concurring and dissenting.
While I concur with the majority in its determination that no evidence supports the award of exemplary damages, I respectfully dissent from its determination that there is sufficient evidence against Caterpillar and Holt to impose actual damages. Though the majority sustains the finding of actual damages based upon sufficient evidence of a failure-to-wam cause of action, I conclude that there is insufficient evidence to support this cause of action as well as insufficient evidence to support a finding of strict liability, design defect, and negligence. I would reverse the trial court’s judgment and render that the Shearses take nothing.
Failure to Warn
By Caterpillar’s and Holt’s second points of error, both claim that the evidence is legally and factually insufficient to support the jury’s finding that a marketing defect existed in the model 920 that was a producing cause of Shears’s injuries.
The Shearses argue that failure to warn users of risks involved in operating the front-end loader without a ROPS rendered the model 920 unreasonably dangerous. They contend that a conspicuous warning on the model 920 would have sufficed.
In Texas the existence of a duty to warn of the dangers or instruct about the proper use of a product is a question of law. Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 387 (Tex.1991). A manufacturer has no duty to warn a consumer of risks associated with the use of a product when those risks are “generally known and recognized” and are “within the ordinary knowledge common to the community.” Id.; see also Diggles v. Horowitz, 765 S.W.2d 839, 842 (Tex.App.—Beaumont 1989, writ denied) (no duty to warn of risk associated with improper use of handgun, because “there is no duty to warn of hazards which are obvious or actually known”); Beans v. Entex, Inc., 744 S.W.2d 323, 325 (Tex.App.—Houston [1st Dist.] 1988, writ denied) (no duty to warn of risk of asphyxiation from improper use of gas appliance, because “the seller’s duty to warn *936arises only where the dangers ... are such that a consumer cannot reasonably be expected to be aware of them”). A product is unreasonably dangerous and therefore defective if the ordinary man, knowing the risks and dangers involved in its use, would not have marketed the product without “supplying warnings as to the risks and dangers involved in using the product as well as instructions as to how to avoid those risks and dangers.” Bituminous Casualty Corp. v. Black & Decker Mfg. Co., 518 S.W.2d 868, 872 (Tex.Civ.App.—Dallas 1974, writ refd n.r.e.).
Removal of a ROPS from a front-end loader takes away the protection that the ROPS provides to the operator. This is open and obvious to all. Indeed, the Shearses’ expert conceded that, when the ROPS was attached, “a skilled operator would understand that he or she has an environment, an envelope around the particular driver that would protect the driver from rollover, from collisions, and from falling objects,” but that when the ROPS was removed, it was obvious that the protection for the operator is removed.
Since the warning is intended to be adequate for the “average user” of the product, the adequacy of the warning must be evaluated together with the knowledge of the ultimate users of the product. Where, for example, a product is marketed solely to professionals experienced in using the product, the manufacturer may rely on the knowledge which a reasonable professional would apply in using the product.
Pavlides v. Galveston Yacht Basin, Inc., 727 F.2d 330, 338 (5th Cir.1984) (applying Texas law). Accord Gray v. Manitowoc Co., 771 F.2d 866, 871 (5th Cir.1985) (crane manufacturer under no duty to warn because risk of injury from being struck by boom understood by ordinary users of equipment, regardless of whether plaintiff himself understood the risk: “subjective ignorance has little significance for this objective injury”). The policy for requiring manufacturers to inform users of the risks inhering in their products is based upon the sound policy that the user is entitled to the information necessary to make an intelligent choice about whether the product’s utility or benefits justify exposing himself to the risk of harm. See Borel v. Fibreboard Paper Prod. Corp., 493 F.2d 1076, 1089 (5th Cir.1973) (applying Texas law); see also Ellis v. Moore, 401 S.W.2d 789, 793 (Tex.1966).
Testimony at trial was that manufacturers like Caterpillar do not warn of dangers that are obvious or commonly known by skilled operators, such as the danger of collision; they are highly selective in the warnings. I conclude that the danger of collision and injury when operating a front-end loader without a ROPS is obvious as a matter of law.
I conclude that the judgment against Caterpillar based upon the failure to warn of the danger of collision and possibility of operator injury when the ROPS is removed based upon strict liability or negligence should be reversed. I would sustain Caterpillar’s and B.D. Holt’s second points of error.
Design Defect
Caterpillar and B.D. Holt, by their first points of error, assert that the evidence is legally and factually insufficient to support the jury’s finding that the model 920 had a design defect that was a producing cause of Shears’s injuries. Both appellants assert that the trial court erred by overruling their motions to disregard the jury finding, for j.n.o.v., and for new trial.
