Opinion

Opinion issued December 22, 2011.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-10-00163-CV

———————————

Michel Hamid

and Francis Hamid, Individually and on Behalf of the Estate of Megan Hamid,

Deceased ,

Appellants

V.

Lexus, a Division of Toyota Motor Sales, U.S.A., Inc.

and Toyota Motor Corporation ,

Appellees

On Appeal from the 56th District Court

Galveston County, Texas

Trial

Court Case No. 07CV0094

OPINION

In this products liability case,

Michel and Francis Hamid, individually and on behalf of the Estate of Megan

Hamid, appeal a take-nothing judgment in favor of Lexus, a Division of Toyota

Motor Sales, U.S.A., Inc. and Toyota Motor Corporation. The Hamids contend

that the trial court committed reversible error by including a “no liability”

rebuttable presumption instruction in the jury charge. [1]

We affirm.

Background

Megan

Hamid died when she lost control of the 2002 Lexus ES300 she was driving. The accident occurred after 9:00 p.m. on an

unlit section of Interstate 45 South. A

dark blue vehicle had been abandoned on the left shoulder of the interstate,

extending partially into Megan’s lane of travel. When Megan steered violently to avoid the

vehicle but failed to apply her brakes, she lost control. Her vehicle hit the barrier dividing the

interstate, rolled numerous times, and came to rest in the northbound lanes of

travel. Megan was severely injured and

died the next day.

Megan’s

parents sued Lexus and Toyota on the basis that the ES300 was defectively

designed because it was manufactured and sold without a Vehicle Stability

Control device (VSC). According to their

petition, a VSC (also known as “electronic stability control” or “ESC” device)

is a safety technology that helps drivers maintain or regain control of their

vehicle during emergency steering maneuvers.

The Hamids claimed that the absence of the device

rendered the ES300 defective and was a producing cause of Megan’s death.

Lexus and Toyota (collectively

Toyota) denied the allegations and asserted that, because the ES300 complied

with the various mandatory government safety standards applicable to the

vehicle at the time, they were entitled to a jury instruction on the statutory

“presumption of safety” under section 82.008 of the Civil Practice and Remedies

Code. See Tex. Civ. Prac . & Rem Code Ann. § 82.008 (West 2011).

At trial, the Hamids

introduced expert testimony that Toyota’s decision not to include a VSC as

standard equipment on the ES300 was a design defect that rendered the vehicle

unreasonably dangerous. Their experts

also testified that, had the ES300 been equipped with a VSC, Megan would have

survived the accident. The VSC device

compares the driver input or command with the vehicle’s response. It “is designed to help the [car] do what the

driver is telling the car to do.”

Through sensors, the device detects the driver input and the vehicle’s

reaction. Based on that information, it

then decides whether to take countermeasures to stabilize the vehicle and does

so if the vehicle does not respond appropriately to the driver input. For instance, the device may engage brake

pressure predominately to one wheel in order to arrest or stop a spinout. The VSC also “reduce[s] the engine power to

help the vehicle come back more in line with where the driver has commanded it

to go” and can control throttle output.

The Hamids ’ experts testified that the device

constituted a “very substantial improvement to vehicle handling when you are in

an obstacle avoidance maneuver” and was “highly effective” in emergency

avoidance situations and in controlling slips and slides during maneuvering. [2]

Toyota’s expert witnesses agreed that

a VSC is a safety feature that helps prevent the type of sliding involved in

this accident, i.e. rear wheel sliding.

They testified that, at the time in question, only two percent of the

vehicles in the United States were equipped with a VSC, which was an “emerging

technology.” They concluded that it was

unnecessary and the ES300 was a reasonably safe vehicle without it. They also testified that, even if Megan’s

vehicle had been equipped with a VSC, it would not have prevented this accident

“given the specifics of this crash scenario . . . because there simply wasn’t

enough time for it.”

During the charge conference, the Hamids objected to the following jury question:

QUESTION NO. 1:

Was there

a design defect in the 2002 Lexus ES300 at the time it left the possession of

Toyota or Lexus?

A “design

defect” is a condition of the 2002 Lexus ES300 that renders it unreasonably

dangerous as designed, taking into consideration the utility of the 2002 Lexus

ES300 and the risk involved in its use.

For a design defect to exist there must have been a safer alternative

design.

“Safer

alternative design” means a product design other than the one actually used

that in reasonable probability —

(1)

would have prevented or significantly reduced

the risk of the occurrence in question without substantially impairing the

product’s utility; and

(2)

was economically and

technologically feasible at the time the 2002 Lexus ES300 left the control of

Toyota by the application of existing or reasonably achievable scientific

knowledge.

