*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

-1-

United States Court of Appeals

Fifth Circuit

FILED

December 10, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

03-31213

DAVID TAYLOR,

Plaintiff-Appellant,

versus

UNITED TECHNOLOGIES CORPORATION, ET AL

Defendants,

CARRIER CORPORATION/CARRIER TRANSICOLD DIVISION

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana, 

03-0218

Before REAVLEY, DAVIS AND WIENER, Circuit Judges.

PER CURIAM:*

Plaintiff David Taylor (“Taylor”) challenges the district

court’s dismissal on summary judgment of his products liability

case on grounds that Taylor’s use of a diesel generator

manufacturer by defendant Carrier Corporation (“Carrier”) did not
2Louisiana law and more specifically the LPLA controls the

appeal of this diversity case. Erie Railroad Co. v. Tompkins,

304 U.S. 64 (1938). The LPLA sets out Louisiana’s exclusive

theories of liability for manufacturers for damages caused by

their products. La. R.S. 9:2800.52. To recover under the LPLA, a

plaintiff must first prove that his use was a “reasonably

anticipated use” as defined under the Act. La. R.S.

9:2800.54(A).

-2-

amount to a “reasonably anticipated use” of the product for

purposes of the Louisiana Products Liability Act (“LPLA”).2 We

agree with the district court that the use being made of this

product at the time of the injury could not have been “reasonably

anticipated” by Carrier, and affirm the judgment for the reasons

set forth below.

I.

Carrier manufactures generators that serve as power sources

for refrigeration units used in trans-continental shipping. The

generators run on diesel fuel, which is kept in a fuel tank that

runs along the sides and bottom of the generator. Two large

filler caps are located on each side of the top of the generator

which allow diesel to be added into the tank. A fuel plug is 

located about 3/4" from the bottom of the tank which allows the

generator’s fuel tank to be drained.

On December 10, 2001, Taylor, an experienced welder,

undertook the job of repairing a crack in one of Carrier’s

generators. Taylor pulled the plug and allowed the generator to

drain for one to two hours. He then washed the outside of the

tank and, after waiting a short time for it to dry, began to weld
3Though the caption includes United Technologies Corp. as a

named defendant, Carrier is the only defendant on appeal. The

district court, in its reasons for judgment, confirmed that

United Technologies Corp. is a parent corporation of Carrier and

had been dismissed from the action by the plaintiff. Oral

Reasons at 25.

4The district court also ruled on the defendant’s

substantive theories of recovery under the LPLA. The court found

that Taylor had failed to prove that Carrier’s generator was

-3-

on the unit. Diesel fuel remained in the tank, however, causing

the generator to explode and Taylor to be injured.

Taylor filed suit alleging that his injuries were

proximately caused by Carrier’s “unreasonably dangerous”

product.3 Specifically, Taylor argued that Carrier’s product is

“unreasonably dangerous” under the LPLA in (1)construction;

(2)design; and (3)inadequate warning. The focus of Taylor’s 

claim dealt with the location of the drainage plug; he argued

that because the plug is located along the side, rather than at

the bottom of the generator, it is impossible to fully drain all

fuel from the generator tank. 

The district court granted Carrier’s summary judgment and

held that Taylor failed to demonstrate that Carrier should have

“reasonably anticipated” his use of the generator. The court

found that Carrier should not be expected to anticipate that an

experienced welder such as Taylor would fail to wash the inside

of the tank and fail to remove the filler caps to allow the

flammable diesel fumes to ventilate. Thus, the court dismissed

the defendant’s suit.4
“unreasonably dangerous” in either construction, design, or

failure to warn. Oral Reasons at 22-24. Because Taylor cannot

pass the threshold test of “reasonably anticipated use,” we need

not reach these findings.

-4-

II.

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

handling of a product that the product’s manufacturer should

reasonably expect of an ordinary person in the same or similar

circumstances.” La. R.S. 9:2800.53(7). In Kampen v. American

Isuzu Motors, Inc., 157 F.3d 306, 309 (5th Cir. 1998), we held

that, by using the term “reasonably anticipated use,” rather than

the pre-LPLA term “normal use,” which included all reasonably

forseable uses and misuses, the Louisiana Legislature sought to

narrow the range of products’ uses for which a manufacturer would

be responsible. If the plaintiff cannot successfully establish

“reasonably anticipated use,” we need not reach the substantive

theories of recovery under the LPLA. See Hunter v. Knoll Rig &

Equip. Mfg. Co., 70 F.3d 803, 806 n.3 (5th Cir. 1995)(Because we

conclude...was not a “reasonably anticipated use”, we need not

reach the other issues presented.).

We agree with the district court that Carrier should not be

expected to “reasonably anticipate” that users of its products

would fail to properly wash or ventilate its fuel-containing

generators before welding upon them. Well-accepted industry
5See AWS F4.1:1999, RECOMMENDED SAFE PRACTICES FOR THE PREPARATION

FOR WELDING AND CUTTING OF CONTAINERS AND PIPING, 3.5.2, 5.2.3-.7.

6See 29 C.F.R. § 1910.252(Welding, Cutting, Brazing) and 29

C.F.R. § 1926.352 (Fire Prevention).

-5-

standards from the American National Standards Institute (ANSI)5

and regulations from the Occupational Safety and Health

Administration (OSHA)6 provide in great detail proper methods of

washing and ventilating fuel-containing vessels to ensure that

they are totally free of flammable materials before welding can

begin. Carrier had every reason to anticipate that anyone

repairing its fuel-filled generators would adhere to the ANSI and

OSHA guidelines and take common sense safety measures to fully

clean and ventilate products that formerly contained flammable

diesel fuel. The plaintiff in this case failed to follow the

safety measures, and offered no summary judgment evidence that

the manufacturer should have anticipated this failure. We

therefore AFFIRM the judgment of the district court.