Sistrunk et al v. Dake Corporation et al

Filing 93

ORDER AND REASONS granting 55 Motion for Summary Judgment. Accordingly, the Court DISMISSES plaintiffs' claims WITH PREJUDICE.. Signed by Chief Judge Sarah S. Vance on 7/9/15. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES SISTRUNK, ET AL

CIVIL ACTION

VERSUS

NO: 13-2983

DAKE CORPORATION, ET AL

SECTION: R(4)
ORDER AND REASONS

Defendants Dake Corporation and JSJ Corporation move for
summary judgment on plaintiffs James and Susan Sistrunk’s claims
under the Louisiana Products Liability Act.1

Because plaintiffs

fail to show that defendants should have reasonably anticipated Mr.
Sistrunk’s use of the product, the Court GRANTS the motion for
summary judgment.

I. BACKGROUND
This dispute arises out of a workplace accident from which
plaintiff2

James

Sistrunk

sustained

injuries.

The

accident

occurred on January 23, 2012, when plaintiff operated a 150-ton
hydraulic press in the course of his employment with Pellerin
Milnor Corporation.

Plaintiff filed this suit against defendants,

the manufacturer and designer of the press. Plaintiff alleges that
the press was defectively designed and manufactured and that

1

2

R. Doc. 55.

Both James and Susan Sistrunk are plaintiffs in this
case, but the Court refers to James Sistrunk as “plaintiff” in
this Order.

defendants failed to warn under the Louisiana Products Liability
Act.3
A. Procedural History
Defendants filed a motion for summary judgment and a motion to
exclude plaintiff’s expert, Don Hansen.4

Defendants set both

motions for submission on January 14, 2015.

On January 9, 2015,

plaintiff filed a motion to continue the submission date and the
trial date on the basis that counsel needed additional time to file
motions.5

same

day,

plaintiff filed response memoranda to defendants’ motions.6

The

memoranda

in

opposition

to

the

On

the

Court granted plaintiff’s motion to continue on January 12, 2015,
and

extended

the

briefing

schedule

on

the

motions

to

allow

plaintiff until February 11, 2015, to file supplemental memoranda
in opposition.7

The Court also continued the trial date and set

new discovery deadlines.8

Despite the Court’s continuation of the

briefing schedule, plaintiff filed no additional memoranda or
materials in opposition to defendants’ motions.

On June 10, 2015,

out of an abundance of caution, the Court ordered the parties to
submit any supplemental briefing and/or evidence in relation to

3

R. Doc. 1-1.

4

R. Docs. 55, 56.

5

R. Doc. 63.

6

R. Docs. 65, 66.

7

R. Doc. 69.

8

R. Doc. 78.
2

defendants’ motion for summary judgment and motion to exclude.

On

June 24, 2015, plaintiff filed a supplemental memorandum addressing
defendants’ motion to exclude, but offered no additional briefing
or evidence as to the summary judgment motion.
B. Summary Judgment Record
1. The Press
In 1997, Pellerin purchased a 150-ton model 42-403 hydraulic
power

press

manufactured

by

Dake

Corporation.9

Pellerin

manufactures large commercial laundry machines and uses Dake’s
press to assemble and disassemble various component parts.

The

press is a generic hydraulic press that can be used for a number of
purposes.10

It exerts up to 150 tons of compressive force on

objects placed inside of it.

The press features a bed upon which

the object to be pressed is placed.

It also features a powered ram

that travels vertically on two parallel tracks above the bed.
When Dake manufactured the press, it affixed to it a warning
label.11

Relevant

here,

one

of

the

warnings

states:

workpiece to prevent projectiles from reaching operator.
protection.”12

“Guard

Wear eye

The accompanying pictogram depicts a user being

struck by projectiles on the head, torso, and leg.

