noting that the LPLA’s remedies are “exclusive”
How later courts described this case
- noting that the LPLA’s remedies are “exclusive”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAWSON VALLEE CIVIL ACTION
VERSUS NO. 20-1571
CROWN EQUIPMENT CORP. OF SECTION “R” (4)
OHIO, ET AL.
ORDER AND REASONS
Before the Court is defendant Crown Equipment Corporation’s
(“Crown”) motion for summary judgment on reasonably anticipated use.1
Plaintiff Dawson Vallee opposes the motion.2 Because material facts remain
in dispute, the Court denies Crown’s motion.
I. BACKGROUND
This case arises out of a forklift accident in Harahan, Louisiana.3 On
May 3, 2019, plaintiff Dawson Vallee was operating a forklift designed and
manufactured by defendant Crown. Plaintiff testified that the joystick on the
forklift stopped responding, and he lost control of the machinery.4 Plaintiff
1 R. Doc. 110.
2 R. Doc. 141.
3 R. Doc. 1-2 ¶ II.
4 R. Doc. 141-2 at 63 (Deposition of Dawson Vallee at 63:24-25).
also testified that his attempts to brake the forklift failed, and that the forklift
“jerked [him] around,”5 and his left leg “got kicked out to the outside” of the
machine.6 The forklift collided with a pole, and plaintiff’s left leg was crushed
between the pole and the forklift.7 As a result of the accident, plaintiff
underwent a below-the-knee amputation of his left leg.8
On May 1, 2020, plaintiff filed suit against Crown9 in Louisiana state
court, alleging negligence, and defective design and manufacture of the
forklift.10 On May 29, 2020, Crown removed the case to federal court,
contending that the diversity requirements of 28 U.S.C. § 1332 were
satisfied.11
On October 20, 2021, Crown moved for summary judgment on the
issue of reasonably anticipated use.12 Crown asserts that plaintiff
contravened the mandates of his job training and Crown’s express product
warnings by (i) failing to maintain control over the forklift, and (ii)
5 Id. at 64 (Deposition of Dawson Vallee at 64:7-8).
6 Id. at 73 (Deposition of Dawson Vallee at 73:13-14).
7 Id. at 64 (Deposition of Dawson Vallee at 64:9-11).
8 R. Doc. 141 at 1.
9 Plaintiff also sued individual employee-defendants George Bordelon
and Adam Giroir, but plaintiff’s claims against both Bordelon and
Giroir have been dismissed. R. Docs. 15 & 32. Only Crown remains as
a defendant.
10 R. Doc. 1-2 ¶ III.
11 R. Doc. 1 at 1.
12 R. Doc. 110.
“allow[ing] his left foot to leave the confines of the operator compartment.”13
Defendant contends that these acts by plaintiff were not “reasonably
anticipated use[s]” of the forklift, and that plaintiff is therefore unable to
meet his burden under the Louisiana Products Liability Act.14 Plaintiff
opposes the motion, contending that material issues of fact preclude
summary judgment on reasonably anticipated use.15
The Court considers the parties’ arguments below.
II. LEGAL STANDARD
Summary judgment is warranted when “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a
dispute to any material fact exists, [the Court] consider[s] all of the evidence
in the record but refrain[s] from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness
Ins., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are
13 R. Doc. 110-1 at 14-20.
14 Id. at 19-20.
15 R. Doc. 141.
drawn in favor of the nonmoving party, but “unsupported allegations or
affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’
are insufficient to either support or defeat a motion for summary judgment.”
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting
10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine dispute
of fact exists if the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,
481 (5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the
burden of proof at trial, the moving party “must come forward with evidence
which would ‘entitle it to a directed verdict if the evidence went
uncontroverted at trial.’” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,
1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948,
951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by
either countering with evidence sufficient to demonstrate the “existence of a
genuine dispute of material fact,” or by “showing that the moving party’s
evidence is so sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
pointing out that the evidence in the record is insufficient with respect to an
essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at
325. The burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a genuine issue for
resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry
of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322)).
III. DISCUSSION
The Louisiana Products Liability Act (“LPLA”) provides for “the
exclusive theories of liability for manufacturers for damage caused by their
products.” La. Rev. Stat. § 2800.52; 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”). The elements of a products-liability claim under
the LPLA are “(1) 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.” Jack v.
