United States Court of Appeals,

Fifth Circuit.

No. 92-4437.

Helen LOCKART, et al., Plaintiffs,

Helen Lockart and Howard Glen Sullivan, Plaintiffs-Appellants,

and

Transportation Insurance Co., Intervenor-Appellant,

v.

KOBE STEEL LTD. CONSTRUCTION MACHINERY DIV., et al., Defendants,

Kobelco America, Inc., Defendant-Appellee.

Howard Glen SULLIVAN, et al., Plaintiffs,

Howard Glen SULLIVAN, Plaintiff-Appellant,

v.

KOBE STEEL LTD. CONSTRUCTION MACHINERY DIVISION, et al., Defendants,

Kobelco America, Inc., Defendant-Appellee.

May 6, 1993.

Appeal from the United States District Court for the Western District of Louisiana.

Before WISDOM, JOLLY, and DEMOSS, Circuit Judges.

WISDOM, Circuit Judge:

This case involves an interpretation of the revised Louisiana Products Liabilit y Act (LPLA),

R.S. 9:2800.51 et seq. and in particular the meaning of "reasonably anticipated use" in 9:2800.54.

The district judge granted the defendant's motion for summary judgment. We AFFIRM.

I.

On March 19, 1990, Howard Sullivan and Jerry Dixon , both employed by Louisiana

Industries, Inc. at its Perryville site, attempted to repair the bottom of a steel pontoon. They used

a Kobelco hydraulic excavator to suspend the pontoon, while they worked beneath it. They rigged1 The bucket was not the original bucket manufactured by Kobelco but was a replacement

made by an unidentified manufacturer.

2 La.R.S. 9:2800.51.

3 Fed.R.Civ.P. 56(c). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91

L.Ed.2d 202 (1986). Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265

(1986).

4 Degan v. Ford Motor Co., 869 F.2d 889, 892 (5th Cir.1989). this by looping a chain around the teeth of the excavator's bucket 1 , and the pontoon was suspended

from this chain. Unfortunately, the chain slipped off the bucket, and the pontoon fell on the men,

killing Dixon and injuring Sullivan.

Sullivan and his wife and Dixon's mother filed separate suits in state court against Kobelco

and Louisiana Industries and its insurer under the Louisiana Products Liabilit y Act 2

. The actions were

removed and consolidated, and Louisiana Industries and its insurer w ere dismissed without

opposition. The insurer subsequently intervened to collect workers compensation benefits paid to

or on behalf of Dixon and Sullivan. Kobelco sought summary judgment on the product liability claims

which was granted on February 20, 1992. This appeal followed.

II.

Summary judgment is appropriate when there is no genuine issue as to any material fact and

the moving party is entitled to judgment as a matter of law. 3 We review a grant of summary judgment

de novo and may affirm "regardless of the correctness of the district court's rulings, when we find in

the record an adequate, independent basis for that result" 4

.

III.

The plaint iffs raise t wo issues on this appeal. They argue that the district court erred in

interpreting the Products Liabilit y Act, in particular the meaning of "reasonably anticipated use".

They also contend that the defendant did not meet its burden of proof that the plaint iff's use of the

product was not reasonably anticipated.

A. Interpreting the Products Liability Act

The relevant section of the Products Liability Act is La.R.S. 9:2800.54 which provides:A. The manufacturer of a product shall be liable to a claimant for damage proximately caused

by a characteristic of the product that renders the product unreasonably dangerous when such

damage aro se fro m a reasonably anticipated use of the product by the claimant or another

person or entity.

B. A product is unreasonably dangerous if and only if:

(1) The product is unreasonably dangerous in construction or composition as provided in R.S.

9:2800.55;

(2) The product is unreasonably dangerous in design as provided in R.S. 9:2800.56;

(3) The product is unreasonably dangerous because an adequate warning about the product

has not been provided as provided in R.S. 9:2800.57;

(4) The product is unreasonably dangerous because it does not conform to an express

warranty of the manufacturer about the product as provided in R.S. 9:2800.58.