9

R. Doc. 55, Ex. A at ¶17.

10

R. Doc. 55, Ex. G at ¶18-19.

11

R. Doc. 55, Ex. A at ¶20-21.

12

Id.
3

Dake shipped a product manual for the model 42-403 press with
the press at the time of Pellerin’s initial purchase.13 The product
manual includes an instruction that the safety labels affixed to
the machine are to be kept in good condition and replaced when
missing or damaged and that the owner of the press is to ensure
that employees understand the warning labels.14

The product manual

further instructs: “Guard workplace to prevent projectiles from
reaching operator.

Mount ½" below stop block or at eye level

centered on flange as shown.”15

The instruction is outlined by a

box, which is connected by a line to a diagram of the press to
demonstrate where the guard should be installed.16

According to

Dake, because it does not know the intended use of its generic
presses and because it does not know the size and shape of the
objects that will be placed into its presses, it cannot provide a
uniform, one-size-fits-all guard at the time of manufacture.17
In 1999, Pellerin paid Dake to make certain upgrades to the
press, and Dake converted the press to a model 42-503 press.18 Part
of that process included confirming all warning labels were on the

13

Id. at ¶19; R. Doc. 55, Ex. B at 18:5-12 (Deposition of
Sidney LaCoste).
14

R. Doc. 55, Ex. C at 4.

15

Id. at 5.

16

Id.

17

R. Doc. 55, Ex. G at ¶18-19, Ex. A at ¶14.

18

R. Doc. 55, Ex. A at ¶24.
4

press.19

This modification made the model 42-503 manual applicable

to the press.20

In 2001, in response to an order from Pellerin

requesting a manual for the 42-503 model press, Dake mailed the 42503 model manual to Pellerin as well as a duplicate set of warning
labels.21 The warning labels contained identical guard instructions
as those already described.22

The 42-503 press product manual

contained identical instructions regarding the employer’s duty to
provide a guard against projectiles and the employer’s duty to
ensure that employees understand the warning labels affixed to the
machine.23
2. The Accident
Plaintiff was injured on January 23, 2012, while operating the
press as a Pellerin employee.24

At the time of his injury,

plaintiff was attempting to press a seal sleeve and old bearing off
of a shaft.25

Instead of using the specific tooling Pellerin

manufactures for use with the press, plaintiff used an eight-inch
long piece of scrap metal (the “scrap shaft”) as an extension
between the ram of the press and the piece of metal he intended to
19

Id. at ¶27.

20

Id. at ¶26.

21

Id. at ¶29-30, 35.

22

Id. at ¶36.

23

R. Doc. 55, Ex. C at 4-5; Ex. D at 4-5.

24

R. Doc. 55, Ex. H at 38:15-17 (Deposition of James

Sistrunk).
25

Id. at 58:12-59:2.
5

press.26

The eight-inch scrap shaft was not affixed or attached to

the ram in any way.27

As he started to apply pressure with the

press, plaintiff attempted to secure the eight-inch shaft under the
ram of the press with his left hand, with his right hand operating
the press’s lever.28

Once the ram of the press touched the bearing

and scrap shaft, the scrap shaft shot out of the press, striking
and injuring plaintiff.29
As

stated,

Pellerin

provided

its

employees

with

tooling

devices to be used for the same function for which plaintiff used
the scrap shaft.30

These tooling devices are machined pieces of

tubing designed by Pellerin’s industrial engineering department
specifically to be used with the press.31

These tooling devices

eliminate the need to use anything to extend the ram of the press.32
After the accident, Frank Mamola, plaintiff’s supervisor,
created an accident report.33

In the report, Mamola wrote that

plaintiff “took [it] upon himself to use a non-tooling device to be

26

Id. at 60:12-62:10.

27

Id. at 62:11-15.

28

Id. at 65:4-66:5.

29

Id. at 66:7-15, 70:25-71:11.

30

R. Doc. 55, Ex. F at 95:24-96:19.

31

Id. at 96:1-97:1.

32

Id. at 96:18-19.

