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holding seller is a person in the business of "conveying title to or possession of a product to another person or entity in exchange for anything of value"
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No. 2011–CA–1259.
2013-03-6
Lenshonda ALEXANDER, Individually and on Behalf of her Minor Son, Damian Alexander and Darlene Myers–Alexander v. TOYOTA MOTOR SALES, U.S.A.; ABC Insurance Company; General Motors Corporation; EFG Insurance Company; New United Motor Manufacturing, Inc.; XYZ Insurance Company; MNO Airbag Manufacturer; QRS Insurance Company; State Farm Fire and Casualty Company, et al.
James M. Williams, Alanah O. Hebert, Gauthier Houghtaling & Williams, L.L.P., Metairie, LA, Stephen Chouest, The Chouest Law Firm, Metairie, LA, for Plaintiff/Appellant. Morgan J. Wells, Jr., Lee M. Peacocke, Larzelere, Picou, Wells, Simpson, Lonero, LLC, Metairie, LA, for Defendant/Appellee.
James M. Williams, Alanah O. Hebert, Gauthier Houghtaling & Williams, L.L.P., Metairie, LA, Stephen Chouest, The Chouest Law Firm, Metairie, LA, for Plaintiff/Appellant. Morgan J. Wells, Jr., Lee M. Peacocke, Larzelere, Picou, Wells, Simpson, Lonero, LLC, Metairie, LA, for Defendant/Appellee.
(Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU, Judge ROSEMARY LEDET).
PAUL A. BONIN, Judge.
Lenshonda Alexander sued Lakeside Imports, Inc., a car dealership, claiming that she suffered serious injury from a deploying airbag in a vehicle which had been serviced by Lakeside Imports, which was purchased from another automobile dealer. Ms. Alexander asserts that the dealership failed in its duty to adequately warn or properly instruct her with respect to the dangers associated with airbag deployment. Lakeside Imports filed a motion for summary judgment against Ms. Alexander, seeking the dismissal of all claims brought against it, and arguing that it owed no duty to warn Ms. Alexander because she did not purchase the vehicle from Lakeside Imports. The district court granted the motion, and dismissed with prejudice Ms. Alexander's claims against Lakeside Imports after concluding as a matter of law that the dealership owed Ms. Alexander no duty in the absence of “privity.”
After our de novo review of both the legal issue and the record, we conclude that under the factual circumstances of this case Lakeside Imports stood in a relationship with Ms. Alexander so as to create a legally recognized obligation of conduct on its part for Ms. Alexander's benefit. Accordingly, we conclude that Lakeside Imports owed a duty to Ms. Alexander to adequately warn or properly instruct her about the dangers associated with airbag deployment. Therefore, we reverse the district court's granting of summary judgment in favor of Lakeside Imports and remand this matter for further proceedings.
For purposes of clarity, we define the duty declared herein accordingly: a seller of a vehicle (and its component parts) who knows, or should know, that the manufacturer's warning is inadequate has a duty, at the time of sale or delivery, to warn reasonably foreseeable users of the danger inherent in the use of the product or instruct them in the proper use of the product to which the average consumer would not be aware.
For our purposes we adopt the following definition of a “seller”: “a person or entity who is not a manufacturer and who is in the business of conveying title to or possession of a product to another person or entity in exchange for anything of value.” La. R.S. 9:2800.53(2) (emphasis added).
We emphasize, however, that our opinion on this matter is limited by those facts available to us at this time. In other words, our opinion is based solely on the undisputed facts in the record as well as those material facts which are genuinely disputed at this point in the litigation. We also emphasize that our decision touches only on the element of duty and does not consider any other essential element of Ms. Alexander's claim such as causation or breach of duty. We will now explain our decision in greater detail.
I
Because the existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question, this opinion will first discuss the underlying facts of this matter. See Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La.1984).
Specifically, on February 1, 2002, Ms. Alexander was involved in an automobile accident wherein she sustained a severe brain stem injury. The accident came about when her 1995 Toyota Corolla was rear-ended and propelled into a fixed restraining barrier along Interstate 10, causing her driver's side airbag to deploy. Ms. Alexander asserts that her injuries were caused, in part, by the explosive deployment of the airbag.
