Kennedy v. Browning Arms Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MICHAEL KENNEDY CIVIL ACTION

VERSUS NO. 20-3286

BROWNING ARMS COMPANY SECTION “R” (1)

ORDER AND REASONS

Before the Court is defendant Browning Arms Company’s motion for

partial dismissal under Federal Rule of Civil Procedure 12(b)(6).1 In a

response, plaintiff Michael Kennedy indicates that he does not oppose the

motion.2 For the following reasons, the Court grants the motion.

I. BACKGROUND

This case arises from the allegedly defective design of Browning’s x-

bolt bolt action rifles. Plaintiff alleges that he purchased a .308 caliber

Browning x-bolt bolt action rifle, and a .2506 caliber x-bolt bolt action rifle.3

1 R. Doc. 12.

2 R. Doc. 14.

3 R. Doc. 1-1 at 1, ¶¶ 1-2.

He alleges that the two rifles lack distinctive markings, and that they have a

nearly identical appearance.4

According to plaintiff’s complaint, on November 14, 2019, plaintiff

brought both of his Browning rifles to a rifle range.5 Plaintiff states that he

placed a .308 caliber cartridge into his .2506 caliber rifle.6 When he fired

the rifle, it allegedly exploded, injuring his right eye.7 Kennedy states that he

has lost all vision in his right eye as a result of the accident.8

Plaintiff filed suit in state court on November 4, 2020. He asserts

causes of action for design defect and inadequate warning under the

Louisiana Products Liability Act (“LPLA”), La. Rev. Stat. § 9:2800.51, et seq.

Plaintiff also asserts a claim for negligence. On December 2, 2020, Browning

removed to federal court, contending that the requirements for diversity

jurisdiction are met.9 Now, Browning moves to dismiss plaintiff’s negligence

claim.10 The Court considers the motion below.

4 Id. at ¶¶ 3-4.

5 Id. at ¶¶ 6-7.

6 Id. at ¶ 8.

7 Id. at ¶ 9.

8 Id. at ¶ 12.

9 R. Doc. 1 at 3-5.

10 R. Doc. 12.

II. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, plaintiff must plead

enough facts to “state a claim to relief that is plausible on its face.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 547 (2007)). A claim is facially plausible “when the plaintiff

pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. at 678. The Court

must accept all well-pleaded facts as true and must draw all reasonable

inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d

228, 239, 244 (5th Cir. 2009). But the Court is not bound to accept as true

legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.

On a Rule 12(b)(6) motion, the Court must limit its review to the

contents of the pleadings, including attachments. Brand Coupon Network,

L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014). The Court

may also consider documents attached to a motion to dismiss or an

opposition to that motion when the documents are referred to in the

pleadings and are central to a plaintiff's claims. Id. “In addition to facts

alleged in the pleadings, however, the district court ‘may also consider

matters of which [it] may take judicial notice.’” Hall v. Hodgkins, 305 F.

App'x 224, 227 (5th Cir. 2008) (citing Lovelace v. Software Spectrum, Inc.,

78 F.3d 1015, 1017-18 (5th Cir. 1996)).

III. DISCUSSION

In its motion, Browning contends that the Louisiana Product Liability

Act (“LPLA”), La. Rev. Stat. § 9:2800.51, et seq, precludes plaintiff’s

negligence claim. In his response, plaintiff states that he does not object to

dismissal of the negligence claim now that defendant has admitted it was the

manufacturer of the allegedly defective product.

The LPLA provides that a manufacturer “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 or another person

or entity.” La. Rev. Stat. § 9:2800.54(A). A product is “unreasonably

dangerous” within the meaning of the statute “if and only if” it is

unreasonably dangerous (1) in construction or composition, (2) in design, (3)

because of inadequate warning, or (4) because of nonconformity to an

express warranty. Id. at 9:2800.54(B)(1)-(4). Thus, the LPLA limits

plaintiffs to four theories of recovery: construction or composition defect,

design defect, inadequate warning, and breach of express warranty.

The LPLA also expressly states that it provides for “the exclusive

theories of liability for manufacturers for damage caused by their products.”

Id. at § 2800.52 (emphasis added); see also Brown v. R.J. Reynolds Tobacco

Co., 52 F.3d 524, 526 (5th Cir. 1995) (noting that the LPLA’s remedies are

“exclusive”). Thus, the Fifth Circuit has held that “for causes of action arising

after the effective date of the LPLA,11 negligence, strict liability, and breach

of express warranty are not available as theories of recovery against a

manufacturer, independent from the LPLA.” Stahl v. Novartis Pharms.

Corp., 283 F.3d 254, 261 (5th Cir. 2002). Numerous courts applying

Louisiana law have thus concluded that a plaintiff’s negligence claim against

a manufacturer is barred by the LPLA. See Bezet v. Smith & Wesson Corp.,

No. 08-685, 2009 WL 632080, at *1 (M.D. La. Mar. 11, 2009) (“[P]laintiff

may not assert an independent claim of negligence against [defendant] even

though the failure to warn under the LPLA is predicated on principles of

negligence.”); Jefferson v. Lead Indus. Ass'n, Inc., 930 F. Supp. 241, 245

(E.D. La. 1996), aff'd, 106 F.3d 1245 (5th Cir. 1997) (“[N]either negligence,

strict liability, nor breach of express warranty is any longer viable as an

independent theory of recovery against a manufacturer.”); Lavergne v. Am.'s

11 The LPLA became effective on September 1, 1988. 1988 La. Acts No.

64.

Pizza Co., LLC, 838 So. 2d 845, 848 (La. App. 3 Cir. 2003) (“[T]he LPLA's

exclusivity provision eliminates a general negligence cause of action for

damages caused by a product... .” (emphasis omitted)).

The Court finds that the LPLA provides plaintiffs exclusive theories of

recovery against Browning, the manufacturer of the allegedly defective

product. Thus, the LPLA precludes plaintiffs negligence claim. The Court

grants defendant’s motion. Plaintiffs negligence claim is dismissed.

IV. CONCLUSION

The Court GRANTS defendant’s motion for partial dismissal.

Plaintiffs negligence claim is DISMISSED.

New Orleans, Louisiana, this__2nd_ day of June, 2021.

_dernk Veven

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE