 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Gladney v. Milam9/21/2005
Plaintiffs contend the photos depicting the tire damage and the expert testimony are sufficient circumstantial evidence to establish a factual issue for trial under the doctrine of res ipsa loquitur. This doctrine is a rule of circumstantial evidence in which negligence is inferred because in common experience the incident would not ordinarily occur in the absence of negligence. However, if there is an equally plausible explanation for the occurrence, the doctrine is not applicable. McDowell v. Don Bohn Ford, Inc., 99-238 (La. App. 5th Cir. 7/27/99), 739 So.2d 950.
In support of their position, plaintiffs cite Jurls v. Ford Motor Company, 32,125 (La. App. 2d Cir. 1/6/00), 752 So.2d 260, in which this court found that circumstantial evidence may be sufficient under the particular facts of a case to establish a defect for the purpose of imposing liability under the LPLA. In Jurls, some parts of the vehicle's allegedly defective cruise control system were available and Jurls' expert participated in the testing of those components. In contrast, here the plaintiffs' experts were unable to physically examine the tire and although Tielking opined that the "most probable" cause of the tire failure was fatigue of the sidewall polyester cords, he could only surmise that there were several possible causes of such fatigue, including a manufacturing or design defect or improper maintenance.
At trial, the plaintiffs would have the burden of proving by a preponderance of evidence that a characteristic of the tire made it unreasonably dangerous, or that the tire was negligently maintained, thereby causing the accident. However, the plaintiffs' experts did not know the air pressure at the time of the accident or when the pressure was last checked, and could only speculate that the tire was defective given the visible damage to the tire depicted in the photographs. Thus, although the circumstantial evidence offered by plaintiffs raised several plausible explanations for the cause of the tire's failure, the record does not contain sufficient evidence from which a reasonable juror could conclude that more probably than not the accident was caused by either a defective condition of the tire or negligent maintenance.
Consequently, we cannot say the district court erred in granting summary judgment in favor of Firestone, U-Save and Empire. The assignment of error lacks merit. We note that plaintiffs moved to appeal the summary judgment in favor of Lindsey and Liberty Mutual. However, the plaintiffs did not address the judgment in their assignments of error and did not present argument on the issue in their briefs. Thus, that judgment is not before this court.
CONCLUSION
For the foregoing reasons, the district court's summary judgments are affirmed. Costs of this appeal are assessed to the appellants, 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.
AFFIRMED.
|