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

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CW 16-897 consolidated with CW 16-898, CA 18-221 & CA 18-223

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

**********

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.

REVERSED; WRITS DENIED.

Franklin Glen Shaw
Walter Leger, Jr.
Walter Leger, III
Leger & Shaw
512 East Boston Street
Covington, LA 70433
Telephone: (985) 809-6625
COUNSEL FOR:
Plaintiffs/Respondents - 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/Respondents - 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:
Defendants/Applicants – Manitowoc Cranes, LLC, Westchester Fire
Insurance Co., and The Manitowoc Company, Inc.

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/Applicants – Manitowoc Cranes, LLC, The Manitowoc
Company, Inc., and Westchester Fire Insurance Co.

Kevin M. Young
Prichard Hawkins Young, LLP
10101 Reunion Place – Suite 600
San Antonio, TX 78216
Telephone: (210) 477-7400
COUNSEL FOR:
Defendants/Applicants – The Manitowoc Company, Inc., Westchester
Fire Insurance Co., and Manitowoc Cranes, LLC

Harry Joseph Philips, Jr.
L. Adam Thames
Taylor, Porter, Brooks & Phillips L.L.P.
450 Laurel Street - 8th Floor
Baton Rouge, LA 70801
Telephone: (225) 387-3221
COUNSEL FOR:
Defendants/Respondents - H&E Equipment Services, Inc. and Travelers
Property and Casualty Company of America

John Hatch Hughes
David J. Ayo
Allen & Gooch
P. O. Box 81129
Lafayette, LA 70598-1129
Telephone: (337) 291-1290
COUNSEL FOR:
Intervenor/Respondent - Bayou Welding Works, LLC

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

Jake P. Skaggs
Cozen And O’Connor
Lyondell Bassell Tower
1221 McKinney – Suite 2900
Houston, TX 77010
Telephone: (832) 214-3900
COUNSEL FOR:
Intervenor/Respondent - Allianz Global Corporate and Specialty
Company

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 several defendants, including

the manufacturer of the crane, the Manitowoc Company, Inc., Manitowoc Cranes,

LLC, and their insurer Westchester Fire Insurance Company (collectively

Manitowoc).1 With respect to their claims against Manitowoc, Plaintiffs alleged 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’ 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.2

After the suits were consolidated, the parties filed opposing motions for

summary judgment. The trial court denied Manitowoc’s motion for summary

judgment in which Manitowoc sought to have Plaintiffs’/Intervenors’ claims

1
The claims against one service provider, H&E Equipment Services, Inc. (H&E), are
discussed 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., 17-1014, 18-186
(La.App. 3 Cir.), __ So.3d __. These claims will not be discussed further in this opinion. All other
defendants were either dismissed or settled with Plaintiffs/Intervenors, except for Manitowoc and
H&E.
2
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 its brief to this court.

dismissed on the grounds that the crane was not being used in a reasonably

anticipated manner when the accident occurred or, alternatively, that

Plaintiffs/Intervenors could not prove the existence of a defect that caused their

damages. The trial court granted partial summary judgment in favor of

Plaintiffs/Intervenors, finding that Manitowoc, as manufacturer of the crane, had

breached its non-delegable duty to warn of defects in the crane. The trial court also

denied Manitowoc’s motion to dismiss and for sanctions due to spoliation of

evidence.

Manitowoc sought supervisory writs from the judgment denying its

motion for summary judgment, in docket number CW 16-897, and the judgment

denying its motion for dismissal and spoliation sanctions, in docket number CW 16-

898. It also appealed the judgment granting Plaintiffs’/Intervenors’ motion for

partial summary judgment in docket numbers CA 18-221 and CA 18-223. Upon

Manitowoc’s motion, we consolidated the appeals with its writs.

In light of the complex factual issues, we find that, on the record before

us, this matter is not ripe for summary judgment on any of the claims made by the

parties at this time. We further find that the trial court did not abuse its vast

discretion in refusing to impose spoliation sanctions. Accordingly, we reverse the

trial court’s judgment granting partial summary judgment on Manitowoc’s duty to

warn and render judgment denying both writs.

I.

