dissenting.
I write separately because the majority opinion and the dissent fail to address the case relied upon by the court of appeals, Dennis v. Allison, 698 S.W.2d 94 (Tex.1985). At a minimum, the court of appeals and the bar are due the courtesy of an explanation as to why this cause is not governed by Dennis. I believe that Dennis controls the outcome of this cause and, accordingly, I would affirm the judgment of the court of appeals.
Horse trainers provide professional services. The plaintiff (petitioner) pled that the defendants were professional horse trainers and throughout the trial continuously referred to the defendants as professional horse trainers. Petitioners have therefore judicially admitted that the defendants were providing “professional services.” Houston First American Sav. v. Musick, 650 S.W.2d 764, 767 (Tex.1983). Thus, the court of appeals was correct in framing the issue on appeal as “whether Texas law recognizes an implied warranty of good and workmanlike performance of personal services rendered by a professional.” 741 S.W.2d at 958.
The nature of a professional’s work is totally inconsistent with the idea that a professional gives an implied warranty guaranteeing an error-free performance. Unlike the manufacture, construction, repair or modification of tangible property, the rendition of professional services is neither mechanical nor routine. It requires the exercise of intellectual skill, judgment and discretion. This is certainly true in horse training.
It is undisputed that horses have different personalities and temperaments. Some are trainable and others are not. Training techniques have to be custom-made for each horse and must be modified by the horse trainer depending upon the response of the horse. The skills necessary to properly evaluate and enhance the talents and capabilities of a horse can only be rendered by a professional.
In Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 354 (Tex.1987), the court reserved for another time the question of “whether an implied warranty applies to services in which the essence of the transaction is the exercise of professional judgment by the service provider ...” In our present case, that issue is squarely presented. The court of appeals determined that no warranty existed in the present case, citing as authority our previous opinion in Dennis.
While I applaud the majority’s decision to decline the invitation to overrule Dennis, I am chagrined by the way the majority resolves this case with no mention of Dennis. The majority simplistically reasons that because a horse is a tangible good, and because horse trainers sometimes succeed in modifying a horse’s behavior resulting in an increase in the value of a horse, that the implied warranty of services which the court judicially created in Melody Home should apply to horse trainers. Not once does the majority opinion mention the word “professional” or “professional services.” The court’s failure to meet the issue before us head on, regrettably, raises more questions than it answers, and will require years of costly litigation to remedy. This “error” is compounded by the fact that as authority for its holding, the majority cites Black’s Law Dictionary, Webster’s Third New International Dictionary and one supreme court case dealing with a suit on a note and a guaranty agreement.
Like Justice Wallace, I view the implied warranty created in Melody Home, 741 S.W.2d at 354, to be only a limited extension of the implied warranty first recog*88nized in Humber v. Morton, 426 S.W.2d 554 (Tex.1968). In Melody Home I expressed both questions and concerns regarding the extent to which this new implied warranty might be applied in the future. Melody Home, 741 S.W.2d 349, 356 (Gonzalez, J. concurring). The court’s present writing answers some of my questions, but does not relieve my concerns.
In Melody Home I speculated that negligence was still the standard by which to measure compliance with the new implied duty, although the court described it as a warranty and justified its creation with strict liability analysis. My guess was wrong. Apparently the burden of proof is more closely analogous to recovery in strict liability.
In the present case, the consumer was unable to prove that the negligence of Act III proximately caused him any damage. The consumer, however, did obtain favorable findings that Act III failed to train the horse in a good and workmanlike manner and that such failure was a producing cause of the horse’s death. As Justice Wallace correctly observes, there is no discernible difference between a claim that efforts failed to be performed in a good and workmanlike manner and a claim that efforts were negligently performed, citing Coulson v. Lake L.B.J. Municipal Utility District, 734 S.W.2d 649, 651 (Tex.1987). There is, however, a difference in “producing cause” and “proximate cause.” Producing cause means an efficient, exciting, or contributing cause which is a continuous and unbroken sequence in connection with any other cause or causes producing the event resulting in injury.1 Rourke v. Garza, 530 S.W.2d 794, 801 (Tex.1975). Proof of proximate cause is more burdensome because it incorporates the added element of foreseeability. J. Sales and J. Perdue, The Law of Strict Liability in Texas at 30 (1977).2
I was therefore mistaken when I surmised that the court only intended to extend the benefits of the DTPA to consumers whose damages were proximately caused by the negligence of certain service providers. Instead, the court both increased the potential liability of the defendant service providers and lessened the burden of proof for the plaintiff. As I said in Melody Home, the service consumer already possesses a choice of remedies in both contract and tort. Melody Home, 741 S.W.2d 349, 358 (Gonzalez, J. concurring). Further, if an element of deception is present, recovery under the DTPA should also be available. I can, however, fathom no public policy justification for extending the penal provisions of the DTPA to a plaintiff who is simply dissatisfied with the service transaction. This is particularly so when a plaintiff’s case is so weak that he cannot even sustain a recovery in negligence.
In Dennis, the professional service was pure in the sense that it was unrelated to the repair or modification of any tangible good. Arguably, the professional/non-professional distinction reserved in Melody Home is no longer significant. The court seems to be saying that regardless of the exercise of professional judgment, the warranty applies if the professional is engaged in modifying or repairing an existing or tangible good. I still think that the public policy reasons for imposition of this strict liability concept is lacking. Thus, none of the implied warranties recognized in Texas should apply to the rendition of professional services.
*89For the reasons expressed here and in my concurring opinion in Melody Home, I dissent.
. 3 State Bar of Texas, Texas Pattern Jury Charges, PJC 70.01 (1982) provides:
PJC 70.01 Producing Cause
"PRODUCING CAUSE" means an efficient, exciting or contributing cause, which, in a natural sequence, produced the occurrence. There can be more than one producing cause.
. 1 State Bar of Texas, Texas Pattern Jury Charges, PJC 2.04 (2d ed. 1987) provides:
PJC 2.04 Proximate Cause
"Proximate cause” means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.