The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
12-465
RALPH MAYES
VERSUS
WAUSAU UNDERWRITERS INS. CO., ET AL.
**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2009-1411
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE
**********
PHYLLIS M. KEATY
JUDGE
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Court composed of Oswald A. Decuir, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.
AFFIRMED.
William H. Goforth
Attorney at Law
Post Office Drawer 3563
Lafayette, Louisiana 70502-3563
(337) 237-5777
Counsel for Plaintiff/Appellant:
Ralph Mayes
Kraig Thomas Strenge
Attorney at Law
Post Office Box 52292
Lafayette, Louisiana 70502-2292
(337) 261-9722
Counsel for Defendants/Appellants:
Lafayette Insurance Company
Chabill’s Tire Service, LLC
Nan Maria Landry
Attorney at Law
303 West Vermilion Street, Suite 210
Lafayette, Louisiana 70501-6869
(337) 234-7000
Counsel for Defendants/Appellees:
Wausau Underwriters Insurance Company
Kentuckiana Foam, Inc.
Brenda L. Mistrot
Daigle Rayburn LLC
Post Office Box 3667
Lafayette, Louisiana 70502-3667
(337) 234-7000
Counsel for Defendants/Appellees:
Wausau Underwriters Insurance Company
Kentuckiana Foam, Inc.
Musa Rahman
Johnson, Stiltner & Rahman
2237 South Acadian Thruway, Suite 700
Baton Rouge, Louisiana 70898-0986
(225) 231-0756
Counsel for Defendant/Appellee:
Louisiana Workers’ Compensation Corporation
Robert Alexander Jarred
Attorney at Law
Post Office Box 53325
Lafayette, Louisiana 70505
(337) 269-0028
Counsel for Defendant/Appellee:
TG Metal Fabricating, Ltd.
KEATY, Judge.
Plaintiff appeals the trial court’s grant of summary judgment in favor of
Defendants dismissing all negligence claims against Defendants. Defendants
answer Plaintiff’s appeal. For the following reasons, we affirm.
Defendants appeal the trial court’s grant of summary judgment in favor of
Plaintiff dismissing all claims against an absentee co-Defendant. For the following
reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
On March 11, 2008, Ralph Mayes (Plaintiff) brought his truck to be serviced
at Chabill’s Tire Service, L.L.C. (Chabill’s) in Broussard, Louisiana. While
Plaintiff was waiting for his truck to be serviced, he sat down in a chair located in
Chabill’s waiting area. As he sat down, the chair collapsed, and he sustained
personal injury. Plaintiff was over 300 pounds at the time of the accident, and the
weight limit on the chair in question was 300 pounds. Plaintiff filed a Petition for
Damages for negligence against: Chabill’s and its insurer, Lafayette Insurance
Company;1 Kentuckiana Foam, Inc. (KFI) and its insurer, Wausau Underwriters
Insurance Company (Wausau); and TG Metal Fabricating, Ltd. (TG Metal) and its
insurer, ABC Insurance Company. KFI was sued in its capacity as the alleged
manufacturer of the chair; whereas, TG Metal was sued in its capacity as the
supplier of metal frames to KFI.
After filing suit, Plaintiff was advised that TG Metal was an insolvent
Canadian corporation. A motion to appoint counsel to represent the absentee co-
Defendant, TG Metal, was filed on November 24, 2009. An answer was filed by
appointed counsel on behalf of TG Metal on December 14, 2009. The Louisiana
1
For ease of discussion, we sometimes refer to these parties interchangeably as
“Chabill’s” or “Defendants.”
Workers’ Compensation Corporation (“LWCC”) filed a petition for intervention on
March 15, 2010. Thereafter, KFI filed an answer on May 6, 2010. The case was
set to be tried before a jury on November 7, 2011.
Plaintiff filed a motion for summary judgment on the issue of liability on
behalf of absentee co-Defendant, TG Metal, on September 12, 2011. Plaintiff
alleged that TG Metal was not liable as deposition testimony contained no
evidence establishing that the metal frame was designed by TG Metal. Rather,
Plaintiff alleged that TG Metal was merely a supplier and manufacturer of a
component part, i.e., metal frame, incorporated into KFI’s chairs. Chabill’s also
filed a motion for summary judgment on September 15, 2011. In its motion,
Chabill’s alleged the following: (1) any defects would have been hidden from
Chabill’s view if it had performed an inspection; (2) Chabill’s had no duty to
inspect its chairs under La.R.S. 9:2800.6; (3) Chabill’s had no knowledge (actual
or constructive) upon which to base liability; and (4) Chabill’s actions had not
created a hazard.
