Rаlph and Katherine Kampen brought this diversity action against American Isuzu Motors (“Isuzu”) under the Louisiana Products Liability Act of 1988, La.Rev.Stat.Ann. §§ 9:2800.51-59 (West 1991)(“LPLA” or “the Act”). The Kampens claimed that Mr. Kampen (“Kampen”) was injured when an Isuzu factory-supplied tire jack collapsed and the car it was supporting crashed down on Kampen’s shoulders.
Isuzu moved for summary judgment on two elements of the Kampens’ products liability claims. First, Isuzu asserted that there was no evidence that the jack was unreasonably dangerous. Second, Isuzu claimed that Kampen’s use of the jack was not a “reasonably anticipated use.” The district court granted summary judgment in Isuzu’s favor, finding that Kampen’s use of the jack was not one that the manufacturer should have “reasonably anticipated,” citing,
inter alia,
our decision in
Lockart v. Kobe Steel Ltd.,
A panel of this Court reversed the district court.
See Kampen v. American Isuzu Motors, Inc.,
Even assuming that Kampen’s placing himself under the ear constituted a “use” of the jack, the panel was “unwilling to hold that, as a matter of law, the manufacturer should not have reasonably expected a user to place part of his or her body beneath a jacked up ear.” Id. The panel also found that the presence of two warnings not to “get beneath the vehicle” (one included in the owner’s manual, the other in the car’s spare-tire compartment) did not, as a matter of law, make Kampen’s use one that should not have been “reasonably anticipated.” See id. at 1199-1201. The panel therefore concluded that the summary judgment evidence “presented] a question for the jury regarding whether Kampen’s use of the jack was reasonably anticipated.” Id. at 1201.
This Court granted
en banc
rehearing.
See
I.
In 1993, the Kampens’ daughter noticed a noise coming from beneath her 1989 Isuzu Impulse. Her father agreed to investigate. Kampen used the car’s factory-provided jack to raise the car’s front end on the driver’s side. Viewing the evidence in the light most favorable to the nonmovant, Kampen jacked *309 up the ear in a manner consistent with the instructions provided in the Owner’s Manual (“manual”) for elevating the car. Kampen’s deposition testimony indicated, however, that he did not read the manual before jacking up the ear. He therefore did not read the warning contained in the manual which instructed the user to “[u]se the jack only when changing tires” and expressly warned “[njever [to] get beneath the car when using the jack.” 1
Suspecting that something was caught behind the front wheel on the driver’s side, Kampen placed his head and shoulders beneath the front of the ear to examine the back of the wheel. The jack collapsed, and the car fell across Kampen’s shoulders, breaking both of his collarbones.
II.
The LPLA provides the “exclusive theories of liability for manufacturers for damage caused by their products” under Louisiana law. La.Rev.Stat.Ann. § 9:2800.52. Section 2800.54 of the LPLA sets forth the basic parameters for a products liability action under the Act:
The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of a 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-
LaRev.StatANN. § 9:2800.54(A).
2
The plain language of the Act shows that a plaintiff, asserting a products liability action against a manufacturer, faces a two-tiered burden: the plaintiff must show that (1) his damages were proximately caused by a characteristic of the product that renders it unreasonably dangerous, and (2) his damages arose from a reasonably anticipated use of the product.
See
LaRev.StatANN. § 9:2800.54(D);
see also Johnson v. Black & Decker U.S., Inc.,
A.
The LPLA defines a reasonably anticipated use as “a use or handling of the product that the product’s manufacturer should reasonably expect of an ordinary person in the same or similar circumstances.” La.Rev.Stat.Ann. § 9:2800.53(7). This objective inquiry requires us to ascertain what uses of its product the manufacturer should have reasonably expected at the time of manufacture.
See Myers v. American Seating Co.,
It is clear that by adopting the reasonably anticipated use standard, the Louisiana Legislature intended to narrow the range of product uses for which a manufacturer would be responsible.
See, e.g., Delphen,
B.
Under the liability scheme set up by the LPLA, then, Kampen’s injuries must have arisen from a reasonably anticipated use of the jack. But that begs the following question: which of Kampen’s actions on the day of his injury should we consider as “use” of the jack? Did Kampen’s “use” of the jack end when he had properly positioned the jack and elevated the car to a suitable height? Did Kampen continue to “use” the jack after that by relying on the jack to hold the car elevated above him while he inspected its underside? Should Kampen’s admitted purpose in jacking the car up (to inspect the car’s underside, or, more precisely, the back of the front wheel) be a factor in assessing how he “used” the jack?
An answer to these questions is crucial in properly assessing whether Kampen’s injuries arose from a reasonably anticipated use of the jack. The panel opinion, as stated above, broadly defined Kampen’s “use” of the jack as simply jacking up the car.
See Kampen,
In this case, the use to which Kampen put the jack did not create a defect that wоuld not have otherwise existed. That is, the fact that he was under the car did not make the failure any more or less likely to occur. The risk that Isuzu was required to take into account in designing, manufacturing and warning about the jack was that the jack would collapse under the weight of the vehicle it was designed to lift.
Kampen,
At the outset, we note that the level of generality at which a plaintiffs “use” of a product is defined will bear directly on whether the plaintiff satisfies the LPLA’s reasonably anticipated use requirement. In this case, if we consider that Kampen’s “use” of the jack includes his jacking up the car and nothing else, then the question of reasonably anticipated use answers itself: a manufacturer quite reasonably anticipates his jack to be used for jacking! On the other hand, if we define Kampen’s “use” by including his behavior subsequent to the physical act of elevating the car (i.e., his crawling under the car), then reasonably anticiрated use becomes a much closer question: manufacturers may or may not reasonably anticipate users of their products to disregard express warnings about the product and thereby place themselves in physical danger.
We agree with the panel majority that the scope of use must be delineated with reference to “the apparent purpose of the reasonably anticipated use requirement,” namely,
... to express the types of product uses and misuses by a consumer that a manufacturer must take into account when he *311 designs a product, drafts instructions for its use and provides warnings about the product’s dangers in order that the product not be unreasonably dangerous.
Kampen,
It is implicit in the panel opinion that the product risks (and, hence, a potential user’s actions) a manufacturer should take into account are only those which involve the possible
physical stresses
placed on the product.
