United States District Court, E.D. Louisiana
ORDER AND REASONS
the Court are two motions for summary judgment.
is “VH Group, L.L.C. and Covington Specialty Insurance
Company's Motion for Summary Judgment.” Rec. Doc.
45. On August 16, 2017, Plaintiff Dorothy Lowery filed a
notice of non-opposition to this motion. Rec. Doc. 53.
is the “Motion for Summary Judgment Filed by the TJX
Companies, Inc. and Zurich American Insurance Company.”
Rec. Doc. 47. Plaintiff timely filed an opposition
memorandum. Rec. Doc. 52. Defendants then requested, and were
granted, leave to file a reply memorandum. Rec. Doc. 57. For
the reasons discussed below, IT IS ORDERED
that VH Group, L.L.C. and Covington Specialty Insurance
Company's motion for summary judgment (Rec. Doc. 45) is
IS FURTHER ORDERED that TJX Companies, Inc. and
Zurich American Insurance Company's motion for summary
judgment (Rec. Doc. 47) is GRANTED IN PART.
BACKGROUND AND PROCEDURAL HISTORY
case arises out of a fall suffered by Dorothy Lowery
(“Plaintiff”) on September 7, 2015. Rec. Doc. 33
at ¶ 4. Plaintiff was visiting a TJ Maxx store owned by
Defendant TJX Companies, Inc. (“TJX”) to try on
shoes. Id. She leaned against a table for support
and “the screw/nail that was holding the table leg onto
the table bent, causing the table leg to fold under the table
and the table (along with [Plaintiff]) to fall.”
complaint, Plaintiff alleged that the table's legs were
not adequately fastened by the table's manufacturers,
Defendants VH Group, LLC (“VH Group”) and Vietnam
Housewares Co., Ltd. (“Vietnam Housewares”). Rec.
Doc. 33 at ¶ 5. She is asserting claims under the
Louisiana Products Liability Act (“LPLA”) for
failure to warn, design defect, and construction or
composition defect, as well as under Louisiana Civil Code
articles 2315 and 2317. Id. at ¶¶ 7, 11.
second amended complaint named TJX; TJX's insurer, Zurich
American Insurance Company (“Zurich”); VH Group;
VH Group's insurer, Covington Specialty Insurance Company
(“Covington”); Vietnam Housewares; and
unidentified parties as Defendants. Rec. Doc. 33 at ¶ 2.
filed a third-party complaint against VH Group and Covington,
alleging that TJX purchased the table at issue from VH Group
pursuant to a Purchase Order dated February 15, 2015. Rec.
Doc. 14 at ¶ VI. TJX maintains that VH Group agreed to
indemnify and hold TJX harmless for any claims brought by
third parties arising from injuries allegedly caused by a
defect in the table. Id. at ¶ VII. Accordingly,
TJX argues that VH Group is obligated to pay the defense
costs arising from this litigation. Id. at ¶
IS TJX LIABLE UNDER THE LOUISIANA CIVIL CODE?
Louisiana law, the plaintiff in a negligence action must
prove “by a preponderance of the evidence the following
five elements: 1) duty of care owed by the defendant to the
plaintiff; 2) breach of that duty by the defendant; 3)
cause-in-fact; 4) legal causation; and 5) damages to the
plaintiff caused by that breach.” Boudreaux v.
Bollinger Shipyard, 15-1345, p. 21 (La.App. 4 Cir.
6/22/16); 197 So.3d 761, 773-74 (citations omitted). More
specifically, “[w]hen an individual is injured as a
result of an unreasonably dangerous condition existing on a
landowner's property, he can recover damages relying on
either [Louisiana Civil Code article 2315], which is the
basis of general negligence liability, or [article 2317],
which provides for a strict liability theory of
recovery.” Amest v. City of Breaux Bridge,
01-1034, p. 1 (La.App. 3 Cir. 12/12/01); 801 So.2d 582, 584
(quoting LeJeune v. Riviana Foods, 97-1091,
p. 2 (La.App. 3 Cir. 2/18/98); 707 So.2d 1038, 1039, writ
denied, 98-0749 (La. 5/1/98); 718 So.2d 418). Article
2315 provides that “[e]very act whatever of man that
causes damage to another obliges him by whose fault it
happened to repair it.” La. Civ. Code art. 2315. On the
other hand, article 2317 provides that “[w]e are
responsible, not only for the damage occasioned by our own
act, but for that which is caused by . . . the things which
we have in our custody.” La. Civ. Code art. 2317. In
1996, the Louisiana legislature added article 2317.1, which
provides that “[t]he owner or custodian of a thing is
answerable for damage occasioned by its . . . defect, only
upon a showing that he knew, or in the exercise of reasonable
care, should have known of the . . . defect which caused the
damage, that the damage could have been prevented by the
exercise of reasonable care, and that he failed to exercise
such reasonable care.” La. Civ. Code art. 2317.1.
under either article 2315 or 2317, “the plaintiff first
has the burden of proving: (1) the property which caused the
damage was in the custody of the defendant; (2) the property
was defective because it had a condition that created an
unreasonable risk of harm to persons on the premises; and,
(3) the defect in the property was a cause-in-fact of the
resulting injury.” Amest, 801 So.2d at 584
(quoting LeJeune, 707 So.2d at 1040). As to the
second element, “the defect mu[st] be of such a nature
as to constitute a dangerous condition which would reasonably
be expected to cause injury to a prudent person using
ordinary care under the circumstances.” Jordan v.
Hickman, 39, 519, p. 4 (La.App. 2 Cir. 4/6/05); 899
So.2d 830, 833, writ denied, 05-1066 (La. 6/17/05);
904 So.2d 712 (quoting Durmon v. Billings, 38, 514,
p. 7 (La.App. 2 Cir. 5/12/04); 873 So.2d 872, 877, writ
denied, 04-1805 (La. 10/29/04); 885 So.2d 588). A defect
will not be “inferred simply because an accident
occurred” and “where a risk of harm is obvious,
universally known and easily avoidable, the risk is not
unreasonable.” Jordan, 899 So.2d at 833-34
(citing Carroll v. Holt, 36, 615, pp. 4-5 (La.App. 2
Cir. 12/11/02); 833 So.2d 1194, 1197-98).
to determine if the defendant “failed to exercise
reasonable care” or “acted unreasonably, ”
the court may consider the “Learned Hand formula”
promulgated by Judge Hand in United States v. Carroll
Towing Co., 159 F.2d 169 (2d Cir. 1947). Myers v.
Dronet, 01-5, p. 14 (La.App. 3 Cir. 6/22/01); 801 So.2d
1097, 1109. This formula “prescribes the amount of
caution which a particular occurrence requires a person to
take” and requires consideration of (1) the likelihood
that the thing will cause injury; (2) the seriousness of any
resulting injury; and (3) the burden imposed on the defendant
to avoid the risk. Id. (citation omitted).
Zurich argue that Plaintiff cannot show that TJX (1) breached
a duty to provide adequate seating; or (2) owed a duty to
protect Plaintiff from any risk associated with using the
table to support her weight. Rec. Doc. 47-1 at 4.
Specifically, Defendants note that there were two red-topped
benches at the end of the aisles in the shoe department, a
bench at the entrance of the store, and two benches at the
entrance to the dressing rooms. Rec. Docs. 47-4 at 30-31, 34,
65; 47-6 at 1, 3-6. They further argue that there is no
evidence that the table was defective and that “the
risk created by using the table to ...