author: UWHIPPLE, J. l iKUHN, J.,

text:
    Andrew Scott BEGUE v. CROSSOVER, INC. and Louisiana Workers’ Compensation Corporation.
    No. 2003 CA 0267.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 2003.

      Dominick Bianca, Baton Rouge, for Plaintiff/Appellant, Andrew Scott Begue.
    Merilla B. Miller, Baton Rouge, for Defendants/Appellees, Crossover, Inc. and Louisiana Workers’ Compensation Corporation.
    Before: WHIPPLE, KUHN and MCDONALD, JJ.
   UWHIPPLE, J.

In this workers’ compensation dispute, plaintiff appeals the OWC judgment, denying Mm workers’ compensation benefits on the basis that he did not suffer a work accident and that his medical condition did not constitute a compensable occupational disease. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On July 16, 2000, Andrew Begue was rehired and began working for Crossover, Inc., a pipe manufacturer. Initially, he worked as a saw operator, but in October or November of 2000, he was transferred to the shipping and receiving department where his position changed to hydrostatic pipe tester. As a pipe tester, Begue’s function was to prepare pipes for shipping, which included de-burring pipes, cleaning the threads, hydrostatic testing of the pipes, painting the pipes with a spray gun, manually fitting caps on the ends of the pipes involving a cranking motion, stacking and banding pipes for shipment and moving the pipes into the yard for further transport. Upon being transferred to this position, Begue initially did not experience any problems with performing these job duties.

However, at some point in March of 2001, while driving a forklift on the facility grounds, which were described as “rough,” Begue began experiencing a tingling sensation in his fingers. Over time, the tingling sensation spread upwards, and Be-gue’s arms started tiring very quickly when he painted. By the end of March, Begue was experiencing pain in both hands. In April, the pain grew worse and spread into his shoulders. By this time, he also had to trade off hands while painting due to the fatigue in 13his arms. Begue was also experiencing pain moving down his legs into his feet. During this two-month period, Begue occasionally reported his discomfort to his supervisor, Harold Salisbury. Nonetheless, he continued to work.

Thereafter, on May 7, 2001, while preparing approximately 600 six-inch pipes for shipment, Begue developed an intense pain in his shoulders, which caused him to have difficulty lifting each pipe while working on it. According to Begue, the pain he experienced that day was different from the pain he had been experiencing since the day of the forklift incident in that it was noticeably more intense and constant. At that time, Begue reported to Salisbury that he was experiencing intense pain, and Salisbury responded that if the pain was not improved by the following day, he would refer Begue to a doctor.

When Begue returned to work the next day, he began working on the same six-inch pipes that he had worked on the previous day. However, his pain returned immediately, a pain which Begue described as “electricity going through my arm.” Thus, Begue reported to Salisbury that he was experiencing shoulder, hand and elbow pain and a heaviness in his arms and that he needed to be seen by a doctor.

Begue then drove himself to North Oaks Rehabilitation Center, where he was examined by Dr. Mark Daunis. Dr. Daunis diagnosed bilateral shoulder strains and restricted Begue to light duty work. Be-gue returned to work on light duty status, but continued to experience pain. He returned to Dr. Daunis on May 15, 2001, at which time he underwent x-rays of the cervical spine. The x-rays indicated that Begue had relatively severe chronic degenerative disc disease at C4 through C7 and facet arthritis with moderate |4bilateral foraminal stenosis of the cervical spine. Dr. Daunis then referred Begue to Dr. B.J. Chiasson, an orthopedic surgeon.

Dr. Chiasson first examined Begue on May 22, 2001, at which time Begue was complaining of a significant amount of fatigue and pain in his neck and pain, numbness and tingling in both arms and legs. Dr. Chiasson also diagnosed cervical spinal stenosis, which he explained is a narrowing of the holes where the nerves exit the spine that causes the nerves in the neck to be pinched. Dr. Chiasson likewise restricted Begue to light duty work, with no lifting of greater than five pounds.