Both motions for summary judgment were heard and granted by the trial
court on October 20, 2011, thereby dismissing all remaining claims left in the
pending litigation. The trial court indicated at the hearing it was contacted by
counsel for KFI and Wausau, advising that they would not participate in the pre-
trial conference also scheduled for that day. A formal motion and order to dismiss
in favor of KFI and Wausau was signed by the trial court on March 9, 2012.
Formal judgments in conformity with the granting of both motions for summary
judgment were signed by the trial court on November 8, 2011. Plaintiff filed a
motion for new trial on November 21, 2011, which motion was denied on
February 7, 2012.
2
Chabill’s petitioned for a devolutive appeal on January 17, 2012. Plaintiff
also petitioned for a devolutive appeal on February 24, 2012. The two appeals
were consolidated by the trial court on March 20, 2012. On April 30, 2012,
Chabill’s filed an answer to Plaintiff’s appeal.
LAW
The standard for review of a motion for summary judgment is contained in
the case of Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, p. 7 (La.
2/29/00), 755 So.2d 226, 230-31:
Our review of a grant or denial of a motion for summary
judgment is de novo. Schroeder v. Board of Sup’rs of Louisiana State
University, 591 So.2d 342 (La.1991). A motion for summary
judgment will be granted “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to material fact, and that
the mover is entitled to judgment as a matter of law.” La. C.C.P. art
966(B).
The standard for granting a motion for summary judgment is now well
established. Louisiana Code of Civil Procedure Article 966(C)(2) sets forth the
movant’s burden of proof as follows:
The burden of proof remains with the movant. However, if the
movant will not bear the burden of proof at trial on the matter that is
before the court on the motion for summary judgment, the movant’s
burden on the motion does not require him to negate all essential
elements of the adverse party’s claim, action, or defense, but rather to
point out to the court that there is an absence of factual support for
one or more elements essential to the adverse party’s claim, action, or
defense. Thereafter, if the adverse party fails to produce factual
support sufficient to establish that he will be able to satisfy his
evidentiary burden of proof at trial, there is no genuine issue of
material fact.
The record as a whole should be considered for purposes of a motion for
summary judgment to determine that all material facts are not at issue. Taylor v.
Moseley, 97-42 (La.App. 3 Cir. 6/11/97), 698 So.2d 3. Facts are considered
material for purposes of summary judgment if their existence or nonexistence may
3
be essential to the cause of action under the applicable theory of law at issue.
Dinger v. Shea, 96-448 (La.App. 3 Cir. 12/11/96), 685 So.2d 485. Facts are also
considered material for purposes of a summary judgment if they determine the
outcome of the legal dispute. Ponthier v. Brown’s Mfg., Inc., 95-1606 (La.App. 3
Cir. 4/3/96), 671 So.2d 1253.
DISCUSSION
In this appeal, Plaintiff argues that summary judgment in favor of
Defendants was not appropriate as genuine issues of material fact exist regarding
the existence of a hidden defect located on the bottom of the chair at issue
(hereinafter “the accident chair”). Plaintiff contends that the accident chair and
other similar chairs (hereinafter “exemplar chairs”) which were located in the
Chabill’s waiting room contained defects which were not hidden. Since the defects
were not hidden, Plaintiff argues that Chabill’s owed a legal duty to its customers
to inspect the bottoms of their chairs for defects. Plaintiff also contends that
La.Civ.Code art. 2317.1 and the doctrine of res ipsa loquitur are applicable and
render Chabill’s liable for his injuries.
In opposition, Chabill’s argues that the evidence produced by both Plaintiff’s
and Defendants’ experts proves the existence of hidden defects in the accident
chair. Given the existence of the hidden defects and the evidence allegedly
establishing that the accident chair and exemplar chairs were otherwise stable,
Chabill’s contends that it did not owe a legal duty to its customers to inspect the
bottoms of their chairs for hidden defects. Chabill’s further opposes Plaintiff’s
argument regarding the applicability of La.Civ.Code art. 2317.1 and the
applicability of res ipsa loquitur.