33

Id. at 87:17-89:13.
6

used on the 50-ton [sic] Dake hydraulic press.”34 Mamola also noted
that plaintiff’s use of the scrap shaft to extend the ram was
“improper use of the Dake hydraulic press.”35

At the time of the

accident, the approved tooling device was on the floor, next to the
press.36

Dake’s safety coordinator, Brian Phillips, testified that

he has never heard of a consumer using a piece of scrap metal in
its presses to extend the ram as plaintiff did.37
Despite the warning label and product manual instructing users
to guard against projectiles reaching the operator, no safety cage
or guard was installed on the press at the time of the accident.38
In his opposition to defendants’ motion for summary judgment,
plaintiff does not dispute that the press displayed the warnings at
the time of manufacture and at the time of the accident.39

II.

Legal Standard
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."
34

Fed. R. Civ. P.

Id. at 94:10-95:4; Ex. I at 2 (Pellerin’s Accident

Report).
35

R. Doc. 55, Ex. I at 2; Ex. F at 98:23-99:2.

36

R. Doc. 55, Ex. F at 100:9-12; Ex. J at 23:4-9
(Deposition of Timothy Ursin).
37

R. Doc. 55, Ex. A at ¶42.

38

R. Doc. 55, Ex. H at 37:11-17.

39

See R. Docs. 65 (Plaintiff’s Opposition) & 65-1
(Plaintiff’s Statement of Disputed Material Facts).
7

56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
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 refrains
from making credibility determinations or weighing the evidence."
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d
395, 398-399 (5th Cir. 2008).

The Court must draw reasonable

inferences 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 § 2738 (2d ed. 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 that 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)
(quotation marks removed). 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.

8

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.; 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 322).

III. DISCUSSION
The Louisiana Products Liability Act (“LPLA”) “establishes the
exclusive theories of liability for manufacturers for damage caused
by their products.”

La. R.S. 9:2800.52.

Plaintiffs may not rely

on negligence, strict liability, or breach of express warranty as
a viable independent theory of recovery against a manufacturer.
Jefferson v. Lead Indus. Ass’n, Inc., 106 F.3d 1245, 1251 (5th Cir.
1997).

The elements of a products liability claim under the LPLA

9

are “(1) that the defendant is a manufacturer of the product; (2)
that

the

claimant’s

damage

was

proximately

caused

by

a

characteristic of the product; (3) that this characteristic made
the product ‘unreasonably dangerous;’ and (4) that the claimant’s
damage arose from a reasonably anticipated use of the product by
the claimant or someone else.”

Jack v. Alberto-Culver USA, Inc.,

949 So. 2d 1256, 1258 (La. 2007) (citing La. R.S. 9:280054(A)).
“If

a

plaintiff’s

damages

[do]

not

arise

from

a

reasonably

anticipated use of the product, then the ‘unreasonably dangerous’
question need not be reached.”

Kampen v. Am. Isuzu Motors, Inc.,

157 F.3d 306, 309 (5th Cir. 1998).
A. Reasonably Anticipated Use
Defendants

contend

Dake’s

specific

warnings

against

plaintiff’s use of the press without guarding and industry custom
mandating that employers, not manufacturers, supply guarding,
render plaintiff’s use unforeseeable.

As a threshold matter,

plaintiff must show that his injuries arose from a reasonably
anticipated use of the product.

Ellis v. Weasler Eng’g Inc., 258

F.3d 326, 331 (5th Cir. 2001), opinion amended on denial of reh’g,
274 F.3d 881 (5th Cir. 2001).

Under the LPLA, “if a manufacturer

does not reasonably anticipate a plaintiff’s use then he owes no
duty to that consumer, and is not responsible for any damages
caused by misuse.”

Broussard v. Procter & Gamble Co., 463 F. Supp.

2d. 596, 605 (W.D. La. 2006) (citing Kampen, 157 F.3d at 316).

The

LPLA defines “reasonably anticipated use” as “a use or handling of

10

a product that the product’s manufacturer should reasonably expect
of an ordinary person in the same or similar circumstances.”
R.S. 9.2800.53(7).

