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.