You are entitled to presume that Toyota is not liable

for any injury to the Plaintiffs if the evidence establishes that the 2002

Lexus ES300 complied with mandatory safety standards or regulations adopted and

promulgated by the federal government, or an agency of the federal government,

that were applicable to the 2002 Lexus ES300 at the time of its manufacture and

that governed the product risk that allegedly caused harm.

Plaintiffs may rebut the presumption by establishing

that the mandatory federal safety standards or regulations applicable to the

product were inadequate to protect the public from unreasonable risk of injury

or damage.

Answer “Yes” or “No.”

This

instruction was based on section 82.008(a) of the Civil Practice and Remedies

Code, which provides a statutory presumption of no liability in certain

circumstances:

(a)

In a products liability action brought against

a product manufacturer or seller, there is a rebuttable presumption that the

product manufacturer or seller is not liable for any injury to a claimant

caused by some aspect of the formulation, labeling, or design of a product if

the product manufacturer or seller establishes that the product’s formula,

labeling, or design complied with mandatory safety standards or regulations

adopted and promulgated by the federal government, or an agency of the federal

government, that were applicable to the product at the time of manufacture and

that governed the product risk that allegedly caused harm.

Tex. Civ. Prac .

& Rem. Code Ann. § 82.008( a).

The Hamids

objected to this question on the basis that the defendants were not entitled to

the section 82.008(a) presumption because there were no Federal Motor Vehicle

Safety Standards (FMVSSs) that applied to a VSC. They submitted their own question that did

not include the presumption instruction. The trial court overruled the objection and

denied the Hamids ’ proposed question.

The jury answered “no” to Question

No. 1, and the trial court entered a take-nothing judgment against the Hamids . The Hamids appealed.

Standards for Reviewing Charge Error

The trial court “shall submit the

questions, instructions and definitions in the form provided by Rule 277, which

are raised by the written pleadings and the evidence.” Tex.

R. Civ. P. 278. Whether the

charge submits the controlling issue in the case, in terms of theories of

recovery or defense, is a question of law which is reviewed de novo. Braudrick v. Walmart

Stores, Inc. , 250 S.W.3d 471, 475 (Tex. App.—El Paso 2008, no pet.).

The decision of whether to submit a

particular instruction is reviewed for an abuse of discretion. Shupe v. Lingafelter ,

192 S.W.3d 577, 579 (Tex. 2006). A

trial court abuses its discretion if it acts in an arbitrary or unreasonable

manner without reference to any guiding rules or principles. Walker v. Gutierrez , 111 S.W.3d 56, 62 (Tex. 2003). The essential inquiry is whether the

instruction or definition aids the jury in answering the questions. Lee v. Lee , 47 S.W.3d 767, 789 (Tex. App.—Houston [14th Dist.] 2001,

pet. denied); see also Sterling Trust Co. v. Adderley , 168 S.W.3d 835 , 842 - 43 (Tex. 2005). A court is given wide latitude to determine

the sufficiency of explanatory instructions and definitions. Plainsman Trading Co. v. Crews , 898 S.W.2d 786, 791 (Tex. 1995).

An instruction is proper if it

assists the jury, is supported by the pleadings or evidence, and accurately

states the law. Union Pac. R.R. Co. v. Williams , 85

S.W.3d 162, 166 (Tex. 2002). A

jury instruction is improper if it comments on the weight of the evidence or

“nudge[s]” or “tilt[s]” the jury. Wal-Mart Stores, Inc. v. Johnson , 106

S.W.3d 718, 724 (Tex. 2003); see Torres

v. Caterpillar, Inc. , 928 S.W.2d 233, 241 (Tex. App.—San Antonio 1996, writ

denied). It can be error for a trial

court to give the jury an instruction even when it is a substantially correct

statement of the law. Liberty Mut . Ins. Co. v. Camacho , 228 S.W.3d 453,

460 (Tex. App.—Beaumont 2007, pet. denied).

Preservation of Charge

Error

To preserve charge

error for review, a party must “point out distinctly the objectionable matter

and the grounds of the objection.” Tex. R.

