UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-30544

RALPH KAMPEN; KATHERINE KAMPEN,

Plaintiffs - Appellants,

VERSUS

AMERICAN ISUZU MOTORS, INC.,

Defendant - Appellee.

Appeal from the United States District Court

For the Eastern District of Louisiana

September 30, 1998

Before POLITZ, Chief Judge, and KING, JOLLY, HIGGINBOTHAM, DAVIS,

JONES, SMITH , DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS,

BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.

JOHN M. DUHÉ, JR., Circuit Judge:

Ralph and Katherine Kampen brought this diversity action

against American Isuzu Motors (“Is uzu”) under the Louisiana

Products Liability Act of 1988, L A .R EV .S TAT .A NN

. §§ 9:2800.51-.59

(West 1991)(“LPLA” or “the Act”). The Kampens claimed that Mr.

Kampen (“Kampen”) was injured when an Isuzu factory-supplied tire

jack collapsed and the car it was supporting crashed down on

Kampen’s shoulders.

Isuzu moved for summary judgment on two elements of the2

Kam pens’ products liability claims. First, Isuzu asserted that

there was no evidence that the jack was unreasonably dangerous.

Second, Isuzu claimed that Kampen’s use of the jack was not a

“reasonably anticipated use.” The district court granted summary

judgment in Isuzu’s favor, finding that Kampen’s use of the jack

was not one that the manufacturer should have “reasonably

anticipated,” citing, inter alia , our decision in Lockart v. Kobe

Steel Ltd ., 989 F.2d 864, 867 (5th Cir. 1993).

A panel of this Court reversed the district court. S ee Kampen

v. American Isuzu Motors, Inc

., 119 F.3d 1193 (5th Cir. 1997)(“the

panel opinion”). The panel opinion held that Kampen’s “use” of the

jack was complete when he finished elevating the car; in the panel

majority’s view, Kampen’s getting under the car to inspect the

underside did not constitute a “use” of the jack. S ee Kampen

, 119

F .3d at 1198-99, and cf

. Kampen

, 119 F.3d at 1205 (Du hé, J.,

dissenting). Any negligence on Kampen’s part in placing his body

beneath the car, the panel reasoned, should be taken into account

by Louisiana’s system of comparative fault. See Kampen , 119 F.3d

at 1199.

Even assuming that Kampen ’s placing himself under the car

constituted a “use” of the jack, the panel was “unwilling to hold

that, as a matter of law, the manufacturer should not have

reasonably expected a user to place part of his or her body beneath

a jacked up car.” Id . The panel also found that the presence of

two warnings not to “get beneath the vehicle” (one included in the

owner’s manual, the other in the car’s spare-tire compartment) did1 There was als o a set of jacking instructions in the tire

storage compartment. Those instructions stated that “[t]he jack is

designed for use only when changing wheels,” and admonished the

user “[n]ever [to] get beneath the vehicle when it is supported

only by a jack.” The Kampens dispute that there was any evidence

of these warnings.

3 not, as a matter of law, make Kampen’s use one that should not have

been “reasonably anticipated.” S ee id

. at 1199-1201. The panel

therefore concluded that the summary judgment evidence “present[ed]

a question for the jury regarding whether Kampen’s use of the jack

was reasonably anticipated.” Id . at 1201.

This Court granted en banc rehearing. See 130 F.3d 656 (5th

Cir. 1997).

I.

In 1993, the Kampens’ daughter noticed a noise coming from

beneath her 1989 Isuzu Impulse. Her father agreed to investigate.

Kampen used the car’s factory-provided jack to raise the car’s

front end on the driver’s side. Viewing the evidence in the light

most favorable to the nonmovant, Ka mpen jacked up the car in a

manner consistent with the instructions pro vided in the Owner’s

Manual (“manual”) for elevating the car. Kampen’s deposition

testimony indicated, however, that he did not read the manual

before jacking up the car. He therefore did not read the warning

contained in the manual which instructed the user to “[u]se the

jack only when changing tires” and expressly warned “[n]ever [to]

get beneath the car when using the jack.” 1

Suspecting that something was caught behind the front wheel on

the driver’s side, Kampen placed his head and shoulders beneath the2 A claimant can prov e that a product was unreasonably

dangerous in four different ways: (1) in construction or

composition; (2) in design; (3) because of an inadequate warning;

or, (4) because of nonconformity to an express warranty.

L A .R EV .S TAT .A NN . § 9:2800.54(B).

4 front of the car to examine the b ack of the wheel. The jack

collapsed, and the car fell across Kampe n’s shoulders, breaking

both of his collarbones.

II.

The LPLA provides the “exclusive theories of li ability for

manufacturers for damage caused by their products” under Louisiana

law. L A .R EV .S TAT .A NN

. § 9:2800.52. Section 2800.54 of the LPLA

sets forth the basic parameters for a products liability action

under the Act:

The manufacturer of a product shall be liable

to a claimant for damage proximately caused by

a characteristic of a product that renders the

product unreasonably da ngerous when such

damage arose from a reasonably anticipated use

of the product by the claimant or another

person or entity.

L A .R EV .S TAT .A N N

. § 9:2800.54(A). 2 The plain language of the Act

shows that a plaintiff, asserting a products liability action

against a manufacturer, faces a two-tiered burden: the plaintiff

must show that (1) his damages were proximately caused by a

characteristic of the product that renders it unreasonably

dangerous, and (2) his damages arose from a reasonably anticipated

use of the product. S ee L A .R EV .S TAT .A NN

. § 9:2800.54(D); see also

Johnson v. Black & Decker U.S., Inc.

, 701 So.2d 13 60, 1362 (La.

App. 2d Cir. 1997). If a plaintiff’s damages did not arise from a

reasonably anticipated use of the product, then the “unreasonably5

dangerous” question need not be reached. S ee Johnson

, 701 So.2d at

1366; Delphen v. Department of Transportation and Development

, 657

So.2d 328, 334 (La. App. 4th Cir. 1995).

A.

The LPLA defines a reasonably anticipated use as “a use or

handling of the p roduct that the product’s manufacturer should

reasonably expect of an ordinary person in the same or similar

circumstances.” L A .R EV .S TAT .A NN

. § 9:2800.53(7). This objective

inquiry requires us to ascertain what uses of its product the

manufacturer should have reasonably expected at the time of

manufacture. S ee Myers v. American Seating Co.

, 637 So.2d 771, 775

(La. App. 1st Cir. 1994); s ee also John Kennedy, A Primer on the

Louisiana Products Liability Act

, 49 La.L.Rev. 565, 585-86

(1989)(“Kennedy”). The LPLA’s “reasonably anticipated use”

standard should be contrasted with the pre-LPLA “norm al use”

standard; “normal use” included “all intended uses, as well as all

reasonably foreseeable uses and misuses of the product.” H ale

Farms, Inc. v. American Cyanamid Co.

, 580 So.2d 684, 688 (La. App.

2d Cir. 1991), citing Bloxom v. Bloxom

, 512 So.2d 839, 843 (La.

1987). “Normal use” also included “reasonably foreseeable misuse

that is c ontrary to the manufacturer’s instructions.” H ale

, 580

So.2d at 688.

I t is clear that by adopting the reasonably anticipated use

standard, the Louisiana Legislature intended to narrow the range of

product uses for which a manufacturer would be responsible. See,

e.g.

, Delphen

, 657 So.2d at 333; Myers

, 637 So.2d at 775. We know6

that, under the LPLA, a manufacturer will not be responsible for

“every conceivable foreseeable use of a product.” L ondon v. MAC

Corp. of America

, 44 F.3d 316 (5th Cir. 1995); see also Kennedy, 49

La.L.Rev. at 586. For example, in M yers

, the Louisiana First

Circuit Court of Appeal held that, while it is conceivable that a

person might stand on the rear portion of a folding chair (thereby

causing it to jackknife), this would not be a reasonably

anticipated use given the obvious danger of such a use. M yers

, 637

So.2d at 779. The scope of the reasonably anticipated use

standard, however, remains imprecise.

B.

Under the liability scheme set up by the LPLA, then, Kampen’s

injuries must have arisen from a reasonably anticipated use of the

jack. But that begs the following question: which of Kampen’s

actions on the day of his injury should we consider as “use” of the

jack? Did Kampen’s “use” of the jack end when he had properly

positioned the jack and elevated the car to a suitable height? Did

Kampen continue to “use” the jack after that by relying on the jack

to hold the car elevated above him while he inspected its

underside? Should Kampen’s admitted p urpose in jacking the car up

(to inspect the car’s underside, or, more precisely, the back of

the front wheel) be a factor in assessing how he “used” the jack?

An answer to these questions is crucial in properly assessing

whether Kampen’s injuries arose from a reasonably anticipated use

of the jack. The panel opinion, as stated above, broadly defined

Kampen’s “use” of the jack as simply jacking up the car. S ee7

Kampen

, 119 F.3d at 1198. The panel found that Kampen’s subsequent

actions const ituted, not a continuing “use” of the jack, but

instead a “[p]lacing [of] oneself in the zone of danger created by

the product.” I d

. In the panel’s view, the p urpose for which a

product is employed is relevant to “use” only “to the extent that

the purpose affects the manner in which the product is handled”:

In this case, the use to which Kampen put the

jack did not create a defect that w ould not

have otherwise existed. That is, the fact

that he was under the car did not make the

failure any more or less likely to occur. The

risk that Isuzu was required to take into

account in designing, manufacturing and

warning about the jack was that the jack would

collapse under the weight of the vehicle it

was designed to lift.

Kampen

, 119 F.3d at 1198-99. Because Kampen’s presence and actions

beneath the car had no effect on the mechanical performance of the

jack itself, the panel reasoned, what Kampen did subsequent to

physically jacking up the car should not be included in his “use”

of the jack. Put another way, Kampen’s getting under the car was

not a “use” of the jack because those actions did n ot have any

impact on whether the jack would, or would not, have failed. This

accords with the panel’s view that the mechanical failure of the

jack was the only risk the manufacturer was required to take into

account, regardless whether Kampen was beside the car changing the

tire, or beneath the car inspecting the wheel, when the jack

failed. See id . at 1199.

