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Firestone Steel Products Company v. Barajas6/28/1996
On Application for Writ of Error to the Court of Appeals for the Thirteenth District of Texas
Argued on October 11, 1995
Justice Enoch, concurring and dissenting.
The Court misconstrues the Barajases' allegations. There is no dispute between the parties that Firestone did not design, manufacture, or sell the particular wheel that killed Jimmy Barajas. Nor is there any dispute that Firestone did design the 15-degree bead seat taper with low flange height. The fact that Firestone did not design, manufacture, or sell the particular wheel at issue in this case is not dispositive of all the Barajases' claims. The Barajases specifically allege that Firestone's original design for the 15-degree bead seat taper with low flange height is the design feature of the wheel that permits the mismatch between tire and wheel that occurred in this case and that caused the tire to explode. The issue, then, is not whether Firestone designed, manufactured, or sold the particular wheel in this case, but whether Firestone, solely as a designer of a component part of a product that causes injury, can be liable in strict products liability or negligence for its design.
I.
I agree with the Court that Firestone is not liable in strict products liability. Strict liability rests on the defendant placing into the stream of commerce a defective product. Armstrong Rubber Co. v. Urquidez, 570 S.W.2d 374, 376 (Tex. 1978). Firestone did not place any product into the stream of commerce. Rather, by granting a royaltyfree license, Firestone only placed its design in the stream of commerce.
I note that a non-manufacturer may, under certain circumstances, be liable in the same manner as a manufacturer or seller of a defective product. See Restatement (Second) of Torts Section(s) 400 (1965) (Selling as Own Product Chattel Made by Another). For example, a trademark licensor may be liable as an apparent manufacturer when the licensor is significantly involved in the manufacturing, marketing, or distribution of the defective product. See Torres v. Goodyear Tire & Rubber Co., 786 P.2d 939, 945 (Ariz. 1990) (trademark licensor that significantly participates in the overall process by which the product reaches consumers, and who has the right to control the incidents of manufacture or distribution is liable under section 402A of the Restatement); Burkert v. Petrol Plus, 579 A.2d 26, 35 (Conn. 1990) (trademark licensor, absent any involvement in the production, marketing, or distribution of defective product, is not liable in strict tort liability or negligence); Connelly v. Uniroyal, Inc., 389 N.E.2d 155, 163 (Ill. 1979) (trademark licensor liable in strict liability as integral part of the marketing enterprise and participation in the profits reaped by placing a defective product in the stream of commerce); Stanford v. Dairy Queen Prods., 623 S.W.2d 797, 805 (Tex. App.--Austin 1981, writ ref'd n.r.e.) (trademark licensor that only authorized use of trade name was not an "actual vendor" of the defective product under section 400 of the Restatement); see also Rockwell, Annotation, Trademark Licensor's Liability for Injury or Death Allegedly Due to Defect in Licensed Product, 90 A.L.R. 4th 981 (1990); Keeton et al., Prosser & Keeton on the Law of Torts Section(s) 100 (5th ed. 1984) (strict liability may extend to licensor who participates in the construction and sale of products made pursuant to a patent). But a mere designer of a defective product is not liable in strict liability because the apparent manufacturer doctrine does not apply when the party is not involved in the manufacture, sale, or installation of the product. Affiliated FM Ins. Co. v. Trane Co., 831 F.2d 153, 1
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