Colbert v. Sonic Restaurants Inc.

• Decision Date: 21 September 2010
• Docket Number: Civil No. 09–1423.
• Citation: 741 F.Supp.2d 764
• Parties: Gerald D. COLBERTv.SONIC RESTAURANTS, INC. and Their Unknown Insurer.
• Court: U.S. District Court — Western District of Louisiana

741 F.Supp.2d 764

Gerald D. COLBERT

v.SONIC RESTAURANTS, INC. and Their Unknown Insurer.

Civil No. 09–1423.

United States District Court, W.D. Louisiana,Shreveport Division.

Sept. 21, 2010.

Murphy J. White, Adrienne Danielle White, White & White, Mansfield, LA, for Gerald D. Colbert.Lottie L. Bash, Gold Weems et al., Alexandria, LA, for Sonic Restaurants, Inc. and Their Unknown Insurer.

MEMORANDUM RULING

TOM STAGG, District Judge.

Before the court are two motions for summary judgment filed by the defendants in the above-captioned matter, Sonic Restaurants, Inc. (“Sonic”) and Lexington Insurance Company, Inc. (“Lexington”) (hereinafter occasionally referred to as “the defendants”). See Record Documents 18 and 23. For the reasons set forth below, both of the motions for summary judgment are GRANTED.

I. BACKGROUND

A. Facts.

On February 7, 2008, Gerald Colbert (“Colbert”) drove to the Sonic Restaurant in Mansfield, Louisiana, to purchase a cup of coffee from the drive-thru. Colbert made a special request to the order taker at Sonic that Sonic add cream and artificial sweetener when preparing his coffee. However, on that date, the Sonic employee handed Colbert his cup of coffee along with the cream and artificial sweetener to put in his coffee instead of adding it to his coffee before bringing it to him, as he had requested.¹ After receiving his coffee, Colbert pulled forward, placed his car in park and removed his foot from the brake. While sitting in his car, Colbert placed his coffee on the console. After doing so, and while holding his cup of coffee with his right hand, Colbert used his left hand to remove the lid so that he could add the cream and sweetener. With his left hand he took off the lid. The hot coffee splashed on his right hand and caused an instantaneous reaction causing the coffee to be spilled into his lap. He contends that he sustained second-degree burns through his blue jeans in his groin area, stomach/abdomen area and thigh.

Colbert filed suit in state court against Sonic and its insurer, alleging that Sonic was negligent and failed to warn him and other customers of hot coffee, failed to keep its coffee at a proper temperature and failed to make sure its coffee cups were in a safe condition. See Record Document 1. Colbert further alleged that Sonic “knew or should have known that the cup was over filled with hot coffee and should have warned plaintiff and other customers of hot coffee cups” and that Sonic's “coffee was unreasonably dangerous.” Id. Sonic and Lexington removed the case to this court on the basis of diversity jurisdiction and filed the instant motions for summary judgment, arguing that Colbert's claims should be dismissed. See Record Documents 18 and 23.

II. ANALYSIS

A. Summary Judgment Standard.

Summary judgment is proper pursuant to Rule 56 of the Federal Rules of Civil Procedure “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 263 (5th Cir.2002). If the movant demonstrates the absence of a genuine issue of material fact, “the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th Cir.2004) (citations and quotations omitted). Where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant, then summary judgment should be granted. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005).

B. The LPLA.

In this diversity claim, Louisiana products liability law applies to Colbert's claims. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The Louisiana Products Liability Act (“LPLA”) “establishes the exclusive theories of liability for manufacturers for damages caused by their products.” La. R.S. 9:2800.52; Evans v. Ford Motor Co., 484 F.3d 329, 334–35 (5th Cir.2007); Stahl, 283 F.3d at 261–62. Thus, Colbert may not recover from Sonic for damage caused by a product on the basis of any theory of liability not set forth in the LPLA.