On May 31, 2001, Dr. Chiasson restricted Begue completely from work until such time as he could review the results of diagnostic studies he had ordered. On the June 14, 2001 visit, Dr. Chiasson reviewed the results of the MRI and nerve conduction studies he had ordered. The cervical MRI confirmed the earlier diagnosis of moderate degenerative disc disease of the cervical spine and foraminal stenosis, and the nerve conduction studies revealed long-standing lumbosacral radiculopathy. Thus, in addition to cervical spinal steno-sis, Dr. Chiasson also diagnosed longstanding nerve irritation of the lower back. At that point, he restricted Begue to sedentary work with no lifting.

Once Begue was restricted to sedentary work only, he was informed that Crossover did not have any work that he could perform. Although he had been unable to work since May 31, 2001, Louisiana Workers’ Compensation Corporation (LWCC), Crossover’s workers’ compensation carrier refused to institute weekly indemnity benefits, contending it was investigating Be-gue’s entitlement to such benefits at that time.

| sWith regard to treatment, Dr. Chias-son prescribed physical therapy for Begue, including cervical traction and epidural steroid injections. Additionally, because he believed Begue was a reasonable surgical candidate for the cervical stenosis, Dr. Chiasson suggested Begue be seen by a neurosurgeon for surgical evaluation. However, Begue did not seek or obtain the recommended surgical evaluation, but, instead, continued to seek treatment from Dr. Chiasson.

On the June 22, 2001 visit, Begue reported symptoms that Dr. Chiasson believed were consistent with bursitis of the shoulder, a soft tissue inflammation that causes discomfort with certain movements. The examination revealed impingement consistent with bursitis, and x-rays of the shoulders revealed some degenerative changes. At that point, Dr. Chiasson added the diagnosis of bilateral subacromial bursitis to his previous diagnoses, and he continued the same work restriction of sedentary work only.

By letter dated September 21, 2001, Dr. Chiasson reported to LWCC that Begue was suffering from “acute exacerbations” of both cervical spinal stenosis and bilateral subacromial bursitis. He further opined that the “acute exacerbations” of these conditions were work related. Nonetheless, by letter dated September 28, 2001, LWCC denied Begue workers’ compensation benefits for his injuries, contending that “there was no unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently resulting in [his] injuries.” Subsequently, on October 24, 2001, Begue’s employment with Crossover was terminated.

On November 20, 2001, Begue filed a disputed claim for compensation, seeking weekly indemnity and medical benefits. Following trial, the workers’ compensation judge dismissed Begue’s claim, concluding 1 (¡that Begue had not sustained a work-related accident pursuant to LSA-R.S. 23:1021 and that he could not recover benefits for an occupational disease, because his ailments of cervical stenosis, bilateral subacromial bursitis and cervical degenerative disc disease were specifically excluded from coverage pursuant to LSA-R.S. 23:1031.1(B).

From this judgment, Begue appeals, contending that the workers’ compensation judge erred: (1) in finding that Begue had not suffered a work accident pursuant to LSA-R.S. 23:1021; and (2) in finding that the causes of Begue’s disability are excluded from coverage pursuant to LSA-R.S. 23:1031.1(B). Accordingly, Begue seeks an award of weekly indemnity benefits, reimbursement of medical expenses as well as penalties and attorney’s fees.

OCCURRENCE OF AN ACCIDENT

(Assignment of Error No. 1)

In order to be compensable under the workers’ compensation laws, an injury must have resulted from an “accident arising out of and in the course of [an employee’s] employment.” LSA-R.S. 23:1031(A); Robin v. Schwegmann Giant Supermarkets, 93-2310, p. 4 (La.App. 1st Cir.11/10/94), 646 So.2d 1030, 1033, writ denied, 95-0202 (La.4/21/95), 653 So.2d 554. “Accident” is defined in LSA-R.S. 23:1021(1) as follows:

“Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

At the trial below, defendants argued, and the workers’ compensation judge agreed, that Begue had failed to prove the occurrence of a specific “event” and that the degenerative conditions from which Begue suffers were simply gradual deteri-orations, which are excluded from coverage under |7LSA-R.S. 23:1021(1) and also are specifically excluded as compensable occupational diseases.

