Nuckley, et al v. Volvo Trucks N Amer

*Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
0 IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30117
Summary Calendar
VELMA NUCKLEY, Individually and as surviving spouse of Felix
Edward Nuckley, Jr.; ROBERT JAMES NUCKLEY;
KEVEN JOSEPH NUCKLEY,
Plaintiffs-Appellants,
versus
VOLVO TRUCKS NORTH AMERICA INC.; Etc.; ET AL.,
Defendants,
THE HEIL COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
For the Middle District of Louisiana
USDC No. 98-CV-1040-C
May 31, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Appellants ask us to overturn the district court's grant of
summary judgment, asserting the presence of material fact disputes.
We are unpersuaded and now affirm.
Felix Nuckley was employed in the fleet maintenance division
of Waste Management, Inc. On December 3, 1997, Nuckley attempted to

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1 La. R.S. 9:2800.54(A) (2001).
2 See Kampen v. Am. Isuzu Motors, Inc., 157 F.3d 306, 309 (5th
Cir. 1998) (en banc) (holding that a court need not address whether
a product is "unreasonably dangerous" if it first determines that
the damage did not arise from a "reasonably anticipated use").
2
replace a seal or gasket on the tailgate of one of WMI's garbage
disposal trucks. The body of the truck was manufactured by Heil
Company. To replace the seal, the tailgate must be raised and held
in an upright position. In lieu of the prop (or stand) recommended
in the Heil manual accompanying the truck body, Nuckley had
fashioned a stand from scrap pipe. On the day of the events in
question, Nuckley enlisted a co-worker to assist him in using this
pipe to hold the tailgate open while he undertook repairs. While
the co-worker was on break, the tailgate fell on Nuckley, pinning
him to the truck. He subsequently died of his injuries.
Nuckley's widow and children filed suit in federal court,
alleging violations of the Louisiana Products Liability Act. The
Act provides that a manufacturer is responsible for damages caused
by an unreasonably dangerous product "when such damage arose from
a reasonably anticipated use of the product . . . ."1 The district
court granted summary judgment in favor of Heil, finding that
Nuckley's actions did not constitute a reasonably anticipated use
of the truck body.2
The evidence amply supports the court's conclusion. Heil
provided its customers with detailed instructions regarding the
kind of prop that was necessary to hold open the tailgate. The Heil

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3 See id. at 313-14.
4 See Hunter v. Knoll Rig & Equip. Mfg. Co., 70 F.3d 803, 808-
10 (5th Cir. 1995) (reversing jury verdict on a finding that
plaintiff's actions were contrary to industry practice and occurred
in the face of an obvious danger).
5 See Lockart v. Kobe Steel Ltd. Const. Machinery Div., 989
F.2d 864, 868-69 (5th Cir. 1993) (affirming summary judgment under
the Act based, inter alia, on presence of obvious danger).
6 See Fed. R. Civ. P. 56(c) (2001); Celotex Corp. v. Catrett,
477 U.S. 317 (1986).
3
manual also included warnings regarding the danger of physical harm
from incorrect use of equipment.3 Moreover, the undisputed evidence
reveals that the entire crew of waste management maintenance
workers - including Nuckley - had been instructed to use only a
prop fashioned according to the specifications contained in the
Heil manual.4 Nuckley himself had constructed four such props. In
addition, the danger associated with wedging a 26-inch pipe in the
tailgate opening should have been obvious to a reasonable person.5
Appellants can point to no contrary evidence. While
Appellants' expert testified that movement of the truck could tip
the prop specified in the Heil manual, there was no evidence that
the truck was moved in this case. Nuckley's use of a 26-inch piece
of scrap pipe is not a reasonably anticipated response to the
danger of tipping alleged by the expert. Despite the standard of
review applicable to this case,6 we can not discern a genuine issue
of material fact. We therefore AFFIRM the district court's ruling.
AFFIRMED.

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