(dissenting).
It is my conviction that the facts of this case, as a matter of law, preclude recovery upon the theory of strict liability.
As stated in the majority opinion, the four scaffold boards were delivered as un-assembled components of a scaffold and the absence of cleats on some of the boards was readily apparent to the casual observer at the time of delivery. Har-Con, an experienced, industrial user of scaffolding equipment) had leased such material in their unassembled state from Rourke on a number of prior occasions. Har-Con’s superintendent on the job site, inspected the materials and signed Rourke’s receipt indicating that the boards as delivered were in good condition. Certainly there was no concealed defect in the boards at time of their delivery. Since the absence of cleats could be readily ascertained by a casual observer at the time of the delivery of the four boards to Har-Con, can it be said that supplying the boards to Har-Con exposed the user to an unreasonable risk of harm ?
“ . . . the underlying basis for the conclusion so often reached by the courts that a product is defective and unreasonably dangerous is the ignorance of the user about the dangerous characteristics of the product. This necessarily means that a full and complete disclosure of a dangerous condition would have prevented a finding of defectiveness. Furthermore, if the maker or other purveyor of goods has no duty to guard against harm to users and those in the vicinity of use from a dangerous condition of a product that is open and obvious at the time of sale — a position sometimes taken by the courts concerning both negligence and strict liability theories — a product could never be regarded as unreasonably dangerous unless the danger was concealed to the casual user . . .” Keeton, 48 Tex.Law Review 398, p. 399.
When a potentially dangerous condition is obvious to the casual observer, there is generally no duty on the part of the supplier to warn of such condition. Hursch, American Law of Products Liability, Sec. 2:38, pp. 176-185.
“ . . . It is not necessary for the supplier to inform those for whose use *345the chattel is supplied of a condition which a mere casual looking over will disclose, unless the circumstances under which the chattel is supplied are such as to make it likely that even so casual an inspection will not be made.” Restatement of Torts 2d, Sec. 388(b) k, p. 306.
The basis for this reasoning is summarized in Stevens v. Durbin-Durco, Inc., 377 S.W.2d 343 (Mo.Sup.1964), p. 347, in part quoting from the leading case of Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802, 804:
“ ‘Suffice it to note that, in cases dealing with a manufacturer’s liability for injuries to remote users, the stress has always been upon the duty of guarding against hidden defects and of giving notice of concealed dangers.’ The duty of the manufacturer in such case is satisfied by the manufacture of a product which is free of latent defects and concealed dangers . . . ”
Somewhat analogous is Collum v. Pope & Talbot, Inc., 135 Cal.2d 653, 288 P.2d 75 (1955), in which two carpenters working on a construction job fell when a ceiling joist broke under their weight. The court in that case held against the plaintiffs and in favor of the lumber mill dealer and the lumber mill operator who had processed the joists and sold them to the dealer, stating:
“ . . . The mill operator put no foreign, deleterious substance into this joist. He inserted nothing into it at all. Nor did he combine or cover it with any other substance. He merely took sections of a tree, a product of nature, and cut them to size. When it came onto the market, and into the hands of the dealer, the building contractor, and the journeyman carpenter, its qualities continued visible, equally as visible and as readily discernible as when it left the view of the inspector who graded it as it came from the planer at the mill. Thus, plaintiffs were in as good a position to determine the utility of this lumber as was the inspector at the mill . . . ”
See also Metal Window Products Company v. Magnusen, 485 S.W.2d 355 (Tex.Civ.App.-Houston, 14th 1972, writ ref. n. r. e.); Scott v. Liebman, 404 S.W.2d 288 (Tex.Sup.1966); Downey v. Moore’s Time Saving Equipment, Inc., 432 F.2d 1088 (U.S.Ct.App., 7th Cir.); Murphy v. Eaton, Yale & Towne, 444 F.2d 317 (U.S.Ct.App., 6th Cir.) ; Inman v. Binghamton Housing Authority, 3 N.Y.2d 137, 164 N.Y.S.2d 699, 143 N.E.2d 895; Parker v. Heasler Plumbing & Heating Co., 388 P.2d 516 (Wyo.Sup.); Prosser on Torts, 4th ed., Sec. 96, p. 646, Sec. 104, p. 677; 86 A. L.R. 947.
The cases cited by appellees, notably Pike v. Frank G. Hough Co., 2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229 (1970), and Luque v. McLean, 8 Cal.3d 136, 501 P.2d 1163, 1170 (1972), suggest that where a product is highly dangerous and unsafe for its intended use, or where the question of apparency is one of fact, a recovery may be allowed even though the defect be considered “obvious.” However, those cases do not suggest that recovery must be allowed where the obviousness of the danger is such that it must be concluded the product was not unreasonably dangerous to the user at time of delivery. See Luque v. McLean, supra, at p. 1169.
This is not a situation where a defect latent at the time of delivery was later discovered by the plaintiff who then continued to use the product after discovery of the defect. See for example Ford Motor Company v. Henderson, 500 S.W.2d 709 (Tex.App.-Beaumont 1973, writ granted); Messick v. General Motors Corp., 460 F.2d 485 (5th Cir. 1972). Nor is this a case where the product was unreasonably dangerous per se, as in Di Muro v. Masterson Trusafe Steel Scaffold Company, 193 Cal.2d 784, 14 Cal.Rptr. 551 (1961); see also Keeton, Products Liability, 48 Tex.Law Review 399.
