Irene Marie Breaux, Individually, and on Behalf of Her Minor Children, Tabitha Caroline Breaux and Elwood James Breaux, III, Candace Mary Breaux, Brandon Breaux, Ericka Breaux and Jamie Breaux v. the Goodyear Tire & Rubber Company, John Doe, and Nathan C.

• Court: Louisiana Court of Appeal
• Decided: May 12, 2021
• Docket: 2020-CA-0477
• Status: Published

Opinion

IRENE MARIE BREAUX, * NO. 2020-CA-0477 INDIVIDUALLY, AND ON BEHALF OF HER MINOR * CHILDREN, TABITHA COURT OF APPEAL CAROLINE BREAUX AND * ELWOOD JAMES BREAUX, FOURTH CIRCUIT III, CANDACE MARY * BREAUX, BRANDON STATE OF LOUISIANA BREAUX, ERICKA BREAUX ******* AND JAMIE BREAUX

VERSUS

THE GOODYEAR TIRE & RUBBER COMPANY, JOHN DOE, AND NATHAN C.

APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 61-964, DIVISION “B” Honorable Michael D. Clement, Judge ****** JAMES F. MCKAY III CHIEF JUDGE ****** (Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Dale N. Atkins)

S. DANIEL MEEKS KRISTEN E. MEEKS MEEKS & ASSOCIATES, LLC 3401 West Esplanade Avenue South, Suite 3 Metairie, Louisiana 70002 -and- BRUCE R. KASTER SKIP L. LYNCH KASTER, LYNCH, FARRAR & BALL, LLP 125 N.E. First Avenue, Suite 3 Ocala, Florida 344070 COUNSEL FOR PLAINTIFFS/APPELLEES MARTIN A. STERN SARA C. VALENTINE ALEXANDRA ROSELLI LAMB ADAMS & REESE, LLP 701 Poydras Avenue, Suite 4500 New Orleans, Louisiana 70139 -and- CHARLES L. CHASSAIGNAC, IV EMILY MORRISON PORTEOUS, HAINKEL & JOHNSON, LLP 343 Third Street, Suite 202 Baton Rouge, Louisiana 70801 -and- DAVID R. TIPPETS (pro hac vice) THAD K. JENKS (pro hac vice) WEINSTEIN TIPPETS & LITTLE, LLP 7500 San Filpe Street, Suite 500 Houston, Texas 77063 COUNSEL FOR DEFENDANT/APPELLANT

JAMES D. HOLLIER JASON T. REED 1001 W. Pinhook Road, Suite 200 Lafayette, Louisiana 70503 COUNSEL FOR THE PLAQUEMINES PARISH GOVERNMENT/INTERVENOR

AFFIRMED

MAY 12, 2021 JFM DLD DNA On February 5, 2014, Elwood Breaux, Jr., an employee of the Plaquemines

Parish Government (PPG), who worked as an automated garbage truck driver at

Solid Waste North, sustained fatal injuries during the course and scope of his

employment when he and a co-worker were putting air into a Goodyear G182 RSD

tire when a zipper rupture1 caused the tire to explode.

Mr. Breaux’s surviving spouse, Irene Marie Breaux, individually and on

behalf of her minor children, Tabitha Caroline Breaux and Elwood James Breaux,

III, Candace Mary Breaux, Brandon Breaux, Ericka Breaux, and James Breaux

filed a wrongful death/survival action against the Goodyear Tire and Rubber

Company, as the manufacturer of the tire, pursuant to the Louisiana Products

Liability Act (LPLA). The Breauxs alleged design defect, manufacturing defect,

and failure to warn the PPG of zipper ruptures. Pursuant to La. C.C. art. 2320, et

seq., their claim was also based on the negligence and fault of Luther Harris and

Nathan Carter, who were employed at the Goodyear Auto Service Center in

1 A zipper rupture is a circumferential tear of all the components in the sidewall or shoulder area of a radial ply medium or light truck tire. The failure is accompanied by an instantaneous release of stored energy with explosive force analogous to being hit by a truck.

