Filed: Dec. 01, 1998
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 96-30544 RALPH KAMPEN; KATHERINE KAMPEN, Plaintiffs - Appellants, VERSUS AMERICAN ISUZU MOTORS, INC., Defendant - Appellee. Appeal from the United States District Court For the Eastern District of Louisiana September 30, 1998 Before POLITZ, Chief Judge, and KING, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges. JOHN M. DUHÉ, JR., Circuit Judg
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 96-30544 RALPH KAMPEN; KATHERINE KAMPEN, Plaintiffs - Appellants, VERSUS AMERICAN ISUZU MOTORS, INC., Defendant - Appellee. Appeal from the United States District Court For the Eastern District of Louisiana September 30, 1998 Before POLITZ, Chief Judge, and KING, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges. JOHN M. DUHÉ, JR., Circuit Judge..
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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-30544
RALPH KAMPEN; KATHERINE KAMPEN,
Plaintiffs - Appellants,
VERSUS
AMERICAN ISUZU MOTORS, INC.,
Defendant - Appellee.
Appeal from the United States District Court
For the Eastern District of Louisiana
September 30, 1998
Before POLITZ, Chief Judge, and KING, JOLLY, HIGGINBOTHAM, DAVIS,
JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS,
BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.
JOHN M. DUHÉ, JR., Circuit Judge:
Ralph and Katherine Kampen brought this diversity action
against American Isuzu Motors (“Isuzu”) under the Louisiana
Products Liability Act of 1988, LA.REV.STAT.ANN. §§ 9:2800.51-.59
(West 1991)(“LPLA” or “the Act”). The Kampens claimed that Mr.
Kampen (“Kampen”) was injured when an Isuzu factory-supplied tire
jack collapsed and the car it was supporting crashed down on
Kampen’s shoulders.
Isuzu moved for summary judgment on two elements of the
Kampens’ products liability claims. First, Isuzu asserted that
there was no evidence that the jack was unreasonably dangerous.
Second, Isuzu claimed that Kampen’s use of the jack was not a
“reasonably anticipated use.” The district court granted summary
judgment in Isuzu’s favor, finding that Kampen’s use of the jack
was not one that the manufacturer should have “reasonably
anticipated,” citing, inter alia, our decision in Lockart v. Kobe
Steel Ltd., 989 F.2d 864, 867 (5th Cir. 1993).
A panel of this Court reversed the district court. See Kampen
v. American Isuzu Motors, Inc., 119 F.3d 1193 (5th Cir. 1997)(“the
panel opinion”). The panel opinion held that Kampen’s “use” of the
jack was complete when he finished elevating the car; in the panel
majority’s view, Kampen’s getting under the car to inspect the
underside did not constitute a “use” of the jack. See
Kampen, 119
F.3d at 1198-99, and cf.
Kampen, 119 F.3d at 1205 (Duhé, J.,
dissenting). Any negligence on Kampen’s part in placing his body
beneath the car, the panel reasoned, should be taken into account
by Louisiana’s system of comparative fault. See
Kampen, 119 F.3d
at 1199.
Even assuming that Kampen’s placing himself under the car
constituted a “use” of the jack, the panel was “unwilling to hold
that, as a matter of law, the manufacturer should not have
reasonably expected a user to place part of his or her body beneath
a jacked up car.” Id. The panel also found that the presence of
two warnings not to “get beneath the vehicle” (one included in the
owner’s manual, the other in the car’s spare-tire compartment) did
2
not, as a matter of law, make Kampen’s use one that should not have
been “reasonably anticipated.” See id. at 1199-1201. The panel
therefore concluded that the summary judgment evidence “present[ed]
a question for the jury regarding whether Kampen’s use of the jack
was reasonably anticipated.”
Id. at 1201.
This Court granted en banc rehearing. See 130 F.3d 656 (5th
Cir. 1997).
I.
In 1993, the Kampens’ daughter noticed a noise coming from
beneath her 1989 Isuzu Impulse. Her father agreed to investigate.
Kampen used the car’s factory-provided jack to raise the car’s
front end on the driver’s side. Viewing the evidence in the light
most favorable to the nonmovant, Kampen jacked up the car in a
manner consistent with the instructions provided in the Owner’s
Manual (“manual”) for elevating the car. Kampen’s deposition
testimony indicated, however, that he did not read the manual
before jacking up the car. He therefore did not read the warning
contained in the manual which instructed the user to “[u]se the
jack only when changing tires” and expressly warned “[n]ever [to]
get beneath the car when using the jack.”1
Suspecting that something was caught behind the front wheel on
the driver’s side, Kampen placed his head and shoulders beneath the
1
There was also a set of jacking instructions in the tire
storage compartment. Those instructions stated that “[t]he jack is
designed for use only when changing wheels,” and admonished the
user “[n]ever [to] get beneath the vehicle when it is supported
only by a jack.” The Kampens dispute that there was any evidence
of these warnings.
3
front of the car to examine the back of the wheel. The jack
collapsed, and the car fell across Kampen’s shoulders, breaking
both of his collarbones.
II.
The LPLA provides the “exclusive theories of liability for
manufacturers for damage caused by their products” under Louisiana
law. LA.REV.STAT.ANN. § 9:2800.52. Section 2800.54 of the LPLA
sets forth the basic parameters for a products liability action
under the Act:
The manufacturer of a product shall be liable
to a claimant for damage proximately caused by
a characteristic of a product that renders the
product unreasonably dangerous when such
damage arose from a reasonably anticipated use
of the product by the claimant or another
person or entity.
LA.REV.STAT.ANN. § 9:2800.54(A).2 The plain language of the Act
shows that a plaintiff, asserting a products liability action
against a manufacturer, faces a two-tiered burden: the plaintiff
must show that (1) his damages were proximately caused by a
characteristic of the product that renders it unreasonably
dangerous, and (2) his damages arose from a reasonably anticipated
use of the product. See LA.REV.STAT.ANN. § 9:2800.54(D); see also
Johnson v. Black & Decker U.S., Inc., 701 So. 2d 1360, 1362 (La.
App. 2d Cir. 1997). If a plaintiff’s damages did not arise from a
reasonably anticipated use of the product, then the “unreasonably
2
A claimant can prove that a product was unreasonably
dangerous in four different ways: (1) in construction or
composition; (2) in design; (3) because of an inadequate warning;
or, (4) because of nonconformity to an express warranty.
LA.REV.STAT.ANN. § 9:2800.54(B).
4
dangerous” question need not be reached. See Johnson, 701 So. 2d at
1366; Delphen v. Department of Transportation and Development,
657
So. 2d 328, 334 (La. App. 4th Cir. 1995).
A.
The LPLA defines a reasonably anticipated use as “a use or
handling of the product that the product’s manufacturer should
reasonably expect of an ordinary person in the same or similar
circumstances.” LA.REV.STAT.ANN. § 9:2800.53(7). This objective
inquiry requires us to ascertain what uses of its product the
manufacturer should have reasonably expected at the time of
manufacture. See Myers v. American Seating Co., 637 So. 2d 771, 775
(La. App. 1st Cir. 1994); see also John Kennedy, A Primer on the
Louisiana Products Liability Act, 49 La.L.Rev. 565, 585-86
(1989)(“Kennedy”). The LPLA’s “reasonably anticipated use”
standard should be contrasted with the pre-LPLA “normal use”
standard; “normal use” included “all intended uses, as well as all
reasonably foreseeable uses and misuses of the product.” Hale
Farms, Inc. v. American Cyanamid Co.,
580 So. 2d 684, 688 (La. App.
2d Cir. 1991), citing Bloxom v. Bloxom,
512 So. 2d 839, 843 (La.
1987). “Normal use” also included “reasonably foreseeable misuse
that is contrary to the manufacturer’s instructions.”
Hale, 580
So. 2d at 688.
It is clear that by adopting the reasonably anticipated use
standard, the Louisiana Legislature intended to narrow the range of
product uses for which a manufacturer would be responsible. See,
e.g., Delphen, 657 So. 2d at 333;
Myers, 637 So. 2d at 775. We know
5
that, under the LPLA, a manufacturer will not be responsible for
“every conceivable foreseeable use of a product.” London v. MAC
Corp. of America, 44 F.3d 316 (5th Cir. 1995); see also Kennedy, 49
La.L.Rev. at 586. For example, in Myers, the Louisiana First
Circuit Court of Appeal held that, while it is conceivable that a
person might stand on the rear portion of a folding chair (thereby
causing it to jackknife), this would not be a reasonably
anticipated use given the obvious danger of such a use.
Myers, 637
So. 2d at 779. The scope of the reasonably anticipated use
standard, however, remains imprecise.
B.
Under the liability scheme set up by the LPLA, then, Kampen’s
injuries must have arisen from a reasonably anticipated use of the
jack. But that begs the following question: which of Kampen’s
actions on the day of his injury should we consider as “use” of the
jack? Did Kampen’s “use” of the jack end when he had properly
positioned the jack and elevated the car to a suitable height? Did
Kampen continue to “use” the jack after that by relying on the jack
to hold the car elevated above him while he inspected its
underside? Should Kampen’s admitted purpose in jacking the car up
(to inspect the car’s underside, or, more precisely, the back of
the front wheel) be a factor in assessing how he “used” the jack?
An answer to these questions is crucial in properly assessing
whether Kampen’s injuries arose from a reasonably anticipated use
of the jack. The panel opinion, as stated above, broadly defined
Kampen’s “use” of the jack as simply jacking up the car. See
6
Kampen, 119 F.3d at 1198. The panel found that Kampen’s subsequent
actions constituted, not a continuing “use” of the jack, but
instead a “[p]lacing [of] oneself in the zone of danger created by
the product.”
Id. In the panel’s view, the purpose for which a
product is employed is relevant to “use” only “to the extent that
the purpose affects the manner in which the product is handled”:
In this case, the use to which Kampen put the
jack did not create a defect that would not
have otherwise existed. That is, the fact
that he was under the car did not make the
failure any more or less likely to occur. The
risk that Isuzu was required to take into
account in designing, manufacturing and
warning about the jack was that the jack would
collapse under the weight of the vehicle it
was designed to lift.
