Coulon v. Wal-Mart Stores, Inc.Coulon v. Wal-Mart Stores, Inc.
Thomas Anzelmo, Metairie, for Defendant/Appellant, Wal-Mart Stores, Inc.
Before: CARTER, C.J., SHORTESS, J., and EDWARD A. de la HOUSSAYE,1 J. Pro Tem.
CARTER, C.J.
This is an appeal from a judgment rendered against appellant, Wal-Mart Stores, Inc. (Wal-Mart), in a personal injury action. The action arises out of a child‘s fall from a bicycle purchased from Wal-Mart. The child sustained injuries when the left pedal fell off while the child was racing on the bicycle.
BACKGROUND
Wal-Mart sold pre-assembled bicycles at its Houma store location. At one time, the pre-assembled bicycles were assembled by Darryl‘s Bicycle Service (DBS). Lucius Hebert was an employee of DBS who had assembled and repaired bicycles at Wal-Mart since 1988. In 1992, Hebert met with Dean Legg, the manager of the Houma Wal-Mart, and discussed having Hebert‘s newly-formed company, Pro Bicycle Services (PBS) take over the assembly and repair work that DBS had been performing at the Houma Wal-Mart. Legg and Hebert reached an agreement that PBS would perform this work. Wal-Mart agreed to pay a fixed dollar amount for each bicycle assembled and an hourly rate for repair work. PBS had its own employees to perform the assembly and repair work, and none of the PBS employees received any benefits from Wal-Mart. The assembly and repair work was performed at the Wal-Mart store in Houma. Once a bicycle was assembled, a Wal-Mart employee would take the bicycle and hang it up on the sales floor rack. Wal-Mart did not disclose to its customers that the bicycles were assembled by PBS or that they were not assembled by Wal-Mart.
FACTUAL AND PROCEDURAL HISTORY
On December 20, 1995, plaintiff, Susan Coulon, purchased a pre-assembled fifteen-speed Roadmaster Ultraterrain bicycle from the Houma Wal-Mart. Mrs. Coulon gave the bicycle to her twelve-year-old son, Grant, as a Christmas present. On February 8, 1996, Grant was racing against some friends on his bicycle when the left pedal fell off the bicycle. As a result, Grant fell off the bicycle and broke his left wrist. He also fractured two of his teeth. Immediately after the accident, Grant was taken to the emergency room at Terrebonne General Medical Center where a splint was placed on his wrist. That same evening, Grant saw a dentist, Dr. David Melancon, who bonded two of Grant‘s teeth. The next day, Grant saw his family doctor, Dr. A. Delmar Walker, who placed his wrist in a cast. Grant also had several follow-up visits with Dr. Melancon for replacement bondings on his teeth. According to Dr. Melancon, Grant will definitely need crowns placed on his teeth when he reaches the age of eighteen or nineteen years old.
Lee and Susan Coulon, individually and on behalf of their minor child, Grant, filed suit against Wal-Mart on February 5, 1997. The petition also named Roadmaster Industries Inc., (Roadmaster) and Brunswick Corporation (Brunswick) as defendants, alleging that these two companies manufactured the bicycle. However, plaintiffs subsequently dismissed Roadmaster and Brunswick from the litigation with prejudice because these two companies did not assemble the bicycle and the defect was created in the assembly process. On December 4, 1997, Wal-Mart filed a motion and order to file a third party demand against Lucius J. Hebert d/b/a Pro Bicycle Service. The trial court allowed the filing of the third party demand “providing it does not upset the [February 5, 1998] trial date.” PBS was not served with the third party demand until December 29, 1997. PBS filed a Motion to Deny Wal-Mart‘s Motion to File Third Party Demand and Motion to Continue Trial Date on January 16, 1998. After a contradictory hearing on February 4, the trial court dismissed the third party demand against PBS with prejudice.2
A bench trial was held on February 5, 1998. After the plaintiffs concluded the presentation of their case, Wal-Mart moved for an involuntary dismissal of the plaintiffs’ case, which motion was denied. At the conclusion of the trial, the trial court ruled in favor of plaintiffs, finding Wal-Mart one hundred percent liable for the injuries sustained by Grant as a result of his fall from the bicycle when the pedal fell off the bicycle. The trial court awarded plaintiffs $19,406.65 for past and future physical and mental pain and suffering, and medical expenses. Wal-Mart appeals the judgment asserting seven assignments of error as follows:
1. The trial court erred in finding Wal-Mart a “professional vendor” for the purposes of tort liability pursuant to the Louisiana Products Liability Act.
2. The trial court erred in finding Wal-Mart liable for plaintiff‘s damages when plaintiff produced no evidence the store had notice of any defects to [sic] the bicycle and plaintiffs all admitted at trial that there were no apparent defects in the bicycle.
3. The trial court erred in not recognizing the independent contractor relationship existing between Mr. Lucius Hebert and Pro-Bicycle Sales [sic], and Wal-Mart at the time of the assembly of this bicycle.
