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Click here for the full text of this decision FACTS:On June 30, 2003, the Wrights took their young son, Cade, to a snow cone stand in Groves. Brian Wright parked his truck to the left and slightly behind a 2001 Ford Expedition XLT. Brian Wright joined the snow cone line, carrying Cade in his arms, while Lisa Wright remained in the truck. After Brian received the first snow cone in his order, he placed Cade on the ground and gave him the snow cone. Cade then began to walk alone through the parking lot to his mother waiting in the truck. Brian signaled to Lisa that Cade was on his way to the family truck, but Lisa did not see the signal and did not realize Cade was walking toward her through the parking lot. Brian then turned back to pay for the snow cones once he saw Cade walk between the truck and the Expedition. The driver placed the Expedition in reverse, checked her rearview and side mirrors, and then took her foot off the brake pedal to begin backing out of her parking area without accelerating. The Expedition’s bumper knocked Cade to the ground, and the vehicle ran over him, killing him. Darren McCutcheon had purchased the Expedition from Energy Country Ford in Port Arthur in July 2001 as a new vehicle. Though he knew the reverse sensing system was available as an option on the Expedition, labeled as a “reverse/rear parking aide/assist or back-up alarm,” he chose not to have that particular option installed. On Jan. 8, 2004, the Wrights instituted this diversity action in the district court below against Ford, asserting products liability and negligence claims. On May 23, 2005, the district court granted in part Ford’s Dec. 29, 2004, motion for summary judgment, granting Ford judgment as a matter of law with regard to the Wrights’ claims for manufacturing and marketing defects based on a theory of strict products liability or negligence. The district court allowed the Wrights’ design defect claim to proceed to trial under both a strict products liability and a negligence theory. Before the case went to jury, the Wrights withdrew their negligence claim. The jury returned a verdict against the Wrights on their design-defect claim. HOLDING:Affirmed. The Wrights claim the district court erred in instructing the jury to rebuttably presume that the Ford Expedition was not defectively designed, pursuant to Texas Civil Practice & Remedies Code �82.008. Section 82.008 clearly provides for a rebuttable presumption if the product at issue � here, Ford’s 2001 XLT Expedition � was manufactured in compliance with federal regulations that governed the product risk that allegedly caused harm. FMVSS 111 addresses rearview mirror performance placement in order to protect the public from backing into deaths and injuries due to limited rearview vision. FMVSS 111 applies to the product risk asserted in this case. Under Texas law presumptions are generally treated as being of the so called Thayer variety, shifting only the burden of production of evidence, which disappear from the case once evidence is introduced sufficient to support a finding contrary to the presumed fact and which do not shift the burden of persuasion. However, other Texas presumptions � often referred to as Morgan presumptions � do not so disappear and do operate to shift the burden of persuasion. It is not “clear or obvious” that the presumption provided for by �82.008(a) and (b) is a Thayer-type, rather than a Morgan-type, presumption. Accordingly the Wrights’ contention, not properly preserved below, that the trial court erred by failing to treat the �82.008 presumption as a Thayer-type (rather than a Morgan-type) presumption does not present any plain error. Regarding the marketing defect claim, Ford presented evidence through the testimony of the McCutcheons that they would not have heeded any warning if presented. To survive summary judgment, the Wrights had to present evidence that the purchasers would have bought the reverse sensing system option if they had been warned � a burden the Wrights did not satisfy here. The 5th Circuit affirms the district court’s grant of summary judgment to Ford on this claim. OPINION:Garwood, J.; Garwood, Barksdale and Garza, JJ.

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