70 F.3d 803
Prod.Liab.Rep. (CCH) P 14,435
Ilene Thurman HUNTER, on Behalf of Kathy Michelle HUNTER,
Claude Kenneth Hunter, Jr., Michael Christopher Hunter,
Melissa Ilene Hunter, and Donnovan Blaine Hunter,
Plaintiffs-Appellants-Cross-Appellees,
v.
KNOLL RIG & EQUIPMENT MANUFACTURING CO., LTD., a Subsidiary
of Draco Group of Companies, Ltd., et al.,
Defendants-Appellees-Cross-Appellants.
No. 94-40822.
United States Court of Appeals,
Fifth Circuit.
Nov. 29, 1995.
R. Layne Royer, Allen M. Posey, Jr., Baton Rouge, LA, for appellants.
Ronald E. Raney, Lunn, Irion, Johnson, Salley & Carlisle, Shreveport, LA, for appellees.
S. Price Barker, Cook, Yancey, King & Galloway, Shreveport, LA, for Fidelity & Casualty Co.
Appeals from the United States District Court for the Western District of Louisiana.
Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
In this Louisiana wrongful death products liability action against a manufacturer, and arising out of a drilling rig accident, the principal issue at hand is whether, under the Louisiana Products Liability Act, the claimed unreasonably dangerous product was being used (handled) in a manner that the manufacturer, at the time of manufacture, should reasonably expect (reasonably anticipated use). The Hunters appeal the apportionment by the district court of damages against defendant Knoll Rig & Equipment Manufacturing Co., Ltd. (KREMCO); it cross-appeals, contending that, inter alia, the product (drilling rig racking board) was not being handled in a reasonably anticipated manner at the time of the accident. Because we conclude that, based on this issue, KREMCO was entitled to judgment as a matter of law, we REVERSE and RENDER.
I.
In 1981, KREMCO, a Canadian drilling rig manufacturer, sold one of its rigs to R.L. Long Co.; one component was the racking board in issue. Long modified the rig and racking board to suit customer preferences. Long sold the modified rig, with the racking board, to Hunter's employer, Mosley Well Service, in 1984. Claude Kenneth Hunter was crushed fatally by falling pipes while he worked in August 1990 as a derrickman for Mosley on a drilling operation. Hunter was positioned on the racking board, which was attached, approximately 50 feet above the ground, to the mast of the drilling rig. The mast, often referred to as a "derrick", was raised to a near-vertical position at the drilling site.
The frame of the racking board in issue was rectangular, with one of the shorter sides being partly open; that open end was closest to the derrick. Handrails enclosed the two long sides and the other short side. As hereinafter described, the top ends of drilling pipes are brought into the racking board through the open end. Inside the frame of the racking board is a platform, or "diving board", on which the derrickman stands; it is attached to the middle of the back frame of the racking board and runs parallel to its long sides. On an end-racked racking board, such as the one involved here, there are fingers on each side of, and parallel to, the diving board; they point toward the mast. On the racking board, there were five fingers to the left of the diving board and seven to the right, between which the drilling pipes were to be racked (inserted). As manufactured, the racking board did not have chains or other restraining devices to assist in preventing the pipes from falling across the mast if they began to lean too much in that direction.
The back and side handrails of the KREMCO racking board were modified by another entity subsequent to sale by KREMCO. When the original KREMCO back handrail was raised to the upright position, it jutted up against the side handrails. The back handrail was secured to the side handrails with heavy-duty pins inserted through the "ears" at an angle vertical to the ground. This design was modified by removing the ears and attaching a latch on each end to secure the back handrail. It was these latches that failed, allowing the handrail to come forward and the pipes tied to it to fall across the mast, crushing Hunter.
