Matthew M. Walker v. the Manitowoc Company, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-1014 consolidated with 18-186

MATTHEW M. WALKER

VERSUS

THE MANITOWOC COMPANY, INC., ET. AL.

CONSOLIDATED WITH

JIM LEE HANKINS

VERSUS

THE MANITOWOC COMPANY, INC., ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 11-9533 C/W 12-0052
HONORABLE LORI ANN LANDRY, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and
Candyce G. Perret, Judges.

AFFIRMED.

Franklin Glen Shaw
Leger & Shaw
512 East Boston Street
Covington, LA 70433
Telephone: (985) 809-6625
COUNSEL FOR:
Plaintiffs/Appellants - Jim Lee Hankins and Matthew M. Walker

Michael L. Barras
Oats & Marino
100 East Vermilion Street - #400
Lafayette, LA 70501
Telephone: (337) 233-1100
COUNSEL FOR:
Plaintiffs/Appellants - Jim Lee Hankins and Matthew M. Walker

Edward Paul Landry
Landry, Watkins, Repaske & Breaux
211 East Main Street
New Iberia, LA 70560
Telephone: (337) 364-7626
COUNSEL FOR:
Defendant/Appellee - Manitowoc Cranes, LLC

J. Frederick Kessenich
Daigle Fisse & Kessenich PLC
227 Highway 21
Madisonville, LA 70447
Telephone: (985) 871-0800
COUNSEL FOR:
Defendant/Appellee - Starr Indemnity and Liability Insurance Company

John Ashley Moore
Taylor, Porter, Brooks & Phillips L.L.P.
P. O. Box 2471
Baton Rouge, LA 70821-2471
Telephone: (225) 387-3221
COUNSEL FOR:
Defendants/Appellees - Travelers Property and Casualty Company of
America and H&E Equipment Services, Inc.

William H. Parker, III
John Hatch Hughes
Allen & Gooch
P. O. Box 81129
Lafayette, LA 70598
Telephone: (337) 291-1390
COUNSEL FOR:
Intervenor/Appellant - Bayou Welding Works, LLC

Michael Thomas Pulaski
Keith W. McDaniel
McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, LLC
195 Greenbriar Boulevard – Suite 200
Covington, LA 70433
Telephone: (504) 831-0946
COUNSEL FOR:
Defendants/Appellees - Manitowoc Cranes, LLC, Westchester Fire
Insurance Co., and The Manitowoc Company, Inc.

Douglas William Truxillo
Onebane Law Firm
P. O. Drawer 3507
Lafayette, LA 70502-3507
Telephone: (337) 237-2660
COUNSEL FOR:
Defendant/Appellee - T & T Truck & Crane Service, Inc.

Steven Bernard Rabalais
Rabalais & Hebert
701 Robley Drive - #210
Lafayette, LA 70503
Telephone: (337) 981-0309
COUNSEL FOR:
Defendant/Appellee - Mike Evans Crane Service LLC

Dan Boudreaux
9100 Bluebonnet Centre Boulevard - Suite 300
Baton Rouge, LA 70809
Telephone: (225) 293-7272
COUNSEL FOR:
Intervenor/Appellee - Liberty Mutual Insurance Company

Carl William Robicheaux
2014 West Pinhook Road – Suite #503
Lafayette, LA 70508
Telephone: (337) 235-7888
COUNSEL FOR:
Defendant/Appellee - Northern Crane Service Inc.

Paul J. Politz
Taylor, Wellons, Politz & Duhe
1515 Poydras Street – Suite 1900
New Orleans, LA 70112
Telephone: (504) 525-9888
COUNSEL FOR:
Defendant/Appellee - Leslie Charles Bordelon

Jake P. Skaggs
Cozen & O’Connor
1221 McKinney – Suite 2900
Houston, TX 77010
Telephone: (832) 214-3900
COUNSEL FOR:
Intervenors/Appellants - Allianz Global Corporate and Specialty
Company, Bordelon Equip Co., and Leslie Charles Bordelon

Stanwood R. Duval, Jr.
In Proper Person
101 Wilson Avenue
Houma, LA 70364
Defendant/Appellee

THIBODEAUX, Chief Judge.

Plaintiffs, Matthew M. Walker and Jim Lee Hankins, filed separate

suits, seeking damages for personal injuries they sustained as a result of a worksite

accident involving the alleged failure of a Manitowoc model 888 crane (crane) to

hold the load upon which Plaintiffs stood, causing Plaintiffs to drop to the ground.

