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Gladney v. Milam9/21/2005
Before WILLIAMS, PEATROSS and LOLLEY, JJ.
The plaintiffs appeal summary judgments in favor of the defendants, Terry Milam d/b/a U-Save Auto Rental, Empire Fire & Casualty Company ("Empire"), Bridgestone/Firestone, Inc., Bridgestone Corporation, Raymond Lindsey and Liberty Mutual Insurance Company ("Liberty Mutual"). The court dismissed plaintiffs' claims, finding that they could not prove the tire on their leased vehicle was defective. For the following reasons, we affirm.
FACTS
In February 2002, Raymond Lindsey leased a 1999 Chevy van owned by Terry Milam d/b/a U-Save Auto Rental ("U-Save"), which was located in Shreveport. The van was equipped with Firestone FR680 tires which were manufactured by Bridgestone/Firestone North American Tire, LLC. On February 23, 2002, at approximately 7:00 am, Bobbie Jean Alexander was driving the rented van eastbound on Louisiana Highway 420 in Pointe Coupee Parish. Her passengers were Shemeka Gladney, Jamya Hopkins, Quintell Gladney, Qunshavious Gladney, Quintell Gladney Jr., Theodore Gladney and Annie Mae London. The van's right front tire allegedly failed and Alexander lost control of the vehicle, which left the highway and rolled over several times. Alexander was not listed as a driver on the rental agreement and Lindsey was not in the van at the time of the accident.
Subsequently, the plaintiffs, Shemeka Gladney, individually and on behalf of the minor Jamya Hopkins, Quintell Gladney, individually and on behalf of the minor children Qunshavious Gladney and Quintell Gladney Jr., Theodore Gladney, Annie Mae London and Bobbie Jean Alexander filed a petition for damages resulting from the accident. Plaintiffs named as defendants U-Save and its insurer, Empire, Bridgestone/Firestone, Inc. and Bridgestone Corporation (referred to as "Firestone"), Lindsey and his insurer, Liberty Mutual. The petition alleged a products liability claim against Firestone, strict liability and negligence claims against U-Save and alleged a duty to provide insurance coverage against Lindsey. U-Save and Empire filed exceptions of venue, prescription and lack of capacity. The district court denied the exceptions of venue and prescription, but ordered Shemeka and Quintell Gladney to show evidence of their capacity to sue on behalf of the named minor children.
In December 2003, Firestone filed a motion for summary judgment on the grounds that plaintiffs could not prove a defective condition without producing the tire at issue. U-Save adopted Firestone's motion. Plaintiffs filed an opposition to the motion for summary judgment and attached photographs of the damaged tire, a copy of the state police accident report listing tire failure as the cause of the accident, the affidavit of Sidney Youngblood, a manager of a tire store who had reviewed photographs of the tire, and correspondence concerning the location of the tire. Plaintiffs also filed a motion for partial summary judgment on the issue of spoliation, alleging that the missing tire was last in the possession or control of one of the defendants. Firestone moved to exclude Youngblood's affidavit and submitted the affidavit of its tire expert, Brian Queiser. Plaintiffs submitted the affidavit of their tire expert, John Tielking, Ph.D., who opined that the tire failure was caused by design and manufacturing defects.
After a hearing in August 2004, the district court granted summary judgment in favor of Firestone, U-Save and Empire, stating that the "jurisprudence seems clear to the court, no tire, no case, in a case like this." The court found that the opinions of plaintiffs' experts were based on conjecture, since they could say only what "might possibly have happened, and on
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