(dissenting).
I respectfully dissent.
Upon the doctrine of strict products liability, the majority upholds a judgment of $303,000 for personal injuries against the lessor of certain component products (four 2" x 10" boards 8 feet long) of an unassem-bled scaffold even though it is undisputed that the products were in sound condition when they were delivered.
This result is based upon jury findings that the failure to have additional products (cleat-type devices) affixed to the scaffold boards rendered them defective and that such failure was a producing cause of the accident.
The jury failed to find that the lessor, Rourke Rental, was negligent in supplying the scaffold boards without cleat-type devices,1 and I think undisputed evidence precludes recovery against Rourke on the theory of strict liability.
Garza, the injured plaintiff, was an employee of Har-Con Engineering Company, a large industrial contractor which had much experience in the erection and use of scaffolds. Garza’s accident occurred in May of 1965, when he fell from a scaffold erected on the job site by Har-Con. He received workmen’s compensation from Har-Con’s carrier, which was awarded $35,326 of Garza’s recovery against Rourke Rental in this suit. It is undisputed that Har-Con exercised full responsibility for ordering, renting, and erecting the scaffold equipment. It rented the unassembled scaffolding from Rourke Rental, a one-employee family corporation which was a principal supplier of such equipment in the Galveston area. The 21 items or products making up the unas-sembled scaffold rented by Har-Con from Rourke were listed on a receipt signed by Har-Con’s superintendent. Above his signature were the words: “Received the above in good order subject to the terms and conditions on reverse side.” On the back of the receipt were various terms relating to title, use, payment for destruction or loss, repossession, indemnity against claims of other parties, and a provision reading: “LESSEE agrees that use of the leased equipment shall be construed as an absolute acknowledgment by LESSEE that when delivered to LESSEE by COMPANY the equipment was in good order and repair, was properly erected and was in all respects adequate, sufficient and proper for the purpose for which it was intended.”
The scaffold boards are the only products complained of in this case, and that complaint goes solely to the absence therefrom of devices which would have rendered them safer for use as scaffold boards.
*806Heretofore this Court has spoken of the doctrine of strict liability as being applicable when the product itself is “in a defective condition” and “unreasonably dangerous” to the user. Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.Sup.1969); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.Sup.1967). See also Metal Window Products Co. v. Magnusen, 485 S.W.2d 355 (Tex.Civ.App.1972, writ ref. n. r. e.) and Restatement (Second) of Torts § 402A (1965). In my opinion, both of these essentials are absent as a matter of law in this case. It is undisputed that the products in this case, the scaffold boards delivered by Rourke Rental, were in good condition. There is no allegation or evidence that these products were in themselves defective. In upholding the judgment on the finding that failure to affix other products (cleat-type devices) on the scaffold boards rendered them defective, the Court gives no significance to the undisputed evidence that the boards and cleat devices are separate products, each being a component of scaffolding equipment which can be rented the same as frames, braces, and other components; that the lessor and party responsible for assembling and erecting the scaffold in question was Har-Con, whose employees did in fact assemble and erect it; and that the absence of cleats on the boards was open and obvious to the superintendent and employees of Har-Con and to any casual observer at the time the boards were delivered to Har-Con.
It is also undisputed that some contractors in the Galveston area use scaffold boards without cleats; that Har-Con rented scaffold boards without cleats from Rourke Rental on numerous previous occasions; that during the past 15 years Rourke Rentals had not rented scaffold boards with cleats; and that if cleats were added by Rourke there would have been an additional charge for them.
What if Har-Con had specifically stated in its order that it wanted scaffold boards without cleats? Would Rourke Rental then be liable to Har-Con employees under the doctrine of strict liability if it furnished the scaffold boards as directed by Har-Con? Surely not. Yet that is precisely the effect of the situation which exists in this case. There is no evidence that Har-Con ordered boards with cleats. The boards were actually delivered in sound condition by Rourke Rental. No defective conditions having been shown in the products as ordered and delivered, recovery upon the doctrine of strict liability should not be permitted.
Further, the absence of cleats on the scaffold boards was open and obvious to the casual observer at the time of their delivery by Rourke to Har-Con. The condition of the boards was not in any manner concealed. Under such circumstances the boards should not, as a matter of law, be regarded as unreasonably dangerous. The dissenting opinion of Justice Evans in the court of civil appeals adequately deals with this additional reason why strict liability is inapplicable. I agree with his opinion.
STEAKLEY and DENTON, JJ., join in this dissent.
. The evidence indicates that cleats are usually produced out of 2" x 4" lumber by cutting strips equal to the widths of the scaffolds boards so that they may be nailed across the underneath sides of both ends of the scaffold boards to prevent them from slipping on the steel scaffold frames. To equip the boards in question with cleats would have required eight of such 2" x 4" strips.