                       Revised September 28, 1998

                     UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit



                               No. 96-30544




                     RALPH KAMPEN; KATHERINE KAMPEN,

                                               Plaintiffs - Appellants,


                                  VERSUS


                      AMERICAN ISUZU MOTORS, INC.,


                                                   Defendant - Appellee.



           Appeal from the United States District Court
               For the Eastern District of Louisiana

                           September 30, 1998


Before POLITZ, Chief Judge, and KING, JOLLY, HIGGINBOTHAM, DAVIS,
JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS,
BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.

JOHN M. DUHÉ, JR., Circuit Judge:

     Ralph 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., 989 F.2d 864, 867 (5th Cir. 1993).

      A panel of this Court reversed the district court. See Kampen

v. American Isuzu Motors, Inc., 119 F.3d 1193 (5th Cir. 1997)(“the

panel opinion”). The panel opinion held that Kampen’s “use” of the

jack was complete when he finished elevating the car;           in the panel

majority’s view, Kampen’s getting under the car to inspect the

underside did not constitute a “use” of the jack.          See Kampen, 119

F.3d at 1198-99, and cf. Kampen, 119 F.3d at 1205 (Duhé, J.,

dissenting).      Any negligence on Kampen’s part in placing his body

beneath the car, the panel reasoned, should be taken into account

by Louisiana’s system of comparative fault.          See Kampen, 119 F.3d

at 1199.

      Even assuming that Kampen’s placing himself under the car

constituted a “use” of the jack, the panel was “unwilling to hold



                                      2
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 car.”     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 “present[ed]

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 130 F.3d 656 (5th

Cir. 1997).

                                       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 up the car 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 car.         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 “[n]ever [to]



                                        3
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 car 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.

LA.REV.STAT.ANN. § 9:2800.54(A).2       The plain language of the Act

shows that a plaintiff, asserting a products liability action

  1
   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 “[n]ever [to] get beneath the vehicle when it is supported
only by a jack.” The Kampens dispute that there was any evidence
of these warnings.
  2
   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).

                                    4
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 LA.REV.STAT.ANN. § 9:2800.54(D); see also

Johnson v. Black & Decker U.S., Inc., 701 So.2d 1360, 1362 (La.

App. 2d Cir. 1997).     If a plaintiff’s damages did not arise from a

reasonably anticipated use of the product, then the “unreasonably

dangerous” question need not be reached. See Johnson, 701 So.2d at

1366; Delphen v. Department of Transportation and Development, 657

So.2d 328, 334 (La. App. 4th Cir. 1995).

                                      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., 637 So.2d 771, 775

(La. App. 1st Cir. 1994); see also John Kennedy, A Primer on the

Louisiana   Products     Liability        Act,       49   La.L.Rev.     565,    585-86

(1989)(“Kennedy”).        The     LPLA’s      “reasonably        anticipated      use”

standard should be contrasted with the pre-LPLA “normal use”

standard; “normal use” included “all intended uses, as well as all

reasonably foreseeable uses and misuses of the product.”                          Hale

                                          5
Farms, Inc. v. American Cyanamid Co., 580 So.2d 684, 688 (La. App.

2d Cir. 1991), citing Bloxom v. Bloxom, 512 So.2d 839, 843 (La.

1987).    “Normal use” also included “reasonably foreseeable misuse

that is contrary to the manufacturer’s instructions.”                    Hale, 580

So.2d at 688.

     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, 657 So.2d at 333; Myers, 637 So.2d at 775.                   We know

that, under the LPLA, a manufacturer will not be responsible for

“every conceivable foreseeable use of a product.”                    London v. MAC

Corp. of America, 44 F.3d 316 (5th Cir. 1995); see also Kennedy, 49

La.L.Rev. at 586.          For example, in Myers, the Louisiana First

Circuit Court of Appeal held that, while it is conceivable that a

person might stand on the rear portion of a folding chair (thereby

causing       it   to   jackknife),   this        would   not   be   a   reasonably

anticipated use given the obvious danger of such a use.                  Myers, 637

So.2d    at    779.     The   scope   of    the    reasonably    anticipated   use

standard, however, remains imprecise.

