95 2047 La.App. 1 Cir. 9/10/96, Dunne v. Wal-Mart Stores, Inc.

• Decision Date: 10 September 1996
• Citation: 679 So.2d 1034
• Parties: 95 2047 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1034

679 So.2d 1034

95 2047 La.App. 1 Cir. 9/10/96

Judy DUNNE v. WAL-MART STORES, INCORPORATED and Diversified Products Corporation.

No. CA 95 2047.

Court of Appeal of Louisiana First Circuit.

Sept. 10, 1996.

R. Ray Orrill, Jr., New Orleans, for Plaintiff/Appellant, Judy Dunne.

Nelson W. Wagar, III, Metairie, for Defendants/Appellees, Wal-Mart Stores, Inc., and Diversified Products Corp.

Before CARTER, LeBLANC, WHIPPLE, FOGG and KUHN, JJ.

[95 2047 La.App. 1 Cir. 2] WHIPPLE, Judge.

Plaintiff, Judy Dunne, appeals the judgment of the trial court in favor of defendants, Wal-Mart Stores, Incorporated (Wal-Mart) and Diversified Products Corporation (DP), dismissing her claim for damages. For the following reasons, we reverse and render.

FACTS AND PROCEDURAL HISTORY

On February 2, 1991, plaintiff's children purchased an Aero Cycle exercise bike for their mother to use in a weight loss program. The Aero Cycle bike was manufactured by DP and purchased from Wal-Mart, located in Slidell, Louisiana. When plaintiff received the bike, she rode it only for a moment. On August 16, 1991, plaintiff used the bike for the second time. She mounted the bike and pedaled for three or four rotations. The rear leg tubing and/or the connection between the rear leg tubing and the support strut failed and the bike collapsed under plaintiff. At the time of the accident, plaintiff weighed between 450 and 500 pounds. She fell off the bike backwards, struck her head on a nearby metal file cabinet and was knocked unconscious. When plaintiff regained consciousness, her mouth was bleeding and her neck, left shoulder, arm, leg, knee and ankle were injured.

Plaintiff was treated by a physician on the day of the accident. She was diagnosed as having a cervical strain and multiple contusions. She was given a prescription for a muscle relaxer and an analgesic. On August 22, 1991, she was also seen by her regular family physician with complaints of pain, dizziness, numbness and sensitivity to light. Although additional medical evaluation and therapy were suggested, plaintiff failed to seek additional medical care because she was unable to afford it until April 17, [95 2047 La.App. 1 Cir. 3] 1992. On that date, plaintiff was referred to Dr. Debra Burris, a neurologist, for further evaluation. Plaintiff was evaluated by Dr. Burris on May 21, 1992. She complained of neck pain and headaches. Dr. Burris prescribed physical therapy, a muscle relaxant and an anti-inflammatory and advised plaintiff to return for re-evaluation in six weeks. Plaintiff did not return.

Plaintiff filed suit against Wal-Mart and DP. At the time of the trial, plaintiff still had complaints of neck pain and tingling, numbness and spasms in her left arm and hand, with slight swelling and muscle spasms in her right hand. Following trial on the merits, the trial court found that plaintiff failed to carry her burden of proving that the product was unreasonably dangerous as the use of the bike by someone weighing 500 pounds was not a reasonably anticipated use of the product. From this judgment, plaintiff appeals, urging the following as error:

1. The trial court's failure to find the Aero Cycle unreasonably dangerous because an adequate warning was not provided as required under LSA-R.S. 9:2800.54B(3) and LSA-R.S. 9:2800.57 was manifestly erroneous.

2. The trial court erred in failing to award the plaintiff damages for her injuries.

LIABILITY

On appeal, plaintiff contends that the trial court was manifestly erroneous in its finding that use of the Aero Cycle by an obese person like plaintiff was not a reasonably anticipated use of the product. We agree.

The Louisiana Products Liability Act (LPLA) establishes the exclusive theories of liability for manufacturers for damages caused by their products. LSA-R.S. 9:2800.54(A) sets forth the threshold elements which must be proven by a claimant, providing as follows:

A. The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of [95 2047 La.App. 1 Cir. 4] the 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.