This specific Toyota was equipped with first generation airbags. Ms. Alexander is a short, or small, statured person. It is undisputed that deployed airbags present a greater danger of harm to small persons, including children, because airbags deploy with a high velocity upon impact. See U.S. Department of Transportation, National Highway Traffic Safety Administration, An Evaluation of the 1998–1999 Redesign of Frontal Air Bags, NHTSA Technical Report No. DOT HS 810 685, p. 3–5, August 2006. Because short-statured people generally sit closer to the steering wheel when driving, they place their head and chest in close proximity to the explosive force of an inflating airbag. The record indicates that people sitting closer to, or too close to, an airbag may experience the full force of an inflating airbag. Conversely, people sitting further away from a deploying airbag do not experience this force because the airbag inflates fully before it reaches the person. Id. The introduction of first generation airbags by the automobile industry created an added risk to short-statured drivers (as well as to infants and children) since these types of airbags have the potential to injure people sitting close to the airbag when it is deployed. Id. In 1995, the NHTSA began to promote industry-wide efforts to reduce the risk of such injuries. Id. at 2. One aspect of this campaign was to encourage automobile manufacturers to send revised warning labels to owners of cars that were manufactured before February 1997. The revised warning label had not been affixed to Ms. Alexander's Toyota.
Ms. Alexander purchased the Toyota in 2001 from A–Quality Auto Sales, LLC, a used car dealership. Lakeside Imports, the original vendor of the Toyota, first obtained the vehicle in 1995. Specifically, the Toyota's first user was a Mr. John DiCarlo, who initially leased the vehicle through Lakeside Imports, but subsequently purchased it in 1998. The original unrevised airbag warning was in place during the time of Mr. DiCarlo's use of the vehicle. Lakeside Imports performed ongoing maintenance and service on the vehiclethroughout the period of Mr. DiCarlo's use of the vehicle. Later, Lakeside Imports re-acquired the Toyota as a trade-in on Mr. DiCarlo's purchase of a new vehicle.
A–Quality purchased the Toyota from Lakeside Imports, one day before its resale to Ms. Alexander.
The record indicates that Mr. DiCarlo wanted a higher amount for his trade-in of the Toyota than Lakeside was willing to give, so Lakeside contacted A–Quality to see if A–Quality was interested in purchasing the Corolla at Mr. DiCarlo's requested price. A–Quality agreed to the amount, so Lakeside purchased the car from Mr. DiCarlo and then immediately sold it to A–Quality.
Importantly, Lakeside Imports knew that A–Quality was not in the business of buying used cars for its own use but rather for resale to others. Neither at the time of its sale of the car to A–Quality, nor afterwards, did Lakeside Imports provide a revised warning label to A–Quality. Thus, at the time of its purchase from A–Quality, Ms. Alexander's vehicle contained the original, unrevised warning label attached to the sun visor some years earlier by the manufacturer. No other warning was given to Ms. Alexander from the time of her purchase until her injury. The record, however, discloses a genuine issue of material fact as to whether Lakeside Imports was advised by the manufacturer that a replacement airbag warning label was available to users of 1995 Toyotas during the years of Mr. DiCarlo's use, and Lakeside Imports servicing, of the vehicle. There is, however, no factual question that a revised replacement warning was available from, and in use by, the manufacturer.
Nevertheless, while Lakeside Imports denies having received communications from the manufacturer about the availability of replacement warnings, there is considerable evidence of correspondence from the manufacturer to its authorized dealerships, such as Lakeside Imports, about the replacement warning and the use of the revised warning label. Notably, correspondence from the manufacturer made it clear that it would not take broad steps to inform all future, foreseeable, or prospective Toyota users of the replacement warning. Rather, Toyota indicated that its notification of the replacement warning would be directed to three categories of recipients: 1) then-current initial purchasers or lessees of older model vehicles (such as Mr. DiCarlo); 2) its authorized dealerships (such as Lakeside Imports); and, 3) owners of newer model cars as required by NHTSA. It is undisputed that Ms. Alexander did not know of the replacement warning as Mr. DiCarlo did not attach the replacement decal in the car.
Also, there has been no assertion that A–Quality, in its role as “seller,” had knowledge of the replacement warning.
By noting this fact, we do not imply that Mr. DiCarlo had any duty to do so. See n. 1, ante.
