### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 30276 Summary Calendar

TOBY ARANT,
Plaintiff

– Appellant
v.
W AL

- MART STORES, INC., TAH S IN INDUSTRIAL, CO RP ., USA , Defendant s

– Appellees

Appeal from the United States District Court for the Western D istrict of Louisiana No. 5:13

- CV

- 220 9

Before KING, CLEMENT , and OWEN , Circuit Judges

. P ER CURIAM: * Toby Arant appeals the summary

- judgment dismissal of his products liability claims again st Wal

- Mart Stores, Inc. (“Wal

- Mart”) , and Tah s in Industrial, Corp., USA (“Tahsin”) . For the following reasons, we affirm. STATEMENT OF FACTS Arant purchased two 1” ratchet straps , manufactured by Tahsin, at Wal

Mart in June or July of 2011. He u sed the straps to secure a lock

- on tree

- stand
to a tree for hunting . On September 9, 2012, when Arant climbed onto the

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 8, 2015

Lyle W. Cayce Clerk Case: 15-30276 Document: 00513224686 Page: 1 Date Filed: 10/08/2015No

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- 30276

2 stand , the straps failed , and A rant fell over twe nty feet to the ground , sustaining serious injuries. Arant sued Wal

- Mart and Tahsin in Louisiana state court under the Louisiana Products Liability Act (“LPLA”) , claiming the straps were defective and unreasonably dangerous

. He also brought a claim for b reach of warranty against redhibitory defects. 1 Wal

- Mart and Tahsin removed the case to federal court and filed a motion for summary judgment. The district court granted the motion, and Arant timely appealed. STANDARD OF REVIEW “We review a grant of summa ry judgment de novo , applying the same standard as the district court. ” Broussard v. Procter & Gamble Co. , 517 F.3d 767, 769 (5th Cir. 2008). A motion for summa ry judgment is properly granted if there is no genuine issue of material fact. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). “We review all evidence in the light most favorable to the nonmoving party.” Broussard , 517 F.3d at 769. The nonmoving party, however, cannot satisfy his summary judgment burden with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence. Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994). In the absence of proof, the court does not “assume that t he nonmoving party could or would prove the necessary facts.” Id. (citing Lujan v. Nat ’ l Wildlife Fed ’n , 497 U.S. 871, 888 (1990)). DISCUSSION To maintain a products liability action under the LPLA, a plaintiff must show that his damage s were proximately caused by an unreasonably dangerous character istic of the product and that his damages arose from a

1 On appeal, Arant does not raise the district court’s dismissal of his redh ibitory d efect claim . We consider Arant to have waived that issue

. Case: 15-30276 Document: 00513224686 Page: 2 Date Filed: 10/08/2015No

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3 reasonably anticipated use of the product. La. Rev. Stat. Ann. § 9:2800.54(A). The plaintiff bears the burden of proving that a product is unreasonably dang erous, and must establish either: defective construction or manufacturing, defective design, inadequate warning, or breach of express warranty

. Id. ; s ee Stahl v. Novartis Pharm s
. Corp. , 283 F.3d 254 , 260

– 61 (5th Cir. 2002). Defects are not presumed by the mere fact that an accident or injury occurred. Krummel v. Bombardier Corp. , 206 F.3d 548, 551 (5th Cir. 2000). On appeal, Arant challenges the district court’s dismissal of his theories of defective construction and inadequ ate warning. First, f or a claim of defective construction, Arant had to offer evidence that the product “ deviated in a material way from the manufacturer’s specifications or perfor mance standards for the product , ” “ at the time the product left its manufacturer’s control.” La. Rev. Stat. Ann. § 9:2800.55 (emphasis added) ; Jenkins v. Int’l Paper Co. , 945 So. 2d 144, 150 (La. Ct. App. 2006)

. Arant asserts that at the time of his accident the webbing of the straps tore in half, and the hooks on the straps did not bend. He maintains that he purchased the ratchet straps within a year of their failure, used and stored the straps properly, and still the straps tore. He offers, however, neither e vidence nor expert testimony that indicate s the dangerous characteristic of the straps

— the specific deviation in construction

— that caused his injuries. 2 See Morris v. United Servs

. Auto. Ass’n , 756 So. 2d

2 Arant provides only his factual account of the accident, and the events preceding it. But “ [a] review of the case law involving Louisiana products liability claims reveals that courts generally d emand, or at minimum favor, expert testimony to prove an unreasonably dangerous defect in composition or design of a product.” Haskins Trucking Inc. v. Goodyear Tire & Rubber Co ., No. 07

- 0585, 2008 WL 1775272, at *5 (W.D. La. Apr. 17, 2008)

