     Case: 08-31237 Document: 00511294366 Page: 1 Date Filed: 11/16/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 16, 2010

                                       No. 08-31237                         Lyle W. Cayce
                                                                                 Clerk

STATE FARM FIRE & CASUALTY CO; LJMB, INC., doing business as
Brian’s Superette; BRIAN WEDERSTRANDT; AMANDA WEDERSTRANDT;
LJMB, INC., doing business as Talk of the Town Beauty Salon,

                                                   Plaintiffs-Appellants
v.

DELTA BEVERAGE GROUP INC.,

                                                   Defendants-Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                                 USDC No. 3:07


Before STEWART, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       This is a tort suit arising under Louisiana law, in which this court’s
jurisdiction is based on diversity of citizenship. The question is whether a
beverage distribution company, Delta Beverage Group, Inc. (Delta), can be
held liable for a fire at a convenience store that appears to have started in one
of the company’s beverage coolers. The district court granted summary



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
     Case: 08-31237 Document: 00511294366 Page: 2 Date Filed: 11/16/2010



                                 No. 08-31237

judgment in Delta’s favor. We affirm because even when the evidence is
viewed in the light most favorable to the plaintiffs, it does not exclude with a
fair amount of certainty several reasonable hypotheses, under which the
negligent actions of someone other than a Delta employee was the cause of
the fire.
                               BACKGROUND
      This case started with a fire that broke out on February 16, 2006, at
Brian’s Superette, a small grocery store and gas station in Maurepas,
Louisiana. The plaintiffs are as follows: LJMB, Inc., which is the owner of
Brian’s Superette as well as a neighboring business, Talk of the Town Beauty
Salon (Talk of the Town); Brian and Amanda Wederstrandt, who are the
owners of LJMB and the operators of the two businesses; and State Farm
Fire & Casualty Co. (State Farm), which was LJMB’s insurer at the time of
the fire. LJMB seeks damages for losses not reimbursed by State Farm, and
State Farm seeks to recover as the subrogated insurer of LJMB and on behalf
of its insureds. The plaintiffs sued three defendants: Delta, which is the local
distributor of Pepsi products; Coca-Cola Enterprises, Inc. (Coca-Cola); and
True Manufacturing Company (True), which manufactured the beverage
coolers. Both Delta and Coca-Cola had installed beverage coolers
manufactured by True in Brian’s Superette. The plaintiffs settled with True
during mediation. More recently, after the district court granted summary
judgment in favor of Delta and Coca-Cola and while this suit was on appeal,
the plaintiffs settled with Coca-Cola. Thus, Delta is now the only remaining
defendant.
      Brian Wederstrandt had contracts with both Coca-Cola and Delta
under which the two companies installed beverage coolers in the store. The
parties agree that the fire began in a Pepsi cooler positioned along a wall of
the store, by the checkout counter. During the years between the store’s

                                        2
     Case: 08-31237 Document: 00511294366 Page: 3 Date Filed: 11/16/2010



                                       No. 08-31237

opening in 2003 and the fire in 2006, the coolers were arranged and
rearranged in different positions next to one another along that wall. Some
time in 2004, Delta employees moved two Coca-Cola coolers from their
positions along the wall in order to make room for two Pepsi coolers. There
were then two Pepsi coolers and one Coca-Cola cooler along the wall. In
January 2005, there was a maintenance issue with one of the Pepsi coolers
along the wall, which was repaired by Delta. In July 2005, Coca-Cola
installed a small cooler next to the three larger coolers.
       When the fire broke out on February 16, 2006, it did substantial
damage to both Brian’s Superette and Talk of the Town. The parties agree,
based on expert testimony, that the fire originated in one of the two Pepsi
coolers arranged along the wall by the checkout counter, most likely due to an
electrical malfunction. They also agree that the electrical malfunction
occurred due to the cooler’s being plugged into an extension cord, in violation
of both the cooler’s installation manual and the National Electrical Code.1
There is no direct evidence concerning who plugged the cooler into the
extension cord. Conceivably, it could have been (1) Wederstrandt; (2) one of
Wederstrandt’s employees at the store; (3) one of Delta’s employees when
they installed or repaired the Pepsi coolers; or (4) one of Coca-Cola’s
employees when they installed or repaired the Coke coolers.
       The parties consented to have their case decided by a magistrate judge,
who rendered summary judgment for the defendants. The plaintiffs
appealed, and subsequently settled with Coca-Cola, leaving Delta as the
remaining defendant-appellee.
                                      DISCUSSION


       1
         One of the plaintiffs’ experts surmised that plugging in the extension cord could have
caused low voltage, leading to the overheating of the compressor in the Pepsi beverage cooler,
or a failure of the compressor motor windings.