Civ. P. 274. “Any complaint as to

a question, definition, or instruction, on account of any defect, omission, or

fault in pleading, is waived unless specifically included in the objections.” Id. An objection does not satisfy rule 274 unless

“the defect relied upon by the objecting party and the grounds of the objection

are stated specifically enough to support the conclusion that [the] trial court

was fully cognizant of the ground of complaint and deliberately chose to

overrule it.” Carousel’s Creamery, L.L.C. v. Marble Slab Creamery, Inc. , 134 S.W.3d 385, 404 (Tex.

App.—Houston [1st Dist.] 2004, pet. dism’d ). A party must “clearly designate the alleged

error and specifically explain the basis of its complaint in its objection to

the charge.” Id. at 404–05; see

also C.M. Asfahl Agency v. Tensor, Inc. , 135 S.W.3d 768, 793 (Tex.

App.—Houston [1st Dist.] 2004, no pet.) (“To be sufficiently specific, the

party’s objection must identify the claimed error and explain the basis of the

party’s complaint.”). If a party fails to lodge an objection to the jury charge that

timely and plainly makes the trial court aware of the complaint, error is not

preserved and the complaint is waived. Ford Motor Co. v. Ledesma , 242 S.W.3d 32,

43 (Tex. 2007); State Dep’t of Highway

& Pub. Transp.

v. Payne , 838 S.W.2d 241 (Tex. 1992) (op. on reh’g ).

On appeal, the charge error complained of must comport with the o bjections made at the charge

conference. Cont’l

Cas . Co.

v. Baker , No. 01-09-00881-CV, 2011 WL 3918155,

at *7 (Tex. App.—Houston [1st Dist.] Aug. 25,

2011, no. pet. h.); Wackenhut Corrections Corp. v. De La Rosa , 305 S.W.3d 594, 616 (Tex. App.—Corpus

Christi 2009, no pet.).

The Hamids ’ objection to the rebuttable

presumption instruction was composed of these three sentences, only one of

which was substantive:

Mr.

Griffith: We object to Question no. [1] . We don’t think they’re entitled to the

presumption in this case because there is no Federal Motor Vehicle safety

standard that applies to the VSC. So

they don’t get the presumption.

In reliance on this single objection, the Hamids

make three arguments for reversal of the trial court’s judgment: (1) the statutory presumption does not apply

when no federal safety standard or regulation exists that “relates to the

defect that has been alleged by a plaintiff,” i.e., the lack of a VSC; (2) Toyota was not entitled to the

instruction because the mandatory federal safety standards and regulations

relied upon by Toyota “do not govern the product risk that caused [Megan’s]

fatal injuries: loss of vehicle control

due to rear-wheel spinout caused, in turn, by the lack of [ESV/VSC]”; and (3)

legislative history and “existing legal precedent” reveal that the rebuttable

presumption was never intended to be submitted as a jury instruction and that

it should disappear if contrary evidence is introduced. At best, the Hamids ’

charge objection preserved only the first of these three arguments. The other two arguments are not encompassed

by the objection made to the trial court and therefore were not preserved.

Regarding their second challenge to the jury charge, we hold

that the Hamids ’ objection did not plainly advise the

trial court that they were objecting because the federal safety standards and

regulations that were admitted during trial did not govern the risk in

question, nor was this argument apparent from the context of their

objection. Under the charge, Toyota was

entitled to a presumption if it complied with standards “that governed the

product risk that allegedly caused harm.”

During the charge conference, the Hamids did

not identify the risk in question, discuss the

evidence regarding the mandatory federal standards that were admitted, or

identify the risks addressed by those standards. [3] Indeed, they did not even mention the word

“risk.” The Hamids ’

objection was not focused on the admitted standards. Rather their argument was focused on the VSC

itself. Thus, the Hamids ’

first argument—which was preserved—addresses the lack of a particular safety

device and resulting defect, whereas their second argument—which was not

preserved—addresses the lack of relevance of the standards that were admitted

because they do not address the risks in question. By separating these two arguments in their

brief, the Hamids implicitly acknowledge that they

are not the same.

During the trial, it was undisputed

that the ES300 complied with all applicable federal standards. In particular, Toyota demonstrated that the

ES300 complied with the two applicable FMVSSs, namely FMVSSs 105 and 135, that govern

safe braking performance and stopping distances. [4] See

49 C.F.R. §§ 571.105 ; 571.135. The Hamids did not object to the relevance of this evidence or contend

that Toyota had not satisfied its burden to demonstrate that these standards

governed the product risk in question. Although

the Hamids presented expert testimony that there were

no mandatory federal standards that related to or required a vehicle to include

a VSC, their design expert, Mark Arndt, did not specifically address why the

federal standards relied upon by Toyota did not apply to the Hamids ’ design theory.