1 Gretna, Louisiana and who delivered the tire to Solid Waste North. The PPG

intervened, seeking reimbursement out of the proceeds from any judgment

rendered or settlement entered into in favor of the Breauxs, plus any applicable

statutory credit, in accordance with the provisions of La. R.S. 23:1102, et seq.

A bench trial took place from January 14, 2019 through January 25, 2019.

At trial, the Breauxs presented the testimony of: David Southwell, a tire analyst

who provided his analysis and opinions on their manufacturing defect claim; Lila

Laux, Ph.D., an expert in warnings and human factors, who provided her analysis

and opinions on their failure to warn claim; and Dennis Boudreaux, Ph.D., an

expert economist. Goodyear retained three experts to dispute the claims asserted

by the plaintiffs. John Glennon testified on the standards of care regarding

maintenance of tires. James Nespo, a retired Goodyear employee, testified as a tire

expert, and Robert Zimek provided opinions on the PPG’s work standards.

Goodyear also called two rebuttal experts. Kevin Legge, who was also offered as

Goodyear’s corporate representative, was called to rebut the opinions of Mr.

Southwall and Nathan Dorris, Ph.D., was called to rebut the opinions of Dr. Laux.

At the end of trial, the trial court took the matter under advisement and

ultimately returned a verdict finding Goodyear liable for causing the fatal accident.

The trial court also found that the PPG was not liable for the death of Mr. Breaux

and it awarded the PPG the entirety of its lien.2

2 At the conclusion of trial, the plaintiffs and intervenor asked the trial court to refrain from awarding a Moody Credit percentage in the final judgment, and advised the court that the parties would work out an agreement following the trial court’s rendering a judgment. See Moody v. Arabie, 498 So2d 1081 (La. 1986).

2 The trial court made the following awards: $1,533,935.93 to Elwood James

Breaux, Jr. ($400,000.00 for conscious mental and physical pain and suffering

prior to death, $357,065.84 for past medical expense, $2,268.10 for temporary total

disability benefits, $121,71.28 for fatality and funeral benefits, and $652,860.71

for lost wages); $1,500,000.00 to Irene Breaux ($500,000.00 for loss of love and

affection, and $1,000,000.00 for past and future mental anguish, grief, and

anxiety); $300,000.00 to Ericka Breaux ($150,000.00 for loss of love and

affection, and $150,000.00 for past and future mental anguish, grief and anxiety);

$300,000.00 to James Breaux ($150,000.00 for loss of love and affection, and

$150,000.00 for past and future mental anguish, grief, and anxiety); $750,000.00 to

Candace Breaux ($150,000.00 for loss of love and affection, $150,000.00 for

guidance and nurture, and $450,000.00 for past and future mental anguish, grief,

and anxiety); $750,000.00 to Brandon Breaux ($150,000.00 for loss of love and

affection, $150,000.00 for loss of guidance and nurture, and $450,000.00 for past

and future mental anguish, grief, and anxiety); $800,000.00 to E.J. Breaux

($200,000.00 for loss of love and affection, $200,000.00 for loss of guidance and

nurture, and $400,000.00 for past and future mental anguish, grief, and anxiety);

and $800,000.00 to Tabitha Breaux ($200,000 for loss of love and affection,

$200,000.00 for loss of guidance and nurture, and $400,000.00 for past and future

mental anguish, grief, and anxiety). This amounted to a grand total of

$6,733,935.93 awarded to the plaintiffs. The trial court also awarded the

intervenor, the PPG, $481,074.22 to be deducted from the gross total.

3 It is from the above described judgment that Goodyear now appeals. The

Breauxs have answered the appeal and seek an increase in the award of damages

for their survival action.3

On appeal, Goodyear raises the following assignments of error: 1) “The trial

court committed legal error by failing to apply the correct law to determine

whether the PPG was a sophisticated user. Applying the correct law de novo (or,

alternatively, under any standard of review), the PPG is a sophisticated user and,

under the LPLA, Goodyear cannot be liable for failure to warn;” 2) “The trial court

committed legal error by failing to consider causation. Applying this law de novo

(or, alternatively, under any standard of review), Plaintiffs failed to prove the

warning sought would have prevented their injuries;” 3) “The trial court committed

legal error by failing to consider the comparative fault of the PPG as required by

La. Civ. Code art. 2323. Considering the fault of the PPG de novo (or,

alternatively, under any standard of review), the PPG bears the great majority of

fault;” and 4) “The trial court committed legal error in awarding a double recovery

of damages in two separate ways: first, awarding a double recovery of economic

damages; and, second, awarding duplicative components of general damages. On

purely legal grounds, each requires a reduction of damages. Alternatively, the

awards must be reduced for abuse of discretion.”