A derrickman racks stands of pipe, which are about 55-60 feet in length, as they are removed from the drilling hole. When workers on the ground remove the pipe, the derrickman maneuvers the top of the pipe between the racking board fingers, and leans it against the bottom back frame of the racking board. A crew member on the ground positions the bottom end of the pipe at ground level. The pipe is leaned away from the mast in a "positive lean", as is the industry standard, and should be supported by the back frame of the racking board. Leaning the pipe toward the mast, in a "negative lean", is dangerous, because the pipe could fall toward the mast.
On an end-racked racking board, one pipe after another is racked in a row from the back to the front of the racking board. As stated, the derrickman and workers on the ground must ensure that the pipes maintain a positive lean (away from the derrick and toward the back of the racking board). At the time of the accident, Hunter had racked approximately 143 stands of pipe, weighing approximately 110,000 pounds. Due to the large number of pipes that had to be racked, the rig workers were concerned that all of the pipes would not fit into the racking board; accordingly, in an effort to fit more pipes, they did not give them much positive lean. In fact, the pipes were given only about three to four inches of positive lean, whereas normally the lean should be approximately 12 to 20 inches from the vertical, which is somewhere in the neighborhood of one to two degrees.
In racking the pipes, Hunter tied the first pipe in each row to the back handrail of the racking board with a sashcord, and then tied each successive pipe in each row to the previous pipe. As noted, when Hunter began racking the pipes, they were leaned away from the mast (positive lean). However, because the pipes being racked were larger at the top than at the bottom, and because the initial positive lean was not great enough, the pipes leaned less and less toward the back of the racking board as more and more pipes were racked, until the pipes were vertical and then leaning toward the mast.
In industry terms, "the pipes grew"; when this occurs, the workers on the ground should "kick out" the bottom ends of the pipes, so that they do not lean toward the mast (negative lean). Due to his vantage point, the derrickman (Hunter) is the first person who would detect a negative lean; it is his responsibility to notify the workers on the ground that the bottoms of the pipes need to be moved ("kicked out").
Because the pipes were tied to the back handrail, when the pull from the negative lean of the pipes became too great, the latches failed, allowing the back handrail and pipes to fall toward the mast. In the accident, no part of the racking board manufactured by KREMCO failed. Only the latches failed; but, as noted, they had been installed by an entity other than KREMCO.
After this action was filed against KREMCO in 1991 in Louisiana state court under the Louisiana Products Liability Act, LA.REV.STAT.ANN. Sec. 9:2800.51, et seq. (LPLA), KREMCO removed it to district court based on diversity jurisdiction. The parties consented to trial before a magistrate judge; and, following five days of testimony, the jury returned a verdict for the Hunters. It found: (1) the racking board was unreasonably dangerous when it left KREMCO's control; (2) Hunter's death was caused by an unreasonably dangerous characteristic of the racking board during a reasonably anticipated use; (3) Hunter's death was caused also by his negligence; (4) the latches were unreasonably dangerous; (5) Hunter's death was caused also by an unreasonably dangerous characteristic of the latches; (6) Long caused the latches to be unreasonably dangerous; (7) Mosley Well Service did not cause any unreasonably dangerous characteristic of the latches; and (8) Hunter's death was caused also by the negligence of Mosley Well Service employees. The jury assessed fault as follows: KREMCO 30%, Hunter 5%, Long 30%, and Mosley 35%.
Post-verdict, the district court found that Long is insolvent and that the Hunters had not received any compensation from Long. Of the stipulated damages of approximately $1.3 million, the court assessed approximately $652,000 against KREMCO. As it had at the close of the Hunters' case and of all the evidence, KREMCO moved for judgment as a matter of law on, inter alia, whether the accident occurred, as required by LPLA, during a "reasonably anticipated use" of the racking board. The motion was denied.
II.
For this diversity action, the parties do not dispute that Louisiana law controls. Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The threshold issue is whether the manner in which the racking board was used when the accident occurred was "reasonably anticipated" by KREMCO at the time of manufacture.
