No Duty on Manufacturer to Design A Product that Cannot be Misused

Duty, foreseeability, and causation.  A recent decision by the Fourth Circuit involves these important tort concepts. See Durkee v. Geologic Solutions Inc., No. 12-1360 (4th Cir., 1/3/13).  Plaintiffs injured in a motor vehicle accident sued, trying to hold the maker of an in-vehicle texting system liable for their harm.

The product liability claims arose from a motor vehicle accident in North Carolina in which a fully loaded tractor-trailer ran into vehicles that were slowed or stopped in front. Appellants alleged that the truck driver became distracted by the presence of a texting system located in the cab of his truck. The texting system had been manufactured by defendant and appellants contended that the defendant owed them a legal duty of care because injuries to the traveling public were reasonably foreseeable based on the texting system’s design.  Specifically they pointed to the facts that the system (1) required the driver to divert his eyes from the road to view an incoming text from the dispatcher, and (2) permitted the receipt of texts while the vehicle was moving.

The district court granted the motions to dismiss, concluding that the accident was caused by the driver’s inattention, not the texting device itself, and that manufacturers are not required to design a product incapable of distracting a driver.

On appeal, appellants challenge the district court’s conclusion that defendant owed them no duty of care. The court of appeals concluded that the district court properly dismissed appellants’ claims, relying on the state tort law, see Kientz v. Carlton, 96 S.E.2d 14, 18 (N.C. 1957), holding that the duty owed by product manufacturer does not require him to guard against hazards apparent to the casual observer or to protect against injuries resulting from the user’s own patently careless and improvident conduct.

The district court correctly concluded that the accident was caused by the driver's inattention, not the texting device itself. "Misuse” in the sense of improper or careless use of the system by the driver, rather than a use that was unintended by the manufacturer. The fact that injuries to the traveling public were reasonably foreseeable based on the system's design does not create a duty.

Score one for personal responsibility.  

Lousiana Supreme Court Reverses Lower Court on Teen Riding Oil Pump

Readers may recall our post last fall about a decision by the Louisiana appeals court to reverse the grant of summary judgment against a plaintiff injured during his attempt to "ride" an oil well pump like it was an amusement park attraction. Payne v. Gardner, No. 10-0021 (La. Ct. App., 10/27/10).

Now comes word that the Louisiana Supreme Court has reversed the court of appeals decision that would have let the claim go to trial, finding that riding an oil-well pump like it was an amusement park ride was not a reasonably anticipated use of the pumping unit at the time of its manufacture in the 1950's. Payne v. Gardner, No. 2010-C-2627  (La. 2/18/11).

Thirteen-year-old Henry Goudeau, Jr. sustained injuries when he climbed onto the moving pendulum of an oil well pump and attempted to “ride” the pendulum. When he climbed on the moving pendulum, his pants became entangled in other parts of the pump and, as the pendulum continued to move upward, he alleged he sustained severe personal injuries.

Defendants moved for summary judgment, pointing to the undisputed facts that they manufactured the pump for the sole purpose of extracting oil from the ground; they never intended for anyone to ride the pump; and the plaintiff would not have gone near the pump had his mother been with him.

Plaintiff argued in opposition to the motion that there existed a foreseeable risk that children would attempt to play on the oil well pump. Plaintiffs pointed the trial court to 3 cases from California, Texas, and Oklahoma, over the past 30 years in which children had allegedly been injured while attempting to “ride” on an oil well pumping unit. See Titus v. Bethlehem Steel Corp., 91 Cal.App. 3d 372, 154 Cal. Rptr. 122 (Cal.App. 2d Dist. 1979); Burk Royalty Co. v. Pace, 620 S.W. 2d 882 (Tx.App. 12th Dist. 1981); Knowles v. Tripledee Drilling Co., Inc., 1989 OK 40, 771 P.2d 208 (1989).

The District Court granted summary judgment, finding plaintiff failed to allege any facts that the pump was unreasonably dangerous in itself and for the purpose for which it was intended, i.e., pumping oil.  The Court of Appeal reversed and remanded, finding in a 3-2 decision that it
could not conclude that the evidence presented by Payne was insufficient to allow a reasonable jury to conclude the defendant should have expected an ordinary person in the same or similar circumstances to use or handle the pumping unit in this way.  So, summary judgment was not proper.

The claim was governed by the Louisiana Product Liability Act (LPLA), which requires that the injury be from a reasonably anticipated use of the product. A “reasonably anticipated use” of the product is defined 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. Rev. Stat. 9:2800.53(7).