In regard to inadequate warnings, La. R.S. 9:2800.57(A) provides that a

product is unreasonably dangerous “because an adequate warning about the

3 PPG is not a party to this appeal.

4 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

characteristic and its danger to users and handlers of the product.” Section B of

La. R.S. 9:2800.57 provides two exceptions under the LPLA where a manufacturer

is not required to provide an adequate warning about its product: (1) when the

hazard is open and obvious; or (2) when the user or handler of the product is a

sophisticated user. In the instant case, Goodyear’s primary defense is not that its

product had an adequate warning but that the PPG was a “sophisticated user.”

Whether an individual is a sophisticated user is ordinarily a question of fact

to be decided by a jury. See Fincher v. Surrette, 365 So.2d 860, 863 (La.App.

1978). A trial court’s factual findings will not be disturbed unless the record

establishes no reasonable, factual basis for the findings and that they are clearly

wrong or manifestly erroneous. Stobart v. State Dep’t Transp. and Dev., 617

So.2d 880 (La. 1993). A sophisticated user is defined as “one who is ‘familiar

with the product,’ or as one who ‘possesses more than a general knowledge of the

product and how it is used.’” Roux v. Toyota Material Handling, U.S.A., Inc., 19-

0075 (La.App. 5 Cir. 10/23/19), 283 So.3d 1068, 1074, reh’g denied (Dec. 3,

2019), writ denied, 19-02052 (La. 5/1/20), 295 So.3d 942, and writ denied, 20-

0030 (La. 5/1/20), 295 So.3d 953 (internal citations omitted).

In Asbestos v. Bordelon, Inc., 96-0525, p. 44 (La.App. 4 Cir. 10/21/98), 726

So.2d 926, 955, this Court determined that a shipyard was not a sophisticated user

5 of manufactured asbestos-containing thermal pipe insulation, where no evidence

was presented to show that the shipyard employees did anything more than

purchase, install, remove and discard large quantities of insulation on a regular

basis, and that the shipyard did not manufacture any insulation of its own, and did

not mine raw materials and construct a final product like the manufacturer.

Similarly, the PPG employees did nothing more than: purchase tires

exclusively from Goodyear pursuant to a state-wide contract; install the tires

purchased from Goodyear; repair some of the tires if needed; possibly send the

tires out if the PPG employees could not do the repairs themselves; and discard the

tires. There was no testimony and/or evidence introduced at trial that would

suggest that Mr. Breaux or other PPG employees were aware of zipper ruptures, or

aware of the possibility that the sidewall of a tire could rupture while the tire was

being inflated. The PPG is a local government entity composed of an array of

roughly 47 different departments; its business is to service the citizens of

Plaquemines Parish, not to repair and perform maintenance of tires. 4 There was no

expert testimony at trial that the danger of zipper ruptures was an open and obvious

danger well known by all local government entities. Applying this Court’s

rationale in Asbestos v. Bordelon. Inc., the PPG is not a sophisticated user.

4 We recognize as a matter of law that PPG is not bound by Occupational Safety and Health Administration (OSHA) regulations. OSHA is a part of the U.S. Department of Labor and provides regulations on protective workplace safety and health standards for most private sector employers and their workers. See OSH Act, 29 C.F.R. § 975.4. Federal OSHA standards and the Occupational Safety and Health Act of 1970 do not apply to state and local government agencies and their employees. The experts retained by both Goodyear and the Breauxs agree with this assessment.