The LPLA provides that
[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.REV.STAT.ANN. Sec. 9:2800.54(A). Of critical importance here, "reasonably anticipated use" 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.ANN. Sec. 9:2800.53(7) (emphasis added). Accordingly, KREMCO can be liable only if the particular use (negative lean) of the racking board was "reasonably anticipated" by it; and, if it was not, we do not reach whether the racking board was unreasonably dangerous because, for example, it did not have a chain, or chains, across the open end. Lockart v. Kobe Steel Ltd. Const. Mach. Div., 989 F.2d 864, 867 (5th Cir.1993).
In Lockart, a products liability action was filed against the manufacturer of an excavator. Two workers had suspended a pontoon by looping a chain around the teeth of the excavator's bucket, but the chain slipped off the bucket and the pontoon fell, killing one worker and injuring the other. Our court upheld summary judgment, because using the excavator to suspend the pontoon was not "reasonably anticipated" within the meaning of the LPLA. The court rejected the idea that a warning in the operator's manual not to hang objects from the bucket was evidence that the manufacturer had reasonably anticipated that the excavator would be used in that manner.
The fact that there were warnings on the product in Lockart does not distinguish it from the Hunters' case:
Even if the warning did not reach the users, the LPLA speaks of "an ordinary person in [the] same or similar circumstances". These users had many years experience mining and working with heavy machinery, and both had taken company courses in equipment handling in 1986. The dangers of using the bucket to suspend a heavy pontoon should have been obvious to the ordinary consumer and certainly to experienced workers.
Lockart, 989 F.2d at 868 (footnote omitted). This was consistent with the dictates of the LPLA:
A manufacturer is not required to provide an adequate warning about his product when: ... 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.
LA.REV.STAT.ANN. Sec. 9:2800.57(B)(2); see, e.g., Morgan v. Gaylord Container Corp., 30 F.3d 586, 591 (5th Cir.1994).
In noting that the LPLA standard for reasonably anticipated use (defined in the previously quoted Sec. 9:2800.53(7)) is more stringent than the pre-LPLA standard, Lockart, 989 F.2d at 867, cited Daigle v. Audi of America, Inc., 598 So.2d 1304, 1307 (La.App. 3d Cir.1992), which recognized that "[t]his definition is narrower in scope than its pre-LPLA counterpart, 'normal use', which included all reasonably foreseeable uses and misuses of the product." As stated in Lockart, "[t]his more restrictive scope of liability was to avoid prior confusion and because virtually any conceivable use is foreseeable". 989 F.2d at 867.
To illustrate the meaning of "reasonably anticipated use", Daigle gives the following examples of what uses a manufacturer should not reasonably expect of an ordinary person:
"Reasonably anticipated use" ... convey[s] the important message that the manufacturer is not responsible for accounting for every conceivable foreseeable use. It is foreseeable that a consumer might use a soft drink bottle for a hammer, might attempt to drive his automobile across water or might pour perfume on a candle to scent it. If he does, however, the manufacturer of the product should not be and under the LPLA is not liable because the uses in the illustrations are not the sort that a manufacturer should reasonably expect of an ordinary consumer.
598 So.2d at 1307 (quoting John Kennedy, A Primer on the Louisiana Products Liability Act, 49 LA.L.REV. 565, 586 (1989)) (Kennedy was a co-drafter of the LPLA.). Similarly, in Myers v. American Seating Co., 637 So.2d 771 (La.App. 1 Cir.1994), the plaintiff was injured when a folding chair jackknifed while she was standing on the rear portion of it. The court denied manufacturer liability:
Although this use may be a conceivable use, it is not a reasonably anticipated use. Most people who use a folding chair as a stepladder utilize the front portion of the seat upon which to stand.... [A]ny danger presented by standing on a folding chair is an obvious danger to a reasonable person.
Myers, 637 So.2d at 779.
