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Wright v. Revco Industries Inc.

United States District Court, W.D. Louisiana, Lake Charles Division

January 10, 2017

DUSTIN BLAKE WRIGHT
v.
REVCO INDUSTRIES INC, ET AL

          KAY MAG. JUDGE

          MEMORANDUM RULING

          JAMES T. TRIMBLE, JR. UNITED STATES DISTRICT JUDGE

         Before the court is "Revco Industries, Inc.'s Motion for Summary Judgment" (R. #98) wherein defendant, Revco, seeks to be dismissed from the instant lawsuit. Revco maintains that plaintiff lacks sufficient evidence to establish any claim under the Louisiana Products Liability Act.

         FACTUAL STATEMENT

         On February 24, 2012, Plaintiff, Dustin Wright, was employed by Wyatt Field Services and working inside a tower at the ConocoPhillips plant with fellow co-worker, Derrick Johnson. Johnson was using an arc gouger device, and Wright was working as his assistant. The workers had laid a fire blanket on the ground to extinguish any molten steel that fell. At some point a piece of molten steel fell on the fire blanket; Johnson used the jet of air from the arc gouger to extinguish the steel and inadvertently blew the fire blanket and molten steel onto plaintiff's leg causing Mr. Wright to suffer severe burns.[1] This account was confirmed by ConocoPhillips' formal Root Cause Failure Analysis.[2] However, Mr. Wright now disputes the fact that Mr. Johnson used the arc gouger and blew the fire onto his leg.

         Wright alleges that at the time of the accident, he was wearing fire-resistant coveralls known as "Black Stallion" manufactured by defendant, Revco. While the 100% cotton coveralls are fire resistant, they are not fireproof. These coveralls had a tag attached to them that warns that their "flame resistant coating" lasts only through 50 laundering cycles.

         Revco submits plaintiffs expert report of industrial hygienist, Richard L. Miller, who opined that plaintiffs injuries were the direct result of negligence by defendants, ConocoPhillips and Excel Paralubes.[3][4] The expert report does not mention any liability with regards to the coveralls and/or their manufacturer, Revco.

         The coveralls being worn by Mr. Wright were an old pair he obtained during his previous employment with USI; he has no knowledge and there is no evidence submitted as to how many times Mr. Wright had laundered the coveralls.[5]

         SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, when viewed in the light most favorable to the non-moving party, indicate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.[6] A fact is "material" if its existence or nonexistence "might affect the outcome of the suit under governing law."[7] A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party.[8] As to issues which the non-moving party has the burden of proof at trial, the moving party may satisfy this burden by demonstrating the absence of evidence supporting the non-moving party's claim."[9] Once the movant makes this showing, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial.[10] The burden requires more than mere allegations or denials of the adverse party's pleadings. The non-moving party must demonstrate by way of affidavit or other admissible evidence that there are genuine issues of material fact or law.[11] There is no genuine issue of material fact if, viewing the evidence in the light more favorable to the non-moving party, no reasonable trier of fact could find for the non-moving party.[12] If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.[13]

         LAW AND ANALYSIS

         Under the LPLA, a 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 arose from a reasonably anticipated use of the product by the claimant..."[14] The LPLA requires a plaintiff to establish the following four elements:

(1) that the defendant is a manufacturer of the product; (2) that the claimant's damage was proximately caused by a characteristic of the product; (3) that this characteristic made the product "unreasonably dangerous"; and (4) that the claimant's damage arose from a reasonably anticipated use of the product by the claimant or someone else.[15]

         Under the Act, a manufacturer can only be liable for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product.[16] The plaintiff has the burden of proving causation (as well as an unreasonably dangerous condition), and a plaintiff must prove not only causation in fact, but also that the product defect was the most probable cause of injury.[17] Thus, a manufacturer is not liable for damages brought about by an occurrence of a separate, independent, or superseding cause.[18]

         Revco maintains that Mr. Wright has failed to present sufficient evidence to establish causation, reasonably anticipated use, or any unreasonably dangerous condition under any of the four theories set forth in the LPLA.

         Revco maintains that plaintiff has failed to provide any evidence that the Black Stallion coveralls possessed an unreasonably dangerous condition that actually caused his injuries. As previously noted, plaintiffs expert opined that the injuries suffered by Mr. Wright were the direct result of the negligence committed by former defendants, ConocoPhillips and Excel Paralubes.[19]Plaintiffs assert that when the opinion was issued, Revco, was not yet a defendant in the lawsuit.

         In his Statement of Contested Facts attached to plaintiffs opposition, Mr. Wright asserts that there is a genuine issue of material fact as to whether or not Derrick Johnson, plaintiffs co- worker, blew air on plaintiff. The court finds that this is irrelevant as to whether the coveralls possessed an unreasonably dangerous condition and/or as to causation.

         Causation

         Revco argues that the photograph, without expert testimony, does not prove causation, and therefore is not sufficient to defeat summary judgment.[20] Causation must be proven by a preponderance of the evidence.[21] A plaintiff must utilize expert testimony to establish causation when the issues are not within the everyday experience of the average juror.[22]Mr. Wright relies upon the photographs presented of the coveralls, but does not provide any expert testimony; his sole argument is that the photographs speaks for themselves. As noted by Revco, the average juror will not possess knowledge of fire-resistant garments and coating, and the manner in which the garment material reacts when a molten piece of metal or inflamed fire blanket is applied directly to the material. The court finds that Mr. Wright has failed to establish causation and therefore he cannot recover under the LPLA.

         Construction/composition or design defect

         Revco argues that to recover under the theory of a construction or design defect plaintiff must prove (1) that the subject coveralls materially deviated from Revco's specifications or performance standards for the coveralls, or from identical Black Stallion coveralls; and (2) of a feasible alternative design that existed at the time the product left Revco's control which would have prevented Plaintiff's injury, and the risk avoided by the alternative design outweighed the burden of its adoption.[23]

         To recover under the LPLA, a product must be unreasonably dangerous in construction or composition.[24] Mr. Wright must show that at the time the coveralls left the manufacturer's control, it materially deviated from the manufacturer's specifications or performance standards for the product.[25]

         Under the second theory, Mr. Wright must prove that the product is unreasonably dangerous in design[26] by showing that at the time the coveralls left the manufacturer's control; (1) there existed an alternative design for the product that was capable of preventing the claimant's damage; and (2) the likelihood that the product's design would cause the claimant's damage, and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the product.[27]

         Mr. Wright has failed to present any evidence to establish that the coveralls were defective as to their construction, composition and/or design. Therefore, Mr. Wright ...


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