Thus, neither at trial nor during the charge conference did the Hamids notify the trial court that Toyota had not satisfied

its burden of demonstrating that the federal regulations governed the risk in

question. Similarly, the Hamids ’ argument on appeal that these two standards

constitute performance, not design standards, and that the rebuttable

presumption only applies to design standards, was also not made during the

charge conference. Because the trial

court did not have an opportunity to address these objections, they were not

preserved. Cf. Payne , 838 S.W.2d at 241; see

Faust v. BNSF Ry. Co. , 337

S.W.3d 325 , 330–31 (Tex. App.—Fort Worth 2011, pet. filed).

Regarding their third challenge, and unlike their briefing on

appeal, there was no discussion during the charge conference of allocating

burdens of proof or production versus burdens of persuasion. Neither was there any contention about

legislative history or case law on the use of presumption instructions

generally. Instead, the Hamids ’ objection was directed at the use of the

presumption instruction in this case based on the evidence. Therefore, this third challenge is also

waived.

Accordingly, we turn to the only challenge that was preserved

and consider whether the trial court erred in submitting the rebuttable presumption instruction

because there was no federal safety standard or regulation that “relates to the

defect that [was] alleged by [the Hamids ].”

Rebuttable Presumption

Instruction

Under

section 82.008(a) of the Texas Civil Practice & Remedies Code, a defendant

manufacturer or seller in a product liability action is entitled to a statutory

presumption of no liability only if the defendant establishes that the

product’s design complied with federal safety standards and regulations that

“governed the product risk that allegedly caused the harm.” Tex.

Civ. Prac . & Rem. Code Ann. § 82.008( a).

The Hamids

argue that Toyota was not entitled to a rebuttable presumption instruction

because the legislative intent of section 82.008 demonstrates that the

presumption only applies when there is a standard that “relate[s] specifically

to the defect that has been alleged by a plaintiff.” Specifically, the Hamids

contend that the determination of whether to submit the rebuttable presumption

instruction is dependent upon whether the plaintiff’s petition alleged a

product defect covered by a federal

safety standard or regulation. Citing to

a statement included in the House and Senate reports, the Hamids

contend that the presumption does not apply when a manufacturer complies “with

all federal standards that exist for a product but no standard exists that

related specially to the defect that has been alleged

by a plaintiff.”

Based on the plain and unambiguous

language of the statute, we reject this contention and hold that the

presumption’s applicability is based on the relevant product risk, not the

particular alternative design alleged by the plaintiff. See Wright

v. Ford Motor Co. , 508 F.3d 263 (5th Cir.

2007). In Wright , a three-year-old boy was killed when a Ford Expedition

backed over him. The boy’s parents sued,

alleging that the vehicle had a dangerous blind spot, that it was not equipped

with any of the “viable and economically feasible safety devices, including

back-up alarms,” and that Ford’s failure to include such reverse-sensing

systems as mandatory standard equipment was a design defect. Id. at 268 .

Ford defended on the ground that it

had complied with FMVSS 111, which concerned rearview mirror performance

placement “in order to protect the public from backing into deaths and injuries

due to limited rearview vision,” and thus was entitled to the “no liability”

presumption of section 82.008. Id. at 269 . The

trial court agreed and included an instruction based on section 82.008 in the

jury charge. Id. The jury answered “no”

to the design defect question, and the Wrights appealed.

The Wrights

argued that FMVSS 111 did not govern the rear sensing system with which they

contended the Expedition should have been equipped, making the inclusion of an

82.008 jury instruction error. Id. More

specifically, they argued, based on statements in the legislative history, that

the question is “whether the particular defect

claimed was governed by the federal safety standard and not the risk arising

from that defect.” Id . at 270 (emphasis in original). The court held that the statute clearly

addresses risk, not the particular safety device the plaintiffs alleged should

be utilized. Id . Additionally, because

the legislative history was not clear that the legislators distinguished

between defect and risk, it was particularly unnecessary to review legislative

history when the legislative history does not necessarily conflict with the

plain reading of the statute. Id . at 270 n. 5.

We agree with Wright that a plain

reading of the statute addresses risks, not a particular product device that

the plaintiff contends should be altered.

