dissenting on Motion for Reconsideration En Banc.
The majority’s judgment is based on its holding that there is legally sufficient evidence that a marketing defect in Daimler-Chrylser’s product was a producing cause of the injuries to Ashlee Hillhouse. I respectfully dissent.
Lise Hillhouse testified she read and understood both the 1994 and 1997 air bag warning labels that specifically warned of the dangers of air bag deployment to children aged twelve and younger. Lise therefore knew that young children could be killed by the air bag, and she knew that the back seat was the safest place for children. But she did not agree with the manufacturer or its engineers. Instead, and in the face of the clear warnings and instructions, Lise believed Ashlee would be safe in the front seat if she was properly restrained and sitting back in her seat.
Lise explained that she disregarded the manufacturer’s warnings and instructions because she put her two youngest children in the middle-row seats in their child-carriers, leaving either the front seat or the rear-most seat for Ashlee. The rear-most seat was not preferred for Ashlee because it was hard to talk to her when she was seated in the back of the minivan. Also, when the weather was hot, it took a long time for the air conditioning to cool down the back seat area. And she worried that if the minivan was hit from behind and caught fire, she would be unable to get to Ashlee. Lise chose the front seat for Ashlee because, as Ashlee got older, she wanted to sit up front. And, since the front seat had an adjustable shoulder strap and headrest that the back seats did not have, Lise thought Ashlee would be safe up front as long as she was in her shoulder harness and properly belted.
To arrive at the conclusion that Ashlee would be safe in the front seat as long as she wore her seatbelt, Lise had to reach two conclusions directly in conflict with the two child-specific warnings. First, she had to assume the warning that children could be killed by the air bag only applied if the child was not belted. Second, she had to disagree with the warning that the back seat is the safest place for children.
The warnings provided reasonable notice of the dangers of air bags to young children. Had Lise acted in accordance with these warnings, which she says she understood yet disregarded, the injury to Ashlee would not have occurred.1 That being so, plaintiffs failed as a matter of law to establish that any failure to warn was a producing cause of the plaintiffs’ damages. See General Motors Corp. v. Saenz, 873 S.W.2d 358, 360-61 (Tex.1993); Gillespie v. Century Prod. Co., 936 S.W.2d 50, 52 (Tex. App.-San Antonio 1996, no writ).
I would hold the evidence is legally insufficient to support the jury’s verdict on plaintiffs’ marketing defect claim and render judgment in DaimlerChrysler’s favor.
. Lise testified that if she had been told air bags were dangerous even to children properly belted, she would not have seated any of her children in the front seat. The jury apparently believed that if the warning had been more specific, Lise would have followed it. However, any warning may be made more detailed or more conspicuous. The pertinent question is whether the warning that was given, if followed, would have prevented the injury. See General Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex.1993).