Loyton Courville, Et Ux. v. Ford Motor Company

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-446

LOYTON COURVILLE, ET UX.

VERSUS

FORD MOTOR COMPANY, ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 01-C-0848-A
HONORABLE JAMES P. DOHERTY JR., DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and James T. Genovese,
Judges.

AFFIRMED.

John M. Jefcoat
Galloway & Jefcoat, L.L.P.
P. O. Box 61550
Lafayette, LA 70596-1550
Counsel for Plaintiffs/Appellants:
Loyton Courville and
Elaine Melancon Courville

Michael M. Noonan, T.A.
James E. Swinnen
McGlinchey Stafford, PLLC
643 Magazine Street
New Orleans, LA 70130
Counsel for Defendant/Appellee:

Bush Hog, L.L.C.
George Vernon
Law Office of George Vernon
P. O. Box 300
1625 10th Street, 2nd Floor
Monroe, WI 53566
Counsel for Defendant/Appellee:
Bush Hog, L.L.C.

William Luther Wilson
C. Michael Hart
Taylor, Porter, Brooks & Phillips, L.L.P.
P. O. Box 2471
Baton Rouge, LA 70821-2471
Counsel for Defendants/Appellees:
Ford Motor Company and
New Holland North America, Inc.

Steven C. Judice, T.A.
Keogh, Cox & Wilson LTD.
P.O. Box 1151
Baton Rouge, LA 70821
Counsel for Defendant/Appellee:
M&L Industries, Inc.

Pickett, J.

The plaintiffs, Loyton and Elaine Courville, appeal a judgment of the trial court

in favor of the defendants, Ford Motor Company, New Holland North America, Inc.,

Bush Hog, L.L.C., and M & L Industries, Inc., granting the defendants motions for

summary judgment and dismissing the plaintiffs suit at their expense. We affirm the

judgment of the trial court.

LAW AND DISCUSSION

The law regarding the appellate review of summary judgments, which is well

settled, was reviewed by this court in Hines v. Riceland Drilling Co., 04-503, pp. 3-4

(La.App. 3 Cir. 9/29/04), 882 So.2d 1287, 1289-90, writ denied, 04-2705 (La.

1/07/05), 891 So.2d 681:

In Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181,
99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230-31, the Louisiana
Supreme Court discussed the standard of review of a summary judgment
as follows:

Our review of a grant or denial of a motion for
summary judgment is de novo. Schroeder v. Board of
Sup’rs of Louisiana State University, 591 So.2d 342
(La.1991). A motion for summary judgment will be
granted “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
material fact, and that the mover is entitled to judgment as
a matter of law.” La. C.C.P. art. 966(B). This article was
amended in 1996 to provide that “summary judgment
procedure is designed to secure the just, speedy, and
inexpensive determination of every action.... The
procedure is favored and shall be construed to accomplish
these ends.” La. C.C.P. art. 966(A)(2). In 1997, the article
was further amended to specifically alter the burden of
proof in summary judgment proceedings as follows:

The burden of proof remains with the movant.
Thereafter, if the adverse party fails to
produce factual support sufficient to establish
that he will be able to satisfy his evidentiary

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burden of proof at trial, there is no genuine
issue of material fact. La. C.C.P. art.
966(C)(2).

After undertaking a complete de novo review of the record, we are in complete

agreement with the trial court. We are impressed with the written reason for

judgment issued by the trial court and adopt them as our own:

FACTUAL BACKGROUND

This matter comes before the court in the nature of a suit for
damages due to injuries the Plaintiff sustained while operating a tractor
to remove fence posts. As indicated by his deposition testimony,
Plaintiff Loyton Courville was born in 1941 and has lived all his life on
the family farm in Sunset, Louisiana. He has also owned and driven a
variety of tractors since the early 1950s. (Courville Deposition, pp. 8-
14).

In 1991 Mr. Courville bought the Ford Model 6610 tractor new
from M&L Industries. He subsequently returned to M&L for the
purchase and installation of a Bush Hog Front End Loader with a Hay
Bale fork lift attachment. The lift mechanism operating control lever is
located on the right side of the tractor steering wheel. The tractor has a
manual transmission with two shift levers located on the floorboard
directly in front of the tractor seat. The lever on the left is the
transmission shift lever which controls four forward and one reverse
gear. The lever on the right is the transfer case shift lever which
controls the high and low range.

Mr. Courville was injured in an accident on November 4, 2000,
as he was using the tractor and front end loader to pull and remove fence
posts. He would drive the tractor up to a fence post, dismount the
tractor and attach a chain to the fence post and to the blade spear on the
front of the front end loader. Plaintiff would then walk back to the left
side of the tractor and reach across the tractor’s transmission control
levers to operate the hay bale fork, lifting it by manipulating the loader
control situated to the right of the operator seat. This caused the post to
be pulled out of the ground. Mr. Courville would then lower the forks,
untie the fence post from the front end loader, remount the tractor, and
repeat the process with the next fence post.