See Kampen,
Certainly lines must be drawn between those actions of a plaintiff which will and will not constitute “use” of a product: we would not say, for example, that the brand of shirt Kampen was wearing when he was crawling under the car should figure into his “use” of the jack. Isuzu was not required to anticipate whether potential users of its jack would be wearing Polo, Izod or J.C. Penney sportswear because those aspects of Kampen’s behavior have nothing to do with the risks contemplated in designing a jack. But whether or not Kampen was going to jack the car up and then crawl under it bears directly on the decisions Isuzu must make in designing a product that is not unreasonably dangerous.
We thus define Kampen’s “use” of the jack at a level of generality that will take into account the risks Isuzu must (or should) have reasonably contemplated when designing the jack and providing warnings for its use. Kampen began using the jack when he elevated the car with it. When Kampen finished jacking the car up, however, his use of the jack did not conclude. Thereafter, Kam-pen used the jack by relying on the jack to hold the car in its elevated position. When Kampen placed himself beneath the car, he was still using the jack: he was relying on the jack to hold the car above his body. There is no requirement in the LPLA that “use” necessarily involve a physical touching of the product. “Handling” does indeed seem to suggest some physical contact with the product, but we observe that “reasonably anticipated use” is defined in terms of a “use or handling” of the product. See La.Rev. Stat.Ann. § 9:2800.53(7)(emphasis added). The disjunctive implies that “use” need not always involve the physical manipulation of the product.
We emphasize that our assessment of what “use” Kampen made of the jack does not depend in any way on his mental state. We are able to determine how Kampen was using the jack by objectively viewing (and making reasonable inferences from) what he actually did and not what he intended to do. It would be nonsensical to make use depend on something as evanescent as the user’s mental state. If Kampen had jacked up the ear, fully intending to crawl under it and inspect its underside, but the jack had collapsed before he could do so, certainly we would not say that Kampen’s “use” was somehow determined by his free-floating intent to do something he had not yet done. In that ease, we would take the facts before us and conclude that Kampen’s use of the jack consisted only in jacking the car up. He didn’t do anything following that.
We add that Louisiana courts of appeal have also defined “use” at this level of generality. For example, in
Delphen v. Depart
*312
ment of Transportation and Development,
... the fact that Robert Delphen rode the bicycle across the Chef Menteur 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.
Id. The court could have defined the plaintiffs use of the bike as simply “riding the bike,” which certainly would have been a reasonably anticipated use of a bicycle. The court did not do so, however.
Similarly, in
Johnson v. Black & Decker U.S., Inc.,
Finally, this Court has itself defined “use” as including some of the plaintiffs negligent conduct. In
Hunter v. Knoll Rig & Equipment Mfg. Co., Ltd.,
... the evidence reflects that the racking board was being used for its intended purpose (racking pipe) and in а manner that a jury could conclude was common.
Id. at 812 (Benavides, J., dissenting). The dissent in Hunter would have found the “overall use of the racking board” to be “routine,” and would have allowed comparative fault principles to account for the decedent’s negligence in racking the pipe. Id. at 813. The majority in Hunter, however, included in its conception of “use” those aspects of the decedent’s behavior that increased the risk of injury associated with the product.
We find that the reasoning in Hunter is consistent with the treatment of this issue by Louisiana appellate courts and conclude that Kampen’s getting under the car to inspect its underside constituted a “use” of the jack.
*313 C.
Given that conception of “use,” we are led to the crucial question: was Kampen’s use of the jack one that Isuzu should have reasonably anticipated? The district court said “no”: relying on Lockart, the court found that a manufacturer should not reasonably anticipate that a user will disregard two explicit warnings and place himself, in direct contravention of those warnings, in a position of obvious peril. In confronting this question, we must therefore address what impact an express warning should have on whether the use of a product is reasonably anticipated.
1.
The meaning of our decision in
Lockart
broods over this case. In
Lockart,
two workers suspended a steel pontoon with chains from the teeth of an excavator’s bucket and got underneath the pontoon to work on it. The chains slipped, and the pontoon fell, killing one man and injuring the other. An instruction in the operator’s manual for the excavator warned, “Never lift a load from the bucket teeth,” and was accompanied by a diagram.
See Lockart,
Lockart
held that the use of the excavator was not reasonably anticipated for two, alternative reasons: (1) because an adequate warning was provided, cautioning against the very conduct the decedents engaged in, and (2) because even if the decedents had no knowledge of that warning, the danger inherent in their use of the excavator should have been obvious.
See Lockart,
Lockart is, at bottom, an obvious danger case. But a close reading of the decision shows that the obviousness of the danger was based in significant part on the warnings provided with the excavator. In unequivocal language, the Lockart court stated:
When a manufacturer expressly warns against using a product in a certain way in clear and direct language accompanied by an easy to understand pietogram, it is expected that an ordinary consumer would not use the product in contravention of the express warning.
Id. at 867 (emphasis added). What has engendered some confusion and has led many to dismiss the block-quoted language as dictum is the sentence which follows: “Here, however, the owners manual and thus the warning probably never reached the ultimate users.” Id. But given its proper context, the block-quoted language is simply not dictum. It is in fact one element in the overall equation demonstrating why the decedents’ conduct was in the face of obvious danger and was thus not a reasonably anticipated use of the excavator.
Language from other parts of Lockart confirms this view. For example, the defendants asserted that, because the decedents’ use was not reasonably anticipated, the court would not have to reach the unreasonably dangerous question (which could have involved, inter alia, analyzing the adequacy and effect of the warning). See id. at 866; see also discussion supra Part II & n. 2. Tellingly, the court responded that
... [i]n this case, however, since we hold that the use was not reasonably anticipated because under the circumstances an adequate warning was provided, our analysis extends to the warnings.
Lockart,
We thus read Lockart as a decision about the relationship between obvious danger and express warnings. Lockart addresses the situation where a manufacturer provides an express warning cautioning against a use of the product for which the product was neither designed nor intended, and where the plaintiff acts in direct contravention of that warning. In that case, the plaintiffs “use” of the product will not be a reasonably anticipated one, unless, as Lockart itself observed, “the plaintiffs had presented evidence that despite the warnings, [the manufacturer] should have been aware that operators were using the [product] in contravention of certain warnings.” Id. at 868.