At the outset, we note that the level of generality at which

a plaintiff’s “use” of a product is defined will bear directly on

whether the plaintiff satisfies the LPLA’s reasonably anticipated8

use requirement. In this case, if we consider that Kampen’s “use”

of the jack includes his jacking up the car and nothing else, then

the question of reasonably anticipated u se answers itself: a

manufacturer quite reasonably anticipates his jack to be used for

jacking! On the other hand, if we define Kampen’s “use” by

including his behavior subsequent to the physical act of elevating

the car (i.e., his crawling under the car), then reasonably

anticipated use becomes a much closer question: manufacturers may

or may not reasonably anticipate users of their products to

disregard express warnings about the product and thereby place

themselves in physical danger.

We agree with the panel majority that the scope of use must be

delineated with reference to “the apparent purpose of the

reasonably anticipated use requirement,” namely,

...to expres s the types of product uses and

misuses by a consumer that a manufacturer must

take into acc ount when he designs a product,

drafts instructions for its use and provides

warnings about the product’s dangers in order

that the product not be unreasonably

dangerous.

Kampen

, 119 F.3d at 1198, quoting Kennedy, 49 La.L.Rev. at 584.

That is to say, we agree that the ris ks a manufacturer must take

into account when designing and providing warnings ab out his

product should govern, to some degree, how we define a plaintiff’s

“use” of that pro duct. Where we diverge from the panel opinion,

however, is in appreciating the breadth of those risks.

It is implicit in the panel opinion that the product risks

(and, hence, a potential user’s actions) a manufacturer should take9

int o account are only those which involve the possible p hysical

stresses placed on the product. See Kampen , 119 F.3d at 1198-99.

Thus, goes the argument, only those actions of a plaintiff which

put various physical stresses on the product should be defined as

“use.” Id . But a plaintiff may act in relation to a product in

such a way that, while it does not change the physical stresses

placed on a product, nevertheless increases the risk of injury

associated with the product

. A manufacturer is required to take

these kinds of actions by product users into account when designing

and providing warnings for its product. Surely the manufacturer,

Isuzu, was required to contemplat e not only the risks associated

with the proper physical manipulation of the jack, but also the

risks associated with the purpose for which the jack would be

employed (i.e., whether the jack would be used for changing tires

or instead as a support for repairs to the car’s undercarriage).

Certa inly lines must be drawn between those actions of a

plaintiff which will and will not constitute “use” of a product:

we would not say, for example, that the brand of shirt Kampen was

wearing when he was crawling under the car should figure into his

“use” of the jack. Isuzu was not required to anticipate whether

potential users of its jack would be wearing Polo, Izod or J.C.

Penney sportswear because those aspects of Kampen’s behavior have

nothing to do with the risks contemplated in designing a jack. But

whether or not Kampen was going to jack the car up and then crawl

under it bears directly on the decisions Isuzu must make in

designing a product that is not unreasonably dangerous.10

We thus define Kampen’s “use ” of the jack at a level of

generality that will take into account the risks Isuzu must (or

s hould) have reasonably contemplated when designing the jack and

providing warnings for its use. Kampen began using the jack when

he elevated the car with it. When Kampen finished jacking the car

up, however, his use of the jack did not conclude. Thereafter,

Kampen used the jack by relying on the jack to hold the car in its

elevated position

. When Kampen placed himself beneath the car, he

was still using the jack: he was relying on the jack to hold the

car above his body

. There is no requirement in the LPLA that “use”

necessarily involve a physical touching of the product. “Handling”

does indeed seem to suggest some physical contact with the product,

but we observe that “reasonably anticipated use” is defined in

terms of a “use or handling” of the product. S ee L A .R EV .S TAT .A NN

.

§ 9:2800.53(7)(emphasis added). The disjunctive implies that “use”

need not always involve the physical manipulation of the product.

We emphasize that our assessment of what “use” Kampen made of

the jack does not depend in a ny way on his mental state. We are

able to determine how Kampen was using the jack by objectively

viewing (and making reasonable infere nces from) w hat he actually

did and not what he intended to do. It would be nonsensical to

make use depend on something as evanescent as the user’s mental

state. If Kampen had jacked up the car, fully intending to crawl

under it and inspect its underside, but the jack had collapsed

before he could do so, certainly we would not say that Kampen’s

“use” was somehow determined by his free-floating intent to do11

som ething he had not yet done. In that case, we would take the

facts before us and conclude that Kampen’s use of the jack

c onsisted only in jacking the car up. He didn’t d o a nything

following that.

We add that Louisiana courts of appeal have also defined “use”

at this level of generality. For example, in D elphen v. Department

of Transportation and Development

, 657 So.2d 328 (La. App. 4th Cir.

1995), the court addressed whether a plaintiff, who rode a racing

bike without properly adj usting the “quick release” mechanism on

the front wheel, had engaged in a reasonably anticipated use of the

bike. The court found that, given the obvious danger of the

plaintiff’s actions, the plaintiff had not used the bike in a

reasonably anticipated manner. D elphen

, 334 So.2d at 334. In

doing so, the court defined the plaintiff’s “use” of the bike with

reference to the following actions:

...the fact that Robert Delphen rode the

bicycle across the Chef Menteur drawbridge

without obtaining additional instructions

regarding the bicycle’s proper use and knowing

that the wheel previously had become loose,

was not a reasona bly anticipated use of the

product.

Id . The court could have defined the plaintiff’s use of the bike

as simply “riding the bike,” which certainly would have been a

reasonably anticipated use of a bicycle. The court did not do so,

however.

Similarly, in Johnson v. Black & Decker U.S., Inc.

, 701 So.2d

1360 (La. App. 2d Cir. 1997), the court affirmed a jury’s

conclusion that using a circular saw after removing its safety3 The court discussed Berry v. Commercial Union

, 565 So.2d 487

( La. App. 2d Cir. 1990), a pre-LPLA case which also dealt with a

power saw from which the plaintiff had removed the safety guard.

The Johnson court characterized the Berry plaintiff’s “use” of the

altered saw as “abnormal use

... either ignoring instructions that

the guard was missing or failing to notice such an obvious danger

and carrying the saw in his subordinate hand while climbing an

unsecured ladder.” Johnson , 701 So.2d at 8 n.3.

4 In a pre-LPLA case, Hale Farms, Inc. v. American Cyanam i d

Co.

, 580 So.2d 684 (La. App. 2d Cir. 1991), the court addressed

whether applying herbicide in a manner contrary to th e label

instructions was “normal use” of the herbicide. The court

implicitl y considered the “use” of the herbicide to include not

only the actual spraying of the product, but also the quantities

and concentration of the sprayed herbicide which were contrary to

the label instructions. See Hale Farms , 580 So.2d at 688.

12 guard was not a reasonably anticipated use of the saw. I d

. at 11.

The court decided the case based on the assumption that the

plaintiff’s “use” of the saw included the fact that the guard had

been removed. S ee id

. at 6 (asking whether “subsequent use of the

altered saw” was a reasonably anticipated use). 3 The court did not

define “use” at the higher level of generality (i.e., simply

“cutting wood”), but instead include d the plaintiff’s negligent

actions as part of “use.” 4

Finally, this Court has itself defined “use” as including some

of the plaintiff’s ne gligent conduct. In H unter v. Knoll Rig &

Equipment Mfg. Co., Ltd.

, 70 F.3d 803 (5th Cir. 1995), the question

was whether the decedent had been using a “drilling rig racking

board” in a reasonably anticipated manner when the pipes he was

racking collapsed and killed him. The majority found no reasonably

anticipated use of the racking board, because the manner in which

the decedent had been racking the pipes was obviously dangerous and

contrary to industry practice. Hunter , 70 F.3d at 810. Clearly,13

the majority defined “use” as including not only the obvious use of

the racking board to rack pip e, but also the dangerous manner in

which the decedent was racking the pipe. I d

. This is underscored

by the dissent in Hunter

, where Judge Benavides advocated a broader

view of “use”:

...the evidence reflects that the racking

board was being used for its intended purpose

(racking pipe) and in a manner that a jury

could conclude was common.

Id

. at 812 (Benavides, J., dissenting). The dissent in H unter

would have found the “overall use of the racking board” to be

“routine,” and would have allowed comparative fault principles to

account for the decedent’s negligence in racking the pipe. I d

. at

813. The majority in Hunter , however, included in its conception

of “use” those aspects of t he decedent’s behavior that increased

the risk of injury associated with the product.

We find that the reasoning in Hunter is consistent with the

treatment of this issue by Louisiana appellate courts and conclude

tha t Kampen’s getting under the car to inspect its underside

constituted a “use” of the jack.

C.

Given that conception of “use,” we are led to the crucial

question: was Kampen’s use of the jack one that Isuzu should have

reasonably anticipated? The district court said “no”: relying on

Lockart

, the court found that a manufacturer should not reasonably

anticipate that a user will disregard two explicit warnings and

place himself, in direct contravention of those warnings, in a

position of obvious peril. In confronting this question, we must14

the refore address what impact an express warning should have on

whether the use of a product is reasonably anticipated.

1.

The meaning of our decision in Lockart broods over this case.

In Lockart

, two workers suspended a steel pontoon with chains from

the teeth of an excavator’s bucket and got underneath the pontoon

to work on it. The chains slipped, and the pontoon fell, killing

one man and injuring the other. An instruction in the operator’s

manual for the excavator warne d, “Never lift a load from the

bucket teeth,” and was accompanied by a diagram. S ee Lockart

, 989

F.2d at 865-66. We held that summary judgment against the

plaintiffs was appropriate because the plaintiffs had not sustained

their burden of showing that the decedents’ use of the excavator

was reasonably anticipated. I d

. at 869. Exactly w hy the

plaintiffs failed to meet their burden of proof is somewhat

ambiguous and requires us to clarify Lockart ’s holding.

Lockart held that the use of the excavator was not reasonably

anticipated for two, alternative reasons: (1) because an adequate

warning was provided, cautioning against the very conduct the

decedents engaged in, and (2) because even if the decedents had no

knowledge of that warning, the danger inherent in their use of the

excavator should have been obvious. S ee Lockart

, 989 F.2d at 866-

67 & 868. The plaintiffs, who bore the burden of proving

reasonably anticipated use, failed to meet that burden because they

failed to provide proof that “another warnin g would have been

f easible or that these experienced workers should not have15

reasonably appreciated the risks involved in suspending the pontoon

from the bucket teeth.” Id . at 869.