In order to maintain a successful action under the LPLA, Colbert must establish: (1) that Sonic is a manufacturer of the product; (2) that his damage was proximately caused by a characteristic of the product; (3) that this characteristic made the product “unreasonably dangerous”; and (4) that his damage arose from a reasonably anticipated use of the product by him. See La. R.S. 9:2800.54(A). Colbert may prove that the product is unreasonably dangerous in construction or composition, in design, because of an inadequate warning, or because it does not conform to an express warranty of the manufacturer about the product. See La. R.S. 9:2800.54(B) and (D). “Defects are not presumed to be present by the mere occurrence of an accident.” Spott v. Otis Elevator Co., 601 So.2d 1355, 1364 (La.1992) (citation omitted). Colbert alleges that Sonic's coffee is “unreasonably dangerous” in construction or composition and because of an inadequate warning.

1. Construction Or Composition.

To prevail on a construction or composition defect claim under Louisiana law, Colbert must show that “at the time the product left its manufacturer's control, the product deviated in a material way from the manufacturer's specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer.” La. R.S. 9:2800.55. In other words, Colbert must prove that a product “is defective due to a mistake in the manufacturing process.” Stahl, 283 F.3d at 263 (citing La. R.S. 9:2800.55).

Colbert bears the burden of proof on each of the elements of his claims. See La. R.S. 9:2800.54(D); Caboni v. Gen. Motors Corp., 398 F.3d 357, 361 (5th Cir.2005). Thus, the defendants were not required to submit evidentiary documents to support their motions, but needed only point to the absence of evidence supporting Colbert's claims. See Latimer v. Smithkline & French Labs., 919 F.2d 301, 303 (5th Cir.1990). Nevertheless, the defendants submitted the expert report of Daniel Cox (“Cox”). The deposition of Cox revealed that Cox has twenty-nine years of experience in the coffee industry and that he has studied coffee temperature and brewing and holding and serving temperatures. See Record Document 54, Ex. A at 27. He has tested coffee, lectured about coffee industry standards, taught seminars about coffee industry standards, written articles about coffee industry standards, and owns and operates the largest industry testing lab in the United States. See id., Ex. A at 28–30. Cox testified in his deposition and in his report that the industry standard for serving coffee is 155 to 185 degrees. See id., Ex. A at 32 and Record Document 47, Ex. A. He stated that the proper temperature for brewing coffee is 200 degrees plus or minus 5 degrees because “[c]ooler temperatures fail to extract enough flavor compounds, resulting in weak tasting coffee, while excessively high temperatures result in bitter and astringent coffee.” Record Document 47, Ex. A. The recommended brew holding temperature, which is the temperature at which coffee is maintained in a thermal vessel prior to being served, is 185 degrees to 190 degrees. See id. He opined that the “objective of a constant holding temperature is to be able to preserve coffee flavors, which are quite volatile.” Id.

Cox further indicated that “[o]ther than routine cleaning, manufacturers of brewing equipment do not recommend allowing on site operators the ability to make adjustments to their equipment.” Id. Cox was also questioned by Colbert's counsel about the temperature of Sonic's coffee and how it is regulated:

Q: And I can tell you that you've told me that you don't know the temperature of the coffee that—on the day that Gerald Colbert was burned at Sonic. Now, my question is, if you don't know the temperature of the coffee that day that Gerald Colbert was burned, how can you candidly tell me and the Court that the coffee was within the industry standards temperaturewise?

A: The way brewing equipment is configured today is that there are upper and lower thermostats on the equipment. If the equipment is—if the temperature of the liquid coming out of the machine is too low, there is a thermostat which will not allow the machine to brew, and if the temperature is too hot, it will not allow this machine to brew. Since neither of those were indicated, I can—I can say with probability that the machine was within the brewing temperatures, but as to whether—the exact temperature on that day, I cannot say.

Record Document 54, Ex. A at 20–21. When asked whether the settings within the machine that Sonic uses would vary greatly from day to day, Cox responded, “No.” Id., Ex. A at 50.

The defendants also submitted the affidavit of Billy Cotton (“Cotton”), who was the store manager for the Sonic in Mansfield. See Record Document 18, Ex. D. Cotton attested that to his knowledge, no one had checked the temperature of the coffee made at the Mansfield Sonic on February 7, 2008, the date of the incident. However, Cotton stated that on February 8, 2008, “when asked to by a supervisor, [he] personally measured the temperature of the coffee at the Mansfield store” and that the “temperature was at 169 degrees.” Id. Cotton further explained that since then, he has performed...