This court correctly reverses the trial court's judgment because there was no evidence of independently actionable conduct by Bren-Tex that caused Michael Hensen's death. There was no evidence to support independent liability in this regard as to the alleged DTPA and implied-warranty claims. The majority opinion also correctly holds that there was no evidence of facts that would impose a negligence duty on Bren-Tex to warn the Hensens of dangers concerning the used tractor's lack of a ROPS or to inform the Hensens of the benefits, importance, and availability of a ROPS for this tractor.
This alleged negligence duty arguably might be based on section 388 or section 401 of the Restatement (Second) of Torts. See Restatement (Second) of Torts §§ 388, 401 (1966). Whether based on one of these sections or some other source, there was no evidence Bren-Tex owed such a negligence duty in this case because Massey presented no evidence the average user of a tractor would not recognize the dangers of using a tractor without a ROPS or the benefits and availability of a ROPS. SeeSauder Custom Fabrication, Inc. v. Boyd, 967 S.W.2d 349, 349-51 (Tex. 1998) (holding there is no duty to warn of risks obvious to the average user of the product); Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 381-83 (Tex. 1995) (holding that seller of front-end loader had no duty to warn injured worker concerning the dangers of operating the loader without a *Page 162 ROPS because the dangers were obvious under an objective standard); Winnex rel. Winn v. Pollard, 62 S.W.3d 611, 616-18 (Mo.Ct.App. 2001) (holding, under section 388 of the Restatement (Second) of Torts, defendants had no duty to warn injured tractor driver that tractor lacked a ROPS because this was an open and obvious danger); Livengood v. ABSContractors Supply, 710 N.E.2d 770, 771-73 (Ohio Ct. App. 1998) (holding supplier of compactor had no duty to warn worker or his employer of the availability and/or need for a ROPS for the compactor because this was an open and obvious danger); Restatement (Second) of Torts § 388 (requiring supplier of chattel to have "no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition" before supplier has a duty to warn); Restatement (Second) of Torts § 401 cmt. k (stating that seller has no duty to warn of dangers in chattel sold where seller reasonably believes the buyer and other users of the chattel will realize the danger in question).
The subjective knowledge of the personal-injury plaintiff is not determinative; rather, the issue is whether, under an objective standard, the risk in question is obvious to the average user of that product. See Caterpillar, Inc., 911 S.W.2d at 381-83; see also SauderCustom Fabrication, Inc., 967 S.W.2d at 349-51. The Texas Supreme Court has held that the risks associated with the lack of a ROPS on a front-end loader were objectively open and obvious so that there was no duty to warn. See Caterpillar, Inc., 911 S.W.2d at 381-83. The Texas Supreme Court also has stated that, "In general, a product seller is not subject to liability for failing to warn or instruct regarding risks and risk avoidance measures that should be obvious to, or generally known by, foreseeable product users." Sauder Custom Fabrication, Inc., 967 S.W.2dat 351 (quoting Restatement (Third) of Torts: Prod. Liab. § 2, cmt. j (1997)).
Accordingly, this court correctly holds that there was no evidence to support a duty by Bren-Tex to warn the Hensens about either: (1) the dangers concerning the lack of a ROPS; or (2) the importance and availability of a ROPS. See Sauder Custom Fabrication, Inc., 967 S.W.2d at 349-51; Caterpillar, Inc., 911 S.W.2d at 381-83; Winn ex rel. Winn, 62 S.W.3d at 616-18; Livengood, 710 N.E.2d at 771-73; Restatement (Second) of Torts §§ 388, 401.