Wright v. Revco Industries Inc.
Wright v. Revco Industries Inc.
Opinion of the Court
MEMORANDUM RULING
Before the court is “Reveo Industries, Inc.’s Motion for Summary Judgment” (R. # 98) wherein defendant, Reveo, seeks to be dismissed from the instant lawsuit. Rev-eo maintains that plaintiff lacks sufficient evidence to establish any claim under the Louisiana Products Liability Act.
FACTUAL STATEMENT
On February 24, 2012, Plaintiff, Dustin Wright, was employed by Wyatt Field Services and working inside a tower at the ConocoPhillips plant with fellow co-worker, Derrick Johnson. Johnson was using an arc gouger device, and Wright was working as his assistant. The workers had laid a fire blanket on the ground to extinguish any molten steel that fell. At some point a piece of molten steel fell on the fire blanket; Johnson used the jet of air from the arc gouger to extinguish the steel and inadvertently blew the fire blanket and molten steel onto plaintiffs leg causing Mr. Wright to suffer severe burns.
Wright alleges that at the time of the accident, he was wearing fire-resistant coveralls known as “Black Stallion” manufactured by defendant, Reveo. While the 100% cotton coveralls are fire resistant, they are not fireproof. These coveralls had a tag attached to them that warns that their “flame resistant coating” lasts only through 50 laundering cycles.
Reveo submits plaintiffs expert report of industrial hygienist, Richard L. Miller, who opined that plaintiffs injuries were the direct result of negligence by defendants, ConocoPhillips and Excel Para-lubes.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, when viewed in the light most favorable to the non-moving party, indicate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
LAW AND ANALYSIS
Under the LPLA, a manufacturer of a product “shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant ...”
(l)that the defendant is a manufacturer of the product; (2) that the claimant’s damage was proximately caused by a characteristic of the product; (3) that this characteristic made the product “unreasonably dangerous”; and (4) that the claimant’s damage arose from a reasonably anticipated use of the product by the claimant or someone else.15
Under the Act, a manufacturer can only be liable for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a
Reveo maintains that Mr. Wright has failed to present sufficient evidence to establish causation, reasonably anticipated use, or any unreasonably dangerous condition under any of the four theories set forth in the LPLA.
Reveo maintains that plaintiff has failed to provide any evidence that the Black Stallion coveralls possessed an unreason? ably dangerous condition that actually caused his injuries. As previously noted, plaintiffs expert opined that the injuries suffered by Mr. Wright were the direct result of the negligence committed by former defendants, ConocoPhillips and Excel Paralubes.
In his Statement of Contested Facts attached to plaintiffs opposition, Mr. Wright asserts that there is a genuine issue of material fact as to whether or not Derrick Johnson,, plaintiffs co-worker, blew air on plaintiff. The court finds that this is irrelevant as to whether the coveralls possessed an unreasonably dangerous condition and/or as to causation.
Causation
Reveo argues that the photograph, without expert testimony, does not prove causation, and therefore is not sufficient to defeat summary judgment.
Construction/composition or design defect
Reveo argues that to recover under the theory of a construction or design defect plaintiff must prove (1) that the subject coveralls materially deviated from Revco’s specifications or performance standards for the coveralls, or from identical Black Stallion coveralls; and (2) of a feasible alternative design that existed at the time the product left, Revco’s control which would have prevented Plaintiffs injury, and the risk avoided by the alternative
To recover under the LPLA, a product must be unreasonably dangerous in construction or composition.
Under the second theory, Mr. Wright must prove that the product is unreasonably dangerous in design
Mr. Wright has failed to present any evidence to establish that the coveralls were defective as to their construction, composition and/or design. Therefore, Mr. Wright cannot recover under these particular theories in the LPLA.
Inadequate warning
Mr. Wright further asserts that there is a genuine issue of material fact as to whether there was an adequate warning that the fire retardant clothing will catch on fire and completely burn, and if there was a failure to warn that multiple washings will create a fire hazard. Plaintiff relies on photographs of the coveralls which indicates that the coveralls caught on fire causing Mr. Wright’s injuries. Mr. Wright argues that the photographs reveal that the coveralls were not flame retardant.
A product is unreasonably dangerous because an adequate warning about a damage-causing characteristic of the product has not been provided.
Reveo maintains that Mr. Wright was a sophisticated user and therefore no warnings claim could stand.
The garment tag warned that the coveralls only retained their flame resistant coating for 50 laundering cycles.