                                           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


                                           6
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, 119 F.3d at 1198. The panel found that Kampen’s subsequent

actions constituted, not a continuing “use” of the jack, but

instead a “[p]lacing [of] oneself in the zone of danger created by

the product.”      Id.    In the panel’s view, the purpose for which a

product is employed is relevant to “use” only “to the extent that

the purpose affects the manner in which the product is handled”:

            In this case, the use to which Kampen put the
            jack did not create a defect that would 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, 119 F.3d at 1198-99. Because Kampen’s presence and actions

beneath the car had no effect on the mechanical performance of the

                                       7
jack itself, the panel reasoned, what Kampen did subsequent to

physically jacking up the car should not be included in his “use”

of the jack.     Put another way, Kampen’s getting under the car was

not a “use” of the jack because those actions did not have any

impact on whether the jack would, or would not, have failed.                 This

accords with the panel’s view that the mechanical failure of the

jack was the only risk the manufacturer was required to take into

account, regardless whether Kampen was beside the car changing the

tire, or beneath the car inspecting the wheel, when the jack

failed.    See id. at 1199.

      At the outset, we note that the level of generality at which

a plaintiff’s “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

anticipated 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.


                                      8
     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 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, 119 F.3d at 1198, quoting Kennedy, 49 La.L.Rev. at 584.

That is to say, we agree that the risks a manufacturer must take

into account when designing and providing warnings about his

product should govern, to some degree, how we define a plaintiff’s

“use” of that product.      Where we diverge from the panel opinion,

however, is in appreciating the breadth of those risks.

     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, 119 F.3d at 1198-99.

Thus, goes the argument, only those actions of a plaintiff which

put various physical stresses on the product should be defined as

“use.”   Id.    But a plaintiff may act in relation to a product in

such a way that, while it does not change the physical stresses

placed on a product, nevertheless increases the risk of injury

associated with the product.       A manufacturer is required to take

these kinds of actions by product users into account when designing


                                       9
and providing warnings for its product.   Surely the manufacturer,

Isuzu, was required to contemplate not only the risks associated

with the proper physical manipulation of the jack, but also the

risks associated with the purpose for which the jack would be

employed (i.e., whether the jack would be used for changing tires

or instead as a support for repairs to the car’s undercarriage).

     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,

Kampen used the jack by relying on the jack to hold the car in its



                                  10
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 car, 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 case, 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”


                                        11
at this level of generality. For example, in Delphen v. Department

of Transportation and Development, 657 So.2d 328 (La. App. 4th Cir.

1995), the court addressed whether a plaintiff, who rode a racing

bike without properly adjusting the “quick release” mechanism on

the front wheel, had engaged in a reasonably anticipated use of the

bike.     The court found that, given the obvious danger of the

plaintiff’s actions, the plaintiff had not used the bike in a

reasonably anticipated manner.              Delphen, 334 So.2d at 334.        In

doing so, the court defined the plaintiff’s “use” of the bike with

reference to the following actions:

               ...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 plaintiff’s 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., 701 So.2d

1360    (La.    App.   2d   Cir.   1997),    the   court   affirmed    a   jury’s

conclusion that using a circular saw after removing its safety

guard was not a reasonably anticipated use of the saw.                Id. at 11.

The court decided the case based on the assumption that the

plaintiff’s “use” of the saw included the fact that the guard had

been removed.      See id. at 6 (asking whether “subsequent use of the

                                       12
altered saw” was a reasonably anticipated use).3   The court did not

define “use” at the higher level of generality (i.e., simply

“cutting wood”), but instead included the plaintiff’s negligent

actions as part of “use.”4

      Finally, this Court has itself defined “use” as including some

of the plaintiff’s negligent conduct.     In Hunter v. Knoll Rig &

Equipment Mfg. Co., Ltd., 70 F.3d 803 (5th Cir. 1995), the question

was whether the decedent had been using a “drilling rig racking

board” in a reasonably anticipated manner when the pipes he was

racking collapsed and killed him. The majority found no reasonably

anticipated use of the racking board, because the manner in which

the decedent had been racking the pipes was obviously dangerous and

contrary to industry practice.   Hunter, 70 F.3d at 810.   Clearly,

the majority defined “use” as including not only the obvious use of

the racking board to rack pipe, but also the dangerous manner in


  3
   The court discussed Berry v. Commercial Union, 565 So.2d 487
(La. App. 2d Cir. 1990), a pre-LPLA case which also dealt with a
power saw from which the plaintiff had removed the safety guard.
The Johnson court characterized the Berry plaintiff’s “use” of the
altered saw as “abnormal use ... either ignoring instructions that
the guard was missing or failing to notice such an obvious danger
and carrying the saw in his subordinate hand while climbing an
unsecured ladder.” Johnson, 701 So.2d at 8 n.3.
  4
   In a pre-LPLA case, Hale Farms, Inc. v. American Cyanamid Co.,
580 So.2d 684 (La. App. 2d Cir. 1991), the court addressed whether
applying herbicide in a manner contrary to the label instructions
was “normal use” of the herbicide. The court implicitly considered
the “use” of the herbicide to include not only the actual spraying
of the product, but also the quantities and concentration of the
sprayed herbicide which were contrary to the label instructions.
See Hale Farms, 580 So.2d at 688.

