Brown v. Sears, Roebuck and Co.

• Citation: 516 So.2d 1154
• Decision Date: 07 January 1988
• Docket Number: Nos. 87-C-0726,87-C-0732,s. 87-C-0726
• Parties: Michael BROWN, Individually and as Natural Tutor of the Minor Child, Marcus Brown v. SEARS, ROEBUCK AND COMPANY and Westinghouse Electric Corporation. 516 So.2d 1154, Prod.Liab.Rep.(CCH)P. 11,686
• Court: Supreme Court of Louisiana

Page 1154

516 So.2d 1154

Michael BROWN, Individually and as Natural Tutor of the Minor Child, Marcus Brown v. SEARS, ROEBUCK AND COMPANY and Westinghouse Electric

Corporation.

Nos. 87-C-0726, 87-C-0732.

516 So.2d 1154, Prod.Liab.Rep.(CCH)P. 11,686

Supreme Court of Louisiana.

Jan. 7, 1988.

PER CURIAM.

Rehearing denied. In an abundance of caution, we elaborate upon the majority opinion, 514 So.2d 439 (La.1987). It is not our intention to hold that all escalators are unreasonably dangerous to small children. We merely found that the escalator in this case was unreasonably dangerous because of a failure to provide an adequate warning of a danger inherent in the use of the escalator which was not within the knowledge of or obvious to the ordinary user. This is an independent finding by this court and not an affirmance of the trial court's directed verdict which was flawed by an error of law.

COLE, J., concurs in denial, with reasons.

MARCUS, J., would grant a rehearing.

LEMMON, J., dissents from the denial of rehearing and assigns reasons.

ON APPLICATION FOR REHEARING

COLE, Justice, concurring in denial of rehearing.

While I adhere to the conclusion reached in this case, I deem it important to more fully address the concerns raised in the applications for rehearing.

The applicants fear our opinion will be interpreted by lower courts as holding escalators are unreasonably dangerous per se to small children. They assert this will lead to directed verdicts on the issue of liability whenever the plaintiff shows a small child was injured while riding on an escalator. Applicants are also concerned no warning will satisfy a majority of this court, other than one absolutely prohibiting small children from riding escalators, even when accompanied by an adult.

This court unanimously held that escalators are not unreasonably dangerous "per se." It was not our intention to hold that escalators are unreasonably dangerous per se to small children. It is clear a majority of this court rejected such a proposition. Perhaps the confusion created by our opinion can be traced to the failure of a majority of this court to identify precisely the legal theory upon which liability was based. I would clarify our opinion by making this basis clear. Under the facts of this case, the escalator was unreasonably dangerous because of the failure of the manufacturer and the custodian to provide adequate warnings of the danger encountered by Marcus Brown.

A manufacturer is required to provide an adequate warning of any danger inherent in the normal use of a product that is outside the knowledge, or is not obvious to, the ordinary user. Bloxom v. Bloxom, 512 So.2d 839, 843 (La.1987); Halphen v. Johns-Manville Sales Corp., 484 So.2d 110, 115 (La.1986). A determination of whether a particular warning is adequate is a question of fact, to be made by balancing a number of factors, such as the likelihood the warning will convey the nature of the danger to the users, the intensity and form of the warning, and the cost of improving the strength or mode of the warning. Bloxom, supra at 844.

In our original opinion, we summarized the warnings provided by the defendants. The evidence revealed Mrs. Brown followed these warnings. She held onto the handrail with one hand, and with the other she held the...