UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 96-30628

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JAMES P. ASHER, ET AL,

Plaintiffs,

LOUISIANA WORKERS’ COMPENSATION CORPORATION,

Intervenor Plaintiff - Appellant,

versus

HYDROSONIC EQUIPMENT & MANUFACTURING CO., INC., ET AL,

Defendants,

NCH CORPORATION,

Defendant - Appellee,

EXCELL MANUFACTURING COMPANY INCORPORATED,

 Third Party Defendant - Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

(94-CV-2157-T)

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March 12, 1997

Before JONES, STEWART, and DENNIS, Circuit Judges,
 

* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

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PER CURIAM:*

The district court granted summary judgment to NCH

Corporation and Excell Manufacturing Company, finding that

Plaintiff James Asher (“Asher”) and the intervening Plaintiff, the

Louisiana Workers’ Compensation Corporation (“LWCC”), failed to

raise a genuine issue of material fact concerning appellees’

liability for the injuries suffered by Asher pursuant to the

Louisiana Products Liability Act(“LPLA”), La. R.S. 9:2800.51 et

seq. In particular, the district court found that Asher’s use of

the Twin Clean II steam cleaner, that is, his decision to turn the

machine on and off with vise-grip pliers connected to a bare metal

switch shaft while he stood in water, was not a reasonably

anticipated use of the product. Further, the court found that the

product had been modified after it left the manufacturer’s control.

Asher did not appeal, but LWCC has done so.

Having carefully considered the briefs, pertinent parts

of the record, and the arguments of counsel, we affirm the district

court’s finding on the issue of modification. La. R.S.

9:2800.54(C) states the “[c]haracteristic of the product that

renders it unreasonably dangerous must exist at the time the

product left the control of its manufacturer or result from a
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reasonably anticipated alteration or modification of the product.”

La. R.S. 9:2800.53(8) defines “reasonably anticipated alteration or

modification” as “a change in a product that the product’s

manufacturer should reasonably expect to be made by an ordinary

person in the same or similar circumstances, and also . . . a

change arising from ordinary wear and tear.” This definition does

not include “[c]hanges to or in a product or its operation because

the product does not receive reasonable care and maintenance.” La.

R.S. 9:2800.53(8)(c). 

The record demonstrated that the steam cleaner’s switch

was free of defects when it left the manufacturer’s control and

that it was modified. The original 2-foot electric power cord was

replaced with a 30-foot cord, and in so doing, the employer

disassembled the on-off switch, removed the wires connected to the

switch and replaced them with wires from the longer cord, and

disassembled the plastic insulating boot from the on-off switch.

Further, at some point during the machine’s existence with Turner,

the plastic knob of the switch had to have been removed or worn

off, the plastic bushing had been pulled off, and the plastic

insulation sleeve had been ripped off (a modification which cannot

be done by hand) or its two set screws had been mechanically

removed. Only by removing all three devices -- the knob, bushing

and sleeve -- could the switch conduct electricity. Asher’s expert

witness, Goodman, testified that if any one of these devices had
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remained in place, the metal shaft of the on-off selector switch

could not have shocked Asher.

Consequently, the evidence shows that the switch and cord

had been altered, and LWCC has failed to raise any material issue

of fact regarding whether, notwithstanding the modification of the

steam cleaner, appellees can be liable under the LPLA. LWCC has

failed to produce evidence that anything other than the metal shaft

caused Asher’s shock. Asher testified that nothing happened when

he touched the body of the steam cleaner, but he was shocked as he

gripped uninsulated pliers attached to the metal shaft of the onoff selector switch. An electrician who examined the steam cleaner

the day after the accident tested the selector switch and found it

conducted electricity. Although LWCC cites expert testimony that

touching the body of the machine could potentially have been an

additional source of the shock, it has produced nothing to refute

the evidence that the switch, which had been altered, was the

actual cause of the shock. 

Furthermore, even assuming arguendo that the alteration

of the steam cleaner might have been foreseeable, it was not

“reasonably expected.” Stripping all of the insulation shields off

the switch shaft and applying pliers to the metal shaft instead of

ordering a new knob transcends mere wear and tear and does not

amount to “reasonable care and maintenance.” LWCC has failed to
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raise any issues of material fact regarding whether the machine’s

switch was originally defective and whether the injury resulted in

a “reasonably anticipated alteration or modification” of the Twin

Clean II steam cleaner.

We do not reach the question whether Asher’s method of

turning on the steam cleaner was itself a “reasonably anticipated

use” of the machine. 

For the foregoing reasons, the judgment of the district

court is AFFIRMED.