Kampen, 119 F.3d at 1198-99. Because Kampen’s presence and actions
beneath the car had no effect on the mechanical performance of the
jack itself, the panel reasoned, what Kampen did subsequent to
physically jacking up the car should not be included in his “use”
of the jack. Put another way, Kampen’s getting under the car was
not a “use” of the jack because those actions did not have any
impact on whether the jack would, or would not, have failed. This
accords with the panel’s view that the mechanical failure of the
jack was the only risk the manufacturer was required to take into
account, regardless whether Kampen was beside the car changing the
tire, or beneath the car inspecting the wheel, when the jack
failed. See
id. at 1199.
At the outset, we note that the level of generality at which
a plaintiff’s “use” of a product is defined will bear directly on
whether the plaintiff satisfies the LPLA’s reasonably anticipated
7
use requirement. In this case, if we consider that Kampen’s “use”
of the jack includes his jacking up the car and nothing else, then
the question of reasonably anticipated use answers itself: a
manufacturer quite reasonably anticipates his jack to be used for
jacking! On the other hand, if we define Kampen’s “use” by
including his behavior subsequent to the physical act of elevating
the car (i.e., his crawling under the car), then reasonably
anticipated use becomes a much closer question: manufacturers may
or may not reasonably anticipate users of their products to
disregard express warnings about the product and thereby place
themselves in physical danger.
We agree with the panel majority that the scope of use must be
delineated with reference to “the apparent purpose of the
reasonably anticipated use requirement,” namely,
...to express the types of product uses and
misuses by a consumer that a manufacturer must
take into account when he designs a product,
drafts instructions for its use and provides
warnings about the product’s dangers in order
that the product not be unreasonably
dangerous.
Kampen, 119 F.3d at 1198, quoting Kennedy, 49 La.L.Rev. at 584.
That is to say, we agree that the risks a manufacturer must take
into account when designing and providing warnings about his
product should govern, to some degree, how we define a plaintiff’s
“use” of that product. Where we diverge from the panel opinion,
however, is in appreciating the breadth of those risks.
It is implicit in the panel opinion that the product risks
(and, hence, a potential user’s actions) a manufacturer should take
8
into account are only those which involve the possible physical
stresses placed on the product. See Kampen, 119 F.3d at 1198-99.
Thus, goes the argument, only those actions of a plaintiff which
put various physical stresses on the product should be defined as
“use.”
Id. But a plaintiff may act in relation to a product in
such a way that, while it does not change the physical stresses
placed on a product, nevertheless increases the risk of injury
associated with the product. A manufacturer is required to take
these kinds of actions by product users into account when designing
and providing warnings for its product. Surely the manufacturer,
Isuzu, was required to contemplate not only the risks associated
with the proper physical manipulation of the jack, but also the
risks associated with the purpose for which the jack would be
employed (i.e., whether the jack would be used for changing tires
or instead as a support for repairs to the car’s undercarriage).
Certainly lines must be drawn between those actions of a
plaintiff which will and will not constitute “use” of a product:
we would not say, for example, that the brand of shirt Kampen was
wearing when he was crawling under the car should figure into his
“use” of the jack. Isuzu was not required to anticipate whether
potential users of its jack would be wearing Polo, Izod or J.C.
Penney sportswear because those aspects of Kampen’s behavior have
nothing to do with the risks contemplated in designing a jack. But
whether or not Kampen was going to jack the car up and then crawl
under it bears directly on the decisions Isuzu must make in
designing a product that is not unreasonably dangerous.
9
We thus define Kampen’s “use” of the jack at a level of
generality that will take into account the risks Isuzu must (or
should) have reasonably contemplated when designing the jack and
providing warnings for its use. Kampen began using the jack when
he elevated the car with it. When Kampen finished jacking the car
up, however, his use of the jack did not conclude. Thereafter,
Kampen used the jack by relying on the jack to hold the car in its
elevated position. When Kampen placed himself beneath the car, he
was still using the jack: he was relying on the jack to hold the
car above his body. There is no requirement in the LPLA that “use”
necessarily involve a physical touching of the product. “Handling”
does indeed seem to suggest some physical contact with the product,
but we observe that “reasonably anticipated use” is defined in
terms of a “use or handling” of the product. See LA.REV.STAT.ANN.
§ 9:2800.53(7)(emphasis added). The disjunctive implies that “use”
need not always involve the physical manipulation of the product.
We emphasize that our assessment of what “use” Kampen made of
the jack does not depend in any way on his mental state. We are
able to determine how Kampen was using the jack by objectively
viewing (and making reasonable inferences from) what he actually
did and not what he intended to do. It would be nonsensical to
make use depend on something as evanescent as the user’s mental
state. If Kampen had jacked up the car, fully intending to crawl
under it and inspect its underside, but the jack had collapsed
before he could do so, certainly we would not say that Kampen’s
“use” was somehow determined by his free-floating intent to do
10
something he had not yet done. In that case, we would take the
facts before us and conclude that Kampen’s use of the jack
consisted only in jacking the car up. He didn’t do anything
following that.
We add that Louisiana courts of appeal have also defined “use”
at this level of generality. For example, in Delphen v. Department
of Transportation and Development, 657 So. 2d 328 (La. App. 4th Cir.
1995), the court addressed whether a plaintiff, who rode a racing
bike without properly adjusting the “quick release” mechanism on
the front wheel, had engaged in a reasonably anticipated use of the
bike. The court found that, given the obvious danger of the
plaintiff’s actions, the plaintiff had not used the bike in a
reasonably anticipated manner.
Delphen, 334 So. 2d at 334. In
doing so, the court defined the plaintiff’s “use” of the bike with
reference to the following actions:
...the fact that Robert Delphen rode the
bicycle across the Chef Menteur drawbridge
without obtaining additional instructions
regarding the bicycle’s proper use and knowing
that the wheel previously had become loose,
was not a reasonably anticipated use of the
product.
Id. The court could have defined the plaintiff’s use of the bike
as simply “riding the bike,” which certainly would have been a
reasonably anticipated use of a bicycle. The court did not do so,
however.
Similarly, in Johnson v. Black & Decker U.S., Inc., 701 So. 2d
1360 (La. App. 2d Cir. 1997), the court affirmed a jury’s
conclusion that using a circular saw after removing its safety
11
guard was not a reasonably anticipated use of the saw. Id. at 11.
The court decided the case based on the assumption that the
plaintiff’s “use” of the saw included the fact that the guard had
been removed. See
id. at 6 (asking whether “subsequent use of the
altered saw” was a reasonably anticipated use).3 The court did not
define “use” at the higher level of generality (i.e., simply
“cutting wood”), but instead included the plaintiff’s negligent
actions as part of “use.”4
Finally, this Court has itself defined “use” as including some
of the plaintiff’s negligent conduct. In Hunter v. Knoll Rig &
Equipment Mfg. Co., Ltd., 70 F.3d 803 (5th Cir. 1995), the question
was whether the decedent had been using a “drilling rig racking
board” in a reasonably anticipated manner when the pipes he was
racking collapsed and killed him. The majority found no reasonably
anticipated use of the racking board, because the manner in which
the decedent had been racking the pipes was obviously dangerous and
contrary to industry practice.
Hunter, 70 F.3d at 810. Clearly,
3
The court discussed Berry v. Commercial Union, 565 So. 2d 487
(La. App. 2d Cir. 1990), a pre-LPLA case which also dealt with a
power saw from which the plaintiff had removed the safety guard.
The Johnson court characterized the Berry plaintiff’s “use” of the
altered saw as “abnormal use ... either ignoring instructions that
the guard was missing or failing to notice such an obvious danger
and carrying the saw in his subordinate hand while climbing an
unsecured ladder.”
Johnson, 701 So. 2d at 8 n.3.
4
In a pre-LPLA case, Hale Farms, Inc. v. American Cyanamid
Co., 580 So. 2d 684 (La. App. 2d Cir. 1991), the court addressed
whether applying herbicide in a manner contrary to the label
instructions was “normal use” of the herbicide. The court
implicitly considered the “use” of the herbicide to include not
only the actual spraying of the product, but also the quantities
and concentration of the sprayed herbicide which were contrary to
the label instructions. See Hale
Farms, 580 So. 2d at 688.
12
the majority defined “use” as including not only the obvious use of
the racking board to rack pipe, but also the dangerous manner in
which the decedent was racking the pipe. Id. This is underscored
by the dissent in Hunter, where Judge Benavides advocated a broader
view of “use”:
...the evidence reflects that the racking
board was being used for its intended purpose
(racking pipe) and in a manner that a jury
could conclude was common.
Id. at 812 (Benavides, J., dissenting). The dissent in Hunter
would have found the “overall use of the racking board” to be
“routine,” and would have allowed comparative fault principles to
account for the decedent’s negligence in racking the pipe.
Id. at
813. The majority in Hunter, however, included in its conception
of “use” those aspects of the decedent’s behavior that increased
the risk of injury associated with the product.
We find that the reasoning in Hunter is consistent with the
treatment of this issue by Louisiana appellate courts and conclude
that Kampen’s getting under the car to inspect its underside
constituted a “use” of the jack.
C.
Given that conception of “use,” we are led to the crucial
question: was Kampen’s use of the jack one that Isuzu should have
reasonably anticipated? The district court said “no”: relying on
Lockart, the court found that a manufacturer should not reasonably
anticipate that a user will disregard two explicit warnings and
place himself, in direct contravention of those warnings, in a
position of obvious peril. In confronting this question, we must
13
therefore address what impact an express warning should have on
whether the use of a product is reasonably anticipated.
1.
The meaning of our decision in Lockart broods over this case.
In Lockart, two workers suspended a steel pontoon with chains from
the teeth of an excavator’s bucket and got underneath the pontoon
to work on it. The chains slipped, and the pontoon fell, killing
one man and injuring the other. An instruction in the operator’s
manual for the excavator warned, “Never lift a load from the
bucket teeth,” and was accompanied by a diagram. See Lockart, 989
F.2d at 865-66. We held that summary judgment against the
plaintiffs was appropriate because the plaintiffs had not sustained
their burden of showing that the decedents’ use of the excavator
was reasonably anticipated.