Our holding on this point does not mean that an adequate warning will always be dispositive of reasonably anticipated use. Such a view would render superfluous the risk/utility balancing test in § 2800.56 of the LPLA, which instructs the court to “consider an adequate warning about a product” in determining whether a product is unreasonably dangerous in design. See La.Rev.Stat. Ann. § 9:2800.56(2). But merely because the LPLA includes an adequate warning as one ingredient in the “unreasonably dangerous design” test does not mean that a court is precluded from considering an adequate warning in relation to other areas of the Act. The LPLA itself requires that, as a threshold for liability, the plaintiffs damages arise from a reasonably anticipated use of the product. What we say here is only that a warning against a product misuse 5 is relevant to assessing what uses of its product a manufacturer reasonably anticipates. When, in the face of such a warning, a plaintiff presents no evidence about whether the manufacturer should have reasonably expected users to disregard the warning, the plaintiff fails to meet the burden imposed on him by the LPLA. 6 See La.Rev.Stat.Ann. *315 § 9:2800.54(D). 7
2.
We recognize that, under Louisiana law, comparative fault principles generally account for a plaintiffs negligent conduct.
See Kampen,
It is true that Kampen’s disregard of the product’s warnings and his exposing himself to obvious danger is the kind of conduct that, ordinarily, would be assigned to the plaintiff as a percentage of fault under the Louisiana system of comparative fault. See La.Civ. Code.Ann. art. 2323 (West 1997). It is equally true, however, that the Louisiana Legislature, in drafting the LPLA, included the following prerequisite to recovery under the Act: “... when such damage arose from a reasonably anticipated use of the prod-uct_” . La.Rev.Stat.ANN. § 9:2800.54(A). That language raises “reasonably anticipated use” — a concept that necessarily includes some aspects of a plaintiffs conduct — to the' *316 level of liability determiner (i.e., if a plaintiff has engaged in conduct which renders his use of the product not reasonably anticipated by the manufacturer, then his recovery is not merely reduced by his percentage of fault— he cannot recover at all).
This view does not, however, write comparative fault out of Louisiana products liability law. A plaintiffs negligent conduct which does not remove his use of the ‘product from the realm of reasonably anticipated uses may nevertheless contribute to cause his injuries. Such negligence will lessen a plaintiffs recovery without barring his right to recover altogether. Suppose, for example, that Kampen had used the jack only to change a tire and the jack had collapsed; the manufacturer had provided no adequate instructions regarding the use of the jack, and the correct manney of use was not obvious; the collapse occurred partly as a result of Kampen’s negligent failure to fit the lifting arm of the jack into a special notch and partly as a result of some unrelated defect in the jack’s composition. In this example, Kampen used the jack to change a tire, but physically manipulated the jack in an improper manner that was not specifically warned against nor obviously dangerous. We submit that this hypothetical negligent use would be “reasonably anticipated”; the manufacturer would be liable and damages apportioned by comparative fault.
- It is also pointed out that Kampen’s placing himself beneath the car did not make the jack any more or less likely to fail. It is urged that when a plaintiff misuses a product (i.e., uses the product in a way not reasonably anticipated by the manufacturer), that misuse should only bar the plaintiffs recovery where the misuse causes the product to fail. In other words, there must be a causal connection between product misuse and product failure.
While that may be an eminently reasonable view of what products liability law should be, it is, however, not what the Louisiana Legislature codified in the LPLA. The threshold requirements for liability under the LPLA do not link product misuse with product failure. Instead, the LPLA requires a link between damages and reasonably anticipated ‘use. The flip side of that requirement is that if damages are linked to a product misuse (i.e., one that is not reasonably anticipated), then those damages are not recoverable under the Act.
Louisiana cases have recognized the necessary causal relationship between product misuse and damages in finding that a product has not been put to a reasonably anticipated use. In
Johnson v. Black & Decker,
the plaintiff argued that his alleged misuse of a saw (operating it without the safety guard) was irrelevant, as his injury would have occurred regardless. The court agreed that this was the correct issue, and asked whether “the deviee[], had [it] beеn left in place, would have more likely than not prevented the
injury.” Johnson,
*317 III.
We have thus far determined that Kampen’s “use” of the jack included not only jacking up the car, but also his crawling under the car to inspect its underside. We have also determined that under the LPLA and the eases interpreting it, when a plaintiff misuses a product, in direct contravention of a warning, his “use” will not be reasonably anticipated unless the plaintiff can show that the manufacturer should have known that product users “were using the [product] in contravention of certain warnings.”
Lockart,
The deposition testimony of Dr. Tom Shelton, the plaintiffs expert, appears in the record. Shelton, a metallurgist, examined the damaged jack, performed “hardness” tests on the steel composing the jack, and compared the jack to other, similar jacks. He testified about the possible forces acting on the jack when it collapsed and opined that the softness of the metal used in the Isuzu jack was a contributing cause of the jack’s failure.
Two exchanges during Shelton’s deposition bear on the “reasonably anticipated use” question:
Q: Is it fair to say that the loading in this case, [sic] you can’t tell me if it occurred during the reasonably anticipated use of the jack?
SHELTON: The use of the jack, as it was being used on the day, is a reasonably anticipated use only because there is a large history of people using it in this manner.
Q: And what manner is that? To lift a vehicle?
SHELTON: To lift a vehicle. Okay. So from that point of view, I would say it’s reasonably anticipated. What the history of the jack is, other than that, I couldn’t tell you.
Q: Is it reasonably anticipated use of a jack to use it to lift something on an unlevel surface?
SHELTON: Yes. It is.
Q: In terms of a reasonably anticipated use of a jack, is it reasonably anticipated to be tinder the vehicle, using the jack as the supporting member of the vehicle ? SHELTON: That’s reasonable to anticipate that someone would do that, yes.
Hi * * * *
Q: .Aid I assume because you have not reviewed the warnings, you are not of the opinion that there is some inadequacy of warnings regarding the vehicle and/or the jack.
SHELTON: I have no statement on warnings.
(Emphasis added). In speculating on what uses of the jack would be reasonably anticipated, Shelton thus opined that it would be “reasonable to anticipate” that someone would rely on the jack to support the vehicle over his or her body. Since this is the only evidence in the summary judgment record bearing on the question, we will confine ourselves to asking whether Shelton’s statement was sufficient to create a genuine fact issue as to reasonably anticipated use and thereby avoid summary judgment.
