Carl Harris HESSE
v.
CHAMP SERVICE LINE.
Court of Appeal of Louisiana, Third Circuit.
*246 Robert C. McCall, Erin M. Alley, Baggett, McCall & Burgess, Lake Charles, LA, Counsel for Plaintiff/Appellant-Carl Harris Hesse.
L. Paul Foreman, Raggio, Cappel, Chozen & Berniard, Lake Charles, LA, Counsel for Defendant/Appellee-Investors-Ryan.
Joe A. Brame, Brame & McCain, Lake Charles, LA, Counsel for Defendant/Appellee-The Goodyear Tire & Rubber Company.
John R. Walker, Law Officеs of Jackson B. Bolinger, Lafayette, LA, Counsel For Defendant/Appellee-G.K.N. Parts, Inc.
Grayson H. Brown, Law Firm of Grayson H. Brown, Baton Rouge, LA, Counsel for Intervenor/Appellee-The Travelers Insurance Company.
(Court composed of HENRY L. YELVERTON, JIMMIE C. PETERS, MARC T. AMY, Judges.)
PETERS, J.
In this рroducts liability and negligence case filed by Carl Harris Hesse,[1] the trial court granted summary judgment in favor of G.K.N. Parts, Inc. (G.K.N.), the alleged seller of a portable work light that allegedly shocked Mr. Hesse, and dismissed Mr. Hesse's suit. Mr. Hesse appeals that judgment.
DISCUSSION OF THE RECORD
Mr. Hesse alleged in his petition that his injuries occurred on August 18, 1990, while he was working as a mechanic for Goodyear Auto Service Center, a Division of *247 Goodyear Tire & Rubber Company, at its Ryan Street location in Lake Charles, Louisiana. The petition stated in pаrt:
[I]n inspecting the underside of a vehicle for possible water pump problems, [Mr. Hesse] got underneath a vehicle for a customer and pulled a portable work light from a retractable reel underneath the vehicle, and hung the portable work light on the side of the engine block, away from the water pump. The petitioner then reached up with his right hand and grabbed the water pump and received, suddenly and without warning, a severe, tremendous electrical shock, resulting immediately in severe personal injuries....
Mr. Hesse named several defendants in his suit, including the alleged manufacturers and/or distributors of the light, among whom G.K.N. was listed. Additionally, the petition alleged, among other things, that the accident was due to the negligence and/or strict liability of the manufacturers and/or distributors in manufacturing and/or distributing a product that was unreasonably dangerous in design; in failing to warn or adequately warn about the dangers of the product and its propensities for electricаl shock; and in manufacturing, advertising, marketing, and selling a product with the knowledge that exposure to and use of the product in a mechanical garage, particularly within the zone of eighteen inches above the ground or lower, could cause severe personal injuries.
This suit has a protracted pretrial history, having originally been filed on August 9, 1991. G.K.N. filed the instant motion for summary judgment on April 8, 1999, attaching as an exhibit the affidavit of Tony Buttanshaw, the vice president of G.K.N. In the affidavit, Mr. Buttanshaw bаsically attested that G.K.N. was not a manufacturer but a distributor; that G.K.N. did not manufacture, modify, or evaluate the portable work light at issue; that after an investigation of the records and personnel of G.K.N., he determined that G.K.N. did not know of any defect in the design, manufacture, or assembly of any such light; that if G.K.N. had received such a portable work light, no one would have opened the shipping carton containing the light or removed the light; and that, to his knowledge, no one damaged or mishandlеd any portable work light while it was in the possession of G.K.N.
In his memorandum in opposition to the motion for summary judgment, Mr. Hesse conceded that G.K.N. was not a manufacturer of the light such that the Louisiana Products Liability Act (LPLA), La.R.S. 9:2800.51 et seq., did not apply to determine its liability. Rather, Mr. Hesse asserted that he was relying on theories of negligence and/or strict liability against G.K.N. for selling a product that it knew to be dangerous for use in a commercial garage. Mr. Hesse presented no evidence in opposition to the motion for summary judgment but argued at the hearing on the motion that Mr. Buttanshaw's affidavit was not based on personal knowledge in part and argued that the law-of-the-case doctrine prevented revisiting the motion. Specificаlly, G.K.N. originally filed a motion for summary judgment on March 16, 1993, and a hearing was held on that motion on November 4, 1993. At the hearing on that motion for summary judgment, G.K.N. filed the same affidavit of Mr. Buttanshaw in support of its motion. In a judgment signed on November 12, 1993, the trial court denied thе motion, and the third circuit denied G.K.N.'s writ application on July 6, 1994, finding "no error in the trial court's ruling." Likewise, the supreme court denied writs. See Hesse v. Champ Serv. Line, 94-2091 (La.11/11/94);
At the hearing on the instant motion, the trial court concluded that the law-of-the-case doctrine was inapplicable and that based on the fact that the summary judgment procedure law had changed since G.K.N.'s first motion for summary judgment, the door was opened for rehearing summary judgments, "especially if they haven't been specifically reviewed by the *248 Supreme Court." Additionally, the trial court found problematic that Mr. Hesse had failed to present evidence in opposition to the affidavit of Mr. Buttanshaw. Thus, in a judgment signed on June 14, 1999, the trial court granted G.K.N's motion for summary judgment and dismissed Mr. Hesse's demands against it. The trial court also designated its judgment as a final judgement, and this appeal by Mr. Hesse followed.