Id. at 869. Exactly why the
plaintiffs failed to meet their burden of proof is somewhat
ambiguous and requires us to clarify Lockart’s holding.
Lockart held that the use of the excavator was not reasonably
anticipated for two, alternative reasons: (1) because an adequate
warning was provided, cautioning against the very conduct the
decedents engaged in, and (2) because even if the decedents had no
knowledge of that warning, the danger inherent in their use of the
excavator should have been obvious. See Lockart, 989 F.2d at 866-
67 & 868. The plaintiffs, who bore the burden of proving
reasonably anticipated use, failed to meet that burden because they
failed to provide proof that “another warning would have been
feasible or that these experienced workers should not have
14
reasonably appreciated the risks involved in suspending the pontoon
from the bucket teeth.” Id. at 869.
Lockart is, at bottom, an obvious danger case. But a close
reading of the decision shows that the obviousness of the danger
was based in significant part on the warnings provided with the
excavator. In unequivocal language, the Lockart court stated:
When a manufacturer expressly warns against
using a product in a certain way in clear and
direct language accompanied by an easy to
understand pictogram, it is expected that an
ordinary consumer would not use the product in
contravention of the express warning.
Id. at 867 (emphasis added). What has engendered some confusion
and has led many to dismiss the block-quoted language as dictum is
the sentence which follows: “Here, however, the owners manual and
thus the warning probably never reached the ultimate users.”
Id.
But given its proper context, the block-quoted language is simply
not dictum. It is in fact one element in the overall equation
demonstrating why the decedents’ conduct was in the face of obvious
danger and was thus not a reasonably anticipated use of the
excavator.
Language from other parts of Lockart confirms this view. For
example, the defendants asserted that, because the decedents’ use
was not reasonably anticipated, the court would not have to reach
the unreasonably dangerous question (which could have involved,
inter alia, analyzing the adequacy and effect of the warning). See
id. at 866; see also
discussion supra Part II & n.2. Tellingly,
the court responded that
... [i]n this case, however, since we hold
15
that the use was not reasonably anticipated
because under the circumstances an adequate
warning was provided, our analysis extends to
the warnings.
Lockart, 989 F.2d at 866 (emphasis added). The emphasized language
illuminates two crucial aspects of Lockart: (1) that the language
about adequate warnings was holding and not dictum, and (2) that
reasonably anticipated use was intertwined with the character and
adequacy of the warnings. Otherwise, the whole discussion of the
adequacy of the warnings would have been surplusage. See
id. at
867-68.
We thus read Lockart as a decision about the relationship
between obvious danger and express warnings. Lockart addresses the
situation where a manufacturer provides an express warning
cautioning against a use of the product for which the product was
neither designed nor intended, and where the plaintiff acts in
direct contravention of that warning. In that case, the
plaintiff’s “use” of the product will not be a reasonably
anticipated one, unless, as Lockart itself observed, “the
plaintiffs had presented evidence that despite the warnings, [the
manufacturer] should have been aware that operators were using the
[product] in contravention of certain warnings.” Id. at 868.
Our holding on this point does not mean that an adequate
warning will always be dispositive of reasonably anticipated use.
Such a view would render superfluous the risk/utility balancing
test in § 2800.56 of the LPLA, which instructs the court to
“consider an adequate warning about a product” in determining
whether a product is unreasonably dangerous in design. See
16
LA.REV.STAT.ANN. § 9:2800.56(2). But merely because the LPLA
includes an adequate warning as one ingredient in the “unreasonably
dangerous design” test does not mean that a court is precluded from
considering an adequate warning in relation to other areas of the
Act. The LPLA itself requires that, as a threshold for liability,
the plaintiff’s damages arise from a reasonably anticipated use of
the product. What we say here is only that a warning against a
product misuse5 is relevant to assessing what uses of its product
a manufacturer reasonably anticipates. When, in the face of such
a warning, a plaintiff presents no evidence about whether the
manufacturer should have reasonably expected users to disregard the
warning, the plaintiff fails to meet the burden imposed on him by
5
We also note that our holding will not, as the panel majority
feared, allow malevolent manufacturers to absolve themselves from
liability for uses (or misuses) of their products which the
evidence shows should have been reasonably anticipated despite a
warning to the contrary. See Kampen, 119 F.3d at 1201 (“Such a
rule would allow a manufacturer to insulate itself from liability
for uses of a defective product that are unquestionably reasonably
anticipated.”). It would be legally ineffective if, for example,
Isuzu had warned against using its jack to change the tires on the
Impulse, a user had nonetheless used the jack to change a tire, and
was injured in the process. In that case, a court should find
that, despite the warning, using a factory-supplied jack to change
a tire (which is the very purpose for which the jack was supplied)
is, in the panel majority’s words, “unquestionably [a] reasonably
anticipated” use.
17
the LPLA.6 See LA.REV.STAT.ANN. § 9:2800.54(D).7
6
As the Restatement recognizes, a warning against specific
misuses of a product will not in every case prevent a plaintiff who
contravenes that warning from pursuing a claim against the
manufacturer:
[I]nstructions and warnings may be ineffective because
users of the product may not be adequately reached, may
be likely to be inattentive, or may be insufficiently
motivated to follow the instructions or heed the
warnings. (...) Warnings are not ... a substitute for the
provision of a reasonably safe design.
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt. l (1998). Our
decision in this case is not to the contrary: we simply hold that
the Kampens must provide evidence that Isuzu should have known its
otherwise adequate warnings were being disregarded by product users
in this particular way.
The Texas Supreme Court’s recent decision in Uniroyal Goodrich
Tire Company v. Martinez, No. 95-1159, 1998 WL 352929 (Tex. July 3,
1998) also explores the relationship between warnings and design
defects under the Restatement (Third) of Products Liability. In
Uniroyal, the plaintiff was injured when he attempted to inflate a
16" tire on a 16.5" tire rim, in contravention of the tire
manufacturer’s express warnings, and the tire exploded. While
conceding his disregard of the warnings, the plaintiff nonetheless
argued that the tire was defectively designed because the
manufacturer could have implemented an alternative tire design that
would have prevented the explosion, and, thus, his injuries. A
five-justice majority of the Texas Supreme Court affirmed the
jury’s finding that the tire was defective. The court recognized
that, under the Restatement, warnings and instructions are relevant
but not determinative in assessing whether a product is reasonably
safe. See Uniroyal,
1998 WL 352929, at *5-6, citing, inter alia,
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 & cmt. f. The
court held, however, that there was evidence from which a jury
could have reasonably determined that, despite the adequate
warning, Uniroyal’s failure to implement the alternative design
rendered the product defective. See Uniroyal,
1998 WL 352929, at
*6-7. Four justices dissented, arguing that the majority had not
properly interpreted the Restatement and had failed to give the
warnings adequate consideration in the “reasonably safe” calculus.
See
id. at *14-15 (Hecht, J., dissenting). The dissenting justices
would have found the tire reasonably safe as a matter of law. See
id. at *18-19 (Hecht, J. dissenting).
Of course, Uniroyal is not controlling on the outcome here, since
we interpret the LPLA and not Texas law, and we address the
threshold issue under the LPLA of reasonably anticipated use rather
than unreasonable dangerousness. See
id. at *4-6 (following
RESTATEMENT (SECOND) OF TORTS, § 402A, and RESTATEMENT (THIRD) OF TORTS:
18
2.
PRODUCTS LIABILITY § 2(b)). We nonetheless note the decision because
it focuses on the impact of warnings in a products liability case,
albeit in a different context. We also observe that while the
majority and dissenting opinions in Uniroyal disagree over the
meaning of comment l to § 2 of the Restatement (Third) of Products
Liability, both opinions agree that warnings and instructions are
relevant to whether an injured plaintiff who disregards a warning
can nonetheless maintain an action under a design defect theory.
7
Our clarification of Lockart could be read to conflict with
the Eighth Circuit’s decision in Chronister v. Bryco Arms, 125 F.3d
624 (8th Cir. 1997). In Chronister, the court held that the use of
a handgun in contravention of an express warning could be a
“reasonably anticipated use” under Missouri law “if that misuse is
reasonably foreseeable.”
Id. at 627. There, the plaintiff used a
handgun for target practice without wearing hearing protection,
despite warnings to the contrary; when the gun misfired, the
plaintiff sustained permanent hearing damage.
Id. at 625. The
defendant argued that it could not have reasonably foreseen the use
of its gun without hearing protection, and, further, that “use of
a product that contradicts the product’s instructions or warnings
is not a ‘reasonably anticipated use.’”
Id. at 627. The Eighth
Circuit rejected both arguments.
The court observed that a basic tenet of products liability law,
and one followed in Missouri, is that “a manufacturer cannot escape
strict liability for a defective product that has been misused by
the plaintiff, if that misuse is reasonably foreseeable.”
Id.,
citing 63A Am.Jur.2d Products Liability § 967 (1997), and
Nesselrode v. Executive Beechcraft, Inc.,
707 S.W.2d 371, 381 (Mo.
1986)(en banc). The court then pointed to evidence that the
defendant “knew that some people used weapons without hearing
protection.”
Chronister, 125 F.3d at 627. Thus, a jury could have
reasonably found that the plaintiff’s misuse of the gun was
nonetheless “reasonably foreseeable” by the defendant.
We first observe that the Chronister court’s conception of the
“use” of the gun is similar to our view here. The court did not
broadly define the plaintiff’s “use” as merely “firing the gun.”
Instead, the court implicitly considered “use” to include firing
the gun without hearing protection, a “use” which did nothing to
make the gun more or less likely to misfire, but which did increase
the risk of using the gun. See
discussion supra Part II.B.
Second, the Chronister court’s resolution of the “reasonably
anticipated use” issue is not at all contrary to ours. Just as we
would, the Eighth Circuit required proof that the defendant knew
its product was being misused in a particular way.
Chronister, 125
F.3d at 627. If the plaintiff had not provided such proof, we
presume that the plaintiff could not have established that his
admitted misuse of the gun was nonetheless a reasonably anticipated
use.
