Opinion

Gray v. Cannon

  • 1 La.App. 5 Cir. 757
  • 807 So. 2d 924
  • 2002 La. App. LEXIS 48
  • 2002 WL 54131
Court
Louisiana Court of Appeal
Filed
Jan 15, 2002
Status
Published
Author
Jjdaley
On the bench
Daley, Edwards, Jjdaley, McManus
Cited by
1 cases

burden of proving causation on plaintiff in failure to warn case

How later courts described this case

  • burden of proving causation on plaintiff in failure to warn case

Written by the judges who cited it.

The opinion

JjDALEY, J.,

CONCURS WITH REASONS:

I concur and agree with the majorities ruling, but do not adopt its reasons.

Defendant, The Kelly-Springfield Tire Company, filed a Motion for Summary Judgment asserting that there was no genuine issues of material fact and asserting that there did not exist any evidence that there was a defect in the design, manufacture, fabrication, and warnings regarding the tire manufactured by the defendant. Plaintiffs in their Memorandum and Opposition to the Summary Judgment suggest that there is a disputed issue of material fact, that being whether or not an adequate warning was given to plaintiffs concerning the danger of a tire blowing out if the tire contained a slow leak. Plaintiffs assert in their Memorandum in Opposition to the Motion for Summary Judgment that Kelly-Springfield Tire Company has provided no affidavits or other information concerning warnings, which it circulated pertaining to danger of blow out from a slow leak where the rim had been damaged prior to the installation of the tire. They argue that if at the time the product left its manufacturers control the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristics and its danger to users and handlers of the product, the product may be unreasonably dangerous under LSA-R.S. 9:2800.57(A).

L.The Summary Judgment against plaintiffs is affirmed because the plaintiffs failed to meet their burden to show the inadequacy of warnings. Plaintiffs have offered no affidavits or expert reports indicating that the warnings were inadequate. Under revised La. C.C.P. Article 966 defendant, Kelly Springfield Tire Company need only point out to the Court that there is an absence of factual support for one or more elements essential to plaintiffs’ claim. “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.” La. C.C.P. art. 966 C(2).

Plaintiffs have attempted on appeal to rely on a National Highway Traffic Safety *931 Research Survey, which purports to show that many tires on passenger vehicles are under-inflated and that a radial tire can lose much of its air pressure and still appear to be fully inflated. This information was not presented to the trial court in opposition to the Motion for Summary Judgment and so can not be considered on appeal.

The record as presented to the trial court supports the granting of Summary Judgment because plaintiffs provided no evidence that Kelly Springfield Tire Company’s product was defective nor any evidence that Kelly Springfield Tire Company failed to warn plaintiffs of some know defect.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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