Another example is London v. MAC Corp. of America, 44 F.3d 316 (5th Cir.1995), in which a worker fell while standing on the gearbox cover to reach material in a shredder. Pursuant to the LPLA, our court affirmed judgment as a matter of law at the close of the case for the manufacturer because, "although the use of the gearbox cover as a work station may be conceivable, [the manufacturer] could not reasonably anticipate its use in this fashion". 44 F.3d at 319. Finally, Delphen v. Dep't of Transp. & Dev., 657 So.2d 328 (La.App. 4th Cir.1995) concerned, inter alia, a bicycle manufacturer sued under the LPLA when a quick release allowed the front wheel to separate from the bicycle. In reversing a jury verdict against the manufacturer, the court held:
Danger imposed by the wheel would have been obvious to a reasonable person who would recognize that the bicycle was a specialized product for sophisticated users, and the ordinary person should inquire into the proper manner of fastening the quick release mechanism before using the bicycle again. Considering the obvious danger posed by the sophisticated bicycle, the fact that [the plaintiff] rode the bicycle across [a] drawbridge without obtaining additional instructions regarding the bicycle's proper use and knowing that the wheel previously had become loose, was not a reasonably anticipated use of the product.
Delphen, 657 So.2d at 333-34.
Likewise, while it is conceivably foreseeable that rig workers might lean pipes toward the mast so they may fall, at issue is whether, under Sec. 9:2800.53(7), this is the type use that a manufacturer of a racking board "should reasonably expect of an ordinary person in the same or similar circumstances". Restated, the Hunters had the burden of proving that, at the time of manufacture, KREMCO "should [have] reasonably expect[ed] ... [that] an ordinary" user of the racking board would lean the pipes toward the mast as was done the night of the accident. Lockart, 989 F.2d at 869.
The well-known standard for judgment as a matter of law is found in FED.R.CIV.P. 50, as defined more fully by Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) (en banc). See United States Fire Ins. Co. v. Confederate Air Force, 16 F.3d 88, 91 (5th Cir.1994). Rule 50(a)(1) provides:
If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim ... that cannot under the controlling law be maintained ... without a favorable finding on that issue.
And, Boeing, 411 F.2d at 374, states:
If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the [motion] is proper. On the other hand, if there is substantial evidence opposed to the [motion], that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the [motion] should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury.
As stated, at issue is whether the manner in which the pipes were leaned was, to KREMCO at the time of manufacture, a reasonably anticipated ("should [have been] reasonably expect[ed]") use by "an ordinary person in the same or similar circumstances". LA.REV.STAT.ANN. Secs. 9:2800.54(A), .53(7). Based on our review of the record, we conclude that this particular use was not reasonably anticipated.
At the time of manufacture, KREMCO was aware of the possibility of negative lean and the attendant risk. Likewise, Danny Ray (rig operator), Charles Berry (rig operator), and Kenneth Willoughby (derrickhand), testified that there are times when 3 1/2 inch pipe (used at the time of the accident) starts to lean toward the mast if a large number of that type are placed in the racking board. In addition, both Tommy Prince (floorhand and derrickman) and Ray testified that they had seen this type pipe racked with a sashcord tied to the rear handrail to secure the pipe.
But, while it may be common for this type pipe to have a tendency to grow at the top (lean toward the mast), these witnesses testified that the common practice is that, once the pipes do start to lean, the negative lean is corrected. Their testimony indicates that it is not reasonable, but instead is dangerous and against industry practice, to allow a negative lean to subsist.
Contrary to the Hunters' assertion, the evidence does not allow a reasonable juror to find that leaning the pipes toward the mast was a common occurrence. Kenneth Kaigler, who had worked in the field for over 40 years, testified for the Hunters as an expert in the field of rig operations and safety. When asked if he had "ever seen pipe with a negative lean ... in the racking board", he replied: "... [M]aybe a half a dozen times, not very often. It's not a common deal, but I have seen it." In short, a reasonable juror could not conclude from Kaigler's testimony that a negative lean was a common occurrence.
Testimony, in fact, indicates that the lean at the time of the accident was obviously dangerous. Eric Beavers, who was the floorhand on the rig when the accident occurred and was handling the bottom of the pipes, testified that the toolpusher was "raising hell" because the lean of the pipes "was ridiculous". Beavers testified that the toolpusher "ought to have been griping" because the pipes were leaning to the degree that it was dangerous.
