      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-00-00118-CV



                       Keeshon Roland and Teanna Roland, Appellants

                                                  v.

        DaimlerChrysler Corporation, and/or DaimlerChrysler Motors Corporation;
                        and Heart of Texas Dodge, Inc., Appellees




    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
       NO. 99-13941-A, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING




               Appellants, Keeshon and Teanna Roland, sued appellees, DaimlerChrysler

Corporation, DaimlerChrysler Motors Corporation, and Heart of Texas Dodge, Inc. (collectively

referred to as “DaimlerChrysler”) for personal injuries sustained by Keeshon while riding in the open

bed of a pickup truck. The suit was based on theories of negligence and strict liability, alleging that

DaimlerChrysler failed to warn of the danger posed by riding in the open bed of a pickup truck that

was manufactured and sold by DaimlerChrysler. Concluding that the danger was open and obvious,

the trial court granted summary judgment for DaimlerChrysler. On appeal, the Rolands claim the trial

court erred in holding as a matter of law that DaimlerChrysler had no duty to warn. We will affirm

the trial court’s grant of summary judgment.
                                               FACTS

               The facts of this case are not in dispute. Keeshon Roland, who is not a minor, was

riding in the open bed of a pickup truck traveling east on FM 20 in Caldwell County. The truck was

driven by a third party who was intoxicated. The driver swerved, claiming he did so to avoid an

animal (that was not seen by the other passengers in the truck), and struck a guard rail. Keeshon was

ejected from the truck bed and was seriously injured. The truck was designed, manufactured, and

sold by DaimlerChrysler.


                                           DISCUSSION

               The Rolands’ only point of error asserts that the trial court erred in ruling that riding

in the unprotected bed of a pickup truck is, as a matter of law, an open and obvious danger and in

consequently granting summary judgment for DaimlerChrysler. The standards for reviewing a

summary judgment are well established: (1) the movant for summary judgment has the burden of

showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of

law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment,

evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must

be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v. Mr. Prop.

Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Because the propriety of the summary judgment

is a question of law, this Court reviews the judgment de novo. Grocers Supply Co. v. Sharp, 978

S.W.2d 638, 642 (Tex. App.—Austin 1998, pet. denied).

               In Texas, a manufacturer has no duty to warn of open and obvious dangers.

Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex. 1995). Whether a hazard is an open and

                                                   2
obvious danger is a question of law, not of fact. Id. at 383. Although we have found no case in

Texas directly on point, the facts in this case are similar to the facts in Caterpillar.1 In Caterpillar,

the supreme court held that riding in a front-end loader which was open to the air was an open and

obvious danger as a matter of law, and that the manufacturer had no duty to warn of such a danger.

Id. at 382-83. The front-end loader was a construction vehicle operated with no sides or top, much

like the bed of a pickup truck. Id. at 381. The driver of the loader was struck from behind by another

loader and injured because of the lack of a cage to protect him. Similarly, the bed of a pickup truck

provides little protection to any of its occupants.

                The Rolands’ evidence that the condition is not an open and obvious danger fails to

convince us that the trial court erred. Keeshon’s self-serving affidavit, stating that if he had been

warned he would not have ridden in the bed, combined with the testimony of the Rolands’ safety

engineer, does not raise a question of material fact. The safety engineer relied on several exhibits

from various associations and government agencies that detail attempts to raise public awareness of

the danger posed by riding in the back of pickup trucks. One of these asserts that Texans continue

to ride in the back of trucks because it is a “Texas way of life.” This, however, does not tend to show

that Texans are ignorant of the risks involved. This evidence neither supports nor undermines their

conclusion. People often do dangerous things for reasons we may not understand, while fully

appreciating the risks involved. Its open nature and the lack of restraining devices in the bed of a




  1
    For cases outside this jurisdiction holding that riding in the bed of a pickup truck is an open and
obvious danger as a matter of law, see Maneely v. General Motors Corp., 108 F.3d 1175 (9th Cir.
1997), and Josue v. Isuzu Motors America, Inc., 958 P.2d 535 (Haw. 1998).


                                                      3
pickup truck make it immediately apparent to the ordinary and reasonable observer that the potential

for ejection exists for anyone riding there. We firmly believe that people have a sufficient intuitive

grasp of the basic laws of physics to ensure that if one is in an open and unprotected area of a truck,

the consequences of a sudden start, stop, or turn are understood and appreciated as a matter of

common knowledge.2

               The Rolands attempt to turn a legal question into a factual one by relying on dicta

from Caterpillar. Id. at 383. While supreme court dicta may be persuasive, it is not necessarily

binding. See Rodriguez v. Jim Walter Homes, Inc., 638 S.W.2d 108, 110 (Tex. App.—Corpus

Christi 1982, no writ). The court in Caterpillar noted that it “did not [in Joseph E. Seagram & Sons,

Inc. v. McGuire, 814 S.W.2d 385 (Tex. 1991)], foreclose the possibility that in some situations there

could be a fact question about whether consumers have common knowledge of risks associated with

a product.” Caterpillar, 911 S.W.2d at 383. The Seagram case was also based on product liability

(in that case, alcohol) and accusations that a manufacturer failed to warn of dangers associated with

its product. Seagram & Sons, 814 S.W.2d at 385. The court in Seagram, however, was referring

to situations where the particular type of harm resulting from a danger was not within the common

knowledge of members of the public, such as the likelihood of developing specific diseases from




   2
     The evidence submitted by the Rolands states that most fatalities resulting from ejection from
the beds of pickup trucks are to minors. In fact, the majority of the Rolands’ evidence speaks of
danger to minors. Because Mr. Roland was not a minor at the time of the accident, this evidence is
not applicable. Characteristic of the Rolands’ evidence are exhibits from the North Brunswick
Township police department and the Michigan PTA. While it is understandable that these
organizations are concerned about the safety of the children in their communities, the exhibits
themselves do not bear directly on the question at issue.

                                                  4
drinking alcohol as opposed to the likelihood of becoming an alcoholic. Seagram, therefore, does

not support the Rolands’ position.

               The Rolands ask this Court to overturn the trial court’s determination that riding in

the bed of a pickup truck is an open and obvious danger as a matter of law. We conclude that

DaimlerChrysler has established that there is no genuine issue of material fact and that it is entitled

to judgment as a matter of law.


                                          CONCLUSION

               We overrule the Rolands’ point of error and affirm the trial court’s grant of summary

judgment.




                                               J. Woodfin Jones, Justice

Before Justices Jones, Kidd and Yeakel

Affirmed

Filed: December 7, 2000

Do Not Publish Released for publication December 21, 2000. Tex. R. App. P. 47.3(c).




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