Reveo notes that Mr. Wright’s opposition is silent on this issue. In its motion for summary judgment, Reveo stated that the fire-resistant coating on the coveralls was only effective up to 50 laundering cycles. Reveo informs the court that Mr. Wright has not presented evidence to show that the coveralls had not been washed enough times to lose the effect of the coating and therefore, Mr. Wright cannot establish that his use of the coveralls on the date of the accident was reasonably anticipated.
The court finds that there is no evidence to establish that Mr. Wright’s use of the coveralls was a reasonably anticipated use because there is no evidence as to how many times the coveralls had been laundered, and there is no dispute that the coveralls were an older pair worn by Mr. Wright as far back as early 2011 when he worked for USI.
Express warranty
The last theory that a plaintiff may establish is that a product is unreasonably dangerous when the product does not conform to an express warranty made by the manufacturer of the product.
CONCLUSION
Plaintiff has failed to present any evidence to establish causation which is fatal to his claims under the LPLA. We further find that plaintiff has failed to present evidence that his use of the coveralls was a reasonably anticipated use of the coveralls. Furthermore, Mr. Wright has not present
The Court determines that there is no just reason for delay and will hereby direct entry of final judgment under Rule 54(b) of the Federal Rules of Civil Procedure.
THUS DONE AND SIGNED in Alexandria, Louisiana on this 16th day of January, 2017.
. Defendant’s exhibit B, depo. of EMT, Rhett Kilmer, pp. 6, 10-12; depo. of Ross Westbrook, pp, 6 and 13, depo. of Jimmie Cole, pp. 7-8, 10, depo. of Tammie Wright, pp. 57-58.
. Defendant’s exhibit C.
, Defendant’s exhibit E, R. Miller Report.
. These defendants have been dismissed as employers and/or statutory employers. R. #47.
. Defendant’s exhibit A, pp. 114-116.
. Fed. R. Civ. P. 56(c).
. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
. Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999).
. Vera v. Tue, 73 F.3d 604, 607 (5th Cir. 1996).
. Anderson, 477 U.S. at 249, 106 S.Ct. 2505.
. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505.
. La. R.S. 9:2800.54(A).
. Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 261 (5th Cir. 2002).
. La. 9:2800.54(A).
. 9:2800.54(D): Wheat v. Pfizer. Inc., 31 F.3d 340, 342 (5th Cir. 1994).
. Masters v. Courtesy Ford Co., 758 So.2d 171, 192, judgment vacated on other grounds, 765 So.2d 1055 (La. 6/30/00).
. See Report of R. Miller, p. 7, defendant’s exhibit E.
. See Underwood v. General Motors, LLC, 2015 WL 5475610, at *3 (M.D. La. Sept. 17, 2015); see also Caboni v. General Motors Corp., 398 F.3d 357, 361 (5th Cir. 2005).
. United Fire Group v. Caterpillar, Inc., 2014 WL 4067756 (La.App. 1 Cir. 8/18/14), at *6.
. See Underwood, supra.
. La. R.S. § 9:2800.55; Morgan v. Gaylord Container Corp., 30 F.3d 586, 590 (5th Cir. 1994).
. La. R. S. § 9:2800.54(B).
. La. R.S. § 9:2800,55.
. Id.
. Jaeger v. Automotive Cas. Ins. Co., 682 So.2d 292, 296-97 (La. App. 4th Cir. 1996)(citing La. R. S. § 9:2800.56).
. Plaintiff’s opposition, R. #102-1, p. 4.
. Id., p. 5.
. La. R. S. § 9:2088.57(A).
. La. R. S. § 9:2800.57(B)(2).
. La. R. S. § 9:2800.57(B)(2).
. La. R. S. § 9.2800.54(A) and (D).
. Rayford v. Karl Storz Endoscopy Am. Inc., 2016 WL 4398513, at *3 (W.D. La. June 22, 2016) report and recommendation adopted, 2016 WL 4398542 (W.D. La. Aug. 17, 2016).
. La. R. S. § 9:2800.53(7).
. Matthews v. Remington Arms Co., 641 F.3d 635, 647 (5th Cir. 2011).
. Reveo exhibit D.
. Photograph of USI insignia on coveralls, attached as Revco’s exhibit G.
. Reveo exhibit A, Wright depo. p. 115-116,
. La. R. S. § 9:2800.58.
.Id.
Reference
- Full Case Name
- Dustin Blake WRIGHT v. REVCO INDUSTRIES INC
- Cited By
- 2 cases
- Status
- Published