risk-utility analysis in Texas

2015Hernandez v. Tokai Corp., 2 S.W.3d 251 , 261 n.26 (Tex.1999) (internal quotation marks omitted) (though factual disputes are for a jury to resolve, "whether the product is unreasonably dangerous as designed may nevertheless be a legal [question] if reasonable minds cannot differ on the risk-utility analysis considerations”). .

2015In 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).

2018See Grinnell, 951 S.W.2d at 432 (setting out the five factors of a risk-utility analysis).

2015Timpte, 286 S.W.3d at 311 (citing Grinnell, 951 S.W.2d at 432 ). 2 By design, this risk-utility analysis is a fluid process.

2025See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009) (“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 [alleged] injury . . . .”; “To determine whether a product was defectively designed . . . , Texas courts have long applied a risk-utility analysis that requires consideration of [several factors],” including: “(1) the utility of the product to the user and to the p

2025See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009) (“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 [alleged] injury . . . .”; “To determine whether a product was defectively designed . . . , Texas courts have long applied a risk-utility analysis that requires consideration of [several factors],” including: “(1) the utility of the product to the user and to the p

2002The court then directed the Fifth Circuit to apply the general principle for assessing a product’s safety in the context of its intended use under the risk-utility analysis as in Caterpillar Co. v. Shears, 911 S.W.2d 379, 384 (Tex.1995).

2002The court then directed the Fifth Circuit to apply the general principle for assessing a product's safety in the context of its intended use under the risk-utility analysis as in Caterpillar Co. v. Shears , 911 S.W.2d 379, 384 (Tex. 1995).

1994The risk-utility standard, formulated in Turner v. General Motors Corp., 584 S.W.2d 844 , 847 n. 1 (Tex.1979), applies only to design and not manufacturing defects.

1994Restatement (Second) of Torts § 402A comment j (1965); 3 State Bar of Texas, Texas Pattern Jury Charges PJC 71.04 (1990). [12] The risk-utility standard, formulated in Turner v. General Motors Corp., 584 S.W.2d 844 , 847 n. 1 (Tex.1979), applies only to design and not manufacturing defects.

2002Robins v. Kroger Co., 982 S.W.2d 156, 164 (Tex.App.-Houston [1st Dist.]), denied, 5 S.W.3d 221 (Tex.1999).

2002Robins v. Kroger Co. , 982 S.W.2d 156, 164 (Tex. App.--Houston [1st Dist.]), denied , 5 S.W.3d 221 (Tex. 1999).

1998See Eimann, 880 F.2d at 836-37 ; Way, 856 S.W.2d at 236 .

1993In light of the recognized pervasive and important role of advertising in society, see Eimann, 880 F.2d at 838 , we conclude that the burdens and consequences of not publishing such a supplement weighs in favor of appellees. *237 Under the facts of this case, a risk-utility analysis leads us to conclude that the firearms supplement did not create a duty on the part of appellees to either refrain from publishing the supplement or add warnings about the danger of firearms and ammunition.

2021Read v. Scott Fetzer Co., 990 S.W.2d 732, 736 (Tex. 1998); Whitney Crowne Corp. v. George Distributors, Inc., 950 S.W.2d 82 , 88–89 (Tex. App.— Amarillo 1997, writ denied) (outlining risk-utility test and finding no duty).

2019See Read v. Scott Fetzer Co., 990 S.W.2d 732, 736 (Tex. 1998) (identifying the factors of the test); see also id. at 289-90 (same).

2015This 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.2005).

2015This 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).

2015Corp., 271 Ga. 644 , 522 S.E.2d 467, 470 (1999) (emphasis in original).

2015Corp., 271 Ga. 644 , 522 S.E.2d 467, 470 (1999) (emphasis in original).

2010See Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 405 (Tex.2009).

2010See Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 405 (Tex. 2009).

2002Robins v. Kroger Co. , 982 S.W.2d 156, 164 (Tex. App.--Houston [1st Dist.]), denied , 5 S.W.3d 221 (Tex. 1999).

2002Kroger Co. v. Robins , 5 S.W.3d 221, 221 (Tex. 1999).

1998See id.

1998See Eimann, 880 F.2d at 836-37 ; Way, 856 S.W.2d at 236 .

1999See Todd v. Societe Bic, S.A., 21 F.3d 1402 (7th Cir.1994) (en banc) (Illinois law) (deciding that the consumer-expectation test was better suited than the risk-utility test for determining whether the lack of a child-resistant mechanism on a disposable lighter constituted a design defect); see also Talkington v. Atria Reclamelucifers Fabrieken BV, 152 F.3d 254 (4th Cir.1998) (South Carolina law); Floyd v. BIC Corp., 790 F.Supp. 276 (N.D.Ga.1992) (holding that the danger was open and obvious, although the Georgia Supreme Court has since adopted a risk-utility test for liability and rejected th