The Shearses claim that the loader was defective because purchasers could remove the ROPS and continue to operate the loader. At trial their design defect theory was that a risk of injury is associated with the operation of a front-end loader without a ROPS and, therefore, Caterpillar had a duty to design its model 920 in such a way that it would be impossible to operate the loader after removing the ROPS.
A manufacturer who sells a product in a defective condition that renders the product unreasonably dangerous is strictly liable for physical harm caused by the defect to the product’s user even though the manufacturer “has exercised all possible care in the preparation and sale of his product.” McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.*9371967).1 A product is “unreasonably dangerous” only if it is defective, whether designed defectively or improperly and produced as designed, or designed perfectly but improperly or defectively produced. See Henderson v. Ford Motor Co., 519 S.W.2d 87, 92 (Tex.1974).
Because many products have both utility and danger, the alleged defect is required to render the offending product “unreasonably dangerous” before strict liability is imposed.
Because the loader is a multiuse product and certain operations could not be performed with a ROPS in place, Caterpillar designed the ROPS to be removable by unbolting. The federal agency charged with the responsibility for workplace safety explicitly recognized that a ROPS must be removable to permit use of the loader in various work environments. Occupational Safety and Health Administration regulations authorize removal of the ROPS whenever a ROPS prevents the loader from entering work spaces so long as the operator cannot be injured by low overhead obstructions. With a non-removable ROPS it would be impossible for a 920 model to function in low clearance areas — places where there is no danger of rollover and there continues to be danger of collision. Testimony at trial showed that Dix purchased the model 920 because Dix needed heavy equipment to unload cargo in low clearance ship holds. Because the model 920’s ROPS was attached by bolts, Dix could remove the ROPS and then replace the ROPS when not using the model 920 to unload ship holds with low clearances. The testimony showed that Dix had removed the ROPS on Shears’s loader for use in unloading ships with low overhead clearances. A representative from Dix testified that the ROPS had not been replaced before using it for work in the warehouse because it was too much trouble.
A removable ROPS is useful for other reasons. Evidence at trial showed that a front-end loader with a ROPS attached often exceeds the clearance afforded by bridges or other overpasses; therefore, often, a ROPS must be removed to facilitate transporting a loader. Additionally, the ROPS often must be removed to repair and remove component parts located under the operator’s compartment. Also, in the event of a rollover or when the ROPS is damaged somehow, the damaged ROPS may be replaced with a new one rather than purchasing a new front-end loader.
Appellants urge that the case before us is similar to Hagans v. Oliver Machinery Co., 576 F.2d 97, 98 (5th Cir.1978) (applying Texas law). In Hagans, the plaintiff alleged that the defendant’s industrial table saw was defectively designed and unreasonably dangerous because the blade guard attached to the saw was removable, rather than permanently welded to the saw. The defendant countered with evidence that the plaintiff’s proposed design alternative “would substantially limit the saw’s usefulness,” particularly because “the safety device had to be removed in order to straight-out pieces of lumber of certain widths.” Id. at 100. The Fifth Circuit reversed the jury’s verdict in favor of the plaintiff, on “no evidence” grounds, holding that a manufacturer has no duty to design a multi-use product with a non-removable safety device that would seriously impair the intended, beneficial uses of the product.
In reversing the court noted,
[T]he company could have done as plaintiff suggests: permanently weld or rivet the blade guard assembly in place on the saw. In so doing, however, defendant would render his product incapable of performing many important woodworking functions that could be performed on saws marketed by his competitors.... By designing the saw with a removable blade guard, defendant struck a compromise that maximized the product’s utility and safety- Unfortunately, the nature of the industry is such that its tools, from the smallest tack *938hammer to the largest earth mover, expose certain risks of harm to their users.... The evidence is overwhelming that permanent attachment of the blade guard assembly would seriously impair the usefulness of defendant’s product. Texas does not require a manufacturer to destroy the utility of his product in order to make it safe.... On the issue of defective design, the district court should have directed a verdict for defendant.
Id. at 101 (citing Metal Window Prod. Co. v. Magnusen, 485 S.W.2d 355 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ ref d n.r.e.)).
As with the industrial saw in Hagans, Caterpillar should not be required to destroy the utility of its front-end loader for low clearance operations merely to avoid the remote risk associated with an isolated use of a loader without a ROPS in circumstances where there is a minimal risk of a rollover. We note that testimony at trial showed that there have been no other incidents of Caterpillar front-end loaders colliding and operators sustaining injuries because a bolted ROPS had been removed.
