Edwards v. Permobil, Inc. et al

Filing 184

ORDER AND REASONS granting 91 Motion for Summary Judgment; granting 92 Motion for Summary Judgment; granting 94 Motion for Summary Judgment. Signed by Chief Judge Sarah S. Vance on 8/13/13. (jjs, ) (Main Document 184 replaced on 8/13/2013) (jjs, ).

Edwards v. Permobil, Inc. et al

Doc. 184

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DERRICK EDWARDS

CIVIL ACTION

VERSUS

NO: 11-1900

PERMOBIL,INC., ET AL.

SECTION: R

ORDER AND REASONS
Defendants National Seating & Mobility Inc. ("National
Seating"), Columbia Casualty Company ("Columbia Casualty"),
Praxair, Inc. ("Praxair"), and Old Republic Insurance Company
("Old Republic") move for summary judgment.1 For the following
reasons, defendants' motions are GRANTED.2

1

R. Docs. 91, 92, 94.

2

Defendant Permobil Inc. has also filed an opposition to
defendants motions for summary judgment. R. Doc. 109. National
Seating, Columbia Casualty and Praxair have moved to strike
Permobil's opposition because Permobil lacks standing to file an
opposition to its co-defendants' motions. R. Docs. 154, 155, 161.
While some courts have precluded co-defendants without
crossclaims from filing oppositions to a co-defendant's motion
for summary judgment, see, e.g., Dorvin v. 3901 Ridgelake Drive,
LLC, No. 11-00696, 2012 WL 1057599, at *4 (E.D La. Mar. 28, 2012)
(citing cases holding that co-defendants do not have standing to
file oppositions); Thurman v. Wood Group Prod. Servs., Inc., No.
09-4142, 2010 WL 5207587, at *1 (E.D. La. Dec. 14, 2010), others
have considered a co-defendant's opposition. See Helen of Troy,
L.P., 235 F.R.D. 634, 640 (W.D. Tex. 2006). The Court considers
Permobil's opposition, and, as discussed below, finds it
insufficient to defeat defendants' motions for summary judgment.
Accordingly, defendants' motions to strike, R. Docs. 154, 155,
161, are denied.

Dockets.Justia.com

I.

BACKGROUND
In 1989, Derrick Edwards suffered an injury to his spinal

cord and he has been paralyzed from the neck down ever since.3 In
1990, Edwards purchased his first wheelchair.4 Edwards testified
he has had four to five wheelchairs over his life.5 In 2001,
Edwards's chair broke and caused him to fall backwards.6 Edwards
did not sustain serious injuries, and he did not pursue a
lawsuit.7 Following this incident, Edwards was using the Permobil
manufactured Chairman 2K (the "2001 Chair"). Edwards continued to
have problems with the 2001 Chair; specifically, a bolt holding
the chair upright kept slipping.8 When Edwards had the 2001 Chair
repaired, Marcel Farnet, a service technician, contacted Permobil
about how to stop the bolt from sliding. At Permobil's
suggestion, Farnet added a second bolt.9
On April 2, 2007, Edwards purchased a new wheelchair from
Permobil, the C500 (the "2007 Chair").10 Praxair Healthcare

3

R. Doc. 102-2 at 10-12.

4

Id. at 19.

5

Id. at 23-24.

6

Id. at 25.

7

Id. at 27. Edwards voluntarily dismissed his lawsuit.

8

R. Doc. 102-4 at 11-12.

9

Id. at 12.

10

R. Doc. 102-5.
2

Services, Inc. ("PHS"), a subsidiary of Praxair, delivered the
chair to him and set up the chair.11 Praxair performed
maintenance on the 2007 Chair once on January 11, 200812 before
it sold its wheelchair division to National Seating in 2008. From
then on, National Seating repaired Edwards's chair. On July 8,
2010, Edwards suffered the injury that is at the center of this
dispute. He was seated in the 2007 Chair in the back of a van,
when the bolt on the chair broke and he fell backwards.13
Edwards alleges he suffered multiple injuries and sues
multiple defendants. Among others, he sues National Seating and
its insurer Columbia Casualty for negligently maintaining the
2007 Chair. Edwards also sues Praxair, the non-manufacturing
seller of the 2007 Chair and Praxair's insurer, Old Republic. All
four defendants move for summary judgment.

II. STANDARD
A.

SUMMARY JUDGMENT

Summary judgment is warranted when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

11

R. Doc. 94-1 at 2.

12

R. Doc. 94-8 at 2.

13

R. Doc. 98-2 at 31-32.
3

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact exists,
the Court considers “all of the evidence in the record but
refrain[s] from making credibility determinations or weighing the
evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins.
Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable
inferences are drawn in favor of the nonmoving party, but
“unsupported allegations or affidavits setting forth ‘ultimate or
conclusory facts and conclusions of law’ are insufficient to
either support or defeat a motion for summary judgment.” Galindo
v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985)
(quoting 10B Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure: Civil 2d § 2738 (1983)).
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th
Cir. 1991). The nonmoving party can then defeat the motion by
either countering with sufficient evidence of its own, or
“showing that the moving party’s evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party.” Id. at 1265.