Shelton testified as a metallurgist, whose area of exрertise “deals with the extraction of metals from their ores, refining them, and preparing them for use and includes processes (as alloying, rolling and heat-rolling) and the study of the structure and properties of metals.” Webster’s Third New International DICTIONARY 1420 (3d ed.1981). Thus, Shelton’s opinion on, for example, the relative strength of the steel used in the jack’s composition would likely create a fact issue for summary judgment purposes. We would even go so far as to say that Shelton could *318 have created a fact issue as to the reasonably foreseeable mechanical uses of the jack (e.g., when he testified that it would be reasonably anticipated for the jack to be placed on uneven surfaces).
Shelton’s testimony, however, as to whether the manufacturer should have reasonably expected users to place themselves under a jacked-up car, is not sufficient to create a genuine issue as to that fact. Notwithstanding Shelton’s qualifications as a metallurgist, he was not qualified to testify as to the habits of users of automobile jacks nor about then-propensities for disregarding explicit warnings. Additionally, Shelton’s testimony is internally inconsistent: ' he asserted initially that he knew nothing of the “history” of the jack’s use beyond its obvious use for lifting a car; only two questions later, he ventured an opinion about exactly such behavioral “history” of the product’s users. Shelton himself admitted to having “no’ statement about warnings,” and so could not have created a genuine issue as to whether jack users were disregarding the warnings at issue. “It goes without saying that such eonclusory, unsupported assertions are insufficient to defeat a motion for summary judgment.”
Marshall v. East Carroll Parish Hospital Service District,
IV.
We thus find that the Kampens have not adduced competent summary judgment evidence showing that Kampen’s use of the jack in contravention оf a warning was nonetheless reasonably anticipated. Consequently, the Kampens have failed to meet the burden imposed on them by La.Rev.Stat.Ann. § 9:2800.54(D), namely, to show that Kam-pen’s damage arose from a reasonably anticipated use of the jack. We therefore AFFIRM the judgment of the district court. 9
AFFIRMED.
BENAVIDES, Circuit Judge, with whom POLITZ, Chief Judge, and JERRY E. SMITH, WIENER, STEWART and ROBERT M. PARKER, Circuit Judges, join in all parts, and DENNIS, Circuit Judge, joins in all parts save Part IIB, dissenting:
The sole en banc issue in this case is whether Mr. Kampen’s use of the original-equipment scissors jack to elevate the Isuzu ear with which the jack was supplied and which the jack was designed to elevate was a “reasonably anticipated use” of the jack under the Louisiana Products Liability Act of 1988, La.Rev.Stat. Ann. §§ 9:2800.51-59 (West 1991) (“LPLA” or “the Act”), in light of the fact that, in contravention of an express warning, he had partially slid underneath the car immediately before the collapse of the jack. The majority holds that Isuzu should not have reasonably anticipated that an individual would use the jack to elevate the car and then slide beneath the vehicle despite a warning to the contrary. Because I conclude that Kampen used the jack in a manner that should have been reasonably expected by its manufacturer, I dissent.
I.
The operative summary judgment facts of this case are straightforward. As the majority notes, Mr. Kampen jacked up the car in a manner fully consistent with the instructions given in the owner’s manual: He placed the automatic transmission in “park,” he blocked the opposite tire, and he placed the upper part of the jack in a special notch intended for that purpose, located between the door opening and the wheel. Suspecting that a foreign object was caught behind the front left wheel, Kampen lay on the ground and slid part-way under the car, thereby placing his head and shoulders under the front of the car, in an effort to examine the back or interior side of the wheel visually. Positioning his body in this manner was contrary to the Isuzu-provided instructions which Kam-pen' had not read. While Kampen was in *319 that position, the jack spontaneously collapsed, causing the car to fall and strike him across the shoulders, breaking both of his collarbones. Kampen never so much as brushed against the underside of the car from the time he completed the jacking process until the jack collapsed.
The Kampens’ expert identified the jack’s “failure mode” as a “shearing of the [metal] teeth which are at the base of the bottom set of legs for the scissors jack” in combination with “the dimensions of the contacting surfaces.” The expert testified that the steel was “soft on this jack, real soft ... about as soft as you can get.”
II.-
A.
The Kampens brought suit against Isuzu under the LPLA, a
sui generis
products Lability law drafted exclusively for Louisiana. Although the LPLA’s drafters drew upon external sources such as the United States Department of Commerce’s Model Uniform Product Liability Act in drafting the LPLA, the “reasonably anticipated use” element and the role that it plays in the LPLA statutory scheme are unique to Louisiana law.
See
John Kennedy,
A Primer on the Louisiana Products Liability Act,
49 La. L.Rev. 565, 569 (1989). “Reasonably anticipated use” is a term of art, which the LPLA defines 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. § g^SOOJS^).
1
As John Kennedy, one of the drafters of the LPLA, has explained, the LPLA’s treatment of use “departs from prior [Louisiana] law but only in one respect[:] ... by substituting ‘reasonably anticipated use’ for ‘normal use.’ ” Kennedy,
Since the enactment of the LPLA, the Louisiana courts have most frequently defined “reasonably anticipated use” in terms of what it is not, contrasting a reasonably anticipated use with one that is merely “conceivable.”
See Myers,
*320 B.
As did the district court, the majority concludes that Kampen’s use of the jack was not reasonably anticipated by Isuzu. Like the panel majority before us, I disagree. None can question that the reasonably anticipated use of the jack was to elevate and keep elevated the very Isuzu Impulse with which the jack was supplied. And none can question that Kampen used the jack to elevate the car and keep it elevated. This use is not merely reasonably anticipated; it is the precise use intended by the manufacturer. Scissors jacks cannot see or hear, so what their users do (other than bumping into them or the cars they have lifted) after using such jacks to elevate and suspend the cars cannot affect the jacks. What the user does during or after that use — whether it be changing a wheel, removing a shy cat from the chassis, rescuing a trapped child, or looking for the source of wheel noise — cannot retrospectively alter the use to which the jack has been put, that is, to elevate the car and keep it elevated, unless what the user does increases what is required of the jack to elevate the ear and keep it elevated.
