GARWOOD, Circuit Judge:
In this Texas diversity case Debra Davidson ("Davidson"), plaintiff-appellant, appeals from a summary judgment rendered against her in her products liability action against Stanadyne, Inc. ("Stanadyne"), defendant-appellee. She claims damages from Stanadyne for severe burns she suffered in her bathtub and shower allegedly caused by the defective design of Stanadyne's single-control bath and shower faucet. We reverse the granting of summary judgment and remand the case to the district court for further proceedings.
The primary facts of this case are for the most part not in dispute. The shower in Davidson's apartment was equipped with a single-control bath/shower faucet designed and manufactured by Stanadyne. Faucets of its design have been used widely in this country and abroad.
On July 9, 1980 Davidson stepped into the bathtub and shower in her apartment and adjusted the volume and water temperature to her satisfaction with the control knob while letting the water run through the bathtub faucet. She then pulled up the small valve used to divert the water to the shower head. At this point she was standing with her back to the water and had begun to shampoo her hair when she apparently suffered an epileptic seizure. Davidson's next recollection is awakening one to two hours later in a tub full of very hot water. In her deposition she testified that "I think while I was having the seizure with my body thrashing around that the water
Davidson brought suit against Stanadyne in district court alleging that its faucet was "defective and unreasonably dangerous in that it was designed and constructed in such a way as to allow inadvertent flow of full hot water." She also alleged that Stanadyne had been negligent and had breached an implied warranty that the faucet was "safe and suitable for the purpose of controlling water flow and temperature in a residential shower." She sought a total of $1,877,000 in damages.
Stanadyne moved for summary judgment on the grounds that there was no genuine issue as to any material fact and that there was no design defect, breach of warranty or negligence on its part as a matter of law. It also urged that the affirmative defense of misuse was present as a matter of law.
In response Davidson argued that the question of whether the single-control faucet was unreasonably dangerous was one for the jury. She alleged that "[a] rotation of less than seventy degrees to the faucet control will completely cut off all flow of cold water and allow full flow of hot water. Therefore a glancing blow to the control can easily allow a flow of hot water."
The district court granted Stanadyne's motion for summary judgment.
The principles governing recovery in a products liability case alleging defective design
As we recently pointed out in Carter v. Massey-Ferguson, Inc., 716 F.2d 344 at 347 (5th Cir.1983), since Turner v. General Motors Corp., 584 S.W.2d 844 (Tex.1979), in strict liability products cases Texas has followed the rule that the ultimate test for defective design is whether the product is "unreasonably" dangerous in the sense that "the danger-in-fact associated with the use of the product outweighs the utility of the product." Although ordinary consumer expectations may be relevant in making this determination, such expectations do not of themselves constitute the ultimate standard. Carter v. Massey-Ferguson, Inc., 716 F.2d 344 at 347. We note that Texas has held that a relatively obvious and/or common lack of a simple safety device in an ordinary product may be found by the jury to constitute a design defect. See, e.g., Gonzales v. Caterpillar Tractor Co., 571 S.W.2d 867 (Tex.1978) (absence of adhesive or antiskid material on tractor step); Rourke v. Garza, 530 S.W.2d 794 (Tex.1976) (absence of cleats on scaffold boards). See also Bailey v. Boatland of Houston, Inc., 585 S.W.2d 805 (Tex.Civ.App. — Houston [1st Dist.] 1979), rev'd on other grounds, 609 S.W.2d 743 (Tex.1980) (absence of "kill switch" to cut off outboard motor when operator falls out of boat). Expert testimony is admissible on the issue of whether the particular design is "unreasonably dangerous." Gonzales, 571 S.W.2d at 871; Rourke, 530 S.W.2d at 799. Merely because the need for the safety device would not arise when the product was used in its intended manner, does not necessarily mean that the absence of the safety device cannot render the product unreasonably dangerous. Foster v. Ford Motor Co., 616 F.2d 1304, 1310 (5th Cir.1980).
Rule 56(c) of the Federal Rules of Civil Procedure states that a moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." As this Court has noted many times, however, the use of summary judgment is rarely appropriate in negligence or products liability cases, even where the material facts are not disputed.
One rationale for this rule, as applied to negligence cases, was stated in Gauk v. Meleski, 346 F.2d 433 (5th Cir.1965), as follows:
This reasoning is equally applicable in the case before us because in a Texas products liability action for defective design the trier of fact is called upon to decide whether a product's design is "unreasonably dangerous" in light of several factors. As the Texas Supreme Court stated in Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 745-46 (Tex.1980), "Whether a product was defectively designed requires a balancing by the jury of its utility against the likelihood of and gravity of injury from its use. The jury may consider many factors before deciding whether a product's usefulness or desirability are outweighed by its risks. Their finding on defectiveness may be influenced by evidence of a safer design that would have prevented the injury." (Emphasis added.)
As this is not such a case, we must vacate the district court's judgment and remand. Although the historical, primary facts of this case do not appear to be in dispute, neither have they been developed to any significant degree. As stated in Palmer v. Chamberlin, 191 F.2d 532 (5th Cir.1951):
See also N.L.R.B. v. Smith Industries, Inc., 403 F.2d 889, 893 (5th Cir.1968); Virgil v. Time, Inc., 527 F.2d 1122, 1131 n. 15 (9th Cir.1975), cert. denied, 425 U.S. 998, 96 S.Ct. 2215, 48 L.Ed.2d 823 (1976); Robert Johnson Grain Co. v. Chemical Interchange Co., 541 F.2d 207, 211 (8th Cir.1976); Jecies v. Matsuda, 503 F.Supp. 580, 583 (S.D.N.Y.1980); 10A Wright, § 2725 at 85 and § 2728 at 191.
Moreover, as 10A Wright, § 2727 at 121-25 observes:
As noted above, to show that a product is defective and unreasonably dangerous under Texas law a plaintiff must show that "the likelihood and gravity of injury from its use exceeds its utility." Kindred v. Con/Chem, Inc., 644 S.W.2d at 830. Several factors are relevant to this determination. "[T]he economic and scientific feasibility of alternative designs, the usefulness and desirability of the product, [and] the ability to eliminate the risk without seriously [de]creasing the product's usefulness or [increasing its] cost." Id. at 830-31. Davidson has offered evidence of the feasibility of an alternative design which would have prevented the injury, and Stanadyne has offered evidence on the usefulness and desirability of its product. The record is virtually silent, however, on the issue of the "likelihood and gravity of injury"
The function of a motion for summary judgment is not to force a party to try the entire case to the court. As Professors Wright, Miller, and Kane note, "in that event Rule 56 no longer serves the purpose of saving the court's and litigants' time." Section 2728 at 191-92. There is nothing in the summary judgment record which is inconsistent with Davidson's being able to produce additional evidence, not contradictory to that before the district court, in support of her claim,
REVERSED AND REMANDED.
Even assuming that misuse could be a complete defense (but see Duncan v. Cessna Aircraft Co., 26 Tex.S.Ct.J. 507, (Tex. July 16, 1983)), we further hold that the record does not establish, as a matter of law, any such misuse.