United States District Court, W.D. Louisiana, Lake Charles Division
T. TRIMBLE, JR. UNITED STATES DISTRICT JUDGE.
the court is a motion for summary judgment (R. #51) filed by
Hyster-Yale Group, Inc. and Hyster-Yale Material Handling, Inc.
(collectively referred to as "Hyster") wherein
these Defendants seek to be dismissed from the instant
lawsuit. These Defendants assert that Plaintiff cannot meet
his burden of proof under the Louisiana Products Liability
Alan Thompson, filed the instant lawsuit claiming injuries he
sustained when he was struck by a Hyster 360 forklift
allegedly manufactured and sold by Defendants, Hyster-Yale
Group Inc. and Hyster-Yale Material Handling, Inc. Plaintiff
alleges that the backup alarm on the Hyster was not
functioning properly when he was injured.
time of the incident which occurred on March 28, 2015, Mr.
Thompson was employed by Bechtel Corporation and working at
the Sabine Pass Chenier LNG Facility; Plaintiff was working
in Laydown area 14 with Michael Moore, Joseph Guidry and
Bobby Sherman. Kevin Stratton, the driver of an
eighteen-wheeler load of steel product, positioned at the
rear of the Hyster, was also in the area. Mr. Thompson gave
Bobby Sherman, the operator of the Hyster 360, instructions
to line up with another forklift being operated by Mr.
Guidry. Mr. Sherman and Mr. Guidry were performing a tandem
lift to move large pieces of steel from the eighteen-wheeler.
Mr. Thompson instructed Mr. Sherman to move forward and shift
the Hyster 360 to line up in a certain direction.
parties dispute whether or not the Hyster 360 was moving
forward or in reverse at the time of the accident. There is
no dispute that Plaintiff was not facing the Hyster 360 when
he was initially struck and run over. Mr. Stratton, Mr.
Sherman and Mr. Guidry testified that the Hyster 360 was
moving forward when it struck Mr. Thompson. The issue as to
whether or not the Hyster 360 was moving forward or in
reverse is significant as to Defendants, Hyster, because
Plaintiff alleges that the audible reverse alarm was
defective which caused Plaintiffs injury. If the Hyster 360
was moving forward when Plaintiff was struck, the alarm would
not have been activated. Thus, Plaintiff would not be able to
prove that the characteristics of the backup alarm were a
proximate cause of the accident.
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
A fact is "material" if its existence or
nonexistence "might affect the outcome of the suit under
governing law." 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. 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." 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. 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. 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. If the evidence is merely colorable, or is
not significantly probative, summary judgment may be
granted. The court will construe all evidence in
the light most favorable to the nonmoving party, but will not
infer the existence of evidence not presented.
Louisiana Products Liability Act requires a plaintiff to
prove that an injury directly results from an unreasonably
dangerous design. Hyster maintains that Plaintiffs injury
could not have resulted from a defect related to the backup
alarm if the Hyster was not backing up when the accident
occurred. Hyster asserts that Plaintiff has nothing more than
ipse dixit to support his claim which is
insufficient to create a genuine issue of material fact.
Hyster remarks that every witness to the relevant incident
testified that the Hyster was traveling forward when the
accident occurred, and that Plaintiff was injured when he
placed himself in the tail-swing of the forward-moving
asserts that Plaintiffs claim fails because (1) Plaintiff
lacks any evidence that the "unreasonably
dangerous" condition he has alleged under the LPLA is
related to his accident since the backup alarm is only
relevant if the Hyster was traveling in reverse at the time
of the accident; (2) Plaintiffs expert wholly ignored
material facts and thus rendered an unsupported and
inadmissible opinion; (3) Plaintiffs expert has failed to
identify a specific alternative design that would have
prevented or reduced the injury to Plaintiff; (4) Plaintiffs
proffered alternative design that would have prevented the
accident is irrelevant since the Hyster was not traveling in
reverse and therefore neither the backup alarm nor a camera
would have been engaged; (5) Plaintiff did not weigh the risk
and utility of the product as required in proving a design
defect; (6) the location of the backup alarm did not deviate
from design specifications; (7) Plaintiff fails to identify a
specific warning that was inadequate or caused his injuries;
and (8) Plaintiff fails to identify any express warranty that
was allegedly breached by the Hyster-Yale Defendants.
maintains that Plaintiff cannot prove causation in fact and
that the alleged design defect was the most probable cause of
the injury. Hyster argues that Plaintiff lacks
direct evidence to prove the Hyster was traveling in reverse,
and simply relies on his own self-serving testimony which
lacks any factual support. Hyster informs the court that the
three witnesses to the incident-Bobby Sherman (the operator
of the Hyster at the time of the incident), Joseph Guidry
(the other forklift operator) and Kevin Stratton (the
eighteen-wheeler driver)-all testified that the Hyster was
traveling forward when it struck Plaintiff.
testified he was not looking at the Hyster, but instead he
had his back to it as he was looking at Michael Moore and Mr.
