     Case: 11-30501     Document: 00511713093         Page: 1     Date Filed: 01/04/2012




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

                                                                            FILED
                                                                          January 4, 2012

                                     No. 11-30501                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



YOLANDA PEART,

                                                  Plaintiff - Appellant
v.

DOREL JUVENILE GROUP, INCORPORATED,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:09-CV-7463


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Yolanda Peart appeals the district court’s grant of summary judgment.
The district court held that she is not entitled to recover under the Louisiana
Products Liability Act, because she could not show that Dorel Juvenile Group
Incorporated’s failure to provide an adequate warning was the cause of her
injuries. Because there are no errors and no genuine issues of material fact, we
AFFIRM the judgment of the district court, based on its well reasoned opinion.


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-30501    Document: 00511713093    Page: 2   Date Filed: 01/04/2012



                                 No. 11-30501

                                       I.
      On October 17, 2008, Appellant Yolanda Peart, a Stein Mart employee,
injured her left arm and left shoulder when she fell from a step stool while
stocking purses at the department store’s Metairie, Louisiana location. The step
stool was a two-step, folding stool manufactured by the Appellee, Dorel Juvenile
Group, Inc. (“Dorel”).
      The stool contained a label on the front, right leg that said “CAUTION
KEEP BODY CENTERED BETWEEN THE SIDE RAILS. DO NOT OVER-
REACH. SET ALL FOUR FEET ON FIRM LEVEL SURFACE. WEAR SLIP-
RESISTANT SHOES.” The stool also contained a label that warned that the
stool had a “Light Household Duty Rating Working Load: 200 lbs.” Peart
conceded during discovery that she weighed more than 250 pounds at the time
of the accident, that she had not read the warning labels before stepping on the
stool, and that the stool had been improperly used in a workplace setting for
many years. Peart contends, however, that the stool did not fail because she
weighed more than the recommended weight limit but because the stool had
exceeded its useful life.
      Peart filed suit claiming that the stool was defective in design,
construction, and warnings. Specifically, Peart argued that the stool should
have contained a warning that the step stool has a limited useful life and that
it should be regularly inspected to determine whether it has reached the end of
its useful life. Dorel filed a motion for summary judgment three weeks after the
court-imposed deadline for filing motions.      In response to the motion for
summary judgment, Peart abandoned all theories of liability except for the claim
that the stool contained inadequate warnings. The district court granted the
motion for summary judgment, holding that Peart could not prove that Dorel’s
failure to include adequate warnings was the cause of her injuries. Peart filed
this appeal, contending that the district court made a material error in granting

                                       2
   Case: 11-30501    Document: 00511713093      Page: 3    Date Filed: 01/04/2012



                                  No. 11-30501

the motion for summary judgment outside of its deadline and that the district
court erred by dismissing her products liability claims.
                                        II.
                                        A.
      First, Peart   contends that the motion for summary judgment was
untimely.   Rule 56(b), however, allows a defendant to move for summary
judgment at any time. Accordingly, the district court may grant summary
judgment any time before trial. See Bynum v. FMC Corp., 770 F.2d 556, 577-78
& n.32 (5th Cir. 1985). Because Peart cannot establish that she was prejudiced
by the district court’s consideration of Dorel’s motion, we find the district court
did not abuse its discretion. See Prudhomme v. Tenneco Oil Co., 955 F.2d 390,
392-96 (5th Cir.), cert. denied, 506 U.S. 826 (1992).
                                        B.
      Peart also contends that the district court erred by rejecting her argument
that the stool should have contained a warning concerning the useful life of the
product and by dismissing her lawsuit. The Louisiana Products Liability Act
requires that a manufacturer use reasonable care in deciding whether to provide
a warning for its product. LA. REV. STAT. § 9:2800.57 (2011). The plaintiff,
however, bears the burden of proving that, “but for” the inadequate warning, the
accident would not have occurred. See Brown v. Parker-Hannifin Corp., 919 F.2d
308, 311 (5th Cir. 1990). At her deposition, Peart testified that she did not read
the pre-existing warning labels on the step stool. Thus, even if we were to find
that Dorel acted unreasonably by not including a warning about the useful life
of the step stool, Peart cannot show that Dorel’s inadequate warning was the
cause of her injuries, because she did not read the warnings. See Ortolano v.
BDI Marketing, 930 So. 2d 192, 196 (La. Ct. App. 2006) (affirming summary
judgment because “[the plaintiff] admitted in his deposition that he did not read
the entire label, therefore, the trial court found that he would not have been

                                        3
   Case: 11-30501    Document: 00511713093      Page: 4    Date Filed: 01/04/2012



                                  No. 11-30501

aware of a ‘sufficient’ warning, even if one had existed”). In like manner, we
hold that the district court did not err in dismissing Peart’s claims for failure to
give a warning that would not have been read and, consequently, could not have
been the “but for” cause of her injuries.
                                        III.
      We hold that the district court did not err by granting summary judgment
in favor of Dorel. Essentially for the reasons given by the district court in its
well-considered opinion, the judgment is
                                                                      AFFIRMED.




                                         4
