Gary v. Dyson Lumber & Supply Co., Inc.

Citations: 465 So. 2d 172; 1985 La. App. LEXIS 8423Docket: 84-210

Court: Louisiana Court of Appeal; March 5, 1985; Louisiana; State Appellate Court

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An appeal was made by Eljay Gary and Donald Henry against Dyson Lumber Supply Company and others after a trial court granted a directed verdict dismissing their claims for damages due to chemical burns from allegedly defective concrete. The plaintiffs asserted that the concrete, which was ordered for a home foundation, caused burns after they added water to it while attempting to level it. Despite experiencing burning sensations, they continued to work, ultimately resulting in chemical burns on their legs and, for Gary, his right hand. The trial court concluded that the plaintiffs failed to prove the concrete was defective and that the defendants had no duty to warn them about its dangers.

The court's decision was based on the standard for directed verdicts under Louisiana law, which requires that all evidence be considered in favor of the party opposing the motion. The trial judge articulated his reasoning clearly, indicating he applied this standard, akin to that used in summary judgment motions. Ultimately, the jury did not receive the case, as the evidence did not sufficiently support the plaintiffs' claims against the defendants.

The court must evaluate the facts in a manner favorable to the plaintiff to determine if reasonable individuals could conclude that the plaintiff did not meet his burden of proof. The case centers on claims that the concrete was different, with plaintiffs testifying it set quickly and burned upon contact. However, a potential basis for liability arises from the failure to warn of dangers associated with the product. Even if the concrete was ordinary, a duty to warn could exist if users were unaware of its dangers. Dyson, the defendant responsible for providing warnings, only had liability if it failed to inform the plaintiffs of potential risks.

The plaintiffs, Mr. Gary, an experienced carpenter, and his son-in-law Donald Henry, were knowledgeable about concrete's dangers, as evidenced by their protective clothing. Thus, the court concludes that there was no failure to warn, as the plaintiffs were aware or should have been aware of the risks. It is established law that a warning is unnecessary when the user knows the danger.

Regarding the allegation of defective concrete, expert testimony from Dr. Goldman indicated that while the concrete had high alkalinity, this characteristic does not denote a defect. High alkalinity is a natural feature of concrete and does not indicate a greater risk than typical concrete. As such, the concrete's composition and ingredient proportions were found to be normal. Consequently, the court grants the motions for directed verdict from the defendants, affirming that the manufacturers and sellers are not liable for failure to warn of dangers known to the user.

In Thornhill v. Black, Sivalls. Bryson, Inc., the court ruled that defendants had no duty to warn plaintiffs, Gary and Henry, about the risks associated with concrete, as both had prior experience and were aware of its potential to cause burns. Plaintiffs claimed the concrete was defective because they had previously worked with it without issue, arguing that its dangerousness is relative. Expert testimony established that the concrete's alkalinity was within a normal range, with some variation in injury propensity, and the specific concrete involved did not deviate from this norm. Gary's addition of water to the mix contributed to potential skin contact, which the court noted. The claim that the concrete dried too quickly was based solely on the plaintiffs’ statements and was not supported by objective testing, which found no abnormalities. Testimony from defense experts further reinforced that the concrete was standard. Consequently, the court upheld the trial court's directed verdict, affirming the judgment and assigning appeal costs to the plaintiffs.