,” and that this warning was “fairly common sense.” Despite these

instructions, warnings, and “common sense” knowledge, however, Adams admitted that he raised

the leveling jacks and moved the lift “every time” he used it. But in his case, he explained, the lift

was usually extended only about 10 or 12 feet up, at a level where he “felt comfortable jumping”

if necessary.

        In this case, according to Adams, he moved the lift with Logan Matak in it at least twice

before the accident occurred. The first time, Matak “came all the way down” before Adams moved

the lift, and the second time he came down to “10 or 12 feet.” Adams raised the leveling jacks only

“[m]aybe an inch to two,” safely moved the lift, and re-set the jacks, and Matak then raised the lift

back up to 35–40 feet. About thirty minutes later, Matak asked Adams and Jimmy Boggan,

Matak’s supervisor, to move him again.

        According to Adams, he then walked over to the lift and saw that Boggan was already

raising a leveling jack, so he began to do the same. He claimed he “didn’t look to see if [the lift]

was raised,” did not know whether Matak was still “30 feet up or 12 feet up,” and just “assumed


                                                   16
[that Matak] was happy” being moved where he was. He explained that he did not even think about

how high Matak was at the time because he was in a hurry and was just helping Matak while trying

to do his own job: “When you’re focused on getting your other job done and the other things you

got coming behind that and you’re trying to move at a rapid pace and the man said that he was

ready to move, I never thought to look up and look for him.”

       Adams speculated that, if he had looked up and noticed how high Matak was, it would have

caused him concern about trying to move the lift, and he would have asked if Matak was “sure”

he wanted to be moved. Unfortunately, Adams did not look up. Instead, he looked down and saw

that Boggan was already raising the leveling jacks on one side of the lift, so he knelt down and

raised the other two jacks just off the floor, “[m]aybe half to an inch.” As soon as he began to

straighten back up, he heard Matak say “I’m leaning,” and only then did he realize then that the

lift was too high. He grabbed the lift to keep it from falling, but by then there was nothing he could

do and “it kept coming,” so he backed out of the way as Matak fell to his death.

       Boggan also testified and confirmed that Adams said that they “push [a church employee]

around in that [lift] all the time.” Like Adams, Boggan claimed that, just before the fall, he raised

the leveling jacks only enough to take “the pressure off it,” enough to clear the carpet. Boggan

testified that Adams was the one who suggested moving the lift with Matak in it, to save time, and

that he and Matak agreed to “try it,” but did so “on the total assumption that what [Adams] says is

true, that the church uses that thing and moves it around all the time.” Consistent with the testimony

of Adams, Poe, and Boggan, the Matak’s expert, Ken Zimmer, testified that “in the industry . . . it

was widespread that people used these [lifts] without outriggers” in place.




                                                 17
         Adams also testified that, although he purchased the lift involved in this accident and used

it regularly, he received no formal training on its operation. Instead, his only “training” was when

the maintenance staff at the church where he had previously worked showed him how the lift

operates. Brent Sparks, the church’s worship minister who had also used the lift, admitted that he

did so even though he had never read the manual and was not familiar with its warning (and even

though he considers himself to be “a careful person”). Boggan, who had worked as an electrician

for Gulf Coast for eleven years, testified that he had never received any formal training on how to

use “one of these lifts,” had never read the manual for “this lift or any other lift like this,” and did

not read any of the warnings. Consistent with these admissions, Zimmer, the Matak’s expert,

explained that dealers regularly rent these lifts to non-professionals. In his opinion,

“[m]anufacturers know that these machines are gonna be abused, misused, [the users] aren’t gonna

be trained properly. . . . [T]hey don’t read the manual . . . . [They] rent the machine . . . and take it

home and use it.” Indeed, the portable, lightweight, inexpensive qualities that increase the lift’s

utility could make it more likely that untrained users will operate it.8

         This testimony, combined with the evidence of at least three similar accidents involving

the same lift design, would permit a reasonable juror to conclude, or at least draw the reasonable

inference, that:



