Opinion
CIVIL ACTION No. 99-2692 SECTION: E/2
May 29, 2002
ORDER AND REASONS
Defendants J.C. Penny Company, Inc., ("Penney" and its insurer Liberty Mutual Insurance Company ("Liberty Mutual") and Rei Jean Enterprises Company, Ltd., ("Rei Jean") and its insurer, insurer Liberty Mutual Insurance Company ("Liberty Mutual") have each filed a motion for summary judgment. R.D. #s 71 and 74. Rei Jean also filed a pleading styled Peremptory Exception of Prescription, which the court construes as a Rule 12(b)(6) motion to dismiss. R.D. #76. Plaintiffs oppose the motions. All motions were set for hearing without oral argument on May 17, 2002, and were considered on the briefs.
BACKGROUND
In December of 1996 Daniel Bush purchased a 300 watt "halogen torchiere floor lamp" from J.C. Penny. On February 26, 1998, a fire severely damaged the Bush's home. Their homeowner's insurer, State Farm Fire and Casualty Company ("State Farm") paid their damage claim. An investigation determined that the fire was caused by the ignition of adjacent combustibles from the heat of the halogen torchiere floor lamp bulb. Plaintiffs subsequently filed suit against defendants pursuant to the Louisiana Products Liability Act, La. R.S. 9:2800.51 et seq. ("LPLA") alleging that the halogen torchiere floor lamp sold by J.C. Penny and manufactured by Rei Jean was defective and/or unreasonably dangerous in design, and for failure to warn of the defect.
ANALYSIS
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). To grant summary judgment, a court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagra Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1989), abrogated on other grounds by Little v. Liguid Air Corp., 37 F.3d 1069 (5th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)). In reviewing a motion for summary judgment, the record and the evidence must be viewed in the light most favorable to the party opposing the motion. Hardyman v. Norfolk Western Railway Company, et al, 243 F.3d 255, 258 (6th Cir. 2001), (citingMatsushity Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, the mere existence of a scintilla of evidence in support of plaintiff's position will be insufficient; there must be evidence on which a jury could reasonably find for the plaintiff. Id., (citing Liberty Lobby, Inc., 106 S.Ct. at 2511.)
J.C. PENNEY MOTION FOR SUMMARY JUDGMENT
The LPLA provides the exclusive theories of liability for manufacturers for damage caused by their products. La. R.S. 9:2800.52. According to the LPLA," [t]he manufacturer of a product shall be 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." La. R.S. 9:2800.54(a). Liability may be imposed upon the manufacturer when a product is found to be unreasonably dangerous in construction or composition, design, because of an inadequate warning, or for non-conformity to an express warranty. La. R.S. 92800.54.
J.C. Penny argues that it is entitled to summary judgment because it is not a manufacturer as provided in the statute since the lamp at issue was designed and manufactured by Rei Jean who sold it to J.C. Penney in a sealed carton which was simply placed on the shelf by J.C. Penney employees for retail sale to its customers. The statute defines a "manufacturer" in pertinent part as follows:
(1) "Manufacturer" means a person or entity who is in the business of manufacturing a product for placement into trade or commerce. . . . "Manufacturer" also means:
(a) A person or entity who labels a product as his own or who otherwise holds himself out to be the manufacturer of the product.
(b) A seller of a product who exercises control over or influences a characteristic of the design, construction or quality of the product that causes damage. . . . .
Defendant's memorandum in support of its motion discusses only paragraph (b) of the statutory definition, but with apparent reference to paragraph (a) claims that it cannot be the manufacturer of the lamp under the LPLA because there was no label on the box indicating that J.C. Penney was the manufacturer, and there as no evidence to suggest that J.C. Penney exercised any control over the design, construction or quality of the lamp. Defendant cited Matthews v. Wal-Mart Stores, Inc., 708 So.2d 1248 (La.App. 4th Cir. 1998), Baldwin v. Kikis, 635 So.2d 1324 (La.App. 4th Cir. 1994), and Parks v. Baby Fair Imports, 726 So.2d 62 (La.App. 5th Cir. 1998) in support of its position.
Plaintiffs' opposition points out that despite plaintiffs' discovery request and defendant's diligent search, J.C. Penney was unable to produce an exemplar of the box and/or packaging which accompanied the torchiere lamp sold to Mr. Bush. However, plaintiffs produced a "GENERAL INSTRUCTIONS" document that J.C. Penny identified as accompanying the torchiere lamp it purchased from Rei Jean. The first sentence states as follows: "Congratulations on your new JC Penny Halogen Torchiere floor lamp!" There is no mention at all of Rei Jean as the designer, manufacturer or seller of the lamp.