Through multiple amended petitions, Plaintiffs sued the manufacturer of the crane,

the Manitowoc Company, Inc., Manitowoc Cranes, LLC, and their insurer,

Westchester Fire Insurance Company (collectively Manitowoc), alleging the crane

was unreasonably dangerous because of an inadequate warning and/or defect in

design or construction/composition as defined by the Louisiana Products Liability

Act (LPLA). Plaintiffs also sued H&E Equipment Services, Inc., and its insurer,

Travelers Property and Casualty Company of America (collectively H&E), among

other various owners, custodians, servicers, and inspectors of the crane, alleging that

H&E failed to properly service or inspect the crane and that H&E either knew or

should have known of the defect in the crane and failed to exercise reasonable care

in preventing the accident. Plaintiffs’ employer, Bayou Welding Works, LLC

(BWW), and its insurer, Allianz Global Corporate and Specialty Company (Allianz)

(collectively Intervenors), intervened in the suit, seeking property damages and

consequential losses arising from the same accident. 1 After the suits were

consolidated, H&E moved for summary judgment, which the trial court granted.

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Liberty Mutual Insurance Corporation (Liberty), the workers’ compensation carrier for
Plaintiffs’ employer, intervened in the lawsuits as well, adopting the allegations set forth by
Plaintiffs pursuant to the Louisiana Workers’ Compensation Act. Liberty adopts Plaintiffs’
position in brief to this court.

Plaintiffs/Intervenors filed this “protective appeal” to reverse the trial

court’s judgment granting H&E’s motion for summary judgment, but only if this

court reverses the partial summary judgment granted to Plaintiffs/Intervenors on

their failure to warn claim against Manitowoc in the companion case, Matthew M.

Walker v. The Manitowoc Company, Inc., et al., consolidated with Jim Lee Hankins

v. The Manitowoc Company, Inc., et al., 16-897, 16-898, 18-221, 18-223 (La.App.

3 Cir.), __ So.3d __ (companion case). After reviewing the record evidence, we

affirm the trial court’s grant of summary judgment in favor of H&E.

I.

ISSUES

On appeal, Plaintiffs/Intervenors ask this court to consider whether:

the trial court erred in granting summary judgment to H&E
and Travelers in the event this court distinguishes, finds
inapplicable, or otherwise overrules Marks [v. OHMEDA,
Inc., 03-1446 (La.App. 3 Cir. 3/31/04), 871 So.2d 1148,
writs denied, 04-1617, 04-1653 (La. 10/8/04), 883 So.2d
1019, 1020].

II.

FACTS AND PROCEDURAL HISTORY

As discussed more fully in the companion case, on May 26, 2011,

Plaintiffs, who were employed as riggers for BWW, sustained injuries when the

crane at issue allegedly malfunctioned and dropped the boom upon which they stood,

causing Plaintiffs to fall to the ground. At the time of the accident, BWW was

leasing the crane from the Bayou Companies, which had purchased the crane in 2008

from a previous owner. BWW also sustained property damage, and Allianz, which

provided builders’ risk insurance coverage for BWW, paid for BWW’s damage.

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Plaintiffs each filed separate product liability lawsuits against Manitowoc, alleging

that the accident was caused by a defect in the crane’s brake/clutch assembly.

Specifically, they referred to six bearing retainer cap screws that secured the brake

and clutch assembly to the crane’s hoist drum. Plaintiffs/Intervenors alleged that the

cap screws had loosened, causing the drum to disengage from the crane shaft and

fall, a defect of which Manitowoc had advised its distributors in 2002 through the

issuance of its Service Bulletin 90.

Plaintiffs/Intervenors also named as defendants various owners,

servicers, and inspectors of the crane, including H&E. Plaintiffs alleged that H&E

failed to properly service the crane and that H&E, a Manitowoc distributor, knew or

should have known of the manufacturing defect in the crane and failed to warn or

advise the Bayou Companies, the owner of the crane, of such defects prior to the

accident. BWW and Allianz intervened in the lawsuits, and the trial court

subsequently consolidated the two suits.