Alberto-Culver USA, Inc., 949 So. 2d 1256, 1258 (La. 2007) (citing La. Rev.
Stat. § 9:280054(A)). As the Fifth Circuit has explained, “[i]f a plaintiff’s
damages [do] not arise from a reasonably anticipated use of the product,
then the ‘unreasonably dangerous’ question need not be reached.” Kampen
v. Am. Isuzu Motors, Inc., 157 F.3d 306, 309 (5th Cir. 1998). “[I]f a
manufacturer does not reasonably anticipate a plaintiff’s use[,] then he owes
no duty to that consumer, and is not responsible for any damages caused by
misuse.” Broussard v. Procter & Gamble Co., 463 F. Supp. 2d. 596, 605
(W.D. La. 2006) (citing Kampen, 157 F.3d at 316).
Here, Crown contends that plaintiff’s injuries did not arise out of a
reasonably anticipated use of the product. The LPLA defines “reasonably
anticipated use” as “a use or handling of a product that the product’s
manufacturer should reasonably expect of an ordinary person in the same or
similar circumstances.” La. Rev. Stat. § 9.2800.53(7). The relevant inquiry
is “what uses of its product the manufacturer [objectively] should have
reasonably expected at the time of manufacture.” Kampen, 157 F.3d at 309.
Whether plaintiff’s damages arose from a reasonably anticipated use is a
question of fact. Thibodeaux v. Wellmate, 190 F. Supp. 3d 566, 571 (E.D. La.
2016) (Morgan, J).
Defendant submits two arguments in support of its contention that
plaintiff’s injuries did not arise out of a reasonably anticipated use of the
forklift. The Court addresses them each in turn.
First, defendant argues that plaintiff’s failure to maintain full control
over the forklift was not a reasonably anticipated use.16 Specifically,
defendant asserts that plaintiff did not drive his forklift cautiously and at a
speed allowing him to stop the lift truck safely, and that he “failed to stay
alert so that he would not run into any objects.”17 Defendant further argues
that there is no evidence indicating that anything “impaired [plaintiff]’s
ability to control the acceleration, braking, or steering of the lift truck.”18
Defendant asserts that, therefore, plaintiff contravened his training and the
forklift’s product warnings that instruct operators to “drive cautiously,” “be
16 R. Doc. 110-1 at 16-17.
17 Id. at 17.
18 Id.
alert,” “[d]rive at a speed that allows you to stop safely,” and to “[k]eep your
truck under control at all times.”19
But significant issues of material fact remain as to whether plaintiff was
operating the forklift in violation of any safety warnings, or otherwise using
the forklift in an unsafe way. While a post-accident inspection by plaintiff’s
employer revealed no mechanical issues with the forklift,20 plaintiff testified
at his deposition that his accident occurred because the forklift “los[t]
mechanical function”21 when the joystick stopped responding.22 And George
Bordelon, a Crown technician, testified that a Crown forklift’s joystick can
stop working for many reasons. Bordelon explained at his deposition that “it
could have been anything as minor as a piece of dirt or broken wire got inside
the system and made the joy stick not want to do anything.”23 Furthermore,
plaintiff testified that he did not believe that he was driving too fast,24 and
that he traveled only four or five feet before the machine’s failure prompted
him to attempt to stop the machine.25 Based on this record, reasonable
jurors could find that, at the time of plaintiff’s accident, he was engaged in a
19 See id. at 6-7.
20 R. Doc. 110-5 at 3-5 (Deposition of Donald Raziano at 21:12-23:8).
21 R. Doc. 141-2 at 63 (Deposition of Dawson Vallee at 63:24-25).
22 Id. (Deposition of Dawson Vallee at 63:1).
23 R. Doc. 141-3 at 15 (Deposition of George Bordelon at 15:20-23).
24 R. Doc. 141-2 at 81 (Deposition of Dawson Vallee at 81:16-18).
25 Id. at 67 (Deposition of Dawson Vallee at 67:6-8).
reasonably anticipated use of the forklift. Accordingly, defendant is not
entitled to summary judgment on reasonably anticipated use as to plaintiff’s
loss of control of the forklift.