19
We recognize that, under Louisiana law, comparative fault
principles generally account for a plaintiff’s negligent conduct.
See Kampen, 199 F.3d at 1199; see also Bell v. Jet Wheel Blast
Div. of Ervin Indus.,
462 So. 2d 166 (La. 1985), and Thomas C.
Galligan, The Louisiana Products Liability Act: Making Sense of It
All, 49 La.L.Rev. 629, 685 (1989)(stating “the obvious”: “that the
[LPLA] makes no change in Louisiana’s comparative fault law”). But
it is argued that our view of Kampen’s “use,” combined with our
view of the interrelationship between warnings and reasonably
anticipated use, impermissibly conflates “product misuse” and a
plaintiff’s comparative fault. The argument goes that we are
making “reasonably anticipated use” do the work that comparative
fault is intended to do by including Kampen’s negligence in getting
under the car as part of his “use” of the jack.
It is true that Kampen’s disregard of the product’s warnings
and his exposing himself to obvious danger is the kind of conduct
that, ordinarily, would be assigned to the plaintiff as a
percentage of fault under the Louisiana system of comparative
fault. See LA.CIV.CODE.ANN. art. 2323 (West 1997). It is equally
true, however, that the Louisiana Legislature, in drafting the
LPLA, included the following prerequisite to recovery under the
Act: “...when such damage arose from a reasonably anticipated use
of the product....” LA.REV.STAT.ANN. § 9:2800.54(A). That language
raises “reasonably anticipated use” -- a concept that necessarily
includes some aspects of a plaintiff’s conduct -- to the level of
liability determiner (i.e., if a plaintiff has engaged in conduct
20
which renders his use of the product not reasonably anticipated by
the manufacturer, then his recovery is not merely reduced by his
percentage of fault -- he cannot recover at all).
This view does not, however, write comparative fault out of
Louisiana products liability law. A plaintiff’s negligent conduct
which does not remove his use of the product from the realm of
reasonably anticipated uses may nevertheless contribute to cause
his injuries. Such negligence will lessen a plaintiff’s recovery
without barring his right to recover altogether. Suppose, for
example, that Kampen had used the jack only to change a tire and
the jack had collapsed; the manufacturer had provided no adequate
instructions regarding the use of the jack, and the correct manner
of use was not obvious; the collapse occurred partly as a result of
Kampen’s negligent failure to fit the lifting arm of the jack into
a special notch and partly as a result of some unrelated defect in
the jack’s composition. In this example, Kampen used the jack to
change a tire, but physically manipulated the jack in an improper
manner that was not specifically warned against nor obviously
dangerous. We submit that this hypothetical negligent use would be
“reasonably anticipated”; the manufacturer would be liable and
damages apportioned by comparative fault.
It is also pointed out that Kampen’s placing himself beneath
the car did not make the jack any more or less likely to fail. It
is urged that when a plaintiff misuses a product (i.e., uses the
product in a way not reasonably anticipated by the manufacturer),
that misuse should only bar the plaintiff’s recovery where the
21
misuse causes the product to fail. In other words, there must be
a causal connection between product misuse and product failure.
While that may be an eminently reasonable view of what
products liability law should be, it is, however, not what the
Louisiana Legislature codified in the LPLA. The threshold
requirements for liability under the LPLA do not link product
misuse with product failure. Instead, the LPLA requires a link
between damages and reasonably anticipated use. The flip side of
that requirement is that if damages are linked to a product misuse
(i.e., one that is not reasonably anticipated), then those damages
are not recoverable under the Act.
Louisiana cases have recognized the necessary causal
relationship between product misuse and damages in finding that a
product has not been put to a reasonably anticipated use. In
Johnson v. Black & Decker, the plaintiff argued that his alleged
misuse of a saw (operating it without the safety guard) was
irrelevant, as his injury would have occurred regardless. The
court agreed that this was the correct issue, and asked whether
“the device[], had [it] been left in place, would have more likely
than not prevented the injury.” Johnson, 701 So. 2d at 1365
(emphasis added). After reviewing the evidence, the court
concluded that the plaintiff had “failed to prove that a saw
properly equipped with a gravity guard would, more probably than
not, have caused his injuries.”
Id. at 1366. It therefore
“perceive[d] no manifest error in the jury’s conclusion that [his]
use of the unguarded saw was not reasonably anticipated....”
Id.
22
In other words, the court found the plaintiff’s misuse of the saw
to be determinative of the reasonably anticipated use question
because the plaintiff’s damages were causally linked to that
misuse. As Kampen’s damages were unquestionably linked, insofar as
causation is concerned, to getting under the car, we break no new
ground in this case.8
III.
We have thus far determined that Kampen’s “use” of the jack
included not only jacking up the car, but also his crawling under
the car to inspect its underside. We have also determined that
under the LPLA and the cases interpreting it, when a plaintiff
misuses a product, in direct contravention of a warning, his “use”
will not be reasonably anticipated unless the plaintiff can show
that the manufacturer should have known that product users “were
8
In Hale Farms, supra Part II.B & n.4, the Louisiana Second
Circuit addressed whether spraying of herbicide contrary to the
label instructions constituted “normal use” of the herbicide (pre-
LPLA standard). The court stated at the outset that “normal use”
included “reasonably foreseeable misuse that is contrary to the
manufacturer’s instructions.” Hale
Farms, 580 So. 2d at 688. The
court affirmed the trial court’s finding that using 10 gallons of
water (instead of 20 gallons, as the label instructed) for spraying
was a “reasonably foreseeable (mis)use of the product.”
Id. at
691. By contrast, the court reversed the trial court on whether
using the wrong product-to-acre ratio was a “reasonably foreseeable
misuse.”
Id. at 693. What accounts for the difference is this:
the evidence showed that varying the amount of water (at least
within 10 to 20 gallons) would not have changed the product’s
effectiveness, but that varying the product-to-acre ratio would
have. See
id. at 689-91, 691-94. Thus, the court, even under the
broader “normal use” standard, required a causal link between
product misuse and damages (i.e., the persistence of weeds and
consequent damage to the soybean crop despite treatment with the
herbicide) in order for misuse to bar a plaintiff’s claims. See
id. at 694 (“The record does not support the trial court’s finding
that the low crop yields ... were caused by a product
defect.”)(emphasis added).
23
using the [product] in contravention of certain warnings.”
Lockart, 989 F.2d at 868. All that remains, then, is that we
examine the summary judgment record to see if the Kampens adduced
such evidence.
The deposition testimony of Dr. Tom Shelton, the plaintiff’s
expert, appears in the record. Shelton, a metallurgist, examined
the damaged jack, performed “hardness” tests on the steel composing
the jack, and compared the jack to other, similar jacks. He
testified about the possible forces acting on the jack when it
collapsed and opined that the softness of the metal used in the
Isuzu jack was a contributing cause of the jack’s failure.
Two exchanges during Shelton’s deposition bear on the
“reasonably anticipated use” question:
Q: Is it fair to say that the loading in this case,
[sic] you can’t tell me if it occurred during the
reasonably anticipated use of the jack?
SHELTON: The use of the jack, as it was being used on
the day, is a reasonably anticipated use only because
there is a large history of people using it in this
manner.
Q: And what manner is that? To lift a vehicle?
SHELTON: To lift a vehicle. Okay. So from that point
of view, I would say it’s reasonably anticipated. What
the history of the jack is, other than that, I couldn’t
tell you.
Q: Is it reasonably anticipated use of a jack to use it
to lift something on an unlevel surface?
SHELTON: Yes. It is.
Q: In terms of a reasonably anticipated use of a jack,
is it reasonably anticipated to be under the vehicle,
using the jack as the supporting member of the vehicle?
SHELTON: That’s reasonable to anticipate that someone
24
would do that, yes.
* * * * *
Q: And I assume because you have not reviewed the
warnings, you are not of the opinion that there is some
inadequacy of warnings regarding the vehicle and/or the
jack.
SHELTON: I have no statement on warnings.
(Emphasis added). In speculating on what uses of the jack would be
reasonably anticipated, Shelton thus opined that it would be
“reasonable to anticipate” that someone would rely on the jack to
support the vehicle over his or her body. Since this is the only
evidence in the summary judgment record bearing on the question, we
will confine ourselves to asking whether Shelton’s statement was
sufficient to create a genuine fact issue as to reasonably
anticipated use and thereby avoid summary judgment.
Shelton testified as a metallurgist, whose area of expertise
“deals with the extraction of metals from their ores, refining
them, and preparing them for use and includes processes (as
alloying, rolling and heat-rolling) and the study of the structure
and properties of metals.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
1420 (3d ed. 1981). Thus, Shelton’s opinion on, for example, the
relative strength of the steel used in the jack’s composition would
likely create a fact issue for summary judgment purposes. We would
even go so far as to say that Shelton could have created a fact
issue as to the reasonably foreseeable mechanical uses of the jack
(e.g., when he testified that it would be reasonably anticipated
for the jack to be placed on uneven surfaces).
Shelton’s testimony, however, as to whether the manufacturer
25
should have reasonably expected users to place themselves under a
jacked-up car, is not sufficient to create a genuine issue as to
that fact. Notwithstanding Shelton’s qualifications as a
metallurgist, he was not qualified to testify as to the habits of
users of automobile jacks nor about their propensities for
disregarding explicit warnings. Additionally, Shelton’s testimony
is internally inconsistent: he asserted initially that he knew
nothing of the “history” of the jack’s use beyond its obvious use
for lifting a car; only two questions later, he ventured an
opinion about exactly such behavioral “history” of the product’s
users. Shelton himself admitted to having “no statement about
warnings,” and so could not have created a genuine issue as to
whether jack users were disregarding the warnings at issue. “It
goes without saying that such conclusory, unsupported assertions
are insufficient to defeat a motion for summary judgment.”
Marshall v. East Carroll Parish Hospital Services District, 134
F.3d 319, 324 (5th Cir. 1998).
IV.
We thus find that the Kampens have not adduced competent
summary judgment evidence showing that Kampen’s use of the jack in
contravention of a warning was nonetheless reasonably anticipated.