II
As we stated at the outset, we find as a matter of law that under the factual circumstances of this case Lakeside Imports stood in a relationship with Ms. Alexander so as to create a legally recognized obligation of conduct on its part for Ms. Alexander's benefit. The duty is that of a seller of a vehicle (and its component parts), who knows, or reasonably should know, that the manufacturer's warning is inadequate, to warn reasonably foreseeable users at the time of sale or delivery of the danger inherent in the use of the product or instruct such users in the proper use of the product to which the average consumer would not be aware.
We note, however, that the term “seller” as expressed herein does not extend to any seller or vendor. Cf. La. Civil Code art. 2439 (“Sale is a contract whereby a person transfers ownership of a thing to another for a price in money.”) Rather, the “seller” with a duty under these circumstances is “a person or entity who is not a manufacturer and who is in the business of conveying title to or possession of a product to another person or entity in exchange for anything of value.” La. R.S. 9:2800.53(2) (emphasis added).
The district court concluded that Lakeside Imports owed no duty to Ms. Alexander because it did not sell the car to Ms. Alexander, and, thus, was not in “privity” with her. We find this conclusion to be legally erroneous. Specifically, the law provides that a commercial seller's duty to warn can extend beyond the scope of an immediate purchaser. “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” La. Civil Code art. 2315. Indeed, the Supreme Court has concluded that “Louisiana has aligned itself with the consumer-protection rule, by allowing a consumer without [contractual] privity to recover, whether the suit be strictly in tort or upon implied warranty.” Media Production Consultants, Inc. v. Mercedes–Benz of North America, Inc., 262 La. 80, 90, 262 So.2d 377, 381 (La.1972). Similarly, this Court has observed that “a contract is not required for recovery in tort or redhibition.” Touro Infirmary v. Sizeler Architects, 04–0634, p. 11 (La.App. 4 Cir. 3/23/05), 900 So.2d 200, 206. Because failure to warn falls under the category of negligence, the question of liability falls under the duty-risk analysis. Jimenez v. Omni Royal Orleans Hotel, 10–1647, p. 7 (La.App. 4 Cir. 5/18/11), 66 So.3d 528, 532, reh'g denied (7/20/11), writ denied,11–1800 (La.10/21/11), 73 So.3d 385;see Posecai v. Wal–Mart Stores, Inc., 99–1222, p. 4 (La.11/30/99), 752 So.2d 762, 765.
The duty-risk analysis is the standard negligence analysis employed in determining whether to impose liability under La. Civil Code art. 2315. Lemann v. Essen Lane Daquiris, Inc., 05–1095, p. 7 (La.3/10/06), 923 So.2d 627, 632–633. The duty-risk analysis requires proof by the plaintiff of five separate elements: 1) the defendant had a duty to conform his conduct to a specific standard; 2) the defendant's conduct failed to conform to the appropriate standard; 3) the defendant's substandard conduct was a cause in fact of the plaintiff's injuries; 4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries; and 5) actual damages. Id., p. 7, 923 So.2d at 633. A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Id., p. 8, 923 So.2d at 633. A duty represents a legally enforceable obligation to conform to a particular standard of conduct. Byers v. Edmondson, 97–831 (La.App. 1 Cir. 5/15/98), 712 So.2d 681, 687.
The Supreme Court has explained that the duty-risk approach is helpful in cases where the only issue under review is whether the defendant stands in any relationship to the plaintiff so as to create any legally recognized obligation of conduct for the plaintiff's benefit. Pitre v. Opelousas General Hospital, 530 So.2d 1151, 1155 (La.1988).
Whether a duty is owed is a question of law.
Peterson v. Gibraltar Savings and Loan, 98–1601, 98–1609, p. 7 (La.5/18/99), 733 So.2d 1198, 1204. In decidingwhether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. Socorro v. City of New Orleans, 579 So.2d 931, 938 (La.1991). In determining whether a duty exists, we consider various moral, social, and economic factors. Meany v. Meany, 94–0251 (La.7/5/94), 639 So.2d 229, 233;Pitre v. Opelousas General Hospital, 530 So.2d 1151, 1161 (La.1988). Included in these considerations are victim fault, the ease of association between the plaintiff's harm and the defendant's conduct, and the nature of the defendant's activity. Id.
Conversely, whether a defendant breached a duty and whether that breach was a cause in fact of the plaintiff's injuries are faction questions to be determined by the fact-finder. Benjamin v. Housing Authority of New Orleans, 04–1058, p. 6 (La.12/1/04), 893 So.2d 1, 5.
