Bruno v. BRD US, Inc.

• Decision Date: 17 March 2021
• Docket Number: 20-233
• Citation: 315 So.3d 969
• Parties: Victor BRUNO v. BRD US, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

315 So.3d 969

Victor BRUNO

v.BRD US, INC., et al.

20-233

Court of Appeal of Louisiana, Third Circuit.

March 17, 2021

Rehearing Denied May 26, 2021

Patrick Daniel, Rachel Deckelmann, Daniel & Associates, LLC, 7941 Katy Freeway Suite 791, Houston, TX 77024, (713) 999-6666, COUNSEL FOR PLAINTIFF/APPELLANT: Victor Bruno

Douglas Kent Williams, Chris D. Billings, Jordan L. Faircloth, Breazeale, Sasche & Wilson, P. O. Box 3197, Baton Rouge, LA 70821-3197, (225) 381-8032, COUNSEL FOR DEFENDANT/APPELLEE: Courtesy Automotive Group, Inc., Courtesy Lincoln Sales Lafayette, LLC

Michael J. Remondet, Jr., Jeansonne & Remondet, P.O Box 91530, Lafayette, LA 70509, (337) 237-4370, COUNSEL FOR OTHER DEFENDANT: LMS Sports, LLC, Dean Richard Enterprises, Inc.

Scott F. Higgins, LaBorde Earles, P. O. Box 80098, Lafayette, LA 70598-0098, (337) 261-2617, COUNSEL FOR OTHER DEFENDANT: LMS Sports, LLC, Dean Richard Enterprises, Inc.

Linda A. Hewlett, Duplass, Zwain, Bourgeois, 3838 N. Causeway Blvd, #2900, Metairie, LA 70002, (504) 832-3700, COUNSEL FOR OTHER DEFENDANT: Bombardier Recreational Products, Inc.

Court composed of Shannon J. Gremillion (S), Van H. Kyzar, and Candyce G. Perret, Judges.

KYZAR, Judge.

Plaintiff, Victor Bruno, appeals the granting of summary judgment in favor of Defendants, Courtesy Automotive Group, Inc. and Courtesy Lincoln Sales Lafayette, LLC dismissing Plaintiff's suit seeking damages for injuries allegedly incurred as the result of the purchase of a defective off-road vehicle from Defendants. Plaintiff also appeals the granting of a motion to strike portions of his affidavit in opposition to Defendants’ motion for summary judgment. For the reasons assigned, we reverse the granting of Defendants’ motion for summary judgment, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On or about January 8, 2014, Plaintiff purchased a Can Am Commander XT 1000 side-by-side off-road vehicle in a transaction conducted through Courtesy Automotive Group, Inc. and Courtesy Lincoln Sales Lafayette, LLC (Courtesy). The uncontested facts establish that the used vehicle was sold by Eric Simon¹ to Courtesy on January 8, 2014, then immediately sold by Courtesy to Plaintiff, Mr. Bruno, the same day. Mr. Simon was an employee of Courtesy and the brother-in-law of the general manager of the dealership, Don Hargroder, Jr. Plaintiff, Victor Bruno, was a friend and/or acquaintance of Mr. Hargroder. Mr. Simon had originally purchased the vehicle from Dean Richard Enterprises, Inc. a/k/a Lafayette Power Sports, a dealer of Can Am vehicles.

According to the allegations of Plaintiff's suit, on or about January 12, 2014, Plaintiff took his vehicle off-roading for the first time. He was wearing his seatbelt and had engaged safety mechanisms when the vehicle rolled over, his seatbelt failed to secure him, and the latches holding the seat in the vehicle failed. Plaintiff and the seat he sat in were both thrown from the vehicle. Plaintiff was crushed under the roll bar, sustaining injuries.

Plaintiff claimed initially that the accident occurred and was caused through the proximate negligence and/or fault of the manufacturer of the vehicle, BRP US, Inc., Dean Richard Enterprises, Inc. a/k/a Lafayette Power Sports, as the initial seller, and Courtesy, as the retailer that sold the vehicle to Plaintiff. He claimed that the defendants were liable as the vehicle was unreasonably dangerous in construction or composition, unreasonably dangerous in design, unreasonably dangerous because of inadequate warnings, and unreasonably dangerous because of nonconformity to express warranty. He further alleged the defendants were liable for unfairly and deceptively selling this product to consumers. The original petition further asserted that the accident was caused through the proximate negligence and/or fault of the manufacturer and retailer, in failing to properly service the seat and seatbelt, in failing to advise Plaintiff of proper maintenance of the vehicle, in failing to advise Plaintiff of loose seat latches, and in failing to ensure the seat latches and the seat belts were functioning properly.

