dissenting.
In this case a manufacturer provided no warnings of any kind whatsoever concerning its product, which is lethal if inhaled over an extended period of time. In its defense, the manufacturer says its product was so dangerous that the decedent’s employer should have provided the warning. Additionally the manufacturer alleges that the deceased worker, who it contends was too ignorant to have understood a warning anyway, should have discovered the defect himself.
I.
Today’s opinion rewrites the product safety law of Texas to deny protection to those who have “only an eighth grade education,” by assuming that such people would “not pay attention to warning labels.” 880 S.W.2d at 754. This significant change in our law is not addressed solely to workers in a pipe factory, but extends to all of the more than one million adult Texans with less than a ninth grade education.1 Certainly a claimant has a burden to prove that a failure to warn constitutes a producing cause of his damages, but
when a manufacturer fails to give adequate warnings or instructions, a rebuttable presumption arises that the user would have read and heeded such warnings or instruc-tions_ This presumption may be rebutted with evidence that the user was blind, illiterate, intoxicated at the time of the product’s use, irresponsible, lax in judgment, or by some other circumstance tending to show that the improper use would have occurred regardless of the proposed warnings or instructions.
*756Magro v. Ragsdale Bros., Inc., 721 S.W.2d 832, 834 (Tex.1986) (citations omitted); see also Technical Chem. Co. v. Jacobs, 480 S.W.2d 602, 606 (Tex.1972). While conceding that it failed to provide any warnings or instructions, Dresser seeks to avoid this presumption with evidence of Lee’s eighth grade education. But those with the misfortune of having only limited formal education should not be so quickly excluded from an important legal safeguard. The Magro presumption makes illiteracy, not educational attainment, a “circumstance tending to show” that the warning would have gone unheeded. 721 S.W.2d at 834. Here the record shows that while Lee did have “some trouble reading,” he was not illiterate, and he had the ability to understand and heed a warning.2
As if this were not enough injustice for one opinion, the majority concludes that those Texans who have unpleasant “working conditions” deserve less protection from our product safety laws than the rest of us. 880 S.W.2d at 754. Incredibly, today’s opinion declares that evidence that an employee works in a “hot, dusty, improperly ventilated” workplace where use of a safety device is uncomfortable can defeat the presumption that any warning about the deadly qualities of a product would be heeded. Id. Until this unfortunate ruling, such circumstances had no such destructive power, since they have no “tend[ency] to show that the improper use would have occurred” if proper warnings had been given. Magro, 721 S.W.2d at 834.
But now this presumption is permitted to evaporate apparently because of Lee’s testimony that, while at times “bothered” by dust, he chose not to wear a mask.3 Being “bothered” by dust and having knowledge that it contains microscopic particles that can kill are entirely different propositions. Indeed, today’s pronouncement excusing Dresser appears in direct conflict with this court’s most recent writing on this subject, in which we said that the proper inquiry in a failure to warn case is whether the manufacturer’s alert to the user adequately conveys the particular serious consequences associated with the product’s foreseeable use. See Gen. Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 922 n. 9 (Tex.1993), petition for cert. filed 62 U.S.L.W. 3166 (U.S. Aug. 31, 1993) (No. 93-337). That an employee prefers the discomfort of heat and dust to the sweaty discomfort of wearing a mask hardly demonstrates that he would have made the same choice had he known that his very life was at stake.4
*757Because the presumption was not rebutted, the majority’s conclusion that the alleged negligence of the employer, Tyler Pipe, could have been the sole proximate cause of Lee’s injuries is erroneous. If there is any circumstance justifying a “sole proximate cause” instruction, this is not it, since Dresser offered no other evidence to show that its own failure to warn was not a producing cause.
A more general problem with instructions of this type is their tendency to tilt the jury charge unfairly to one side or the other. Our disapproval of unnecessary, surplus instructions, which in one case may work to the advantage of the plaintiff and in another to that of the defendant, has until today been uniform. See, e.g., Turner v. Gen. Motors Corp., 584 S.W.2d 844, 850-51 (Tex.1979); Fleishman v. Guadiano, 651 S.W.2d 730, 731 (Tex.1983). In Accord v. Gen. Motors Corp., 669 S.W.2d 111, 115-16 (Tex.1984), we emphasized that in strict liability eases, “[t]he jury need not and should not be burdened with surplus instructions.” We again explained in First Int’l Bank v. Roper Corp., 686 S.W.2d 602, 604 (Tex.1985), that a sole cause instruction misfocuses the jury’s attention away from whether the product was defective; it “place[s] an undue emphasis on [a third party’s] negligence when the jury [i]s considering the existence of a defect and its relationship to the injurious event.”
