There is a word the defense uses for a safeguard that exists, works, and was not on the truck. Voluntary. It is said as if it ended the conversation. In a Texas courtroom it starts one.
The word shows up in three places. The trailer maker’s engineer says a side guard is a voluntary option, and this customer did not order it. The carrier’s safety director says forward-collision braking is a voluntary technology, not a requirement, and the fleet has not adopted it. And the expert on the other side says the whole thing is a voluntary industry practice, which is a phrase built to make a jury hear optional and think excused. The Custom entry answered the sentence everybody does it this way: a whole trade may lag behind what care requires, and the trade does not set its own bar. Voluntary is the same principle from the other side. That sentence is nobody makes us do it, and the answer is the same: the absence of a rule is not the presence of care.
Start with what the word gives them, honestly. If no statute or regulation required the guard, its absence is not negligence per se; you do not get the shortcut that Negligence Per Se describes, where the legislature already wrote the standard of care and the jury only decides whether it was broken. You are in ordinary negligence against the carrier and in a products case against the manufacturer, and in both you carry the burden. Voluntary is a real fact. It is just not the fact they think it is.
Now what the word costs them, and this is the part to read cold. Texas gives a manufacturer a shield when its product complied with federal safety rules. The statute creates a rebuttable presumption that the maker is not liable if the design “complied with mandatory safety standards or regulations adopted and promulgated by the federal government” that “governed the product risk that allegedly caused harm.” Read the adjective. Mandatory. A voluntary practice is not a mandatory standard, and where there is no federal rule at all, as there is none for the side of a trailer, there is nothing to have complied with. The presumption never arises. The company that says voluntary to the jury has just explained why the statute’s best defense does not apply to it.
Then the burden you do carry. In a design case the claimant must prove a safer alternative design, and the statute defines one: a design that in reasonable probability “would have prevented or significantly reduced the risk” of the injury “without substantially impairing the product’s utility,” and that “was economically and technologically feasible at the time the product left the control of the manufacturer or seller by the application of existing or reasonably achievable scientific knowledge.” Look at what a voluntary safeguard is under that definition. It is the safer alternative design, already built, already priced, already on some other company’s trailers. Feasibility is the element the defense usually fights hardest, and the word voluntary concedes it. Nobody calls a thing voluntary unless it can be done.
The Texas Supreme Court has said how the rest of the balance works, and it said it in a trailer case. In Timpte v. Gish a driver fell from the top rail of a hopper trailer, and the court weighed the design by the risk-utility factors: the utility of the product against the gravity and likelihood of injury; the availability of a substitute that meets the same need without being unsafe or unreasonably expensive; the maker’s ability to remove the danger without seriously impairing usefulness or significantly raising cost; the user’s awareness of the danger; and the expectations of the ordinary consumer. The maker won that case, because the narrow rail did real work and the danger of standing on it was obvious. That is the honest half of this entry. Utility can win. A side guard adds weight and changes ground clearance, and the defense will say so. Your job is to bring the numbers that make the balance lopsided: the agency’s own count of eighty-nine deaths and 409 serious injuries a year under the sides of trailers, its statement that there are currently no federal requirements for side underride guards, the crash-test institute’s guards that stopped cars at forty miles an hour, and the price of the guard against the price of the trailer.
Against the carrier the arithmetic is older. Learned Hand wrote it twice. In the tugboat case, the one behind Custom, he said a calling “never may set its own tests, however persuasive be its usages.” Fifteen years later he wrote fault as a comparison: the burden of the precaution against the probability and gravity of the harm, the formula on his Masters page. A voluntary safeguard is a precaution with a known price. The company knew the price because it declined to pay it. So the question for the jury is not whether a rule required the guard. It is whether a reasonable company, knowing what this one knew, spends that much to prevent that.
Which is why the discovery in a voluntary case is about knowledge and choice. The manufacturer’s option sheet, because a guard offered as an option is an admission that it fits, works, and has a price. The fleet’s purchase records and specifications, because a company that ordered the guard on some trailers and not others has already told you it was feasible. The safety meetings, the trade-association bulletins, the salesman’s pitch for the technology the company turned down. The Guard entry ends with the company that could have bought the guard for a few thousand dollars a trailer; this entry is the law that lets a jury hear that sentence and act on it.
One word, then. Voluntary means a safeguard existed, worked, could be bought, and was not. The defense says it to close the door. Say it back to them slowly, and it opens.
The presumption for federally compliant products, and the word mandatory: Tex. Civ. Prac. & Rem. Code § 82.008. The safer-alternative-design requirement and its definition: § 82.005. The risk-utility factors, in a trailer case the manufacturer won: Timpte Industries, Inc. v. Gish, 286 S.W.3d 306 (Tex. 2009). The tugboat case: The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932); the formula: United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947). The side-guard figures: NHTSA’s advance notice of proposed rulemaking, 88 Fed. Reg. 24535 (Apr. 21, 2023) and the Insurance Institute for Highway Safety, June 13, 2023. On heavy-truck automatic emergency braking, still a proposal and not a rule as this is written: Land Line, July 9, 2026. The braking technology is mentioned as a category of equipment, not as a claim about any carrier. Nothing here describes any matter this office is handling. General information, not legal advice.