Lockart is, at bottom, an obvious danger case. But a close

reading of the decision shows that the obviousness of the danger

was based in significant part on the warnings provided with the

excavator. In unequivocal language, the Lockart court stated:

When a manufacturer expressly warns against

using a product in a certain way in clear and

direct language accompanied by an easy to

understand pictogram, it is expected that an ordinary consumer would not use the product in

contravention of the express warning

.

Id

. at 867 (emphasis added). What has engendered some confusion

and has led many to dismiss the block-quoted language as dictum is

the sentence which follows: “Here, however, the owners manual and

thus the warning probably never reached the ultimate users.” Id

.

But given its proper context, the block-quoted language is simply

not dictum

. It is in fact one element in the overall equation

demonstrating why the decedents’ conduct was in the face of obvious

danger and was thus not a reasonably anticipated use of the

excavator.

Language from other parts of Lockart confirms this view. For

example, the defendants asserted that, because the decedents’ use

was not reasonably anticipated, the court would not have to reach

the unreaso nably dangerous question (which could have involved,

inter alia

, analyzing the adequacy and effect of the warning). S ee

id

. at 866; see also discussion supra P art II & n.2. Tellingly,

the court responded that

... [i]n this case, however, sinc e we hold16 that the use was not reasonably anticipated

because under the circumstances an adequate

warning was provided , our analysis extends to

the warnings.

Lockart

, 989 F.2d at 866 (emphasis added). The emphasized language

illuminates two crucial aspects of Lockart : (1) that the language

about adequate warnings was holding and not dictum

, and (2) that

reasonably anticipated use was intertwined with the character and

adequacy of the warnings. Otherwise, the whole discussion of the

adequacy of the warnings would have bee n surplusage. S ee id

. at

867-68.

We thus read Lockart as a decision about the relationship

between obvious danger and express warnings. L ockart addresses the

situation where a manufacturer provides an express warning

cautioning against a use of the product for which the product was

neither designed nor intended, and where the plaintiff acts in

direct contravention of that warning. In that case, the

plaintiff’s “use” of the product will not be a reasonably

ant icipated one, unless, as L ockart itself observed, “the

plaintiffs had presented evidence that despite the warnings, [the

manufacturer] should have been aware that operators were using the

[product] in contravention of certain warnings.” Id . at 868.

Our holding on this point does not mean that an adequate

warning will always be dispositive of reasonably anticipated use.

Such a view would render superfluous the risk/ut ility balancing

test in § 2800.56 of the LPLA, wh ich instructs the court to

“consider an adequate warning about a product” in determining

whether a product is unreasonably dangerous in design. S ee5 We also note that our holding will not, as the panel majority

feared, allow malevolent manufacturers to absolve themselves from

liability for uses (or misuses) of their products which the

evidence shows should have been reasonably anticipated despite a warning to the contrary. S ee Kampen

, 119 F.3d at 1201 (“Such a rule would allow a manufacturer to insulate itself from liability

for uses of a defective product that are unquestionably reasonably

anticipated.”). It would be legally ineffective if, for example,

Isuzu had warned against using its jack to change the tires on the

Impulse, a user had nonetheless used the jack to change a tire, and

was inj ured in the process. In that case, a court should find

that, despite the warning, using a factory-supplied jack to change

a tire (which is the very purpose for which the jack was supplied)

is, in the panel majority’s words, “unquestionably [a] reasonably

anticipated” use.

17 L A .R EV .S TAT .A NN

. § 9:2800.56(2). But merely because the LPLA

includes an adequate warning as one ingredient in the “unreasonably

dangerous design” test does not mean that a court is precluded from

considering an adequate warning in relation to other areas of the

Act. The LPLA itself requires that, as a threshold for liability,

the plaintiff’s damages arise from a reasonably anticipated use of

the product. What we say here is only that a warning against a

product misuse 5 is relevant to as sessing what uses of its product

a manufacturer reasonably anticipates. When, in the face of such

a warnin g, a plaintiff presents no evidence about whether the

manufacturer should have reasonably expected users to disregard the

warning, the plaintiff fails to meet the burden imposed on him by6 As the Restatement recognizes, a warning against specific

misuses of a product will not in every case prevent a plaintiff who

contravenes t hat warning from pursuing a claim against the

manufacturer:

[I]nstructions and warnings may be ineffective because

users of the product may not be adequately reached, may

be likely t o be inattentive, or may be insufficiently

motivated to follow the instructions or heed the

warnings. (...) Warnings are not

... a substitute for the

provision of a reasonably safe design.

R ESTATEMENT (T HIRD ) O F T ORTS : P RODUCTS L IABILITY § 2 cmt. l (1998). Our

decision in this case is not to the contrary: we simply hold that

the Kampens must provide evidence that Isuzu should have known its

otherwise adequate warnings were being disregarded by product users in this particular way.

The Texas Supreme Cou rt’s recent decision in U niroyal Goodrich

Tire Company v. Martinez

, No. 95-1159, 1998 WL 352929 (Tex. July 3,

1998) also explores the relationship between warnings and design

defects under the Restatement (Third) of Products Liabi lity. In

Uniroyal

, the plaintiff was injured when he attempted to inflate a

16" tire on a 16.5" tire ri m

, in contravention of the tire

manufacture r’s express warnings, and the tire exploded. While

conceding his disregard of the warnings, the plaintiff nonetheless

argued that the tire was defectively designed because the

manufacturer could have implemented an alternative tire design that

would have prevented the explosion, and, thus, his injuries. A

five-justice majority of the Texas Supreme Court affirmed the

jury’s finding that the tire was defective. The court recognized

that, under the Restatement, warnings and instructions are relevant

but not determinative in assessing whether a product is reasonably

safe. See Uniroyal , 1998 WL 352929, at *5-6, citing, inter alia

, R ESTATEMENT (T HIRD ) O F T ORTS : P R ODUCTS L IABILITY § 2 & cmt. f. The

court held, however, that there was evidence from which a jury

could have reasonably determined that, despite the adequate

warning, Uniroyal’s failure to implement the alternative design

rendered the product defective. See Uniroyal , 1998 WL 352929, at

*6-7. Four justices dissented, arguing that the majority had not

properly interpreted the Restatement and had failed to give the

warnings adequate consideration in the “reasonably safe” calculus.

See id

. at *14-15 (Hecht, J., dissenting). The dissenting justices

would have found the tire reasonably safe as a matter of law. S ee

id . at *18-19 (Hecht, J. dissenting).

Of course, Uniroyal is not controlling on the outcome here, since

we interpret the LPLA an d not Texas law, and we address the

threshold issue under the LPLA of reasonably anticipated use rather

than unreason able dangerousness. S ee id

. at *4-6 (following

R ESTATEMENT (S ECOND ) O F TORTS

, § 402A, and R ESTATEMENT (T HIRD ) O F T ORTS :

18 the LPLA. 6 See L A .R EV .S TAT .A NN . § 9:2800.54(D). 7P RODUCTS L IABILITY § 2(b)). We nonetheless note the decision because

it focuses on the impact of warnings in a products liability case,

albeit in a dif ferent context. We also observe that while the

maj ority and dissenting opinions in U niroyal disagree over the

meaning of comment l to § 2 of the Restatement (Third) of Products

Liability, both opinions agree that warnings and instructions are

relevant to whether an injured plaintiff who disregards a warning

can nonetheless maintain an action under a design defect theory.

7 Our clarification of Lockart could be read to conflict with

the Eighth Circuit’s decision in Chronister v. Bryco Arms

, 125 F.3d

624 (8th Cir. 1997). In C hronister

, the court held that the use of

a handgun in contravention of an express warning could be a

“reasonably anticipated use” under Missouri law “if that misuse is

reasonably foreseeable.” I d

. at 627. There, the plaintiff used a

handgun for target pr actice without wearing hearing protection,

despite warnings to the contrary; when the gun misfired, the

plaintiff sustained permanent hearing damage. I d

. at 625. The

defendant argued that it could not have reasonably foreseen the use of its gun without hearing protection, and, further, that “use of

a product that contradicts the product’s instructions or warnings

is not a ‘reasonably anticipated use.’” Id . at 627. The Eighth

Circuit rejected both arguments.

The court observed that a basic tenet of products liability law,

and one followed in Missouri, is that “a manufacturer cannot escape strict liability for a defective product that has been misused by

the plaintiff, if that misuse is reasonably foreseeable.” I d

., citing 63A Am.Jur.2d Products Liability § 967 (1997), and

Nesselrode v. Executive Beechcraft, Inc.

, 707 S.W.2d 371, 381 (Mo.

1986)(en banc). The court then pointed to evidence that the

defendant “knew that some people used weapons without hearing

protection.” C hronister

, 125 F.3d at 627. Thus, a jury could have

reasonably found that the plaintiff’s misuse of the gun was

nonetheless “reasonably foreseeable” by the defendant.

We first observe that the C hronister court’s conception of the

“use” of the gun is similar to our vi ew here. The court did not

broadly define the plai ntiff’s “use” as merely “firing the gun.”

Instead, the court implicitly considered “use” to include firing

the gun without hearing protection

, a “use” which did nothing to

make the gun more or less likely to misfire, but which did increase

the risk of using the gun. See discussion supra Part II.B.

Second, the C hronister court’s resolution of the “reasonably

anticipated use” issue is not at all contrary to ours. Just as we

would, the Eighth Circuit required proof that the def endant knew

its product was being misused in a particular way. C hronister

, 125

F.3d at 627. If the plaintiff had n ot provided such proo f, we

presume that the plaintiff could not have established that his

admitted misuse of the gun was nonetheless a reasonably anticipated

use.

19 2.20

We rec ognize that, under Louisiana law, comparative fault

principles generally account for a plaintiff’s negligent conduct.

See Kampen

, 19 9 F.3d at 1199; s ee also Bell v. Jet Wheel Blast

Div. of Ervin Indu s. , 462 So.2d 166 (La. 1985), a nd Thomas C.

