MICHAEL M. ROUX
TOYOTA MATERIAL HANDLING, U.S.A., INC.; TOYOTA INDUSTRIAL EQUIPMENT MANUFACTURING, INC.; AND SCOTT EQUIPMENT COMPANY, L.L.C.
APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF
ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 65, 318,
DIVISION "C" HONORABLE J. STERLING SNOWDY, JUDGE
COUNSEL FOR PLAINTIFF/APPELLANT, MICHAEL M. ROUX Wallace K.
COUNSEL FOR DEFENDANT/APPELLEE-2ND APPELLANT, COMMERCE AND
INDUSTRY INSURANCE COMPANY Kirk L. Landry Virginia J. Mclin.
COUNSEL FOR DEFENDANT/APPELLEE, SCOTT EQUIPMENT COMPANY,
L.L.C. Ward F. Lafleur Kay A. Theunissen Paul J. Politz Jason
composed of Judges Marc E. Johnson, Stephen J. Windhorst, and
John J. Molaison, Jr.
J. MOLAISON, JR. JUDGE
seek review of the granting of a summary judgment and
dismissal of a defendant in this personal injury matter. For
the reasons that follow, the judgment of the trial court is
August 26, 2013,  plaintiff/appellant, Michael M. Roux,
filed a petition for damages in the 40th Judicial District
Court for the Parish of St. John the Baptist alleging that he
sustained severe injuries while operating a forklift, in the
scope of his employment, that was manufactured by Toyota
Industries and sold to his employer, Pinnacle
Polymers, L.L.C. ("Pinnacle"), by Louisiana
retailer Scott Equipment Company, L.L.C. ("Scott").
Mr. Roux asserted in his petition that Scott had sold the
forklift in question to Pinnacle more than four years prior
to the accident and provided periodic maintenance and service
on the vehicle. Mr. Roux also alleged that Scott was a
manufacturer of the forklift under the Louisiana Products
Liability Act because it labeled the forklift as its own
product. Specifically, Mr. Roux claimed that Scott was liable
because of the forklift's unreasonably dangerous design,
an unreasonably dangerous construction or composition,
failure to provide an adequate warning, and for breach of an
November 26, 2013, Scott filed an answer to Mr. Roux's
petition for damages that denied the allegations and
affirmatively plead fault, negligence, and contributory
negligence on the part of Mr. Roux and Pinnacle. On October
26, 2015, Commerce and Industry Insurance Company, the
worker's compensation provider for Pinnacle, filed a
petition for intervention, which was granted on that same
the completion of discovery, Scott filed a motion for summary
judgment on December 5, 2016, setting forth two claims: that
it was not an apparent manufacturer of the forklift at issue,
and it did not have an independent duty as a seller to warn
of alleged defects. A hearing on Scott's motion was held
on June 28, 2017,  and on August 22, 2017,  the trial court
granted summary judgment in favor of Scott. On October 17,
2017, the trial court signed a final judgment that dismissed
Scott with prejudice. On September 17, 2017, the trial court
issued an order that granted Mr. Roux a devolutive
appeal. On October 27, 2017, the trial court
issued an order that granted Commerce and Industry Insurance
Company a devolutive appeal from the summary judgment in
favor of Scott.
following facts are not in dispute. On January 16, 2012, Mr.
Roux was injured while operating a forklift in the course of
his employment with Pinnacle, when a co-worker attempted to
tow Mr. Roux's forklift after it became stuck in grass.
Mr. Roux's injuries were caused when the towing strap of
the co-worker's forklift uncoupled and struck Mr. Roux.
The co-worker's forklift was manufactured by Toyota, and
sold to Pinnacle by Scott on December 27, 2007.
appeal, Mr. Roux raises the following assignments of error:
1. Whether the trial court committed error in granting the
Motion for Summary Judgment of Defendant/Appellee Scott
Equipment Company, dismissing the Petition of
Plaintiff/Appellant with prejudice.
2. Whether the trial court committed error in failing to
acknowledge, or in disregarding the expert testimony of
Plaintiff's expert, Steve Robichaux.
3. Whether the trial court committed error in failing to
recognize the defect or hazardous nature of the forklift to
be its design and construction which allows the towpin to be
removed and separated from the forklift, so as to allow this
component part of the product to be damaged beyond use or
misplaced, thereby both promoting and permitting misuse of
the product by way of replacement of the authorized towpin
with some other improvised object.
4. Whether the trial court committed error by failing to
acknowledge the claims of the Plaintiff against
Defendant/Appellee based upon the general law of negligence
arising from its contractual duties as the repairers and
maintainers of the forklifts, in addition to duties arising
from the Louisiana Product Liability Act.
5. Whether the trial court committed error in granting
Summary Judgment in consideration of the substantial and
numerous issues genuine issues of material fact in question
before the Court.
6. Whether the trial court committed error in finding that
Pinnacle, the employer of the Plaintiff Appellant, is a