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Jordan v. Hickman4/6/2005
The plaintiff, Donna Jordan, appeals two summary judgments granted on June 22, 2004 and August 19, 2004, dismissing her claims against Tommy Ebey and his insurer, State Farm Fire and Casualty Company ("State Farm"), and Arthur and Nellie Lindsey and their insurer, Farmer's Insurance Exchange ("Farmers"), respectively. The court held that the plaintiff could not carry her burden of showing that a piece of PVC pipe which shattered when struck with a stick causing a shard of the PVC to put out the eye of plaintiff's son, posed an unreasonable risk of harm. We affirm.
Facts
On June 10, 2002, in Coushatta, Louisiana, Donna Jordan's thirteen-year old son, Paul Hughes, and his friend, Weston Bamburg, were playing on property owned by Tommy and Pamela Ebey and rented to Weston Bamburg's father, Ben Hickman. The boys were playing with a short length piece of PVC pipe that they picked up from the neighboring property owned by Arthur and Nellie Lindsey. PVC (Polyvinyl Chloride) pipe is a type of plastic pipe used as a substitute for traditional piping materials in residential and commercial construction. The boys stood the pipe vertically by using a stick as a pedestal and began striking it with another stick like one swings a bat at a baseball. The plastic pipe shattered. A shard flew into the right eye of Paul Hughes, leading to the loss of eyesight in that eye.
Donna Jordan, as administratrix of the minor child, Paul Hughes, filed the instant lawsuit on January 22, 2003 against Tommy Ebey, the owner of the property where the injury occurred, and his insurer, State Farm, and Arthur and Nellie Lindsey, the owners of the PVC pipe, and their insurer, Farmers. Mr. Ebey and State Farm moved for summary judgment on May 30, 2003. After oral argument nearly one year later on May 6, 2004, the court requested that the parties submit supplemental briefs on the issue of whether the PVC pipe presented an unreasonable risk of harm. The plaintiff submitted an affidavit from plumber Joseph Giglio with her supplemental brief attesting that PVC pipe posed an unreasonable risk of harm after weathering because it became brittle. The court issued a written ruling on June 1, 2004, stating that the plaintiff did prove that the PVC pipe presented an unreasonably dangerous condition or posed unreasonable risk of harm to the child. The court granted the motion and signed the judgment dismissing the suit on June 21, 2004.
Subsequently, the Lindseys and their insurer, Farmers, moved for summary judgment on the same grounds and attached the trial court's ruling on the co-defendants' motion for summary judgment with their motion. The plaintiff opposed the motion with the affidavit from Giglio plumbing noting that Mr. Giglio's affidavit contradicted deposition testimony from Mr. Lindsey, who has been a plumber for 30 years, that he has used PVC pipe after it had been laying in the elements for some time and the PVC pipe fulfilled its intended purpose. Although the plaintiff contended that the contradictory testimony created a genuine issue of material fact precluding summary judgment, the court rendered judgment dismissing the suit on August 19, 2004.
Ms. Jordan timely appealed both judgments. She contends that there is an issue of fact regarding whether storing the PVC pipe in or around a shed poses an unreasonably dangerous condition or an unreasonable risk of harm, and accordingly, summary judgment was inappropriate.
Discussion
Standard of Review
In Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 (La. 2/29/00), 755 So. 2d 226, 230-31, the Louisiana Supreme Court discussed the standard of review of a summary judgment as follows:
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