ISSUES

In its writ applications, Manitowoc raises the following issues for

review:

2

(1) Should summary judgment be entered, dismissing
Plaintiffs’ claims against Manitowoc, because the
manner in which Hankins and Walker were using
the Manitowoc model 888 crane at the time of the
incident – riding a suspended load – is a violation of
BWW’s safety policy, well-known OSHA
standards, and other guidelines, and was a
reasonably anticipated use of the crane;

(2) Should summary judgment be entered, dismissing
Plaintiffs’/Intervenors’ claims against Manitowoc,
because the Manitowoc model 888 crane was
poorly maintained and overloaded, and this was not
a reasonably anticipated use of the crane;

(3) Should summary judgment be entered, dismissing
Plaintiffs’/Intervenors’ claim that the Manitowoc
model 888 crane was unreasonably dangerous in
construction or composition under the LPLA,
because Plaintiffs/Intervenors failed to demonstrate
an unreasonably dangerous condition in
construction or composition that existed at the time
the subject crane left the custody and control of
Manitowoc;

(4) Should summary judgment be entered, dismissing
Plaintiffs’/Intervenors’ claim that the Manitowoc
model 888 crane was unreasonably dangerous due
to an inadequate warning under the LPLA, because
Plaintiffs/Intervenors have not shown an alternative
warning that would have been heeded by BWW and
prevented the incident;

(5) Should summary judgment be entered, dismissing
Plaintiffs’/Intervenors’ claim that the Manitowoc
model 888 crane was unreasonably dangerous in
design under the LPLA, because
Plaintiffs/Intervenors have not shown that there was
a feasible alternative design that could have
prevented the incident, as required for them to prove
a defect in design;

(6) The trial court erred in failing to exclude
inadmissible exhibits to Plaintiffs’/Intervenors’
Opposition under Louisiana C.C.P. article
966(A)(4); and

(7) Given that Intervenor BWW possessed the drum
adapter and specifically agreed to safeguard it for

3

further inspection, should the loss, destruction or
intentional refusal to produce this critical evidence,
without an adequate explanation, result in the
dismissal of certain claims, or at least an evidentiary
presumption that the evidence would have been
unfavorable to Plaintiffs and Intervenors?

On appeal, Manitowoc asks this court to consider:

(1) Should summary judgment be denied as to
Plaintiffs’/Intervenors’ failure to warn claims
because genuine issues of material fact exist
regarding the cause of the subject incident as the
trial court itself recognized in denying Manitowoc’s
Motion for Summary Judgment;

(2) Should summary judgment be denied as to
Plaintiffs’/Intervenors’ failure to warn claims
because genuine issues of material fact exist
regarding whether the Model 888 was being used in
a reasonably anticipated manner?

(3) Should summary judgment in favor of
Plaintiffs’/Intervenors’ failure to warn claims be
denied because a genuine issue of material fact
exists [] as to whether Manitowoc’s dissemination
of SB90 to its distributors was adequate under the
circumstances;

(4) Should summary judgment in favor of
Plaintiffs’/Intervenors’ failure to warn claims be
denied because Plaintiffs/Intervenors have not
shown an alternative warning that would have been
heeded and prevented the accident; and

(5) Did the trial court err in granting summary
judgment on Manitowoc’s comparative fault
defense as related to prior distributors and dealers
because issues of fact exist regarding the culpability
of those entities for failing to properly maintain the
Model 888 and/or for failing to notify the owner of
the Model 888 of SB90?

4

II.

FACTS AND PROCEDURAL HISTORY

At the time of the accident, Plaintiffs were employed as riggers for

BWW. BWW and Morris Material, Inc., entered into a contract for BWW to

fabricate and assemble a port gantry crane, which is a large tower crane with a steel

support tower and a horizontal boom that holds the operator’s cab and the crane’s

operating mechanism. Port gantry cranes are generally used to offload cargo from

vessels.

Although the port gantry crane was to be sold to the Port of Lake

Charles, its fabrication and construction began in 2010 at BWW’s facility in New

Iberia, Louisiana. BWW fabricated the crane in two sections: (1) the main body

tower section and (2) the boom section, which BWW planned to construct on the

ground. To lift the boom and attach it to the tower section, BWW utilized the model

888 crane at issue in this case, which was manufactured by Manitowoc in 1998 and

was purchased by the Bayou Companies in 2008. At the time of the accident, BWW

was leasing the crane from the Bayou Companies.