La.

The relevant inquiry is “what uses of its

product the manufacturer [objectively] should have reasonably
expected at the time of manufacture.”

Kampen, 157 F.3d at 309.

Under the LPLA, “a manufacturer will not be responsible for ‘every
conceivable foreseeable use of a product.’” Id. at 309-10 (quoting
London v. MAC Corp. of America, 44 F.3d 316 (5th Cir. 1995)).
“When a manufacturer expressly warns against using a product
in a certain way in clear and direct language accompanied by an
easy to understand pictogram, it is expected that an ordinary
consumer would not use the product in contravention of the express
warning.”

Kampen, 157 F.3d at 313 (quoting Lockart v. Kobe Steel

Ltd. Const. Mach. Div., 989 F.2d 864, 867 (5th Cir. 1993)).

In

such cases, “the plaintiff’s ‘use’ of the product will not be a
reasonably

anticipated

one,

unless

.

.

.

‘the

plaintiff[]

[presents] evidence that despite the warnings, [the manufacturer]
should have been aware that operators were using the [product] in
contravention of certain warnings.”
989 F.2d at 868).
and

“a

plaintiff

Id. at 314 (quoting Lockart,

If a warning against the use in issue exists,
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.”

Id. at 314-15 (citing La. R.S. 9.2800.54(D)).

the Court’s inquiry is two-fold.

11

Thus,

The Court must ask (1) whether

defendants warned against the use at issue, and (2) whether,
notwithstanding this warning, defendants should have reasonably
expected users to disregard the warning.
Kampen is an example of application of these principles.

In

Kampen, the plaintiff used a tire jack to raise the front end of a
car to inspect its underside.

157 F.3d at 308.

Plaintiff placed

his head and shoulders underneath the vehicle, at which point, the
jack failed causing the car to crush him.

Id. at 309.

There, the

owner’s manual for the jack instructed users to use the jack for
changing tires only and warned users never to get beneath the car
when using the jack.

Id.

Because of this clear warning and the

lack of a genuine issue as to whether users were disregarding this
warning, the Fifth Circuit held that the plaintiff failed to show
that the use was reasonably anticipated.

Id. at 318.

Here, the uncontroverted evidence demonstrates that plaintiff
used the press without guarding.

Initially, the Court finds that

the record shows that defendants provided a clear and direct
warning against this use through a warning label affixed to the
press:

“Guard

operator.”

workpiece

to

prevent

projectiles

from

reaching

A pictogram, showing an individual being struck by

projectiles, accompanied the warning.

The press’s instruction

manual also stated: “Guard workplace to prevent projectiles from
reaching operator.

Mount ½" below stop block or at eye level

centered on flange as shown.” Despite the warnings, plaintiff used
the press without any form of guarding and was injured by a
projectile ejected from the press.
12

Plaintiff’s use and injury are

exactly the type the warning, accompanying pictogram, and product
manual address.
Referring only to the warning label affixed to the press,
plaintiff contends that this warning is ambiguous because the label
states “guard the workpiece,” and “workpiece” refers to the object
being worked on.
necessarily

According to plaintiff, the warning does not

prescribe

a

guard

that

would

have

prevented

the

accident at issue because he could have guarded the workpiece but
not the scrap metal shaft the press ejected towards him.

But the

clear import of the warning is that the operator must not operate
the press without guarding so as to avoid projectiles reaching the
operator.

No fair reading suggests that one could safely use the

press without any form of guarding.
Because defendants provided clear and direct warnings against
plaintiff’s very use, plaintiff must show that defendants should
have reasonably expected users to disregard the warning or have
reason to know the warning was otherwise ineffectual.

Kampen, 157

F.3d at 314-15; Broussard v. Procter & Gamble Co., 517 F.3d 767,
770 (5th Cir. 2008) (“[P]laintiffs who used a product in a manner
that violates clear and express warnings can show that their use
was reasonably anticipated only by presenting evidence that the
manufacturer

had

ineffectual.”).
Kampen,

157

F.3d

reason

warnings

were

If he fails to do so, his claim fails.