Galligan, The Louisiana Products Liability Act : M aking Sense of It

All

, 49 La.L.Rev. 629, 685 (1989)(stating “the obvious”: “that the

[LPLA] makes no change in Louisiana’s comparative fault law”). But

it is argu ed that our view of Kampen’s “use,” combined with our

view of the interrelationship between warnings and reasonably

anticipated use, impe rmissibly conflates “product misuse” and a

plaintiff’s comparative fault. The argument goes that we are

makin g “reasonably anticipated use” do the work that comparative

fault is intended to do by including Kampen’s negligence in getting

under the car as part of his “use” of the jack.

It is true that Kampen’s disregard of the product’s warnings

and his exposing himself to obvious danger is the kind of conduct

that, ordi narily, would be assigned to the plaintiff as a

percentage of fault under the Louisiana system of comparative

fault. See L A .C IV .C ODE .A NN

. art. 2323 (West 1997). It is equally

true, however, that the Louisiana Legislature, in dra fting the

LPLA, included the following prerequisite to recov ery under the

Act: “...when such damage arose from a reasonably anticipated use

of the product....” L A .R EV .S TAT .A NN

. § 9:2800.54(A). That language

raises “reasonably anticipated use” -- a concept that necessarily

includes some aspects of a plaintiff’s conduct -- to the level of

liability determiner (i.e., if a plaintiff has engaged in conduct21

which renders his use of the product not reasonably anticipated by

the manufacturer, then his recovery is not merely reduced by his

percentage of fault -- he cannot recover at all).

This view does not, however, write comparative f ault out of

Louisiana products liability law. A plaintiff’s negligent conduct

which does not re move his use of the product from the realm of

reasonably antici pated uses may nevertheless contribute to cause

his injuries. Such negligence will lessen a plaintiff’s recovery

without barring his right to recover altogether. Suppose, for

example, that Kampen had used the jack only to change a tire and

the jack had collapsed; the manufacturer had provided no adequate

instructions regarding the use of the jack, and the correct manner

of use was not obvious; the collapse occurred partly as a result of

Kampen’s negligent failure to fit the lifting arm of the jack into

a special notch and partly as a result of some unrelated defect in

the jack’s composition. In this example, Kampen used the jack to

change a tire, but physically manipulated the jack in an improper

manner that was not specifically warned against nor obviously

dangerous. We submit that this hypothetical negligent use would be

“reasonably anticipated”; the manufacturer would be l iable and

damages apportioned by comparative fault.

It is also pointed out that Kampen’s placing himself beneath

the car did not make the jack any more or less likely to fail. It

is urged that when a plaintiff misuses a product (i.e ., uses the

product in a way not reasonably anticipated by the manufacturer),

that misuse should only bar the plaintiff’s recovery where the22

misuse causes the product to fail. In other words, there must be

a causal connection between product misuse and product failure.

While that may be an eminently reasonable view of what

products liability law should be, it is, however, not what the

Louisiana Legislature codified in the LPLA. The threshold

requirements for liability under th e LPLA do not link product

misuse with product failure. Instead, the LPLA requires a link

between damages and reasonably anticipated use . The flip side of

that requirement is that if damages are linked to a product misuse

(i.e., one that is not reasonably anticipated), then those damages

are not recoverable under the Act.

Louisiana cases have recognized the necessary causal

relationship between product misuse and damages in finding that a

product has not been put to a reasonably a nticipated use. In

Johnson v. Black & Decker

, the plaintiff argued that his alleged

misuse of a saw (operating it without the safety guard) was

irrelevant, as his injury would have occurred regardless. The

court agreed that this was the correct issue, and asked whether

“the device[], had [it] been left in place, would have more likely

than not prevented the injury .” J ohnson

, 701 So.2d at 1365

(emphasis added). After reviewing the evidence, the court

concluded that the plaintiff had “failed to prove that a saw

properly equipped with a gravity guard would, more probably than

not, have caused his injuries.” I d

. at 13 66. It therefore

“perceive[d] no manifest error in the jury’s conclusion that [his]

use of the unguarded saw was not reasonably anticipated....” Id

.8 In Hale Farms

, supra Part II. B & n.4, the Louisiana Second

Circuit addressed whether spraying of herbicide contra ry to the

label instructions constituted “normal use” of the herbicide (preLPLA standard). The court stated at the outset that “normal use”

included “reaso nably foreseeable m isuse that is contrary to the

manufacturer’s instructions.” Hale Farms , 580 So.2d at 688. The

court affirmed the trial court’s finding that using 10 gallons of

water (instead of 20 gallons, as the label instructed) for spraying

was a “reasonably foreseeable (mis)use of the product.” I d

. at

691. By contrast, the court reversed the trial court on whether

using the wrong product-to-acre ratio was a “reasonably foreseeable

misuse.” Id . at 693. What accounts for the difference is this:

the evidence showed that varying the amount of water (at least

within 10 to 20 gallons) would not have changed the product’s

effectivene ss, but that varying the product-to-acre ratio w ould

have

. S ee id

. at 689-91, 691-94. Thus, the court, even under the

broader “normal use” standard, required a causal link between

product misuse and damages (i.e., the persistence of weeds and

consequent damage to the soybean crop d espite treatment with the

herbicide) in order for m isuse to bar a plaintiff’s claims. S ee

id

. at 694 (“The record does not support the trial court’s finding

that the low crop yields

... were caused by a product

defect.”)(emphasis added).

23 In other words, the court found the plaintiff’s misuse of the saw

to be determinative of the reasonably anticipated u se question

because the plaintiff’s damages were causally linked to that

misuse. As Kampen’s damages were unquestionably linked, insofar as

causation is concerned, to getting under the car, we break no new

ground in this case. 8

III.

We have thus far determined that Kampen’s “use” of the jack

included not only jacking up the car, but also his crawling under

the car to inspect it s underside. We have also determined that

under the LPLA and the cases interpreting it, when a plaintiff

misuses a product, in direct contravention of a warning, his “use”

will not be reasonably anticipated unless the plaintiff can show

that the manu facturer should have known that product users “were24

using the [product] in contravention of certain warnings.”

Lockart

, 989 F.2d at 868. All that remains, then, is that we

examine the summary judgment record to see if the Kampens adduced

such evidence.

The deposition testimony of Dr. Tom Shelton, the plaintiff’s

expert, appears in the record. Shelton, a metallurgist, examined

the damaged jack, performed “hardness” tests on the steel composing

the jack, and compared the jack to other, similar jacks. He

testified about the possible forces acting on the jack when it

collapsed and opined that the softness of the metal used in the

Isuzu jack was a contributing cause of the jack’s failure.

Two exchanges during Shelton’s deposition bear on the

“reasonably anticipated use” question:

Q: Is it fair to say that the loading in this case,

[sic] you can’t tell me if it occurred during the

reasonably anticipated use of the jack?

SHELTON: The use of the jack, as it was being used on

t he day, is a reasonably anticipated use only because

there is a large history of people using it in this

manner.

Q: And what manner is that? To lift a vehicle?

SHELTON: To lift a vehicle. Okay. So from that point

of view, I would say it’s reasonably anticipated. What

the history of the jack is, other than that, I couldn’t

tell you

.

Q: Is it reasonably anticipated use of a jack to use it

to lift something on an unlevel surface?

SHELTON: Yes. It is.

Q: In terms of a reasonably anticipated use of a jack,

is it reasonably anticipated to be under the vehicle,

using the jack as the supporting member of the vehicle?

SHELTON: That’s reasonable to anticipate that someone25

would do that, yes

.

* * * * *

Q: And I assume because you have not reviewed the

warnings, you are not of the opinion that there is some

inadequacy of warnings regarding the vehicle and/or the

jack.

SHELTON: I have no statement on warnings

.

(Emphasis added). In speculating on what uses of the jack would be

reasonably anticipated, Shelton thus opined that it would be

“reasonable to anticipate” that someone would rely on the jack to

support the vehicle over his or her body. Since this is the only

evidence in the summary judgment record bearing on the question, we

will confine oursel ves to asking whether Shelton’s statement was

sufficient to create a genuine fact issue a s to reasonably

anticipated use and thereby avoid summary judgment.

Shelton testified as a metallurgist, whose area of expertise

“deals with the extraction of metals from their ores, refining

them, and preparing them for use and includes processes (as

alloying, rolling and heat-rolling) and the study of the structure

and properties of metals.” W E BSTER’S T HIRD N EW I NTERNATIONAL D ICTIONARY

1420 (3d ed. 1981). Thus, Shelton’s opinion on, for example, the

relative strength of the steel used in the jack’s composition would

likely create a fact issue for summary judgment purposes. We would

even go so far as to say that Shelton could have created a fact

issue as to the reasonably foreseeable mechanical uses of the jack

(e.g., when he testified that it would be reasonably anticipated

for the jack to be placed on uneven surfaces).

Shelton’s testimony, however, as to whether the manufacturer26

should have reasonably expected users to place themselves under a

jacked-up car, is not suffici ent to create a genuine issue as to

that fact. Notwithstanding Shelton’s qualifications as a

metallurgist, he was not qualified to testify as to the habits of

users of automobile jacks nor about their prope nsities for

disregarding explicit warnings. Additionally, Shelton’s testimony

is internally inconsistent: he asserted initially that he knew

nothing of the “history” of the jack’s use beyond its obvious use

f or lifting a car; only two questions later, he ventured an

opinion about exactly such behavioral “history” of the product’s

users. Shelton himself admitted to having “no statement about

warnings,” and so could not have created a genuine issue as to

whether jack users were disregarding the warnings at issue. “It

goes without saying that such conclusory, unsupported assertions

are insufficient to defeat a motion for summary judgment.”

Marshall v. East Carroll Parish Hospital Services Dist rict , 134

F.3d 319, 324 (5th Cir. 1998).

IV.

We thus find that the Kam pens have not adduced competent

summary judgment evidence showing that Kampen’s use of the jack in

contravention of a warning was nonetheless reasonably anticipated.