                                 13
which the decedent was racking the pipe.   Id.   This is underscored

by the dissent in Hunter, where Judge Benavides advocated a broader

view of “use”:

            ...the evidence reflects that the racking
            board was being used for its intended purpose
            (racking pipe) and in a 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.

                                 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


                                 14
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, 989

F.2d      at   865-66.      We   held   that    summary    judgment      against    the

plaintiffs was appropriate because the plaintiffs had not sustained

their burden of showing that the decedents’ use of the excavator

was       reasonably     anticipated.      Id.    at    869.     Exactly      why   the

plaintiffs        failed   to    meet   their    burden    of   proof    is   somewhat

ambiguous and requires us to clarify Lockart’s holding.

          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, 989 F.2d at 866-

67    &    868.     The    plaintiffs,    who    bore     the   burden   of   proving

reasonably anticipated use, failed to meet that burden because they



                                          15
failed to provide proof that “another warning would have been

feasible   or    that   these    experienced   workers   should   not   have

reasonably appreciated the risks involved in suspending the pontoon

from the bucket teeth.”         Id. at 869.

     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 pictogram, 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,

                                      16
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, 989 F.2d at 866 (emphasis added). The emphasized language

illuminates two crucial aspects of Lockart:                 (1) that the language

about adequate warnings was holding and not dictum, and (2) that

reasonably anticipated use was intertwined with the character and

adequacy of the warnings.            Otherwise, the whole discussion of the

adequacy of the warnings would have been surplusage.                        See id. at

867-68.

     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

plaintiff’s   “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.


                                            17
       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 plaintiff’s damages arise from a reasonably anticipated use of

the product.   What we say here is only that a warning against a

product misuse5 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


  5
   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, 119 F.3d at 1201 (“Such a
rule would allow a manufacturer to insulate itself from liability
for uses of a defective product that are unquestionably reasonably
anticipated.”). It would be legally ineffective if, for example,
Isuzu had warned against using its jack to change the tires on the
Impulse, a user had nonetheless used the jack to change a tire, and
was injured in the process. In that case, a court should find
that, despite the warning, using a factory-supplied jack to change
a tire (which is the very purpose for which the jack was supplied)
is, in the panel majority’s words, “unquestionably [a] reasonably
anticipated” use.

                                    18
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. § 9:2800.54(D).7


  6
   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:

      [I]nstructions 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. l (1998). Our
decision in this case is not to the contrary: we 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, 1998 WL 352929 (Tex. July 3,
1998) also explores the relationship between warnings and design
defects under the Restatement (Third) of Products Liability. In
Uniroyal, the plaintiff was injured when he attempted to inflate a
16" tire on a 16.5" tire rim, in contravention of the tire
manufacturer’s express warnings, and the tire exploded.            While
conceding his disregard of the warnings, the plaintiff nonetheless
argued that the tire was defectively designed because the
manufacturer could have implemented an alternative tire design that
would have prevented the explosion, and, thus, his injuries. A
five-justice majority of the Texas Supreme Court affirmed the
jury’s finding that the tire was defective. The court recognized
that, under the Restatement, warnings and instructions are relevant
but not determinative in assessing whether a product is reasonably
safe. See Uniroyal, 1998 WL 352929, at *5-6, citing, inter alia,
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 & cmt. f. The
court held, however, that there was evidence from which a jury
could have reasonably determined that, despite the adequate
warning, Uniroyal’s failure to implement the alternative design
rendered the product defective. See Uniroyal, 1998 WL 352929, at
*6-7. Four justices dissented, arguing that the majority had not
properly interpreted the Restatement and had failed to give the
warnings adequate consideration in the “reasonably safe” calculus.

                                  19
See id. at *14-15 (Hecht, J., dissenting). The dissenting justices
would have found the tire reasonably safe as a matter of law. See
id. at *18-19 (Hecht, J. dissenting).
   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 and dissenting opinions in Uniroyal disagree over the
meaning of comment l 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.
  7
    Our clarification of Lockart could be read to conflict with the
Eighth Circuit’s decision in Chronister v. Bryco Arms, 125 F.3d 624
(8th Cir. 1997). In Chronister, the court held that the use of a
handgun in contravention of an express warning could be a
“reasonably anticipated use” under Missouri law “if that misuse is
reasonably foreseeable.” Id. at 627. There, the plaintiff used a
handgun for target practice without wearing hearing protection,
despite warnings to the contrary;      when the gun misfired, the
plaintiff sustained permanent hearing damage. Id. at 625. The
defendant argued that it could not have reasonably foreseen the use
of its gun without hearing protection, and, further, that “use of
a product that contradicts the product’s instructions or warnings
is not a ‘reasonably anticipated use.’” Id. at 627. The Eighth
Circuit rejected both arguments.
   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., 707 S.W.2d 371, 381 (Mo.
1986)(en banc).     The court then pointed to evidence that the
defendant “knew that some people used weapons without hearing
protection.” Chronister, 125 F.3d at 627. Thus, a jury could have
reasonably found that the plaintiff’s misuse of the gun was
nonetheless “reasonably foreseeable” by the defendant.
   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