The cases cited by defendant are inapposite to this case as none mentions that any of the allegedly defective products bore a label or any other indication or suggestion that the defendant/seller labeled the product as his own or otherwise held himself jut to be the manufacturer. Plaintiffs have shown a genuine issue of material fact as to whether J.C. Penney labeled the product as its own or held itself out to be the manufacturer as defined in section 2800.53 of the statute. It is a question for the finder of fact to resolve. Moreover, even if J.C. Penney is found to be a non-manufacturing seller of the allegedly defective product, it still may be responsible for damages in tort if plaintiffs can show that it knew or should have known that the product it sold was defective and failed to declare it. Parks, 726 So.2d at 64, citing Wilson v. State Farm Fire Casualty Ins. Co., 94-1342 (La.App. 3 Cir. 4/5/95) 654 So.2d 385.
In its reply brief to plaintiffs' memorandum in opposition to its motion for summary judgment, J.C. Penney argues for the first time that it is entitled to summary judgment on the merits of plaintiffs' substantive claims that the lamp was defective in design, and that J.C. Penney's failed to warn plaintiffs' of the known defect. It adopts co-defendant Rei Jean's argument in support of its motion for summary judgment.
REI JEAN MOTION FOR SUMMARY JUDGMENT
To prevail in a products liability action under the LPLA, a plaintiff must establish that:
1. The product manufactured by the defendant possesses a characteristic that makes it unreasonably dangerous;
2. That characteristic existed when it left the control of the manufacturer or resulted from a reasonably anticipated alteration or modification of the product;
3. That the characteristic proximately caused the plaintiff's damages; and
4. That the damage arose from a reasonably anticipated use of the product.Wicker v. Ford Motor Company, 67 F. Supp.2d 623, 626 (E.D. La 1999), (citing La. R.S. 9:2800.54), aff'd, 192 F.3d 127 (5th Cir. 1999). Whether a product is unreasonably dangerous is a question of fact to be made by the fact finder. Hines v. Remington Arms Co., Inc., 648 So.2d 331, 335, rehearing denied (La. 1994)
DEFECTIVE DESIGN CLAIM
LPLA provides that a product is unreasonably dangerous in design if, at the time the product left the manufacturer's control:
(1) There existed an alternative design for the product that was capable of preventing the claimant's damage; and
(2) The likelihood that the product's design would cause the claimant's damage and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design on the utility of the product. An adequate warning about a product shall be considered in evaluating the likelihood of damage when the manufacturer has used reasonable care to provide the adequate warning to users and handlers of the product.
La. R.S. 9:2800.56. Morgan v. Gaylord Container Corp., 30 F.3d 586, 586 (5th Cir. 1994).
Rei Jean and J.C. Penney argue that plaintiffs' only expert is a "cause and origin" expert who will testify that in his opinion. the tire was a result of ignition of insulation or its paper backing coming too close to or touching the halogen bulb after the sheetrock had been removed from the ceiling over the lamp. He is not an expert in the design of lamps or lighting fixtures. Moreover, he testified that because he could not be sure of exactly what combustible material, or how much, came into contact with or hung too near the halogen bulb, he could not state whether the presence of a guard or shield of some kind over the bulb would have or would not have prevented the fire.
Mr. Bush testified in this deposition that the lamp did not have a metal guard or shield over the halogen bulb when it was purchased. Plaintiffs produced copies of reports released six months prior to December 1996 by Underwriters Laboratory ("UL") and the Consumer Product Safety Commission ("CPSC") that the halogen bulb used in the torchiere lamps generated excessively high temperatures that posed a fire hazard, and that the risk of fire could be reduced by adding a glass or wire guard over the exposed halogen bulb. Plaintiffs Exhibits P-RJ-5 and 6. Thus, the alternative design suggested was a glass or wire guard mounted over the bulb.
Circumstantial evidence may be sufficient under the facts of the case to establish that a product is unreasonably dangerous, therefore defective, under the LPLA. Jurls v. Ford Motor Co., 752 So.2d 260, 266,rehearing denied, (La.App. 2nd Cir. 2000). Moreover, a plaintiff may not need to detail and quantify the risk and utility of a product where the product or the design feature in question is relatively uncomplicated and is such that a layman could readily grasp them. Lavespere, 910 F.2d at 184.
Defendants apparently argue that because plaintiffs' expert is not an expert in the design of lamps, there is no relevant evidence that a safer alternative design was in existence at the time the lamp left Rei Jean's control, nor any evidence that the risk avoided by "any such designs" outweighed the burden of adopting the designs. In support of their assertion that the design of the halogen lamp is not unreasonably dangerous, defendants offer the statistical information that "only" 436 fires and 35 deaths have been related to the halogen lamps since 1992, and over 40 million such lamps have been sold.