The Caterpillar model 920 front-end loader is designed with a ROPS as a standard feature to provide rollover protection to the operator. The purchaser is in the best position to ensure that the ROPS is removed only under authorized conditions. Similarly, the ultimate purchaser is in the best position to decide whether the safety device was required for the type of work to be done. See Elliott v. Century Chevrolet Co., 597 S.W.2d 563 (Tex.Civ.App.—Fort Worth 1980, writ refd n.r.e.) (upheld summary judgment for defendant because plaintiffs proposed safety device would be incompatible with many uses for which product was designed). Texas law does not require a manufacturer to destroy the utility of its product in order to make it safe. See Magnusen, 485 S.W.2d at 359.
I would employ the Hagans court’s analysis and note that a finding for the Shearses on the issue of defective design ignores the fact that safety is not the only criterion a manufacturer considers when designing a product. Hagans, 576 F.2d at 101. When designing the front-end loader at issue, Caterpillar was faced with the difficult task of reconciling its safety concerns with the realities of a competitive marketplace. At one extreme, Caterpillar could have marketed a front-end loader without any ROPS. At the other extreme, Caterpillar could have done as the Shearses suggested: permanently welded the ROPS in place on to the front-end loader. In so doing, however, Caterpillar would have rendered its product incapable of performing many functions and would have required the purchaser to buy more specialized equipment rather than using the multipurpose model 920 properly.
Finally, Caterpillar, recognizing that potential customers expect to perform a wide range of functions with front-end loaders, elected a third option; equipping the front-end loader with a bolted ROPS. With this design the model 920 could perform the wide range of functions expected of it while providing the ROPS protection for those operations when rollovers are possible. By designing the bolted ROPS, Caterpillar struck a compromise that maximized the product’s utility and safety.
Caterpillar installs a ROPS on all its front-end loaders sold in the United States as standard equipment to reduce the risk that a purchaser might fail to install a protective device for uses that involve a risk of a rollover. The ROPS, therefore, is installed on the front-end loader until the purchaser consciously decides that removal is necessary to perform essential commercial and industrial tasks. To subject Caterpillar to liability under the facts of this case would transform a manufacturer into an absolute insurer against risk of harm in the workplace. This would impermissibly contravene the strict tort liability established in Texas. See Acord v. General Motors Corp., 669 S.W.2d 111, 114 (Tex.1984).
I conclude that as a matter of law the bolted ROPS was not a design defect that rendered the model 920 unreasonably dangerous. I would sustain Caterpillar’s and B.D. Holt’s first points of error.
Negligence
Caterpillar and B.D. Holt, by their third points of error, contend that the evidence is *939insufficient to support the jury’s finding that they were negligent.
According to the Shearses’ theory, if Caterpillar had welded the ROPS to its loader, Dix Shipping could not have removed the ROPS, and Shears would not have been injured. However, the testimony presented was to the contrary. Dix Shipping could have and would have removed the welded ROPS to make beneficial and necessary use of the loader in its business. Uncontroverted testimony was that a welded ROPS was removable. A Dix Shipping representative testified that if the ROPS were welded onto the loader he would have used a cutting torch to burn off the ROPS.
Like all other manufacturers of front-end loaders at the time, Caterpillar designed the ROPS with bolts so that the ROPS could be removed for effective use in appropriate circumstances. A removable ROPS was critical to the beneficial use of Caterpillar’s loader for the purpose for which Dix Shipping originally purchased the loader.
Caterpillar cannot monitor an individual employer’s decision that he is entitled under OSHA regulations to remove the ROPS for a particular operation — a decision that OSHA requires each employer to make based on the specific work environment in which the loader will be used. Under these circumstances, the employer is the only party in a position to ensure that a multi-use product is equipped with environment-specific safety features in circumstances where users may be exposed to a risk of harm. I would sustain Caterpillar’s and Holt’s third points of error. Because I conclude that there is no evidence to support any of the Shearses’ causes of action, I would reverse the trial court’s judgment and render that the Shears-es take nothing.
Concurring and Dissenting opinion joined by J. BONNER DORSEY, J.
. McKisson states that the defective condition must be a “proximate cause” of the injury, but the causation test currently applied is that the defective condition must be a "producing cause” of the injury or damage. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). A producing cause is “an efficient, exciting, or contributing cause, which in the natural sequence, produced injuries or damages complained of, if any.” Rourke v. Garza, 530 S.W.2d 794, 801 (Tex.1975).