Consequently, the Kampens have failed to meet the burden imposed on
them by LA.REV.STAT.ANN. § 9:2800.54(D), namely, to show that
Kampen’s damage arose from a reasonably anticipated use of the
26
jack. We therefore AFFIRM the judgment of the district court.9
AFFIRMED.
9
We note in closing that we neither approve nor disapprove of
Part IV of the panel opinion, which addressed Isuzu’s alternative
contention that the summary judgment record presented no genuine
issues of fact regarding whether the tire jack was unreasonably
dangerous. See Kampen, 119 F.3d at 1201-05. It is unnecessary to
reach the unreasonable dangerousness issue in light of our decision
here that Kampen’s injuries did not arise from a reasonably
anticipated use of the jack. See LA.REV.STAT.ANN. § 9:2800.54(A).
27
BENAVIDES, Circuit Judge, with whom POLITZ, Chief Judge, SMITH,
WIENER, STEWART and PARKER, Circuit Judges, join in all parts, and
DENNIS, Circuit Judge, joins in all parts save Part IIB,
dissenting:
The sole en banc issue in this case is whether Mr. Kampen’s
use of the original-equipment scissors jack to elevate the Isuzu
car with which the jack was supplied and which the jack was
designed to elevate was a “reasonably anticipated use” of the jack
under the Louisiana Products Liability Act of 1988, LA. REV. STAT.
ANN. §§ 9:2800.51-.59 (West 1991) (“LPLA” or “the Act”), in light
of the fact that, in contravention of an express warning, he had
partially slid underneath the car immediately before the collapse
of the jack. The majority holds that Isuzu should not have
reasonably anticipated that an individual would use the jack to
elevate the car and then slide beneath the vehicle despite a
warning to the contrary. Because I conclude that Kampen used the
jack in a manner that should have been reasonably expected by its
manufacturer, I dissent.
I.
The operative summary judgment facts of this case are
straightforward. As the majority notes, Mr. Kampen jacked up the
car in a manner fully consistent with the instructions given in the
owner’s manual: He placed the automatic transmission in “park,” he
blocked the opposite tire, and he placed the upper part of the jack
in a special notch intended for that purpose, located between the
door opening and the wheel. Suspecting that a foreign object was
caught behind the front left wheel, Kampen lay on the ground and
slid part-way under the car, thereby placing his head and shoulders
28
under the front of the car, in an effort to examine the back or
interior side of the wheel visually. Positioning his body in this
manner was contrary to the Isuzu-provided instructions which Kampen
had not read. While Kampen was in that position, the jack
spontaneously collapsed, causing the car to fall and strike him
across the shoulders, breaking both of his collarbones. Kampen
never so much as brushed against the underside of the car from the
time he completed the jacking process until the jack collapsed.
The Kampens’ expert identified the jack’s “failure mode” as a
“shearing of the [metal] teeth which are at the base of the bottom
set of legs for the scissors jack” in combination with “the
dimensions of the contacting surfaces.” The expert testified that
the steel was “soft on this jack, real soft . . . about as soft as
you can get.”
II.
A.
The Kampens brought suit against Isuzu under the LPLA, a sui
generis products liability law drafted exclusively for Louisiana.
Although the LPLA’s drafters drew upon external sources such as the
United States Department of Commerce’s Model Uniform Product
Liability Act in drafting the LPLA, the “reasonably anticipated
use” element and the role that it plays in the LPLA statutory
scheme are unique to Louisiana law. See John Kennedy, A Primer on
the Louisiana Products Liability Act, 49 La. L. Rev. 565, 569
(1989). “Reasonably anticipated use” is a term of art, which the
29
LPLA defines as “a use or handling of a product that the product’s
manufacturer should reasonably expect of an ordinary person in the
same or similar circumstances.” LA. REV. STAT. ANN. § 9:2800.53(7).10
As John Kennedy, one of the drafters of the LPLA, has
explained, the LPLA’s treatment of use “departs from prior
[Louisiana] law but only in one respect[:] . . . by substituting
‘reasonably anticipated use’ for ‘normal use.’” Kennedy, 49 LA. L.
REV. at 584. Before the LPLA’s September 1988 effective date, a
Louisiana products liability claimant had to show that “his damage
resulted from a condition of the product that made it unreasonably
dangerous to normal use.” Bloxom v. Bloxom, 512 So. 2d 839, 834
(La. 1987) (emphasis added) (citations omitted). “Normal use”
included “all intended uses, as well as all foreseeable uses and
misuses of the product.”
Id. (citations omitted). The
introduction of the phrase “reasonably anticipated” was intended to
narrow the test for the “uses” that the manufacturer had to take
into account. See Kennedy, 49 LA. L. REV. at 584; see also Dunne v.
Wal-Mart Stores, Inc.,
679 So. 2d 1034, 1037 (La. App. 1996); Myers
v. American Seating Co.,
637 So. 2d 771, 775 (La. App.
1994)(citations omitted); Daigle v. Audi,
598 So. 2d 1304, 1307
(La. App. 1992); Walker v. Babcock Indus., Inc.,
582 So. 2d 258,
259 (La. App. 1991).
Since the enactment of the LPLA, the Louisiana courts have
10
I note the obvious but important point that, in the Act,
“reasonably” modifies “anticipated,” not “use.” A “use” can be
unreasonable yet, at the same time, be “reasonably anticipated” by
a manufacturer.
30
most frequently defined “reasonably anticipated use” in terms of
what it is not, contrasting a reasonably anticipated use with one
that is merely “conceivable.” See Myers, 637 So. 2d at 779
(“Although this use may be a conceivable use, it is not a
reasonably anticipated use.”); Delphen v. Department of Transp. &
Dev.,
657 So. 2d 328, 333 (La. App. 1995) (“The more restrictive
scope of liability [under the reasonably anticipated use standard]
was meant to avoid prior confusion because virtually any
conceivable use is foreseeable.”) (citation omitted); see also
Kennedy, 49 LA. L. REV. at 596 (“‘Reasonably anticipated use’ . . .
convey[s] the important message that the manufacturer is not
responsible for accounting for every conceivable foreseeable
use.”). For example, a manufacturer might conceivably foresee, but
would not reasonably anticipate, that “a consumer might use a soft
drink bottle for a hammer, might attempt to drive his automobile
across water or might pour perfume on a candle to scent it.”
Kennedy, 49 LA. L. REV. at 586. By excluding such situations, “the
drafters of the LPLA believed that ‘reasonably anticipated use’
would serve the same purpose as ‘normal use’ but do so more
efficiently.”
Id. at 585. As the majority acknowledges, however,
the boundaries of the reasonably anticipated use test nevertheless
remain imprecise.
B.
As did the district court, the majority concludes that
Kampen’s use of the jack was not reasonably anticipated by Isuzu.
Like the panel majority before us, I disagree. None can question
31
that the reasonably anticipated use of the jack was to elevate and
keep elevated the very Isuzu Impulse with which the jack was
supplied. And none can question that Kampen used the jack to
elevate the car and keep it elevated. This use is not merely
reasonably anticipated; it is the precise use intended by the
manufacturer. Scissors jacks cannot see or hear, so what their
users do (other than bumping into them or the cars they have
lifted) after using such jacks to elevate and suspend the cars
cannot affect the jacks. What the user does during or after that
use — whether it be changing a wheel, removing a shy cat from the
chassis, rescuing a trapped child, or looking for the source of
wheel noise — cannot retrospectively alter the use to which the
jack has been put, that is, to elevate the car and keep it
elevated, unless what the user does increases what is required of
the jack to elevate the car and keep it elevated.
Kampen’s “keep it elevated” use of the jack continued while he
proceeded to slide under the car in order to examine the back or
interior side of the left front wheel. Unfortunately, before he
could do so, the jack failed in the “keep elevated” facet of its
reasonably anticipated use when its metal teeth sheared, allowing
the vehicle to fall on Kampen, suddenly and without warning. As
this failure was spontaneous and wholly internal to the jack, the
vehicle would have dropped when it did even if Kampen had been
changing the left front wheel rather than attempting to look behind
it. Indeed, the jack would have failed, and the vehicle would have
fallen if Kampen had walked away from the car immediately after
32
elevating it with the jack. Logic defies any conclusion other than
that the Kampens’ damages arose from Mr. Kampen’s reasonably
anticipated use of the jack.
At bottom, this case is just that simple. This can be
illustrated by posing the rhetorical question, “How do you use a
scissors jack to change a tire?” and by answering it, “You don’t;
you use a tire tool11 and your own two hands to change a tire; you
use a scissors jack only to elevate a car and hold it there.”
Because there is no property of a scissors jack that lends itself
to checking the interior side of a wheel to determine the source of
a noise, Kampen could not and thus did not use the jack for that
purpose; neither could he have used the jack to change a flat tire
because no property of the jack lends itself to that purpose: The
jack has no lug wrench and no hubcap removal device. To repeat,
only two human hands and one or more tire tools can be “used” to
change a wheel. The jack serves merely to facilitate the tire-
changing process by elevating and supporting the car during the
time it takes to remove and replace the tire.
The fact that Kampen got under the vehicle while it was held
aloft by the jack did not somehow transform his use of the jack
from a reasonably anticipated use to a use not reasonably
anticipated. After all, not every action taken in connection with
11
Typically, such a device is a round steel bar or tube which
is bent at approximately 45 degrees near one end and which has a
lug wrench on one end and a hubcap wedge on the other.
33
a product constitutes a “use” of the product.12 Accordingly, our
task in conducting this analysis is to determine what kind of
plaintiff conduct should be considered in connection with
anticipated use and what kind should not.
Both the language of the LPLA and the cases that have
interpreted its “reasonably anticipated use” element suggest that
this requirement is aimed principally at the manner in which, or
method by which, the claimant operated or handled the product. The
Act defines “reasonably anticipated use” in terms of the “use or
handling” of a product. LA. REV. STAT. ANN. § 9:2800.53(7).