Consequently, the Kampens have failed to meet the burden imposed on

them by L A .R EV .S TAT .A NN

. § 9:2800.54(D), namely, to show that

Kampen’s damage arose from a reasonably anticipated use of the9 We note in closing that we neither approve nor disapprove of

Part IV of the panel opinion, which addressed Isuzu’s alternative

contention that the summary judgment record presented no genuine

issues of fact regardi ng whether the tire jack was unreasonably

dangerous. S ee Kampen

, 119 F.3d at 1201-05. It is unnecessary to

reach the unreasonable dangerousness issue in light of our decision

here that Kampen’s injuries did not arise from a reasonably

anticipated use of the jack. See L A .R EV .S TAT .A NN . § 9:2800.54(A).

27 jack. We therefore AFFIRM the judgment of the district court. 9

AFFIRMED.28

BEN AVIDES, Circuit Judge, with whom POLITZ, Chief Judge, SMITH,

WIENER, STEWART and PARKER, Circuit Judges, join in all parts, and

DENNIS, Circuit Judge, joins in all parts save Part IIB,

dissenting:

The sole en banc issue in this case is whether Mr. Kampen’s

use of the original-equ ipment scissors jack to elevate the Isuzu

car with which the ja ck was supplied and which the jack was

designed to elevate was a “reasonably anticipated use” of the jack

under the Louisiana Products Liability Act of 1988, L A

. R EV

. S TAT

.

A NN

. §§ 9:2800.51- .59 (West 1991) (“LPLA” or “the Act”), in light

of the fact that, in contravention of an express warning, he had

partially slid underneath the car immediately before the collapse

of the jack. The majority holds that Isuzu should not have

reasonably anticipa ted that an individual would use the jack to

elevate the car and then slide beneath the vehicle despite a

warning to the contrary. Because I conclude that Kampen used the

jack in a manner that should have been reasonably expected by its

manufacturer, I dissent.

I.

T he operative summary judgment facts of this case a r e

straightforward. As the majority notes, Mr. Kampen jacked up the

car in a manner fully consistent with the instructions given in the

owner’s manual: He placed the automatic transmission in “park,” he

blocked the opposite tire, and he placed the upper part of the jack

in a special notch intended for that purpose, located between the

door opening and the wheel. Suspecting that a foreign object was

caught behi nd the front left wheel, Kampen lay on the ground and

slid part-way under the car, thereby placing his head and shoulders29

under the front of the car, in an effort to examine the back or

interior side of the wheel visually. Positioning his body in this

manner was contrary to the Isuzu-provided instructions which Kampen

had not read. While Kampen was in that position, the jack

spontaneously collapsed, causing the car to fall and strike him

across the shoulders, breaking both of his collarbones. Kampen

never so much as brushed against the underside of the car from the

time he completed the jacking process until the jack collapsed.

The Kampens’ expert identified the jack’s “failure mode” as a

“shearing of the [metal] teeth which are at the base of the bottom

set of legs for the scissors jack” in combination with “the

dimensions of the contacting surfaces.” The expert testified that

the steel was “soft on this jack, real soft

. . . about as soft as

you can get.”

II.

A.

The Kampens brought suit against Isuzu under the LPLA, a sui

generis products liability law drafted exclusively for Louisiana.

Although the LPLA’s drafters drew upon external sources such as the

United States Department of Commerce’s Model Uniform Product

Liability Act in draftin g the LPLA, the “reasonably anticipated

use” element and the role t hat it plays in the LPLA statutory

scheme are unique to Louisiana law. S ee John Kennedy, A Primer on

the Louisiana Products Liability Act

, 49 La. L. Rev. 565, 569

(1989). “Reasonably anticipated use” is a term of art, which the1 0 I note the obvious but important point that, in the Act,

“reasonably” modifies “anticipated,” not “use.” A “use” can be

unreasonable yet, at the same time, be “reasonably anticipated” by

a manufacturer.

30 LPLA defines 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.” L A

. R EV

. S TAT

. A NN

. § 9:2800.53(7). 10

As John Kennedy, one of the drafters of the LPLA, has

explained, the LPLA’s treatment of use “departs from prior

[Louisiana] law but only in one respect[:]

. . . by substituting

‘reasonably anticipated use’ for ‘normal use.’” Kennedy, 49 L A

. L.

R EV

. at 584. Before the LPLA’s September 1988 effective date, a

Louisiana products liability claimant had to show that “his damage

resulted from a condition of the product that made it unreasonably

dangerous to normal use .” B loxom v. Bloxom , 512 So. 2d 839, 834

(La. 1987) (emphasis added) (citations omitted). “Normal u se”

included “all intended uses, as well as all foreseeable uses and

misuses of the product.” I d. (citations omitted). The

introduction of the phrase “reasonably anticipated” was intended to

narrow the test for t he “uses” that the manufacturer had to take

into account. S ee Kennedy, 49 L A

. L. R EV

. at 584; see also Dunne v.

Wal-Mart Stores, Inc.

, 679 So. 2d 1034, 1037 (La. App. 1996); Myers

v. American Seating Co.

, 637 So. 2d 771, 775 (La. App.

1994)(citatio ns omitted); D aigle v. Audi

, 598 So. 2d 1304, 1307

(La. App. 1992); Walker v. Babcock Indus., Inc.

, 582 So. 2d 258,

259 (La. App. 1991).

Since the enactment of the LPLA, the Louisiana co urts have31

most frequently defined “reasonably anticipated use” in t erms of

what it is not, contrasting a reasonably anticipated use with one

that is merely “conceivable.” See Myers

, 637 So. 2d at 779

(“Although this use m ay be a conceivable use, it is not a

reasonably anticipated use.”); Delphen v. Department of Transp. &

Dev.

, 657 So. 2d 328, 333 (La. App. 1995) (“T he more restrictive

scope of liability [under the reasonably anticipated use standard]

was meant to avoid prior confusion because vi rtually any

conceiv able use is foreseeable.”) (citation omitted); s ee also

Kennedy, 49 L A

. L. R EV

. at 596 (“‘Reasonably anticipated use’

. . .

convey[s] the important message that the manufacturer is not

responsible for accounting for every conceivable foreseeable

use.”). For example, a manufacturer might conceivably foresee, but

would not reasonably anticipate, that “a consumer might use a soft

drink bottle for a hammer, might attempt to drive his automobile

across water or might pour perfum e on a candle to scent it.”

Kennedy, 49 L A

. L. R EV

. at 586. By excluding such situations, “the

dr afters of the LPLA believed that ‘reasonably anticipated use’

would serve th e same purpose as ‘normal use’ but do so more

efficiently.” Id. at 585. As the majority acknowledges, however,

the boundaries of the reasonably anticipated use test nevertheless

remain imprecise.

B.

As did the distri ct court, the majority concludes that

Kampen’s use of the jack was not reasonably anticipated by Isuzu.

Like the panel majority before us, I disagree. None can question32

that the reasonably anticipated use of the jack was to elevate and

keep elevated the very Isuzu Impulse with which the jack was

supplied. And none can question that Kampen used the jack to

elevate the car and keep it elevated. This use is not merely

reasonably anticipated; it is the precise use intended by the

manufacturer. Scissors jacks cannot see or hear, so what their

users do (other than bumping into them or the cars they have

lifted) after using such jacks to elevate and suspend the cars

cannot affect the jacks. What the user does during or after that

use — whether it be changing a wheel, removing a shy cat from the

chassis, rescuing a trapped child, or looking for the source of

wheel noise

— cannot retrospectively alter the use to which the

jack has been put, that is, to elev ate the car and keep it

elevated, unless what the user does increases what is required of

the jack to elevate the car and keep it elevated.

Kampen’s “keep it elevated” use of the jack continued while he

proceeded to slide under the car in order to examine the back or

interior side of the left front wheel. Unfortunately, before he

c ould do so, the jack failed in the “keep elevated” facet of its

reasonably anticipated use when its metal teeth sheared, allowing

the vehic le to fall on Kampen, suddenly and without warning. As

this failure was spontaneous and wholly internal to the jack, the

vehicle would have dropped when it did even if Kampen had been

changing the left front wheel rather than attempting to look behind

it. Indeed, the jack would have failed, and the vehicle would have

fallen if Kampen had walked away from the car immediately after11 Typically, such a device is a round steel bar or tube which

is bent at approximately 45 degrees near one end and which has a

lug wrench on one end and a hubcap wedge on the other.

33 elevating it with the jack. Logic defies any conclusion other than

that the Kamp ens’ damages arose from Mr. Kampen’s reasonably

anticipated use of the jack.

At bottom, this case is just that simple. This can be

illustrated by posing the rhetorical question, “How do you use a

scissors jack to change a tire?” and by answering it, “You don’t;

you use a tire tool 11 and your own two hands to change a tire; you

use a scissors jack only to ele vate a car and hold it there.”

Because there is no property of a scissors jack that lends itself

to checking the interior side of a wheel to determine the source of

a noise, Kampen could not and thu s did not use the jack for that

purpose; neither could he have used the jack to change a flat tire

because no property of the jack lends itself to that purpose: The

jack has no l ug wrench and no hubcap removal device. To repeat,

only two human hands and one or more tire tools c an be “used” to

change a wheel. The jack serves merely to facilitate the tirechanging process by elevatin g and supporting the car during the

time it takes to remove and replace the tire.

The fact that Kampen got under the vehicle while it was held

aloft by the jack did not somehow transform his use of the jack

from a reas onably anticipated use to a use not reasonably

anticipated. After all, not every action taken in connection with1 2 Indeed, the drafters of the LPLA, who con sidered the Model

Uniform Product Liability Act (“MULPA”) in drafting the LPLA, see

Kennedy, 49 L A

. L. R EV

. at 570, eschewed the phrase “reasonably

anticipated conduct ,” which is used in MULPA, and instead chose the

phrase “reasonably anticipated use. ” C ompare Model Uniform Product

Liability Act, § 102, reprinted in 44 F ED

. R EG . 62714 (1979), with

L A

. R EV

. S TAT

. A NN . § 9:2800.53(7).

1 3 Dictionaries al so define “use” primarily in terms of the

manner in which or the method by which something is handl ed or

employed. See, e.g.

, W EBSTER ’ S N INTH N EW C OLLEGIATE D ICTIONARY 1299 (1984)

(defining “use” as “the act or practice of employing something

. . .[;] the fact or state of being used

. . .[;] a method or manner of

34 a product constitutes a “use” of the product. 12 Accordingly, our

task in conducting this analysis is to determine what kind of

plaintiff conduct should be conside red in connection with

anticipated use and what kind should not.