                                              3
    Case: 08-31237 Document: 00511294366 Page: 4 Date Filed: 11/16/2010



                                  No. 08-31237

      “This court applies a de novo standard of review when determining
whether a district court erred in granting summary judgment.” LaBarge Pipe
& Steel Co. v. First Bank, 550 F.3d 442, 449 (5th Cir. 2008). Summary
judgment is proper when the evidence shows that “there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). A genuine issue of material fact exists
“if the evidence is such that a reasonable jury could return a verdict in favor
of the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). “[W]e are obliged to construe all the evidence and reasonable
inferences deduced therefrom in a light most favorable to . . . the nonmoving
party in the court below.” Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576
F.3d 221, 226 (5th Cir. 2009) (alteration in original) (quoting Int’l Shortstop,
Inc. v. Rally’s, Inc., 939 F.2d 1257, 1260 (5th Cir. 1991).
      To recover for negligence under Louisiana law, “the plaintiff must prove
that the conduct in question was a cause-in-fact of the resulting harm, the
defendant owed a duty of care to the plaintiff, the requisite duty was
breached by the defendant, and the risk of the harm was within the scope of
the protection afforded by the duty breached.” McCloud v. Hous. Auth. of
New Orleans, 987 So. 2d 360, 362-63 (La. Ct. App. 2008).
      Here, because the parties agree that the fire most likely started in a
Pepsi cooler due to its having been plugged into an extension cord, Delta
would be liable for the fire if a Delta employee who breached a duty and
thereby plugged the Pepsi cooler into an extension cord, causing the fire. The
plaintiffs do not have direct evidence of Delta’s culpability: Wederstrandt does
not have personal knowledge of who plugged the Pepsi cooler into an
extension cord and did not even know until after the fire that the cooler was
plugged into an extension cord. The plaintiffs acknowledge that “all of the
evidence regarding who used the extension cord is circumstantial,” but

                                        4
    Case: 08-31237 Document: 00511294366 Page: 5 Date Filed: 11/16/2010



                                 No. 08-31237

contend that they have put forward enough circumstantial evidence to justify
an inference that it was more likely than not a Delta employee who plugged
the cooler into an extension cord. Under Louisiana negligence law,
      [u]se of circumstantial evidence and the deductions and
      inferences arising therefrom is a common process for establishing
      liability in negligence cases. However, the inferences drawn from
      the circumstantial evidence must cover all the necessary
      elements of negligence, and the plaintiff must still sustain the
      burden of proving his injuries were more likely than not the
      result of the defendant’s negligence. If circumstantial evidence is
      relied upon, that evidence, taken as a whole, must exclude every
      other reasonable hypothesis with a fair amount of certainty. This
      does not mean, however, that it must negate all other possible
      causes.
Rando v. Anco Insulations, Inc., 16 So. 3d 1065, 1090 (La. 2009) (internal
citations omitted); see also Hanks v. Entergy Corp., 944 So. 2d 564, 579 (La.
2006); Benjamin ex rel. Benjamin v. Hous. Auth. of New Orleans, 893 So. 2d 1,
4-5 (La. 2004); Stroik v. Ponseti, 699 So. 2d 1072, 1079 (La. 1997); Lacey v. La.
Coca-Cola Bottling Co., 452 So. 2d 162, 164 (La. 1984).
      In this case, the plaintiffs’ evidence is insufficient to survive summary
judgment because no reasonable jury could conclude that it was more likely
than not that a Delta employee’s actions caused the fire. The evidence does
not exclude with a fair amount of certainty several other reasonable
possibilities: that a Coca-Cola employee, Wederstrandt, or one of
Wederstrandt’s employees plugged the Pepsi cooler into an extension cord.
      First, the plaintiffs do not exclude with a fair amount of certainty the
reasonable possibility that Wederstrandt or one of his employees plugged the
Pepsi cooler into an extension cord. This could have happened at any point
during the two years between 2004, when the Pepsi cooler that caught fire
was installed, and 2006, when the fire occurred. The plaintiffs’ own experts
testified that they saw extension cords being used in several places