Chabill’s also appeals the granting of summary judgment in favor of
Plaintiff. In its appeal, Chabill’s contends that after the trial court granted its
4
summary judgment, the only claims remaining in the case were those filed by
Plaintiff against absentee co-Defendant, TG Metal. Chabill’s contends the trial
court was advised that TG Metal was an insolvent Canadian corporation that would
not be making an appearance at the scheduled trial date. As such, Chabill’s alleges
that the filing of the summary judgment by Plaintiff was nothing more than a
tactical move on Plaintiff’s part to eliminate the third-party fault affirmative
defense that Chabill’s alleged due to the alleged fault of absentee co-Defendant,
TG Metal. Chabill’s contends the trial court granted Plaintiff’s summary judgment
for the sole purpose of getting the entire underlying case off of its jury docket after
being advised that Plaintiff was no longer attempting to prove fault on the part of a
co-Defendant which would not be appearing at trial. Alternatively and in the event
this court reverses summary judgment in favor of Chabill’s, it asks, by way of its
answer to Plaintiff’s appeal, that this court reverse summary judgment in favor of
Plaintiff in order to preserve Chabill’s third-party fault defense based upon the
alleged fault of the absentee co-Defendant, TG Metal.
Hidden Defect
The trial court granted Chabill’s motion for summary judgment based upon
its belief that Chabill’s did not have a duty to protect Plaintiff from a hidden defect
which existed in the accident chair. On appeal, Plaintiff alleges numerous
assignments of errors with respect to the trial court’s ruling. In summary, Plaintiff
contends that genuine issues of material fact exist with respect to the following: (1)
whether a hidden defect existed in the accident chair and (2) if the chair at issue
contained a hidden defect, whether Chabill’s owed a duty to its customers, such as
Plaintiff, to protect them from injuries resulting from hidden defects contained in
Chabill’s waiting room chairs.
5
Dr. Shelton’s Opinion
In his appeal, Plaintiff alleges that his expert, Thomas C. Shelton, Ph.D., P.E.
(Dr. Shelton), is of the opinion the defects in the accident chair could have been
seen by simple visual inspection. His opinion, according to Plaintiff, is based upon
the examination of an exemplar chair taken from Chabill’s premises which
contained clearly visible, i.e., not hidden, breaks in its welds. Plaintiff contends
the trial court accepted Chabill’s incorrect statement that both Plaintiff’s expert,
Dr. Shelton, and Chabill’s expert, Fred H. Vanderbrook, P.E. (Mr. Vanderbrook),
were in agreement that the weld defects were hidden and could not have been seen
by visual inspection. In essence, Plaintiff argues that although the defect may have
been hidden from the customer, the defect would not have been hidden from
Chabill’s had Chabill’s simply performed their alleged duty of visually inspecting
the bottoms of the chairs.
The record makes reference to two reports prepared by Dr. Shelton, dated
August 24, 2011, and November 18, 2011. As the hearing on the motions for
summary judgment was on October 20, 2011, only the August 24, 2011 report was
presented into evidence and considered by the trial court at the hearing. That
report contains the following opinion by Dr. Shelton with respect to the accident
chair:
Over time and under normal use, the design and construction of the
chair can result in the formation of a hidden defect in a critical joint in
the chair that does not result in stability issues that will put the end
user on notice of the defect and which can result in a sudden failure of
the chair.
(Emphasis added.) Accordingly, we infer that Dr. Shelton is referring to the
formation of a hidden defect, not an apparent defect, in the frame of the chair that
develops over time and under normal use. Dr. Shelton’s opinion does not indicate
6
that the defect in the chair could have been easily seen, under normal lighting, by
turning the chair over as argued by Plaintiff.
In another section of Dr. Shelton’s August 24, 2011 report regarding his
examination of an exemplar chair, which was obtained approximately two and a
half years post-accident, he stated:
Photographs illustrating the condition and appearance of the joint
between the seat and the right and left front legs of the chair are
included in Figures 15 and 16. The joint between the right front legs
was cracked and had separated from the leg. The presence of the
crack in the leg could be detected by a visual examination of the base
of the chair. Despite the presence of the cracks the chair did not
appear to be unstable. Thus, the user of the chair would not be put
on notice that one of the critical joints between the components of
the chair had failed.