Kampen’s “keep it elevated” use of the jack continued while he proceeded to slide under the car in order to examine the back or interior side of the left front wheel. Unfortunately, before he could do so, the jack failed in the “keep elevated” facet of its reasonably anticipated use when its metal teeth sheared, allowing the vehicle to fall on Kampen, suddenly and without warning. As this failure was spontaneous and wholly internal to the jack, the vehicle would have dropped when it did even if Kampen had been changing the left front wheel rather than attempting to look behind it. Indeed, the jack would have failed, and the vehicle would have fallen if Kampen had walked away from the car immediately after elevating it with the jack. Logic defies any conelusion other than that the Kampens’ damages arose from Mr. Kampen’s reasonably anticipated use of the jack.
At bottom, this case is just that simple. This can be illustrated by posing the rhetorical question, “How do you use a scissors jack to change a tire?” and by answering it, “You don’t; you use a tire tool 2 and your own two hands to change a tire; you use a scissors jack only to elevate a car and hold it there.” Because there is no property of a scissors jack that lends itself to checking the interior side of a wheel to determine the source of a noise, Kampen could not and thus did not use the jack for that purpose; neither could he have used the jack to change a flat tire because no property of the jack lends itself to that purpose: The jack has no lug wrench and no hubcap removal device. To repeat, only two human hands and one or more tire tools can be “used” to change a wheel. The jack serves merely to facilitate the tire-changing process by elevating and supporting the car during the time it takes to remove and replace the tire.
The fact that Kampen got under the vehicle while it was held aloft by the jack did not somehow transform his use of the jack from a reasonably anticipated use to a use not reasonably anticipated. After all, not every action taken in connection with a product constitutes a “use” of the product. 3 Accordingly, our task in conducting this analysis is to determine what kind of plaintiff conduct should be considered in connection with anticipated use and what kind should not.
Both the language of the LPLA and the cases that have interpreted its “reasonably anticipated use” element suggest that this requirement is aimed principally at the manner in which, or method by which, the claimant operated or handled the product. The Act defines “reasonably anticipated use” in terms of the “use or handling” of a product. La.Rev.Stat. Ann. § 9:2800.53(7). Similarly,
*321
those courts that have construed Louisiana’s reasonably anticipated use element since the Act was adopted have considered the plaintiffs “use” of the product to be his direct interaction with the product.
See Lockart,
When viewed in the light most favorable to the Kampens, the summary judgment evidence shows that the manner in which Mr. Kampen used the jack was one that Isuzu should have reasonably expected. Again, he properly placed the jack; he operated it in an unremarkable manner; and he even blocked the opposite wheel as suggested in the owner’s manual.
5
Isuzu must have anticipated the purpose for which Kampen used the jack — to elevate the very car with which it was provided. Kampen’s getting under the car is not analogous to using a Coke bottle as a hammer, driving a car on water, using perfume to scent a candle,
see
Kennedy,
At most, Kampen placed himself in the “zone of danger” created by the unreasonably dangerous jack. Placing oneself in the zone of danger created by a defective product, however, is altogether different from “using” the product. For example, in
Loc-kart,
the “use” that the court found was not reasonably anticipated was not the action of the plaintiffs in standing underneath the suspended steel pontoon but rather their dangling the pontoon from the teeth of an excavator bucket.
Lockart,
*322
One common thread runs through all the cases in which the Louisiana courts have found that a use of a product was not reasonably anticipated. In every one, the manufacturer would have had to do something else to make the product safe (or, more precisely, not unreasonably dangerous) for the
un
anticipated use,
i.e.,
something that the manufacturer did not have to do to make the product safe for its reasonably anticipated use. For example, in
Myers v. American Seating Co.,
a Louisiana court of appeal held that a manufacturer should not have reasonably anticipated that someone would stand on the rear portion of a folding chair’s seat, causing the chair to jackknife. The court explained: “The evidence shows that, in a reasonably anticipated use, the [folding chair] performed in the manner a folding chair should perform. Only when used in the manner [the plaintiff] used the chair, namely standing on the rear portion of the chan-seat, would the chair jackknife.”
There is no Louisiana case in which a court found that a plaintiffs use was not reasonably anticipated when, as here, there was absolutely no nexus between the plaintiffs conduct and the failure of the product. This understanding of use is consistent with the traditional role of “normal use,” which was linked to the defectiveness of the product under the pre-LPLA law of Louisiana.
See Weber,
It has nevertheless been suggested by the majority that, even though Kampen’s presence under the vehicle did not have anything to do with the jack’s failure, it increased the risk associated with the jack’s failure and therefore should be considered part of the use of the jack. Although it is true that Kampen would not have suffered his precise injuries — conceivably nqne at all — had he not been underneath the vehicle, the plain language of the LPLA does not require that the damagesresulting from the failure of a product in its reasonably anticipated use have been reasonably anticipated; the Act requires only that the damages arise out of a reasonably anticipated use of the product. See LaRev.Stat. Ann. § 9:2800.54(A). Considering the risk of harm (or reasonable anticipation of the risk of harm) as part of the reasonably anticipated use analysis conflates and confuses reasonable anticipation of use with reasonable anticipation of the risk of harm. Although foreseeability of the risk of harm is properly taken into consideration under other elements of the plaintiffs case, such as proximate cause 8 and design defect, 9 it is never relevant to the analysis of reasonably anticipated use.
Assume, for example, that while a plaintiff is transporting collectible books worth thousands of dollars in a recreational vehicle (“RV”), the steering wheel falls off when the RV takes a sharp right turn. As a result, the driver loses control of the vehicle, and it careens off the road. The driver breaks his leg in the impact, but manages to escape before the vehicle catches fire. Unfortunately, however, the books are destroyed in the fire. The manufacturer obviously cannot defend a products liability action for the driver’s personal injuries on the basis that the driver’s damages did not arise out of a reasonably anticipated use of the RV simply because it was being used to transport books rather than to take a pleasure trip. Neither should а separate use analysis be available to the manufacturer when it is sued for the loss of the books. The transport of collectible books may have increased the quantum or changed the kind of damages suffered by the plaintiff, but, for the purposes of the reasonably anticipated use analysis, there is no requirement that the manufacturer have’ reasonably anticipated the type and quantum of the plaintiff’s damages, only that the damages arose out of a reasonably anticipated use of the RV. This does not necessarily mean that our. hypothetical plaintiff will be able to recover for the loss of the books, however, as he may not be able to prove other elements of his case, such as proximate cause. See LaRev.Stat. Ann. § 9:2800.54(A). Again, there is no nexus between the presence of the books in the RV and the failure of the product — like the absence of a nexus between Kampen’s presence under the ear and the failure of the jack, but unlike Myers’s standing on the rear of the seat of the folding chair and its failure. To hold that the RVs use was not reasonably anticipated because the plaintiffs conduct *324 worsened the injuries suffered as a result of the failure of the product during a reasonably anticipated use makes “reasonably anticipated use” do the work of other elements of products liability law.