Stratton who were both in front of Plaintiff. Hyster
challenges Plaintiff's claim that the Hyster 360 was
moving in reverse when it hit him, given that he had his back
to the Hyster and did not see it moving before the accident.
Hyster argues that Plaintiff lacks any factual evidence to
support his position that the alleged design defect
proximately caused his injury.
further challenges Plaintiffs expert opinion that the Hyster
was traveling in reverse; Hyster contends that the expert
lacks the proper factual foundation for his opinions. Hyster
complains that the expert, G. Fred Liebkemann IV, relies
solely on Plaintiffs version of the event to support his
opinions and completely disregards the three
eyewitnesses' testimony who actually observed the
accident. Hyster argues that because Mr.
Liebkemann failed to base his opinion on facts or data in the
case, his opinions are inadmissible.
relies on Mr. Liebkemann's expert opinion which indicates
that the area of risk or the distance Plaintiff had to be
standing away from the Hyster and be struck was from 14"
to 2'2". There is no dispute that after Plaintiff
was struck in the right shoulder, his leg was run over by the
Hyster's tire. Mr. Sherman testified that Plaintiff had
walked a minimum of 10 feet away from the
forklift. Mr. Guidry testified that Plaintiff had
walked 8 to 10 feet from the Hyster 360.
then argues that the rear swing of the Hyster cannot
physically contact someone standing behind it unless it is
moving in reverse, thus according to plaintiff and simple
science, the Hyster had to have been traveling in reverse at
the moment of initial impact. Plaintiff also submits the
affidavit of Ashleigh Chaloupka who was in the area and
saw Plaintiff face down behind the
Hyster. Plaintiff argues that physics shows that Plaintiff
was behind the Hyster and not alongside it, thus indicating
that the Hyster must have been moving in reverse as opposed
to moving forward.
submits as summary judgment evidence engineering
drawings which indicate that for an 18"
turning radius, the area of risk alongside the rear tire is
2'2"; at ¶ 50" turning radius, the area of
risk is reduced to 14". It is undisputed that Mr.
Thompson was run over by a tire from the Hyster after he was
struck in the right shoulder which knocked him face down to
the ground. As noted above, Mr. Guidry testified that Mr.
Thompson was 8-10 feet behind the Hyseter and Mr. Sherman
testified that he was 10 feet behind the Hyster. Thus, if
their testimony is relied upon, and considering the Hyster
360's tail-swing, it seems implausible to this court that
the Hyster was moving forward. Thus, we find that Plaintiff
has submitted sufficient summary judgment evidence to create
a genuine issue of material fact for trial.
Louisiana law, a plaintiff has the burden to prove that the
product is unreasonably dangerous in design. A plaintiff must
prove that at the time the product left the
(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. An adequate
warning about a product shall be considered in evaluating the
likelihood of damage when the manufacturer has used
reasonable care to provide the adequate warning to users and
handlers of the product.
maintains that Mr. Thompson has failed to provide a
reasonable alternative design. Mr. Thompson disputes this
with the manufacturer's instructions which indicate that
the backup alarm was to be installed outside of the internal
compartment where it can produce an adequate warning. The
court finds that Mr. Thompson has provided sufficient summary
judgment evidence to create a genuine issue of material fact
dangerous in construction or composition
maintains that Mr. Thompson has failed to provide
uncontroverted evidence that the product, the ECCO brand
backup alarm, deviated in a material way from the
manufacturer's specifications or performance standards
for the product. A mistake in the manufacturing process
renders the product defective. Hyster asserts that Plaintiffs
expert concedes that the Hyster's backup alarm was
installed in a location specified by the manufacturer, thus
eliminating the manufacturing defect claim. However, in
his deposition, Mr. Liebkmann testified that the alarm was
"located in an enclosure contrary to the instructions
provided by the manufacturer of the
alarm." Hyster had its own in-house installation
drawing which shows installation behind a rear lighting
housing, however, Mr. Thompson remarks that this
drawing ignores the manufacturer's instructions. The
in-house installation drawing is dated 2006 and references a
backup alarm with a decibel range of 87 toll2 unlike the ECCO
backup alarm that was actually installed. Thus, Mr. Thompson
argues that these instructions may not be applicable to the
backup alarm because the ECCO model in question does not meet
the specifications for the older manufacturer's
instructions. Mr. Thompson further relies on the detailed
installation instructions which provides that the unit be
installed in a "mounting location at the rear of the
vehicle that will provide protection from flying objects,
debris, and foul weather conditions while
allowing unobstructed sound ...