                                  20
                                    2.

     We recognize that, under Louisiana law, comparative fault

principles generally account for a plaintiff’s negligent conduct.

See Kampen, 199 F.3d at 1199;       see also Bell v. Jet Wheel Blast

Div. of Ervin Indus., 462 So.2d 166 (La. 1985), and Thomas C.

Galligan, The Louisiana Products Liability Act: Making Sense of It

All, 49 La.L.Rev. 629, 685 (1989)(stating “the obvious”: “that the

[LPLA] makes no change in Louisiana’s comparative fault law”). But

it is argued that our view of Kampen’s “use,” combined with our

view of the interrelationship between warnings and reasonably

anticipated use, impermissibly conflates “product misuse” and a

plaintiff’s comparative fault.           The argument goes that we are

making “reasonably anticipated use” do the work that comparative

fault is intended to do by including Kampen’s negligence in getting

under the car as part of his “use” of the jack.

     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


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, 125
F.3d at 627. If the plaintiff had not provided such proof, we
presume that the plaintiff could not have established that his
admitted misuse of the gun was nonetheless a reasonably anticipated
use.

                                    21
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 product....” LA.REV.STAT.ANN. § 9:2800.54(A).    That language

raises “reasonably anticipated use” -- a concept that necessarily

includes some aspects of a plaintiff’s conduct -- to the 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 plaintiff’s 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 plaintiff’s 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 manner

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


                                 22
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 plaintiff’s 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


                                        23
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 device[], had [it] been left in place, would have more likely

than not prevented the injury.”         Johnson, 701 So.2d at 1365

(emphasis   added).     After   reviewing   the   evidence,   the   court

concluded that the plaintiff had “failed to prove that a saw

properly equipped with a gravity guard would, more probably than

not, have caused his injuries.”         Id. at 1366.      It therefore

“perceive[d] no manifest error in the jury’s conclusion that [his]

use of the unguarded saw was not reasonably anticipated....”          Id.

In other words, the court found the plaintiff’s misuse of the saw

to be determinative of the reasonably anticipated use question

because the plaintiff’s damages were causally linked to that

misuse. As Kampen’s damages were unquestionably linked, insofar as

causation is concerned, to getting under the car, we break no new

ground in this case.8


  8
   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, 580 So.2d at 688. The
court affirmed the trial court’s finding that using 10 gallons of
water (instead of 20 gallons, as the label instructed) for spraying
was a “reasonably foreseeable (mis)use of the product.” Id. at
691. By contrast, the court reversed the trial court on whether
using the wrong product-to-acre ratio was a “reasonably foreseeable

                                   24
                                  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 cases 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, 989 F.2d at 868.        All that remains, then, is that we

examine the summary judgment record to see if the Kampens adduced

such evidence.

     The deposition testimony of Dr. Tom Shelton, the plaintiff’s

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




misuse.” Id. at 693. What accounts for the difference is this:
the evidence showed that varying the amount of water (at least
within 10 to 20 gallons) would not have changed the product’s
effectiveness, but that varying the product-to-acre ratio would
have. See id. at 689-91, 691-94. Thus, the court, even under the
broader “normal use” standard, required a causal link between
product misuse and damages (i.e., the persistence of weeds and
consequent damage to the soybean crop despite treatment with the
herbicide) in order for misuse to bar a plaintiff’s claims. See
id. at 694 (“The record does not support the trial court’s finding
that the low crop yields ... were caused by a product
defect.”)(emphasis added).

                                   25
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 under the vehicle,
     using the jack as the supporting member of the vehicle?

     SHELTON: That’s reasonable to anticipate that someone
     would do that, yes.

                                 * * * * *

     Q:    And 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

                                    26
“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 expertise

“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 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   their   propensities       for



                                            27
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 conclusory, unsupported assertions

are   insufficient   to   defeat    a    motion   for   summary   judgment.”

