Jones et al v. Family Dollar Stores, Inc et al

Filing 77

ORDER AND REASONS that Gatekeeper Systems, Inc's 68 Motion for Summary Judgment is GRANTED, and plaintiffs' claims against it are DISMISSED. Signed by Judge Mary Ann Vial Lemmon on 11/30/2017. (cms)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LATORY JONES

CIVIL ACTION

VERSUS

NO: 16-15261

FAMILY DOLLAR STORES OF
LOUISIANA, INC. AND
GATEKEEPER SYSTEMS, INC.

SECTION: "S" (4)

ORDER AND REASONS
IT IS HEREBY ORDERED that Gatekeeper Systems, Inc.'s Motion for Summary
Judgment (Doc. #68) is GRANTED, and plaintiffs' claims against it are DISMISSED.
BACKGROUND
This matter is before the court on a motion for summary judgment filed by defendant,
Gatekeeper Systems, Inc.
On July 19, 2015, Dalton Baham, III was driving a motorcycle north in the center lane of
Carrollton Avenue, under the I-10 overpass near Tulane Avenue in New Orleans when he struck a
shopping cart that was in the roadway. Baham was ejected from the motorcycle, hit a wall, and died
on the scene.
On October 5, 2016, plaintiffs, Latory Jones (Baham's wife), individually and as natural
tutrix of her minor child S.J.B. (Baham's daughter), Dalton Baham, IV (Baham's son), and Brandi
Payton, as natural tutrix of her minor child B.B.P. (Baham's son), filed this action in the Civil
District Court, Parish of Orleans, State of Louisiana against Family Dollar Stores, Inc. and
Gatekeeper. Gatekeeper sells a shopping cart containment system to equip carts with a special wheel
that responds to a radio frequency around the perimeter of the property and locks the wheel if the
cart is moved beyond the perimeter. Plaintiffs allege that Family Dollar had a master service
agreement with Gatekeeper to use Gatekeeper's cart containment system on its shopping carts.

Plaintiffs allege that Gatekeeper is liable for the accident under the Louisiana Products Liability Act
("LPLA"), La. Rev. Stat. § 9:2800.51, et seq., because the Gatekeeper wheel on the subject shopping
cart was unreasonably dangerous in design, construction and composition, failed to provide adequate
warnings and failed to conform to safety warranties.1
Gatekeeper filed a motion for summary judgment arguing that it is not liable under the LPLA
because there is no evidence that the accident was proximately caused by an unreasonably dangerous
condition of the Gatekeeper wheel in construction or composition, design, inadequate warning, or
not conforming to an express warranty. Plaintiffs argue that Gatekeeper is liable under the LPLA
because the Gatekeeper wheel was unreasonably dangerous in design for failing to incorporate
reflective tape that would have made it more visible at night.
ANALYSIS
I.

Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that the "court shall grant summary

judgment if 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." Granting a motion for summary judgment is proper if
the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits filed in
support of the motion demonstrate that there is no genuine issue as to any material fact that the

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Plaintiffs alleged that Family Dollar owned the shopping cart involved in the accident and that it
was negligent for failing properly to maintain its shopping carts. Plaintiffs also alleged claims against Family
Dollar under Louisiana Civil Code articles 2317, 2317.1 and 2322. This court granted Family Dollar's motion
for summary judgment finding that it is liable under Articles 2317, 2317.1 or 2322 or for negligence because
ensuring that a third-party does not remove a shopping cart from the premises and abandon it so that the
shopping cart ultimately becomes an obstruction on a distant roadway is not within the scope of a retailer's
duty reasonably to maintain its premises.

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moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty
Lobby, Inc., 106 S.Ct. 2505, 2509-10 (1986). The court must find "[a] factual dispute . . . [to be]
'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party
. . . [and a] fact . . . [to be] 'material' if it might affect the outcome of the suit under the governing
substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson,
106 S.Ct. at 2510).
If the moving party meets the initial burden of establishing that there is no genuine issue, the
burden shifts to the non-moving party to produce evidence of the existence of a genuine issue for
trial. Celeotex Corp. v. Catrett, 106 S.Ct. 2548, 2552 (1986). The non-movant cannot satisfy the
summary judgment burden with conclusory allegations, unsubstantiated assertions, or only a scintilla
of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). If the
opposing party bears the burden of proof at trial, the moving party does not have to submit
evidentiary documents properly to support its motion, but need only point out the absence of
evidence supporting the essential elements of the opposing party’s case. Saunders v. Michelin Tire
Corp., 942 F.2d 299, 301 (5th Cir. 1991).
II.