1999See Talkington v. Atria Reclamelucifers Fabrieken BV, 152 F.3d 254 (4th Cir.1998) (South Carolina law); Todd v. Societe Bic, S.A., 21 F.3d 1402 (7lh Cir.1994) (en banc) (Illinois law); Floyd v. BIC Corp., 790 F.Supp. 276 (N.D.Ga.1992) (holding that the danger was open and obvious, although the Georgia Supreme Court has since adopted a risk-utility test for liability and rejected the obviousness of a risk as a complete defense); Curtis v. Universal Match Corp., 778 F.Supp. 1421 (E.D.Tenn.1991), aff'd mem., 966 F.2d 1451 (6th Cir.1992); Sedlock v. Bic Corp., 741 F.Supp. 175 (W.D.Mo.1990); Welch

2026Morgan Chase Bank, 302 S.W.3d at 535 (intermediate appellate courts should be reluctant “to recognize new common-law duty that has no existence in established law”); • the turnover statute already affords a degree of protection by requiring a judgment creditor to prove that the judgment debtor owns the property subject to turnover, HSM Dev., Inc. v. Barclay Props., Ltd., 392 S.W.3d 749, 751 (Tex. App.—Dallas 2012, no pet.) (citing Tex. Civ.

2026Morgan Chase Bank, 302 S.W.3d at 535 (intermediate appellate courts should be reluctant “to recognize new common-law duty that has no existence in established law”); • the turnover statute already affords a degree of protection by requiring a judgment creditor to prove that the judgment debtor owns the property subject to turnover, HSM Dev., Inc. v. Barclay Props., Ltd., 392 S.W.3d 749, 751 (Tex. App.—Dallas 2012, no pet.) (citing Tex. Civ.

2023But here, neither the appellant nor the appellees have supplied any citations to the record or legal authority on the issue of sanctions.”) (emphasis added) (citation omitted); Wohlfarhrt v. Holloway, 172 S.W.3d 630, 639 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (“To have preserved error, a 47 party’s argument on appeal must comport with its argument in the trial court.”).13 After a thorough examination of a lengthy record, we are satisfied that there was no evidence before the trial court concerning the purported magnitude of any burden relevant to our duty analysis under the risk-ut

2023Otis Eng’g Corp., 668 S.W.2d at 311 (“[W]hen, because of an employee’s incapacity, an employer exercises control over the employee, the employer has a duty to take such action as a reasonably prudent employer under the same or similar circumstances would take to prevent the employee from causing an unreasonable risk of harm to others.

2015In 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)).

2013See 293 S.W.3d at 779 .

2013Id.

2013See id. at 424 . *879 In support of its argument that C & B owes no common-law duty to Sharyland, C & B cites Harpole for the proposition that courts apply the risk-utility test in deciding whether a common-law duty exists.

2011In determining whether to create a duty, we “must consider the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury and the consequences of placing that burden on the actor.” Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994) Michael and Douglas address only the foreseeability element of the risk-utility test.

2007See Smith-Kline Beecham Comp. v. Doe , 903 S.W.2d 347, 353 (Tex. 1995).

1999See Price v. BIC Corp., 142 N.H. 386 , 702 A.2d 330 (1997); Perkins v. Wilkinson Sword, Inc., 83 Ohio St.3d 507 , 700 N.E.2d 1247 (1998); Ray, Holman v. BIC Corp., 925 S.W.2d 527 (Tenn.1996); Campbell v. BIC Corp., 154 Misc.2d 976 , 586 N.Y.S.2d 871 (1992); see also Bean v. BIC Corp., 597 So.2d 1350 (Ala.1992) (considering, apparently, a claim of negligence); Boumelhem v. Bic Corp., 211 Mich.App. 175 , 535 N.W.2d 574 (1995) (following a prior court of appeals case which rejected a disposable lighter claim as a matter of law, but disagreeing that that approach was proper under Michigan's risk-u

1999See Todd v. Societe Bic, S.A., 21 F.3d 1402 (7th Cir.1994) (en banc) (Illinois law) (deciding that the consumer-expectation test was better suited than the risk-utility test for determining whether the lack of a child-resistant mechanism on a disposable lighter constituted a design defect); see also Talkington v. Atria Reclamelucifers Fabrieken BV, 152 F.3d 254 (4th Cir.1998) (South Carolina law); Floyd v. BIC Corp., 790 F.Supp. 276 (N.D.Ga.1992) (holding that the danger was open and obvious, although the Georgia Supreme Court has since adopted a risk-utility test for liability and rejected th

1999See Talkington v. Atria Reclamelucifers Fabrieken BV, 152 F.3d 254 (4th Cir.1998) (South Carolina law); Todd v. Societe Bic, S.A., 21 F.3d 1402 (7lh Cir.1994) (en banc) (Illinois law); Floyd v. BIC Corp., 790 F.Supp. 276 (N.D.Ga.1992) (holding that the danger was open and obvious, although the Georgia Supreme Court has since adopted a risk-utility test for liability and rejected the obviousness of a risk as a complete defense); Curtis v. Universal Match Corp., 778 F.Supp. 1421 (E.D.Tenn.1991), aff'd mem., 966 F.2d 1451 (6th Cir.1992); Sedlock v. Bic Corp., 741 F.Supp. 175 (W.D.Mo.1990); Welch