See

at

to

314-15

know

that

(requiring

these

plaintiff

to

present

“evidence about whether the manufacturer should have reasonably
expected users to disregard the warning”).
13

Defendants offer the declaration of Brian Phillips, a safety
coordinator at Dake.40

He states that Dake has “never provided

guarding for its generic presses,” because a one-size-fits-all
guard for generic presses “could not be made to be compatible with
all of the myriad operations of its customers.”41 Phillips explains
that “Dake does not know the size and shape of the objects that
will be placed into the generic presses, and therefore has no idea
what the proper dimensions of any guard would be.”42

Phillips also

states that Dake specifically instructs purchasers of generic
presses through its product manuals and warning labels to install
a safety guard against projectiles.43

According to Phillips, “Dake

has no reason to believe that its instructions and warnings will
not be followed.”44
Defendants also offer the declaration of their engineering
expert, Michael Taubitz.45

He states that “[i]ndustry practice is

now and has always been that the purchasers of generic presses are

40

R. Doc. 55, Ex. A (Declaration of Brian Phillips).

41

Id. at 2.

42

Id. Similarly, Robert Hamberger, an engineer
technician at Pellerin who designed the guards later affixed to
several presses at Pellerin, testified that before designing a
guard, he talked to the operator of the press to determine the
largest part that goes into the press to ensure the guard would
not be too small. R. Doc. 55, Ex. L at 24.
43

R. Doc. 55, Ex. A at 2.

44

Id.

45

R. Doc. 55, Ex. G (Declaration of Michael Taubitz).
14

the parties that are charged with fabricating guarding.”46

Taubitz

points to Occupational Safety and Health Administration (OSHA)
regulations, specifically 29 C.F.R. 1910.212, and American National
Standards Institute (ANSI) standards, specifically ANSI B 11.2
(1995), which require employers to provide guarding for hydraulic
presses.47 Taubitz opines that “[m]anufacturers such as Dake cannot
foresee that purchasers of hydraulic presses would fail to install
guarding contrary to longstanding industry practice, applicable
OSHA regulations, and the specific instructions provided by Dake to
Pellerin.”48
Consideration of the OSHA and ANSI standards confirm Taubitz’s
opinion.

OSHA regulations, which apply to employers, provide, in

relevant part:
One or more methods of machine guarding shall be provided
to protect the operator and other employees in the
machine area from hazards such as those created by point
of operation, ingoing nip points, rotating parts, flying
chips and sparks. Examples of guarding methods are-barrier guards, two-hand tripping devices, electronic
safety devices, etc.
29 C.F.R. 1910.212.

Further, several courts have highlighted the

applicability of this standard to employers.49

See Fernandez v.

Spar Tek Indus., Inc., No. C.A. 0:06-3253-CMC, 2008 WL 2185395, at

46

Id. at 5.

47

Id.

48

Id.

49

Plaintiff argues that the OSHA regulation requires
manufacturers to provide guarding, but provides no support for
this interpretation.
15

*11 (D.S.C. May 23, 2008) (noting that the regulation “is directly
applicable to an employer’s duty to provide a safe workplace”
(emphasis in original)); Jones v. Cincinnati, Inc., 32 Mass. App.
Ct.

365,

369,

589

N.E.2d

335,

338

(1992)

(stating

that

the

regulation mandates that guarding be provided “by the employer”
(emphasis in original)).
Likewise, ANSI B 11.2, E4.2.3. (1995), provides:
Typically, the employer is in the best position to
determine the hazards associated with the point of
operation of the hydraulic power press production system
(including feeding and material handling hazards and
hazards
associated
with
operation
of
auxiliary
equipment). The employer is responsible for designating
the appropriate point-of-operation safeguarding and to
ensure that it is provided and used.
ANSI standards also state that employers should consider the
hazards associated with the care and use of the press, which
include