Similarly, those courts that have construed Louisiana’s reasonably
anticipated use element since the Act was adopted have considered
the plaintiff’s “use” of the product to be his direct interaction
with the product. See Lockart, 989 F.2d at 868 (the use of an
excavator was hanging a pontoon from the bucket of the excavator
with a chain); Myers,
637 So. 2d at 779 (the use of a folding chair
was standing on the back instead of the front portion of its seat);
Delphen, 657 So. 2d at 333 (the use of the bicycle was riding it
with the front tire loose).13
12
Indeed, the drafters of the LPLA, who considered the Model
Uniform Product Liability Act (“MULPA”) in drafting the LPLA, see
Kennedy, 49 LA. L. REV. at 570, eschewed the phrase “reasonably
anticipated conduct,” which is used in MULPA, and instead chose the
phrase “reasonably anticipated use.” Compare Model Uniform Product
Liability Act, § 102, reprinted in 44 FED. REG. 62714 (1979), with
LA. REV. STAT. ANN. § 9:2800.53(7).
13
Dictionaries also define “use” primarily in terms of the
manner in which or the method by which something is handled or
employed. See, e.g., WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 1299 (1984)
(defining “use” as “the act or practice of employing something . .
.[;] the fact or state of being used . . .[;] a method or manner of
34
When viewed in the light most favorable to the Kampens, the
summary judgment evidence shows that the manner in which Mr. Kampen
used the jack was one that Isuzu should have reasonably expected.
Again, he properly placed the jack; he operated it in an
unremarkable manner; and he even blocked the opposite wheel as
suggested in the owner’s manual.14 Isuzu must have anticipated the
purpose for which Kampen used the jack — to elevate the very car
with which it was provided. Kampen’s getting under the car is not
analogous to using a Coke bottle as a hammer, driving a car on
water, using perfume to scent a candle, see Kennedy, 49 LA. L. REV.
at 586, or hanging a steel pontoon from the teeth of an excavator,
see Lockart, 989 F.2d at 864.
At most, Kampen placed himself in the “zone of danger” created
by the unreasonably dangerous jack. Placing oneself in the zone of
danger created by a defective product, however, is altogether
different from “using” the product. For example, in Lockart, the
“use” that the court found was not reasonably anticipated was not
employing or applying something . . . .”) (first set of
definitions). In some cases, of course, the purpose for which the
product is used is inseparable from the manner of use. Another
dictionary combines the concepts of manner and purpose, defining
use as “[t]he act of using; the application or employment of
something for some purpose.” THE AMERICAN HERITAGE DICTIONARY 1331 (2d
Coll. Ed. 1985). For example, if a consumer uses a soda bottle as
a hammer, the purpose for which the product is used (to flatten or
nail something) is intertwined with how the product was used
(hitting the bottle against a surface).
14
Although Isuzu presented some evidence that Kampen used the
jack on an uneven surface, Kampen’s expert testified that the
physical evidence suggested that the base of the jack was “flat or
relatively flat” when it collapsed, which is accepted as true for
summary judgment purposes.
35
the action of the plaintiffs in standing underneath the suspended
steel pontoon but rather their dangling the pontoon from the teeth
of an excavator bucket. Lockart, 989 F.2d at 868.15 In Kampen’s
case, getting under the car while it was being held aloft by the
jack was not a “use” of the jack within the meaning of the Act any
more than his retrieving a hat that is blown under the elevated car
would be “using” the jack, or for that matter, than a child’s
crawling underneath the elevated car to retrieve a toy would be
“using” the jack. Defining the scope of use in this way is
consistent with the purpose of the reasonably anticipated use
requirement: “to express the types of product uses and misuses by
a consumer that a manufacturer must take into account when he
designs a product, drafts instructions for its use and provides
warnings about the product's dangers in order that the product not
be unreasonably dangerous.” Kennedy, 49 LA. L. REV. at 584.
One common thread runs through all the cases in which the
15
The majority argues that Johnson v. Black & Decker U.S.,
Inc., 701 So. 2d 1360, 1362 (La. App. 1997), somehow undermines my
understanding of use. Johnson, however, involved the plaintiff’s
use of a miter saw after a safety guard designed to protect the
user’s hands had been removed. Pre-LPLA case law held that the use
of a saw after the removal of a safety guard was not a normal use.
See Berry v. Commercial Union Ins. Co.,
565 So. 2d 487 (La. App.
1990). The Johnson court concluded that the use of a saw after the
removal of a guard was a fortiori not a reasonably anticipated use.
Johnson, 701 So. 2d at 1365. Unlike the plaintiff’s use of the saw
in Johnson after its unanticipated alteration that made the saw
more dangerous, Kampen used the jack in this case in the condition
that Isuzu supplied it and in the manner instructed. Holding that
Kampen’s getting under the car is relevant to the reasonably
anticipated use analysis would be like the Johnson court holding
that Johnson’s use of a saw manufactured without a guard was not
reasonably anticipated because he placed his hand in front of the
unguarded blade.
36
Louisiana courts have found that a use of a product was not
reasonably anticipated. In every one, the manufacturer would have
had to do something else to make the product safe (or, more
precisely, not unreasonably dangerous) for the unanticipated use,
i.e., something that the manufacturer did not have to do to make
the product safe for its reasonably anticipated use. For example,
in Myers v. American Seating Co., a Louisiana court of appeal held
that a manufacturer should not have reasonably anticipated that
someone would stand on the rear portion of a folding chair’s seat,
causing the chair to jackknife. The court explained: “The evidence
shows that, in a reasonably anticipated use, the [folding chair]
performed in the manner a folding chair should perform. Only when
used in the manner [the plaintiff] used the chair, namely standing
on the rear portion of the chair seat, would the chair jackknife.”
637 So. 2d at 779. In other words, the hands-on (more precisely
feet-on) way in which the claimant handled the product caused it to
exhibit a dangerous characteristic that the product would not have
exhibited if it had been used in a manner that the manufacturer
could reasonably have expected.16 That is simply not the case we
16
The majority suggests that the relevant link is not between
the plaintiff’s conduct and the product’s failure but between the
plaintiff’s conduct and the plaintiff’s damages. To be sure, the
LPLA requires that the plaintiff prove that his “damage arose from
a reasonably anticipated use of the product.” LA. REV. STAT. ANN. §
9:2800.54(A). The question of just what conduct of the plaintiff
is relevant to the reasonably anticipated use analysis, however,
precedes the issue whether a use was reasonably anticipated and, if
so, whether the plaintiff’s damages arose out of that reasonably
anticipated use.
The court of appeal’s decision in Johnson v. Black & Decker, 701
So. 2d 1360 (La. App. 1997), does not undermine my understanding of
37
have here. The forces operating on the jack in this case — only
mass and gravity — were identical to those that would have been at
play had Kampen been changing a tire. If anything, the forces were
less: Kampen testified that he did not touch the underside of the
car before the jack collapsed; had he been changing a tire, some
force would have been transmitted to the car by loosening and
removing the lug nuts, pulling the flat tire off, putting the spare
use and the required relationship between the plaintiff’s conduct
and the product’s failure. In Johnson, the plaintiff severed two
fingers using a miter saw. The saw as manufactured was equipped
with a guard, but that guard had been removed. The court explained
that the “outright removal of the guard, without even a substandard
replacement, was not a reasonably anticipated alteration,” that
pre-LPLA case law held that use of a saw after a guard was removed
was not a normal use, and that a fortiori the use of a saw after a
guard was removed was not a reasonably anticipated use. 701 So. 2d
at 1365.
The plaintiff in Johnson argued that, even if his use of the saw
after the guard’s removal was not reasonably anticipated, his
recovery should not be barred because his injuries would have
occurred even had the guard been in place.
Id. The court accepted
this argument on its own terms, although it concluded that the
evidence did not support that the damages would have occurred even
had the guard been in place.
Id. at 1366. As the Johnson court
explained, whether the plaintiff’s use of the saw without a guard
was reasonably anticipated would be moot if the injury would have
occurred even had the guard been left in
place. 701 So. 2d at 1365.
In effect, the Johnson court gives plaintiffs a route to circumvent
the reasonably anticipated use analysis; that is, if the plaintiff
can show that his injuries would have occurred in a reasonably
anticipated use of the product then it does not matter that his
actual use was not reasonably anticipated. Thus, the requirement
of a causal connection between the plaintiff’s misuse and the
plaintiff’s damages established by the Johnson court provides a
shield for the plaintiff against his unanticipated use. That is a
far cry from holding, as the majority does, that the reasonably
anticipated use element bars recovery whenever there is a causal
link between any aspect of the plaintiff’s conduct and his damages.
Neither should Johnson be read to mean that there need not be any
relationship between the plaintiff’s conduct and the failure of the
product before that conduct is relevant to the reasonably
anticipated use analysis.
38
tire back on the wheel lugs, and resecuring the lug nuts. In no
way whatsoever did the fact that Kampen was under the car make the
jack’s failure any more likely to occur. The risk that Isuzu was
required to take into account in designing, manufacturing,
furnishing, and warning about the jack was that it would collapse
spontaneously under the weight of the vehicle that it was
purportedly designed and manufactured to lift and hold aloft for at
least as long as it takes to change a tire (i.e., the risk that it
would fail when used as reasonably anticipated). Producing a jack
that would have been safe for Kampen to achieve his goal — checking
for the source of tire noise — would have required nothing more
than what was required to make the jack safe and effective for its
intended purpose.
There is no Louisiana case in which a court found that a
plaintiff’s use was not reasonably anticipated when, as here, there
was absolutely no nexus between the plaintiff’s conduct and the
failure of the product. This understanding of use is consistent
with the traditional role of “normal use,” which was linked to the
defectiveness of the product under the pre-LPLA law of Louisiana.
See Weber, 250 So. 2d at 756 (defining “defective” as “unreasonably
dangerous to normal use”). The LPLA drafters plainly did not
intend to change the essential function of the misuse element. See
Kennedy, 49 LA. L. REV. at 584. In fact, every case on which the
majority relies involved plaintiff behavior that contributed in
some manner to a product’s failure.