The Supreme Court noted that this definition is narrower in scope than its pre-LPLA counterpart, "normal use," which included "all reasonably foreseeable uses and misuses of the product.”  The Court offered the following legal guidelines:

  • What constitutes a reasonably anticipated use is ascertained from the point of view of the manufacturer at the time of manufacture.
  • Unlike its "normal use" counterpart, the use of the words "reasonably anticipated" effectively discourages the fact-finder from using hindsight.
  • "Reasonably anticipated use" also effectively conveys the important message that “the manufacturer is not responsible for accounting for every conceivable foreseeable use” of its product.
  • And “knowledge of the potential and actual intentional abuse of its product does not
    create a question of fact on the question of reasonably anticipated use.”

Accordingly, under the LPLA, plaintiff had to make a sufficient evidentiary showing that, at the time of manufacture, Lufkin should have reasonably expected an ordinary consumer or user of its pumping unit would use its product as a “ride.  Significantly, all the evidence and examples relied
upon by the appellate court and plaintiff to establish that the intentional misuse in this case, i.e., the riding, could be considered a reasonably anticipated use involved occurrences well after the date the pump was manufactured.  This the decision was reversed, and summary judgment to be entered for the manufacturer.

This is an important reversal of a decision seemingly motivated by sympathy, however natural, rather than the law. A manufacturer is not responsible for every conceivable or foreseeable use of its product. All this scanty evidence suggested was that the misuse seemed, in hindsight, like it might have been foreseeable. Not that it was reasonably foreseeable, not that a manufacturer should reasonably expect such misuse, certainly not that this was the act of an ordinary person under the circumstances, and not that it was reasonably foreseeable in the 1950's. 

Teen Riding Oil Pump Like a Toy An Anticipated Use?

A Louisiana appeals court last week reversed the grant of summary judgment against a plaintiff injured during his attempt to "ride" a oil well pump like it was an amusement park attraction. Payne v. Gardner, No. 10-0021 (La. Ct. App., 10/27/10).

Thirteen-year-old Henry Goudeau, Jr. sustained injuries when he climbed onto the moving pendulum of an oil well pump and attempted to “ride” the pendulum. When he climbed on the moving pendulum, his pants became entangled in other parts of the pump and, as the pendulum continued to move upward, he alleged he sustained severe personal injuries.

Defendants moved for summary judgment, pointing to the undisputed facts that they manufactured the pump for the sole purpose of extracting oil from the ground; they never intended for anyone to ride the pump; and the plaintiff would not have gone near the pump had his mother been with him.

Plaintiff argued in opposition to the motion that there existed a foreseeable risk that children would attempt to play on the oil well pump. Under Louisiana law, the manufacturer of a product is liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.  Plaintiff thus argued that there were
genuine issues of material fact concerning what constitutes the “reasonably anticipated use” of an oil well pump.

Under the Louisiana product liability act, reasonably anticipated use’ means 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. This is an objective inquiry, which requires the court  to ascertain what uses of its product the manufacturer should have reasonably expected at the time of manufacture.  Plaintiffs pointed the trial court to 3 cases from California, Texas, and Oklahoma, over the past 30 years in which children had been injured while attempting to “ride” on an oil well pumping unit. See Titus v. Bethlehem Steel Corp., 91 Cal.App. 3d 372, 154 Cal. Rptr. 122 (Cal.App. 2d Dist. 1979); Burk Royalty Co. v. Pace, 620 S.W. 2d 882 (Tx.App. 12th Dist. 1981);  Knowles v. Tripledee Drilling Co., Inc., 1989 OK 40, 771 P.2d 208 (1989).  And the caretaker of the well thought he had heard about a similar incident.

The appeals court thus found that there was conflicting evidence on whether an attempt to “ride” the pumping unit is a use or handling of the pumping unit that the pump maker should reasonably expect of an ordinary person in the same or similar circumstances. This "scintilla of direct evidence" presented by plaintiff was sufficient to allow a reasonable juror to conclude that the defendant should have expected an ordinary person in the same or similar circumstances to use
or handle the pumping unit in this way.

What?  A manufacturer is not responsible for every conceivable or foreseeable use of its product.  All this scanty evidence suggested was that the misuse was foreseeable.  Not that it was reasonably foreseeable, not that a manufacturer should reasonably expect such misuse, certainly not that this was the act of an ordinary person under the circumstances. There was no evidence indicating that this accident occurred pursuant to a use reasonably expected of an ordinary consumer.

The Louisiana Act expressly rejected the prior standard that a seller was liable for all reasonably foreseeable uses and misuses of the product.  Moreover, the statute focuses the inquiry at the time of manufacture.  This 50-year old pump was made and sold before any of the incidents relied on by the court to reverse summary judgment.  How do accidents that occurred after the pump at issue here was manufactured put the manufacturer on notice?