(Emphasis added.) We find that this section does not indicate that this defect could
be easily seen, under normal lighting, by turning the chair over as claimed by
Plaintiff’s counsel, but instead confirms a crack was found upon examination by an
expert examining the base of the chair in his laboratory. It further confirms that
even after this defect developed in this chair as much as some two and a half years
after the accident herein, it still would not have, in Dr. Shelton’s expert opinion,
put Chabill’s on notice of its presence as the chair “did not appear to be unstable.”
Chabill’s expert, Mr. Vanderbrook, examined the accident chair along with
three other exemplar chairs located in Chabill’s waiting room and issued a report
dated November 16, 2009. Mr. Vanderbrook opined that the accident “chair
collapsed due to a failure of one of the chair welds.” Although Mr. Vanderbrook
did not consider it likely that “weld failure occurred due to fatigue, this could only
be determined by metallurgical examination.” Mr. Vanderbrook indicated that
“[t]here was no prior indication that this chair was defective or subject to failure.”
Mr. Vanderbrook opined that it was “unlikely that problems with this welded chair
could have been foretold without a metallurgical examination” as there lacked
7
“prior indication of unusual movement or instability.” Mr. Vanderbrook
concluded that the accident “chair failed due to a defect in the design and/or
construction and that the personnel at Chabill’s were unaware of any problems
prior to the failure of the chair.” Mr. Vanderbrook’s report is void of any opinion
that a defect could be seen upon visual inspection of the bottom of the chair.
In granting Chabill’s motion for summary judgment, the trial court stated the
following with respect to the existence of hidden defects:
I don’t think you are going to convince a jury or me that Chabill’s was
obligated in their annual inspection to look at welds and to see - - sure,
they ought to shake it maybe to see if that chair, something was wrong
with it or whatever. But certainly I don’t think you would require a
retailer to go up underneath a chair, to look at the chair to see what the
welds are like. . . .
. . . I think they do have some obligation to take a look at their chairs
and if the chairs are, you know, creaking or whatever else, they
probably have some obligation to do that. But I don’t know how
you’re going to prove with regards to this chair that they didn’t do that,
that there was something wrong with it that they should have known
about or they should have been on notice about.
In denying Plaintiff’s subsequent motion for new trial, the trial court referred to its
ruling granting Chabill’s motion for summary judgment and stated, in pertinent
part:
Well, I didn’t find that to be a defect that Chabill’s should have seen
or known about or whatever else. Yeah, I mean, I know you made me
aware that there were, in your expert’s mind, defects on that chair.
And what I said was I didn’t think, A, that made the chair unusable
and that was something Chabill’s should have seen or done or
whatever else.
Based upon the trial court’s reasons, it believed both experts’ testimonies
that the defective weld, which led to the accident in question, was located on the
bottom of the chair such that it was hidden from Chabill’s view. Since it was
hidden, the trial court concluded that Chabill’s did not have a duty to inspect for
8
hidden defects contained on the bottom of the accident chair absent any other
problems (i.e., squeaking, instability) with the accident chair.
The trial court’s ruling was correct given the above experts’ reports which
state that there was a hidden defect in the accident chair. The correctness of the
trial court’s conclusion of a hidden defect is strengthened by Mr. Vanderbrook’s
opinion that the accident chair lacked instability prior to the accident at issue, and
Dr. Shelton’s opinion that the second chair taken from Chabill’s did not appear to
be unstable. Thus, we conclude that there was no error in the trial court’s finding
that a hidden defect existed in the chair at issue.
Mr. Vanderbrook’s Opinion
The second alleged material factual issue involves the report of Chabill’s
expert, Mr. Vanderbrook, which Plaintiff contends was based upon the inspection
of three chairs with allegedly no connection to the original six purchased when the
store was opened. In his report, Mr. Vanderbrook observed the accident chair and
noted broken welds. He further examined “three other similar chairs still located
in the waiting room of Chabill’s.” The other three chairs “all appeared to be in
good condition, with no indication of . . . weld failure.” Based upon examination
of the accident chair and the three similar chairs, Mr. Vanderbrook concluded that
only the accident chair was defective. Plaintiff alleges that these three chairs could
not have been a part of the six original chairs as they contained ganging.2 Since
these three exemplar chairs allegedly had no connection to the original six chairs
contained in the waiting room, Plaintiff alleges that Mr. Vanderbrook’s opinion is
fatally flawed and inadvertently dishonest and should never have been accepted by
the trial court.