H&E twice moved for summary judgment, arguing that H&E had no

duty to warn of manufacturing defects under the LPLA and that its one-time, limited

service call on the crane prior to the collapse did not create a duty owed to Plaintiffs

or Intervenors to investigate or warn of the alleged defect. Although it denied the

initial motion as premature, the trial court subsequently granted H&E’s second

motion for summary judgment finding that, based on the undisputed facts and

evidence, H&E did not breach a legal duty in this instance. In so holding, the trial

court relied, in part, upon this court’s holding in Marks that the duty to warn of

manufacturing defects found in the LPLA cannot be delegated by the manufacturer,

Manitowoc. The trial court reasoned:

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For the reasons I will talk about later [in granting partial
summary judgment to Plaintiffs/Intervenors on
Manitowoc’s duty to warn of manufacturing defects], I do
think this is a duty that was -- is [owed] by Manitowoc. I
don’t think they can delegate that duty to the distributor.
However, [H&E] was not the distributor of [the crane].
Th[e] distributor[, Coast Crane Company,] was the
distributor where the crane was found in 2002 when they
had a load [] drop which . . . resulted in Service Bulletin
90. The repair that this H & E did [on this crane] was 15
some odd months before the incident, totally unrelated.
Mr. Bordelon [of the Bayou Companies] and his people
have -- that A through Z, did not request [H&E] to do
anything with things that were the subject of Service
Bulletin 90. I think it is clear [from] the reasons stated by
H & E in their memorandum in support thereof that they’re
out at this point. Evidence is sufficient to say that as a
matter of law they are entitled to summary judgment
having not owing a duty to Bayou at that particular time.

Plaintiffs/Intervenors have now filed this appeal “protectively,” asking

this court to reverse the trial court’s judgment sustaining H&E’s motion for summary

judgment, but only if this court reverses the trial court’s judgment sustaining

Plaintiffs’/Intervenors’ motion for partial summary judgment on Manitowoc’s duty

to warn. Having found genuine issues of material fact exist on the record as to

whether Manitowoc breached its duty to warn of post-manufacturing defects under

the LPLA, we reversed the partial summary judgment granted in favor of

Plaintiffs/Intervenors in the companion case. Therefore, we will now entertain

Plaintiffs’/Intervenors’ appeal in this matter.

III.

STANDARD OF REVIEW

An appellate court reviews a motion for summary judgment de novo,

using the identical criteria that govern the trial court’s consideration of whether

summary judgment is appropriate. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d

4

880. Therefore, just like the trial court, we are tasked with determining whether “the

motion, memorandum, and supporting documents 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.Code Civ.P. art. 966(A)(3).

As has been long established on summary judgment:

The burden of proof rests with the mover.
Nevertheless, if the mover will not bear the burden of
proof at trial on the issue that is before the court on the
motion for summary judgment, the mover’s burden on the
motion does not require him to negate all essential
elements of the adverse party’s claim, action, or defense,
but rather to point out to the court the absence of factual
support for one or more elements essential to the adverse
party’s claim, action, or defense. The burden is on 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.

La.Code Civ.P. art. 966(D)(1).

A genuine issue of material fact exists “if reasonable persons could

disagree. If on the state of the evidence, reasonable persons could reach only one

conclusion, there is no need for a trial on that issue.” Smith v. Our Lady of the Lake

Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751 (quoting W. Schwarzer,

Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material

Fact, 99 F.R.D. 465, 481 (1983)). In determining whether a material factual dispute

exists, a court should consider all of the record evidence but must refrain from

determining the merits, making credibility determinations, and evaluating testimony.

Id. All doubts are resolved in favor of the non-moving party. Id.

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IV.

LAW AND DISCUSSION

Under Louisiana’s duty-risk analysis, which courts employ to

determine liability under our general negligence scheme, a plaintiff must prove five

elements:

(1) the defendant had a duty to conform his conduct to a
specific standard (the duty element); (2) the defendant’s
conduct failed to conform to the appropriate standard (the
breach element); (3) the defendant’s substandard conduct
was a cause in fact of the plaintiff’s injuries (the cause-in-
fact element); (4) the defendant’s substandard conduct was
a legal cause of the plaintiff’s injuries (the scope of
liability or scope of protection element); and (5) the actual
damages (the damages element).

Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 7 (La. 3/10/06), 923 So.2d 627,

633. Given its burden of proof under La.Code Civ.P. art. 966(D)(1), a defendant is

entitled to summary judgment if there is no factual support on the record to support

even just one of these five elements.

In its motion for summary judgment, H&E points out that its lone

connection to this case was a single, unrelated electrical repair on the crane

conducted on February 22, 2010, approximately fifteen months before the accident.