On May 26, 2011, Plaintiffs were standing on the lifted boom,

attempting to fasten the boom section to the tower section, when the crane allegedly

malfunctioned, causing the boom to crash into the tower. As a result, Plaintiffs fell

to the ground and sustained serious personal injuries. BWW also sustained property

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

for BWW’s property damage.

Plaintiffs each filed separate product liability lawsuits against

Manitowoc, alleging that the crane was unreasonably dangerous because of an

inadequate warning, defective design, and/or defect in construction or composition

5

under the LPLA. BWW and Allianz intervened in the lawsuits. The trial court

subsequently consolidated the two suits.

In their amended petitions, Plaintiffs/Intervenors contended that the

accident was a result of a defect relating 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 Manitowoc had advised its

distributors of in 2002 through the issuance of its Service Bulletin 90. A post-

accident investigation of the crane revealed the six cap screws had backed out, but

Manitowoc contended that the malfunction was due to neglect and poor maintenance

of the crane by various distributers and previous owners as well as the unsafe and

overloaded use by BWW.

In its answer and amended answers, Manitowoc raised affirmative

defenses of comparative fault against several third-parties, including the Coast Crane

Company (Coast Crane) (the original distributor),3 T&T Truck & Crane Service (the

original purchaser in 1998), and Northern Crane Services, which possessed the crane

from 2003-2008. Manitowoc contended that Coast Crane could bear some

comparative fault because it was the original distributor and the crane was in Coast

Crane’s distributorship territory at the time Service Bulletin 90 was issued.

Moreover, Manitowoc discussed with Coast Crane the inspection procedure required

in that service bulletin while Coast Crane was working on the crane and viewing the

drum clutch assembly that Plaintiffs/Intervenors claim was defective; thus,

Manitowoc posited that Coast Crane’s failure to make the corrections recommended

3
Coast Crane has since been dissolved through bankruptcy proceedings.

6

by Service Bulletin 90 could cast it at fault. As to T&T Truck & Crane Service and

Northern Crane Services, Manitowoc asserted they could be liable for the long-term

failure of maintenance and inspection of the crane, which Manitowoc argued was a

critical cause of the load drop.

Manitowoc moved for summary judgment, seeking to have

Plaintiffs’/Intervenors’ claims against it dismissed on the grounds that the crane was

not being used in a reasonably anticipated manner at the time of Plaintiffs’ accident

or, alternatively, that Plaintiffs/Intervenors did not prove the existence of a defect in

the crane that caused their damages. It also filed a Motion for Dismissal of Certain

Claims and Causes of Action and for Spoliation Presumption. By that motion,

Manitowoc sought to have Plaintiffs/Intervenors sanctioned for destroying, losing,

or intentionally refusing to produce critical evidence that would have been essential

to Manitowoc’s defense, i.e., the drum adapter. Manitowoc asserted that due to

spoliation of evidence, certain claims by Plaintiffs/Intervenors should be dismissed

and/or the jury should be instructed to apply an adverse presumption that if the

missing evidence had been produced, it would have been in Manitowoc’s favor.

Plaintiffs/Intervenors also sought partial summary judgment on the

issue of whether Manitowoc was the manufacturer of the crane and whether

Manitowoc, as the manufacturer, failed to warn of a defect in the crane as required

by the LPLA. They argued that Manitowoc’s failure to send Service Bulletin 90 to

the owners of the crane breached its duty to warn under the LPLA, rendering the

crane unreasonably dangerous. Plaintiffs/Intervenors also sought judgment

dismissing Manitowoc’s affirmative defenses against its distributors and previous

owners of the crane, arguing that Manitowoc could not delegate its duty to warn.

7

Following a hearing, the trial court denied Manitowoc’s motion for

summary judgment. In its written reasons, the trial court found the following

genuine issues of material fact existed: (1) “whether the crane was being used in a

reasonably anticipated manner at the time of the incident”; (2) whether there was an

unreasonably dangerous condition in the construction or composition of the crane

that proximately caused Plaintiffs’/Intervenors’ damages; (3) whether there was an

unreasonably dangerous condition in the design of the crane that proximately caused

Plaintiffs’/Intervenors’ damages; and (4) whether “Manitowoc failed to provide an

adequate warning, and this failure caused [Plaintiffs’/Intervenors’] damages.”