Our conclusion

is also supported by the legislature’s focus on “risk” in that section of

Chapter 82 specifically addressing the definition of a product defect, i.e.,

section 82.005. See Tex. Civ. Prac . & Rem. Code Ann. § 82.005 (West

2011). In that section, the legislature

statutorily defined the word “defect” in design defect claim to include two

elements: “a safer alternative design”

and causation. See id . § 82.005(a). [5] An alternative design is “safer” for purposes

of the statute only if it would have (1) significantly reduced the risk of the claimant’s injuries without

substantially impairing its utility and (2) been economically and

technologically feasible at the time. Id .

§ 82.005(b); see also Smith v. Aqua-Flo,

Inc. , 23 S.W.3d 473, 477 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). [6] To prove a safer alternative design under

this definition, a party necessarily must compare the risk created by the

original design with the risks created by the alternative design. Thus, both the definition of a design defect

in section 82.005 and the presumption created in design-defect cases under

section 82.008 are defined, in part, by the risks implicated in the case. [7]

The

Hamids argue that the Code Construction Act requires

us to consider legislative history. But that act is permissive, not mandatory. Tex. Gov’t Code Ann. § 311.023(3) ( “In construing a statute,

whether or not the statute is considered ambiguous on its face, a court may consider … legislative history[ .]”) (emphasis added); see also Ojo v. Farmers Group, Inc. , No. 10-0245, 2011 WL 2112778 , at *13 n. 13 (Tex. May 27,

2011) (Jefferson, C.J., concurring); id .

at *15–16, 21 & n. 78 (Willett, J., dissenting) (noting that the act’s

language “is permissive” and therefore allows courts to “consider outside aids

even absent ambiguity” but the Court’s rule that courts should not do so “has

been mandatory”). The Texas Supreme Court has repeatedly

held that when courts construe statutes, they should start

with the text because it is the best indication of the Legislature's intent. See Fresh Coat, Inc. v. K–2,

Inc. , 318 S.W.3d 893, 901 (Tex. 2010) (“Our ultimate purpose when

construing statutes is to discover the Legislature’s intent. Presuming that lawmakers intended what they

enacted, we begin with the statute’s text, relying whenever possible on the

plain meaning of the words chosen.”) ( citations and

quotations omitted); Entergy Gulf States,

Inc. v. Summers , 282 S.W.3d 433, 437 (Tex. 2009) (“Therefore, our practice when construing a statute is to recognize that the words [the

Legislature] chooses should be the surest guide to legislative intent.”). “When the words of a statute are

unambiguous, then, this first cannon is also the last:

‘judicial inquiry is complete.’” Connecticut Nat’l Bank v. Germain , 503 U.S. 249, 254 , 112 S. Ct. 1146, 1149

(1992) (quoting Ra bin v. United States , 449 U.S. 424, 430 , 101 S. Ct. 698, 701

(1981)). A court should interpret a

statute by reference to its language alone when the court can do so. Fresh Coat , 318 S.W.3d at

901 . Only

when the text is ambiguous is it appropriate for a court to examine legislative

history. Entergy Gulf States , 282 S.W.3d at 437 (“Where text is clear, text

is determinative[ .]”); City of Rockwall v. Hughes , 246 S.W.3d 621, 626 (Tex. 2008) (“When

a statute’s language is clear and unambiguous, it is inappropriate to resort to

rules of construction or extrinsic aids to construe the language.”). In this way, courts are able “to avoid sacrificing a clear

textual command to conflicting language in an extrinsic, non-authoritative

source. The

animating principle behind this standard is a reluctance to use legislative

history to interpret a clear statute. ” Ojo ,

2011 WL 2112778, at *12 (Jefferson, C.J., concurring).

Based on these principles, courts have

refused to “give overriding weight to statements” made by legislators during

floor debates on the issue before the court.

Molinet v. Kimbrell ,

No. 09-0544, 2011 WL 182230, at * 6 ( Tex. Jan. 21, 2011). “Statements made during the legislative process

by individual legislators . . . are not evidence of the collective intent of

the majorities of both legislative chambers that enacted a statute.” Id. ;

see also Combs v. Texas Entm’t Ass’n , Inc. , 347

S.W.3d 277, 288 (Tex. 2011) (holding that tax was constitutional r egardless “of what legislators said or did not say” during legislative

process and quoting United States v. O’Brien , 391 U.S. 367 ,

383–84, 88 S. Ct. 1673 (1968) for proposition that “What motivates one

legislator to make a speech about a statute is not necessarily what motivates

scores of others to enact it, and the stakes are sufficiently high for us to

eschew guesswork”).

Under the

plain language of section 82.008(a), we hold that the threshold determination of

whether the presumption applies turns on the relevant product risk, not the

particular defect alleged by the plaintiff.