We easily associate the conduct of Lakeside Imports with Ms. Alexander's harm. Having said this, we do not mean to preempt the fact-finder's preeminent role in determining causation. Nevertheless, having studied the evidence in the record before us, we are satisfied that adequate airbag warnings are easily associated with increased safety and decreased injuries. We easily associate the seller's failure to warn with the harm suffered by a foreseeable user when the seller knew or should have known that the manufacturer did not furnish the user with a warning and at the same time the seller failed to adequately warn his immediate buyer (such as A–Quality) of the danger. We also find that Ms. Alexander was such a foreseeable user. It is not contested that Ms. Alexander was the first person to whom A–Quality re-sold the vehicle. Indeed, the record indicates that A–Quality purchased the vehicle from Lakeside Imports—who had been servicing the vehicle—only one day prior to its sale to Ms. Alexander. She was, therefore neither a remote nor a distant-in-time purchaser. Further, her action in purchasing a passenger vehicle for her personal use was quite ordinary.
Lakeside Imports is not only in the business of selling both new and used cars, but also in servicing cars. Indeed, Ms. Alexander's Toyota had been at one time regularly serviced by Lakeside Imports. While it is true that Lakeside Imports had no involvement with the actual mechanism of the harm suffered by Ms. Alexander, one aspect of the business of servicing vehicles is the promotion of safe transportation.
Thus, while Lakeside Import's duty to warn may not be paramount to others' duties to warn (such as a manufacturer's or an immediate seller's), it nevertheless shares in the responsibility owed to foreseeable ultimate users.
Cf. Hunt v. Ford Motor Co., 341 So.2d 614, 619 (La.App. 2d Cir.1977) (holding that when “a manufacturing defect causes an accident and the dealer had prior notice of difficulties apparently relating to the defect with an opportunity to discover and correct the defect, in order to avoid liability for damages occasioned by the defect the dealer has the burden of showing he made reasonable and adequate efforts to discover the source of the difficulties and that the defect could not be discovered in spite of such efforts.”)
III
Turning now to the summary judgment under review, we note that the record before us discloses several genuine issues of material fact.
Specifically, we find that there is a genuine issue of material fact as to whether Lakeside Imports actually knew or should have known that the original manufacturer's warning was inadequate. Moreover, we also find that there is a genuine issue of material fact as to whether Lakeside Imports knew, or should have known, that the manufacturer did not intend to distribute the revised warning label to all foreseeable users, but rather to then-current initial purchasers or lessees of older model vehicles, authorized dealerships, and owners of newer models vehicles. Likewise, we also find that there is a genuine issue of material fact as to whether Lakeside Imports knew, or should have known, that the manufacturer was relying on the current initial purchasers or lessees of older model vehicles to attach the revised warning label to their respective vehicles for the benefit of foreseeable future users. The record, therefore, indicates that this matter is not ripe for summary judgment.
It is axiomatic that appellate courts review the granting of a summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. See Hare v. Paleo Data, Inc., 11–1034, p. 9 (La.App. 4 Cir. 4/4/12), 89 So.3d 380, 387. “A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of summary judgment does not dispose of the entire case.” La. C.C.P. art. 966 E. “[A] motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” La. C.C.P. art. 966 C(1). “The burden of proof remains with the movant.” La. C.C.P. art. 966 C(2). “However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant'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 that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense.” Id. “Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” Id.
IV
While it is uncontested that neither the manufacturer nor Lakeside Imports were required by the NHTSA to install the revised warning labels in vehicles that were manufactured prior to February 25, 1997, it is nevertheless true that the regulatory actions of the NHTSA are not per se dispositive of the existence, vel non, of legal duties arising under Article 2315. We, thus, emphasize that there are sufficient material facts in dispute to preclude summarily finding that Lakeside Imports owed no duty to Ms. Alexander. Whether the original warning label in the car was adequate (breach of duty), or whether the original warning label, if subsequently found to be inadequate, was a cause-in-fact of Ms. Alexander's injuries (causation) are both factual issues reserved to the trier of fact. See Mundy v. Dep't of Health & Human Res., 620 So.2d 811, 813 (La.1993). Accordingly, our opinion herein must not be construed as any form of commentary on these issues.