2
Ganging hardware connects two chairs together.
9
In support of his argument that the three chairs were not connected to the
original six chairs purchased by Chabill’s in 1999, Plaintiff provides
correspondence from Chabill’s counsel dated September 16, 2010, which
demonstrates that the broken weld on another exemplar chair was visible and that
the exemplar chair on the premises was “quite beat up” and had a failed weld that
Chabill’s counsel was able to see when he was at Chabill’s collecting the chairs.
We note that this letter was not presented to the trial court for consideration
until after the granting of Chabill’s motion for summary judgment when it was
submitted as an exhibit in support of Plaintiff’s request for a new trial. Any
information in that letter could not have qualified as newly discovered evidence,
since the letter’s date, September 16, 2010, reflects that it was sent to counsel for
Plaintiff over a year prior to the hearing on the motions for summary judgment
which took place on October 20, 2011.
Plaintiff’s assignment of error is without merit.
Misplaced Chairs
Plaintiff contends that three broken chairs were in use at Chabill’s premises.
According to the Plaintiff, it is unknown what became of the other three chairs
purchased in 1999. Chabill’s contends there is no testimony or evidence that there
were “three broken chairs” or that there are three other unaccounted for chairs.
A review of the record, including Dr. Shelton’s and Mr. Vanderbrook’s
reports, shows the existence of the chair that was involved in the accident herein
and a second chair obtained from the waiting room at Chabill’s and provided to
Dr. Shelton as an exemplar chair for testing. In his memorandum in opposition to
summary judgment filed in the trial court, Plaintiff acknowledged that Chabill’s
purchased “6 identical Model 421 stackable chairs and placed them in the waiting
area in its new Broussard store.” Considering the two chairs mentioned above,
10
along with the remaining four chairs referenced in counsel for Chabill’s letter,3 all
six chairs have been accounted for. Plaintiff’s assignment of error is without merit.
Legal Duty
Plaintiff alleges that a legal duty exists for a merchant to provide adequate
seating for its customers. In support of his argument, Plaintiff cites Saulny v.
Tricou House, 02-1424 (La.App. 4 Cir. 1/29/03), 839 So.2d 392, which held that a
merchant does owe such a duty to its patrons. The fourth circuit held: “Tricou is a
public restaurant, which serves a variety of people who are of various sizes and
weights. Tricou had a responsibility to provide seating capable of use by all of its
patrons.” Id. at 395. Relying on the fourth circuit’s holding in Tricou, Plaintiff
alleges that Chabill’s is a public repair auto shop and owes the same duty as a
public restaurant or other store.
Chabill’s contends that the trial court was correct in declining to consider
this attempt to create a res nova legal duty to be imposed on retail establishments
in Louisiana.
Our review of Tricou indicates that it is factually distinguishable from the
facts in the present case. In Tricou, the defendant restaurant chose to use cheap
plastic chairs because they were easy to clean, move, and store. Notably, there was
testimony in Tricou that the employees, managers, and owners had knowledge that
these plastic chairs would break and had to be replaced on a regular basis. Quoting
approvingly from the trial court, the fourth circuit specifically stated: “In the trial
court’s reasons for judgment, the trial court found despite Tricou’s knowledge of
the susceptibility of the chairs to defects and breakage, Tricou took no affirmative
steps to protect the public from possible harm.” Id. at 395. Unlike the instant
3
In his September 16, 2010 letter, Chabill’s counsel states, “I personally went to my
insured’s place of business to see how many additional KFI chairs are there, and there are four of
them.”
11
litigation wherein the deposition testimony and evidence establishes that Chabill’s
had no notice of a defect in the accident chair, the defendant restaurant in Tricou
had knowledge of an actual problem for which it failed to take any affirmative
steps to protect its customers. The trial court in the instant case did not err in
refusing to extend the duty owed by the restaurant to its customers in Tricou to
Chabill’s under these circumstances.