Ultimately, Plaintiff dismissed the manufacturer from the lawsuit after it was discovered that the vehicle had been modified after it left the factory. Thereafter, Courtesy moved for summary judgment on June 11, 2019. In support thereof, Courtesy filed as exhibits the petition of Plaintiff and the deposition of Don Hargroder, Jr., also dated June 11, 2019. In its motion, Courtesy argued that Mr. Bruno cannot support a cause of action against it and, therefore, requested that the trial court grant summary judgment in Courtesy's favor dismissing Plaintiff's claims. In addition to the motion for summary judgment, Courtesy challenged the reply affidavit of Mr. Bruno, submitted in opposition to the motion for summary judgment, asserting that portions thereof were conclusory and not based on personal knowledge.

At the conclusion of the hearing, the trial court granted Courtesy's motion to compel statements regarding supposed steroid use of Mr. Bruno, granted Courtesy's motion to strike from consideration portions of Plaintiff's affidavit, specifically paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 24, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 40, 42, 43, 46, 47, 51, 52, 55, 58 59, 60, 64, 68, 71, 72, 73, 75, and 76 of the affidavit, and granted Courtesy's Motion for Summary Judgment, dismissing Plaintiff's claims in this matter against Courtesy with prejudice, at Plaintiff's cost. Plaintiff appeals, asserting the following assignments of error:

1. The Trial Court erred by weighing the evidence and/or making credibility determinations resulting in it striking from Appellant's affidavit numerous statements that Appellant made from his personal knowledge.

2. The Trial Court erred by concluding that no genuine issues of material fact exist regarding whether Appellee owes a legal duty to Appellant.

3. The Trial Court erred by declaring that expert testimony is required to establish the existence of a defect, and by failing to find that due to the actions and inactions of Appellee, the Commander Vehicle was defective at and prior to the time Appellee sold the vehicle to Appellant.

4. The Trial Court erred by not finding that genuine issues of material fact exist regarding whether and to what extent Appellant knew, prior to purchasing the vehicle from Appellee, about the potential for vehicle roll-over.

5. The Trial Court erred by refusing to consider Appellant's testimony regarding cause-in-fact of the subject accident.

6. The Trial Court erred by concluding that Appellant has not pled a Louisiana Uniform Trade Practices and Consumer Protection Act (LUTPA) claim.

DISCUSSION

The Summary Judgment

After granting Defendant's motion to strike portions of Plaintiff's affidavit in opposition, the trial court granted Courtesy's motion for summary judgment. We first address Plaintiff's claim that the trial court erred in granting summary judgment dismissing his claims against Courtesy, as a reversal of that judgment notwithstanding the ruling on the motion to strike renders that issue moot.

A summary judgment is a procedural device properly used when there is no genuine issue of material fact. Murphy v. Savannah , 18-991 (La. 5/8/19), 282 So.3d 1034; La.Code Civ.P. art. 966. Appellate courts review summary judgments de novo using the same criteria that governs the trial court's determination of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. La. Power & Light , 06-1181 (La. 3/9/07), 951 So.2d 1058 ; La.Code Civ.P. art. 966(A)(3).

A material fact is one that "potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute." Hines v. Garrett , 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per curiam). "A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate." Smitko v. Gulf S. Shrimp, Inc. , 11-2566, p. 8 (La. 7/2/12), 94 So.3d 750, 755.

Although the mover bears the burden of proof for the motion, if that party will not bear the burden of proof at trial, then it need only point out to the trial court "the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." La.Code Civ.P. art. 966(D)(1). Once this occurs, the burden shifts to "the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.

Plaintiff's second assignment of error argues that the trial court erred by concluding that no genuine issues of material fact exist regarding whether Courtesy, as the seller of the ATV, owes a legal duty to him. Alleged error number three relates to whether there is a material issue of fact as to the existence of a defect in the vehicle and whether expert testimony was necessary to establish such. Similarly, in his fourth assignment of error, he argues that the trial court erred by not finding that genuine issues of material fact exist regarding whether and to what extent Plaintiff knew, prior to purchasing the vehicle from Courtesy, about the potential for vehicle roll-over. As these issues are interrelated to the granting of summary judgment, we address them together.

To find tort liability for a non-manufacturer seller of a product such as a vehicle requires proof of three elements. Alexander v. Toyota Motor Sales, U.S.A. , 13-756 (La. 9/27/13), 123 So.3d 712. First, the product sold must be defective. Second, the seller must have had actual or constructive knowledge that the product it sold was defective. Lastly, the seller must have failed to...