4

If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The
burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts
showing that a genuine issue exists. See id. at 324.

The

nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial. Id. at
325; see also Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the
entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden
of proof at trial.’”) (quoting Celotex, 477 U.S. at 332).
B.

DUTY-RISK ANALYSIS

Louisiana courts apply the duty-risk analysis to determine
whether to impose negligence liability. Lemann v. Essen Lane
Daiquiris, Inc., 923 So. 2d 627, 632-33 (La. 2006). Liability
requires satisfaction of five elements:
(1) the defendant had a duty to conform his
conduct to a specific standard (the duty element);
(2) the defendant's conduct failed to conform to
the appropriate standard (the breach element); (3)
the defendant's substandard conduct was a cause in
fact of the plaintiff's injuries (the
5

cause-in-fact element); (4) the defendant's
substandard conduct was a legal cause of the
plaintiff's injuries (the scope of liability or
scope of protection element); and (5) actual
damages (the damages element).
Id. at 633.

III. NATIONAL SEATING'S MOTION FOR SUMMARY JUDGMENT
National Seating became the maintenance and service operator
for Edwards's 2007 Chair in 2008.14 Marcel Farnet and Jerome
Helbach were the National Seating employees responsible for
repairing the 2007 Chair.15 Before National Seating took over
servicing Edwards's chair in 2008, Farnet and Helbach were
responsible for servicing his chair when they were then employed
by Praxair. Edwards alleges that National Seating was negligent
because it did not exercise reasonable care when it repaired and
maintained the 2007 Chair.
A.

NATIONAL SEATING HAD A DUTY TO EXERCISE REASONABLE CARE

As a wheelchair repairer, National Seating must exercise
reasonable care under the circumstances. Campbell v. Otis
Elevator Co., 808 F.2d 429, 434 (5th Cir. 1987); Rowell v. Carter
Mobile Homes, Inc., 482 So. 2d 640, 645 (La. Ct. App. 1984) ("A
repairman owes a duty of reasonable care, inspection and
workmanlike performance of repairs."). National Seating insists
14

R. Doc. 98 at 10; R. Doc. 98-1 at 30.

15

R. Doc. 98-3 at 6; R. Doc. 98-5 at 3-4.
6

that it cannot be liable for Edwards's injuries because it did
not breach its duty.
B.

EDWARDS NEVER HAD PROBLEMS WITH HIS 2007 CHAIR

Plaintiff presents no evidence that Edwards had ever
complained to National Seating that he was experiencing trouble
with the looseness in the back of the 2007 Chair or the bolt
securing it. In fact, Edwards testified that "had no problem with
that particular bolt on this wheelchair before this accident."16
He testified that "[t]here was no notice to [him] that something
was wrong or off with [his] wheelchair before it actually fell"
and that there was "nothing to indicate that there was anything
wrong with the wheelchair or bolt prior to the incident."17 While
Edwards testified that "every time" he got the 2007 Chair
maintained, repaired, or adjusted, he would "always have Marcel
[Farnet] or Jerome [Helbach] check the whole chair, whether the
nuts, the bolts, to make sure everything was secured,"18 there is
no evidence that Farnet or Helbach failed to correct a problem
that Edwards had identified. Accordingly, there is no evidence
that Edwards had a problem with his chair before the accident, no
evidence that he informed the repairmen of any problem, and no
evidence that National Seating failed to exercise due care to

16

R. Doc. 102-2 at 52.

17

Id.

18

Id. at 52-53 (emphasis added).
7

repair his wheelchair. A general request to "check the whole
chair" is too vague to trigger a breach of due care. Plaintiff's
claims against National Seating, therefore, fail.

IV.

PRAXAIR'S MOTION FOR SUMMARY JUDGMENT
Praxair Healthcare Services, Inc., a subsidiary of Praxair,

delivered the 2007 Chair to Edwards. Farnet and Helbach worked
for PHS at the time, and they set up the 2007 Chair for
Edwards.19 Farnet set up the chair and gave Edwards instructions
on how to use it.20 After the initial set up in June 2007, PHS
performed minor repair work once on the 2007 Chair in January
2008.21 In early 2008, Praxair sold its wheelchair division to
National Seating.22 As discussed above, Farnet and Helbach
continued to service Edwards's chair while working for National
Seating.23 Praxair now moves for summary judgment, and argues
that it cannot be liable as a non-manufacturer seller or repairer
of Edwards's chair.24

19

R. Doc. 94-4 at 7, 12.

20

Id. at 12.