6 In its second assignment of error, Goodyear contends the trial court failed to

consider causation and the plaintiffs failed to prove that the warning sought would

have prevented their injuries. Causation is a question of fact and is subject to the

manifest error standard of review. Green v. K-Mart Corp. 03-2495, p. 3 (La.

5/25/04), 874 So.2d 838, 841. In order to reverse a fact finder’s determination of

fact, an appellate court must review the record in its entirety, and find that a

reasonable factual basis does not exist for the finding of fact, and further determine

that the record establishes that the fact finder is clearly wrong or manifestly

erroneous. Smith v. La. Dept. of Corrections, 93-1305 (La. 2/28/94), 633 So.2d

129, 132.

Dr. Laux provided the trial court with her expert analysis and opinions on

the warnings Goodyear provided to the PPG. She testified that the warnings on

Goodyear’s tire, invoice, and warranty brochure were not adequate because the

warnings would not lead an ordinary person to contemplate the dangers of zipper

failures. Dr. Laux explained that the warnings on the tire, invoice, and in the

warranty brochure provided to the PPG talked about under inflation and

overloading causing injury or property damage, which a user would read to mean

that a tire could fail while it was run in an underinflated or overloaded state. Dr.

Laux also opined that users of the tire would interpret the warning to refer to a

blow-out or tread separation while a tire was in use, not while a tire was being

inflated. It would not put the user on notice that if the user added air to an

underinflated tire, the tire may blow up. To the contrary, “tire failure due to

7 underinflation” would indicate to an average user to inflate the tire to avoid the tire

failure. Therefore, according to Dr. Laux, the PPG employees who read the

warnings on the tire sidewall, back of the invoice, and warranty brochure would

not have concluded that adding air to a tire would be the same as mounting a tire

on a rim, and none of the warnings would adequately inform the PPG of the hazard

of an underinflated tire experiencing a zipper failure and exploding as it was aired

up. Testimony from other witnesses at trial corroborated Dr. Laux’s conclusions.

A plaintiff’s cause in fact burden is assisted by the presumption that when a

manufacturer fails to give adequate warnings or instructions, the user would have

read and heeded such admonitions. See Bloxom v. Bloxom, 512 So.2d 839, 850

(La. 1987). In the instant case, Goodyear failed to produce contrary evidence to

rebut the Breaux’s cause-in-fact presumption. Based upon the evidence produced

at trial, it was reasonable that the trial court determined that Goodyear’s failure to

warn the PPG of the danger of zipper failure was a cause-in-fact of Mr. Breaux’s

death.

In its third assignment of error, Goodyear contends that the trial court erred

in failing to consider the comparative fault of the PPG. However, there is nothing

in the record to indicate that the trial court did not consider the comparative fault of

PPG. A trial court’s findings regarding the allocation of fault amongst parties is

subject to the manifest error standard. Plaia v. Stewart Enterprises, Inc., 14-0159

c/w 14-0746 c/w 15-1176, p. 47-48 (La.App. 4 Cir. 10/26/16), 229 So.3d 480, 511.

Appellate courts are required to give great deference to the trier of fact’s allocation

8 of fault, and it is only after making a determination that the trier of fact’s

apportionment of fault is clearly wrong can an appellate court disturb the trial

court’s finding. Id., 14-0159, pp. 47-48, 229 So.3d at 512.

The trial court heard from both lay and expert witnesses concerning the

relative fault of the parties before finding that Goodyear was 100% at fault. Even

“where the testimony of expert witnesses differs, it is the responsibility of the trier

of fact to determine which evidence is the most credible. Consequently, when

there are two permissible views of the evidence, the factfinder’s choice between

them cannot be manifestly erroneous or clearly wrong.” Marable v. Empire Truck

Sales of Louisiana, LLC, 16-0876, p. 12 (La.App. 4 Cir. 6/23/17), 221 So.3d 880,

891-892. Based on the record before this Court, there is nothing to indicate that

the trial court’s finding was either clearly wrong or manifestly erroneous.

In its fourth and final assignment of error, Goodyear contends that the trial

court erred by awarding a double recovery of economic damages and awarding

duplicative components of general damages.