Marshall v. East Carroll Parish Hospital Services District, 134

F.3d 319, 324 (5th Cir. 1998).

                                    IV.

      We thus find that the Kampens have not adduced competent

summary judgment evidence showing that Kampen’s use of the jack in

contravention of 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

Kampen’s damage arose from a reasonably anticipated use of the

jack.    We therefore AFFIRM the judgment of the district court.9

  9
   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 was unreasonably
dangerous. See Kampen, 119 F.3d at 1201-05. It is unnecessary to
reach the unreasonable dangerousness issue in light of our decision
here that Kampen’s injuries did not arise from a reasonably
anticipated use of the jack. See LA.REV.STAT.ANN. § 9:2800.54(A).

                                        28
AFFIRMED.




            29
BENAVIDES, Circuit Judge, with whom POLITZ, Chief Judge, SMITH,
WIENER, STEWART and 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

car 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


                                   30
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 Kampen

had   not   read.   While   Kampen    was   in   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 liability 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


                                      31
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. § 9:2800.53(7).10

       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, 49 LA. L.

REV. at 584.       Before the LPLA’s September 1988 effective date, a

Louisiana products liability claimant had to show that “his damage

resulted from a condition of the product that made it unreasonably

dangerous to normal use.”               Bloxom v. Bloxom, 512 So. 2d 839, 834

(La. 1987) (emphasis added) (citations omitted).                          “Normal use”

included “all intended uses, as well as all foreseeable uses and

misuses     of     the    product.”           Id.    (citations    omitted).          The

introduction of the phrase “reasonably anticipated” was intended to

narrow the test for the “uses” that the manufacturer had to take

into account.       See Kennedy, 49 LA. L. REV. at 584; see also Dunne v.

Wal-Mart Stores, Inc., 679 So. 2d 1034, 1037 (La. App. 1996); Myers



  10
    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.

                                              32
v.    American     Seating      Co.,      637    So.     2d   771,   775     (La.    App.

1994)(citations omitted); Daigle v. Audi, 598 So. 2d 1304, 1307

(La. App. 1992); Walker v. Babcock Indus., Inc., 582 So. 2d 258,

259 (La. App. 1991).

      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, 637 So. 2d at 779

(“Although     this     use    may   be    a    conceivable     use,    it    is    not   a

reasonably anticipated use.”); Delphen v. Department of Transp. &

Dev., 657 So. 2d 328, 333 (La. App. 1995) (“The more restrictive

scope of liability [under the reasonably anticipated use standard]

was    meant     to    avoid    prior      confusion       because     virtually      any

conceivable use is foreseeable.”) (citation omitted); see also

Kennedy, 49 LA. L. REV. at 596 (“‘Reasonably anticipated use’ . . .

convey[s] the important message that the manufacturer is not

responsible      for    accounting        for    every    conceivable        foreseeable

use.”). For example, a manufacturer might conceivably foresee, but

would not reasonably anticipate, that “a consumer might use a soft

drink bottle for a hammer, might attempt to drive his automobile

across water or might pour perfume on a candle to scent it.”

Kennedy, 49 LA. L. REV. at 586.            By excluding such situations, “the

drafters of the LPLA believed that ‘reasonably anticipated use’

would serve the same purpose as ‘normal use’ but do so more


                                            33
efficiently.”    Id. at 585.     As the majority acknowledges, however,

the boundaries of the reasonably anticipated use test nevertheless

remain imprecise.

                                     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 car 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



                                     34
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 conclusion 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 tool11 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


  11
    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.

                                35
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.12                           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, those courts that have construed Louisiana’s reasonably


  12
    Indeed, the drafters of the LPLA, who considered the Model
Uniform Product Liability Act (“MULPA”) in drafting the LPLA, see
Kennedy, 49 LA. L. REV. at 570, eschewed the phrase “reasonably
anticipated conduct,” which is used in MULPA, and instead chose the
phrase “reasonably anticipated use.” Compare Model Uniform Product
Liability Act, § 102, reprinted in 44 FED. REG. 62714 (1979), with
LA. REV. STAT. ANN. § 9:2800.53(7).

                                              36
anticipated use element since the Act was adopted have considered

the plaintiff’s “use” of the product to be his direct interaction

with the product.        See Lockart, 989 F.2d at 868 (the use of an

excavator was hanging a pontoon from the bucket of the excavator

with a chain); Myers, 637 So. 2d at 779 (the use of a folding chair

was standing on the back instead of the front portion of its seat);

Delphen, 657 So. 2d at 333 (the use of the bicycle was riding it

with the front tire loose).13

       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.14       Isuzu must have anticipated the


  13
    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).
  14
    Although Isuzu presented some evidence that Kampen used the
jack on an uneven surface, Kampen’s expert testified that the
physical evidence suggested that the base of the jack was “flat or

                                    37
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, 49 LA. L. REV.

at 586, or hanging a steel pontoon from the teeth of an excavator,

see Lockart, 989 F.2d at 864.

