dissenting.
The vehicle — truck tractor — involved in the accident had been modified so many times after it left General Motors’ hands that I cannot agree that it had a duty to warn of all the potential dangers arising form all the ways in which its product might be modified or used. Had General Motors properly preserved error by advancing a point to this court urging that under the facts of this case, the evidence does not raise a duty to warn beyond what it actually had, then I would agree with the judgment of the court, though not the majority’s reasoning. Since General Motors failed to argue there was no evidence to raise the duty to warn under the circumstances of this case, I am unable to agree even with the judgment. For these reasons, I respectfully dissent.
The majority and Justice Doggett’s dissent agree that General Motors failed to preserve the issue which I would find persuasive in General Motors’ behalf. The main fallacy in what the majority does write concerning causation is found in these assertions:
If despite the inadequacy of GM’s instructions, following them would have prevented the accident, then their inadequacy could not have caused the accident. There is no presumption that a plaintiff who ignored instructions that would have kept him from injury would have followed better instructions.
873 S.W.2d at 355. By this language the majority erroneously assumes the only defect a warning may have is the quality of the “instructions” contained in the warning. That simply is not the law. Without precluding other possible defects, the warning may be inadequate because it is not sufficiently conspicuous. Conspicuousness is an element in this case because, regardless of the quality of the warning here, we cannot know whether it would have been noticed and followed were it not buried in the owner’s manual or placed with some inconspicuous notation on the doorplate. Conspieuousness, however, simply does not equate to quality of content. There is no justification for ignoring the presumption that a proper warning, had it been given, would have been followed.
I sympathize with the majority’s desire to hold that General Motors is not liable under the facts of this case because it had no duty to guess successfully all the modifications and abuses to which its product might be subjected. Its duty to warn was too attenuated under the particular facts here to require it to warn of the ultimate modified vehicle to which the accident occurred. But we should be honest and admit that since it failed to preserve that ground, its alternative contention is legally unsound. General Motors did not disprove causation as a matter of law, and the majority errs in holding it did.