IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 96-30885
Summary Calendar
_______________
JOSEPH OWENS
and
DEBRA LOOMAS OWENS,
Plaintiffs-Appellants,
VERSUS
RHEEM MANUFACTURING COMPANY;
RUUD MANUFACTURING CORPORATION,
a division of Rheem Manufacturing Company;
CITIZENS UTILITY COMPANY,
doing business as Louisiana Gas Service Company;
and
WAUSAU INSURANCE COMPANY,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
94-CV-3078
_________________________
June 4, 1997
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Joseph and Deborah Loomas Owens (collectively, “Owens”) appeal
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
an adverse jury verdict in their products liability and negligence
actions against Rheem Manufacturing Company, Ruud Manufacturing
Company, and Wausau Insurance Company (collectively, “Rheem”) and
Citizens Utility Company d/b/a Louisiana Gas Service Company
(“LGS”). Finding no error, we affirm.
I.
Owens brought this action against Rheem pursuant to the
Louisiana Products Liability Act, LA. REV. STAT. ANN. § 9:2800.51
et seq. (West 1991), alleging that the water heater manufactured by
Rheem was defective because of Rheem’s failure to attach to the
heater an adequate warning label and because of the heater’s
unreasonably dangerous design. Owens also alleged that, because
LGS knew that the heater was so defective, it acted negligently in
connecting gas service to the water heater. Other parties to this
action were dismissed via summary judgment, from which decision
Owens does not appeal.
The relevant facts are not in dispute. Owens acquired a house
in May 1989 and tore down the detached garage, in which the water
heater had been stored, prior to moving in. To house the water
heater, Owens constructed a three-sided make-shift structure,
approximately 4'x 4', in the center of his backyard. In November
1989, LGS conducted its customary appliance turn-on procedures and,
after finding no defective conditions, initiated gas service for
2
the house. LGS did not, however, light the water heater pilot, as
there were no water pipes connected to the heater.
Shortly after the LGS inspection, Owens began constructing a
beauty salon for his wife in the location that had previously
housed the now-demolished garage. Owens completed the salon in the
summer of 1990 and moved the water heater from its temporary
location in the make-shift structure into a utility room inside the
new structure. Without the aid of LGS, Owens re-connected the
plumbing and gas lines to the heater and lit the pilot. The heater
remained in this location until the date of the accident giving
rise to this action.
In June 1994, Owens decided to replace the existing vinyl tile
flooring in the beauty salon with ceramic tile. After the vinyl
tile had been removed, various spots of glue residue and vinyl tile
backing remained on the concrete floor. To remove the residue,
Owens applied gasoline to the concrete floor. After he had done
so for approximately twenty minutes, the water heater ignited in a
flash-fire explosion. Owens suffered second- and third-degree
burns to roughly fifty-five percent of his body.
Owens filed the instant action in Louisiana state court, and
the defendants removed to federal court. After a four-day trial,
the jury exonerated Rheem and LGS, finding Owens 100% at fault.
II.
3
Owens contends that the district court erred with respect to
several evidentiary rulings and to the jury instructions. We
review a ruling to exclude evidence for abuse of discretion. See
Polanco v. City of Austin, 78 F.3d 968, 982 (5th Cir. 1996). We
will not reverse evidentiary rulings unless they are erroneous and
result in substantial prejudice. See Federal Deposit Ins. Corp. v.
Mijalis, 15 F.3d 1314, 1318-19 (5th Cir. 1994). To determine
whether an erroneous ruling is prejudicial, we review the record as
a whole. See Polanco, 78 F.3d at 982.
We review jury instructions to determine whether, as a whole,
they state the law accurately and completely. See Banc One Capital
Partners Corp. v. Kneipper, 67 F.3d 1187, 1192 (5th Cir. 1995). To
succeed on a challenge to jury instructions, the proponent must
demonstrate first that the charge as a whole creates “'substantial
and ineradicable doubt whether the jury has been properly guided in
its deliberations.'” Mijalis, 15 F.3d at 1818 (citation omitted).
Second, even if the instructions were erroneous, we will not
reverse if we determine that, based upon the record as a whole, the
challenged instruction could not have affected the outcome of the
trial. See id. As a threshold matter, the challenger must
demonstrate that the requested instruction is itself a correct
statement of the law. See Mooney v. Aramco Servs. Co., 54 F.3d
1207, 1216 (5th Cir. 1995).
4
A.
Owens argues that the district court erred in excluding
documentary evidence consisting of memoranda and reports of the
United States Consumer Products Safety Commission (“CPSC”) that
detailed an on-going investigation of the ignition of flammable
vapors by gas-fired water heaters. Owens did not proffer the
evidence for the truth of the matters asserted, but rather to
demonstrate Rheem’s knowledge of the extent and severity of the
problems experienced by many gas-fired water heaters. According to
Owens, such proof of knowledge was relevant to its claim under LA.
REV. STAT. ANN. § 9:2800.57(C), which provides:
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 manufac-
turer, 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.
We disagree that this was relevant. First, Rheem stipulated
that flammable vapors could be ignited by a gas water heater and
that it was aware of this fact as early as 1975, the year in which
the water heater at issue was manufactured. Thus, Rheem’s
knowledge of the dangers inherent in its product, as confirmed by
the CPSC memoranda, was never a contested issue.
Second, § 9:2800.57(C) is inapposite to Owens’s legal claims,
as subsection (C) applies to those situations in which the
5
manufacturer of a product becomes (or should have become) aware of
a hazardous condition after the product has left its control.
Rheem stipulated that it was aware of any hazards before the
product left its control in 1975. Subsection (A), which applies to
unreasonably dangerous conditions of which the manufacturer is
aware “at the time the product left its manufacturer’s control,”
provides the appropriate cause of action.