Louisiana Products Liability Act
Gatekeeper argues that plaintiffs cannot prevail on their claims brought under the LPLA

because there is no evidence that an unreasonably dangerous condition of the Gatekeeper wheel was
the proximate cause of the accident.
The LPLA"establishes the exclusive theories of liability for manufacturers for damages
caused by their products." La. Rev. Stat. § 9:2800.52. Under the LPLA, a manufacturer of a product
is "liable to a claimant for damage proximately caused by a characteristic of the product that renders

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the product unreasonably dangerous when the damage arose from a reasonably anticipated use of
the product by the claimant or another person or entity." Id. at § 9:2800.54. To prevail on a LPLA
claim, a plaintiff must prove: (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 the
characteristic made the product unreasonably dangerous in one of the four ways provided in the
statute; and (4) that the claimant's damage arose from a reasonably anticipated use of the product
by the claimant or someone else. Jefferson v. Lead Industries Ass'n, Inc., 106 F.3d 1245, 1251 (5th
Cir. 1997) (citing generally J. Kennedy, A Primer on the Louisiana Products Liability Act, 49 La.
L.Rev. 565 (1989)); La. Rev. Stat. § 9:2800.54.
Louisiana Revised Statute § 9:2800.54 state that the product must be unreasonably
dangerous only under one of four theories:
(1) The product is unreasonably dangerous in construction or
composition as provided in R.S. 9:2800.55;
(2) The product is unreasonably dangerous in design as provided in
R.S. 9:2800.56;
(3) The product is unreasonably dangerous because of inadequate
warning as provided in R.S. 9:2800.57; or
(4) The product is unreasonably dangerous because it does not
conform to an express warranty of the manufacturer about the
product as provided in R.S. 9:2800.58.2
La. Rev. Stat. § 9:2800.54(B)(1-4). Plaintiffs argue that the accident was proximately caused by the
unreasonably dangerous design of the Gatekeeper wheel because it did not have reflective tape
which would have made it more visible at night.2
2

Plaintiffs do not argue that the Gatekeeper wheel was unreasonably dangerous in construction or
composition for providing an inadequate warning or for failing to conform to an express warranty. Under
the LPLA:

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The LPLA utilizes Louisiana's duty-risk approach to proximate causation. J. Kennedy, A
Primer on the Louisiana Products Liability Act, 49 La. L.Rev. 565, 583 n. 88 (1989) ("The LPLA
does not change the duty/risk analysis of proximate cause"). The Supreme Court of Louisiana has
held that liability can be imposed only if the risk at issue falls within the scope of the duty:
The scope of the duty inquiry is ultimately a question of policy as to
whether the particular risk falls within the scope of the duty. Rules of
conduct are designed to protect some persons under some
circumstances against some risks. Gresham v. Davenport, 537 So.2d
1144, 1147 (La. 1989); Malone, Ruminations on Cause-in-Fact, 9
Stan.L.Rev. 60, 73 (1956). The scope of protection inquiry asks
whether the enunciated rule extends to or is intended to protect this
plaintiff from this type of harm arising in this manner. Crowe, The
Anatomy of a Tort-Greenian, As Interpreted by Crowe Who Has Been
Influenced by Malone – A Primer, 22 Loy.L.Rev. 903 (1976). In
determining the limitation to be placed on liability for defendant's
substandard conduct, the proper inquiry is often how easily the risk of
injury to plaintiff can be associated with the duty to be enforced. Hill
v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620, 622 (1972).
Faucheaux v. Terrebonne Consol. Gov't, 615 So.2d 289, 293-94 (La. 1993).
Gatekeeper has a duty to design its cart containment system to be reasonably safe in normal
use. The Gatekeeper system is used to prevent shopping carts from leaving a retailer's premises.

A product is unreasonably dangerous in design if, at the time the product
left its manufacturer's control:
(1) There existed an alternative design for the product that was capable of
preventing the claimant's damage; and
(2) The likelihood that the product's design would cause the claimant's
damage and the gravity of that damage outweighed the burden on the
manufacturer of adopting such alternative design and the adverse effect, if
any, of such alternative design on the utility of the product. An adequate
warning about a product shall be considered in evaluating the likelihood of
damage when the manufacturer has used reasonable care to provide the
adequate warning to users and handlers of the product.
La. Rev. Stat. § 9:2800.56.

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Plaintiffs argue that the Gatekeeper system was unreasonably dangerous because the Gatekeeper
wheel lacked reflective tape to make it more visible if the shopping cart to which it is attached is left
unattended in a roadway by a third-party. Gatekeeper's product is intended to prevent shopping carts
from being removed from the retailer's premises. Making a shopping cart more visible in case it is
removed from the retailer's premises is not within the scope of Gatekeeper's duty to provide a system
that is reasonably safe in normal use. Gatekeeper's motion for summary judgment is GRANTED,
and plaintiffs' claims against it are DISMISSED.
CONCLUSION
IT IS HEREBY ORDERED that Gatekeeper Systems, Inc.'s Motion for Summary
Judgment (Doc. #68) is GRANTED, and plaintiffs' claims against it are DISMISSED.

New Orleans, Louisiana, this 30th day of November, 2017.
_____

____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE

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