A "reasonably anticipated use" means 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. LSA-R.S. 9:2800.53(7). This definition is narrower in scope than its pre-LPLA counterpart, "normal use," which included "all reasonable foreseeable uses and misuses of the product." Myers v. American Seating Company, 93-1350, p. 7 (La.App. 1st Cir. 5/20/94); 637 So.2d 771, 775, writs denied, 94-1569, 94-1633 (La. 10/7/94); 644 So.2d 631, 632. Under the current definition contained in the LPLA, a manufacturer is not responsible for accounting for every conceivable foreseeable use of a product. See Myers, 93-1350 at 8; 637 So.2d at 775.

The trial court, relying primarily on John Kennedy's law review article, A Primer on the Louisiana Products Liability Act, 49 La.L.Rev. 565 (1989), concluded that "the use of this exercise bike by a woman of 500 pounds was not reasonably anticipated by [DP]." The trial court also cited the testimony of Mr. David Newton, the Consumer Affairs Manager for DP. Newton testified that DP manufactured the Aero Cycle to withstand use by adults weighing up to 250 pounds, as this encompasses greater than 98.5 percent of the United States adult population. Further, Newton stated that DP adheres to the American Society for Testing and Materials (ASTM) standards and that all DP products are tested and required to meet ASTM standards. He opined that because a prototype of the Aero Cycle was tested to a load of 440 pounds for five minutes with any resulting deflection within [95 2047 La.App. 1 Cir. 5] the 0.5 inch tolerance, a maximum load capacity warning was not required by the ASTM standards.

Initially, we note that DP is not automatically absolved of liability because it complied with the ASTM standards in not placing a maximum load capacity warning on the Aero Cycle. The ASTM standards, while relevant factors to be considered, are not determinative of the issue of liability. See Dill v. State Department of Transportation and Development, 545 So.2d 994, 996 (La.1989).

More importantly, our review of the trial court's reasons for judgment convinces us that the trial court committed legal error in applying the provisions of LSA-R.S. 9:2800.53(7). Instead of considering whether plaintiff was engaged in a "reasonably anticipated use," the trial court considered whether plaintiff was a "reasonably anticipated user." In rejecting plaintiff's claim, the trial court quoted Kennedy's observation in the law review article that a manufacturer should not reasonably expect that an ordinary consumer will use a soft drink bottle for a hammer, attempt to drive an automobile across water or pour perfume on a candle to scent it. However, unlike these illustrations, there was no misuse of the product by plaintiff in this case. In fact, the record demonstrates that plaintiff used the product in a manner wholly consistent with its intended use. The Aero Cycle exercise bike was designed and marketed by DP primarily for use by overweight individuals. Plaintiff, an overweight person, was the type of consumer targeted by DP. The mere fact that plaintiff was considerably overweight does not place her in a category of persons for whom DP has no responsibility.

[95 2047 La.App. 1 Cir. 6] Accordingly, we find that the trial court's conclusion that the use of the Aero Cycle by plaintiff was not a reasonably anticipated use of the product was based on reversible legal error. The record shows that plaintiff's damages resulted from a reasonably anticipated use of the product.

Having so concluded, we must now conduct a de novo review of the record and make our own determination of plaintiff's claims. See Dawson v. City of Bogalusa, 95-0824, p. 4 (La.App. 1st Cir. 12/15/95); 669 So.2d 451, 453.

In the instant case, plaintiff based her claim on the theory of liability contained in LSA-R.S. 9:2800.54(B)(3): that the Aero Cycle was unreasonably dangerous because an adequate warning was not provided. ¹ Pursuant to LSA-R.S. 9:2800.57, liability may be imposed on a manufacturer because a product is unreasonably dangerous due to the lack of an adequate warning. LSA-R.S. 9:2800.57 provides, in pertinent part, as follows:

A. A product is unreasonably dangerous because an adequate warning about the product has not been provided if, at the time the product left its manufacturer's control, the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.

B. A manufacturer is not required to provide an adequate warning about his product when:

(1) The product is not dangerous to an extent beyond that which would be contemplated by the ordinary user or handler of the product, with the ordinary knowledge common to the community as to the product's characteristics; or

[95 2047 La.App. 1 Cir. 7] (2) The user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that may cause damage and the danger of such characteristic.

It is undisputed that there was no maximum weight limit warning accompanying the Aero Cycle. The issue for our consideration at this point is whether, under LSA-R.S. 9:2800.57(A), DP was required to warn. As Kennedy correctly notes in A Primer on the Louisiana Products Liability Act, 49 La.L.Rev. 565, 616 (1989), section 2800.57(A) does not change Louisiana law, and as required by prior law, a manufacturer must use reasonable care in deciding whether to warn. In this case, according to David Newton, the Aero Cycle was not designed for use by...