Of course, even determining that Lakeside Imports had a duty to warn Ms. Alexander does not imply that it is liable to Ms. Alexander for her injuries. Nevertheless, when a warning has been deemed inadequate, “the plaintiff who actually read the warning but did not understand it can plausibly claim that an adequate warning would have protected her.” Dan B. Dobbs, The Law of Torts, § 367 (2000). An “adequate warning” is defined by Louisiana statute 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 damage for which the claim is made.” La. R.S. 9:2800.53(9). Therefore, while the airbag may not be unreasonably dangerous to an average-statured person, a short-statured person provided with an adequate warning may handle the vehicle in a manner that could decrease the risk of injury. There can be no doubt that the NHTSA concluded that the original warning was lacking, and we would not deprive Ms. Alexander of her opportunity to persuade a trier of fact that the warning label affixed to her vehicle at the time of the accident was inadequate as a matter of fact and contributed to the cause of her damages. Nevertheless, this case does not rise and fall upon replacing the label in the car, as there are many ways to discharge a duty to warn. If the fact-finder concludes that the original warning label was inadequate, there is nevertheless a genuine issue of material fact as to whether Lakeside Imports actually knew or should have known of the inadequacy. We, therefore, believe it pertinent to underscore that we are not making any decision in regards to issues of material fact, breach, or causation. We are deciding a single, though important, aspect of the negligence action. The burden still falls on Ms. Alexander to prove the remaining elements of her negligence action in the district court below.
DECREE
Accordingly, we reverse the district court's granting of Lakeside Import's motion for summary judgment and the subsequent dismissal with prejudice of Ms. Alexander's claims against Lakeside Imports. We remand this matter to the district court for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED LOMBARD, J., dissents.
LANDRIEU, J., dissents with reasons.
LOMBARD, J., dissents.
Rather than determine whether summary judgment is appropriate under the specific circumstances of this case, the majority has created an expansive duty to warn a third-party purchaser of potential danger associated with the airbag. Accordingly, I respectfully dissent. LANDRIEU, J., dissents with reasons.
I would affirm the trial court. The majority's decision expands Louisiana law by creating a duty on the part of a non-manufacturer seller of a vehicle to warn foreseeable users of the “danger inherent” in the use of a vehicle that contains an “inadequate” manufacturer's warning label, regardless of whether the presence of that label (or the absence of a different one) renders the vehicle, or any of its component parts, defective for normal use. Without proof of a defect, there can be no duty to warn because, in the absence of a defect, there is nothing to warn about.
Whether a duty is owed is a question of law. Harris v. Pizza Hut of La., Inc., 455 So.2d 1364, 1371 (La.1984). In the instant case, the only issue decided by the trial court on summary judgment was whether a duty exists under the circumstances of this case.
To determine the existence of a duty, the relevant inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the defendant owed him a duty. Lemann v. Essen Lane Daiquiris, Inc., 2005–1095, p. 8 (La.3/10/06), 923 So.2d 627, 633. As this court has recognized, our summary judgment procedure is well-suited to the resolution of questions of law. Hendrickson v. Guillory, 2008–0930, p. 4 (La.App. 4 Cir. 5/18/09), 15 So.3d 256, 258. Where there are no material facts in dispute that might challenge the existence of a duty, summary judgment is appropriate. See, e.g.: Lemann v. Essen Lane Daiquiris, Inc., 2005–1095 (La.3/10/06), 923 So.2d 627. As the Supreme Court stated in Lemann, when analyzing whether certain facts are material to the existence of a duty, one must look to the substantive law applicable to the case. Lemann v. Essen Lane Daiquiris, Inc., 2005–1095, p. 8 (La.3/10/06), 923 So.2d 627, 633.
In this case, it is clear that federal law does not impose a duty to warn upon Lakeside because it is undisputed that Ms. Alexander's vehicle complied with FMVSS 208
, the federal standard regarding airbag warnings required in vehicles at the time the 1995 Corolla was manufactured. The duty found by the majority opinion therefore must be based upon the Louisiana Products Liability Act, La. R.S. 9:2800 et seq. , [“LPLA”], the jurisprudence interpreting it, and/or the general principles of negligence stated in the Louisiana Civil Code. However, none of those sources impose a duty to warn in the absence of a dangerous or defective product.