Plaintiff was pulling posts as described above when the accident
occurred. He placed the tractor and front end loader into position
alongside a fence post. Mr. Courville then shifted to neutral, but left the
engine running in order to have power to operate the loader. He then
dismounted the tractor but did not lock the park brake. After chaining

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the post to the front end loader Mr. Courville returned to the left side of
the tractor and positioned himself between the left rear wheel and the
tractor frame. While standing on the ground Plaintiff then reached
across the tractor to operate the Bush Hog loader control lever located
on the right side of the steeling wheel. Although there is no evidence of
what actually transpired next, in all probability the plaintiff contacted or
“bumped” either the transmission lever or the high/low lever causing the
tractor to move forward. Consequently, Mr. Courville's foot was trapped
under the left rear tire and he was run over by the tractor.

PROCEDURAL POSTURE OF CASE

All three defendants in this case have filed Motions for Summary
Judgment seeking to have Plaintiff’s claims against them dismissed as
a matter of law. Each of them maintains that no material facts are in
dispute. Ford Motor Company also asserts that there is no evidence that
the tractor it manufactured was unreasonably dangerous. Defendant
Bush Hog, L.L.C. similarly maintains that Mr. Courville does not have
sufficient evidence to support a claim that the front end loader was
defective and unreasonably dangerous. M&L Industries, Inc. avers that
the front end loader-tractor combination which resulted after they
installed the Bush Hog loader was not unreasonably dangerous. The
defendants also argue that Plaintiff’s claims should be barred because
Mr. Courville used the tractor and front end loader in a manner which
does not constitute a reasonably anticipated use.

APPLICABLE LAW
SUMMARY JUDGMENT STANDARD

A motion for summary judgment shall be granted “if the
pleadings, depositions, answers to interrogatories and admissions on
file, together with supporting affidavits, if any, show there is no genuine
issue as to material fact, and that the mover is entitled to judgment as a
matter of law.” La. C.C.P. art. 966 B. Summary judgment procedure is
designed to secure the just, speedy and inexpensive determination of all
except certain disallowed actions; the procedure is favored and shall be
construed to accomplish these ends. La. C.C.P. art 966 A(2); Magnon
v. Collins, 98- 2822 (La. 7/7/99), 739 So.2d 191. The burden of proof
remains with the movant; however, if the movant will not bear the
burden of proof at trial on the matter before the court on motion for
summary judgment, then the movant may merely point out to the court
that there is an absence of factual support for one or more elements
essential to the plaintiff’s claim. The burden then shifts to the non-
moving party to present evidence demonstrating that genuine issues of
material tact remain. La. C.C.P. art 966 C(2); Hardy v. Bowie, 98-2821
(La. 9/8/99), 744 So.2d 606; Hayes v. Autin, 96-287 (La.App. 3 Cir.
12/26/96), 685 So.2d 691, writ denied, 97-0281 (La. 3/14/97), 690 So.2d
41. Appellate review of a grant or denial of summary judgment is de

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novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.
2/29/00), 755 So.2d 226.

THE LOUISIANA PRODUCTS LIABILITY ACT

The Louisiana Products Liability Act, La. R.S. 9:2800.51-
2800.60, establishes the exclusive bases of liability for manufacturers
for damage caused by their products. The plaintiff’s burden of proof is
contained in [La.]R.S. 9:2800.54:
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:
(1) The product is unreasonably dangerous
in construction or composition as
provided in R.S. 9:2800.55;
(2) The product is unreasonably dangerous
in design as provided in R.S.
9:2800.56;
(3) The product is unreasonably dangerous
because an adequate warning about the
product has not been provided as
provided in R.S. 9:2800.57; or
(4) The product is unreasonably dangerous
because it does not conform to an
express warranty of the manufacturer
about the product as provided in R.S.
9:2800.58.
C. The characteristic of the product that renders it
unreasonably dangerous under R.S. 9:2800.55 must
exist at the time the product left the control of its
manufacturer. The characteristic of the product that
renders it unreasonably dangerous under R.S.
9:2800.56 or 9:2800.57 must exist at the time the
product left the control of its manufacturer or result
from a reasonably anticipated alteration or
modification of the product.
D. The claimant has the burden of proving the elements
of Subsections A, B, and C of this Section.