 

Alleged Damages in Hurricane Katrina from Dredging Operations Not Forseeable

A court of appeals has affirmed the dismissal of multiple claims alleging that negligent dredging operations before Hurricane Katrina led to the failure of levee systems in Louisiana.  See In Re: In the Matter of the Complaint of Great Lakes Dredge & Dock Co. LLC, No. 08-30738 (5th Cir. Oct. 14, 2010). Claimants were Hurricane Katrina flood victims who filed claims alleging negligence on the part of operators of dredging vessels along the Mississippi River Gulf Outlet. Plaintiffs argued that they suffered damages from the flooding of Orleans and St. Bernard Parishes when several levee systems failed as a result of the erosion of protective wetlands allegedly caused by the defendants’ negligent dredging operations.

The Mississippi River Gulf Outlet  (“MRGO”) is a 76-mile navigational channel that connects the Gulf of Mexico with the Industrial Canal in New Orleans, bisecting the marshy wetlands of St. Bernard Parish and Chandeleur Sound. It was built between 1958 and 1965 by the United States Army Corps of Engineers.  Beginning in 1993, the Corps of Engineers contracted with numerous private dredging companies, including the defendants, to assist the Corps of Engineers in maintenance dredging along the MRGO. From 1999 to 2004, the Corps of Engineers awarded more than 150
contracts to private dredging companies to dredge the length of the MRGO channel.

Plaintiffs, who numbered in the tens of thousands, were individuals, businesses, and other entities who owned property that was damaged due to flooding after Hurricane Katrina made landfall on August 29, 2005. (BTW, for readers, there is a fascinating new exhibit at the Newseum in Washington, DC, on the media coverage of Katrina.)  Plaintiffs contend that the defendants'  maintenance dredging operations caused severe damage to the Louisiana wetlands, which had been providing a natural barrier against tidal surge from storms and hurricanes. This damage to the wetlands allegedly caused an amplification of the storm surge in the New Orleans region
during Hurricane Katrina, which increased the pressure on the levees and flood walls along the MRGO, leading eventually, they alleged, to levee breaches and the subsequent flooding of St. Bernard Parish and Orleans Parish.

These allegations were different from some earlier Katrina claims, adding that their injuries resulted from the erosion to the wetlands caused by the negligent dredging, performed in breach of the standards set out in their Corps of Engineers contracts and various rules and regulations
alleged to apply to their operations, to try to defeat the dredgers’ government contractor immunity defenses, as well as the dredgers’ entitlement to exoneration from or limitation of liability under the Limitation of Liability Act.

Defendants moved to dismiss.  The district court dismissed the claims, and plaintiffs appealed. The 5th Circuit noted that to avoid dismissal, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.  Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). To be plausible, the complaint’s factual allegations must be enough to raise a right to relief above the speculative level. In deciding whether the complaint states a valid claim for relief, we accept all well-pleaded facts as true and construe the complaint in the light most favorable to the plaintiff.

Defendants argued that they could not have foreseen that discrete acts of negligent dredging could have resulted in the absolutely devastating and cataclysmic damages that occurred to St.
Bernard and Orleans Parishes.  Plaintiffs asserted that it is well known, as a matter of general knowledge, that the wetlands provide storm surge mitigation; that the levees protecting cities and towns in the coastal areas were designed with the assumption that the buffering action provided by the wetlands would remain intact; and that dredging activities cause damage to the wetlands.

Duty and forseeability were the key concepts here, and maritime law on this issue mirrored general negligence law.  Determination of the tortfeasor’s duty is a question of law.  A duty may be owed only with respect to the interest that is forseeably jeopardized by the negligent conduct. Thus, if the injuries suffered allegedly as a result of the negligent dredging were not foreseeable, the defendants owed no duty; to show a duty, plaintiffs had to show that each dredger reasonably should have foreseen that the sequence of events leading to their damages—the amplification of the storm surge during Hurricane Katrina, the failure of the levee systems, and the subsequent flooding of Orleans and St. Bernard Parishes—would be a probable result of its negligent acts and the marginal erosion to the wetlands caused thereby.

The 5th Circuit agreed with the trial court that the defendants in this case had no knowledge of an immediate and pending natural disaster that would affect how they conducted their dredging operations. Furthermore, it cannot be said that any dredger could have foreseen that performing its dredging activities negligently—as opposed to in conformity with the Corps of Engineers’ specifications— would probably result in the series of events culminating in the catastrophic damages that occurred during Hurricane Katrina. No reasonable dredger could have anticipated that its negligence would make the difference between the levee systems holding or failing in the event of a hurricane. The damages alleged here were beyond the pale of general harm which reasonably might have been anticipated by negligent dredgers.

The court cautioned that that was not to say that it could never be foreseen that dredging could create conditions that would result in flooding after a hurricane. Rather, it was not foreseeable that the marginal erosion caused by any act of negligence by a defendant here would substantially affect the impact of the hurricane such that the failure of the levee systems and subsequent flooding would be the probable result. The causal sequence alleged in the present case was just far too attenuated.