4. The trial court erred in finding Wal-Mart negligent pursuant to the testimony and evidence presented at trial.
5. The trial court erred in its application of Res Ipsa Loquitur.
6. Alternatively, the trial court erred in failing to quantify the percentage of fault attributable to Mr. Lucius Hebert/Pro-Bicycle Service, pursuant to Louisiana Civil Code article 2323 and Keith v. United States Fidelity & Guaranty Company, 96-2075 (La.5/9/97); 694 So.2d 180 and in finding Wal-Mart stores 100% liable for the actions and/or inactions of another party where all of the evidence presented at trial indicated that another party (Mr. Hebert) was responsible for the damages sustained by Grant Coulon.7. The trial court erred in denying Wal-Mart‘s motion for involuntary dismissal.
These assignments of error can be grouped into four issues. Wal-Mart‘s first, second and fourth assignments of error deal with the issue of whether the trial court properly held Wal-Mart liable as a manufacturer under the Louisiana Products Liability Act. The second issue to be resolved pertains to Wal-Mart‘s fifth assignment of error and is whether the plaintiff demonstrated that there was a defect in the construction or composition of the bicycle sufficient to render Wal-Mart liable for Grant‘s accident and injuries. The third issue encompasses Wal-Mart‘s third and sixth assignments of error and can be phrased as whether the trial court was correct in failing to apportion any fault to Hebert and/or PBS. The fourth issue is the propriety of the trial court‘s denial of Wal-Mart‘s motion for involuntary dismissal.
WAL-MART‘S MANUFACTURER STATUS
Wal-Mart contends that it does not meet the definition of a manufacturer under the Louisiana Products Liability Act (LPLA). Instead, Wal-Mart argues it should be held to the standard of a non-manufacturer seller because it hired PBS, an independent contractor, to assemble its bicycles.
Although
We also reject Wal-Mart‘s contention that it cannot be the manufacturer of
Wal-Mart received the subject bicycle unassembled in a box sent by Roadmaster/Brunswick, the manufacturer of the bicycle parts. Wal-Mart either contracted with PBS to assemble or had a Wal-Mart employee assemble this bicycle. Wal-Mart placed the assembled bicycle on the bicycle sales rack inside the store, where it was purchased by Mrs. Coulon. Assuming PBS was the entity which actually assembled the bicycle, Wal-Mart admittedly did not give any notice to its customers, including Mrs. Coulon, that a separate entity assembled the bicycles for sale at the Houma Wal-Mart store. Therefore, we find that Wal-Mart held itself out as a manufacturer of the assembled bicycle, and the trial court properly treated Wal-Mart as a manufacturer under the LPLA.
PROOF OF A DEFECT IN CONSTRUCTION OR COMPOSITION
Pursuant to
A. The 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.
B. A product is unreasonably dangerous if and only if:
(1) The product is unreasonably dangerous in construction or composition as provided in R.S. 9:2800.55;
* * * * * *
C. The characteristic of the product that renders it unreasonably dangerous [in construction or composition] must exist at the time the product left the control of its manufacturer....
D. The claimant has the burden of proving the elements of Subsections A, B and C of this Section.
A product which is unreasonably dangerous in construction or composition is defined as a product which, at the time it left its manufacturer‘s control, deviated in a material way from the manufacturer‘s specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer.
The trial court concluded that the bicycle became unreasonably dangerous in construction or composition as a result of the assembly of that bicycle. We cannot say that this finding is manifestly erroneous. See Reed v. Wal-Mart Stores, Inc., 97-1174, pp.3-5 (La.3/4/98); 708 So.2d 362, 364-65. Hebert testified that his examination of the pedal on the day of trial revealed
APPORTIONMENT OF FAULT TO LUCIUS HEBERT
Wal-Mart contends that Hebert was a party that was also responsible for the subject accident and accordingly, the trial court erred in not quantifying the fault of Hebert. In connection with this contention, Wal-Mart asserts that the trial court erred in refusing to consider Hebert as an independent contractor. Wal-Mart relies on
A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury ... shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person‘s insolvency, ability to pay....
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.
Despite the language of article 2323, plaintiffs argue that the relevant comparison in a products liability case is between the defect and the plaintiff. Because Wal-Mart meets the definition of manufacturer in the LPLA by virtue of its assembly of the bicycle, plaintiffs argue that the trial court properly held Wal-Mart liable for all of the damages proximately caused by the pedal falling off the bicycle. Inherent in this argument is a notion that allowing a manufacturer such as Wal-Mart to have the fault of an entity such as PBS quantified could allow Wal-Mart to escape any liability, despite the express statement in
We need not address whether the trial court was mandated to quantify the fault of Hebert because we find that the record supports the trial court‘s apportionment of one hundred percent liability to Wal-Mart. There was conflicting testimony in the record regarding PBS‘s role in the assembly of the bicycle. Particularly, Hebert testified that the bicycle he inspected did not reflect the workmanship of his employees. Hebert stated that the placement of the gear shifter and brake assembly on the subject bicycle was different
CONCLUSION
For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Wal-Mart.
AFFIRMED.