“ . . . Many defective chattels can be used with complete safety by a person who is aware of the defect and guards *346against the risk created by it. There is no legal duty not to sell a chattel which involves a risk of harm. The duty relates to the delivery of the chattel to one who does not know its actual condition, or though knowing it, does not understand the risk inherent in that condition. Consequently a seller who exercises reasonable care to acquaint the buyer of a chattel with facts known to the seller which bear upon the risk inherent in using the chattel, and to explain to the buyer the significance of such facts with respect to the risks of harm they create, does not have reason to know that the chattel is likely to be dangerous when used unless the seller realizes or should realize that the buyer by reason of youth, inexperience, or otherwise is incompetent to use the chattel safely, or is likely to turn the chattel over to a third person without warning him of the risk inherent in it. So too, where the seller reasonably believes that the buyer will discover for himself the condition of the chattel and realize the danger involved and to disclose it to any others who may be affected by it, the seller does not have reason to know that the chattel is likely to be dangerous when used.” Restatement of Torts 2d, Sec. 401, p. 344.
Scaffolding boards such as those supplied by Rourke have long been utilized as a standard and common commodity in the construction industry. See Baker v. Stewart Sand & Material Company, 353 S.W.2d 108 (Mo.Ct.App.1961). It is a matter of common knowledge and experience, and requires no special engineering expertise, to recognize that a board with a flat surface will tend to slide more easily on its pipe supports than a board to which chocks or cleats have been attached to prevent slippage.
Since the industrial user, Har-Con, accepted delivery of the boards in their condition without cleats, I cannot conceive that reason would impose a duty on Rourke to issue independent warnings to each of Har-Con’s employees as to such condition. See Restatement of Torts 2d, Sec. 388; Olszewski v. United Fruit Company, 34 F.Supp. 113 (Dist.Ct.Pa.1940); Youtz v. Thompson Tire Co., 46 Cal.2d 672, 116 P.2d 636 (1941).
A different situation might have been presented had Rourke undertaken the actual assembly of the scaffolding. See Restatement of Torts 2d, Sec. 391, p. 319. However, Rourke merely delivered the un-assembled parts of the scaffolding which, after being inspected, accepted and receipted for by Har-Con’s superintendent, were assembled by Har-Con’s own employees. There was no delivery of a completed product, only the very basic elements of a structure of most simple design. If any of the four boards had been determined unsatisfactory for the work contemplated, Har-Con could have refused to accept delivery. See Blankenship v. St. Joseph Fuel Oil & Mfg. Co., 360 Mo. 1171, 232 S.W.2d 954 (1950).
A supplier’s duty to exercise reasonable care does not, of course, make him an insurer. Frumer & Friedman, Products Liability, Sec. 6:04, p. 101. He is under no duty to design or construct a “fool proof” product, and if the danger to be avoided is apparent to the casual observer, he should not be held liable for failure to design a product which is “safer” than some other model. Marker v. Universal Oil Products Co., 250 F.2d 603 (U.S.Ct.App., 10th Cir., 1957); Neusus v. Sponholtz, 369 F.2d 259 (U.S.Ct.App., 7th Cir. 1966); Blankenship v. Morrison Machine Co., 255 Md. 241, 257 A.2d 430 (1969). See also Sarnoff v. Charles Schad, Inc., 50 Misc.2d 418, 270 N.Y.S.2d 763 (1966), citing Campo v. Scofield, supra, and Jones v. Klachkin, 22 Misc.2d 631, 199 N.Y.S.2d 155, aff’d without opinion 13 A.D.2d 911, 217 N.Y.S.2d 1020, wherein it is said 199 N.Y.S.2d at page 156:
“ . . . There is no liability for renting a machine which is patently dangerous (Campo v. Scofield, 301 N.Y. *347468, 95 N.E.2d 802). It is only if the danger lies in some imperfection of manufacture causing it to act in some unusual way which causes injury that liability can be invoked. But there is no liability where the claimed defect is that by a change in design or the addition of safety devices a safer machine could have been produced.”
At any time from point of delivery to completion of the assembly process, Har-Con’s employees had opportunity to either reject or correct any obviously defective materials or to warn other employees of the existence of such defects. Under the circumstances of this case, I believe it became Har-Con’s duty, not Rourke’s, to warn its employees of the condition of the scaffold boards, i. e., the absence of cleats.
“ . . . Modern life would be intolerable unless one were permitted to rely to a certain extent on others’ doing what they normally do, particularly if it is their duty to do so . . . ” Restatement of Torts 2d, Sec. 388, p. 308.
Since the condition of the scaffolding boards was clearly obvious to any casual observer at the time of their delivery by the supplier Rourke to the industrial user Har-Con, I am of the opinion that such boards could not, as a matter of law, be regarded as unreasonably dangerous, and that Rourke was under no duty to warn Garza, the employee of the industrial user, about the condition of such boards. See Younger v. Dow Corning Corporation, 202 Kan. 674, 451 P.2d 177 (1969); Downey v. Moore’s Time Saving Equipment, Inc., supra; Marker v. Universal Oil Products Co., 250 F.2d 603 (U.S.Ct.App., 10th Cir., 1957); Frumer & Friedman, Products Liability, Sec. 8 :04; Littlehale v. du Pont, 268 F.Supp. 791, aff’d 380 F.2d 274.
The jury failed to find that Rourke was guilty of negligence in supplying the boards without cleats and I cannot agree with the majority that appellees’ recovery may be upheld upon the theory of strict liability.