21

R. Doc. 94-8.

22

R. Doc. 94-6 at 3.

23

Id.

24

R. Doc. 94-1.
8

A.

PRAXAIR MAY NOT BE LIABLE AS A NON-MANUFACTURER SELLER
FOR FAILING TO WARN EDWARDS OF THE DEFECTIVE BOLT

A non-manufacturer seller, such as Praxair, may be liable
for negligence only "for its negligent failure to warn consumers
of the dangerous propensities of the product it sells." Kelley v.
Price-Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993) (citing
Hopper v. Crown, 555 So. 2d 46, 48 (La. Ct. App. 1989). For
example, Praxair may be held liable if it "knew or should have
known that the product was defective, and [it] failed to declare
it." Id. at 1414 (citing Home Ins. Co. v. Nat'l Tea Co., 577 So.
2d 65, 74 (La. Ct. App. 1990)); Jackson v. Sears Authorized
Retail Dealer Store, 821 So. 2d 590, 593 (La Ct. App. 2002).
Praxair maintains that it may not be held liable for failing
to disclose the defective bolt to Edwards because it had no
control over the type of bolt that was used in the 2007 Chair. On
this point, Praxair's argument is strong; Permobil, not Praxair,
controlled these aspects of the 2007 Chair. Praxair further
maintains that Farnet's and Helbach's experience with the 2001
Chair is irrelevant to Praxair's obligation to warn him of a
defect with the bolt in the 2007 Chair because the 2001 Chair was
"a completely different model wheelchair."25
Plaintiff seeks to impose a duty to warn on a nonmanufacturer seller, not based on experience with the product

25

Id. at 6.
9

sold, but based on experience with a different product
manufactured years earlier that was facially similar to the later
model. Plaintiff cites no authority suggesting that a nonmanufacturer seller must (1) check a new model against a
manufacturer's similar models made years earlier for identities
in engineering, design, and manufacturing materials, (2) assume
that any defects from an old model have gone unfixed, and (3)
warn consumers about potential defects in the new models. Here,
the two models were bought years apart; plaintiff's theory asks
Praxair to do what the law does not require. See Haley v.
Wellington Specialty Ins. Co., 4 So. 3d 307, 314-15 (La. Ct. App.
2009) (affirming summary judgment because defendant, as a nonmanufacturer seller, had no duty to warn of a defect that it did
not know about); Jackson, 821 So. 2d at 591-94 (affirming summary
judgment when there was no evidence that non-manufacturing seller
of defective chair knew or should have known of the potential
design defect, and evidence suggested that the defendant had sold
more than two dozen of the same chairs without incident).
Like Jackson and Haley, there is no evidence suggesting that
Praxair knew or should have known about any defect in the 2007
Chair. All plaintiff has presented is a theory of liability that
imposes a duty of inspection and inquiry not required by existing
law. See Jackson, 821 So. 2d at 593 ("Nor is a non-manufacturing
seller required to inspect the product prior to sale to determine

10

the possibility of inherent vices or defects."). Faced with this
evidence, a jury could not find that Praxair was actually or
constructively aware of a defect in the 2007 Chair and failed to
warn Edwards. Accordingly, plaintiff's failure to warn claim
against Praxair fails as a matter of law.
B.

PRAXAIR MAY NOT BE LIABLE AS A MAINTENANCE AND SERVICE
CONTRACTOR

Helbach and Farnet worked for Praxair when they assembled
the 2007 Chair and performed maintenance on the 2007 Chair only
once on January 11, 2008–over two years before the accident.26 As
with National Seating, Edwards did not ask Praxair to check any
looseness in the back of the 2007 Chair or the bolt securing it.
Edwards testified that he "had no problem with that particular
bolt on this wheelchair before this accident."27 As noted
earlier, he testified that "[t]here was no notice to [him] that
something was wrong or off with [his] wheelchair before it
actually fell" and that there was "nothing to indicate that there
was anything wrong with the wheelchair or bolt prior to the
incident."28 See supra Part III.29 Because there is no evidence

26

R. Doc. 94-8 at 2.

27

R. Doc. 102-2 at 52.

28

Id.

29

Praxair argues that Edwards did not assert a claim
against Praxair based on Praxair's negliglently maintaining the
2007 Chair in his complaint. R. Doc. 132 at 8. Praxair is wrong.
See R. Doc. 40 at 3-4 ("To the extent that the bolt was not
11

that Praxair failed to reasonably repair the 2007 Chair, this
claim is also dismissed.

V.

CONCLUSION
For the reasons stated above, defendants' motions are

GRANTED.

New Orleans, Louisiana, this 13th day of August, 2013.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

properly maintained, PRAXAIR and NATIONAL SEATING are responsible
to EDWARDS for damages resulting from an improperly maintained
bolt on the wheelchair.").
12