* Pursuant to Local Rule 47.5, the Court has determined that this

opinion s h ould not be published and is not precedent except under the limited

circumstances set forth in Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 96-30065

(Summary Calendar)

_________________

CHARLES P. WILEY,

Plaintiff-Appellant,

versus

GENERAL MOTORS CORPORATION, also known as

Chevrolet-Geo, also known as Chevrolet,

Defendant-Appellee.

Appeal from the United States District Court

For the Middle District of Louisiana

(94-CV-48-B-M1)

October 9, 1996

Before EMILIO M. GARZA, STEWART and Parker, Circuit Judges.

PER CURIAM: *

Charles P. Wiley was injured in an automobile accident. Wiley

alleges that during the accident, his drivers-side seat belt came

unbuckled, causing him more serious injury than he would have

suffered had the seat belt operated properly. Some time after

Wiley’s accident, Wiley’s aunt, Eunice White, the owner of the2 GM’s motion for summary judgment pointed to Wiley’s failure to adduce

any evidence on essential elements of each ca use of action he was asserting.

Further, GM presented the deposition of the mechanic that examined and replaced

the seat belt in question. He stated that after careful examination, he could

detect no defect in the seat belt mechanism. GM also presented the deposition

of the officer who had investigated the accident. He stated that at the time of

the accident Wiley did not inform him of a problem with the seat belt, and that

if Wiley had, he would have noted it in the accident report.

3 See Lavespere v. Niagara Machine & Tool Works, Inc. , 910 F.2d 167,

173 (5th Cir. 1990) (ho lding that district courts must treat motions for

reconsiderat ion filed within ten days of entry of summary judgment as F E D

. R.

C IV

. P. 59(e) motions to alter or amend judgment), cert. denied

, 510 U.S. 859,

114 S. Ct. 171, 126 L. Ed. 2d 131 (1993).

-2- automobile, received a recall notice concerning the possibility of

a defective seat belt. Eunice took the automobile to the

dealership to have the belt examined. Pursuant to GM’s recall

plan, the mechanic at the dealership examined the seat belt, found

nothing wrong with it, but replaced the latching mechanism as a

precaution ary measure. The mechanic then disposed of the old

parts. Wiley then filed suit against GM in state court, alleging

design and manufacturing defects and failure to warn concerning the

seat belt mechanism. GM removed the case to federal court. Wiley

and GM engaged in discovery, and GM moved for summary jud gment. 2

Wiley failed to respond to GM’s motion, and the district court

granted GM’s motion for summary judgment. Wiley then filed a

motion to reconsider, which the district court properly construed

as a motion to alter or amend the judgment. 3 After reviewing the

motion, the district court declined to grant Wiley’s motion. The

district court found that Wiley had still failed to present

sufficient competent summary judgment evi dence to survive GM’s-3-

motion for summary judgment. Wiley now appeals the district

court’s order granting summary judgment in favor of GM and denying

Wiley’s motion to alter or amend the judgment.

We review a d istrict court’s denial of a motion to alter or

amend judgment for abuse of d iscretion. L avespere v. Niagara

Machine & Tool Works, Inc. , 910 F.2d 167, 174-75 (5th Cir. 1990),

cert. den ied , 510 U.S. 859, 114 S. Ct. 171, 126 L. Ed. 2d 131

(1993). We review the district court’s grant of summary judgment

de novo

, and draw all reasonable inf erences in favor of the nonmoving party. S .E.C. v. Recile

, 1 0 F.3d 1093, 1097 (5th Cir.

1993). Summary judgment is appropriate where “the pleadings,

depositions, answers to interrogatories, an d admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and the moving party is entitled to

a judgme nt as a matter of law.” F E D

. R. C IV

. P. 56(c). Once the

moving party has filed a properly supported motion for summary

judgment, the non-moving party “may not rest upon the mere

allegations of denials in its pleadings, but must instead set forth

specific facts showing that there is a genuine issue for trial.”

Recile

, 10 F.3d at 1097. In the absence of specific facts, we will

not engage in speculation as to whether “the nonmoving party could

or would prove the necessary facts.” Little v. Liquid Air Corp.

,

37 F.3d 1069, 1075 (5th Cir. 1994) ( en banc ).

The sum total of Wiley’s competent summary judgment evidence4 The physician admitted that he had no qualifications in the field of

biomechanics, and was therefore unqualified to provide any evidence as to whether

or not the seat belt failed.

5 The fact that the seat belt latching mechanism had been recalled

provides no evidence of defect in this case. According to deposition testimony,

the recall was for the specific problems of the seat belt not engaging at all and

it s occasional failure to disengage. According to this deposition testimony,

which was not rebutted by any evidence presented by Wiley, the problem that the

recall sought to address was easily detectable by the user because “he would know

instantly if the seat belt didn’t latch.” Wiley testified that he had no problem

properly buckling the belt prior to the accident.