           8
             Addressing the risks of cigarette lighters in Hernandez, we explained that “[t]he risk that adults, for whose
use the products were intended, will allow children access to them, resulting in harm, must be balanced against the
products’ utility to their intended users.” 2 S.W.3d at 259. “Whether adult users of lighters should be deprived of this
choice of product design because of the risk that some children will obtain lighters that are not child-resistant and
cause harm is the proper focus of the common-law risk-utility test.” Id. at 260. In the same way, the risk that Genie’s
dealers and trained professionals will allow untrained non-professionals like Adams, Boggan, and Matak to operate
the lift, resulting in harm, is a factor to be balanced against the lift’s utility to its intended users under the risk-utility
test. Based on the testimony of the witnesses in this case, a reasonable juror could conclude that the risks of unintended
uses and users outweighed the utility of the lift for intended uses and users.


                                                             18
          Adams did not intentionally destabilize the lift knowing that it was “fully elevated,”
           but instead assumed that the platform was at a lower and less dangerous level;

          Despite the warning and apparently obvious dangers, Adams believed it was safe to
           destabilize and move the lift, at least with the platform at a lower level, because he and
           others regularly did so without incident;

          Despite the warning and apparently obvious dangers, this is a common assumption,
           particularly in light of how often untrained non-professionals use the lift, and as a
           result, the use and movement of the lift when it is destabilized is a regular or common
           occurrence;

          Workers like Boggan and Matak, who do not use the lift very often, will follow the lead
           of workers like Adams, who do, and will try to move the lift when it is occupied despite
           the warning and apparently obvious dangers;

          The lift is not safe when it is moved or destabilized, even when the platform is at a
           lower level, because a fall when the platform is at any level can cause serious injuries
           and death;

          The fact that the lift can be, and commonly is, destabilized and moved at a lower level
           without incident makes the lift even more dangerous because it gives users a false sense
           that it is safe to move the lift with the platform at a lower level, which can lead to the
           kinds of assumptions and accidents that occurred here;

          Despite the warning and apparently obvious dangers, it is foreseeable and likely that
           operators are going to destabilize and move the lift when the platform is extended and
           occupied; and

          It is therefore likely that some users of this product will sustain serious injuries and
           deaths due to the misuse of the lift, despite the warning and apparent obvious dangers.

       Based on this evidence, I conclude that reasonable jurors could have different views

regarding “the user’s anticipated awareness of the dangers inherent in the product,” the

“avoidability” of those dangers “because of general public knowledge of the obvious condition of

the product, or of the existence of suitable warnings or instructions,” the “expectations of the

ordinary consumer,” and thus the “gravity and likelihood of injury” from the product’s use. Timpte,

286 S.W.3d at 311 (quoting Grinnell, 951 S.W.2d at 432). I would thus hold that the record


                                                19
contains at least some evidence on which a reasonable juror could conclude that the relevant risk

of the Genie lift outweighs its utility.

E.      Timpte and Martinez

        The Court relies heavily on Timpte, in which we held that a product’s risks did not outweigh

its utility as a matter of law. The plaintiff in Timpte, Gish, was injured when a gust of wind blew

him off of the top of a dual-hopper trailer, onto which he had climbed to grab a malfunctioning

silo downspout. 286 S.W.3d at 308. Gish alleged that the trailer was defectively designed because

(1) the rail around the trailer’s open top, on which he was trying to stand when he fell, was only

five inches wide, and (2) the ladder that he had climbed, which was intended for access to an

observation deck that sits below the rail, should not have had the top two rungs that he used to

access the top of the trailer. Id. at 308–09. Timpte did not involve a jury trial; we held that the

manufacturer was entitled to summary judgment.