In a separate judgment, the trial court denied Manitowoc’s motion

pertaining to spoliation evidence. The trial court also granted

Plaintiffs’/Intervenors’ motion for partial summary judgment, finding that

Manitowoc was the manufacturer of the crane and that Manitowoc had breached its

non-delegable duty to warn of defects in the crane. Finding that the various

distributors and owners of the crane did not owe a duty to warn, the trial court

dismissed Manitowoc’s affirmative defenses as to those parties. The trial court

designated both judgments immediately appealable under La.Code Civ.P. art.

1915(B).

Manitowoc then filed two separate writ applications with this court,

seeking review of the ruling whereby the trial court denied its motion for summary

judgment as well as review of the trial court’s denial of Manitowoc’s motion for

spoliation sanctions. This court signed an order consolidating the two writ

applications. Manitowoc also filed two separate appeals from the trial court’s

judgment granting Plaintiffs’/Intervenors’ motion for partial summary judgment on

their failure to warn claim. In the interest of judicial efficiency and economy, this

8

court granted Manitowoc’s motion to consolidate its writ applications with the

appeals. All these matters are now before this court.

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

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).

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.

IV.

LAW AND DISCUSSION

At the center of these product liability actions is the LPLA, which

provides “the exclusive theories of liability for manufacturers for damage caused by

9

their products.” La.R.S. 9:2800.52. To successfully bring a products liability action

under the LPLA, a plaintiff must establish four elements: (1) the defendant is a

manufacturer of the product; (2) the claimant’s damage was “proximately caused by

a characteristic of the product”; (3) this characteristic “renders the product

unreasonably dangerous”; and (4) the claimant’s “damage arose from a reasonably

anticipated use of the product by the claimant” or someone else. La.R.S.

9:2800.54(A). Under the LPLA,

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.

La.R.S. 9:2800.54(B).

While the characteristic that renders the product unreasonably

dangerous in construction/composition or in design must exist when the product

leaves the manufacturer’s custody, the characteristic that renders the product

unreasonably dangerous for failure to adequately warn or conform to a warranty

“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.” La.R.S.

9:2800.54(C). The burden is on the claimant to prove these elements. La.R.S.

9:2800.54(D).

10

In their motions for summary judgment, the parties herein argue that

each is entitled to judgment as a matter of law on certain elements of the claims.

Manitowoc argues that it is entitled to judgment on the elements of (1) reasonably

anticipated use; (2) unreasonably dangerous in construction or composition; (3)

unreasonably dangerous due to an inadequate warning; and (4) unreasonably

dangerous in design. Plaintiffs/Intervenors, on the other hand, argue they are entitled

to judgment on the element of unreasonably dangerous due to an inadequate

warning.

To succeed on their motions, the parties have to prove there is no

genuine issue of material fact as to these elements, meaning that, even viewing the

evidence in the light most favorable to the non-moving party, no reasonable

factfinder could find for the non-moving party. Smith, 639 So.2d 730. Having

reviewed the record, we cannot say that any of the parties have demonstrated a lack

of evidence as to each of these elements such that no reasonable factfinder could

find in favor of the non-moving parties. We turn now to a discussion of each element

and the record evidence pertaining thereto.

Reasonably Anticipated Use

“Under the LPLA, a manufacturer is liable only for those uses it should

reasonably expect of an ordinary consumer.” Butz v. Lynch, 99-1070, p. 7 (La.App.

1 Cir. 6/23/00), 762 So.2d 1214, 1218, writ denied, 00-2660 (La. 11/17/00), 774

So.2d 980. “Reasonably anticipated use” is defined under the LPLA as “a use or

handling of a product that the product’s manufacturer should reasonably expect of

an ordinary person in the same or similar circumstances.” La.R.S. 9:2800.53(7).

“The standard for determining a reasonably anticipated use is an objective one (an

11

ordinary person in the same or similar circumstances).” Butz, 762 So.2d at 1218.