The danger of allowing the pipes to lean toward the mast so that they might fall should have been obvious to the ordinary user of racking boards. (This was certainly obvious to the experienced workers at Mosley Well Service. See Lockart, 989 F.2d at 868. As shown by their testimony, the Mosley employees knew that it was dangerous, and certainly not the industry practice, to allow the pipes to have negative lean. Furthermore, as noted, Mosley had had a swarming incident prior to the accident in issue. See Delphen, 657 So.2d at 333-34.) In light of the unreasonable lean toward the mast, the manner in which the racking board was used was not a reasonably anticipated use.
In sum, the LPLA imposes manufacturer liability only if the accident occurred during a reasonably anticipated (manufacturer should have reasonably expected) use, not a reasonably foreseeable use or misuse. Daigle, 598 So.2d at 1307; Lockart, 989 F.2d at 867 (citing Daigle ). There is no evidence that it was reasonably anticipated that the pipes would be racked with such a dangerous lean toward the mast. A reasonable juror could not have arrived at a contrary conclusion. Therefore, judgment as a matter of law for KREMCO was compelled.
III.
For the foregoing reasons, the judgment is REVERSED and judgment is RENDERED in favor of Knoll Rig & Equipment Manufacturing Co., Ltd.
REVERSED and RENDERED.
BENAVIDES, Circuit Judge, dissenting:
The majority reviews the evidence and concludes that the manner in which the racking board was used was not a "reasonable anticipated use." But because there is evidence from which a reasonable jury could conclude otherwise, I am compelled to dissent.
In reviewing a jury verdict, our standard is clear: we must view all of the evidence in favor of the prevailing party. Weighing the conflicting evidence and the inferences to be drawn from it is the province of the jury; its decision must be accepted if the record contains any competent and substantial evidence tending to support the verdict. Gann v. Fruehauf Corp., 52 F.3d 1320, 1326 (5th Cir.1995); Knowlton v. Greenwood Indep. Sch. Dist., 957 F.2d 1172, 1178 (5th Cir.1992). "If there is an evidentiary basis upon which the verdict can be supported, the jury's determinations will be left undisturbed, even where there is substantial contradictory evidence that could have supported an opposite verdict." Gibraltar Sav. v. LDBrinkman Corp., 860 F.2d 1275, 1297 (5th Cir.1988), cert. denied, 490 U.S. 1091, 109 S.Ct. 2432, 104 L.Ed.2d 988 (1989), accord Knowlton, 957 F.2d at 1178. I believe the majority loses sight of this standard.
The majority opinion accurately reflects the events surrounding this drilling rig accident. While acting as derrickman, Hunter was maneuvering pipe into a racking board. The floorhands positioned the pipe at ground level. It is undisputed that the pipes were initially given positive lean, albeit less than desirable. Hunter tied the pipe to the back handrail of the racking board with sashcord which, as the majority notes, is common. As each successive pipe was tied to the previous one, the pipes grew at the top creating a negative lean. The latches on the back handrail failed; the pipes crashed forward; Hunter was killed.
In absolving KREMCO of liability, the majority seizes upon the existence of negative lean and uses it to craft an exclusion from "reasonably anticipated use." In doing so, it usurps the function of the jury and Hunter's right to the jury's decision. In its answer to jury question two, the jury found that Hunter's death was caused by an unreasonably dangerous characteristic of the racking board during a reasonably anticipated use. Given our standard of review, we must uphold this verdict if there exists evidence in the record to support that conclusion, even if there is substantial evidence to the contrary. In this case, there is evidence that both negative lean itself is common and the overall use of the racking board was routine.
At trial, rig operator Danny Ray testified that pipe is always tied to the back handrail. Ray examined a diagram showing negative leaning pipe and testified as follows:
Q: In looking at this diagram, Mr. Ray, in looking at the way this pipe is racked, is this something that is common to you or at least seen by you out there in your work as an oil well service operator?