Moreover, to the extent that Kampen’s subsequent negligent conduct in sliding under the elevated vehicle increased the risk of harm from the jack’s wholly unrelated failure, Louisiana’s system of comparative fault serves to ensure that the manufacturer will not have to bear that percentage of Kam-pen’s dаmages that is attributable to his own negligent conduct, as opposed to the defectiveness of the jack.
See Bell v. Jet Wheel Blast, Div. of Ervin Indus.,
The comparative fault standard allows the price of the product to reflect the cost of its non-negligent use. Hence a comparative fault standard allows the economically efficient amount of the product to be used.
Lewis v. Timco, Inc.,
When a product is unreasonably dangerous in a use that the manufacturer could reasonably anticipate, the fact that the claimant has placed himself in the zone of danger created by that defective product should not serve as a
per se
bar to the claimant’s recovery; at most it should reduce the quantum of his recovery based on the percentage of his comparative fault.
Cf. Terrebonne v. Goodman Mfg. Corp.,
C.
Even assuming, arguendo, that getting under the car was somehow a “use” of the jack, we need not, and therefore I would not, hold that, as a matter of law, the manufacturer should not have reasonably expected a user to place part of his or her body underneath a jacked-up car. Persons changing tires cannot avoid placing their hands and forearms around the tire and thus under the wheel well, not to mention that their hands, arms, and even portions of their torsos, can be expected to be under the car briefly when, for example, the tire changer reaches for lug nuts that have rolled under the vehicle. It stretches credulity to imagine that Isuzu was not aware that hands, feet, arms, and other extremities would often be under a car elevated with its scissors jack, regardless of the goal of the person using the jack. The likelihood that portions of the user’s body will be under the vehicle, however fleetingly, is one of the many reasons why a manufacturer must design and fabricate a jack that will not collapse spontaneously under the weight of the vehicle that it is designed to support.
Affirmative evidence may have been necessary in
Lockart
to inform the jury how an excavator is used because excavators are products that are outside the experience and understanding of the average juror. But jurors do not need an expert to tell them that individuals who use automobile jacks allow parts of their bodies to be under the vehicle, albeit ever so briefly. This is not speculation; it is common sense grounded in virtually universal experience. It is well within the bounds of propriety for us to take judicial notice of the fact that a substantial number of persons who use automobile jacks will place parts of their bodies underneath cars held aloft by jacks.
Cf. United States v. Ho,
It is a flaw of logic to conclude that, just because Kampen may have behaved unreasonably when he slid under the car, the manufacturer should not have reasonably anticipated that someone would do just that. Indeed, the Supreme Court of Louisiana has recognized that it can be reasonably expected that ordinary people will sometimes act without reasonable care..
See Levi v. Southwest La. Elec. Membership Co--op.,
D.
Finally, I turn to the role that Isuzu’s warnings should play in the reasonably anticipated use analysis. In support of its conclusion that Kampen’s use was not reasonably anticipated, the district court relied on two warnings given by Isuzu, one in the owner’s manual and the other on the vehicle’s spare- *326 tire compartment, which cautioned jack users not to “get beneath the vehicle.”
This court in
Lockart
extensively discussed an instruction in the excavator operator’s manual, which counseled against using the excavator to lift anything by the teeth of the excavator’s bucket. In that ease, two experienced workers suspended a steel pontoon from the teeth of the excavator’s bucket with chains and then got underneath the pontoon to work on it.
When a manufacturer expressly warns against using the product in a certain way in clear and direct language accompanied by an easy to understand pietogram, it is expected that an ordinary consumer would not use the product in contravention of the express warning.
Id.
at 867.
11
Ultimately, however, the decision in
Lockart
did not turn on the warning, which the court acknowledged probably never reached the workers. Instead, the court noted that “[e]ven if the warning did not reach the users,” the dangers of dangling a steel pоntoon by a chain from the teeth of an excavator bucket “should have been obvious to the ordinary consumer and certainly to experienced workers.”
Id.
at 868. And, as we indicated in
Hunter v. Knoll Rig Equipment Manufacturing Co.,
this court’s decision in
Lockart
ultimately turned on the obviousness of the danger inherent in stringing a steel pontoon from the teeth of an excavator bucket.
Even more basically, the text and structure of the LPLA make plain that the presence of an adequate warning is not dis-positive of the reasonably anticipated use inquiry. The Act provides that a warning is merely one factor to be considered in conducting the risk-utility balancing test to determine whether a product has an unreasonably dangerous design. La.Rev.Stat. ANN. § 9:2800.56(2).
12
There would be no need to include this provision in the Act if an adequate warning would always dispose of the reasonably anticipated use inquiry, which precedes the design defect analysis.
See Johnson v. Black & Decker,
Moreover, adopting a per se rule that any warned-against use is not reasоnably anticipated would produce harsh and unintended results, allowing a manufacturer to insulate *327 itself from liability for uses of a defective product that are unquestionably reasonably anticipated. Suppose, for example, that Isuzu equipped its cars with tires that consistently fail when the cars are driven faster than 40 miles per hour and that Isuzu provided a conspicuous and plain warning in each owner’s manual that its cars should not be driven faster than 40 miles per hour. Would it follow that driving an Isuzu car at a speed exceeding 40 m.p.h. is not a reasonably anticipated use? Obviously not. Yet the majority provides incentive for the manufacturer to privilege warnings over the safety of the product itself.
