96-621 La.App. 3 Cir. 2/5/97, Bernard v. Ferrellgas, Inc.

• Decision Date: 05 February 1997
• Citation: 689 So.2d 554
• Parties: 96-621 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 554

689 So.2d 554

96-621 La.App. 3 Cir. 2/5/97

Jennifer BERNARD, Plaintiff--Appellant, v. FERRELLGAS, INC., et al., Defendants--Appellees.

No. 96-621.

Court of Appeal of Louisiana Third Circuit.

Feb. 5, 1997.

Rehearing Denied April 8, 1997.

Kelly K.N. Sanford, Lafayette, for Jennifer Bernard.

L. Lane Roy, Thomas S. Stewart, Lafayette, Douglas R. Dalgleish, Peter F. Daniel, Kansas City, MO, for Ferrellgas, Inc., et al.

Katherine Marie Loos, Lafayette, for Employers Ins. of Wausau.

Before WOODARD, SULLIVAN and GREMILLION, JJ.

[96-621 La.App. 3 Cir. 1] WOODARD, Judge.

Plaintiff appeals trial court's granting of a directed verdict in favor of defendant in this products liability action. We reverse.

FACTS

On October 16, 1992, Russell Bernard, husband of plaintiff Jennifer Bernard (Bernard), died at the Swifty Food Store in Carenco, Louisiana. At the time of the accident, Russell was working at Swifty as a butcher and was responsible for operating the outdoor meat smoker. Two to three times a week, Russell Bernard would load the smoker with meat and light the gas burner under the wood. The smoker was custom-made, that is, it was not mass produced. While there was some discussion at trial as to whether the smoker was considered an indoor or outdoor one, the facts indicate that the smoker was located in a screened area outside the store. It was fueled by propane gas and required manual operation to start the flow of gas and light the burner. The propane delivery system for the smoker was built and installed [96-621 La.App. 3 Cir. 2] by the defendant, Ferrellgas. The system consisted of tubing and valves running from the propane tank, through a "T" fitting, to the burner. To light the burner, Russell Bernard had to open two valves, one running from the "T" connector which started the flow of gas (the first valve), and then one closer to the burner to allow the gas into the burner (the second valve). The second valve was close to ground level. Russell Bernard was instructed to open the first valve, but not to open the second valve, until he had lit some kind of a striker to ignite the gas. If both valves were open with no flame to ignite the gas, the propane, being heavier than air, would accumulate in the bottom of the smoker, thereby causing an explosion when ignited.

Apparently, when the smoker was lit, it exploded, causing Russell Bernard to suffer massive head injuries causing instant death. Jennifer Bernard filed suit against Ferrellgas, asserting that the propane delivery system was defective because it did not have a thermocouple or other "safety shut-off" device to reduce the probability of this type of accident. In response, Ferrellgas claimed that Russell Bernard's own negligence in opening both valves was the cause of the injury. A jury trial was held January 10-16, 1996. At the close of Bernard's case, Ferrellgas moved for a directed verdict, contending that Bernard had failed to prove a prima facie case. In particular, Ferrellgas asserted that Bernard failed to show a breach of any legal duty Ferrellgas may have owed to Russell Bernard, or prove that a breach was the legal cause, or cause-in-fact of Russell Bernard's death. The trial court granted the directed verdict. Bernard now appeals this decision.

ASSIGNMENTS OF ERROR

Bernard claims the following assignments of error:

(1) The trial court was clearly wrong in granting Ferrellgas' motion for directed verdict because it was not made at the appropriate time, but rather after Ferrellgas had put on a witness out of turn during Bernard's case in chief and before Ferrellgas rested its case in chief.

(2) The trial court was clearly wrong in granting Ferrellgas' motion for directed verdict because there was substantial evidence of such quality and weight that reasonable and fair minded jurors, in the exercise of impartial judgment, might reach different conclusions.

[96-621 La.App. 3 Cir. 3] 3) The trial judge made several erroneous evidentiary rulings which led to a clearly wrong ruling on the motion for directed verdict.

(4) The trial court erred in casting all court costs and expert witness fees against Bernard, in light of the procedural error made by Ferrellgas in moving for a directed verdict at an improper time.