Second, defendant contends that plaintiff’s placement of his foot
outside the operator compartment does not constitute a reasonably
anticipated use of the forklift. Defendant contends that, because plaintiff’s
foot was crushed outside of the forklift, he must have “allow[ed]” his foot to
exit the machine, in violation of the product’s safety warnings.26 This
argument lacks merit. Plaintiff has submitted evidence indicating that his
left leg was involuntarily thrown from the operator compartment during the
accident. Specifically, plaintiff testified at his deposition that, during the
accident, the forklift “jerked” him around,27 and that his “leg got kicked out
to the outside” of the machine.28 Plaintiff also submits scientific evidence
indicating that human balance reflexes compelled him to move his foot
leftward when he attempted to brake by lifting his foot off the pedal.29 The
evidence therefore suggests that plaintiff’s foot movement was not a use of
the product at all, and was instead a part of the resulting accident. Put
26 R. Doc. 110-1 at 17-19.
27 R. Doc. 141-2 at 64 (Deposition of Dawson Vallee at 64:7-8).
28 Id. at 73 (Deposition of Dawson Vallee at 73:13-14).
29 See R. Doc. 112-10 at 5 (Report of Dr. John J. Jeka).
differently, when plaintiff’s emergency began, causing his foot to
involuntarily exit the compartment, his “use” of the forklift had ended.
This situation is different from the Fifth Circuit’s decision in Kampen
v. American Isuzu Motors, Inc., 157 F.3d 306 (5th Cir. 1998). There, the
plaintiff jacked up a car with the tire jack at issue, and then chose to place his
body beneath the car, relying on the jack to hold the car above his body as he
worked. The jack collapsed, and the car fell on him. In determining the
scope of plaintiff’s “use” of the jack, the Fifth Circuit held that when plaintiff
“placed himself beneath the car, he was still using the jack” because “he was
relying on the jack to hold the car above his body.” Id. at 311 (emphasis in
original)). Affirming the district court’s grant of summary judgment to the
jack manufacturer, the court held that plaintiff’s use, in violation of product
warnings, was not reasonably anticipated and thus precluded his recovery.
Id. at 318. In contrast, here, the evidence indicates that the accident was
already in progress when plaintiff contends that his foot was involuntarily
thrust outside the machine. Unlike in Kampen, the record here suggests that
the placement of plaintiff’s foot was not a voluntary “use” of the product, and
was instead part of the accident.
Indeed, defendant itself argues that “[p]laintiff’s action of sticking his
foot outside of the operator compartment should not be considered a ‘use’ of
the product under the LPLA.”30 As defendant explains, unlike the injured
user-plaintiff in Kampen, plaintiff here was not “relying” on the forklift when
he placed his foot outside the compartment.31 But, far from supporting
defendant’s claim that plaintiff was therefore not engaged in a reasonably
anticipated use of the product, this contention in fact undermines
defendant’s motion for summary judgment. If plaintiff’s foot placement was
not part of his “use” of the forklift, then it cannot constitute an
“[un]anticipated use” of that forklift. By defendant’s own admission, then,
plaintiff may be able to meet his burden on reasonably anticipated use.
In sum, as to the issue of his foot placement, plaintiff here is not like
other injured litigants whose intentional misuses of products precluded
recovery. He is not like the child who “climbed onto the moving pendulum
of an oil well pump and attempted to ‘ride’ the pendulum,” Payne v.
Gardner, 56 So. 3d 229, 230 (La. 2011), nor the teenagers who
“intentional[ly] inhal[ed] . . . the contents of a can of air brush propellant to
produce an intoxicating effect while operating a motor vehicle,” Butz v.
Lynch, 762 So. 2d 1214 (La. App. 1 Cir. 2000), or even the man in Kampen
who placed his head and shoulders beneath the front of the jacked-up car, in
30 R. Doc. 110-1 at 15.
31 Id. at 16.
violation of manufacturer warnings, Kampen, 157 F.3d at 311. Unlike those
litigants, plaintiff here has submitted ample evidence indicating that his
asserted “use” was an involuntary response to an emergency. Reasonable
jurors could therefore conclude that the placement of plaintiffs foot
constitutes part of the accident itself, and was not a “use” at all.
Because certain facts could establish that plaintiff's accident arose out
of a “reasonably anticipated use” of the forklift, defendant Crown is not
entitled to summary judgment on this issue.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES Crown’s motion for
summary judgment on reasonably anticipated use.
New Orleans, Louisiana, this 5th _ day of January, 2022.
bern Varvee_
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
12