United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 10, 2004
Charles R. Fulbruge III
Clerk
03-31213
DAVID TAYLOR,
Plaintiff-Appellant,
versus
UNITED TECHNOLOGIES CORPORATION, ET AL
Defendants,
CARRIER CORPORATION/CARRIER TRANSICOLD DIVISION
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana,
03-0218
Before REAVLEY, DAVIS AND WIENER, Circuit Judges.
PER CURIAM:*
Plaintiff David Taylor (“Taylor”) challenges the district
court’s dismissal on summary judgment of his products liability
case on grounds that Taylor’s use of a diesel generator
manufacturer by defendant Carrier Corporation (“Carrier”) did not
*
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this opinion should not be published and is not precedent except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.
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amount to a “reasonably anticipated use” of the product for
purposes of the Louisiana Products Liability Act (“LPLA”).2 We
agree with the district court that the use being made of this
product at the time of the injury could not have been “reasonably
anticipated” by Carrier, and affirm the judgment for the reasons
set forth below.
I.
Carrier manufactures generators that serve as power sources
for refrigeration units used in trans-continental shipping. The
generators run on diesel fuel, which is kept in a fuel tank that
runs along the sides and bottom of the generator. Two large
filler caps are located on each side of the top of the generator
which allow diesel to be added into the tank. A fuel plug is
located about 3/4" from the bottom of the tank which allows the
generator’s fuel tank to be drained.
On December 10, 2001, Taylor, an experienced welder,
undertook the job of repairing a crack in one of Carrier’s
generators. Taylor pulled the plug and allowed the generator to
drain for one to two hours. He then washed the outside of the
tank and, after waiting a short time for it to dry, began to weld
2
Louisiana law and more specifically the LPLA controls the
appeal of this diversity case. Erie Railroad Co. v. Tompkins,
304 U.S. 64 (1938). The LPLA sets out Louisiana’s exclusive
theories of liability for manufacturers for damages caused by
their products. La. R.S. 9:2800.52. To recover under the LPLA, a
plaintiff must first prove that his use was a “reasonably
anticipated use” as defined under the Act. La. R.S.
9:2800.54(A).
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on the unit. Diesel fuel remained in the tank, however, causing
the generator to explode and Taylor to be injured.
Taylor filed suit alleging that his injuries were
proximately caused by Carrier’s “unreasonably dangerous”
product.3 Specifically, Taylor argued that Carrier’s product is
“unreasonably dangerous” under the LPLA in (1)construction;
(2)design; and (3)inadequate warning. The focus of Taylor’s
claim dealt with the location of the drainage plug; he argued
that because the plug is located along the side, rather than at
the bottom of the generator, it is impossible to fully drain all
fuel from the generator tank.
The district court granted Carrier’s summary judgment and
held that Taylor failed to demonstrate that Carrier should have
“reasonably anticipated” his use of the generator. The court
found that Carrier should not be expected to anticipate that an
experienced welder such as Taylor would fail to wash the inside
of the tank and fail to remove the filler caps to allow the
flammable diesel fumes to ventilate. Thus, the court dismissed
the defendant’s suit.4
3
Though the caption includes United Technologies Corp. as a
named defendant, Carrier is the only defendant on appeal. The
district court, in its reasons for judgment, confirmed that
United Technologies Corp. is a parent corporation of Carrier and
had been dismissed from the action by the plaintiff. Oral
Reasons at 25.
4
The district court also ruled on the defendant’s
substantive theories of recovery under the LPLA. The court found
that Taylor had failed to prove that Carrier’s generator was
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II.
The LPLA defines “reasonably anticipated use” 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). In Kampen v. American
Isuzu Motors, Inc., 157 F.3d 306, 309 (5th Cir. 1998), we held
that, by using the term “reasonably anticipated use,” rather than
the pre-LPLA term “normal use,” which included all reasonably
forseable uses and misuses, the Louisiana Legislature sought to
narrow the range of products’ uses for which a manufacturer would
be responsible. If the plaintiff cannot successfully establish
“reasonably anticipated use,” we need not reach the substantive
theories of recovery under the LPLA. See Hunter v. Knoll Rig &
Equip. Mfg. Co., 70 F.3d 803, 806 n.3 (5th Cir. 1995)(Because we
conclude...was not a “reasonably anticipated use”, we need not
reach the other issues presented.).
We agree with the district court that Carrier should not be
expected to “reasonably anticipate” that users of its products
would fail to properly wash or ventilate its fuel-containing
generators before welding upon them. Well-accepted industry
“unreasonably dangerous” in either construction, design, or
failure to warn. Oral Reasons at 22-24. Because Taylor cannot
pass the threshold test of “reasonably anticipated use,” we need
not reach these findings.
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standards from the American National Standards Institute (ANSI)5
and regulations from the Occupational Safety and Health
Administration (OSHA)6 provide in great detail proper methods of
washing and ventilating fuel-containing vessels to ensure that
they are totally free of flammable materials before welding can
begin. Carrier had every reason to anticipate that anyone
repairing its fuel-filled generators would adhere to the ANSI and
OSHA guidelines and take common sense safety measures to fully
clean and ventilate products that formerly contained flammable
diesel fuel. The plaintiff in this case failed to follow the
safety measures, and offered no summary judgment evidence that
the manufacturer should have anticipated this failure. We
therefore AFFIRM the judgment of the district court.
5
See AWS F4.1:1999, RECOMMENDED SAFE PRACTICES FOR THE PREPARATION
FOR WELDING AND CUTTING OF CONTAINERS AND PIPING, 3.5.2, 5.2.3-.7.
6
See 29 C.F.R. § 1910.252(Welding, Cutting, Brazing) and 29
C.F.R. § 1926.352 (Fire Prevention).
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