A: Yes, sir. Just about any time you trip pipe it always--it's tight at the bottom, but as you (sic) collars butt up against one another you're coming out of it, it mushrooms at the top. Kind of flares out. Gets bigger.
On cross examination, in direct response to whether it is common practice to lean pipe toward the mast, Ray testified: "You have to kind of do it the way you--to get the job done, you know? Not all wells are perfect and you just kind of gotta do the job the best you can. If you're tripping 12 or 14 thousand foot of pipe and you can space out the bottom some and it will throw some lean back in it once the pipe starts getting too much on you." Further, on redirect Ray was asked: "You have racked pipe with it leaning towards the mast before, haven't you?" Ray responded, "yes, sir, I have."
In addition to Ray's testimony, rig operator Charles Berry testified that when they started tripping the pipe the workers used three to four inches of positive lean. He confirmed that pipe is always tied to the handrails. He also examined the same exhibit showing negative leaning pipe that Ray described as commonplace and testified that the pipe looked the same way on the day of the accident.
Unquestionably, there is conflicting evidence. Hunter's own expert, Kenneth Kaigler, testified that while he had seen negative leaning pipe it was not common. Likewise there is ample testimony that negative lean could be corrected by "kicking out" the pipe at the bottom. Nonetheless, there remains the testimony of Ray and Berry that a jury could find credible and conclude that the racking board was being used in a manner that was common.
Moreover, the majority's focus on the "tree" of negative lean obscures the "forest" of reasonably anticipated use. The evidence at trial reflects that the pipe was initially being racked with positive lean. It was secured to the back handrail as was common. As the pipe was being racked, it grew larger as expected. As a result, there was negative lean. At this point, the workers negligently failed to correct the lean. This failure, however, does not lead to the conclusion that the overall use of the board was not a reasonably anticipated one. Rather, the workers' failure to correct the lean speaks to their comparative fault. The jury clearly understood this and found both Hunter and his co-workers partially at fault. The workers' negligence should not, however, insulate KREMCO from its own fault. Viewing the entire context of the use of the racking board prior to the accident, a reasonable jury could conclude that it was being used in a manner that was reasonably anticipated by the manufacturer.
Consequently, I am unpersuaded by the analogy the majority draws with other examples where a manufacturer would not be liable under Louisiana law. At issue here is not a foreseeable, yet bizarre, use of a product such as using a soda bottle as a hammer or driving a car across water. Maj. op. at 807. Rather, the evidence reflects that the racking board was being used for its intended purpose (to rack pipe) and in a manner that a jury could conclude was common.
The majority's reliance on Lockart v. Kobe Steel Ltd. Constr. Mach. Div., 989 F.2d 864 (5th Cir.1993), is also unpersuasive because of its procedural posture. In Lockart, two workers lifted a steel pontoon by chaining it to the teeth of the bucket scoop of an excavator. The workers then worked underneath the suspended pontoon. The chain slipped from the teeth dropping the pontoon on the workers. While we found that using an excavator to suspend a pontoon was not a reasonably anticipated use, we did so after conducting our own independent review of the evidence as is our standard for summary judgment review. We held that "in this instance in which the manufacturer provided a clear warning, the product was handled by experienced users, and no hard evidence was offered to rebut these facts, we must affirm the judgment of the district court." Lockart, 989 F.2d at 869. Unlike Lockart, in this controversy we review a jury's verdict and must give deference to that verdict if there is support in the record. This is true even if there is substantial contradictory evidence that could support the opposite. We are not free to review the evidence de novo and draw our own conclusion on reasonably anticipated use.
Viewing the record in the light most favorable to the verdict, I would conclude that there is some evidence that the jury could credit that negative lean itself is common. Moreover, properly viewed in context, the overall use of the racking board was also routine. The jury found that Hunter's death occurred during this reasonably anticipated use of the racking board. I would stay out of the jury box and affirm.