                                       5
    Case: 08-31237 Document: 00511294366 Page: 6 Date Filed: 11/16/2010



                                  No. 08-31237

throughout Brian’s Superette, and Wederstrandt admitted in his deposition
that at one point he plugged a cappuccino machine into an extension cord.
      Wederstrandt asserts in an affidavit, without corroborating evidence,
that neither he nor his employees plugged the Pepsi cooler into an extension
cord. However, for the purposes of summary judgment, these assertions are
insufficient to constitute evidence that would exclude with a fair amount of
certainty the reasonable possibility that he or someone other than a Delta
employee may have plugged the Pepsi cooler into an extension cord. See
DIRECTV, Inc. v. Budden, 420 F.3d 521, 531 (5th Cir. 2005) (“[The non-
moving party’s] attempt to create a fact issue as to [an element of the relevant
statute] by relying on a conclusory and self-serving affidavit is on unsteady
ground.”); United States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001)
(“[S]elf-serving allegations [in an affidavit by a party] are not the type of
significant probative evidence required to defeat summary judgment.”
(internal quotation marks and citation omitted)); Granger v. Guillory, 819 So.
2d 477, 481 (La. Ct. App. 2002) (“We only have the Defendant’s speculation
that someone else must have done the nefarious deed, since he did not.”).
      Moreover, because it would be impossible for Wederstrandt to have
personal knowledge of all the actions of each of his employees in the store
over that two-year period, his assertion that none of them plugged the Pepsi
cooler into an extension cord does not constitute evidence sufficient to survive
a motion for summary judgment under the circumstances. See Cormier v.
Pennzoil Exploration & Prod. Co., 969 F.2d 1559, 1561 (5th Cir. 1992)
(holding that affidavits offered by a nonmoving party could not be considered
at summary judgment because they were not based on personal knowledge);
Fed R. Civ. P. 56(e)(1) (requiring that affidavits submitted to support or
oppose a summary judgment motion “must be made on personal knowledge”).



                                         6
     Case: 08-31237 Document: 00511294366 Page: 7 Date Filed: 11/16/2010



                                       No. 08-31237

       Even if we were to credit Wederstrandt’s affidavit testimony as to his
actions and those of his employees, the plaintiffs’ evidence still would not
exclude with a fair amount of certainty yet another reasonable possibility:
that a Coca-Cola employee could have plugged the Pepsi cooler into an
extension cord. One reasonable scenario is that when Coca-Cola installed its
smaller cooler in July 2005 — the last time before the fire when a cooler was
installed along the wall — the addition of the small cooler caused an
overloaded circuit breaker to trip, and that a Coca-Cola employee remedied
that problem by attaching one of the Pepsi coolers already installed along the
wall to an extension cord.
       The plaintiffs’ contention is that the circumstantial evidence shows that
a Delta employee must have plugged the Pepsi cooler into an extension cord
when installing it in 2004. They claim that the configuration of the electrical
circuitry in the store was such that all the electrical outlets on the wall
behind the coolers were connected to a single electrical circuit. They also
claim that the circuit lacked the capacity to power the remaining Coca-Cola
cooler as well as the two new Pepsi coolers installed in 2004, and therefore,
the installation of the two Pepsi coolers should have resulted in the circuit
breaker tripping. The fact that the circuit breaker did not trip when Delta
installed the two Pepsi coolers along the wall in 2004, the plaintiffs argue,
means that a Delta employee must have plugged one of the Pepsi coolers into
an extension cord, which presumably led to an outlet that was on a different
circuit.
       This theory is speculative, at best, even assuming that the plaintiffs
have demonstrated a genuine issue of material fact regarding the
configuration of the electric circuitry in the store.2 The extended time

       2
        The magistrate judge found that the plaintiffs had not put forth evidence creating a
genuine issue of material fact as to the configuration of the store’s electrical circuitry. The