Constructive Knowledge of Defect & Creation of Defect
Plaintiff further argues that Chabill’s had a duty to discover apparent defects
under La.Civ.Code art. 2317.1, which provides, in pertinent part:
The owner or custodian of a thing is answerable for damage
occasioned by its ruin, vice, or defect, only upon a showing that he
knew or, in the exercise of reasonable care, should have known of the
ruin, vice, or defect which caused the damage, that the damage could
have been prevented by the exercise of reasonable care, and that he
failed to exercise such reasonable care.
Plaintiff contends that the affidavit of Dr. Shelton and the photograph of the
exemplar chair with broken welds demonstrate that these defects were apparent
thus requiring Chabill’s to use reasonable effort to discover them under
La.Civ.Code art. 2317.1. Plaintiff insists that Chabill’s created all of the
conditions which led up to Plaintiff’s injury such that Chabill’s should be charged
with actual knowledge of the limitation of the chairs.
On the other hand, Chabill’s alleges that this matter is governed by La.R.S.
9:2800.64 rather than La.Civ.Code art. 2317.1. Even if liability is governed under
4
Louisiana Revised Statutes 9:2800.6(B) (emphasis added), which defines the burden of
proof in claims against merchants, provides:
In a negligence claim brought against a merchant by a person lawfully on
the merchant's premises for damages as a result of an injury, death or loss
sustained because of a fall due to a condition existing in or on a merchant's
premises, the claimant shall have the burden of proving, in addition to all other
elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant
and that risk of harm was reasonably foreseeable.
12
La.Civ.Code art. 2317.1, which Chabill’s denies, then it insists that it was not
negligent under La.Civ.Code art. 2317.1.
A review of the record indicates that the Petition for Damages does not
specifically cite La.Civ.Code art. 2317.1 as the basis for liability against Chabill’s,
and counsel for Plaintiff acknowledged on the record that he considered this case
to be governed by general negligence principles. Nevertheless, in brief to this
court, counsel for Plaintiff now argues that La.Civ.Code art. 2317.1 should apply
to Chabill’s liability herein. Notably, in his opposition to Chabill’s motion for
summary judgment, Plaintiff stated that the “rule to be followed” is La.R.S.
9:2800.6. Based on the foregoing evidence, we find that La.R.S. 9:2800.6 rather
than La.Civ.Code art. 2317.1 governs liability herein.
Louisiana Revised Statutes 9:2800.6 provides that the plaintiff shall bear the
burden of proving that the merchant had actual or constructive knowledge of the
defective condition prior to the occurrence. Constructive notice is defined in
La.R.S. 9:2800.6(C) which provides, in pertinent part, as follows:
“Constructive notice” means the claimant has proven that the
condition existed for such a period of time that it would have been
discovered if the merchant had exercised reasonable care. The
presence of an employee of the merchant in the vicinity in which the
condition exists does not, alone, constitute constructive notice, unless
it is shown that the employee knew, or in the exercise of reasonable
care should have known, of the condition.
At the time of Chabill’s motion for summary judgment, Plaintiff’s own
expert was of the opinion that the accident chair contained a “hidden defect” which
did not “result in stability issues that will put the end user on notice.” Further,
(2) The merchant either created or had actual or constructive notice the
condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining
reasonable care, the absence of a written or verbal uniform cleanup or safety
procedure is insufficient alone, to prove failure to exercise reasonable care.
13
Chabill’s expert inspected and photographed the other three chairs in the waiting
area some fifteen months post-accident and could not find anything wrong with
them. Finally, according to deposition testimony of Timothy David and Michael
Gee, both Chabill’s employees, the accident chair was the first and only chair that
had ever failed. The foregoing evidence indicates that Chabill’s did not have any
notice of a problem as was the case in Tricou. Thus, even if Chabill’s had
performed an inspection of the chairs on an annual basis as suggested by Plaintiff,
there is no evidence that it could have discovered a defect in the welds of a chair
that Mr. Vanderbrook opined could not have been found in the absence of a
professional “metallurgical examination.”
Plaintiff’s argument that Chabill’s liability should be based upon
La.Civ.Code art. 2317.1 rather than La.R.S. 9:2800.6 is without merit. Likewise,
Plaintiff’s argument that Chabill’s should have had actual or constructive notice
and/or knowledge of the defect is also without merit.
