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Lavergne v. America's Pizza Company2/5/2003
AFFIRMED.
In this appeal, America's Pizza claims that the trial court erred in finding them liable for an injury caused to Sean Lavergne, the minor child of the Plaintiffs, Katherine and Larry Lavergne. America's Pizza also challenges the amount of the award, the allocation of fault, and the finding that the suit should not have been dismissed under the Louisiana Products Liability Act (LPLA). For the following reasons, we affirm the decision of the trial court.
On May 12, 2000, the Lavergnes and their three children went to the Pizza Hut restaurant in Ville Platte. The restaurant is owned by America's Pizza. After being seated in a booth, the family placed their order. As an appetizer, the Lavergnes ordered breadsticks with two extra cups of dipping sauce. Their waitress first brought out the breadsticks and only one cup of the sauce. After being reminded about their request for extra sauce, the waitress walked to the kitchen and obtained the additional two cups of the dipping sauce. When she returned, she placed one of the extra cups of heated sauce within the reach of the then three-year-old Sean. Within seconds, Sean had spilled the sauce on his legs, resulting in a severe second-degree burn.
The Lavergnes filed this suit, claiming that the waitress was negligent in placing the sauce she knew to be hot within the reach of a three-year-old child. The Lavergnes also initially brought claims under the LPLA, claiming a failure by the waitress to warn of the high temperature of the sauce. After the close of the Plaintiff's evidence, the trial court granted America's Pizza's request for involuntary dismissal of the LPLA claims, finding the Lavergnes had failed to prove any cause of action under the LPLA. At the close of all the evidence, the trial court found that the waitress breached her duty to protect the patrons from harm by placing the hot sauce within the reach of the child and that the breach was a cause of Sean's injuries. However, the trial court further found that the Lavergnes were also at fault, based on a lack of due diligence in their supervision of Sean. The trial court assessed America's Pizza with 70% liability for the accident and the parents with 30%. The trial court awarded the Lavergnes $15,000 in general damages and $152.44 in medical expenses. It is from this decision that America's Pizza appeals.
America's Pizza asserts four assignments of error on appeal. They claim the trial court erred in finding liability on their part, in assessing 70% of the fault to them, in refusing to dismiss all claims in this case under the exclusivity clause of the LPLA, and finally, in awarding the Lavergnes $15,000 in general damages. We will deal with the LPLA claims first.
Louisiana Revised Statutes 9:2800.52 states in pertinent part that the LPLA "establishes the exclusive theories of liability for manufacturers for damage caused by their products." The LPLA contains an exclusive remedy provision limiting a plaintiff's theories of recovery against a manufacturer of an allegedly defective product to those established by the LPLA. Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254 (5th Cir. 2002). In the judgment on appeal, the Lavergnes do not claim that the product was defective in construction or design, nor do they make any other claim under the LPLA that the sauce itself was unreasonably dangerous. They do not even claim that the temperature at which the sauce was stored was so excessively high as to be unreasonably dangerous. Rather, they claim that the injury was caused by the negligent placement of the heated sauce within reach of a three- year-old child, not by any defect in the sauce itself.
Here, America's Pizza wears tw
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