                                              7
     Case: 08-31237 Document: 00511294366 Page: 8 Date Filed: 11/16/2010



                                       No. 08-31237

between the installation of the Pepsi coolers and the fire makes the plaintiffs’
argument tenuous. Delta installed the Pepsi coolers in 2004, and the fire did
not happen until 2006, so under the plaintiffs’ theory, the Pepsi cooler would
have been plugged into an extension cord for approximately two years
without catching fire. Moreover, the circuit breaker could easily have tripped
at any time during those two years, and it is reasonably possible that
Wederstrandt or one of his employees remedied that problem by plugging the
Pepsi cooler into an extension cord. A Delta employee did fix a problem with
a switch on a Pepsi cooler in January 2005, but the plaintiffs do not contend
that anything was changed about how the cooler was plugged into the
electrical circuitry in the store. Even if anything was changed at that time,
the repair took place over a year before the fire.
       Thus, the evidence put forward by the plaintiffs, even when construed
in the light most favorable to them, does not exclude with a fair amount of
certainty several other reasonable possibilities, under which someone other
than a Delta employee plugged the Pepsi cooler into an extension cord. The
evidence does not exclude with a fair amount of certainty the reasonable
possibilities that during the approximately two-year period between the
installation of the Pepsi coolers and the fire, Wederstrandt, one of his
employees, or a Coca-Cola employee plugged the Pepsi cooler into an
extension cord.
       The other two arguments that the plaintiffs make are also
unpersuasive. One of the plaintiffs’ theories is that Delta negligently caused
too many coolers to be plugged into the single electric circuit in the wall
behind the coolers, thereby tripping the circuit breaker and making it



plaintiffs contest this conclusion on appeal, but we decline to resolve this issue and instead
assume arguendo that they have created a genuine issue of material fact regarding the
circuitry.

                                              8
     Case: 08-31237 Document: 00511294366 Page: 9 Date Filed: 11/16/2010



                                       No. 08-31237

necessary for someone, regardless of who, to plug the Pepsi cooler into an
extension cord. The first difficulty with this theory is that it posits that
someone made an independent decision to plug the cooler into an extension
cord. The decision to do that, rather than to solve the problem in another way
(such as by moving a cooler), would be the real cause of the fire if the
plaintiffs are right in supposing that this is what happened. Furthermore,
even assuming that the actions of whoever actually plugged the Pepsi cooler
into an extension cord were not the superseding cause of the fire, and that the
electrical circuitry in the store was laid out as the plaintiffs claim, this
argument nonetheless fails. The plaintiffs have not excluded with a fair
amount of certainty the reasonable possibility that someone other than a
Delta employee overloaded the circuit, causing the circuit breaker to trip. It
is just as probable that a Coca-Cola employee overloaded the circuit and
caused the circuit breaker to trip, since Coca-Cola was the last company to
install a cooler before the fire: the small cooler, in July 2005. Alternatively,
Wederstrandt or one of his employees could have overloaded the circuit and
caused the circuit breaker to trip while installing or moving other appliances
around the store.
       Finally, the plaintiffs argue that even if Wederstrandt or one of his
employees was the person who plugged the Pepsi cooler into an extension
cord, then Delta is nonetheless liable for failing to warn them not to do that.
Assuming that Delta had a duty to warn Wederstrandt (and thus his
employees),3 and that Delta breached that duty, this argument also fails. As
explained above, even when viewing the evidence in the light most favorable


       3
         “A seller is required to give reasonable warnings about dangers of which he has
knowledge or should have had knowledge.” Hesse v. Champ Serv. Line, 758 So. 2d 245, 249
(La. Ct. App. 2000) (quoting Toups v. Sears, Roebuck & Co., 507 So. 2d 809, 817 (La. 1987)).
Although Delta did not actually sell the Pepsi coolers to the store, we assume for the sake of
argument that Delta’s duty to warn was the same as that of a seller.

                                              9
    Case: 08-31237 Document: 00511294366 Page: 10 Date Filed: 11/16/2010



                                  No. 08-31237

to the plaintiffs, they have not excluded with a fair amount of certainty the
reasonable possibility that a Coca-Cola employee plugged the Pepsi cooler
into an extension cord. Delta had no duty to warn a Coca-Cola employee,
whose company was, like Delta, also selling soft drinks in the store. Under
this reasonable scenario, Delta’s supposed failure to warn would not have any
causal connection to the fire. Accordingly, the plaintiffs have not shown that
a reasonable jury could find that Delta’s alleged breach of its duty to warn
was more likely than not the cause of the fire.
      In sum, we conclude that (1) all of the plaintiffs’ theories of liability are
speculative and based on circumstantial evidence, and accordingly the
plaintiffs are required to exclude with a fair amount of certainty all
reasonable hypotheses under which someone other than a Delta employee
caused the fire; and (2) given the paucity of evidence regarding who plugged
the Pepsi cooler into an extension cord, even when the evidence is viewed in
the light most favorable to the plaintiffs, the plaintiffs do not exclude with a
fair amount of certainty several other reasonable hypotheses, under which
the actions of someone other than a Delta employee caused the fire. Thus, we
AFFIRM the district court’s grant of summary judgment in favor of Delta.




                                        10