ANALYSIS
REASONABLY ANTICIPATED USE

La.R.S. 9:2800.53(7) defines “reasonably anticipated use” as “a
use or handling of a product that the product’s manufacturer should

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reasonably expect of an ordinary person in the same or similar
circumstances.” In Delphin v. DOTD, 94CA-1261 (2d Cir. 05/24/95,
reh. den. 07/20/95), 657 So.2d 328, [writs denied, 95-2116, 95-2124
(La. 11/17/95), 663 So.2d 716], the court maintained that this definition
is to be strictly construed. The inclusion of the phrase “reasonably
anticipated use” in the provisions of the LPLA conveys the message that
the manufacturer is not responsible for accounting for every conceivable
foreseeable use of a product. Delphin, supra, citing London v. MAC
Corp. of America, 44 F 3d 316 (5th Cir. 1995). The phrase “reasonably
anticipated use” creates a more restrictive scope of manufacturer
liability than the pre-LPLA concept of “normal use.” Daigle v. Audi of
America Inc., 90-1254 (3rd Cir. 10/02/92), 598 So.2d 1304[, writ
denied, 604 So.2d 1306 (La.1992)]. In accordance with the Daigle
court’s holding, the court in Lockart acknowledged that while virtually
any conceivable use is foreseeable, not every foreseeable use is
reasonable. Lockart v. Kobe Steel Ltd., 92-4437 (5th Cir. 05/6/93), 989
F.2d 864. Thus the standard is objective and “reasonably anticipated
use” refers to the uses the manufacturer “should reasonably expect of an
ordinary consumer.” Id. at 867.

Relying on this line of jurisprudence, the court finds in the instant
case that Plaintiff’s use of the tractor and front end loader was not a
“reasonably anticipated use” as defined by the Louisiana Products
Liability Act. This court makes such a finding just as the court in Myers
v. American Seating Company, 93-1350 (1st Cir. 5/20/94), 637 So.2d
771[, writs denied, 94-1569, 94-1633 (La.10/7/94), 644 So.2d 631,
632], found a folding chair in and of itself was not unreasonably
dangerous but the use of the chair, i.e., standing on the rear portion of
it thereby causing it to jackknife, was not a reasonably anticipated use
given the obvious danger of such a use. The record reflects that Mr.
Courville is a seasoned tractor operator who is cognizant of the
inherently dangerous nature of the apparatus. Yet he operated the
equipment in a manner which contravened warnings contained in the
operator’s manuals of both Ford Motor Company and Bush Hog, L.L.C.
In fact, Plaintiff concedes that he did not even read those portions of the
manuals dealing with warning or caution information. (Courville
deposition pp. 19-20, 74). Had he reviewed this material, Mr. Courville
would have seen that Ford warned against operating the tractor’s
controls while standing beside the tractor. He would have also been put
on notice that the Bush Hog loader was to be operated from the
operator’s seat only. Still, Plaintiff’s status as a knowledgeable and
experienced tractor operator indicates that [he] might not have headed
any warnings even if he had read them. Mr. Courville testified that he
didn’t know whether or not he would have followed any warning telling
him to stay in the operator’s seat because it was more convenient to
stand beside the tractor while pulling up and removing posts than it was
to get on and off the tractor. (Courville deposition pp. 73- 74, 97.)
Also, Plaintiff argues that his use of the tractor and front end loader was

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indeed a “reasonably anticipated use” since the warnings that Ford and
Bush Hog stress in their operator’s manuals take into account Mr.
Courville’s action’s, uses, and body position at the time of his accident.
For example, Plaintiff maintains that language such as “Operate the
loader from the Operator’s seat only” evidences Bush Hog’s anticipation
that an operator would attempt to use the loader from a position other
than the seat.

This notion is dispelled by the court’s decision in Kapen v.
American Isuzu Motors, 96-30544 (U.S. 5th Cir. 09/30/98) 157 F.[3]d
306. In Kampen a car jack failed when the plaintiff was using it to hold
up the car while he got underneath the car to inspect it. Isuzu had
warned against using the jack for this purpose. The court relied on
Lockart, supra, that the plaintiff’s reliance upon the jack to protect him
while he crawled under the car was not a reasonably anticipated use. A
manufacturer should not reasonably anticipate that a user will disregard
explicit warnings and place himself in a position of peril in direct
contravention of those warnings. See Kampen, 157 [F.3d] at 313.
Regardless of whether misuse of a product was foreseeable, misuse does
not constitute a reasonably anticipated use under the Louisiana Products
Liability Act. Frith v. John Deere Co., 3:93-0832[sic] (W.D.La.
6/11/96), 955 F.Supp. 663[, aff'd 108 F.3d 332 (5 Cir.1997)].