C. The characteristic of the product that renders it unreasonably dangerou s under R.S.

9:2800.55 must exist at the time the product left the control of its manufacturer. The

characteristic of the product that renders it unreasonably dangerous under R.S. 9:2800.56 or

R.S. 9:2800.57 must exist at the time the product left the control of its manufacturer or result

from a reasonably anticipated alteration or modification of the product.

D. The claimant has the burden of proving the elements of Subsections A, B a nd C of this

Section.

The defendants suggest that this section creates a t wo -step inquiry. One need reach the

question of whether the product is unreasonably dangerous only if the use is reasonably anticipated.

In this case, however, since we hold that the use was not reasonably anticipated because under the

circumstances an adequate warning was provided, our analysis extends to the warning.

In the operators manual, as is seen in the diagram below, item number 17 states: "Never lift

a load from the bucket teeth". An illustration of a load being lift ed by the bucket teeth with an "X"

through the diagram is directly underneath this warning. This warning is unequivocal. The plaintiffs

assert therefore that it must be a reasonably anticipated use becau s e Kobelco specifically warned

against it. In other words, Kobelco is to be hoist by its own petard.

CA (93) 2027, SIZE-24 PICAS, TYPE-PDI

The plaintiffs, however, have incorrectly interpreted the term "reasonably anticipated use".

Reasonably anticipated use is defined in R.S. 9:2800.53(7) as "a use or handling of a product that the

product's manufacturer should reasonably expect of an ordi nary person in the same or similar

circumstances". The Louisiana Appellate Court has recently held in D aigle v. Audi of America that5 598 So.2d 1304, 1307 (La.App. 3d Cir.1992).

6 John Kennedy, A Primer on the Louisiana Products Liability Act, 49 La.L.Rev. 565 (1989).

John Kennedy, along with Prof. H. Alston Johnson III, drafted the Act.

7 Kennedy at 586.

8 Id.

9 Gordon v. Niagara Mach. & Tool Works, 574 F.2d 1182 (5th Cir.1978).

10 433 So.2d 354 (La.App. 3d Cir.1983). "this definition is narrower in scope than its pre-LPLA counterpart, "normal use', which included all

reasonably foreseeable uses and misuses of the product" 5

. This more restrictive scope of liability was

to avoid prior confusion and because virtually any conceivable use is foreseeable. 6 For example, using

a soft drink bottle as a hammer or attempting to drive an automobile across water are foreseeable but

not reasonable. 7 The standard is objective, thus "reasonably anticipated use" refers to the uses the

manufacturer "should reasonably expect of an ordinary consumer". 8

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. Here, however, the

owners manual and thus the warning probably never reached the ultimate users.

In a case arising from Mississippi, this Court has held that in addition to a warning in a manual

being inadequate because it was not clear, it was also inadequate because placing the warning in the

manual as opposed to placing it on the product would not reasonably bring the warning to t he

atte ntion of the users of the product. 9 This result was based on an interpretation of § 388

Restatement (Second) of Torts. As an E rie court, however, we must rely on Louisian a law. In

Broussard v. Continental Oil Co. 10

, the Louisi ana Appellate Court confronted this same problem.

Broussard, an employee of Continental Oil, was injured when his power drill sparked a natural gas

explosion, and the court inquired wh et her Black & Decker's warning in the owner's manual was

sufficient or should Black & Decker have placed the warning on the drill itself. The court remarked

that it must consider not only the warning relating to the injury that occurred here b ut the other11 Broussard at 358.

12 Kennedy at 615 and n 202-03. Kennedy cites Broussard i n the footnote to the quoted

sentence.

