# Sauder Custom Fab, Inc. v. Boyd

> Court of Appeals of Texas · October 31, 1996 · 971 S.W.2d 82

URL: https://www.frixlaw.com/law-library/cases/5095250

## Case

- **Full name:** SAUDER CUSTOM FAB, INC. v. Carl R. BOYD, Rhonda Boyd, and Johnson Filtration Systems, Inc.
- **Court:** Court of Appeals of Texas
- **Decided:** October 31, 1996
- **Citations:** 971 S.W.2d 82; 1996 Tex. App. LEXIS 4836; 1996 WL 628599
- **Precedential status:** Published
- **Opinion:** Concurrence by Walker
- **Judges:** Burgess, Walker
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5095250

## Opinion text

WALKER, Chief Justice,
concurring.
Originally, this case was assigned to me for writing the majority opinion. I did indeed draft that opinion reversing the trial court’s judgment based on the jury’s verdict, rendering judgment that appellees take nothing from appellant Sauder. My fellow Justices, Burgess and Stover, disagreed with my position, proffering the present majority opinion. It became my obvious intent to file a dissent to the present majority. A closer and more in-depth review of Caterpillar, Inc. v. Shears, 911 S.W.2d 379 (Tex.1995) leads me to concur rather than dissent. In my original draft, I gave some weight to the fact the Boyd work crew were seasoned boilermakers with combined experience of over 100 years. Caterpillar does not focus upon the experience of the user or the intended user but rather upon the perspective of “an average person.” Under Caterpillar, I must agree with the majority that the inquiry is not whether the average person would know placing warnings on the shipping rings or the screen makes them safer. The proper inquiry is whether an average person would recognize using the shipping rings for support presents a degree of risk of serious harm. The majority concludes we cannot say it is beyond dispute that the average person, looking at the shipping rings and the screen, would understand that the weight of several wooden boards and three men would cause the shipping ring to fall.
In my original draft, which now rests in that vast cemetery of well-intended drafts, I provided the following footnote:
Although the experience of the men involved was considerable, it apparently cannot be considered in an evidentiary review in deciding whether a risk of injury was *90 common knowledge as Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 383 (Tex.1995), states a proper inquiry focuses on the perspective of ‘an average person.’ Query: Should there not be two ‘objective’ standards in determining whether an alleged risk is open and obvious; one for products generally available to the average adult consumer, and one for highly technical or complex products designed and marketed only to consumers possessing a degree of specialized training or expertise in making use of said product? (In the instant case, for example, it is not disputed Sauder designed and marketed regeneration towers, and their component parts, only to ‘consumers’ with the experience and expertise to properly install and make use of such products.)
I now believe that Caterpillar compels my concurrence and agreement with the present majority.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5095250. Public record. Not legal advice.