     Case: 15-30276      Document: 00513224686         Page: 1    Date Filed: 10/08/2015




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


                                    No. 15-30276
                                                                                  FILED
                                                                            October 8, 2015
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
TOBY ARANT,

                                                 Plaintiff – Appellant
v.

WAL-MART STORES, INC., TAHSIN INDUSTRIAL, CORP., USA,

                                                 Defendants – Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                                No. 5:13-CV-2209


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Toby Arant appeals the summary-judgment dismissal of his products
liability claims against Wal-Mart Stores, Inc. (“Wal-Mart”), and Tahsin
Industrial, Corp., USA (“Tahsin”). For the following reasons, we affirm.
                             STATEMENT OF FACTS
       Arant purchased two 1” ratchet straps, manufactured by Tahsin, at Wal-
Mart in June or July of 2011. He used the straps to secure a lock-on tree-stand
to a tree for hunting. On September 9, 2012, when Arant climbed onto the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 15-30276
stand, the straps failed, and Arant fell over twenty feet to the ground,
sustaining serious injuries.
       Arant sued Wal-Mart and Tahsin in Louisiana state court under the
Louisiana Products Liability Act (“LPLA”), claiming the straps were defective
and unreasonably dangerous. He also brought a claim for breach of warranty
against redhibitory defects. 1 Wal-Mart and Tahsin removed the case to federal
court and filed a motion for summary judgment. The district court granted the
motion, and Arant timely appealed.
                              STANDARD OF REVIEW
       “We review a grant of summary judgment de novo, applying the same
standard as the district court.” Broussard v. Procter & Gamble Co., 517 F.3d
767, 769 (5th Cir. 2008). A motion for summary judgment is properly granted
if there is no genuine issue of material fact. Fed. R. Civ. P. 56(c); Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). “We review all evidence in the light most
favorable to the nonmoving party.” Broussard, 517 F.3d at 769. The nonmoving
party, however, cannot satisfy his summary judgment burden with conclusory
allegations, unsubstantiated assertions, or only a scintilla of evidence. Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). In the absence of proof,
the court does not “assume that the nonmoving party could or would prove the
necessary facts.” Id. (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888
(1990)).
                                      DISCUSSION
       To maintain a products liability action under the LPLA, a plaintiff must
show that his damages were proximately caused by an unreasonably
dangerous characteristic of the product and that his damages arose from a



       1On appeal, Arant does not raise the district court’s dismissal of his redhibitory defect
claim. We consider Arant to have waived that issue.
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                                       No. 15-30276
reasonably anticipated use of the product. La. Rev. Stat. Ann. § 9:2800.54(A).
The plaintiff bears the burden of proving that a product is unreasonably
dangerous, and must establish either: defective construction or manufacturing,
defective design, inadequate warning, or breach of express warranty. Id.; see
Stahl v. Novartis Pharms. Corp., 283 F.3d 254, 260–61 (5th Cir. 2002). Defects
are not presumed by the mere fact that an accident or injury occurred.
Krummel v. Bombardier Corp., 206 F.3d 548, 551 (5th Cir. 2000).
       On appeal, Arant challenges the district court’s dismissal of his theories
of defective construction and inadequate warning. First, for a claim of defective
construction, Arant had to offer evidence that the product “deviated in a
material way from the manufacturer’s specifications or performance standards
for the product,” “at the time the product left its manufacturer’s control.” La.
Rev. Stat. Ann. § 9:2800.55 (emphasis added); Jenkins v. Int’l Paper Co., 945
So. 2d 144, 150 (La. Ct. App. 2006). Arant asserts that at the time of his
accident the webbing of the straps tore in half, and the hooks on the straps did
not bend. He maintains that he purchased the ratchet straps within a year of
their failure, used and stored the straps properly, and still the straps tore. He
offers, however, neither evidence nor expert testimony that indicates the
dangerous characteristic of the straps—the specific deviation in construction—
that caused his injuries. 2 See Morris v. United Servs. Auto. Ass’n, 756 So. 2d


       2 Arant provides only his factual account of the accident, and the events preceding it.
But “[a] review of the case law involving Louisiana products liability claims reveals that
courts generally demand, or at minimum favor, expert testimony to prove an unreasonably
dangerous defect in composition or design of a product.” Haskins Trucking Inc. v. Goodyear
Tire & Rubber Co., No. 07-0585, 2008 WL 1775272, at *5 (W.D. La. Apr. 17, 2008). “The
principal means by which a products-liability plaintiff submits material evidence of either a
defective design or a failure to warn is through an expert witness’s report.” Brown v.
Caterpillar, Inc., 54 F. App’x 794, at *2 (5th Cir. 2002) (per curiam). “A court cannot assess
whether a product is ‘unreasonably dangerous’ without such information.” Id.; cf. Grenier v.
Med. Eng’g Corp., 99 F. Supp. 2d 759, 764 (W.D. La. 2000) (rejecting plaintiff’s defective
design claim because of a lack of expert testimony).