. “The principal means by which a products

- liability plaintiff submits material evidence of either a defective design or a failure to warn is through an expert witness’s report.” Brown v. Caterpillar, Inc. , 54 F. App’x 794, at *2 (5th Cir. 2002) (per curiam) . “A court can not assess whether a product is ‘unreasonably dangerous’ without such information.” Id. ; cf. Grenier v. Med

. Eng’g Corp. , 99 F. Su pp. 2d 759, 764 (W.D. La. 2000) ( rejecting plaintiff’s defective design claim because of a lack of expert testimony). Case: 15-30276 Document: 00513224686 Page: 3 Date Filed: 10/08/2015No

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4 549, 558 (La. Ct. App. 2000). And to survive summary judgment, Arant cannot simply rely on a purely speculative inference of d efective construction from the fact that the straps failed, i.e. that an accident occurred. See Ayala v. Enerco Grp

. , Inc. , 569 F. App’x 241, 247 (5th Cir. 2014) (per curiam) (“A plaintiff must offer evidence of a defect ba sed on more than mere conjecture . . . .”); Morris , 756 So. 2d at 558 (explaining that “[i]t is incumbent” for a claimant to demonstrate “how the product in question materially deviated from [the manufacturer’s] standards so as to render it ‘unreasonably dangerous’”). Conversely , Wal

- Mart and Tahsin presented expert te stimony that the straps failed because they had been left outside, exposed to the elements, for over three years. Wal

- Mart’s and Tahsin’s experts opined that the straps were attached to the tree over multiple annual growth cycles , resulting in visible disc oloration, fraying, and wear. Although Arant maintains that he owned the straps for only a few months, he presents no evidence or explanation of the strap’s defective construction. A s an alternative argument, he c ontends that under res ipsa loquitur his ci rcumstantial evidence is sufficient to establish an issue of fact

. The doctrine of res ipsa loquitu r allows for an inference of negligence or liability when the circumstances of an accident are so unusual as to preclude other probable explanations. See Law son v. Mitsubishi Motor Sales of Am., Inc. , 938 So. 2 d 35, 4 3

– 4 4 (La. 2006). But for res ipsa loquitu r to apply, a plaintiff must “sufficiently exclude inference of the plaintiff’s own responsibility or the responsibility of others besides [the] defendant in causing the accident.” Id. at 50 ; Glad n ey v. Milam , 911 So. 2d 366, 371 (La. Ct. App. 2005) (explaining that “if there is an equally plausible explanation for the occurrence, the doctrine is not applicable”)

. Again, Wal

- Mart and Tahsin presented expert and technical evidence to support their theory that the straps failed due to prolonged exposure to the elements. And the circumstances of Arant’s accident are not so unusual as to exclude other possible explanations Case: 15-30276 Document: 00513224686 Page: 4 Date Filed: 10/08/2015No

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5 for the straps’ failure. Because reasona ble hypotheses as to other causes of the straps ’ failure remain, Arant can not avail himself of res ipsa loquitur

. Second, Arant alleges that the ratchet straps were unreasonably dangerous because of an inadequate warning. To maintain an inadequate warni ng claim, a plaintiff must demonstrate that “the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the p roduct.” La. Rev. Stat. Ann. § 9:2800.57;

s ee Krummel v. Bombardier Corp. , 206 F.3d 548, 552 (5th Cir. 2000). But, “[t]here is no duty to warn of dangers about which the buyer knows or should be aware, and there is no duty to warn of the particular consequ ences that may flow from improper usage when those consequences are readily cognizable.” Hesse v. Champ Serv

. Line , 758 So. 2d 245, 249 (La. Ct. App. 2000) ; s ee Batiste v. Brown , 86 So. 3d 655, 661 (La. Ct. App. 2012) (granting summary judgment on failure

- to

- warn claim where plaintiff had knowledge of the dangers associated with the product). A rant suggests that the ratchet strap instructions were too vague and inadequately advis ed buyers that the straps may weaken when left outdoors. In deposition testimony, however, Arant disclosed that he was aware of the risks associated with leaving a tree stand and its components exposed to the elements, and stated that his injuries did not result from inad equate warnings or instructions. Because A rant had knowledge of the dangers associated with environmental exposure, Wal

- Mart and Tahsin had no duty under the statute. Arant failed to introduc e any genuine issue of material fact that the straps were unreasonably dangerous. Because we find the district court properly granted summary judgment to Wal

- Mart and Tahsin, we AFFIRM. Case: 15-30276 Document: 00513224686 Page: 5 Date Filed: 10/08/2015