Res Ipsa Loquitur
Plaintiff argues that res ipsa loquitur5 should apply and cites the Louisiana
Supreme Court’s decision of Pear v. LaBiche’s, Inc., 301 So.2d 336 (La.1974),
5
Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 660
(La.1989), citing Montgomery v. Opelousas General Hospital, 540 So.2d 312 (La.1989) provides:
The principle of res ipsa loquitur is a rule of circumstantial evidence that
infers negligence on the part of defendants because the facts of the case indicate
that the negligence of the defendant is the probable cause of the accident, in the
absence of other equally probable explanations offered by credible witnesses. The
doctrine allows an inference of negligence to arise from the common experience
of the factfinder that such accidents normally do not occur in the absence of
negligence.
Additionally, the doctrine does not dispense with the rule that negligence
must be proved. It simply gives the plaintiff the right to place on the scales,
“along with proof of the accident and enough of the attending circumstances to
invoke the rule, an inference of negligence” sufficient to shift the burden of proof.
The doctrine applies only when the facts of the controversy “suggest
negligence of the defendant, rather than some other factor, as the most plausible
explanation of the accident. Application of the principle is defeated if an inference
14
wherein the court found a merchant liable for failing to inspect and using a chair
longer than its design intended.
As we have held above, La.R.S. 9:2800.6(B) governs this matter. (See full
text of the article at footnote 4). Section 2800.6 was enacted by Acts 1988, No.
714, Section 1, and became effective upon the signature of the Governor which
occurred on July 18, 1988. As such, LaBiche’s was legislatively overruled by
Section 2800.6 which contains the mandatory language “shall” regarding the
burden of proof applicable herein. Based upon the evidence, including expert and
deposition testimony, and our reasoning stated above, Plaintiff cannot prove that
Chabill’s created or had actual or constructive notice of the hidden defect, i.e., the
broken weld, prior to the occurrence, which caused the damage.
Additionally, Plaintiff never attempted to assert the doctrine of res ipsa
loquitur in his pleadings or in opposition to Chabill’s motion for summary
judgment, but instead attempted to raise both the LaBiche’s decision and the
doctrine of res ipsa loquitur for the first time when asking for a new trial. Despite
the foregoing, we find that even if res ipsa loquitur did apply to this matter,
Chabill’s would still be entitled to summary judgment in its favor because Plaintiff
failed to prove that Chabill’s negligence, more probably than not, caused the
accident.
For the foregoing reasons, Plaintiff’s argument that res ipsa loquitur is
applicable is without merit.
Defendant’s Answer to Appeal
As discussed above, Chabill’s filed an answer to Plaintiff’s appeal in this
court contending that the motion for summary judgment filed by Plaintiff was
that the accident was due to a cause other than defendant’s negligence could be
drawn as reasonably as one that it was due to his negligence.” The doctrine does
not apply if direct evidence sufficiently explains the injury.
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merely a tactical move to eliminate the third-party fault affirmative defense that
Chabill’s alleged on part of absentee co-Defendant, TG Metal. Alternatively,
Chabill’s asked this court to reverse the trial court’s granting of the summary
judgment in favor of Plaintiff should this court reverse the trial court’s granting of
summary judgment in favor of Chabill’s. Despite our affirmation of the trial
court’s granting of summary judgment in favor of Chabill’s, we further affirm the
trial court’s granting of summary judgment in favor of Plaintiff dismissing TG
Metal.
Defendant’s Appeal
On appeal, Chabill’s alleges that the trial court erred in granting the motion
for summary judgment filed by Plaintiff in favor of absentee co-Defendant, TG
Metal. For the reasons set forth above, we affirm the trial court’s grant of
summary judgment in favor of Plaintiff.
DECREE
For the foregoing reasons, we affirm the trial court’s granting of summary
judgment in favor of Defendants, Chabill’s Tire Service, L.L.C., and Lafayette
Insurance Company. We further affirm the trial court’s grant of summary
judgment in favor of Plaintiff, Ralph Mayes, dismissing absentee co-Defendant,
TG Metal. Costs of this appeal are to be divided equally between the parties.
AFFIRMED.
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