For substantially the same reasons, we dismiss Owens’s
challenge to the failure to instruct the jury regarding sub-
section (C). Given the fact that Rheem stipulated to its knowledge
regarding the hazards of the gas-fired water heaters as early as
1975, the court’s instructions accurately and completely conveyed
the applicable law.
B.
Owens contends that the district court erred in excluding two
video tapes that were offered to demonstrate, pursuant to LA. REV.
STAT. ANN. § 9:2800.56(1), the feasibility of two alternative
designs to the heaterSS18" stands and sealed combustion chambers.
The tapes were not intended to depict circumstances substantially
similar to those of the instant accident, but were offered as
evidence of alternative feasible designs only.
Again, Rheem stipulated that putting the water heater on 18"
stands would lessen the chance of ignition in some circumstances.
6
Rheem did not contest, therefore, that there existed an alternative
design that was capable of preventing the claimant’s damage. Rheem
did argue, however, that, because of the amount of gasoline vapors
present during Owens’s treatment of the concrete floor, the use of
an 18" stand would not have prevented the instant accident.
Because, as Owens admitted, the tapes did not depict circumstances
substantially similar to those of the instant accident, they were
relevant to suggest alternative feasible designs onlySSan uncon-
tested issue at trialSSbut not to contest Rheem’s proximate
causation argument.
C.
Owens avers that the district court erred in failing to
instruct the jury that, if it found that the water heater lacked a
warning label, the heater was unreasonably dangerous as a matter of
law. In support of this instruction, Owens relies upon Toups v.
Sears, Roebuck & Co., 507 So. 2d 809 (La. 1987).
Because we do not believe that Owens’s proffered jury
instruction is a correct statement of law, we find no error. See
Mijalis, 15 F.3d at 1318. The Toups court did not conclude that as
a matter of law the failure to have a warning label on a heater is
per se unreasonably dangerous, but rather concluded that “the
numerous trial errors here resulted in a jury verdict that was
7
clearly wrong.” 507 So. 2d at 819. Among those errors were
(1) the court’s failure to allow evidence demonstrating that the
manufacturer knew of the dangers inherent in the water heater,
which knowledge the manufacturer denied at trial; (2) the
instruction on contributory negligence, which, the court deter-
mined, was inappropriate in light of the fact that the victim was
three years old and that any contributing carelessness of his
twelve-year-old brother fell short of negligence; (3) the instruc-
tion that a product seller is not presumed to know of any latent
defects; and (4) the court’s “simplistic jury charge that a design
is not defective if reasonable care is taken in its adoption.” Id.
at 817-19.
Although the instant case involves a similar explosion
resulting from gasoline fumes being sucked into a water heater, the
similarities with Toups go no further. Toups involved a three-
year-old childSSwho was incapable of reading a warning and whose
recovery, the court concluded, could not have been reduced by any
contributory negligence of his own or othersSSwho was injured when
a water heater, which been stored continuously from its purchase
and installation in a shed also housing gasoline and a lawn mower,
was ignited by fumes emanating from the lawn mower. In contrast,
the victim in the instant case was a knowledgeable adult whose
purposeful use of gasoline as a solvent caused an explosion in the
water heater, which heater had been moved (subsequent to its
8
initial installation and inspection) by the victim from a self-
contained storage shelter to the beauty salon that he was con-
structing in his backyard. Given the distinguishing characteris-
tics of Toups, it would have been erroneous “to use a legal
determination by one court to inculpate these defendants when the
case turns on the [substantially dissimilar] facts.”
D.
Owens urges that the district court misconstrued the duties
imposed on a natural gas supplier under Giordano v. Rheem Mfg. Co.,
643 So. 2d 492, 496 (La. App. 3d Cir. 1994), which error caused the
court to exclude otherwise admissible evidence and to give the jury
faulty instructions. According to Owens, Giordano places upon a
natural gas supplier a continuing duty to discover a defect in the
customer’s wiring or equipment for as long as the company continues
to supply natural gas to the customer. Thus, evidence demonstrat-
ing LGS’s knowledge from November 1989 until June 1994 (the period
of its supply of natural gas to Owens’s home) of the dangers
inherent in failing to elevate the heater 18" off the ground or to
provide a flammable vapors warning on the heater should have been
admitted. LGS concedes that Giordano governs but argues that its
duty to discover defects ends after the initiation of gas service
to the home.
We agree with LGS; nothing in Giordano imposes upon a natural
9
gas supplier a continuing duty to discover defects. In fact,
Giordano compels the opposite:
[The natural gas supplier] was under no duty to discover
and warn the Giordanos of a design defect in the hot
water heater. This duty rests with the manufacturer who
is in a better position to discover such defects. . . .
The accident, which occurred nearly seven months later,
was not in any way related to [the natural gas sup-
plier’s] presence at the Giordano home on September 28,
1990 for purposes of turning on natural gas service.”
Id. at 497.
As was the case in Giordano, it is undisputed that, when LGS
arrived at the Owens’s home in November 1989 to initiate gas
service, there were no defects in the operation of the water
heater, nor was the heater stored in such a manner as to create a
dangerous condition. Rather, the heater was stored at that time in
a small shed in Owens’s backyard, and nothing else occupied the
shed. It was Owens who later moved the heater to the beauty salon,
without the knowledge of LGS, and caused the explosion by using
gasoline to clean the salon floors. Hence, as in Giordano, the
accident, nearly five years after LGS’s initial installation and
inspection of the heater, was not in any way related to LGS’s
presence at Owens’s home in November 1989.
III.
Owens contends that the district court erred in granting LGS’s
motion for judgment as a matter of law (“j.m.l.”) with respect to
his prayer for punitive damages against LGS. Given that we have
10
found no error on the question of liability, we need not address
this issue.
AFFIRMED.
11