Federal Motor Vehicle Safety Standard 208
Enacted in 1988, the LPLA provides the exclusive theories of liability under which a claimant may recover from a manufacturer for damage caused by the manufacturer's product. La. R.S. 9:2800.52. Pursuant to the statute, the manufacturer's duty is to “use reasonable care” to provide an adequate warning of a product's dangerous characteristics that may cause harm to users of the product after it has left the manufacturer's control. La. R.S. 9:2800.57(C). In the instant case, it is undisputed that Lakeside is not the manufacturer of Ms. Alexander's vehicle or of its airbags.
Lakeside does qualify as a “seller” under the LPLA. The Act defines a “seller” as “a person or entity who is not a manufacturer and who is in the business of conveying title to or possession of a product to another person or entity in exchange for anything of value.” La. R.S. 9:2800.53(2). The LPLA itself does not mention the term “non-manufacturer seller,” nor does it contain any provision establishing any theory of liability or imposing any duty upon a seller as opposed to a manufacturer.
However, the post-LPLA jurisprudence has recognized that so-called “non-manufacturer” or “non-manufacturing” sellers, under certain circumstances, may have a duty to warn of defects in a product under general principles of negligence. See, e.g.: Slaid v. Evergreen Indem. Ltd., 32,363 (La.App. 2 Cir. 10/27/99), 745 So.2d 793;Jackson v. Sears Authorized Retail Dealer Store, 36,166 (La.App. 2 Cir. 6/12/02), 821 So.2d 590;Wilson v. State Farm Fire and Casualty Insurance Co., 94–1341, 94–1342 (La.App. 3 Cir. 4/5/95), 654 So.2d 385;Adams v. Owens–Corning Fiberglas Corp., 2004–1589 (La.App. 1 Cir. 9/23/05), 923 So.2d 118. The scope of this duty was explained by our colleagues on the First Circuit:
A non-manufacturer/seller in some instances has a duty to warn a purchaser of defects and/or dangerous propensities in the products he sells. In the case of a defective product, i.e., one which is unreasonably dangerous in normal use, the non-manufacturer/seller can be held liable for damages in tort only if he knew or should have known that the product was defective and failed to declare the defect to the purchaser. Hopper v. Crown, 555 So.2d 46, 48 (La.App. 1st Cir.1989), reversed on other grounds,558 So.2d 1117 (La.1990); see also, Thomasson v. A.K. Durnin Chrysler–Plymouth, Inc., 399 So.2d 1205, 1208 (La.App. 1st Cir.1981).
Adams, 2004–1589, p. 6, 923 So.2d at 123; see also, Slaid, 745 So.2d at 797.
As reflected by this jurisprudence, the non-manufacturer seller's duty to warn the purchaser depends upon two factors: a defective product (one that is unreasonably dangerous for normal use), and whether the seller knew or should have known of the defect. In this case, because Ms. Alexander did not purchase the vehicle from Lakeside, the general law of negligence would add a third required factor: that Ms. Alexander must fall within the ambit of those persons to whom the seller owes such a duty. See, e.g., Gammill v. Invacare Corp., 2008–0833 (La.App. 4 Cir. 12/17/08), 2 So.3d 557, 559 wherein we found there was no “ease of association” between the plaintiff's harm and the defendant's conduct sufficient to impose a duty.
In support of its motion for summary judgment in the trial court, Lakeside asserted that the plaintiffs, who have the burden of proof at trial, lack factual support for all three required elements. Because all these elements must be present for a duty to exist, Lakeside needed only to show the absence of one of them to prevail on its motion.
On the issue of defectiveness, it is undisputed that Ms. Alexander's 1995 Corolla contained the original caution label required by the NHTSA at the time it was manufactured, which read, in pertinent part:
CAUTION TO AVOID SERIOUS INJURY:
• FOR MAXIMUM SAFETY PROTECTION IN ALL TYPES OF CRASHES, YOU MUST ALWAYS WEAR YOUR SAFETY BELT.