UNREASONABLY DANGEROUS IN CONSTRUCTION OR
COMPOSITION

Plaintiff has made no allegation that the tractor and/or front end
loader are “unreasonably dangerous in construction or composition” as
defined by [La.]R.S. 9:2800.55. In any event, the court finds that the
pleadings offer no evidence the tractor or front end loader deviated in
any way from the manufacturer’s specifications or performance
standards when they left the manufacturer’s control.

UNREASONABLY DANGEROUS IN DESIGN

[La.]R.S. 9:2800.56 provides 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 on the utility
of the product. An adequate warning about a product

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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.

Plaintiff argues that an alternative design for the Ford tractor existed
since the same model tractor at issue in this case is sold with a
Syncromesh transmission. It is further maintained that adoption of the
Syncromesh transmission placed no burden upon the manufacturer since
this alternative design was being used by Ford at the time the tractor
purchased by Mr. Courville was being sold.

The court is not persuaded by this argument. Even if Plaintiff’s
tractor had come equipped with a Syncromesh transmission, the
gearshift selectors for such a transmission would been located on the
right side of the steering column, which is the same side where the
control lever for the front end loader is located. Hence, there is no proof
that this alternative design would have decreased the risk of calamity
when Mr. Courville stood near the left rear tire and reached across the
tractor to operate the Bush Hog loader on the right side of the tractor.
Plaintiff has not established that a Syncromesh transmission constitutes
a safer design for the Ford tractor. The requirements of [La.]R.S.
9:2800.56 have therefore not been met with respect to this product.

With regard to the front end loader, Plaintiff claims that there
existed an alternative to the design utilized by Bush Hog. Plaintiff’s
memorandum asserts that placing a presence detector in the operator seat
is a feasible design that is currently implemented by other
manufacturers. The court is of the opinion, however, that such a seat
sensor is not practical for use on the Ford tractor since it would prevent
any movement of the tractor unless the operator was seated. This
proposed alternative design is in conflict with the deposition testimony
of Plaintiff s own expert, Steve Killingsworth. Mr. Killingsworth
testifies that the ability of the operator to stand while operating the
tractor is important for the operator’s safety since it is crucial that a
farmer be able to look forward to see what is in front of his tractor.
(Killingsworth deposition p. 227). Plaintiff’s expert also states in his
affidavit that the seat sensor constitutes a feasible alternative design for
the Bush Hog front end loader. He states that it has been present in the
market on other farm implements since 1989. However, the court is not
presented with any evidence that such a sensor has ever been use[d] on
front end loaders. Moreover, Plaintiff does not provide any proposed
design for the seat sensor. Neither does Plaintiff offer any studies which
indicate that the seat sensor would pass the risk/utility test of Thomas v.
Sport City, Inc. 31-994 (La. App. 2nd Cir. 6/16/99), 738 So.2d 1153.
Following the reasoning of the Thomas court, the plaintiff in the instant
case has the burden of proving that an alternative design existed and
that the alternative design would function feasibly in the purpose for

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which the front end loader is intended without affecting its utility. Here,
Plaintiff has failed to meet his burden under Thomas as well as under
[La.]R.S. 9:2800.56. Consequently, the court finds that the Bush Hog
front end loader was not unreasonably dangerous in design.

WARNINGS

There are no allegations in this case that the tractor and/or front
end loader are “unreasonably dangerous because of inadequate
warning.” In fact, the record contains various examples of warnings
issued by Ford and Bush Hog. These warnings were written in
operator’s manuals produced by both manufacturers. They could also
be found on decals that were placed on the equipment. In this case,
though, Plaintiff did not head the said warnings. And interestingly
Plaintiff’s own expert testifies that the accident would not have occurred
had Mr. Courville followed the manufacturer’s instructions.
(Killingsworth deposition p. 135).

RULING

For the reasons explained above, the court finds that Plaintiff’s
use of the tractor and front end loader, i.e., operating them from the
ground, is not a reasonably anticipated use. The court also finds that
neither the Ford tractor nor the Bush Hog front end loader were
unreasonably dangerous in design. As Plaintiff has not proven that any
genuine issues of material fact or law remain, summary judgment in
favor of Ford Motor Company/New Holland North America, and Bush
Hog L.L.C is appropriate. In addition defendant M&L Industries, Inc.,
as a mere distributor of the equipment cannot be held to a higher
standard than manufacturers Ford and Bush Hog, so granting summary
judgment in favor of this defendant is also proper. The court grants all
three Motions for Summary Judgments [sic] submitted by the defendants
in this case and dismisses Plaintiff’s claims against these defendants as
a matter of law.

Accordingly, for the reasons given, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against the plaintiffs, Loyton and Elaine

Courville.

AFFIRMED.

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