Hathcock v. HANKOOK TIRE AMERICA CORP.

Concurring Opinion by

Justice CARTER.

JACK CARTER, Justice, concurring.

One of the disputes was whether nylon cap plies placed on tires made them safer. Some of the testimony was that they were only helpful on tires designed for extremely high speeds. In an attempt to show the nylon cap ply was also safer on non speed-tires, Hathcock proffered evidence that Hankook later added nylon cap plies to the Z36 model tire. The majority opinion states that both parties treated the addi*749tion as a subsequent remedial measure and then analyzes the evidence on that basis. The problem is that there was no evidence that the addition was a subsequent remedial measure. Rule 407(a) of the Texas Rules of Evidence, entitled Subsequent Remedial Measures, states, “[w]hen after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent remedial measures is not admissible ...” Here, there is no evidence of any injury or harm caused by an event that prompted the addition of the nylon cap plies. I believe the majority opinion relies on an inapplicable rule to approve the exclusion of the evidence.

Further, the technology for the nylon cap ply was in existence at the time the tire in question was manufactured. The plaintiffs were required to prove that a safer alternative design was available that was economically and technologically feasible at the time the product was manufactured by application of existing or reasonably achievable scientific knowledge. There is no dispute that the technology was available when the tire was manufactured, and it was later added at a small cost per tire.

No reason has been shown to preclude the relevant evidence that Hankook added the very feature the plaintiffs argued would make a safer alternative design. Exclusion of the evidence was error.

To reverse a judgment based on error in the admission or exclusion of evidence, it must be shown that the error probably caused the rendition of an improper judgment. Tex. R.App. P. 44.1(a)(1). After a review of the entire record and all evidence admitted, I would not find the error was of that magnitude; I concur in the judgment as announced in the majority opinion.