The majority has suggested that a warning is not per se dispositive in the sense that the plaintiff can avoid summary judgment by presenting evidence, above and beyond proof of the facts of the accident, that the manufacturer should have reasonably anticipated that the product would be used in contravention of the warning. Presumably, such evidence would take the form of expert testimony. 13 I would hold, instead, that under the LPLA, proof of the presence of a warning or instruction, without more, does not provide a basis for summary judgment in the manufacturer’s favor on the reasonably anticipated use issue when the operative facts of the accident would allow a reasonable jury, in the exercise of its members’ common sense and life experiences, to conclude that the use was reasonably anticipated. For example, suppose that an automobile manufacturer warns that its car should not be driven on wet pavement. To avoid summary judgment when faced with evidence of such a warning, shоuld the plaintiff be required to present affirmative evidence (likely in the form of expert testimony) that a manufacturer should have reasonably anticipated that its car would nevertheless be driven in the rain? The answer should be no. 14 Yet the majority will now require a plaintiff to parade expert witnesses before the jury to state what in many eases will be the obvious. 15
In some cases, the plaintiff discharges his summary judgment burden on the issue of reasonably anticipated use simply by presenting evidence of the facts surrounding the accident. A warning is simply one factor *328 that the jury should take into consideration when resolving the essentially factual question of whether the plaintiffs use of a product was reasonably anticipated. Nothing in the LPLA elevates a warning to a special status that makes it a talisman for resolving the reasonably anticipated use issue. Moreover, I do not believe that Lockarb should be read to absolve the manufacturer of liability when a plaintiff has disregarded a warning. To the extent that Lockart would support a contrary reading, it should be overruled.
In this case, the presence of the warnings not to get under a car that is held up only by a jack did not metaphysically transform Kampen’s otherwise reasonably anticipated use of the jack — to elevate the car and hold it aloft temporarily — into a use that the manufacturer should not have reasonably anticipated. Had Kampen heeded Isuzu’s warning, in all likelihood he would have minimized his damages, but he would not have prevented the collapse of the jack, nor would he necessarily have avoided all the damages that arose from the product’s failure to keep the vehicle aloft, as it was designed to do. Kam-pen discharged his summary judgment burden by presenting evidence that he used the jack to raise the ear and to keep it raised, the very function for which the manufacturer designed, built, and supplied the jack. What Kampen did thereafter, without so much as touching the jack or the ear, is wholly irrelevant — wholly lacking in nexus — to the reasonably anticipated use issue. Consequently, summary judgment in favor of Isuzu on the basis of the reasonably-anticipated-use element constitutes reversible error. Accordingly, I dissent.
Notes
. There was also a set of jacking instructions in the tire storage compartment. Those instructions stated that "[t]he jack is designed for use only when changing wheels,” and admonished the user "[njever [to] get beneath the vehicle when it is supported only by a jack.” The Kam-pens dispute that there was any evidence of these warnings.
. A claimant can prove that a product was unreasonably dangerous in four different ways: (1) in construction or composition; (2) in design; (3) because of an inadequate warning; or, (4) because of nonconformity to an express warranty. La.Rev.Stat.Ann, § 9:2800.54(B).
. The court discussed
Berry v. Commercial Union,
. In a pre-LPLA case.
Hale Farms, Inc. v. American Cyanamid Co.,
. We also note that our holding will not, as the panel majority feared, allow malevolent manufacturers to absolve themselves from liability for uses (or misuses) of their products which the
evidence shows
should have been reasonably anticipated despite a warning to the contrary.
See Kampen,
. As the Restatement recognizes, a warning against specific misuses of a product will not in every case prevent a plaintiff who contravenes that warning from pursuing a claim against the manufacturer:
[instructions and warnings may be ineffective because users of the product may not be adequately reached, may be likely to be inattentive, or may be insufficiently motivated to follow the instructions or heed the warnings. ( ... ) Warnings are not ... a substitute for the provision of a reasonably safe design.
Restatement (Third) of Torts: Products Liability § 2 cmt. 1 (1998). Our decision in this case is not to the contrary: vye simply hold that the Kampens must provide evidence that Isuzu should have known its otherwise adequate warnings were being disregarded by product users in this particular way.
The Texas Supreme Court's recent decision in
Uniroyal Goodrich Tire Company v. Martinez,
No. 95-1159,
Of course, Uniroyal is not controlling on the outcome here, since we interpret the LPLA and not Texas law, and we address the threshold issue under the LPLA of reasonably anticipated use rather than unreasonable dangerousness. See id. at *4-6,-(following Restatement (Second) of Torts, § 402A, and Restatement (Third) of Torts: Products Liability § 2(b)). We nonetheless note the decision because it focuses on the impact of warnings in a products liability case, albeit in a different context. We also observe that while the majority аnd dissenting opinions in Uniroyal disagree over the meaning of comment 1 to § 2 of the Restatement (Third) of Products Liability, both opinions agree that warnings and instructions are relevant to whether an injured plaintiff who disregards a warning can nonetheless maintain an action under a design defect theory.
. Our clarification of
Lockart
could be read to conflict with the Eighth Circuit’s decision in
Chronister v. Bryco Arms,
The court observed that a basic tenet of products liability law, and one followed in Missouri, is that "a manufacturer cannot escape strict liability for a defective product that has. been misused by the plaintiff, if that misuse is reasonably foreseeable.”
Id., citing
63A Am.Jur.2d
Products Liability
§ 967 (1997),
and Nesselrode v. Executive Beechcraft, Inc.,
We first observe that the Chronister court’s conception of the “use” of the gun is similar to our view here. The court did not broadly define the plaintiff’s "use” as merely “firing the gun." Instead, the court implicitly considered "use" to include firing the gun without hearing protection, a "use" which did nothing to make the gun more or less likely to misfire, but which did increase the risk of using the gun. See discussion supra Part II.B.
Second, the
Chronister
court's resolution of the "reasonably anticipated use” issue is not at all contrary to ours. Just as we would, the Eighth Circuit required proof that the defendant knew its product was being misused in a particular way.
Chronister,
. In
Hale Farms, supra
Part II.B & n. 4, the Louisiana Second Circuit addressed whether spraying of herbicide contrary to the label instructions constituted "normal use” of the herbicide (pre-LPLA standard). The court stated at the outset that "normal use" included "reasonably foreseeable
misuse
that is contrary to the manufacturer's instructions.”
Hale Farms,
. We note in closing that we neither approve nor disapprove of Part IV of the panel opinion, which addressed Isuzu's alternative contention that the summary judgment record presented no genuine issues of fact regarding whether the tire jack wаs unreasonably dangerous.