We overrule the Hamids ’ first challenge to the

trial court’s jury instruction on the rebuttable presumption.

Conclusion

Based on the plain language of the

section 82.008(a), we reject the Hamids ’ assertion

that the statutory presumption of no liability does not apply when there is not

a federal safety standard or regulation that relates to the specific product

defect alleged by the plaintiff. Because

the Hamids ’ other

challenges to the trial court’s submission of a rebuttable presumption

instruction under section 82.008 were not preserved by their charge objection,

they are waived. We therefore conclude

that the Hamids have not established reversible

charge error, and we affirm the trial court’s judgment .

Harvey Brown

Justice

Panel consists of Justices

Radack, Sharp, and Brown.

Justice

Sharp, dissenting. Dissent to follow.

[1]

See Tex. Civ. Prac . & Rem. Code Ann . § 82.008(a) (West 2011).

[2]

According to the testimony, w hen a vehicle turns, there is always some

slipping; the question is the amount of slipping.

[3] The Hamids contend

on appeal that the “threshold question” is whether the two FMVSSs governed the

risk in question. But, this argument was

not made during the charge conference.

The parties disagree regarding the nature of the risk. The Hamids claim

that the risk is “the failure to maintain vehicle control during emergency

maneuvers due to rear-wheel spin out, which, in turn, was caused by the lack of

an ESC/VSC system.” Thus, they narrowly

define the risk and, based on that risk, suggest that the vehicle is defective

absent a VSC. Alternatively, they argue

that the risk is defined as “the danger of loss of and/or failure to maintain

control due to rear wheel spin outs (i.e. without reference to ESV/VSCDF

standards).” The Hamids

argue that the product risk is defined according to the plaintiff’s

allegations, and that they have never contended that the loss of control was

due to a braking system failure.

Toyota, on the other hand, argues for a broad definition of the risk,

defining it as “loss of vehicle control causing a crash” and contends that the

two FMVSSs in question address that risk.

Thus, according to Toyota, it satisfied the standards that “governed the

product risk that allegedly caused [the] harm.” They further argue that the

product risk is not the absence of a particular safety device but the reasons

for that safety control device.

The trial court never had an opportunity to decide which position was

correct because neither party raised these contentions during the charge

conference or identified any expert testimony defining the risk.

[4] FMVSS 105 is the standard for hydraulic and

electric brake systems. Its purpose is

“to insure safe braking performance under normal and emergency conditions.” 49 C.F.R. § 571.105 . FMVSS 135 also pertains to brakes. It sets the standards for service brake and

associated parking brake systems. Its

stated purpose also is “to ensure safe braking performance under normal and

emergency conditions.” 49 C.F.R. § 571.135 .

Both these standards, then, specifically address the standards for

brakes on vehicles in order to ensure safe braking performance under all

circumstances. According to Jerry

Walker, Toyota’s expert on the vehicle’s design, one purpose of these standards

is to avoid spin-outs during braking.

[5] These two elements must be proven, but are

not sufficient by themselves to establish a defective design claim. Honda

of Am. Mfg., Inc. v. Norman ,

104 S.W.3d 600, 604 (Tex. App.—Houston [1st Dist.] 2003, pet. denied); Allen

v. W.A. Virnau & Sons, Inc. , 28 S.W.3d 226, 232 (Tex. App.—Beaumont

2000, pet. denied).

[6] Texas

courts also require proof that the product was

unreasonably dangerous to the user, which is determined by weighing its risk

and utility. Honda of Am. , 104 S.W.3d

at 604 ( citing Hernandez

v. Tokai Corp. , 2 S.W.3d

251, 257 (Tex. 1999)). “ In addition, a plaintiff complaining of a design defect is

required to show that ‘the safety benefits from its proposed design are foreseeably

greater than the resulting costs, including any diminished usefulness or

diminished safety’—that is, that the alternative design not only would have

reduced the risk of harm in the instant case, but also would not, ‘under other

circumstances, impose an equal or greater risk of harm.’” Id. (quoting Uniroyal

Goodrich Tire Co. v. Martinez , 977 S.W.2d 328, 337 (Tex. 1998)).

[7] Additionally, the plaintiff can defeat

the presumption based on a showing that the federal safety standards “were

inadequate to protect the public from unreasonable risks of injury or

damage. Tex. Civ. Prac . & Rem. Code Ann. § 82.005(b )( 1). Thus, a plaintiff’s response likewise focuses on

risks.