dissenting.
I dissent.
“State of the art” does not mean “the state of industry practice.” “State of the art” means “state of industry knowledge.” At the time of the manufacture of the boat in question, the device and concept of a circuit breaker, as is at issue in this case, was simple, mechanical, cheap, practical, possible, economically feasible and a concept seventy years old, which required no engineering or technical breakthrough. The concept was known by the industry. This fact removes it from “state of the art.”
Boatland is a retail seller. It is not the manufacturer. From the adoption of strict liability in this case, and consideration of public policy, each entity involved in the chain of commercial distribution of a defective product has been subject to strict liability for injuries thereby caused, even though it is in no way responsible for the creation of a defective product or could not cure the defect. The remedy for a faultless retail seller is an action for indemnity against the manufacturer.
In products liability, the measure is the dangerously defective quality of the specific product in litigation. The focus is on the product, not the reasoning behind the manufacturer’s option of design or the care exercised in making such decisions. Commercial availability or defectiveness as to Boatland is not the test. Defectiveness as to the product is the test. If commercial unavailability is not a defense or limitation on feasibility to the manufacturer, it cannot be a defense to the seller.
The manufacturer of the boat, Mr. Hudson, testified as follows as concerns the concept of a “kill switch.” It is practically without dispute that this is one of the simplest mechanical devices and concepts known to man. Its function is, can be, and was performed by many and varied simple constructions. It is more a concept than an invention. The concept has been around most of this century. It is admittedly an easily incorporated concept. Was an invention required in order to incorporate a circuit breaker on a bass boat? Absolutely not! Did the manufacturer have to wait until George Horton invented his specific “Quick Kill” switch before it could incorporate a kill switch of some sort on its bass boats? Absolutely not! Mr. Hudson uses an even simpler electrical circuit breaker on his boats.
Mr. Hudson testified he could have made a kill switch himself, of his own, and of many possible designs, but simply did not do it. Why didn’t he do it? He didn’t think about it. He never had any safety engineer examine his boats. He hadn’t heard of such, he puts them on now, but still thinks people won’t use them.
Was the manufacturer faced with a limitation or state of the art due to commercial unavailability? No. If the manufacturer of this boat were the defendant in this case, would the majority hold under this evidence that the commercial unavailability of someone else’s simple product is a limitation on the manufacturer’s capability (feasibility) to incorporate a device performing the same safety function on its boat? Not if any semblance of strict product liability is to be preserved.
The test for defectiveness of a given product is the same, whether the defendant is the manufacturer, wholesaler or retail seller. The focus is upon the product and not the care or conduct of the particular defendant. The majority opinion has made a new test for each.
The next critical point that the majority fails to take cognizance of is that the factors held by this Court in Turner v. General Motors Corp., 584 S.W.2d 844, 848 (Tex. 1979), to apply as to a manufacturer, in its design of a product, have absolutely no relevance or relation to the reasons for holding the mere retail supplier strictly liable to a consumer. The Turner decision and its departure from the RESTATEMENT definition of the term “unreasonably dangerous,” was limited solely to the liability of a manufacturer in its design of products. The definition of “unreasonably dangerous” in the RESTATEMENT (2d) of Torts, *753§ 402A, Comment (i) remains applicable to a retail supplier who did not participate in the product design. The focus is thus upon the expectation of an ordinary consumer instead of the propriety of the manufacturer’s decision as to design. The harm to the plaintiff in the admission of evidence of commercial unavailability to a retail seller lies in the certainty of such evidence to divert the jury’s thought to the reasonableness of the supplier’s conduct instead of the true issue; whether the danger was beyond the contemplation of the ordinary use.
What is this Court faced with in this case? Nothing more than a defendant seller attempting to avoid liability by offering proof that Bailey’s boat complied with industry practice (which it did at that time) but not because of any limitations on manufacturing feasibility at that time. This is an industry practice case. The evidence does not involve “technological feasibility.” The law of the majority opinion is that a simple device, not supplied by the manufacturer, is a defense in a strict liability suit, against a retailer, even though the industry practice was created by the manufacturing industry.
There is no dispute that commercially marketed “kill switches” for bass boats were unavailable to Boatland at the time it sold the boat. Horton’s “Quick Kill” was unavailable. The important point is that there is no dispute that at the time of the manufacture of Mr. Bailey’s boat, a circuit breaker, whether electrical or mechanical could have easily and cheaply been incorporated into the boat.
Evidence of commercial unavailability to this retail seller should not be admissible. If it is, the majority opinion has created a new and separate test for defectiveness for a retail seller in a strict liability case. The type of commercial unavailability evidence offered here is not true limitation on feasibility to the manufacturer and therefore relevant to the existing state of the art, rather, it is the result of practice in the bass boat manufacturing industry. Subjective commercial unavailability to a retail seller does not operate as a limitation on objective state of the art.
Feasibility as to Boatland is not the test. In a design case, the test is one of feasibility, or a limitation on feasibility as to the manufacturer. If, as to the manufacturer, unavailability to a retail seller is due to the manufacturer’s custom or standard, then such evidence should not be admitted because this would allow the manufacturer to set its own standards for liability.
I would hold that the trial court erred in permitting such evidence by Boatland to go to the jury, and would affirm the judgment of the Court of Civil Appeals.
I further disagree with the majority opinion and agree with the Court of Civil Appeals on the submission of the issues pertaining to Bailey’s conduct in handling the boat. There is no evidence that Bailey was struck when first thrown from the boat. The evidence is that he was hit when the boat circled.
The theory of Valerie Bailey’s lawsuit is that if the manufacturer had incorporated a circuit breaker in the manufacture of the boat, the boat motor would have cut off when Mr. Bailey was first thrown from the boat. The boat would not have circled back to where he was thrown and struck him with a rapidly spinning propeller. Under this theory, Mr. Bailey’s conduct is not determinative of anything. The result would have been the same if he had been in a stump-free lake, hit a submerged log which had just drifted in, and had been thrown from the boat.
The evidence stated in the opinion of the Court of Civil Appeals clearly shows the alleged conduct of Mr. Bailey in operating the boat was reasonably foreseeable by Boatland. The foreseeability of that deviation in the manufacturer’s intended use of the product is relevant to the basic question of whether the product was unreasonably dangerous when and as it was marketed. General Motors Corp. v. Hopkins, 548 S.W.2d 344 (Tex.1977).
The harmful effect of the submission of these issues cannot be more vividly displayed than by considering the emphasis *754placed on them by counsel for Boatland in his argument to the jury. I would affirm the judgment of the Court of Civil Appeals.
RAY, J., joins in this dissent.