-4- consisted of: (1) Wiley’s deposition in which he states that he

properly buckled the seat belt, and that it came unlatched during

the accident, and (2) the testimony of a physician that his

injuries were consistent either with an accident in which someone

was not wearing his seat belt, or an accident in which a person’s

seat belt came u nlatched during the accident. 4 After careful

r eview of the record and relevant law, we hold that the district

court did not err in granting summary judgment in favor of GM. 5

Under Louisiana law, in order to prevail on a claim for

manufacturing or design defect, or failure to warn, a plaintiff

must present some evidence that the “characteristic of the product

that renders it unr easonably dangerous” existed “at the time the

product left the control of its manufacturer.” L A

. R EV

. S TAT

. A NN

.

§ 9:2800.54(C). The claimant has the burden of proving that the

defect existed at the time it left the manufacturer’s control. I d

.

at § 9:2800.54(D). The automobile was two years old when the

accident occurred. Wiley presented absolutely no evidence that the

seat belt was defective and unreasonably dangerous when it left6 The unlatching could have been caused by human error, or a defect

that arose in the intervening two years, either from misuse or some other cause.

In short, Wiley’s testimony does not raise a reasonable inference that a defect

existed at the time the product left the control of GM.

7 Indeed, the deposition of the mechanic who performed the recall

inspection states that there was nothing wrong with the condition of this

particular seat belt. It simply did not exhibit any of the characteristics of

the flawed seat belts that were recalled.

-5- GM’s control. Wiley’s only testimony was that he buckled the seat

belt and that the seat belt came unlatched during his accident.

There are a myriad of explanations for this phenomenon that do not

indicate that the product was defective when it left GM’s control. 6

Without evidence that the seat belt was defective at the time it

left GM’s control, summary judgment is appropriate. See Scott v.

Whi te Trucks , 699 F.2d 714, 724-25 (5th Cir. 1983) (upholding

judgment notwithstanding the verdict on claims of design defect,

manufacturing defect, and failure to warn, on the grounds that

plaintiff had faile d to produce any evidence that product was

defective when in left the hands of the defendant).

In addition, in order to recover for a manufacturing defect,

Wiley must present some evidence that at the time the product left

GM’s control, it “deviated in a material way from the

manufacturer’s specification for performance standards for the

p roduct or from otherwise identical products manufactured by the

same manufacturer.” L A

. R EV

. S TAT

. A NN

. § 9:2800.55. Wiley has

presented no evidence that the seat belt mechanism deviated in any

way from either G M’s specifications or performance standards. 7-6-

Without such proof, summary judgment is appropriate on this claim.

See Lawrence v. General Motors Corp.

, 73 F.3 d 587, 589 (5th Cir.

1996) (applying same standard applicable in summary judgment cases

and reversing jury verdict on the grounds that plaintiff had failed

to present any evidence that product deviated from specifications

or performance standards).

Further, to recover for a design defect, W iley must present

evidenc e that “[t]here existed an alternative design for the

product that was capable of preventing the claimant’s damage,” and

that “the likelihood that the product’s design would cause the

clai mant’s damage and the gravity of that damage outweighed the

burden of the manufacturer of adopting such alternative design and

the adverse effect, if any, of such alternative design on the

utility of the product.” L A

. R EV

. S TAT

. A NN

. § 9:2800.56. Wiley has

presented no evid ence that an alternative design existed for the

seat belt which would have pre vented his injury nor that such a

design would be cost ef fective for GM to use in its products.

Absent such evidence, summary judgment is appropriate on this

claim. S ee Lawrence

, 73 F.3d at 590 (applying same standard

applicable in summary judgment cases and reversing jury verdict on

the grounds that plaintiff had failed to present any evidence on

the existence of an effective alternative design and its potential

cost effectiveness).

In short, as to each cause of action Wiley asserts, he has8 We also find that the district court did not abuse its discretion in

denying Wiley’s motion to alter or amend the judgment. S ee Lavespere

, 910 F.2d

at 173 (setting forth th e considerations under which a district court should

consider a motion to alter or amend judgment).

-7- failed to present any evidence as to at least one element of the

claim. In such a case, summary judgment is warranted. S ee Pavone

v. Mississippi Riverboat Amusement Corp.

, 52 F.3d 560, 565 (5th

Cir. 1995) (holding that “to defeat a motion for summary judgment

the nonmovant must present evidence sufficient to establish the

existence of each element of his claim as to which he will have the

burden of proof at trial”). 8

For the foregoing reasons , we AFFIRM the district court’s

order granting summary judgment in favor of GM and denying Wiley’s

motion to alter or amend the judgment.