       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 Lockart, 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, 989 F.2d at 868.15   In Kampen’s


relatively flat” when it collapsed, which is accepted as true for
summary judgment purposes.
  15
    The majority argues that Johnson v. Black & Decker U.S., Inc.,
701 So.2d 1360, 1362 (La. App. 1997), somehow undermines my
understanding of use. Johnson, however, involved the plaintiff’s
use of a miter saw after a safety guard designed to protect the
user’s hands had been removed. Pre-LPLA case law held that the use
of a saw after the removal of a safety guard was not a normal use.
See Berry v. Commercial Union Ins. Co., 565 So.2d 487 (La. App.
1990). The Johnson court concluded that the use of a saw after the
removal of a guard was a fortiori not a reasonably anticipated use.
Johnson, 701 So.2d at 1365. Unlike the plaintiff’s use of the saw
in Johnson after its unanticipated alteration that made the saw
more dangerous, Kampen used the jack in this case in the condition
that Isuzu supplied it and in the manner instructed. Holding that
Kampen’s getting under the car is relevant to the reasonably
anticipated use analysis would be like the Johnson court holding
that Johnson’s use of a saw manufactured without a guard was not

                                  38
case, getting under the car while it was being held aloft by the

jack was not a “use” of the jack within the meaning of the Act any

more than his retrieving a hat that is blown under the elevated car

would be “using” the jack, or for that matter, than a child’s

crawling underneath the elevated car to retrieve a toy would be

“using” the jack.    Defining the scope of use in this way is

consistent with the purpose of the reasonably anticipated use

requirement: “to express the types of product uses and misuses by

a consumer that a manufacturer must take into account when he

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.”   Kennedy,   49 LA. L. REV. at 584.

     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 unanticipated 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,




reasonably anticipated because he placed his hand in front of the
unguarded blade.

                                39
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 chair seat, would the chair jackknife.”

637 So. 2d at 779.   In other words, the hands-on (more precisely

feet-on) way in which the claimant handled the product caused it to

exhibit a dangerous characteristic that the product would not have

exhibited if it had been used in a manner that the manufacturer

could reasonably have expected.16    That is simply not the case we


  16
    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, 701
So.2d 1360 (La. App. 1997), does not undermine my understanding of
use and the required relationship between the plaintiff’s conduct
and the product’s failure. In Johnson, the plaintiff severed two
fingers using a miter saw. The saw as manufactured was equipped
with a guard, but that guard had been removed. The court explained
that the “outright removal of the guard, without even a substandard
replacement, was not a reasonably anticipated alteration,” that
pre-LPLA case law held that use of a saw after a guard was removed
was not a normal use, and that a fortiori the use of a saw after a
guard was removed was not a reasonably anticipated use. 701 So.2d
at 1365.

   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

                                40
have here.      The forces operating on the jack in this case — only

mass and gravity — were identical to those that would have been at

play had Kampen been changing a tire.         If anything, the forces were

less: Kampen testified that he did not touch the underside of the

car before the jack collapsed; had he been changing a tire, some

force would have been transmitted to the car by loosening and

removing the lug nuts, pulling the flat tire off, putting the spare

tire back on the wheel lugs, and resecuring the lug nuts.           In no

way whatsoever did the fact that Kampen was under the car make the

jack’s failure any more likely to occur.          The risk that Isuzu was

required   to    take   into   account   in    designing,   manufacturing,

furnishing, and warning about the jack was that it would collapse




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. 701 So.2d at 1365.
In effect, the Johnson court gives plaintiffs a route to circumvent
the reasonably anticipated use analysis; that is, if the plaintiff
can show that his injuries would have occurred in a reasonably
anticipated use of the product then it does not matter that his
actual use was not reasonably anticipated. Thus, the requirement
of a causal connection between the plaintiff’s misuse and the
plaintiff’s damages established by the Johnson court provides a
shield for the plaintiff against his unanticipated use. That is a
far cry from holding, as the majority does, that the reasonably
anticipated use element bars recovery whenever there is a causal
link between any aspect of the plaintiff’s conduct and his damages.
Neither should Johnson be read to mean that there need not be any
relationship between the plaintiff’s conduct and the failure of the
product before that conduct is relevant to the reasonably
anticipated use analysis.