It has nevertheless been suggested by the majority that, even
39
though Kampen’s presence under the vehicle did not have anything to
do with the jack’s failure, it increased the risk associated with
the jack’s failure and therefore should be considered part of the
use of the jack. Although it is true that Kampen would not have
suffered his precise injuries — conceivably none at all — had he
not been underneath the vehicle, the plain language of the LPLA
does not require that the damages resulting from the failure of a
product in its reasonably anticipated use have been reasonably
anticipated; the Act requires only that the damages arise out of a
reasonably anticipated use of the product. See LA. REV. STAT. ANN.
§ 9:2800.54(A). Considering the risk of harm (or reasonable
anticipation of the risk of harm) as part of the reasonably
anticipated use analysis conflates and confuses reasonable
anticipation of use with reasonable anticipation of the risk of
harm. Although foreseeability of the risk of harm is properly
taken into consideration under other elements of the plaintiff’s
case, such as proximate cause17 and design defect,18 it is never
relevant to the analysis of reasonably anticipated use.
Assume, for example, that while a plaintiff is transporting
collectible books worth thousands of dollars in a recreational
vehicle (“RV”), the steering wheel falls off when the RV takes a
sharp right turn. As a result, the driver loses control of the
17
A manufacturer is only liable for “damages proximately caused
by a characteristic of the product that renders the product
unreasonably dangerous . . . .” LA. REV. STAT. ANN. § 2800.54(A).
18
The LPLA requires the factfinder to balance the likelihood
and gravity of harm against the burden of an alternative design.
LA. REV. STAT. ANN. § 9:2800.56
40
vehicle, and it careens off the road. The driver breaks his leg in
the impact, but manages to escape before the vehicle catches fire.
Unfortunately, however, the books are destroyed in the fire. The
manufacturer obviously cannot defend a products liability action
for the driver’s personal injuries on the basis that the driver’s
damages did not arise out of a reasonably anticipated use of the RV
simply because it was being used to transport books rather than to
take a pleasure trip. Neither should a separate use analysis be
available to the manufacturer when it is sued for the loss of the
books. The transport of collectible books may have increased the
quantum or changed the kind of damages suffered by the plaintiff,
but, for the purposes of the reasonably anticipated use analysis,
there is no requirement that the manufacturer have reasonably
anticipated the type and quantum of the plaintiff’s damages, only
that the damages arose out of a reasonably anticipated use of the
RV. This does not necessarily mean that our hypothetical plaintiff
will be able to recover for the loss of the books, however, as he
may not be able to prove other elements of his case, such as
proximate cause. See LA. REV. STAT. ANN. § 2800.54(A). Again, there
is no nexus between the presence of the books in the RV and the
failure of the product — like the absence of a nexus between
Kampen’s presence under the car and the failure of the jack, but
unlike Myers’s standing on the rear of the seat of the folding
chair and its failure. To hold that the RV’s use was not
reasonably anticipated because the plaintiff’s conduct worsened the
injuries suffered as a result of the failure of the product during
41
a reasonably anticipated use makes “reasonably anticipated use” do
the work of other elements of products liability law.
Moreover, to the extent that Kampen’s subsequent negligent
conduct in sliding under the elevated vehicle increased the risk of
harm from the jack’s wholly unrelated failure, Louisiana’s system
of comparative fault serves to ensure that the manufacturer will
not have to bear that percentage of Kampen’s damages that is
attributable to his own negligent conduct, as opposed to the
defectiveness of the jack. See Bell v. Jet Wheel Blast, Div. of
Ervin Indus., 462 So. 2d 166 (La. 1985); Thomas C. Galligan, The
Louisiana Products Liability Act: Making Sense of It All, 49 LA. L.
REV. 629, 685 (1989) (stating “the obvious”: “that the [LPLA] makes
no change in Louisiana’s comparative fault law”). Indeed, the
impetus for applying comparative fault in products liability cases
is to provide the proper incentives to both the product user and
the product manufacturer. See
Bell, 462 So. 2d at 171-72. As we
explained when adopting comparative fault in strict products
liability under our maritime jurisdiction:
The comparative fault standard allows the price of the
product to reflect the cost of its non-negligent use.
Hence a comparative fault standard allows the
economically efficient amount of the product to be used.
Lewis v. Timco, Inc., 716 F.2d 1425, 1433 (5th Cir. 1983) (en
banc). Treating Kampen’s negligence as a complete bar to his
recovery in this case would undermine the manufacturer’s incentives
to produce a product that is safe in its reasonably anticipated use
by immunizing the manufacturer in those cases in which the
plaintiff’s damages result from a reasonably anticipated use of the
42
product, but are also magnified by his own misconduct.
When a product is unreasonably dangerous in a use that the
manufacturer could reasonably anticipate, the fact that the
claimant has placed himself in the zone of danger created by that
defective product should not serve as a per se bar to the
claimant’s recovery; at most it should reduce the quantum of his
recovery based on the percentage of his comparative fault. Cf.
Terrebonne v. Goodman Mfg. Corp., 687 So. 2d 124 (La. App. 1996).
If the Louisiana legislature had intended the reasonably-
anticipated-use requirement to function as a contributory
negligence bar, it could have said so.19 As Louisiana had, at the
time of the LPLA’s enactment, only recently supplanted its old
contributory negligence bar by adopting comparative fault in
ordinary tort situations, ascribing such an intention to the
state’s products liability theory is particularly counterintuitive.
The majority provides little assurance that comparative negligence
would still play a viable role in Louisiana product liability law,
given its example of a plaintiff who might still maintain a claim
under the LPLA. The majority asserts that Louisiana’s comparative
fault regime is adequately respected and maintained if a jury is
19
The LPLA’s definition of “adequate warning” suggests that the
Louisiana legislature did not consider “ordinary” to be synonymous
with “reasonable”: unlike the definition of reasonably anticipated
use, which refers to an “ordinary person,” see LA. REV. STAT. ANN. §
9:2800.53(7), the definition of “adequate warning” speaks of an
“ordinary reasonable user.” See id. § 9:2800.53(9) (emphasis
added). It thus appears that the LPLA’s drafters did not intend to
remove all unreasonable, and hence all negligent, product usage
from the scope of reasonably anticipated use, regardless of whether
such negligence is defined by reference to an unheeded warning.
43
allowed to judge the comparative negligence of an individual who
improperly manipulates a defective jack. In the majority’s
hypothetical, the plaintiff does not act in contravention of a
warning, the manufacturer has not provided adequate instructions,
the correct manner of usage is not clear, and the improper
positioning of the jack is not obviously dangerous. That the
majority must stretch this far — relying on a hypothetical
plaintiff who is not even clearly negligent — illustrates the
degree to which it has subsumed comparative fault within its
conception of use that is not reasonably anticipated. Under the
majority’s holding, one is hard pressed to envision a plaintiff who
interacts with a product in such a way that he is negligent and yet
has still engaged in a reasonably anticipated use; this is
particularly so for the class of individuals who fail to heed
warnings accompanying the products they use. By allowing all
plaintiff conduct that increases the risk of damages to define use,
the majority comingles reasonably anticipated use with comparative
negligence to come up with use that is not reasonably anticipated.
C.
Even assuming, arguendo, that getting under the car was somehow a
“use” of the jack, we need not, and therefore I would not, hold
that, as a matter of law, the manufacturer should not have
reasonably expected a user to place part of his or her body
underneath a jacked-up car. Persons changing tires cannot avoid
placing their hands and forearms around the tire and thus under
44
the wheel well, not to mention that their hands, arms, and even
portions of their torsos, can be expected to be under the car
briefly when, for example, the tire changer reaches for lug nuts
that have rolled under the vehicle. It stretches credulity to
imagine that Isuzu was not aware that hands, feet, arms, and
other extremities would often be under a car elevated with its
scissors jack, regardless of the goal of the person using the
jack. The likelihood that portions of the user’s body will be
under the vehicle, however fleetingly, is one of the many reasons
why a manufacturer must design and fabricate a jack that will not
collapse spontaneously under the weight of the vehicle that it is
designed to support.
Affirmative evidence may have been necessary in Lockart to inform
the jury how an excavator is used because excavators are products
that are outside the experience and understanding of the average
juror. But jurors do not need an expert to tell them that
individuals who use automobile jacks allow parts of their bodies
to be under the vehicle, albeit ever so briefly. This is not
speculation; it is common sense grounded in virtually universal
experience. It is well within the bounds of propriety for us to
take judicial notice of the fact that a substantial number of
persons who use automobile jacks will place parts of their bodies
underneath cars held aloft by jacks. Cf. United States v. Ho, 94
F.3d 932, 937 (5th Cir. 1996) (taking judicial notice of the
“ubiquity of plastic ‘swipe’ cards in our modern society”);
id.
at 946 (Barksdale, J., dissenting) (taking judicial notice that
45
plastic swipe cards “are very, very seldom, if ever, blank on one
side”).
It is a flaw of logic to conclude that, just because Kampen may
have behaved unreasonably when he slid under the car, the
manufacturer should not have reasonably anticipated that someone
would do just that. Indeed, the Supreme Court of Louisiana has
recognized that it can be reasonably expected that ordinary
people will sometimes act without reasonable care. See Levi v.
Southwest La. Elec. Membership Co-op., 542 So. 2d 1081, 1086 (La.
1989) (explaining that a power company’s placement of electrical
lines “may demand precautions against ‘that occasional negligence
which is one of the ordinary incidents of human life and
therefore to be anticipated’”)(citing Murphy v. Great Northern
Ry. Co., 2 Ir. Rep. 301 (1897))(other citations omitted). No
doubt there will be overlaps between unreasonable uses of a
product and uses of a product that the manufacturer should not
reasonably anticipate. A use may be so unreasonable that, as a
matter of law, no manufacturer should be held to have reasonably
anticipated it. See, e.g., Hunter, 80 F.3d at 137 (per curiam
denial of rehearing); Lockart, 989 F.2d at 868. Kampen’s
actions, though, do not fall within that category. Even assuming
that he acted negligently in getting under the jacked-up car, a
jury could still find that his actions were or should have been
reasonably anticipated by the manufacturer of the jack. Had this
case not been dismissed at the summary judgment stage, I harbor
little doubt that a Louisiana jury would have seen to it that
46
Kampen not be unduly rewarded for any irresponsibility on his
part.
