Reaux v. DEEP SOUTH EQUIPMENT CO.

• Decision Date: 05 January 2005
• Docket Number: No. 2004-CA-0378.,2004-CA-0378.
• Citation: 894 So.2d 354
• Parties: Derrick REAUX v. DEEP SOUTH EQUIPMENT COMPANY and Hyster Company.
• Court: Court of Appeal of Louisiana — District of US

894 So.2d 354

Derrick REAUX v. DEEP SOUTH EQUIPMENT COMPANY and Hyster Company.

No. 2004-CA-0378.

Court of Appeal of Louisiana, Fourth Circuit.

January 5, 2005.

Rehearing Denied February 15, 2005.

William R. Mustian, III, Stanga & Mustian, P.L.C., Metairie, Counsel for Plaintiff/Appellant.

John I. Hulse IV, Hulse & Wanek, APLC, New Orleans, Counsel for Defendant/Appellee.

Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME.

McKAY, J.

The plaintiff, Derrick Reaux, appeals the trial court's granting of summary judgment in favor of the defendant, Hyster Company/NAACO Materials Handling Group, Inc. (Hyster). We affirm.

FACTS AND PROCEDURAL HISTORY

On March 28, 1999, Derrick Reaux was working for Dupuy Storage in a warehouse checking merchandise when he was injured in an accident involving a lift truck. The accident occurred while Wallace Barnes was backing the lift truck up in a darkly lit area and struck Mr. Reaux in the left ankle; the lift truck did not have a reverse signal alarm. Both Mr. Reaux and Mr. Barnes were in the course and scope of their employment with Dupuy Storage at the time of the accident. The lift truck was supplied to Dupuy Storage by Deep South Equipment Company (Deep South) and manufactured by Hyster.

An accident report prepared by Dupuy Storage indicated that the cause of the accident was due to "operator carelessness" and "another employee's carelessness." Medical reports also indicated that marijuana metabolites were found in both Mr. Reaux's and Mr. Barnes' blood.

Mr. Reaux filed suit against Deep South and Hyster, alleging that the lift truck was defective for failing to have an audible alarm that sounded when the lift truck was backing up. Deep South moved for summary judgment, which the trial court granted and this Court affirmed.¹ Hyster also moved for summary judgment, which the trial court granted. It is from that judgment that the plaintiff now appeals.

DISCUSSION

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 230. Summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits show that there is no genuine issue of material fact, and that movant is entitled to judgment as a matter of law. La. C.C.P. art. 966.

In the instant case, the only theory of liability that the plaintiff puts forward is that the lift truck was unreasonably dangerous in design. La. R.S. 9:2800.56 states that a product is unreasonably dangerous in design if at the time the product left its manufacturer's control:

(1) There existed an alternative design for the product that was capable of preventing the claimant's damage; and

(2) The likelihood that the product's design would cause the claimant's damage and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design and the adverse effect, if any, of such alternative design on the utility of the product. An adequate warning about a product shall be considered in evaluating the likelihood of damage when the manufacturer has used reasonable care to provide the adequate warning to users and handlers of the product.

The plaintiff contends that the alternative design that would be appropriate in this case would be to have the lift truck manufactured with a back-up alarm. However, this very issue has already been addressed by this Court in Reaux v. Deep South Equipment Co., XXXX-XXXX (La.App. 4 Cir. 2/5/03), 840 So.2d 20. In that case, the Court stated:

There is no evidence that the lift truck was defective in any way. Mr. Reaux alleges that the lack of a back-up alarm on the lift truck rendered it defective, but we do not agree. Had Dupuy complied with the OSHA regulation by using a third party observer to monitor the lift truck being driven in reverse with an obstructed rear view when Mr. Reaux was injured, it is likely that the accident could have been avoided. It was Dupuy's choice whether to lease a lift truck with a back-up alarm or to provide a third party observer when the truck was being driven in reverse. The fact that the lift truck did not have a back-up alarm did not render it defective.

Id. at 24.

Hyster did everything that it was obligated to do under the law in its design and construction of the lift truck. It was the obligation and option of Mr. Reaux's employer, Dupuy Storage, either to provide a back-up alarm on the lift truck, or provide an observer. The fact that Dupuy Storage did not elect to purchase such an option does not render Hyster liable to Mr. Reaux for his injuries.

CONCLUSION

Based on the record before this Court and this Court's previous holding in Reaux v. Deep South Equipment Co., XXXX-XXXX (La.App. 4 Cir. 2/5/03), 840 So.2d 20, there is ample evidence to support the trial court's granting of summary judgment. Accordingly, for the foregoing reasons we affirm the judgment of the trial court.

AFFIRMED.

JONES, J., dissents.

BELSOME, J., dissents with reasons.

JONES, J., Dissents.

I respectfully dissent for the reasons assigned by Judge Belsome.

BELSOME, J., Dissents with Reasons.

I respectfully dissent from the majority's opinion.

On March 28, 1999, Derrick Reaux ("Reaux"), an employee of Dupuy Storage, was run over by a lift truck traveling in reverse. Reaux suffered injuries to his foot, ankle and leg. Reaux filed suit against Deep South Equipment Company ("Deep South"), the lessor of the equipment and Hyster Company/NAACO Materials Handling Group, Inc. ("Hyster"), alleging that the lift truck was defective for failing to have a audible alarm that sounded when the lift truck was backing up.

Deep South filed a motion for summary judgment. The trial court granted the summary judgment in favor of Deep South and Reaux appealed.² This court affirmed the trial court's ruling. It is that ruling that Hyster relies for their filing of a motion for summary judgment. This appeal arises from the trial court's granting of Hyster's motion for summary judgment.

In the prior appeal the only issue to be addressed by this court was whether the lessor, Deep South, was liable to Reaux. In that panel's decision they analyzed Deep South's liability under a duty risk analysis, as well as, the Louisiana Products Liability Act. Under the duty risk analysis, the panel found that there was no negligence on the part of Deep South stating:

The fact that the lift truck did not have a backup alarm did not render it defective. The lift truck was not used properly in accordance with OSHA regulations. Had a third party observer monitored the lift truck when it was being driven in reverse at the time of the accident, the accident could likely have been avoided.³

The determination that the lift truck, as equipped, was not defective was based solely on the fact that the equipment could have been operated in a manner that would not have violated the Department of Occupational Safety and Health Administration (OSHA), 29 C.F.R. § 1926.60(b)(4), which states:

No employer shall use any motor vehicle equipment having an obstructed view to the rear unless:

(i) the vehicle has a reverse signal alarm audible above the surrounding noise level; or

(ii) the vehicle is backed up only when an observer signals that it is safe to do so.

The opinion went on to discuss Deep South's liability under the Louisiana Products Liability Act, writing:

Assuming that Deep South is a "seller" within the meaning of the LPLA (footnote omitted), we find that Deep South is not liable under the LPLA. There is no evidence that the lift truck was defective in any way. Mr. Reaux alleges that the lack of a backup alarm on the lift truck rendered it defective, but we do not agree. Had Dupuy complied with the OSHA regulations by using a third party observer to monitor

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