Diaz v. Southwest Wheel, Inc.

OPINION ON MOTION FOR REHEARING

Appellant’s motion for rehearing is denied. However, a clarification of the discussion in our original opinion is in order.

We first point out to appellants that the Firestone FL-type rim involved in this case was first manufactured in June 1972; therefore, there would have been a sales period prior to that date and Southwest Wheel correctly submitted summary judgment proof regarding transactions between 1972 and 1983.

We modify our opinion and agree with appellants only to the extent that the purpose of a warning was not to lessen the risk of rim separation, but to lessen the risk of injury to the user. However, as *771noted in our opinion, there is no assertion or evidence that Johnson relied on Southwest Wheel to warn of the dangers of its products and that this reliance caused the harm. See page 773.

As Justice Kilgarlin writes in City of Denton v. Van Page, 701 S.W.2d 831, 836 (Tex.1986), in order to recover under section 324A,1 “a plaintiff must prove that the defendant’s failure to exercise reasonable care increased the risk of harm, or that the defendant undertook to perform a duty owed by another to the plaintiff, or that the plaintiff relied on the defendant’s undertaking.”

Although Van Page involved § 324A whereas this case concerns § 323, both rules require a showing of increased risk of harm or reliance on a defendant’s actions. Appellants were required to show that they relied on Southwest Wheel’s warning and that this reliance caused the harm.

There was no evidence that raised an issue of reliance. Accordingly, appellants’ motion for rehearing is OVERRULED.

. The rule is stated in the restatement (Second) of Torts § 324A (1965) as follows:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) he has undertaken to perform a duty owed by the other to the third person, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.