At that time, an H&E technician diagnosed a power connection problem with the

crane’s computer and installed a new CPU board to remedy the electrical failure in

the crane’s cab. It is undisputed that this repair had nothing to do with the alleged

brake/clutch assembly malfunction that Plaintiffs/Intervenors allege caused the

accident at issue. As no fact or expert witness has testified or opined that H&E’s

lone, electrical repair, over a year before the crane collapsed, had any causal

connection with the accident, H&E asserts that the Plaintiffs/Intervenors could not

prove their allegations against H&E based on its failure to exercise reasonable care

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in conducting this lone repair. After reviewing the record, we agree and find no error

in the trial court’s judgment granting summary judgment as to

Plaintiffs’/Intervenors’ allegations of negligence relating to this lone repair.

At issue in the allegations that H&E knew or should have known of a

manufacturing defect in the crane and failed to warn or advise the Bayou Companies

of such defects prior to the accident is the potential defect that Manitowoc

documented in Service Bulletin 90. As explained in the companion case, Manitowoc

investigated another model 888 crane located in Colorado that suffered a similar

malfunction, an unintended load drop, on July 25, 2012. In its investigation,

Manitowoc learned that the cap screws could potentially loosen and cause damage

to the clutch assembly which could, in turn, result in load drops when the crane was

operating in freefall mode. Thereafter, Michael Brunet, Manitowoc’s former

Director of Product Safety, immediately drafted Service Bulletin 90 to warn its

distributors. As Mr. Brunet explained, service bulletins were the method that

Manitowoc used to communicate service issues involving its cranes.

Service Bulletin 90 provided that loose cap screws could cause damage

to the clutch assembly and requested that all model 888 cranes equipped with freefall

be inspected by a Manitowoc-qualified service technician. If any crane was found

to have loose cap screws, the screws should have been removed, applied with Loctite

242, and re-tightened to fifty-three foot-pounds. Attached to the bulletin was an

inspection form that was to be completed by the distributor and returned to

Manitowoc within thirty days from the date the bulletin was issued.

At the time that Service Bulletin 90 was issued, Manitowoc identified

forty-two cranes that were manufactured with freefall installed by Manitowoc.

Manitowoc sent Service Bulletin 90 to its distributors via facsimile in October 2002.

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Thereafter, Manitowoc relied upon its distributors to identify the model 888 cranes

that they had sold and to contact the owners of those cranes to both warn the owners

and to inspect and, if need be, perform the recommended repairs.

It is undisputed that the crane at issue was subject to Service Bulletin

90 and that H&E, a Manitowoc distributor, knew of the defect, having received

Service Bulletin 90. What is disputed in this matter is whether H&E owed a duty to

the Bayou Companies, and in turn Plaintiffs/Intervenors, to warn of the potential

defect. In granting summary judgment in H&E’s favor, the trial court relied upon

this court’s holding in Marks v. OHMEDA, Inc., 871 So.2d at 1155, that “the duty

established by La.R.S. 9:2800.57(C) is a duty placed directly upon the manufacturer.

It cannot be delegated.” Therefore, the trial court found that H&E owed no duty to

Plaintiffs/Intervenors to warn of the defect.

However, in the companion case, we distinguished Marks on several

grounds: (1) the trial court in Marks reached its factual conclusion on the

insufficiency of the warning following a six-day bench trial, whereas the companion

case was before the court on summary judgment and (2) the Marks manufacturer

merely published its warning in a medical journal having taken no direct action to

notify its users, whereas Manitowoc issued its warning to its distributors, relying, as

was its historical practice, on its distributors to then inform their buyers/owners as

well as to inspect and repair any potential defect. Having found genuine issues of

material fact exist as to whether Manitowoc’s warning procedure was reasonable in

these circumstances under the LPLA, we reversed summary judgment as to this

issue.

In this appeal, Plaintiffs/Intervenors argue that, because H&E had

actual notice from Manitowoc that a critical part of the crane was defective and it

8

serviced the crane after it was transported to south Louisiana, H&E, as a distributor,

owed a heightened duty to ensure that the defective cap screws had been fixed.

Under their theory, H&E had a heightened duty to: (1) inspect the cap screws as

detailed in Service Bulletin 90; (2) ensure that the defective cap screws had been

corrected; and (3) advise its customer (the Bayou Companies) of the existence of

Service Bulletin 90 and the need to have the cap screws inspected. As H&E

indisputably failed to perform any of these tasks, Plaintiffs/Intervenors assert that

H&E breached its duty and is solidarily liable for the damages that arose from its

breach.