LAW

TIMING OF MOTION FOR DIRECTED VERDICT

In her first assignment of error, Bernard asserts that the trial court was clearly wrong in granting Ferrellgas' motion for a directed verdict because it was not made at the appropriate time, but rather after Ferrellgas had put on a witness out of turn during Bernard's case in chief and before Ferrellgas rested its case in chief. In support of this assertion, Bernard cites Collett v. Branch, 516 So.2d 450 (La.App. 1 Cir.1987), writ denied, 520 So.2d 752 (La.1988) and Blanchard v. Our Lady of the Lake Medical Ctr., 529 So.2d 1309 (La.App. 1 Cir.), writ denied, 532 So.2d 772 (La.1988) for the proposition that:

A motion for a directed verdict may be made either at the close of the plaintiff's case or at the close of all of the evidence, but may not be made at points in between.

Collett, 516 So.2d at 452. In the present case, as in the above cited cases, Ferrellgas was allowed to call a witness, Mr. Cormier out of turn prior to resting its case-in-chief. We need not address the merits of this assertion, however, because this question is not properly before this court.

It is well-settled law that failure to make formal objections to a ruling of the trial judge results in a waiver of the plaintiff's right to urge those objections as error on appeal. Deville v. Fields, 546 So.2d 332 (La.App. 3 Cir.1989). A review of the record reveals that Bernard had two opportunities to object regarding Cormier's testifying out of turn. The first opportunity was when Ferrellgas moved to call Cormier out of turn. At that time, counsel for Bernard stated: "Yeah, that's okay with me, so we can--we don't have to bring him back." Thus, not only did Bernard fail to object, she affirmatively agreed with calling Cormier out of turn. The second opportunity came when the motion for a directed verdict was made at the close of [96-621 La.App. 3 Cir. 4] Bernard's case. Again, Bernard made no objection to the motion on the procedural ground that the motion was untimely. "In the absence of objection, the trial court is afforded no opportunity to prevent or correct the alleged error." Id. at 334 (citing Bertoli v. Flabiano, 116 So.2d 76 (La.App. 1 Cir.1959)). Because there was no objection made at the trial level, the error was not properly reserved, and therefore, this assignment has no merit.

GRANTING OF A DIRECTED VERDICT

In her second assignment of error, Bernard asserts that the trial court was clearly wrong in granting Ferrellgas' motion for a directed verdict because there was substantial evidence of such quality and weight that reasonable and fair minded jurors, in the exercise of impartial judgment, might reach different conclusions. While we find that Bernard's first assignment of error, the procedural argument of improper timing, is not properly before this court, we must nonetheless determine whether the trial court erred substantively in granting the directed verdict. In Cobb v. Kleinpeter, 95-271, p. 5 (La.App. 3 Cir. 10/04/95); 663 So.2d 236, 239, writ denied, 95-2683 (La.1/12/96); 666 So.2d 323, this court held that:

The standard of review for directed verdicts is whether, after viewing the evidence submitted, the appellate court can conclude that reasonable persons could not reach a contrary verdict.

(Citations omitted.) This standard mirrors the standard for granting a summary judgment. Reilly v. Dynamic Exploration, Inc., 571 So.2d 140 (La.1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Where a directed verdict is granted in a jury trial, it is appropriate "only when the evidence overwhelmingly points to one conclusion." Carter v. Western Kraft Paper Mill, 94-524, p. 4 (La.App. 3 Cir. 11/2/94); 649 So.2d 541, 544. This court, in Carter, approved of the federal standard and quoted Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969), in their determination of whether to grant a directed verdict:

[T]he court should consider all of the evidence--not just that evidence which supports the non-mover's case--but in the light and with all reasonable inferences most favorable to the party opposed to the motion.

[96-621 La.App. 3 Cir. 5] Carter, 649 So.2d at 544. After such a viewing of the evidence, the court must then evaluate the propriety of granting a directed verdict "in light of the substantive law underpinning the plaintiff's claims." Id. (citing Adams v.Travelers Ins. Co., 589 So.2d 605 (La.App. 2 Cir.1991)). Thus, in determining whether the trial court erred, this court must analyze the evidence presented through the looking glass of substantive law.

Bernard argues that she has proven a prima facie case under both a theory of negligence and a theory of products liability. Her claim is that Ferrellgas was negligent in not designing the gas supply system with a thermocouple or other safety shut off device. Put another way, she is claiming that Ferrellgas was negligent in manufacturing this product, the gas supply system. Thus, under the pleadings and arguments adduced at trial, Bernard's assertions are more properly analyzed under a theory of products liability, and not negligence.

PRODUCTS LIABILITY

The Louisiana Products Liability Act (LPLA) establishes the exclusive theories of recovery against manufacturers for damage caused by their products. La.R.S. 9:2800.54 reads in pertinent part:

A. The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of 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.

B. A product is unreasonably dangerous if and only if:...