Rather than acknowledging all of these rulings, the majority references only Roper, which it discounts as not “apply[ing] to a post-Duncan [v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984) ] or statutory comparative causation case.” 880 S.W.2d at 754. Our consistent prior decisions cannot be so easily distinguished. In Magro v. Ragsdale Bros., Inc., 721 S.W.2d 832, 836 (Tex.1986), which followed Duncan, we relied on Roper5 in affirming the trial court’s refusal to give a similar unnecessary instruction regarding the duty to warn. There we unqualifiedly emphasized that
appropriate special issues ask the jury about the existence of a product defect and its causal connection to the accident. Any additional instructions serve merely to distract the jury’s attention from the essential issues of the case.
Magro certainly indicates that surplus instructions remain as harmful after Duncan as before it.6
II.
In addition to blaming the victim for his death, Dresser also blames his employer. A third party cannot shift responsibility for its own shortcomings or those of its product’s to an injured person’s employer under our unanimous holding in Varela v. Am. Petrofina Co., 658 S.W.2d 561 (Tex.1983). Recognizing that the employee is statutorily barred from complaining of an employer’s conduct, we held there that “the employer’s negligence may not be considered” in a third party negligence action. Id. at 562 (emphasis added). By what it euphemistically labels reading Varela in “context”, 880 S.W.2d at 752, the majority essentially reads that ruling out of the lawbooks.
Since the employer’s negligence “may not be considered,” there is certainly no basis for introducing evidence of a matter that cannot *758form the grounds for the jury’s decision. This rationale forms the basis of our holding in Magro, which concerned a worker whose hand was mangled by a can punch machine when a co-worker made an adjustment while operating another part of the machine. When a favorable verdict for Magro in his suit against the product manufacturer for failure to warn was overturned on appeal, we stated that the court of appeals
erroneously ordered the trial court to submit Sanders’ misuse as contributory negligence pursuant to Duncan ... apparently believ[ing] that Sanders should be treated as a settling defendant under Duncan because Magro received workers’ compensation for his injuries.
721 S.W.2d at 835. Holding that “[o]ur Vare-la rationale is applicable and controlling in the present case,” id., we ruled that
[t]he Duncan decision established a comparative causation scheme under which a non-settling defendant manufacturer can receive contribution from settling defendants. A plaintiffs recovery and a manufacturer’s liability are reduced by the percentage of causation attributable to a settling defendant’s negligence. Duncan, 665 S.W.2d at 432. The provisions of the Workers’ Compensation Act prevent Mag-ro from having a right of recovery against [the co-worker,] Sanders. Since a defendant’s right of contribution is derived from a plaintiffs right of recovery, Ragsdale Brothers has no claim for contribution against Sanders under Duncan. Varela, 658 S.W.2d at 563. Accordingly, we hold that a co-employee’s negligence should not be considered in a third party products liability action when the plaintiffs injuries were covered by workers’ compensation.
Id. at 836.
To the extent that our law shifts to the third party tortfeasor responsibility for an employer’s share of any resulting damages, this results from a legislative decision, which if unwarranted should be changed in that forum, not here. Moreover, this is a particularly unworthy case for this majority to superimpose its own social policy preference, since Dresser representatives never made the slightest recommendation for improved safety or worker warnings during any of their repeated visits to the employer’s plant.
III.
The next well settled law of the state to be disturbed today is the rule that
[c]ontributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence.
Shamrock Fuel & Oil Sales v. Tunks, 416 S.W.2d 779, 783 (Tex.1967) (quoting Restatement (Second) of ToRts § 402A emt. n (1965)); see also Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 432 (Tex.1984); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 790 (Tex.1967).7 As this court reaffirmed in Keen v. Ashot Ashkelon, Ltd., 748 S.W.2d 91, 93 (Tex.1988), the policy behind this rule is that “consumers have a right to rely on product safety.”
The same testimony of Lee’s not having worn a mask despite having been “bothered” by dust, which Dresser urges to overcome the Magro presumption, is also advanced as justification for a jury instruction on contributory negligence. But since it introduced no evidence of Lee’s awareness of the lethal qualities of silica under prolonged exposure, Dresser’s argument amounts to no more than a claim that Lee was negligent in failing to discover this danger, and under longstanding Texas law that argument must fail.
With the elitist view that our safety laws should afford less security to the poorly educated or those who endure a hot workplace, the majority has indeed provided a sweeping new statement of the law regarding failure to warn. But the most significant warning of today’s opinion is the further indication that our Texas jurisprudence is being eroded as *759each week the protection afforded to Texas consumers and product users is steadily weakened. As a variant on its continuing trend of disavowing precedent,8 the majority chooses here to eviscerate the relevant body of law that we have previously announced, leaving as a remainder little more than the empty shells of these otherwise controlling authorities.