And “what constitutes a reasonably anticipated use is ascertained from the point of

view of the manufacturer at the time of manufacture,” thus precluding “the fact-

finder from using hindsight.” Payne v. Gardner, 10-2627, p. 3 (La. 2/18/11), 56

So.3d 229, 231.

In its motion for summary judgment, Manitowoc asserts that Plaintiffs’

claims should be dismissed because the manner in which they were using the crane

at the time of the incident, i.e., riding a “suspended load,” was not a reasonably

anticipated use. The record evidence establishes that a suspended load is a free-

floating object that is held aloft by a crane. According to Manitowoc’s evidence, the

riding of a suspended load without fall protection was a violation of the Occupational

Safety and Health Administration (OSHA) standards, BWW’s operating procedures,

the crane’s Operator’s Manual, and accepted industry practice in the crane industry.

Such a use, Manitowoc maintains, was obviously dangerous and was well known by

BWW’s employees as a violation of OSHA standards.

Plaintiffs, however, presented evidence that the boom was no longer

classified as a “suspended load” because the boom was pinned and connected to a

super structure, i.e., the tower. Although Manitowoc disregards this evidence as

“seemingly contrived” and based on regulations applicable to ironworkers, we find

this evidence presented by Plaintiffs’ expert, William Clifford Dickinson, precludes

summary judgment on this issue.

Manitowoc also argues that the manner in which BWW used the crane

was not a reasonably anticipated use because the crane was overloaded and poorly

maintained as per the testimony of its experts in the crane industry, Bradley D.

Closson and Michael Parnell. But again, Plaintiffs/Intervenors presented factual

12

evidence, through the testimony of the crane operator, Christopher S. Alleman,

disputing whether the crane was overloaded at the time of the accident. They further

submitted evidence of the crane’s annual inspections, which were required by OSHA

and performed by independent OSHA-certified inspectors, as well as testimony that

the crane was regularly inspected by BWW and the Bayou Companies’ crane

operators, none of which inspections revealed poor maintenance. This evidence as

well raises genuine issues of material fact which likewise precludes summary

judgment on this element.

Unreasonably Dangerous

As stated above, a product may be deemed unreasonably dangerous in

any one of four ways: (1) in construction or composition; (2) in design; (3) for

failure to provide an adequate warning; or (4) for failure to conform to an express

manufacturer’s warranty. La.R.S. 9:2800.54(B). Each is a distinct possible theory

of recovery governed by a separate statute as set forth in La.R.S. 9:2800.54(B).

While Manitowoc argues that Plaintiffs/Intervenors lack sufficient

evidence to prove that the crane was unreasonably dangerous in construction,

warning, and design, Plaintiffs/Intervenors argue that there is no genuine issue of

material fact that Manitowoc failed to warn the crane owners of a defect with the

cap screws, rendering the crane unreasonably dangerous under their theory of failure

to warn. However, we find there are genuine issues of material fact regarding

whether the product was unreasonably dangerous with respect to all three theories.

1. Construction or Composition

Pursuant to La.R.S. 9:2800.55, “[a] product is unreasonably dangerous

in construction or composition if, at the time the product left its manufacturer’s

13

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.” “[W]hether a defect is

unreasonably dangerous in . . . composition is a question of fact.” Morris v. United

Servs. Auto. Ass’n, 32,528, p. 8 (La.App. 2 Cir. 2/18/00), 756 So.2d 549, 557.

Manitowoc argues that Plaintiffs/Intervenors lack sufficient evidence

upon which they could demonstrate an unreasonably dangerous condition in

construction or composition in existence when the crane left Manitowoc’s custody

and control. However, Plaintiffs/Intervenors argue that, according to the deposition

testimony of Michael Brunet, Manitowoc’s former Director of Product Safety,

Manitowoc’s plans and specifications called for Loctite 242 to be “applied” to all

six cap screws. Plaintiffs/Intervenors claim that a microscopic examination of the

screws after the accident apparently revealed no Loctite on the threads. Rather, the

Loctite 242 had collected at the top and bottom of five screws; the sixth screw was

completely devoid of Loctite. According to Plaintiffs’/Intervenors’ expert, Dr.