Both the language of the LPLA and the cases that have

interpreted its “reasonably anticipated use” element suggest that

this requirement is aimed principally at the manner in which, or

method by which, the claimant operated or handled the product. The

Act defines “reasonably anticipated use” in terms of the “use or

handling” of a product. L A

. R EV

. S TAT

. A NN

. § 9:2800.53(7).

Similarly, those courts that have construed Louisiana’s reasonably

anticipated use element since the Act was adopted have considered

the plaintiff’s “use” of the product to be his direct interaction

with the pr oduct. See Lockart , 989 F.2d at 868 (the use of an

excavator was hanging a pontoon from the bucket of the excavator

with a chain); Myers

, 637 So. 2d at 779 (the use of a folding chair

was standing on the back instead of the front portion of its seat);

Delphen

, 657 So. 2d at 333 (t he use of the bicycle was riding it

with the front tire loose). 13employing or applying something

. . . .”) (first set of

definitions). In some cases, of course, the purpose for which the

product is us ed is inseparable from the manner of use. Another

dictionary combines the concepts of manner and purpose, defining

use as “[t]he act of using; the application or employment of

something for some purpose .” T HE A MERICAN H ERITAGE D ICTIONARY 1331 (2d

Coll. Ed. 1985). For example, if a consumer uses a soda bottle as

a hammer, the purpose for which the product is used (to flatten or

nail somethin g) is intertwined with how the product was used

(hitting the bottle against a surface).

14 Although Isuzu presented some evidence that Kampen used the

jack on an uneven surface, Kampen’s expert t estified that the

physical evidence suggested that the base of the jack was “flat or relatively flat” when it collapsed, which is accepted as true for

summary judgment purposes.

35 When viewed in the light most favorable to the Kampens, the

summary judgment evidence shows that the manner in which Mr. Kampen

used the jack was one that Isuzu should have reasonably expected.

Again, he properly placed the jack; he operated it in an

unremarkable manner; and he even blocked the opposite wheel as

suggested in the owner’s manual. 14 Isuzu must have anticipated the

purpose for which Kampen used the jack — to elevate the very car

with which it was provided. Kampen’s getting under the car is not

analogo us to using a Coke bottle as a hammer, driving a car on

water, using perfume to scent a candle, see Kennedy, 49 L A

. L. R EV

.

at 586, or hanging a steel pontoon from the teeth of an excavator,

see Lockart , 989 F.2d at 864.

At most, Kampen placed himself in the “zone of danger” created

by the unreasonably dangerous jack. Placing oneself in the zone of

danger created by a defective product, however, is altogether

different from “using” the product. For example, in Lockart , the

“use” that the court found was not reasonably anticipated was not1 5 The majority argues that Johnson v. Black & Decker U.S.,

Inc. , 701 So.2d 1360, 1362 (La. App. 1997), somehow undermines my

understanding of use. Johnson , however, involved the plaintiff’s

use of a miter saw after a safety guard designed to protect the

user’s hands had been removed. Pre-LPLA case law held that the use

of a saw after the removal of a safety guard was not a normal use.

See Berry v. Commercial Union Ins. Co.

, 565 So.2d 487 (La. App.

1990)

. T he Johnson court concluded that the use of a saw after the

removal of a guard was a fortiori not a reasonably anticipated use.

Johnson

, 701 So.2d at 1365. Unlike the plaintiff’s use of the saw

in Johnson after its unanticipated alteration that made the s a w

more dangerous, Kampen used the jack in this case in the condition

that Isuzu supplied it and in the manner instructed. Holding that

Kampen’s getting under the car is relevant to the reasonably

anticipated use analysis would be like the J ohnson court holding

that Johnso n’s use of a saw manufactured w ithout a guard was not

reasonably anticipated because he placed his hand in front of the

unguarded blade.

36 the action of the plaintiffs in standing underneath the suspended

steel pontoon but rather their dangling the pontoon from the teeth

of an excavator bucket. L ockart

, 989 F.2d at 868. 15 In Kampen’s

case, getting under the car while it was being held aloft by the

jack was not a “use” of the jack within the meaning of the Act any

more than his retrieving a hat that is blown under the elevated car

would be “usi ng” the jack, or for that matter, than a child’s

crawling underneath the elevated car to retrieve a toy would be

“using” the jack. Defining the scope of use in this way is

consistent with the purpose of the reasonably anticipated use

requirement: “to express the types of product uses and misuses by

a consumer that a manufacturer must take into account when he

design s a product, drafts instructions for its use and provides

warnings about the product's dangers in order that the product not

be unreasonably dangerous.” Kennedy, 49 L A

. L. R EV . at 584.

One common thread runs through all the cases in which the16 The majority suggests that the relevant link is not between

the plaintiff’s conduct and the product’s failure but between the

plaintiff’s conduct and the plaintiff’s damages. To be sure, the

LPLA requires that the plaintiff prove that his “damage arose from

a reasonably anticipated use of the product.” L A

. R EV

. S TAT

. A NN

. §

9:2800.54(A). The question of just what conduct of the plaintiff

is relevant to the reasonably anticipated use analysis, however,

precedes the issue whether a use was reasonably anticipated and, if

so, whether the plaintiff’s damages aro se out of that reasonably

anticipated use.

The court of appeal’s decision in Johnson v. Black & Decker

, 701

So.2d 1360 (La. App. 1997), does not undermine my understanding of

37 Louisiana courts have found that a use of a product was not

reasonably anticipated. In every one, the manufacturer would have

had to do something else to make the product safe (or, more

precisely, not unreasonably dangerous) for the un anticipated use,

i.e.

, som ething that the manufacturer did not have to do to make

the product safe for its reasonably anticipated use. For example,

in Myers v. American Seating Co., a Louisiana court of appeal held

that a man ufacturer should not have reasonably anticipated that

someone would stand on the rear portion of a folding chair’s seat,

causing the chair to jackknife. The court explained: “The evidence

shows that, in a reasonably antic ipated use, the [folding chair]

performed in the manner a folding chair should perform. Only when

used in the manner [the plaintiff] used the chair, namely standing

on the rear portion of the chair seat, would the chair jackknife.”

637 So. 2d at 779. In other words, the hands-on (more precisely

feet-on) way in which the claimant handled the product caused it to

exhibit a dangerous characteristic that the product would not have

ex hibited if it had been used in a manner that the manufacturer

could reasonably have expect ed. 1 6 That is simply not the case weuse and the required relationship between the plaintiff’s conduct

and the product’s failure. In Johnson , the plaintiff severed two

fingers using a miter saw. The saw as manufactured was equipped

with a guard, but that guard had been removed. The court explained

that the “outright removal of the guard, without even a substandard

replacement, was not a reasonably anticipated alteration,” that

pre-LPLA case law held that use of a saw after a guard was removed

was not a normal use, and that a fortiori the use of a saw after a guard was removed was not a reasonably anticipated use. 701 So.2d

at 1365.

The plaintiff in Johnson argued that, even if his use of the saw

after the guard’s removal was not reasonably anticipated, his

recovery should not be barred because his injuries would have

occurred even had the guard been in place. I d. The court accepted

this argument on its own terms, although it concluded that the

evidence did not support that the damages would have occurred even

had the guard been in place. I d. at 1366. As the J ohnson court

explained, whether the plaintiff’s use of the saw without a guard

was reasonably anticipated would be moot if the injury would have

occurred even had the guard been left in place. 701 So.2d at 1365.

In effect, the Johnson court gives plaintiffs a route to circumvent

the reasonably anticipated use analysis; that is, if the plaintiff

can show that his injuries would have occurred in a reasonably

anticipated use of the product then it does not ma tter that his

actual use was not reasonably anticipated. Thus, the requirement

of a causal connection between the plaintiff’s mi suse and the

plaintiff’s damages established by the J ohnson court provides a

shield for the plaintiff against his unanticipated use. That is a

far cry from holding, as the majority does, that the reasonably

anticipated use element bars recovery whenever there is a causal

link between any aspect of the plaintiff’s conduct and his damages.

Neither should Johnson be read to mean that there need not be any

relationship between the plaintiff’s conduct and the failure of the

product before that conduct is relevant to the reasonably

anticipated use analysis.

38 have here. The forces operating on the jack in this case — only

mass and gravity

— were identical to those that would have been at

play had Kampen been changing a tire. If anything, the forces were

less: Kampen testified that he did not touch the underside of the

car befor e the jack collapsed; had he been changing a tire, some

force would have been transmitted to the car by loosening and

removing the lug nuts, pulling the flat tire off, putting the spare39

tire back on the wheel lugs, and resecuring the lug nuts. In no

way whatsoever did the fact that Kampen was under the car make the

jack’s failure any more likely to occur. The risk that Isuzu was

required to take into account in designing, manufacturing,

furnishing, and warning about the jack was that it would collapse

spontaneously under the weight of the vehicle that it was

purportedly designed and manufactured to lift and hold aloft for at

least as long as it takes to change a tire ( i.e.

, the risk that it

would fail when used as reasonably anticipated). Producing a jack

that would have been safe for Kampen to achieve his goal

— checking

f or the source of tire noise

— would have required nothing more

than what was required to make the jack safe and effective for its

intended purpose.

There is no Louisiana case in which a court found that a

plaintiff’s use was not reasonably anticipated when, as here, there

was absolutely no nexus between the plaintiff’s conduc t and the

failure of the product. This understanding of use is consistent

with the traditional role of “normal use,” which was linked to the

defectiveness of the product under the pre-LPLA law of Louisiana.

See Weber

, 250 So.2d at 756 (defining “defective” as “unreasonably

dangerous to normal use”). The LPLA drafters plainly did not

intend to change the essential function of the misuse element. S ee

Kennedy, 49 L A

. L. R EV

. at 584. In fact, e very case on which the

majority relies involved plaintiff behavior that contributed in

some manner to a product’s failure.

It has nevertheless been suggested by the majority that, even1 7 A manufacturer is only liable for “damages proximately caused

by a characteristic of the product that renders the product

unreasonably dangerous . . . .” L A

. R EV

. S TAT

. A NN . § 2800.54(A).