Plaintiffs' have raised a genuine issue as to whether a metal guard or shield over the bulb might have prevented the fire. Whether the defendants knew or should have known of the fire hazard posed by the halogen bulb at the time the lamp in question left their control, or later learned of the hazard, is a question of fact for the jury. Moreover, whether defendants knew or should have known of the alternative design of placing a glass or metal guard or shield over the bulb, and whether that alternative design was available and feasible when the product left their control, are factual questions. Finally, it is ultimately for the jury to decide whether the utility of the halogen lamp outweighed the gravity of the risk of harm posed by the lamp and the feasibility and cost of implementing an alternative design.
FAILURE TO WARN CLAIM
As to liability for failure to warn, the statute provides:
A. A product is unreasonably dangerous because an adequate warning about a product has not been provided if, at the time the product left its manufacturer's control, the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such of such characteristic and its danger to users and handlers of the product.
B. A manufacturer is not required to provide an adequate warning about his product when:
(1) The product is not dangerous to an extent beyond that which would be contemplated by the ordinary user or handier of the product, with the ordinary knowledge common to the community as to the product's characteristics; or
(2) The user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that may cause damage and the danger of such characteristic.
C. 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 manufacturer, 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.
The second page of the GENERAL INSTRUCTIONS which accompanied the lamp, following ASSEMBLY INSTRUCTIONS and BULB REPLACEMENT INSTRUCTIONS, was a section entitled IMPORTANT SAFETY INSTRUCTIONS. The instructions stated (in all capital letters) that they pertained to a risk of fire, electric shock or injury to persons. The safety instructions repeatedly stated that the lighted lamp is hot, the bulb gets hot quickly, the bulb, lens, guard or enclosure should not be touched, and that the lamp should be kept away from materials that may burn and should not. be operated with a missing or damaged guard or shield. There is no statement specifying the distance that the lamp should be kept from combustibles in the safety instructions. However, a warning label on the interior of the concave surface top of the lamp warned that the lamp should not be placed within 2 feet from combustible ceiling surfaces.
Plaintiffs claim that in mid-1996, six months before the fire caused by the lamp, the Consumer Products Safety Commission, the National Retail Federation, and the Underwriters Laboratory all issued news and press releases which detailed and warned of the unreasonable dangers, risks and hazards associated with the normal use of the halogen torchiere lamp, but J.C. Penney did not institute its "Corrective Action Plan" until August 1997, some six months after the fire at the Bush home. J.C. Penney, in its reply memorandum, argues that the danger is obvious to anyone placing a hand next to the fixture while it is illuminated. Moreover, according to J.C. Penney, the warning and "retrofit campaign" was designed by the Consumer Product Safety Commission which did not provide the warning poster and retrofit program information to J.C. Penney until July of 1997, and that the revised U.L. standards for halogen lamps apply only to lamps manufactured after February 5, 1997. J.C. Penney suggests that plaintiffs' should sue the CPSC rather that J.C. Penney since it properly relied on the CPSC for the proper warning and corrective measures.
The floor lamp was about 6 feet tall with the bulb located in the very top, within a bowl shaped enclosure. Any number of individuals may have difficulty reaching the source of the heat, even if one chose to attempt to do so after having been warned that the fixture is hot and should not be touched. There is nothing in the warning given to indicate that the 300 watt halogen bulb generates such extreme or excessive heat beyond that heat commonly associated with an illuminated incandescent light bulb. It is common knowledge that even a regular incandescent light bulb will generate enough heat to burn skin or flesh if the illuminated bulb is touched, or could burn combustibles such as paper left in contact with the bulb, and that curtains or easily combustible material should not be placed too close to a light fixture. Further, an 8 foot ceiling common in post war homes would just barely meet the "safety" distance from the halogen bulb in the top of a 6 foot tall lamp even assuming that one saw and read the warning label inside of the concave shade enclosing the bulb. Whether an ordinary person should reasonably have known that the halogen lamp generated such extreme or excessive heat as to be dangerous beyond the danger posed by an ordinary incandescent bulb, or, given the gravity of the risk of fire, whether the warnings provided by the manufacturer were reasonable, are questions for the finder of fact.
PEREMPTORY EXCEPTION OF PRESCRIPTION
Rei Jean filed a Peremptory Exception of Prescription which the court construed to be a Rule 12(b)(6) motion to dismiss, based on the argument that if J.C. Penney prevailed on its motion for summary judgment and is dismissed from the action, prescription would have run on plaintiffs' claims against Rei Jean prior to their filing suit against Rei Jean. Because J.C. Penney is not dismissed from the action, the motion is moot.
Accordingly, considering the motions, the memoranda of counsel, the law and the evidence, and for the above and foregoing reasons,
IT IS ORDERED that the motion for summary judgment of defendant J.C. Penney be and is hereby DENIED; and,
IT IS FURTHER ORDERED that the motion for summary judgment of defendant Rei Jean Enterprises be and is hereby DENIED; and,
IT IS FURTHER ORDERED that defendant Rei Jean Enterprises' peremptory exception of prescription be and is hereby DISMISSED AS MOOT.