Thomas C. Shelton, P.E.,4 the unintended load drop was proximately caused by the

fact that Loctite coverage for the cap screws deviated in a material way from

Manitowoc’s specifications.

Given the lack of evidence in the crane history file, produced by

Manitowoc in discovery, that the cap screws were ever replaced,

Plaintiffs/Intervenors argue that there is ample evidence that the cap screws were the

original cap screws that Manitowoc installed; therefore, there is ample evidence that

the crane was unreasonably dangerous in construction or composition when it left

4
The two-letter title, P.E., stands for licensed professional engineer.

14

Manitowoc’s control. We find this evidence is sufficient to raise a genuine issue of

material fact as to this theory.

2. Failure to Warn

In a failure to warn case, a product is considered unreasonably

dangerous if the claimant can prove that “at the time the product left the

manufacturer’s control, the product possessed a characteristic that may cause

damage and the manufacturer failed to use reasonable care to provide an adequate

warning of such characteristic and its danger to users and handlers of the product.”

La.R.S. 9:2800.57(A). The LPLA defines “[a]dequate warning” as:

a warning or instruction that would lead an ordinary
reasonable user or handler of a product to contemplate the
danger in using or handling the product and either to
decline to use or handle the product or, if possible, to use
or handle the product in such a manner as to avoid the
danger for which the claim is made.

La.R.S. 9:2800.53(9). Moreover, the LPLA imposes a continuing duty on the

manufacturer to warn the users and handlers of its product of defects the

manufacturer learns of after the product leaves its custody:

A manufacturer of a product who, after the product
has left his control, acquires knowledge of a characteristic
of the product that may cause damage and the danger of
such characteristic, or who would have acquired such
knowledge had he acted as a reasonably prudent
manufacturer, is liable for damage caused by his
subsequent failure to use reasonable care to provide an
adequate warning of such characteristic and its danger to
users and handlers of the product.

La.R.S. 9:2800.57(C).

At issue in the present case is Manitowoc’s continuing duty to warn of

a defect that it discovered in its model 888 cranes after the subject crane left its

control in 1998—a defect that was documented in Service Bulletin 90. As explained

15

in Mr. Brunet’s deposition, Manitowoc investigated another model 888 crane located

in Colorado that suffered a similar malfunction, an unintended load drop, on July 25,

2002. In its investigation, Manitowoc learned that the cap screws could 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, Mr. Brunet 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 advised distributors 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. The

inspection report would then be placed in the crane history file, a service and

ownership history file that Manitowoc maintained for all the cranes that it sold.

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.

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

that the distributors 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 repair.

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

90 and that the service bulletin was not sent to the owners. What is disputed is

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whether Manitowoc breached its duty to warn by issuing its bulletin to its

distributors, not the owners. Plaintiffs/Intervenors moved for summary judgment on

this issue, and the trial court granted their motion, finding the warning was not

sufficient because it was not sent to the owners. Manitowoc also sought summary

judgment, arguing that Plaintiffs/Intervenors failed to show anything related to

Service Bulletin 90 caused the load drop and resulting damages that were sustained

in this case. Regardless, Manitowoc argued that Plaintiffs/Intervenors failed to

present an alternative warning and means of ensuring compliance with any such

warning that would have avoided the incident at issue in this case. Once again, we

find that the factual disputes in this matter preclude summary judgment on this

theory of recovery.

“Whether a particular warning or instruction is adequate is a question

for the trier of fact.” Jack v. Alberto-Culver USA, Inc., 06-1883, p. 5 (La. 2/22/07),

949 So.2d 1256, 1259. Several factors come into play in determining the adequacy

of the warning, namely: (1) “the severity of the danger,” (2) the likelihood of

successful communication of the warning to foreseeable consumers, (3) “the

intensity and form of the warning,” and (4) “the cost of improving the strength or

mode of the warning.” Bloxom v. Bloxom, 512 So.2d 839, 844 (La.1987). It stands

to reason that this fact-intensive inquiry is both case-specific and industry-specific

as the duty itself is one of “a reasonably prudent manufacturer.” See La.R.S.

9:5800.57(C).