13 See also R.S. 9:2800.57 B(2) which sets forth the standard for determining the adequacy of a

warning: "The user or handler of the product already knows or reasonably should be expected to warnings as well. In that case, at least ten warnings were deemed worthy of being placed on the drill

itself. The court, assuming arguendo that only ten were necessary, noted several deficiencies in any

scheme for putting them all o n t he drill. "As a practical matter, the effect of putting at least ten

warnings on the drill would decrease the effectiveness of all of the warnings. A consumer would have

the tendency to read none of the warnings if the surface of the drill became cluttered with the

warnings

... we fear that an effort to tell all about each hazard is not practical either from a point of

view of availabilit

y of space or of effectiveness." 11 Although this case appeared before the revisions

to the LPLA, "[The definition of adequate warning] was not intended to and does not change prior

Louisiana law." 12

With regard to the excavator in this case, there are many warnings which are as worthy of

display as the admonition not to lift a load from the bucket teeth. The preceding warning for example

instructs the operator what to do in the event that the excavator comes into contact with live power

lines. This warning to remain in one's seat if at all possible is at least as important as the bucket teeth

one. With a piece of machinery as complex as an excavator, there are numerous warnings which

m ight seem to be required to be placed on the equipment, but as the Broussard court stated, it i s

simply impractical to place all these on the product rather than in a manual. Further even if the

warning had been placed on the bucket scoop, it would have made no difference in this case, because

the original scoop made by Kobelco was replaced with a scoop made by another manufacturer. This

would be a different case if the plaint iffs had presented evidence that despite the warnings, Kobelco

should have been aware that operators were using the excavator in contravention of certain warnings.

No evidence suggests such a scenario.

Even if the warning did not reach the users, the LPLA speaks of "an ordinary person in same

or similar circumstances". 13 These users had many years experience mining and working with heavyknow of the characteristic of the product that may cause damage and the danger of such

characteristic."

14 Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir.1990). machinery, and both had taken company courses in equipment handling in 1986. The dangers o f

using the bucket to suspend a heavy pontoon should have been obvious to the ordinary consumer and

certainly to experienced workers.

The district court, therefore, did not err in granting a summary judgment based on its holding

that Dixon and Sullivan's use of the excavator to suspend the pontoon was not a reasonably

anticipated use within the meaning of the Louisiana Products Liability Act.

B. The Burden of Proof

Judge Rubin in one of his last opinions and in a products liabilit y context in which the grant

of summary judgment for th e defendant was affirmed set forth the rules governing the burden of

proof:

The moving party bears the burden of establishing that there are no genuine issues of material

fact

... if the crucial issue is one for which the nonmoving party will bear the burden of proof

at trial, [the moving party may] merely point out that the evidentiary documents in the record

contain insufficient proof concerning an essential element of the nonmoving party's claim or

defense. Once the moving party makes that showing, however, the burden shifts to the

nonmoving party to show that summary judgment is not appropriate. The nonmoving party

cannot discharge that burden by referring to t he "mere allegations or denials' of the

nonmoving party's pleadings; rather, t hat party must, either by submitting opposing

evidentiary documents or by referring to evidentiary documents already in the record, set out specific facts showing that a genuine issue exists. 14

The LPLA is clear: the plaintiffs bear the burden of proving at trial that their use was a

reasonably anticipated one. Kobelco argued in its motion for summary judgment that because of the

warning and the obvious danger, this was not a reasonably anticipated use under the LPLA. The

plaint iffs failed to set out specific facts in their motion in opposition to summary j udgment. They

provided no hard evidence that another warning would have been feasible or that these experienced

workers should not have reasonably appreciated the risks involved in suspending the pontoon from

the bucket teeth. Since the plaintiffs did not sustain their burden, summary judgment was appropriate.

IV.

While we acknowledge that summary judgment is not usually appropriate for a products15 Lavespere at 78. See also Fontenot v. Upjohn, 780 F.2d 1190, 1196 (5th Cir.1986).

liabilit y case 15

, in this instance in which the manufacturer provided a clear warning, the product was

handled by experienced users, and no hard evidence was offered to rebut these facts, we must

AFFIRM the judgment of the district court.