Gray v. Cannon

807 So. 2d 924, 1 La.App. 5 Cir. 757, 2002 La. App. LEXIS 48, 2002 WL 54131
CourtLouisiana Court of Appeal
DecidedJanuary 15, 2002
DocketNo. 01-CA-757
StatusPublished
Cited by1 cases

This text of 807 So. 2d 924 (Gray v. Cannon) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gray v. Cannon, 807 So. 2d 924, 1 La.App. 5 Cir. 757, 2002 La. App. LEXIS 48, 2002 WL 54131 (La. Ct. App. 2002).

Opinions

JjCLARENCE E. McMANUS, Judge.

In this matter, we affirm the granting of a summary judgment dismissing Plaintiff-Appellants’ products liability claim against Defendant-Appellee the Kelly-Springfield Tire Company.

[926]*926STATEMENT OF THE CASE

The suit was instituted on December 21, 1998, by Appellants, the Grays, naming as Defendants, among others, Appellee the Kelly-Springfíeld Tire Company, Lucas Tire Co., Inc., # 3, and Willie Parker, wife of/and Mitchell Parker. The suit alleged that Pamela Gray had been involved in an automobile accident on December 21, 1997, when she was driving as a guest in a van owned by the Parkers. The suit also alleged that the accident occurred as a result of a tire blow out, and that the tire in question had been manufactured by Kelly-Springfield and installed by Defendant Lucas Tire.

The specific allegations against Kelly-Springfield are that they are liable to Appellants for manufacturing and/or selling a tire which was unreasonably dangerous in construction or composition as defined in LSA-R.S. 9:2800.55; for manufacturing and/or selling a tire which was unreasonably dangerous in design as defined in LSA-R.S. 9:2800.56; for manufacturing and/or selling a tire which was unreasonably dangerous because an adequate warning about the product was not provided as defined in LSA-R.S. 9:2800.57; and for manufacturing and/or selling a tire which was unreasonably dangerous because of nonconformity to an express warranty as defined in LSA-R.S. 9:2800.58.

Kelly-Springfield at first entered a general denial, then, on February 23, 2000, filed a Motion for Summary Judgment.

[2The motion was heard on May 10, 2000; at the conclusion of the hearing, the trial Judge orally ruled in Kelly-Springfield’s favor. A written judgment was signed on May 16, 2000. The Grays timely sought an appeal, and they now raise the following errors:

1. The Trial Court erred in finding that the Kelly-Springfield Explorer tire did not contain a flaw which contributed to the failure of the tire and in granting the Motion for Summary Judgment without any evidence, whatsoever, of any warnings being presented by the Kelly-Springfield Tire Company;
2. The Trial Court erred in dismissing the litigation with prejudice as to the Kelly-Springfield Tire Company without specifically discussing or ruling on the issue of whether or not The Kelly-Springfield Tire Company was the employer or master of the vendor and installer of the Kelly-Springfield Explorer tire in question.

FACTS

In answers to interrogatories, Pamela Gray alleged that she had been injured as a result of a single vehicle accident that occurred on December 21, 1997, under the following circumstances.

As noted, at the time of the accident, the van was owned by Willie and Mitchell Parker. The tire in question had been installed by Lucas on December 9, 1997, to replace another one that had burst almost immediately after purchase. There is no question that the tire in question had been manufactured by Kelly-Springfield.

By way of depositions and recorded statements, Gray and Mitchell Parker testified that the accident occurred while the parties were on a trip through Texas. Parker stated that he had driven on the tire for several days before they began the trip, that he had had no problems with the tire and that “everything looked fine.” Gray stated that no one had checked the tire’s air pressure at any time during the trip because Parker “had just bought tires.”

Parker had been driving when the accident occurred, and she stated that “everything had been fine” for the “four hours” that passed before the tire actually exploded. Immediately before the accident had occurred, she heard a noise and was forced [927]*927to slow down as she “fought” with the steering wheel. She then heard a “big noise,” the ear “jerked,” and she lost control of the vehicle. The van spun several times, struck what she described as a traffic control device, and flipped over several times.

| ^Regarding the cause of the tire’s failure, the record shows the following. A copy of a letter from Bryant Trenary, P.E., of Hudson International Consultants and Engineers, included Tranary’s opinion that a damaged wheel had allowed a slow leak to occur in the tire. The leak caused the tire to lose air pressure while the van was being driven under highway conditions; the loss of air pressure, in turn, caused the tire to overheat and blow out.

An affidavit executed by Ernest C. Kes-sell, a former employee of Kelly-Springfield Tire Corporation, conveys Kessell’s opinion that the tire failure had been caused by continued operation of the van while the tire was severely under-inflated as the result of a puncture.

Regarding the issue of a master-servant relationship between Lucas and Kelly-Springfield, we note that this issue was raised not by Gray, but by Kelly-Springfield in their Motion for Summary Judgment, which denied any such relationship between Lucas and Kelly-Springfield. Attached to a memorandum in support of the motion is an affidavit executed by Brandon V. Stotsenburg, a general manager of Kelly Brand Sales, that indicates Lucas is an independent authorized dealer, which, though it may sell Kelly-Springfield tires, is not subject to Kelly-Springfield’s control.

Appellants did not amend their pleadings, or submit any exhibits, to provide any facts demonstrating any such relationship. Instead, their subsequent pleadings simply include the allegation that Kelly-Springfield was vicariously liable for Lucas’s sale and installation of the defective tire.

ASSIGNMENT OF ERROR NUMBER 1

As their first assignment of error, the Grays argue that the trial judge was in error to grant the summary judgment when there was no evidence presented that Kelly-Springfield had furnished warnings that an under-inflated tire is likely to explode when it is driven under highway conditions. We agree that summary judgment was appropriate in this matter.

Initially, we note that the Gray’s original petition listed two other theories of recovery — as grounds for relief, the Grays also argued that Kelly-Springfield is liable for La defective product, and that they are liable because the tire’s failure violated an express warranty. The trial judge did not rule on the express warranty claim; the claim based on assertions that the tire was defective was denied by the judge. Because the express warranty claim was not ruled on below, there is no judgment presented for our review. And the claim that the tire was defective is not argued in the Grays’ brief on appeal. Therefore, the appeal is limited to a consideration of whether Kelly-Springfield is liable for a failure to warn. Uniform Rules — Courts of Appeal Rule 1-3.

Because this matter comes to us as a review of a summary judgment, we address the assignments of error pursuant to the following principles.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Taylor v. Rowell, 98-2865, at 3 (La.5/18/99), 736 So.2d 812, 814; Smith v. Our Lady of the Lake Hosp., Inc., 639 So.2d 730, 750-1 (La.1994); Schroeder v. Board of Sup’rs of Louisiana State Uni[928]*928versity, 591 So.2d 342, 345 (La.1991); Brown v. Ackel, 00-287, at 5 (La.App. 5 Cir. 7/25/00), 767 So.2d 827, 830.

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Bluebook (online)
807 So. 2d 924, 1 La.App. 5 Cir. 757, 2002 La. App. LEXIS 48, 2002 WL 54131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-cannon-lactapp-2002.