Beck v. Somerset Technologies, Inc.

• Decision Date: 11 September 1989
• Docket Number: No. 88-3775,88-3775
• Citation: 882 F.2d 993
• Parties: Prod.Liab.Rep.(CCH)P 12,261 Alvin Edward BECK, Individually and As Representative of the Estate of His Minor Children, Calvin Beck, Chiquita Beck, Seprina Beck, Tamara Beck, Alvin D. Beck and Bobbie J. Beck, Plaintiffs-Appellants, v. SOMERSET TECHNOLOGIES, INC., Midland-Ross Corp., Midro, Ltd., California Union Insurance Co., Peter Waterhouse, Peter Waterhouse Associates, Inc., and the Prudential Assurance Co., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 993

882 F.2d 993

Prod.Liab.Rep.(CCH)P 12,261

Alvin Edward BECK, Individually and As Representative of the

Estate of His Minor Children, Calvin Beck, Chiquita Beck,

Seprina Beck, Tamara Beck, Alvin D. Beck and Bobbie J. Beck, Plaintiffs-Appellants, v. SOMERSET TECHNOLOGIES, INC., Midland-Ross Corp., Midro,

Ltd., California Union Insurance Co., Peter Waterhouse,

Peter Waterhouse Associates, Inc., and the Prudential

Assurance Co., Defendants-Appellees.

No. 88-3775.

United States Court of Appeals, Fifth Circuit.

Sept. 11, 1989.

John W. DeGravelles, Michael J. Paduda, DeGravelles & Palmintier, Baton Rouge, La., for plaintiffs-appellants.

William A. Porteous, III, Porteus, Hainkel, Johnson & Sarpy, New Orleans, La., for Waterhouse.

William V. Dalferes, Jr., Sharon L. Gross, McGlinchey, Stafford, Mintz, Cellini & Land, New Orleans, La., for Prudential Assur. Co.

James L. Selman, II, Jones, Walker, Waechter, Poitevent, Carrer & Denegre, New Orleans, La., for Midland-Ross Corp.

Appeal from the United States District Court For the Eastern District of Louisiana.

Before GOLDBERG, JOHNSON and DUHE, Circuit Judges.

DUHE, Circuit Judge.

Alvin E. Beck appeals from the district court's grant of summary judgment against him. We affirm.

BACKGROUND

This is a products liability action. In 1984 Beck, an employee of Crown Zellerbach Corp. (Crown), was injured while operating a paper rewinder at Crown's paper mill. His hand and arm were pulled into the unguarded nip point of the machine and Beck sued Somerset Technologies, Inc. and Midland-Ross Corp., the corporate successors of the manufacturer of the rewinder, and their insurers; (collectively, "Somerset"); Peter Waterhouse and Peter Waterhouse Associates, Inc., (collectively "Waterhouse"), consultants to Crown, and their insurer, The Prudential Assurance Co. The trial court granted summary judgment in favor of defendants.

crushed between two rotating steel cylinders.

ANALYSIS

In reviewing a summary judgment, we apply the same standard that governs the district court's determination. Russell v. Harrison, 736 F.2d 283, 287 (5th Cir.1984).

FRCP Rule 56(c) provides that a summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is "material" if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Because subject matter jurisdiction in this case is founded on diversity, the case is controlled by Louisiana law.

(1) The Somerset Motion

To recover from a manufacturer in Louisiana, the plaintiff must prove that the harm resulted from a condition of the product, that the condition made the product unreasonably dangerous to normal use, and that the condition existed at the time the product left the manufacturer's control. Bell v. Jet Wheel Blast, 462 So.2d 166 (La.1985).

The trial court found that Somerset manufactured the rewinder and sold it to Crown in 1925 without a nip guard and that this omission rendered the rewinder hazardous, dangerous to work with, and "arguably defective and/or deficient". The trial court further found, however, that Crown received advice regarding the necessity of nip guards from Somerset, Waterhouse, and the Occupational Safety and Health Administration, and that Crown had, at some time before Beck's accident, used a nip guard on this rewinder but removed it. The trial court held that Crown's willful and consistent neglect to install and use nip guards on its rewinding machines constituted a superceding act which relieved Somerset of any possible liability. The trial court also held that Somerset was not strictly liable on a failure to warn theory because Crown was fully aware of the danger posed by the absence of a nip guard for years before Beck's accident in 1984.

Beck contends the trial court erred in granting summary judgment in favor of Somerset because genuine issues of material fact exist. First, Beck argues that Somerset did not prove that Crown received the warnings it sent. Proof that a letter properly directed was placed in a U.S. post office mail receptacle creates a presumption that it reached its destination in the usual time and was actually received by the person to whom it was addressed. Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861 (1932). Thus, the question becomes whether or not Somerset mailed the letter to Crown. If such evidence is presented and not rebutted, then it may be presumed that Crown received the warning. The record contains a copy of the properly addressed letter, a certified mail receipt and signed return post cards. Accordingly, we hold that there was sufficient evidence to create a presumption that the letter was received by Crown in the due course of the mail. Thus, the burden of producing evidence of non-delivery shifted to Beck. The only evidence of non-delivery presented by Beck is a Crown employee's testimony that he did not remember receiving a warning letter from Somerset and that he did not recall that the person who signed the return receipt worked for Crown. This testimony is not sufficient to rebut the presumption that the letter was received.

Beck also disputes that Crown received verbal warnings from Somerset not to operate the rewinder involved in Beck's accident without a nip guard. Whether or not Somerset verbally warned Crown not to operate this rewinder without a nip guard is not a material factual issue. Crown received a written warning from Somerset, therefore, any failure by Somerset to verbally warn Crown of the danger associated with this rewinder would not affect the outcome of the suit.

Next Beck contends the Somerset warnings were inadequate because they were directed to Crown rather than Beck and because they were too few in number.

The adequacy and quantity of Somerset's warnings is not material to the resolution of this case. A manufacturer is not required to provide warnings of dangers which are obvious to the ordinary user. Bloxom v. Bloxom, 512 So.2d 839 (La.1987); Gines v. State Farm Fire & Cas. Co., 516 So.2d 1231 (La.App. 2nd Cir.1987), writ denied 519 So.2d 127 (La.1988). The evidence establishes that the danger involved in operating the rewinder without a nip guard was obvious to Crown ¹ and should have been obvious to Beck. Beck had been employed by Crown for 16 years at the time of his accident. He had worked with this rewinder for approximately two and one half years before the accident. He also had experience on a similar machine. The record contains pictures of the rewinder. Our review of these pictures and the description of the operation of the rewinder makes clear that it would be apparent to any operator of the rewinder that using it without guards places one at risk of coming into accidental contact with...