OPINION
On appeal, Mr. Hesse first contends that the denial of G.K.N.'s first motion for summary judgment on the issue is the law of the case such that G.K.N. is precluded from reurging the sаme matter at this time. The law-of-the-case doctrine concerns (a) the binding force of trial court rulings during later stages of a trial; (b) the conclusive effects of appellate rulings at the trial on remand; and (c) the rule that, ordinarily, an appellate court will not reconsider its own rulings of law on a subsequent appeal in the same case. Barnett v. Jabusch,
La.Code Civ.P. art. 966 was amended, after G.K.N. filed its first motiоn for summary judgment, by Acts 1996, 1st Ex. Sess., No. 9, § 1, effective May 1, 1996, to provide in part that summary judgment procedure is now favored. Prior jurisprudence had held that the summary judgment was not favored and was to be used only cautiously and sparingly. Hayes v. Autin,
La.Code Civ.P. art. 966 was again amended by Acts 1997, No. 483, § 1, effective July 1, 1997, in part to add Subparagraph (C)(2), which provides:
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elemеnts of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
Because оf the potential for a different outcome due to the amendments to La. Code Civ.P. art. 966 after G.K.N. filed its first motion for summary judgment, we find that application of the law-of-the-case doctrine in this case would be improper. Mr. Hesse cites us tо our decision in Ducote v. City of Alexandria,
Mr. Hesse also contends that the trial court erred in granting G.K.N.'s motion for summary judgment because the affidavit of Mr. Buttanshaw submitted in suppоrt of the motion for summary judgment was not based upon personal knowledge. We note that Mr. Buttanshaw's affidavit essentially attempted to address G.K.N.'s role as distributor only, and not manufacturer; G.K.N.'s knowledge regarding any defect in portable work lights; and G.K.N.'s proper handling of any such lights. Without commenting on the sufficiency of the affidavit in that regard and even assuming it was sufficient to establish that G.K.N. did not know or should not have known the light was defective, the affidavit does not address the theory of liability upon which Mr. Hesse actually relied for relief.
Specifically, Mr. Hesse asserted that he was relying on theories of negligence and/or strict liability against G.K.N. for selling a product that it allegedly knew to be dangerous for use in a commercial garagе. G.K.N. concedes as much in its appellate brief and in its "Supplemental Memorandum in Support of Motion for Summary Judgment and in Rebuttal of Plaintiff's Opposition" wherein it states:
A careful reading of the plaintiff's opposition shows that plaintiff's [sic] do not claim that the light itself was defective. They simply allege that it was not suitable for use in a garage. Thus, by their own admissions, plaintiff's [sic] have failed to allege any violation by defendants of the applicable duty.
However, even in the absеnce of a defect in a product, a retailer of a potentially dangerous product has a duty to warn purchasers of the dangers involved in using the product. American Ins. Co. v. Duo Fast Dixie, Inc.,
In the instant case, the affidavit of Mr. Buttanshaw does not address such factual questions as whether or not the portаble work light was potentially dangerous in the context in which it was used, whether or not G.K.N. had knowledge or should have had knowledge about any such dangers, whether or not G.K.N. gave reasonable warnings about any such dangers or the dangers were set forth in the manufacturer's *250 labels or other product information, and/or whether or not the buyer's knowledge of any such dangers or particular manner of usage of the portable work light negated any duty to warn. Because G.K.N. has failed to prоve that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, see La.Code Civ.P. art. 966(B), we reverse the judgment of the trial court.
DISPOSITION
For the foregoing reasons, we reverse the summary judgment of the trial court and remand for further proceedings consistent with this opinion. We assess costs of this appeal to G.K.N. Parts, Inc.
REVERSED AND REMANDED.
NOTES
Notes
[1] The suit was actually filed by Mr. Hesse and his wife, Gwendolyn, but the appeal was pursued in the name of Mr. Hesse only. For purposes of this appeal, we will refer to Mr. Hesse only as the plaintiff.