In granting summary judgment, the trial court relied upon this court’s

holding in Marks v. OHMEDA, Inc., 03-1446, p. 9 (La.App. 3 Cir. 3/31/04), 871

So.2d 1148, 1155, writs denied, 04-1617, 04-1653 (La. 10/8/04), 883 So.2d 1019,

1020, that “the duty established by La.R.S. 9:2800.57(C) is a duty placed directly

17

upon the manufacturer. It cannot be delegated.” Marks, however, is clearly

distinguishable from the instant case, particularly in that the factfinder reached its

conclusion as to the insufficiency of the warning after a six-day bench trial on the

merits. This matter is before the court on summary judgment.

Moreover, the manufacturer in Marks published its warning in a trade

publication—a medical journal—but took no direct action to notify its users. The

record evidence in the present matter establishes that Manitowoc issued its warning

to its distributors, relying, as was its historical practice, on its distributors to not only

inform their buyers/owners, but also to inspect and repair the potential defect.

Whether that procedure was reasonable and sufficient in this circumstance under the

inquiry recited above is a question of fact that we find must be determined by the

factfinder and cannot be resolved on summary judgment.

Nevertheless, because the factfinder could reasonably determine, as the

trial court herein did, that Manitowoc breached its duty by failing to send any

notice/warning directly to the owners, we further find no merit at this time in

Manitowoc’s argument on Plaintiffs’/Intervenors’ failure to establish an alternative

warning. Finally, we note that Plaintiffs/Intervenors, through their experts’

opinions, have produced sufficient evidence for a reasonable factfinder to conclude

that the alleged defect for which Manitowoc may have had a duty to warn—the cap

screw assembly—could have caused the injuries and damages in this matter.

Therefore, none of the parties are entitled to summary judgment on this

theory of recovery. Moreover, as a genuine issue of material fact exists on the

adequacy of Manitowoc’s warning procedure under these circumstances,

Plaintiffs/Intervenors are not entitled at this time to judgment on Manitowoc’s

affirmative defenses as to its distributors as well as the crane’s previous owners.

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3. Design

Louisiana Revised Statutes 9:2800.56 defines a product that is

unreasonably dangerous in design as follows:

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 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.

As with the previous theories, the question of whether a product is unreasonably

dangerous in design is a question of fact. Morris, 756 So.2d 549.

Manitowoc argues it is entitled to summary judgment on this theory as

well because Plaintiffs/Intervenors have failed to show a feasible alternative design

that could have prevented the incident. However, through the reports and

depositions of their experts, namely Dr. Shelton, Russ Rasnic, P.E., and G. Fred

Liebkemann IV, P.E., Plaintiffs/Intervenors have put forth evidence of four

alternative designs, which their experts opine would have substantially reduced the

chances of their injuries and damages. We find this evidence is also sufficient to

raise a genuine question of material fact and withstand summary judgment as to this

theory.

In light of all the genuine issues of material fact that exist on this record,

we find summary judgment is not appropriate at this time. Accordingly, we reverse

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the trial court’s judgment granting partial summary judgment on Manitowoc’s

failure to warn and its affirmative defenses. On the showing made, we further find

no abuse of discretion in the trial court’s refusal to strike Plaintiffs’/Intervenors’

Exhibits 6, 9, 10, 14, 16, 23, 31, 34, and 37. 5 Therefore, we likewise deny

Manitowoc’s writ application in docket number CW 16-897 in its entirety.

Spoliation Sanctions

The sole remaining issue before this court is Manitowoc’s motion for

spoliation sanctions. As our brethren in the first circuit recently explained:

Spoliation of the evidence is an evidentiary doctrine
that refers to an intentional destruction of evidence for the
purpose of depriving the opposing parties of its use in
pending or anticipated litigation. . . .

A trial court has the authority to impose sanctions
on a party for spoliation of evidence and other discovery
misconduct under both its inherent power to manage its
own affairs and the discovery articles provided in the
Louisiana Code of Civil Procedure. Under La. C.C.P. art.
1471, when a party refuses or is unable to comply with a
discovery order, the trial court in a pending action “may
make such orders in regard to the failure as are just,”
thereby granting the trial court broad discretion to impose
a range of sanctions. La. C.C.P. art. 1471(A); see also
Fed.R.Civ.P. 37. Even without a discovery order, La.
C.C.P. art. 191 authorizes trial courts to impose sanctions
for spoliation of the evidence, since the destruction of
evidence clearly interferes with the court’s ability to fairly
administer justice. Specifically, La. C.C.P. art. 191
provides that a trial court “possesses inherently all of the
power necessary for the exercise of its jurisdiction even
though not granted expressly by law.”