The assessment of quantum, or the appropriate amount of damages for both

general and special damages, by a trial judge or jury is a factual determination

entitled to great deference on appellate review. McCloskey v. Higman Barge

Lines, Inc., 18-1008, p. 10-11 (La.App. 4 Cir. 4/10/19), 269 So.3d 1173, 1181.

“Because the discretion vested in the trier of fact is so great, and even vast, an

appellate court should rarely disturb an award on review.” Thomas v. Boyd,

51,621, p. 24 (La.App. 2 Cir. 11/15/17), 245 So.3d 308, 325. “An appellate court,

9 in reviewing a jury’s factual conclusions with regard to special damages, must

satisfy a two-step process based on the record as a whole: there must be no

reasonable factual basis for the trial court’s conclusion; and the finding must be

clearly wrong.” Id., at 325-26. “This test requires a reviewing court to do more

than simply review the record for some evidence which supports or controverts the

trial court’s findings. The court must review the entire record to determine

whether the trial court’s finding was clearly wrong or manifestly erroneous.” Id.,

p. 24, 245 So.3d at 325-326. “The issue to be resolved on review for special

damages is not whether the trier of fact was right or wrong, but whether the

factfinder’s conclusion was a reasonable one.” Id., p. 24, 245 So.3d at 326.

During trial, the parties filed two stipulations. The first stipulation was

signed by all parties and stipulated that the PPG paid medical expenses in the

amount of $357,065.84, temporary total disability benefits of $2,268.10, and

fatality and funeral benefits in the amount of $121,741.28. The second stipulation

was signed by the Breauxs and Goodyear regarding the economic damages

sustained by the Breauxs. The stipulation provided that “if called at trial, Denis O.

Boudreaux, Ph.D. would testify that the economic loss to Elwood Breaux, Jr. and

his family as a result of Mr. Breaux’s injury on February 5, 2014, and resulting

death totals, $652,860.71.” In the final judgment, the trial court awarded the

following survival action special damages: $357,065.84 (stipulated) in past

medical expenses; $2,268.10 (stipulated) in temporary total disability benefits;

$121,741.28 (stipulated) in fatality and funeral benefits; and $652,860.71 in lost

10 wages. There is no evidence in the record that any of the survival action special

damages were awarded twice.

Under La. C.C. art. 2315, a tortfeasor must compensate a tort victim for all

of the damages occasioned by his act. In the delictual context, Article 2315

authorizes compensatory damages. McGee v. A C and S, Inc., 05-1036, p. 3 (La.

7/10/06), 933 So.2d 770, 773-74. Compensatory damages are divided into the

broad categories of special damages and general damages. Id., p. 3, 933 So.2d at

774. General damages are those damages which involve mental or physical pain

and suffering, inconvenience, the loss of gratification of intellectual or physical

enjoyment, or other losses of life or life style which cannot really be measured

definitively in terms of money. Id. In Rachal v. Brouillette, 12-794, p. 4 (La.App.

3 Cir. 3/13/13), 111 So.3d 1137, 1143, the Third Circuit rejected the argument that

separate wrongful death awards for “mental anguish, grief, and anxiety” and for

“loss of love and affection” were duplicative. Likewise, in the instant case, we

reject Goodyear’s argument that the trial court awarded a double recovery or

duplicative damages to the Breauxs.

As stated above the Breauxs have answered Goodyear’s appeal. The

Breauxs allege that the $400,000.00 award in survival action damages for Mr.

Breaux’s conscious pain and suffering before he died was inadequate. Only when

an award is below that which a reasonable trier of fact could assess for the

particular injury to the particular plaintiff under the particular circumstances

should the appellate court increase the award. Youn v. Maritime Overseas Corp.,

11 623 So.2d 1257, 1260 (La. 1993). If the reviewing court finds an award to be

abusively low, then the award is increased to the lowest point within the court’s

discretion. Id. In the instant case, there is no indication that the amount awarded

for survival action benefits was abusively low. As such, we find no merit in this

assertion.

For the above and foregoing reasons, we affirm the judgment of the trial

court in its entirety.