Plaintiffs/Intervenors also argue that it is not significant that H&E was

not the original distributor of the crane or that the crane was not located in H&E’s

distributorship area at the time Service Bulletin 90 was issued. Rather, they contend

that once H&E received notice that the crane was in its territory, it assumed the

obligation as the licensed dealer to ensure that all the warranty work and service

bulletin inspections were performed.

H&E, however, contends that it had no legal or contractual duty to warn

of any alleged defect in the crane. Besides its single, limited interaction with the

crane, H&E notes that it is undisputed that no one from the Bayou Companies ever

complained to H&E of problems with the freefall mechanism. And according to Mr.

Brunet, Service Bulletin 90, issued some eight years prior to H&E’s first interaction

with the crane, would not have been within the scope of the H&E’s technician’s

repairs unless the Bayou Companies or someone affiliated with the crane would have

complained of problems with the freefall mechanism. It is also not disputed that

H&E was never asked and never performed any service or repair on the clutch

assembly at issue.

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Moreover, the evidence demonstrates that, according to Manitowoc’s

historical practice, it was the responsibility of the selling distributor to convey any

warning in the service bulletins to their purchasers. Keith Alan Crider, Manitowoc’s

regional business manager for the Northeast United States and Eastern Canada,

testified that the distributor in whose territory a crane is located is responsible for

performing mechanical or diagnostic repairs at any given time as per the

distributorship agreement. However, he further clarified that it is still the sole

responsibility of the selling distributor to provide the crane owner with manufacturer

updates, including service bulletins. His testimony is consistent with that given by

Manitowoc’s corporate witness who also stated that Manitowoc expected

distributors to contact the owner to whom that they would have sold the cranes.

In its pleadings, Manitowoc made similar recitations of its policy,

repeatedly stating: “Manitowoc relied on its distributors to identify the Model 888

cranes with free fall mechanisms that the distributors sold, and to contact the owners

of those cranes.” Therefore, H&E argues that Plaintiffs/Intervenors cannot prove

the existence of a legal duty owed to them by H&E under the circumstances of this

case.

Whether a particular defendant owes a duty to a particular plaintiff is a

question of law. Lemann, 923 So.2d 627. In deciding this issue, our supreme court

has advised that “the ease of association between the duty owed and the risk

encountered is a proper focus of inquiry in finding the existence of a duty.” Socorro

v. City of New Orleans, 579 So.2d 931, 939 (La.1991).

It is undisputed that H&E never owned, sold, or inspected the crane.

There is also no dispute that H&E performed only one repair on the crane, fifteen

months before the accident, involving an unrelated electrical issue in the cab. While

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it is further undisputed that H&E was both a distributor and service provider for

Manitowoc and its cranes, that fact does not, in and of itself, prove the existence of

the duty advanced by Plaintiffs/Intervenors. Rather, the evidence demonstrates that,

pursuant to Manitowoc’s historical practice as testified to by several witnesses, the

Coast Crane Company, the original distributor of the crane, had the duty to warn the

owner of the crane, not H&E. The crane was not even in H&E’s territory when the

service bulletin was issued.

Moreover, the evidence further reveals that H&E did not breach any

obligation under its distributorship agreement in relation to its one interaction with

the crane—the diagnosing and repair of the unrelated electrical issue in the cab.

H&E was never advised of a problem with the freefall mechanism in this crane and

was never asked to inspect the crane regardless. Significantly, its one service call

was performed eight years after the issuance of Service Bulletin 90.

As the trial court found, the evidence, rather than supporting

Plaintiffs’/Intervenors’ allegations, demonstrates no ease of association between the

collapse of the crane and resulting damages and H&E’s alleged failure to warn of or

perform the Service Bulletin 90 inspection some eight years after the issuance of the

bulletin. In light of the record evidence, we conclude that H&E did not owe

Plaintiffs/Intervenors a legal duty under the circumstances of this case. Accordingly,

we find that H&E is entitled to judgment as a matter of law, and we affirm the trial

court’s judgment.

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V.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting

summary judgment in favor of H&E Equipment Services, Inc. and Travelers

Property and Casualty Company of America is affirmed.

Costs of this appeal are assessed to the

Plaintiffs/Intervenors/Appellants.

AFFIRMED.

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