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549, 558 (La. Ct. App. 2000). And to survive summary judgment, Arant cannot
simply rely on a purely speculative inference of defective construction from the
fact that the straps failed, i.e. that an accident occurred. See Ayala v. Enerco
Grp., Inc., 569 F. App’x 241, 247 (5th Cir. 2014) (per curiam) (“A plaintiff must
offer evidence of a defect based on more than mere conjecture . . . .”); Morris,
756 So. 2d at 558 (explaining that “[i]t is incumbent” for a claimant to
demonstrate “how the product in question materially deviated from [the
manufacturer’s] standards so as to render it ‘unreasonably dangerous’”).
      Conversely, Wal-Mart and Tahsin presented expert testimony that the
straps failed because they had been left outside, exposed to the elements, for
over three years. Wal-Mart’s and Tahsin’s experts opined that the straps were
attached to the tree over multiple annual growth cycles, resulting in visible
discoloration, fraying, and wear. Although Arant maintains that he owned the
straps for only a few months, he presents no evidence or explanation of the
strap’s defective construction. As an alternative argument, he contends that
under res ipsa loquitur his circumstantial evidence is sufficient to establish an
issue of fact. The doctrine of res ipsa loquitur allows for an inference of
negligence or liability when the circumstances of an accident are so unusual as
to preclude other probable explanations. See Lawson v. Mitsubishi Motor Sales
of Am., Inc., 938 So. 2d 35, 43–44 (La. 2006). But for res ipsa loquitur to apply,
a plaintiff must “sufficiently exclude inference of the plaintiff’s own
responsibility or the responsibility of others besides [the] defendant in causing
the accident.” Id. at 50; Gladney v. Milam, 911 So. 2d 366, 371 (La. Ct. App.
2005) (explaining that “if there is an equally plausible explanation for the
occurrence, the doctrine is not applicable”). Again, Wal-Mart and Tahsin
presented expert and technical evidence to support their theory that the straps
failed due to prolonged exposure to the elements. And the circumstances of
Arant’s accident are not so unusual as to exclude other possible explanations
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                                 No. 15-30276
for the straps’ failure. Because reasonable hypotheses as to other causes of the
straps’ failure remain, Arant can not avail himself of res ipsa loquitur.
      Second, Arant alleges that the ratchet straps were unreasonably
dangerous because of an inadequate warning. To maintain an inadequate
warning claim, a plaintiff must demonstrate that “the product possessed a
characteristic that may cause damage and the manufacturer failed to use
reasonable care to provide an adequate warning of such characteristic and its
danger to users and handlers of the product.” La. Rev. Stat. Ann. § 9:2800.57;
see Krummel v. Bombardier Corp., 206 F.3d 548, 552 (5th Cir. 2000). But,
“[t]here is no duty to warn of dangers about which the buyer knows or should
be aware, and there is no duty to warn of the particular consequences that may
flow from improper usage when those consequences are readily cognizable.”
Hesse v. Champ Serv. Line, 758 So. 2d 245, 249 (La. Ct. App. 2000); see Batiste
v. Brown, 86 So. 3d 655, 661 (La. Ct. App. 2012) (granting summary judgment
on failure-to-warn claim where plaintiff had knowledge of the dangers
associated with the product). Arant suggests that the ratchet strap
instructions were too vague and inadequately advised buyers that the straps
may weaken when left outdoors. In deposition testimony, however, Arant
disclosed that he was aware of the risks associated with leaving a tree stand
and its components exposed to the elements, and stated that his injuries did
not result from inadequate warnings or instructions. Because Arant had
knowledge of the dangers associated with environmental exposure, Wal-Mart
and Tahsin had no duty under the statute.
      Arant failed to introduce any genuine issue of material fact that the
straps were unreasonably dangerous. Because we find the district court
properly granted summary judgment to Wal-Mart and Tahsin, we AFFIRM.




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