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Lavergne v. America's Pizza Company2/5/2003
o hats; one as the supposed manufacturer of the sauce, and another as an employer of a potentially negligent employee. While the LPLA's exclusivity provision eliminates a general negligence cause of action for damages caused by a product, it does not eliminate the liability of a manufacturer for damages caused by the negligent use of its product by one of its employees. Thus, America's Pizza cannot escape its liability for the negligence of its employee by claiming to be the manufacturer of the sauce, even if it was, in fact, the manufacturer. This is a simple negligence claim, not one under the LPLA. We agree with the trial court's disposition of this issue.
America's Pizza's other assignments of error deal with the finding of liability, the apportionment of fault, and the amount of damages awarded. The trial court's factual findings are subject to review under the manifest error analysis. Stobart v. State Through DOTD., 617 So.2d 880 (La.1993). In order to determine whether liability exists, a duty-risk analysis is used. Syrie v. Schilhab, 96-1027 (La. 5/20/97), 693 So.2d 1173. Under this analysis, the plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the defendant breached the duty, and the risk of harm was within the scope of protection afforded by the duty breached. Id.
It is clear that America's Pizza owed a duty to its patrons to protect them from harm. It is the duty of every "restaurant operator to use reasonable care in the protection of his patrons and guests." Saucier v. Players Lake Charles, L.L.C., 99-1196, p.10 (La.App. 3 Cir. 12/22/99), 751 So.2d 312, 319 (quoting Matranga v. Travelers Ins. Co., 55 So.2d 633, 636 (La. App. Orl. 1951). The waitress testified that she was aware that the sauce was hot enough to burn someone. Yet, she still placed the hot sauce within reach of a three-year-old child. The trial court found that this act was a breach of America's Pizza's duty to protect its customers and that this breach was a cause-in-fact of Sean's burn. There is nothing in the record that shows this finding to be manifestly erroneous or clearly wrong. Accordingly, the finding that America's Pizza was liable for Sean's injuries will not be disturbed.
A trial court's allocation of fault is also a finding of fact and is subject to the manifest error standard of review. Adkinson v. Brookshire Grocery Co., Inc., 95-1021 (La.App. 3 Cir. 1/31/96), 670 So.2d 453, writ denied, 96-514 (La. 4/8/96), 671 So.2d 339. In comparing the fault of the parties, various factors may influence the degree of fault assigned, including:
(1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La.1985).
Our consideration of these factors suggest that the majority of the fault must rest with America's Pizza. As noted above, the waitress knew the sauce was hot enough to cause burns. This knowledge put her in a superior capacity to the Lavergnes. Even if she had warned the Lavergnes about the sauce, they had no way of knowing that the sauce was at a high enough temperature to cause the severe damage it did. Again, the waitress knew of this risk and still placed the sauce within the reach of a young child. The record indicates no manifest error in the trial court's allocation of fault.
Final
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