                                    41
spontaneously   under   the    weight   of   the   vehicle   that   it   was

purportedly designed and manufactured to lift and hold aloft for at

least as long as it takes to change a tire (i.e., the risk that it

would fail when used as reasonably anticipated).        Producing a jack

that would have been safe for Kampen to achieve his goal — checking

for the source of tire noise — would have required nothing more

than what was required to make the jack safe and effective for its

intended purpose.

     There is no Louisiana case in which a court found that a

plaintiff’s use was not reasonably anticipated when, as here, there

was absolutely no nexus between the plaintiff’s 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, 250 So.2d at 756 (defining “defective” as “unreasonably

dangerous to normal use”).        The LPLA drafters plainly did not

intend to change the essential function of the misuse element. See

Kennedy, 49 LA. L. REV. at 584.     In fact, every case on which the

majority relies involved plaintiff behavior that contributed in

some manner to a product’s failure.

     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


                                   42
use of the jack.     Although it is true that Kampen would not have

suffered his precise injuries — conceivably none at all — had he

not been underneath the vehicle, the plain language of the LPLA

does not require that the damages resulting 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 LA. REV. 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 plaintiff’s

case, such as proximate cause17 and design defect,18 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


  17
    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. § 2800.54(A).
  18
    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

                                   43
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 a 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 LA. REV. STAT. ANN. § 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 car 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   RV’s   use   was   not

reasonably anticipated because the plaintiff’s conduct worsened the


                                   44
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 Kampen’s damages 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., 462 So. 2d 166 (La. 1985); Thomas C. Galligan, The

Louisiana Products Liability Act: Making Sense of It All, 49 LA. L.

REV. 629, 685 (1989) (stating “the obvious”: “that the [LPLA] makes

no change in Louisiana’s comparative fault law”).            Indeed, the

impetus for applying comparative fault in products liability cases

is to provide the proper incentives to both the product user and

the product manufacturer.      See Bell, 462 So.2d at 171-72.       As we

explained   when   adopting   comparative   fault   in   strict   products

liability under our maritime jurisdiction:

     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., 716 F.2d 1425, 1433 (5th Cir. 1983) (en

banc).   Treating Kampen’s negligence as a complete bar to his

recovery in this case would undermine the manufacturer’s incentives

                                   45
to produce a product that is safe in its reasonably anticipated use

by        immunizing    the    manufacturer        in    those      cases       in    which     the

plaintiff’s damages result from a reasonably anticipated use of the

product, but are also magnified by his own misconduct.

           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., 687 So.2d 124 (La. App. 1996).

If        the   Louisiana      legislature         had   intended         the        reasonably-

anticipated-use           requirement         to    function        as      a    contributory

negligence bar, it could have said so.19                      As Louisiana had, at the

time of the LPLA’s enactment, only recently supplanted its old

contributory        negligence      bar   by       adopting        comparative         fault    in

ordinary tort situations, ascribing such an intention to the

state’s products liability theory is particularly counterintuitive.



     19
    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.

                                              46
The majority provides little assurance that comparative negligence

would still play a viable role in Louisiana product liability law,

given its example of a plaintiff who might still maintain a claim

under the LPLA.     The majority asserts that Louisiana’s comparative

fault regime is adequately respected and maintained if a jury is

allowed to judge the comparative negligence of an individual who

improperly      manipulates    a   defective     jack.       In    the    majority’s

hypothetical, the plaintiff does not act in contravention of a

warning, the manufacturer has not provided adequate instructions,

the   correct    manner   of   usage    is   not    clear,    and      the     improper

positioning of the jack is not obviously dangerous.                           That the

majority   must    stretch     this    far   —   relying     on    a    hypothetical

plaintiff who is not even clearly negligent — illustrates the

degree to which it has subsumed comparative fault within its

conception of use that is not reasonably anticipated.                         Under the

majority’s holding, one is hard pressed to envision a plaintiff who

interacts with a product in such a way that he is negligent and yet

has   still   engaged     in   a   reasonably      anticipated         use;    this   is

particularly so for the class of individuals who fail to heed

warnings accompanying the products they use.                      By allowing all

plaintiff conduct that increases the risk of damages to define use,

the majority comingles reasonably anticipated use with comparative

negligence to come up with use that is not reasonably anticipated.



                                        C.

                                        47
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


                                48
 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, 94

  F.3d 932, 937 (5th Cir. 1996) (taking judicial notice of the

 “ubiquity of plastic ‘swipe’ cards in our modern society”); id.

 at 946 (Barksdale, J., dissenting) (taking judicial notice that

plastic swipe cards “are very, very seldom, if ever, blank on one

                              side”).

