95-2766 La.App. 4 Cir. 5/29/96, Osborne v. Vulcan Foundry, Inc.
| Decision Date | 29 May 1996 |
| Citation | 675 So.2d 837 |
| Parties | 95-2766 La.App. 4 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Robert J. Caluda, New Orleans, and S. Michael Cashio, Kenner, for Plaintiffs/Appellants.
Michael M. Noonan, Patrick J. O'Cain, McGlinchey Stafford & Lang, New Orleans, for Defendant/Appellee, Vulcan Foundry, Inc.
Before BYRNES, ARMSTRONG and WALTZER, JJ.
[95-2766 La.App. 4 Cir. 1] WALTZER, Judge.
[95-2766 LA.APP. 4 CIR. 2] STATEMENT OF THE CASE
Thomas Osborne, Jr. and Phyllis Osborne sued Vulcan Foundry, Inc. (Vulcan), and the Board of Commissioners, Port of New Orleans, also known as the New Orleans Dock Board (Dock Board) for damages arising out of injuries allegedly sustained by Mr. Osborne. Mr. Osborne claims that as he drove a front loader over a grate manufactured by Vulcan, installed on Dock Board property located at Berth # 6 on the New Orleans riverfront, the grate broke beneath the weight of the loader and Mr. Osborne was thrown around, suffering a back injury. The Osbornes claim that the Dock Board was negligent in its choice of a "traffic grade" rather than "airport grade" grate, and in its installation and maintenance of the grate; they claim that Vulcan manufactured a defective grating and failed to warn the purchaser of the limitations on the weight the grate could sustain.
On 22 June 1995 the trial court granted Vulcan's motion for Summary Judgment dismissing the Osbornes' petition against that defendant. From that judgment, the Osbornes appeal. We reverse and remand for trial on the merits.
In support of its Motion for Summary Judgment, Vulcan relies on the following allegedly uncontested material facts:
1. This suit arises out of an accident that happened in October of 1986, when a loader operated by Mr. Osborne broke a metal grate on property owned by the Dock Board and leased by Mr. Osborne's employer.
2. The pieces of the grate that broke were lost after the accident and remain lost.
[95-2766 La.App. 4 Cir. 3] 3. There is no evidence that a manufacturing or design defect caused the grate to fail. 1
4. The grate was a medium or traffic duty grate.
5. Such a grate is insufficient to withstand the loads that would be imposed on it by machinery like that involved in this accident.
6. The purchaser of the grate or designer of the facility was in the best position to know what kind of activity would be conducted there.
7. The purchaser and designer were sophisticated entities who knew or should have known the load capacities of a traffic duty grate.
8. No evidence suggests that the purchaser or designer asked Vulcan the load capacity of a traffic duty grate.
9. Vulcan could not have known the grate would be put to uses for which it was never intended.
The mover and opponent submitted deposition testimony in support of their respective positions. Andrew McPhate, an expert familiar with the Louisiana foundry industry, testified that a grate manufacturer has an independent duty to consult with its purchasers regarding the ultimate use of its grating material, in the sense that the manufacturer must guarantee a certain load carrying capacity and communicate that information. He also testified that sellers in the foundry business customarily consult with purchasers concerning the use to which the products will be put. He testified that the designer of the installation chooses the components to meet the design goals of the facility, that the designers were [95-2766 La.App. 4 Cir. 4] supposed to be sophisticated people, and that the designer should determine the load bearing capacity of a grate used in its installation. McPhate testified further that the grating that failed definitely should not have been used in the area where the accident took place, and that a front loader, whether loaded or empty, would be too heavy a load for a traffic grade grate.
James Patton, Vulcan's foundry manager, testified that neither the Vulcan catalog, which was supplied to purchasers, nor the Material Safety Data Sheet, which may have been supplied to the purchaser, contain load ratings for any of Vulcan's three types of gratings. He testified that Vulcan uses three terms for its three grades of grates: "standard", "traffic" and "airport." The difference between an airport grating and a traffic grating lies in the type of iron from which the grate is made, the physical size and dimensions of the piece. From photographs of the area, he identified the grating in question as traffic grating. He testified that Vulcan normally sends catalogs to prospective purchasers, containing a discussion of the three types of grating, but without specific load capacities by product.
Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180, 1182; Schroeder v. Board of Sup'rs of Louisiana State University, 591 So.2d 342, 345 (La.1991). A summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966(B).
[95-2766 La.App. 4 Cir. 5] A fact is material if it is essential to a plaintiff's cause of action under the applicable theory of recovery and without which plaintiff could not prevail. Generally, material facts are those that potentially insure or preclude recovery, affect the litigant's ultimate success, or determine the outcome of a legal dispute. Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4th Cir.1992), writ not considered 613 So.2d 986 (La.1993). Despite the presence of disputed facts, summary judgment will be granted as a matter of law if the contested facts present no legal issues. Davenport v. Amax Nickel, Inc., 569 So.2d 23, 27 (La.App. 4 Cir.1990), writ denied 572 So.2d 68 (La.1991).
In Dibos v. Bill Watson Ford, Inc., 622 So.2d 677, 680 (La.App. 4 Cir.1993), this Court held:
To satisfy his burden, the party moving for the summary judgment must meet a strict standard by showing that it is quite clear as to what the truth is, and that excludes any real doubt as to the existence of material fact. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981).
All evidence and inferences drawn from the evidence must be construed in the light most favorable to the party opposing the motion. Carr v. City of New Orleans, 622 So.2d 819, 822 (La.App. 4 Cir.1993), writ denied 629 So.2d 404 (La.1993). The papers supporting the position for the party moving for the summary judgment are to be closely scrutinized while the opposing papers are to be indulgently treated, in determining whether mover has satisfied his burden. Vermilion, supra. Where the trial court is presented with a choice of reasonable inferences to be drawn from subsidiary facts contained in affidavits and attached exhibits, reasonable inferences must be viewed in the light most favorable to the party opposing the motion. Duvalle v. Lake Kenilworth, Inc. 396 So.2d 1268 (La.1981).
[95-2766 La.App. 4 Cir. 6] FIRST ASSIGNMENT OF ERROR: The trial court erred in granting summary judgment without allowing a jury to determine if the Port of New Orleans is a "sophisticated user."
The Louisiana Supreme Court held in Hines v. Remington Arms Company, Inc., 94-0455 (La. 12/8/94), 648 So.2d 331, 337, that a manufacturer has a duty to provide an adequate warning of dangers inherent in the normal use of its product not within the knowledge of or obvious to the ordinary user. This duty does not encompass dangers that are or should be obvious to the ordinary user, particularly when the user is familiar with the product, making him a "sophisticated user." In that case, arising out of a gunpowder explosion, the court found there was no need to warn plaintiff, who was already familiar with guns and ammunition, of the inherent danger of gunpowder or of safer methods of storage. The court said, The court upheld the trial court's discretion in refusing to allow plaintiff to present to the jury evidence of failure to warn, finding there was no duty to warn this plaintiff.
Vulcan claims that the Osbornes cannot succeed on a failure to warn claim because the Dock Board is a "sophisticated user", who is not entitled to a warning concerning the load-bearing limits of Vulcan's grates.
A motion for summary judgment is not appropriate for disposition of cases requiring a judicial determination of subjective facts, e.g., motive, intent, good faith, and knowledge. Jefferson Parish School Bd. v. Rowley Co., Inc., 305 So.2d 658, 663 (La.App. 4 Cir.1974); Butler v. Travelers Ins. Co., 233 So.2d 271 (La.App. 1 Cir.1970). The "sophisticated user" issue is, by its nature, one of [95-2766 La.App. 4 Cir. 7] actual or expected knowledge on the part of the purchaser/user. This Court allowed resolution of the issue on summary judgment in Ferruzzi, U.S.A., Inc. v. R.J. Tricon Co., Inc., 93-1591 (La.App. 4 Cir. 9/29/94), 645 So.2d 685, 688. There, plaintiff claimed that instructions provided by the manufacturer to the purchaser, an elevator designer/manufacturer, were insufficient. This Court held:
These instructions contain information on the recommended wrench torque, as well as a warning that the bushings and capscrews should be rechecked for proper torquing at least once per week for the first month and periodically thereafter. We find, as did the trial judge, that the instructions/warnings...
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