“[o]bjects

operation.”50

ejected

from

the

ANSI B 11.2, E5.1.2.

recognized such an industry custom.

die

space

during

normal

The Fifth Circuit likewise
See Gordon v. Niagara Mach. &

Tool Works, 574 F.2d 1182, 1185 (5th Cir. 1978) (“In accordance

50

Again, plaintiff contends that the ANSI standards
require manufacturers to provide guarding, but points to no
specific ANSI provision stating such. Likewise, Hansen,
plaintiff’s engineering expert, opines that the ANSI standards
require the manufacturer to install guarding on hydraulic
presses. In support, Hansen cites generic ANSI standards
specifying that safety shall start with the manufacturer and that
the supplier is generally responsible for design, construction,
modification, installation, and safeguarding. Hansen, however,
ignores the more specific ANSI guidance directly on point
stating, “The employer is responsible for designating the
appropriate point-of-operation safeguarding and to ensure that it
is provided and used.” Hansen’s selective reading of the ANSI
standards does not create an issue of fact.
16

with the custom in the power press industry, the selection of dies
and

appropriate

guarding

or

safety

devices

was

left

to

the

purchaser.”).
In opposition, plaintiff presents no evidence suggesting
defendants should have expected users to disregard the warnings and
use the press without guarding.

Instead, plaintiff points to the

existence of the warning to guard against projectiles alone as
evidence that defendants were aware end users may operate the press
without a guard.

The Fifth Circuit has recognized that “a warning

against a product misuse is relevant to assessing what uses of its
product a manufacturer reasonably anticipates,” but a plaintiff
must still present evidence showing that “the manufacturer should
have reasonably expected users to disregard the warning.”
157 F.3d at 314.
insufficient.

Kampen,

Pointing to the existence of the warning alone is
Plaintiff also argues in conclusory fashion and

without evidentiary support that because Dake has sold hydraulic
presses since the 1940s, it “unquestionably could have reasonably
anticipated
. . . .”51

that

its

products

would

be

used

without

guards

This does not necessarily follow because Dake’s

manufacture and sale of hydraulic presses since the 1940s is
equally consistent with Dake reasonably expecting purchasers of its
press to supply guarding in accordance with longstanding industry
custom.

Notably, plaintiff asserts only that defendants “could

have” reasonably anticipated the use, not that they in fact did so

51

R. Doc. 65 at 9 (emphasis added).
17

or should have done so.

Plaintiff’s conclusory argument devoid of

any evidence of users’ nonconforming uses or of why defendants
should have known of or expected such uses fails to raise an issue
of fact to defeat summary judgment.
The record shows that defendants provided a clear and direct
warning against plaintiff’s use--using the press without guarding
against projectiles--and that defendants should not have reasonably
anticipated that plaintiff would disregard the warning.

That

defendants should not have reasonably anticipated plaintiff’s
misuse

is

bolstered

by

the

industry

custom,

standards,

and

regulations supporting defendants’ position that employers, not
manufacturers, should supply guarding.
has

recognized

previously

that

a

Indeed, the Fifth Circuit

manufacturer

should

not

be

expected to “reasonably anticipate” a non-conforming use when
“[w]ell-accepted industry standards from the American National
Standards Institute (ANSI) and regulations from the Occupational
Safety and Health Administration (OSHA) provide in great detail”
specifications for proper use.

Taylor v. United Techs. Corp., 117

F. App’x 961, 963 (5th Cir. 2004).
Accordingly, because plaintiff fails to present a genuine
issue of material fact as to whether his use was reasonably
anticipated and the Court finds that the evidence demonstrates that
it was not, defendants are entitled to summary judgment.

18

IV. CONCLUSION
For the foregoing reasons, the Court GRANTS defendants’ motion
for summary judgment. Accordingly, the Court DISMISSES plaintiffs’
claims WITH PREJUDICE.

New Orleans, Louisiana, this _____ day of July, 2015.
9th

____________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

19