See Kampen,
. I note the obvious but important point that, in the Act, "reasonably” modifies "anticipated,” not "use.” A "use” can be unreasonable yet, at the same time, be "reasonably anticipated” by a manufacturer.
. Typically, such a device is a round steel bar or tube which is bent at approximately 45 degrees near one end and which has a lug wrench on one end and a hubcap wedge on the other.
. Indeed, the drafters of the LPLA, who considered the Model Uniform Product Liability Act ("MULPA") in drafting the LPLA,
see
Kennedy,
. Dictionaries also define “use” primarily in terms of the manner in which or the method by which something is handled or employed. See, e.g., Webster's Ninth New Collegiate Dictionary 1299 (1984) (defining "use” as "the act or practice of employing something ... [;] the fact or state of being used ... [;] a method or manner of employing or applying something ....”) (first set of definitions). In some cases, of course, the purpose for which the product is used is inseparable from the manner of use. Another dictionary combines the concepts of manner and purpose, defining use as “[t]he act of using; the application or employment of something for some purpose.” The American Heritage Dictionary 1331 (2d Coll. Ed.1985). For example, if a consumer uses a soda bottle as a hammer, the purpose for which the product is used (to flatten or nail something) is intertwined with how the product was used (hitting the bottle against a surface).
. Although Isuzu presented some evidence that Kampen usеd the jack on an uneven surface, Kampen’s expert testified that the physical evidence suggested that the base of the jack was "flat or relatively flat” when it collapsed, which is accepted as true for summaty judgment purposes.
.The majority argues that
Johnson v. Black & Decker U.S., Inc.,
. The majority suggests that the relevant link is not between the plaintiff's conduct and the product's failure but between the plaintiff's conduct and the plaintiff's damages. To be sure, the LPLA requires that the plaintiff prove that his "damage arose from a reasonably anticipated use of the product.” La.Rev.Stat. Ann. § 9:2800.54(A). The question of just what conduct of the plaintiff is relevant to the reasonably anticipated use analysis, however, precedes the issue whether a use was reasonably anticipated and, if so, whether the plaintiff's damages arose out of that reasonably anticipated use.
The court of appeal's decision in
Johnson v. Black & Decker,
The plaintiff in
Johnson
argued that, even if his use of the saw after the guard’s removal was not reasonably anticipated, his recovery should not be barred because his injuries would have occurred even had the guard been in place.
Id.
The court accepted this argument on its own terms, although it concluded that the evidence did not support that the damages would have occurred even had the guard been in place.
Id.
at 1366. As the
Johnson
court explained, whether the plaintiff's use of the saw without a guard was reasonably anticipated would be moot if the injury would have occurred even had the guard been left in place.
. A manufacturer is only liable for "damages proximately caused by a characteristic of the product that renders the product unreasonably dangerous...." La.Rev.Stat. Ann. § 9:2800.54(A).
. The LPLA requires the factfinder to balance the likelihood and gravity of harm against the burden of an alternative design. La.Rev.Stat Ann. § 9:2800.56
. The LPLA’s definition of "adequate warning” suggests that the Louisiana legislature did not consider "ordinary” to be synonymous with "reasonable”: unlike the definition of reasonably anticipated use, which refers to an "ordinary person,” see La.Rev.Stat. Ann. § 9:2800.53(7), the definition of “adequate warning” speaks of an “ordinary reasonable user.” See id. § 9:2800.53(9) (emphasis added). It thus appears that the LPLA's drafters did not intend to remove all unreasonable, and hence all negligent, product usage from the scope of reasonably anticipated use, regardless of whether such negligence is defined by reference to an unheeded warning.
. The court in
Lockart
refused to allow the plaintiff to "hoist [the defendant] by its own petard.”
. Louisiana is not alone in this approach. The Supreme Court of Texas recently held that an adequate warning is not
per se
dispositive of a claim that a product is defective in design or construction.
See Uniroyal Goodrich Tire Co. v. Martinez,
No. 95-1159,
. It is safe to assume that, under the majority's holding, expert testimony will be required as a general rule, given the majority's indication that the Kampens’ expert metallurgist "was not qualified to testify as to the habits of users of automobile jacks nor about their propensities for disregarding explicit warnings.” Slip Op. at 328.
. Suppose that the plaintiff is injured while boiling potatoes on a stove that explodes. The plaintiff proves that his use was reasonably anticipated through testimony that he was boiling potatoes on the stove. It is certain beyond peradventure that the plaintiff was using the stove as reasonably anticipated. Assume, however, that the manufacturer has warned that the user of its stove should not peer into a boiling pot to check the progress of the food being prepared and that the plaintiff was looking into the boiling pot when the stove exploded. The manufacturer cannot, by denying that the plaintiff's damages arose out of a reasonably anticipated use, place a burden on the plaintiff to come forward with "affirmative evidence” that the manufacturer should have expected that users, while using the stove to heat food, would peer into boiling pots. This would be absurd. First, the stove’s reasonably anticipated use is to heat the contents of pоts and pans placed on burners. The plaintiff discharges his burden by proving that he was boiling potatoes. His damages arose out of this reasonably anticipated use. That he was peering into the pot of potatoes does not change this fact. To be sure, looking in the pot may have affected the severity of the plaintiff's injuries resulting from the explosion. The defendant may be able to prove that the plaintiff's damages were more severe because his face was scalded with hot water. If the defendant can show that, given the warning, it was negligent to peer into the pot, then the defendant will have to pay only that portion of the plaintiff's injuries not attributable to the plaintiff's negligence. But that does not mean that the plaintiff's injuries did not arise out of a reasonably anticipated use. The defendant should not be able to short-circuit the plaintiff's cause of action solely because he peered into the boiling pot.
.The majority maintains that had Isuzu warned its jack users not to use the jack while changing a tire, such a warning would be legally ineffective, as this use is "unquestionably [a] reasonable” use. Slip Op. at 321 n. 5. This may be the case, but there is every indication in the majority opinion that the plaintiff who uses a defective jack for such a purpose would still be required to offer affirmative evidence that such a use was reasonably anticipated in light of the contrary warning. If the majority would allow a tire-changing plaintiff to reach a jury without such expert testimony, it is by no means clear where it would draw the line between "unquestionably reasonably anticipated” uses that are so obvious that expert testimony is not required and those uses that are not.