5
In its application, Manitowoc merely lists the exhibits after first stating that it objected to
them because they did not conform to the requirements of La.Code Civ.P. art. 966(A)(4). Without
argument, Manitowoc then simply concludes: “The trial court erred in failing to strike these
documents.” The exhibits are as follows: (1) Exhibit 6 – OSHA inspection tags; (2) Exhibit 9 –
May 26, 2011 JSA; (3) Exhibit 10 – Manitowoc Load Capacity Chart; (4) Exhibit 14 – Rocky
Mountain Investigative File; (5) Exhibit 16 – List of Model 888’s with freefall; (6) Exhibit 23 –
Toby Dugas Diagram; (7) Exhibit 31 – 21722 OSHA certificate; (8) Exhibit 34 – Crane History
File; and (9) Exhibit 37 – Freefall drawing showing Loctite specifications.

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....

The range of possible sanctions include dismissing
a case, rendering a default judgment, striking pleadings,
striking a claim or defense, and excluding evidence. See
La. C.C.P. art. 1471; Spoliation of Evidence at 61 & n. 5.
A determination as to what sanction is appropriate in a
particular case is a matter within the province of the trial
court, depending upon the facts present. As with other
evidentiary and discovery rulings, the trial court has much
discretion in deciding which sanction, if any, to impose.
Cf. Hutchinson v. Westport Insurance Corporation, 04-
1592 (La.11/8/04), 886 So.2d 438, 440 (per curiam); also
see Adkins v. Wolever, 554 F.3d 650, 653 (6th Cir.2009).
The appellate standard of review for a trial court’s
evidentiary ruling on this issue is whether the trial court
abused its broad discretion. See BancorpSouth Bank, 13-
1396 at p. 22, 155 So.3d at 641; Paradise v. Al Copeland
Investments, Inc., 09-0315 (La.App. 1st Cir. 9/14/09), 22
So.3d 1018; Everhardt v. Louisiana Department of
Transportation and Development, 07-0981 (La.App. 4th
Cir. 2/20/08), 978 So.2d 1036, 1045.

Carter v. Hi Nabor Super Market, LLC, 13-529, pp. 6-9 (La.App. 1 Cir. 12/30/14),

168 So.3d 698, 703-705, writ denied, 15-190 (La. 4/17/15), 168 So.3d 399 (emphasis

in original).

Manitowoc argues that all of the elements necessary for dismissal of

certain causes of action and a claim for an adverse inference are present here because

Plaintiffs/Intervenors have destroyed, lost, or intentionally refused to produce

evidence within their control without an adequate explanation. The evidence to

which Manitowoc refers is the drum adapter, which Manitowoc emphasizes was “the

very component part of the crane to which the retaining screws were mated” and

“could very well be the Rosetta Stone of this matter.”

However, Manitowoc has presented no evidence that

Plaintiffs’/Intervenors’ employees or representatives intentionally discarded or

destroyed the drum adaptor. Rather, the evidence suggests that the drum adapter

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was one of the many items that were stolen out of the Bayou Companies’ warehouse

on or about February 28, 2014. The evidence further shows that a former employee

of the Bayou Companies pled guilty to the theft. In light of this evidence, we find

no abuse of discretion in the trial court’s denial of Manitowoc’s motion for spoliation

sanctions as Manitowoc has not established that Plaintiffs/Intervenors intentionally

destroyed the drum adaptor, which Manitowoc even concedes it inspected, at least

visually, on a previous occasion. Therefore, we likewise deny Manitowoc’s writ in

docket number CW 16-898, finding no abuse of the trial court’s broad discretion.

V.

CONCLUSION

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

partial summary judgment in favor of Plaintiffs/Intervenors is reversed. Writs are

denied.

Costs of this appeal are assessed equally to Defendant/Appellant and

Plaintiffs/Intervenors/Appellees.

REVERSED; WRITS DENIED.

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