        As is the case here, we concluded in Timpte that the evidence established that the utility of

the trailer’s top rail design was “undeniably very high.” Id. at 313. Also as here, the risk of falling

was “obvious,” the product warned users not to engage in the conduct that the plaintiff was

engaged in at the time of his injury, and the relevant risk “stem[med] only from the risk that a user

w[ould] ignore both [the] warnings and open and obvious dangers.” Id. at 312–14. But what is

present in this case that was not present in Timpte is evidence that ordinary users would commonly

misuse the product despite the warning and apparently obvious dangers. We mentioned in Timpte

that Gish had climbed up on the trailer “on several other occasions when the downspout would not

lower,” but we made no reference to any evidence that anyone other than Gish had ever done so.

Id. at 308. While the evidence in Timpte thus could establish only that the risk was “extremely


                                                  20
low” and “very slight,” id. at 313–14, the evidence of other users’ common misuse of the Genie

lift could establish that the risk was relatively high, given the availability of a safer alternative

design, or at least permit a reasonable juror to conclude it was.

        This case, therefore, is more analogous to Martinez, in which the plaintiff was seriously

injured when he attempted to install a 16-inch tire on a 16.5-inch rim. 977 S.W.2d at 332. He did

this in spite of the fact that the tire bore a “prominent warning label containing yellow and red

highlights and a pictograph of a worker being thrown into the air by an exploding tire.” Id. As

here, the product’s label prohibited the specific conduct the plaintiff was engaged in at the time of

his injury and warned that such conduct could result in serious injury or death:


                                            DANGER

                NEVER MOUNT A 16” SIZE DIAMETER TIRE ON A 16.5”
                RIM. Mounting a 16” tire on a 16.5” rim can cause severe injury or
                death. . . .
                        ...
                NEVER inflate a tire which is lying on the floor or other flat surface.
                ...
                NEVER inflate to seat beads without using an extension hose with
                gauge and clip-on chuck. . . .
                NEVER stand, lean or reach over the assembly during inflation.
                        ...
                Failure to comply with these safety precautions can cause the bead
                to break and the assembly to burst with sufficient force to cause
                serious injury or death.

Id. “Unfortunately, Martinez ignored every one of these warnings.” Id.

        The issue was the same in Martinez as it is here: “whether a manufacturer who knew of a

safer alternative product design is liable in strict products liability for injuries caused by the use of

its product that the user could have avoided by following the product’s warnings.” Id. at 331. We

concluded that the answer was yes, observing that the defendant acknowledged at trial “that

                                                   21
warnings are an imperfect means to remedy a product defect,” just as Curtin did in this case. Id. at

336. We agreed with the Restatement that warnings and safer alternative designs are merely

“factors, among others, for the jury to consider in determining whether the product as designed is

reasonably safe.” Id. at 337. We specifically noted that “[t]he jury heard firsthand how an accident

can occur despite the warning label, and how a redesigned tire would have prevented that

accident.” Id. “Unless the subject matter is solely for experts,” we concluded, “jurors are capable

of forming their own opinions from the record as a whole.” Id. at 339.

       Just as in Martinez, the jurors in this case were capable of forming their own opinions based

on the evidence. They did so, and they did not all agree. Ten members of the jury found that the

risks of Genie’s lift outweigh its utility, making it unreasonably dangerous and thus defectively

designed. But they did so thoughtfully, assigning only 55 percent of the responsibility for Matak’s

death to Genie, while assigning 20 percent to the church, 20 percent to Matak’s employer, and 5

percent to Matak himself. Because some evidence supports the jury’s findings, we are bound by

the law to respect its decision.

                                                III.
                                             Conclusion

       Having carefully reviewed the testimony, photographs, videos, other exhibits, and the trial

court’s instructions and questions to the jury, I probably would have concluded that Genie’s lift

was not unreasonably dangerous and thus not defectively designed, if I had been a juror at this

trial. But I cannot say that my view is the only reasonable one. After five days of trial, ten members

of this jury found that Genie’s lift was defectively designed. Because there is some evidence in the

record to support that verdict, this Court must affirm, even if each of us would have reached a

different verdict. Thanking all twelve jurors for their service in this case, I respectfully dissent.

                                                  22
                                      _______________________
                                      Jeffrey S. Boyd
                                      Justice


Opinion delivered: May 8, 2015




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