D.
Finally, I turn to the role that Isuzu’s warnings should play in
the reasonably anticipated use analysis. In support of its
conclusion that Kampen’s use was not reasonably anticipated, the
district court relied on two warnings given by Isuzu, one in the
owner’s manual and the other on the vehicle’s spare-tire
compartment, which cautioned jack users not to “get beneath the
vehicle.”
This court in Lockart extensively discussed an instruction in the
excavator operator’s manual, which counseled against using the
excavator to lift anything by the teeth of the excavator’s
bucket. In that case, two experienced workers suspended a steel
pontoon from the teeth of the excavator’s bucket with chains and
then got underneath the pontoon to work on it. 989 F.2d at 865.
The chains slipped and the pontoon fell, killing one of the men
and injuring the other.
Id. The Lockart plaintiffs tried to
turn the warning against the manufacturer, arguing that the
presence of the instruction indicated that the manufacturer
reasonably anticipated that workers would use the teeth of the
excavator’s bucket as a suspension device. We rejected that
argument, noting:
When a manufacturer expressly warns against using the product in
a certain way in clear and direct language accompanied by an easy
to understand pictogram, it is expected that an ordinary consumer
would not use the product in contravention of the express
warning.
47
Id. at 867.20 Ultimately, however, the decision in Lockart did
not turn on the warning, which the court acknowledged probably
never reached the workers. Instead, the court noted that “[e]ven
if the warning did not reach the users,” the dangers of dangling
a steel pontoon by a chain from the teeth of an excavator bucket
“should have been obvious to the ordinary consumer and certainly
to experienced workers.”
Id. at 868. And, as we indicated in
Hunter v. Knoll Rig Equipment Manufacturing Co., this court’s
decision in Lockart ultimately turned on the obviousness of the
danger inherent in stringing a steel pontoon from the teeth of an
excavator bucket.
70 F.3d 803, 806 & n.4 (5th Cir. 1995), reh’g
denied with per curiam opinion,
80 F.3d 136 (5th Cir. 1996). For
this reason alone, then, the panel majority’s decision in the
instant case was not in conflict with Lockart. Furthermore,
placing the emphasis on the obviously dangerous nature of
plaintiffs’ interactions with products is consistent with
Louisiana state court decisions that have found certain uses
outside the scope of reasonably anticipated use. See, e.g.,
Myers, 637 So. 2d at 779 (“[A]ny danger presented by standing on
a folding chair is an obvious danger to a reasonable person.”);
20
The court in Lockart refused to allow the plaintiff to “hoist
[the defendant] by its own petard.” 70 F.3d at 866. Clearly, any
given warning may not by itself demonstrate that a warned-against
use is reasonably anticipated. A manufacturer should not be held
responsible for a use not reasonably anticipated solely because
such a use is conceivable and because the manufacturer took the
added precaution of warning against the conceivable, but not
reasonably expected, use. At the same time, it cannot logically be
said that any warning takes the proscribed act out of the realm of
reasonably anticipated use.
48
Delphen, 657 So. 2d at 333-34 (“Danger imposed by the wheel would
have been obvious to a reasonable person.”).
Even more basically, the text and structure of the LPLA make
plain that the presence of an adequate warning is not dispositive
of the reasonably anticipated use inquiry. The Act provides that
a warning is merely one factor to be considered in conducting the
risk-utility balancing test to determine whether a product has an
unreasonably dangerous design. LA. REV. STAT. ANN. § 2800.56(2).21
There would be no need to include this provision in the Act if an
adequate warning would always dispose of the reasonably
anticipated use inquiry, which precedes the design defect
analysis. See Johnson v. Black & Decker, 701 So. 2d 1360, 1365
(La. App. 1997) (citing Hunter,
70 F.3d 803). Notwithstanding
the majority’s claim that it may rely on a warning to dismiss a
plaintiff’s use as not reasonably anticipated even without
explicit statutory authority to do so, it is not proper to
ascribe surplusage or redundancy to legislative drafting.
Moreover, adopting a per se rule that any warned-against use is
not reasonably anticipated would produce harsh and unintended
results, allowing a manufacturer to insulate itself from
liability for uses of a defective product that are unquestionably
reasonably anticipated. Suppose, for example, that Isuzu
equipped its cars with tires that consistently fail when the cars
21
Louisiana is not alone in this approach. The Supreme Court
of Texas recently held that an adequate warning is not per se
dispositive of a claim that a product is defective in design or
construction. See Uniroyal Goodrich Tire Co. v. Martinez, No. 95-
1159, 1998 WL 352929, at *1 (Tex. July 3, 1998).
49
are driven faster than 40 miles per hour and that Isuzu provided
a conspicuous and plain warning in each owner’s manual that its
cars should not be driven faster than 40 miles per hour. Would
it follow that driving an Isuzu car at a speed exceeding 40
m.p.h. is not a reasonably anticipated use? Obviously not. Yet
the majority provides incentive for the manufacturer to privilege
warnings over the safety of the product itself.
The majority has suggested that a warning is not per se
dispositive in the sense that the plaintiff can avoid summary
judgment by presenting evidence, above and beyond proof of the
facts of the accident, that the manufacturer should have
reasonably anticipated that the product would be used in
contravention of the warning. Presumably, such evidence would
take the form of expert testimony.22 I would hold, instead, that
under the LPLA, proof of the presence of a warning or
instruction, without more, does not provide a basis for summary
judgment in the manufacturer’s favor on the reasonably
anticipated use issue when the operative facts of the accident
would allow a reasonable jury, in the exercise of its members’
common sense and life experiences, to conclude that the use was
reasonably anticipated. For example, suppose that an automobile
manufacturer warns that its car should not be driven on wet
22
It is safe to assume that, under the majority’s holding,
expert testimony will be required as a general rule, given the
majority’s indication that the Kampens’ expert metallurgist “was
not qualified to testify as to the habits of users of automobile
jacks nor about their propensities for disregarding explicit
warnings.” Slip Op. at 26.
50
pavement. To avoid summary judgment when faced with evidence of
such a warning, should the plaintiff be required to present
affirmative evidence (likely in the form of expert testimony)
that a manufacturer should have reasonably anticipated that its
car would nevertheless be driven in the rain? The answer should
be no.23 Yet the majority will now require a plaintiff to parade
expert witnesses before the jury to state what in many cases will
be the obvious.24
23
Suppose that the plaintiff is injured while boiling potatoes
on a stove that explodes. The plaintiff proves that his use was
reasonably anticipated through testimony that he was boiling
potatoes on the stove. It is certain beyond peradventure that the
plaintiff was using the stove as reasonably anticipated. Assume,
however, that the manufacturer has warned that the user of its
stove should not peer into a boiling pot to check the progress of
the food being prepared and that the plaintiff was looking into the
boiling pot when the stove exploded. The manufacturer cannot, by
denying that the plaintiff’s damages arose out of a reasonably
anticipated use, place a burden on the plaintiff to come forward
with “affirmative evidence” that the manufacturer should have
expected that users, while using the stove to heat food, would peer
into boiling pots. This would be absurd. First, the stove’s
reasonably anticipated use is to heat the contents of pots and pans
placed on burners. The plaintiff discharges his burden by proving
that he was boiling potatoes. His damages arose out of this
reasonably anticipated use. That he was peering into the pot of
potatoes does not change this fact. To be sure, looking in the pot
may have affected the severity of the plaintiff’s injuries
resulting from the explosion. The defendant may be able to prove
that the plaintiff’s damages were more severe because his face was
scalded with hot water. If the defendant can show that, given the
warning, it was negligent to peer into the pot, then the defendant
will have to pay only that portion of the plaintiff’s injuries not
attributable to the plaintiff’s negligence. But that does not mean
that the plaintiff’s injuries did not arise out of a reasonably
anticipated use. The defendant should not be able to short-circuit
the plaintiff’s cause of action solely because he peered into the
boiling pot.
24
The majority maintains that had Isuzu warned its jack users
not to use the jack while changing a tire, such a warning would be
legally ineffective, as this use is “unquestionably [a] reasonable”
use. Slip Op. at 17 n.5. This may be the case, but there is every
51
In some cases, the plaintiff discharges his summary judgment
burden on the issue of reasonably anticipated use simply by
presenting evidence of the facts surrounding the accident. A
warning is simply one factor that the jury should take into
consideration when resolving the essentially factual question of
whether the plaintiff’s use of a product was reasonably
anticipated. Nothing in the LPLA elevates a warning to a special
status that makes it a talisman for resolving the reasonably
anticipated use issue. Moreover, I do not believe that Lockart
should be read to absolve the manufacturer of liability when a
plaintiff has disregarded a warning. To the extent that Lockart
would support a contrary reading, it should be overruled.
In this case, the presence of the warnings not to get under a car
that is held up only by a jack did not metaphysically transform
Kampen’s otherwise reasonably anticipated use of the jack — to
elevate the car and hold it aloft temporarily — into a use that
the manufacturer should not have reasonably anticipated. Had
Kampen heeded Isuzu’s warning, in all likelihood he would have
minimized his damages, but he would not have prevented the
collapse of the jack, nor would he necessarily have avoided all
the damages that arose from the product’s failure to keep the
indication in the majority opinion that the plaintiff who uses a
defective jack for such a purpose would still be required to offer
affirmative evidence that such a use was reasonably anticipated in
light of the contrary warning. If the majority would allow a tire-
changing plaintiff to reach a jury without such expert testimony,
it is by no means clear where it would draw the line between
“unquestionably reasonably anticipated” uses that are so obvious
that expert testimony is not required and those uses that are not.
52
vehicle aloft, as it was designed to do. Kampen discharged his
summary judgment burden by presenting evidence that he used the
jack to raise the car and to keep it raised, the very function
for which the manufacturer designed, built, and supplied the
jack. What Kampen did thereafter, without so much as touching
the jack or the car, is wholly irrelevant — wholly lacking in
nexus — to the reasonably anticipated use issue. Consequently,
summary judgment in favor of Isuzu on the basis of the
reasonably-anticipated-use element constitutes reversible error.
Accordingly, I dissent.
53
54