 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., 542 So. 2d 1081, 1086 (La.

1989) (explaining that a power company’s placement of electrical

lines “may demand precautions against ‘that occasional negligence

    which is one of the ordinary incidents of human life and

 therefore to be anticipated’”)(citing Murphy v. Great Northern

  Ry. Co., 2 Ir. Rep. 301 (1897))(other citations omitted).    No

   doubt there will be overlaps between unreasonable uses of a

 product and uses of a product that the manufacturer should not


                                49
 reasonably anticipate.   A use may be so unreasonable that, as a

matter of law, no manufacturer should be held to have reasonably

 anticipated it.   See, e.g., Hunter, 80 F.3d at 137 (per curiam

    denial of rehearing); Lockart, 989 F.2d at 868.    Kampen’s

actions, though, do not fall within that category.    Even assuming

 that he acted negligently in getting under the jacked-up car, a

 jury could still find that his actions were or should have been

reasonably anticipated by the manufacturer of the jack.   Had this

 case not been dismissed at the summary judgment stage, I harbor

  little doubt that a Louisiana jury would have seen to it that

  Kampen not be unduly rewarded for any irresponsibility on his

                               part.

                                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-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 case, two experienced workers suspended a steel


                                50
pontoon from the teeth of the excavator’s bucket with chains and

then got underneath the pontoon to work on it.    989 F.2d at 865.

 The chains slipped and the pontoon fell, killing one of the men

  and injuring the other.    Id.   The Lockart plaintiffs tried to

   turn the warning against the manufacturer, arguing that the

   presence of the instruction indicated that the manufacturer

 reasonably anticipated that workers would use the teeth of the

  excavator’s bucket as a suspension device.     We rejected that

                         argument, noting:

 When a manufacturer expressly warns against using the 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.

 Id. at 867.20   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 pontoon by a chain from the teeth of an excavator bucket

“should have been obvious to the ordinary consumer and certainly



  20
    The court in Lockart refused to allow the plaintiff to “hoist
[the defendant] by its own petard.” 70 F.3d at 866. Clearly, any
given warning may not by itself demonstrate that a warned-against
use is reasonably anticipated. A manufacturer should not be held
responsible for a use not reasonably anticipated solely because
such a use is conceivable and because the manufacturer took the
added precaution of warning against the conceivable, but not
reasonably expected, use. At the same time, it cannot logically be
said that any warning takes the proscribed act out of the realm of
reasonably anticipated use.

                                   51
 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.     70 F.3d 803, 806 & n.4 (5th Cir. 1995), reh’g

denied with per curiam opinion, 80 F.3d 136 (5th Cir. 1996).       For

  this reason alone, then, the panel majority’s decision in the

   instant case was not in conflict with Lockart. Furthermore,

       placing the emphasis on the obviously dangerous nature of

       plaintiffs’ interactions with products is consistent with

  Louisiana state court decisions that have found certain uses

  outside the scope of reasonably anticipated use.       See, e.g.,

Myers, 637 So. 2d at 779 (“[A]ny danger presented by standing on

 a folding chair is an obvious danger to a reasonable person.”);

Delphen, 657 So. 2d at 333-34 (“Danger imposed by the wheel would

             have been obvious to a reasonable person.”).

  Even more basically, the text and structure of the LPLA make

plain that the presence of an adequate warning is not dispositive

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. § 2800.56(2).21

  21
    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

                                  52
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, 701 So.2d 1360, 1365

 (La. App. 1997) (citing Hunter, 70 F.3d 803).   Notwithstanding

 the majority’s claim that it may rely on a warning to dismiss a

   plaintiff’s use as not reasonably anticipated even without

   explicit statutory authority to do so, it is not proper to

    ascribe surplusage or redundancy to legislative drafting.

 Moreover, adopting a per se rule that any warned-against use is

  not reasonably anticipated would produce harsh and unintended

    results, allowing a manufacturer to insulate 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.



construction. See Uniroyal Goodrich Tire Co. v. Martinez, No. 95-
1159, 1998 WL 352929, at *1 (Tex. July 3, 1998).

                                53
       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.22    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, should 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



  22
    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 26.

                                  54
be no.23   Yet the majority will now require a plaintiff to parade

expert witnesses before the jury to state what in many cases will

                         be the obvious.24

  23
    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 pots 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.
  24
    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 17 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

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   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 that the jury should take into

consideration when resolving the essentially factual question of

     whether the plaintiff’s 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 Lockart

 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.   Kampen discharged his

 summary judgment burden by presenting evidence that he used the



that expert testimony is not required and those uses that are not.

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 jack to raise the car 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 car, 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.




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