• DO NOT INSTALL REARWARD FACING CHILD SEAT IN ANY FRONT PASSENGER SEAT POSITION
• DO NOT SIT OR LEAN UNNECESSARILY CLOSE TO THE AIRBAG
• DO NOT PLACE ANY OBJECTS OVER THE AIRBAG OR BETWEEN THE AIRBAG AND YOURSELF
• SEE THE OWNER'S MANUAL FOR FURTHER INFORMATION AND EXPLANATIONS
Subsequently, the NHTSA
issued a “Final Rule” specifying that vehicles manufactured after February 25, 1997 must have new air bag warning labels containing the following pertinent language:
National Highway Traffic and Safety Administration
See 61 FR 60206. The Final Rule was promulgated pursuant to FMVSS 208. According to this regulation, a person may not manufacture for sale, sell, offer for sale, introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle or motor vehicle equipment manufactured on or after the date an applicable motor vehicle safety standard prescribed under this chapter takes effect unless the vehicle or equipment complies with the standard and is covered by a certification issued under section 30115 of this title. 49 U.S.C. sec. 30112(a)(1). See footnote 5, supra.
! WARNING
DEATH or SERIOUS INJURY can occur
• Children 12 and under can be killed by the air bag
• The BACK SEAT is the SAFEST place for children.
• NEVER put a rear-facing child seat in the front.
• Sit as far back as possible from the air bag.
• ALWAYS use SEAT BELTS and CHILD RESTRAINTS.
It is undisputed that the Final Rule did not apply to Ms. Alexander's vehicle, which was manufactured in December of 1994.
The label also contained an illustration of an infant strapped into a front-facing child safety; the picture was inside a circle with a diagonal slash across it, a universal symbol for something that is banned.
In support of its motion, Lakeside submitted both the old and new labels to show that the 1997 revised airbag “warning” label applicable to Ms. Alexander (an allegedly short-statured driver) was substantially similar to the airbag “caution” label contained in her 1995 Corolla. Supporting Lakeside's assertion in this regard is a statement contained in the Final Rule: “NHTSA continues to believe that the word choice for the heading [“warning” as opposed to “caution”] will not change the effectiveness of the label.” Lakeside also pointed out the plaintiffs' admission in its pleadings that at the time of the accident, the airbag in Ms. Alexander's vehicle functioned as designed. Lakeside therefore met its Article 966 burden of pointing out the lack of evidence to support the plaintiffs' contention that the airbag warning label in Ms. Alexander's vehicle was inadequate or that the lack of a new label rendered the vehicle defective.
To defeat summary judgment on this issue, the burden then shifted to the plaintiffs to produce factual support sufficient to establish that they would be able to meet their evidentiary burden at trial of proving the existence of a defect. See La. C.C.P. art. 966 C. The plaintiffs clearly failed to meet this burden.
This record is devoid of any evidence, from experts or fact witnesses, by way of affidavits or deposition testimony, suggesting that the lack of the 1997 revised airbag warning labels in Ms. Alexander's vehicle rendered the vehicle itself or the air bags defective or unreasonably dangerous for normal use. Moreover, the plaintiffs have not cited any statutory or jurisprudential authority establishing that the presence of first generation airbags with the original caution labels constituted a defect that could be cured by providing more stringent warning labels. The mere fact that revised airbag warning labels were developed and were required in newly manufactured vehicles does not render older vehicles with first generation airbags and original caution labels defective.
Analogously, subsequent remedial measures are not admissible to prove negligence or culpability in a civil case. See La. C.E. art. 407.
Without a defective condition, the other elements required to impose a duty—that is—whether Lakeside had knowledge, and whether Ms. Alexander was within the ambit of those persons to whom Lakeside's duty to warn would extend, are irrelevant. Thus, the trial court assumed, for the purposes of deciding the summary judgment motion, that Lakeside possessed the requisite knowledge, yet still found that Lakeside had no duty to warn Ms. Alexander because Lakeside had proved the absence of at least one of the other required elements.
In creating the duty that the majority finds applicable here, this court has departed from Louisiana law and jurisprudence by ignoring the complete absence from this record of any evidence showing that the presence of the airbag warning label authorized by the federal government for Ms. Alexander's vehicle, rather than the newer label designed for subsequently-manufactured vehicles, rendered her vehicle defective. I know of no provision of Louisiana law that would impose upon a seller a duty to warn of any condition short of a product defect. I also note that the plaintiffs have failed to cite any jurisprudence, from Louisiana or any other state, holding a non-manufacturer seller of a car liable for failing to warn about first-generation airbags.
For these reasons, I would affirm the judgment of the trial court. Accordingly, I respectfully dissent.