1 8 The LPLA requires the factfinder to balance the likelihood

and gravity of harm against the burden of an alternative design.

L A

. R EV

. S TAT

. A NN . § 9:2800.56

40 though Kampen’s presence under the vehicle did not have anything to

do with the jack’s failure, it increased the risk associated with

the jack’s failure and therefore should be considered part of the

use of the jack. Although it is true that Kampen would not have

suffered his precise injuries — conceivably none at all — had he

not been underneath the vehicle, the plain language of the LPLA

does not require that the damages resulting from the failure of a

product in its reasonably antic ipated use have been reasonably

anticipated; the Act requires only that the damages arise out of a

reasonably anticipated use of the product. S ee L A

. R EV

. S T A T

. A NN

.

§ 9:2800.54(A ). Considering the risk of harm (or reasonable

anticipation of the risk of harm) as part of the reasonably

anticipated use analysis conflates and confuses reasonable

anticipation of use with reasonable anticip ation of the risk of

harm. Although foreseeability of the risk of harm is properly

taken into considerat ion under other elements of the plaintiff’s

case, such as proximate cause 1 7 and design defect, 18 it i s never

relevant to the analysis of reasonably anticipated use.

Assume, for ex ample, that while a plaintiff is transporting

collectible books worth thousands of dollars in a rec reational

vehicle ( “RV”), the steering wheel falls off when the RV takes a

sharp right turn. As a result, the driver loses control of the41

vehicle, and it careens off the road. The driver breaks his leg in

the impact, but manages to escape before the vehicle catches fire.

Unfortunately, however, the books are destroyed in the fire. The

manufacturer obviously cannot defend a products liability action

for the driver’s personal injuries on the basis that the driver’s

damages did not arise out of a reasonably anticipated use of the RV

simply because it was being used to transport books rather than to

take a pleasure trip. Neither should a separate use analysis be

available to the manufacturer when it is sued for the loss of the

books. The transport of collectible books may have increased the

quantum or changed the kind of damages suffered by the plaintiff,

but, for the purposes of the reasonably anticipated use analysis,

there is no requirement that the manufacturer have reasonably

anticipated the type and quantum of the plaintiff’s damages , only

that the damages arose out of a reasonably anticipated use of the

RV. This does not necessarily mean that our hypothetical plaintiff

will be able to recover for the loss of the books, however, as he

may not be able to prove other elements of his case, such as

proximate cause. S ee L A

. R EV

. S TAT

. A NN

. § 2800.54(A). Again, there

is no nexus b etween the presence of the books in the RV and the

f ailure of the product

— like the absence of a nexus between

Kampen’s presence under the car and the failu re of the jack, but

unlike Myers’s standing on the rear of the seat of the folding

chair and its failure. To hold that the RV’s use was not

reasonably anticipated because the plaintiff’s conduct worsened the

injuries suffered as a result of the failure of the product during42

a reasonably anticipated use makes “reasonably anticipated use” do

the work of other elements of products liability law.

Moreover, to the exte nt that Kampen’s subsequent negligent

conduct in sliding under the elevated vehicle increased the risk of

harm from the jack’s wholly unrelated failure, Louisiana’s system

of comparative fault serves to ensure that th e manufacturer will

not have to bear that percentage of Kampen’s damages that is

attributable to his own negligent conduct, as opposed to the

defectiveness of the jack

. See Bell v. Jet Wheel Blast, Div. of

Ervin Indus. , 462 So. 2d 166 (La. 1985); Thomas C. Galligan , The

Louisiana Products Liability Act: Making Sense of It All

, 49 L A

. L.

R EV

. 629, 685 (1989) (stating “the obvious”: “that the [LPLA] makes

no change in Louisiana’s comparative fault law”). Indeed, the

impetus for applying comparative fault in products liability cases

is to provide the proper incentives to both the p roduct user and

the product manufactu rer. S ee Bell

, 462 So.2d at 171-72. As we

explained whe n adopting comparative fault in strict products

liability under our maritime jurisdiction:

The comparative fault standard allows the price of the

product to reflect the cost of its n on-negligent use.

Hence a comparative fault standard allows the

economically efficient amount of the product to be used.

Lewis v. Timco, Inc. , 716 F.2d 1425, 1433 (5th Cir. 1983) (en

banc). Treating Kampen’s negligence as a complete bar to his

recovery in this case would undermine the manufacturer’s incentives

to produce a product that is safe in its reasonably anticipated use

by immuni zing the manufacturer in those cases in which the

plaintiff’s damages result from a reasonably anticipated use of the1 9 The LPLA’s definition of “adequate warning” suggests that the

Louisiana legislature did not consider “ordinary” to be synonymous

with “reasonable”: unlike the definition of reasonably anticipated

use, which refers to an “ordinary person,” see L A

. R EV

. S TAT

. A NN

. §

9:2800.53(7)

, the definition of “ad equate warning” speaks of an

“ordinary reasonable user.” See id. § 9:280 0.53(9) (emphasis

added). It thus appears that the LPLA’s drafters did not intend to

r emove all unreasonable, and hence all negligent, product u sage

from the scope of reasonably anticipated use, regardless of whether

such negligence is defined by reference to an unheeded warning.

43 product, but are also magnified by his own misconduct.

When a product is unreasonably dangerous in a use that the

manufac turer could reasonably anticipate, the fact that the

claimant has placed himself in the zone of danger created by that

defecti ve product should not serve as a p er se bar to the

claimant’s recovery; at most it should reduce the quantum of his

recovery based on the percentage of his comparative fault. C f.

Terrebonne v. Goodman Mfg. Corp.

, 687 So.2d 124 (La. App. 1996).

If the L ouisiana legislature had intended the reasonablyanticipated-use requirement to function as a contributory

negligence bar, it could have said so. 19 As Louisiana had, at the

time of the LPLA’s enactment, only recently supplanted its old

contributory negligence bar by ad opting comparative fault in

ordinary tort situations, ascribing such an intention to the

state’s products liability theory is particularly counterintuitive.

The majority provides little assurance that comparative negligence

would still play a viable role in Louisiana product liability law,

given its example of a plaintiff who might still maintain a claim

under the LPLA. The majority asserts that Louisiana’s comparative

fault regime is adequately respected and maintained if a jury is44

allowed to judge the comparative negligence of an individ ual who

improperly manipulates a defective jack. In the majority’s

hypothetical, the plaintiff does not act in contravention of a

warning, the manufacturer has not provided adequate instructions,

the correct manner of usage is not clear, and the improper

positioning of the jack is not obviously dangerous. That the

majority must s tretch this far — relying on a hypothetical

plaintiff who is not even clearly negligent

— illust rates the

degree to which it has subsumed comparative fault wit hin its

conception of use that is not reasonably anticipated. Under the

majority’s holding, one is hard pressed to envision a plaintiff who

interacts with a product in such a way that he is negligent and yet

has still engaged in a reasonably a nticipated use; this is

particularly so for the class of individuals who fail to heed

warnings accompanyin g the products they use. By allowing all

plaintiff conduct that increases the risk of damages to define use,

the majority comingles reasonably anticipated use with comparative

negligence to come up with use that is not reasonably anticipated.

C.

Even assuming, arguendo , that getting under the car was somehow a

“use” of the jack, we need not, and therefore I would not, hold

that, as a matter of law, the manufacturer should not have

reasonably expected a user to place part of his or her body

underneath a jacked-up car. Persons changing tires cannot avoid

placing their hands and forearms around the tire and thus under45

the wheel well, not to mention that their hands, arms, and even

portions of their torsos, can be expected to be under the car

briefly when, for example, the tire changer reaches for lug nuts

that have rolled under the vehicle. It stretches credulity to

imagine that Isuzu was not aware that hands, feet, arms, and

other extremities would often be under a car elevated with its

scissors jack, regardless of the goal of the person using the

jack. The likelihood that portions of the user’s body will be

under the vehicle, however fleetingly, is one of the many reasons

why a manufacturer must design and fabricate a jack that will not

collapse spontaneously under the weight of the vehicle that it is

designed to support.

Affirmative evidence may have been necessary in Lockart to inform

the jury how an excavator is used because excavators are products

that are outside the experience and understanding of the average

juror. But jurors do not need an expert to tell them that

individuals who use automobile jacks allow parts of their bodies

to be under the vehicle, albeit ever so briefly. This is not

speculation; it is common sense grounded in virtually universal

experience. It is well within the bounds of propriety for us to

take judicial notice of the fact that a substantial number of

persons who use automobile jacks will place parts of their bodies

underneath cars held aloft by jacks. Cf. United States v. Ho , 94

F.3d 932, 937 (5th Cir. 1996) (taking judicial notice of the

“ubiquity of plastic ‘swipe’ cards in our modern society”); id.

at 946 (Barksdale, J., dissenting) (taking judicial notice that46

plastic swipe cards “are very, very seldom, if ever, blank on one

side”).

It is a flaw of logic to conclude that, just because Kampen may

have behaved unreasonably when he slid under the car, the

manufacturer should not have reasonably anticipated that someone

would do just that. Indeed, the Supreme Court of Louisiana has

recognized that it can be reasonably expected that ordinary

people will sometimes act without reasonable care. See Levi v.

Southwest La. Elec. Membership Co-op. , 542 So. 2d 1081, 1086 (La.

1989) (explaining that a power company’s placement of electrical

lines “may demand precautions against ‘that occasional negligence

which is one of the ordinary incidents of human life and

therefore to be anticipated’”)(citing Murphy v. Great Northern

Ry. Co. , 2 Ir. Rep. 301 (1897))(other citations omitted). No

doubt there will be overlaps between unreasonable uses of a

product and uses of a product that the manufacturer should not

reasonably anticipate. A use may be so unreasonable that, as a

matter of law, no manufacturer should be held to have reasonably

anticipated it. See, e.g.

, Hunter , 80 F.3d at 137 (per curiam

denial of rehearing); Lockart , 989 F.2d at 868. Kampen’s

actions, though, do not fall within that category. Even assuming

that he acted negligently in getting under the jacked-up car, a

jury could still find that his actions were or should have been

reasonably anticipated by the manufacturer of the jack. Had this

case not been dismissed at the summary judgment stage, I harbor

little doubt that a Louisiana jury would have seen to it that47

Kampen not be unduly rewarded for any irresponsibility on his

part.