GAMMAGE and SPECTOR, JJ., join in this dissenting opinion.. There are 1,387,528 Texans, 25 years and older, with less than a ninth grade education. Census of Population & Housing, 1990: Summary Tape file 3, Texas, machine readable data files prepared by the Bureau of the Census, Washington, D.C. 1991.
. Contrary to the majority’s suggestion, there is no "conflicting” evidence here as to whether Lee would “read and follow instructions.” 880 S.W.2d at 754 n. 3. The sole evidence pertaining to this matter was Lee’s own direct testimony:
Q: What school did you go to?
A: Chandler, Texas and Athens, Texas.
Q: Did you go up through eighth grade?
A: Yes, I did.
Q: Mr. Lee, do you have some trouble reading?
A: Yes, I do.
Q: Would you have any trouble reading a warning sign or anything of that nature though?
A: I do recognize warning signs.
Q: Do you have a driver’s license?
. A: Yes, I do.
Q: Did you have a police officer get in a car with you and you passed the driving test?
A: Yes, sir.
Q: Including recognizing the warning signs, et cetera?
A: Yes.
. As Lee testified:
Q: Was there ever an occasion that you wore a respirator out there?
A: I wore one once.
Q: Why did you wear it?
A: Well, I wore it to try to keep all that old white powder silica out of my mouth and nose and that’s why I tried wearing one and it was so hot and so — got so sweaty until I couldn't, you know, keep it on on account of — well, if I had kept it on, I probably would have fell out and I just couldn't keep it on long it was so hot and dusty in there....
.As the record demonstrates:
Q: Mr. Lee, did you try wearing a respirator because you had heard that the silica was dangerous or because it was a nuisance?
A: No, I tried wearing it on account of trying to keep it out of my nose and mouth.
Q: But no one told you it could cause a disease, did they?
A: No, they didn't.
⅝ * * * # *
Q: If you had known that you could be suffering from the type of disease you have here today by breathing that silica flour, would you have voluntarily exposed yourself to that silica?
*757A: No, I wouldn’t.
Q: If there had been no way to get a respirator or something else to wear, would you have continued to work on around that silica?
A: No, I wouldn’t.
. This case is like Roper, where the third party’s negligence was not submitted to the jury, rather than like Duncan, where the third party’s negligence was submitted. See discussion infra of Varela v. Am. Petrofina Co., 658 S.W.2d 561 (Tex.1983).
. Instead of following the repeated writings of this court, the majority simply elevates Ahlschlager v. Remington Arms Co., 750 S.W.2d 832, 835-36 (Tex.App.—Houston [14th Dist.] 1988, writ denied), as the new law of the land. Not only does that opinion represent questionable jurisprudence, but it also bears no factual resemblance to the instant case. Ahlschlager involved conflicting versions of the accidental discharge of a gun. The plaintiff argued that it resulted from a design defect; the defendant manufacturer alleged a negligent firing by a third party, who was unaware that the gun was loaded. These irreconcilable positions presented an either/or choice to the jury — either the plaintiff’s version is true or the defendant’s version is true. Even if a sole cause instruction were permissible under such circumstances, it would never be proper in a case, like the present, in which a manufacturer is essentially seeking to excuse its failure to warn by pointing to a similar failure by another.
. In its discussion of this rule, the majority "as-sum[es]" that the rule "is correct.” 880 S.W.2d at 755. Perhaps if the majority would focus its attention on the opinion of the court in Keen v. Ashot Ashkelon, Ltd., 748 S.W.2d 91 (Tex.1988), instead of on the dissenting and concurring opinions, id., it would see that "assumption" is not necessary — the rule in Texas is and remains that a plaintiff has no duty to discover defects in a product or to guard against their existence.
. See, e.g., Ruiz v. Conoco, 868 S.W.2d 752, 760 (Tex.1993) (Hightower, J., dissenting on rehearing) (majority effectively overruling the leading authority on venue “without discussion or explanation”); National Tank Co. v. Brotherton, 851 S.W.2d 193, 195 (Tex.1993, orig. proceeding) (substantially "alterfing] the controlling law” by rejecting three prior Supreme Court decisions); Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 n. 10 (Tex.1993) (attempting to explain that the opinion only overrules one Supreme Court decision, rather than four); Boyles v. Kerr, 855 S.W.2d 593, 595-96 (Tex.1993) (overruling decision creating cause of action for negligent infliction of emotional distress); Walker v. Packer, 827 S.W.2d 833, 841-42 (Tex.1992, orig. proceeding) (expressly “disapproving” a large body of Texas caselaw); Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d 489, 520 n. 37 (Tex.1992) (disavowing a prior opinion signaling the constitutionality of consolidating school district tax bases); Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 5-6 (Tex.1991) (ignoring recent precedent, looking instead to overruled case).