D.

Finally, I turn to the role that Isuzu’s warnings should play in

the reasonably anticipated use analysis. In support of its

conclusion that Kampen’s use was not reasonably anticipated, the

district court relied on two warnings given by Isuzu, one in the

owner’s manual and the other on the vehicle’s spare-tire

compartment, which cautioned jack users not to “get beneath the

vehicle.”

This court in Lockart extensively discussed an instruction in the

excavator operator’s manual, which counseled against using the

excavator to lift anything by the teeth of the excavator’s

bucket. In that case, two experienced workers suspended a steel

pontoon from the teeth of the excavator’s bucket with chains and

then got underneath the pontoon to work on it. 989 F.2d at 865.

The chains slipped and the pontoon fell, killing one of the men

and injuring the other. Id. The Lockart plaintiffs tried to

turn the warning against the manufacturer, arguing that the

presence of the instruction indicated that the manufacturer

reasonably anticipated that workers would use the teeth of the

excavator’s bucket as a suspension device. We rejected that

argument, noting:

When a manufacturer expressly warns against using the product in

a certain way in clear and direct language accompanied by an easy

to understand pictogram, it is expected that an ordinary consumer

would not use the product in contravention of the express

warning.2 0 The court in Lockart refused to allow the plaintiff to “hoist

[the defendant] by its own petard.” 70 F.3d at 866. Clearly, any

given warning may not by itself demonstrate that a warned-against

use is reasonably anticipated. A manufacturer should not be held

responsible for a use not reasonabl y anticipated solely because

such a use is conceivable and because the manufacturer took the

added precaution of warning again st the conceivable, but not

reasonably expected, use. At the same time, it cannot logically be

said that any warning takes the proscribed act out of the realm of

reasonably anticipated use.

48 Id. at 867. 20 Ultimately, however, the decision in Lockart did

not turn on the warning, which the court acknowledged probably

never reached the workers. Instead, the court noted that “[e]ven

if the warning did not reach the users,” the dangers of dangling

a steel pontoon by a chain from the teeth of an excavator bucket

“should have been obvious to the ordinary consumer and certainly

to experienced workers.” Id. at 868. And, as we indicated in

Hunter v. Knoll Rig Equipment Manufacturing Co. , this court’s

decision in Lockart ultimately turned on the obviousness of the

danger inherent in stringing a steel pontoon from the teeth of an

excavator bucket. 70 F.3d 803, 806 & n.4 (5th Cir. 1995), reh’g

denied with per curiam opinion , 80 F.3d 136 (5th Cir. 1996). For

this reason alone, then, the panel majority’s decision in the

instant case was not in conflict with Lockart . Furthermore,

placing the emphasis on the obviously dangerous nature of

plaintiffs’ interactions with products is consistent with

Louisiana state court decisions that have found certain uses

outside the scope of reasonably anticipated use. See, e.g.

,

Myers , 637 So. 2d at 779 (“[A]ny danger presented by standing on

a folding chair is an obvious danger to a reasonable person.”);2 1 Louisiana is not alone in this approach. The Supreme Court

of Texas recently held that an adequate warn ing is not p er se dispositive of a claim that a product is defective in design or

construction. S ee Uniroyal Goodrich Tire Co. v. Martinez

, No. 95-

1159, 1998 WL 352929, at *1 (Tex. July 3, 1998).

49 Delphen , 657 So. 2d at 333-34 (“Danger imposed by the wheel would

have been obvious to a reasonable person.”).

Even more basically, the text and structure of the LPLA make

plain that the presence of an adequate warning is not dispositive

of the reasonably anticipated use inquiry. The Act provides that

a warning is merely one factor to be considered in conducting the

risk-utility balancing test to determine whether a product has an

unreasonably dangerous design. L A

. R EV

. S TAT

. A NN . § 2800.56(2). 21

There would be no need to include this provision in the Act if an

adequate warning would always dispose of the reasonably

anticipated use inquiry, which precedes the design defect

analysis. See Johnson v. Black & Decker , 701 So.2d 1360, 1365

(La. App. 1997) (citing Hunter , 70 F.3d 803). Notwithstanding

the majority’s claim that it may rely on a warning to dismiss a

plaintiff’s use as not reasonably anticipated even without

explicit statutory authority to do so, it is not proper to

ascribe surplusage or redundancy to legislative drafting.

Moreover, adopting a per se rule that any warned-against use is

not reasonably anticipated would produce harsh and unintended

results, allowing a manufacturer to insulate itself from

liability for uses of a defective product that are unquestionably

reasonably anticipated. Suppose, for example, that Isuzu

equipped its cars with tires that consistently fail when the cars2 2 It is safe to assume that, under the majority’s holding,

expert testimony will be required as a general rule, given the

majority’s indication tha t the Kampens’ expert metallurgist “was

not qualifi ed to testify as to the habits of users of automobile

jacks nor abo ut their propensities for disregarding explicit

warnings.” Slip Op. at 26.

50 are driven faster than 40 miles per hour and that Isuzu provided

a conspicuous and plain warning in each owner’s manual that its

cars should not be driven faster than 40 miles per hour. Would

it follow that driving an Isuzu car at a speed exceeding 40

m.p.h. is not a reasonably anticipated use? Obviously not. Yet

the majority provides incentive for the manufacturer to privilege

warnings over the safety of the product itself.

The majority has suggested that a warning is not per se

dispositive in the sense that the plaintiff can avoid summary

judgment by presenting evidence, above and beyond proof of the

facts of the accident, that the manufacturer should have

reasonably anticipated that the product would be used in

contravention of the warning. Presumably, such evidence would

take the form of expert testimony. 22 I would hold, instead, that

under the LPLA, proof of the presence of a warning or

instruction, without more, does not provide a basis for summary

judgment in the manufacturer’s favor on the reasonably

anticipated use issue when the operative facts of the accident

would allow a reasonable jury, in the exercise of its members’

common sense and life experiences, to conclude that the use was

reasonably anticipated. For example, suppose that an automobile

manufacturer warns that its car should not be driven on wet2 3 Suppose that the plaintiff is injured while boiling potatoes

on a stove that explo des. The plaintiff proves that his use was

reasonably anticipated through testimony that he was boiling

potatoes on the stove. It is certain beyond peradventure that the

plaintiff was using the stove as reasonably anticipated. Assume,

however, that the manufacturer has warned that the user of its

stove should not peer into a boiling pot to check the progress of

the food being prepared and that the plaintiff was looking into the

boiling pot when the stove exploded. The manufacturer cannot, by

denying that the plaintiff’s damages arose out of a reasonably

anticipated use, place a burden on the plaintiff to come forward

with “affirmative ev i dence” that the manufacturer should have

expected that users, while using the stove to heat food, would peer into boiling pots. This would be absurd. First, the stove’s

reasonably anticipated use is to heat the contents of pots and pans

placed on burners. The plaintiff discharges his burden by proving

tha t he was boiling potatoes. His damages arose out of this

reasonably anticipated use. That he was peering into the pot of

potatoes does not change this fact. To be sure, looking in the pot

may have affected the severity of the plaintiff’s injur ies

resulting from the explosion. The defendant may be able to prove

that the plaintiff’s damages were more severe because his face was

scalded with hot water. If the defendant can show that, given the

warning, it was negligent to peer into the pot, then the defendant

will have to pay only that portion of the plaintiff’s injuries not

attributable to the plaintiff’s negligence. But that does not mean

that the plaintiff’s injuries did not arise out of a reasonably

anticipated use. The defendant should not be able to short-circuit

the plaintiff’s cause of action solely because he peered into the

boiling pot.

24 The majority maintains that had Isuzu warned its jack users

not to use the jack while changing a tire, such a warning would be

legally ineffective, as this use is “unquestionably [a] reasonable”

use. Slip Op. at 17 n.5. This may be the case, but there is every

51 pavement. To avoid summary judgment when faced with evidence of

such a warning, should the plaintiff be required to present

affirmative evidence (likely in the form of expert testimony)

that a manufacturer should have reasonably anticipated that its

car would nevertheless be driven in the rain? The answer should

be no. 23 Yet the majority will now require a plaintiff to parade

expert witnesses before the jury to state what in many cases will

be the obvious. 24indication in the majority opinion that the plaintiff who uses a

defective jack for such a purpose would still be required to offer

affirmative evidence that such a use was reasonably anticipated in

light of the contrary warning. If the majority would allow a tirechanging plaintiff to reach a jury without such expert testimony,

it is by no means clear where it would draw the line between

“unquestionably reasonably anticipated” uses that are so obvi ous

that expert testimony is not required and those uses that are not.

52 In some cases, the plaintiff discharges his summary judgment

burden on the issue of reasonably anticipated use simply by

presenting evidence of the facts surrounding the accident. A

warning is simply one factor that the jury should take into

consideration when resolving the essentially factual question of

whether the plaintiff’s use of a product was reasonably

anticipated. Nothing in the LPLA elevates a warning to a special

status that makes it a talisman for resolving the reasonably

anticipated use issue. Moreover, I do not believe that Lockart

should be read to absolve the manufacturer of liability when a

plaintiff has disregarded a warning. To the extent that Lockart

would support a contrary reading, it should be overruled.

In this case, the presence of the warnings not to get under a car

that is held up only by a jack did not metaphysically transform

Kampen’s otherwise reasonably anticipated use of the jack — to

elevate the car and hold it aloft temporarily — into a use that

the manufacturer should not have reasonably anticipated. Had

Kampen heeded Isuzu’s warning, in all likelihood he would have

minimized his damages, but he would not have prevented the

collapse of the jack, nor would he necessarily have avoided all

the damages that arose from the product’s failure to keep the53

vehicle aloft, as it was designed to do. Kampen discharged his

summary judgment burden by presenting evidence that he used the

jack to raise the car and to keep it raised, the very function

for which the manufacturer designed, built, and supplied the

jack. What Kampen did thereafter, without so much as touching

the jack or the car, is wholly irrelevant — wholly lacking in

nexus — to the reasonably anticipated use issue. Consequently,

summary judgment in favor of Isuzu on the basis of the

reasonably-anticipated-use element constitutes reversible error.

Accordingly, I dissent.54