While it is true that Dr. Chiasson diagnosed “acute exacerbations” of Be-gue’s pre-existing cervical spinal stenosis and bilateral subacromial bursitis, the mere presence of a gradual or deteriorating condition does not preclude a claimant from recovering workers’ compensation benefits. Jackson v. Savant Insurance Company, 96-1424, p. 7 (La.App. 1st Cir.5/9/97), 694 So.2d 1178, 1183. In Dyson v. State Employees Group Benefits Program, 610 So.2d 953, 955 (La.App. 1st Cir.1992), this court interpreted LSA-R.S. 23:1021(1) as amended in 1989 and concluded:

[A]n otherwise healthy employee with a preexisting condition is entitled to benefits if she can prove that her work contributed to, aggravated, or accelerated her injury. This is still the meaning of the last clause of section 1021(1), which requires that an injured employee be able to identify the event marking the time when one can identify an injury.

In Dyson, we specifically admonished against following cases which suggested that the amended section 1021(1) was meant to exclude from coverage persons who are worn down by their work rather than immediately crippled by it. As expounded in Dyson, such a view is inconsistent with the very purpose of the workers’ compensation scheme. Dyson, 610 So.2d at 956.

Additionally, the Third Circuit Court of Appeal expounded even further in interpreting the amendments to 1021(1) as follows:

We must add our voices to those before us regarding the interpretation of “which is more than a gradual deterioration or progressive degeneration.” Surely, this phrase does not relate to an injury which is clearly spurred by work activity, ... but only to non-work related activities. For to interpret it otherwise, would lead to an absurd result as it would negate the very purpose for which the Worker’s Compensation Act was instituted; namely, to provide relief to employees whose work has caused them injury and the inability to work.

Guilbeaux v. Martin Mills, Inc., 93-1359, p. 5 (La.App. 3rd Cir.5/4/94), 640 So.2d 472, 475, writ denied, 94-1444 (La.9/23/94), 642 So.2d 1291.

Additionally, the Fourth Circuit Court of Appeal has interpreted the language of LSA-R.S. 23:1021(1) that excludes from the definition of “accident” conditions caused by “a progressive deterioration or progressive degeneration,” as follows:

The statute’s emphasis on the occurrence of an “event” which is “precipitous” and which happens “suddenly or violently” and which event is “actual” and “identifiable” is instructive as to the meaning of the word “progressive” in the statute. Specifically, when the word “progressive” is read in the context of La. R.S. 23:1021(1) as a whole, it includes, not every increase in severity or extent of injury, but only those increases in extent or severity of injury which occur gradually over a period of time as opposed to increases in severity or extent which occur suddenly and to a marked degree.

Carter v. New Orleans Fire Department, 94-0338, p. 4 (La.App. 4th Cir.11/17/94), 646 So.2d 455, 459 (emphasis in original), writ granted on other grounds and remanded, 94-3072 (La.2/17/95), 650 So.2d 238.

Moreover, the Third Circuit Court of Appeal has noted that the identifiable, precipitous event may be a customary or routine work activity that results in an injury to an employee. Richard v. Workover & Completion, 2000-794, p. 4 (La.App. 3rd Cir.12/6/00), 774 So.2d 361, 364.

Thus, where the employee is able to identify an event marking the time the injury occurred or the symptoms arose or suddenly or markedly increased in severity, even if such event occurs during the performance of customary or routine work activities, the employee has established an “accident” within the meaning of LSA-R.S. 23:1021(1). See Dyson, 610 So.2d at 955-956; Carter, 94-0338 at p. 4, 646 So.2d at 459; Richard, 2000-794 at p. 4, 774 So.2d at 364.

19In Dyson, the employee’s job position changed, and under her new position, she was required to stand all day. Approximately one month after beginning the new job, the employee began experiencing light pain in her feet. About two months after the onset of the light pain in her feet, the employee felt very sharp pain “shoot” through her feet as she turned or pivoted to pick up a heavy bundle of papers. Dyson, 610 So.2d at 954.

The employee was later diagnosed with plantar fasciitis, a cumulative trauma disorder that is non-apparent until sufficiently aggravated by a situation such as prolonged standing. Based on this diagnosis, the employer argued that the employee suffered a gradual or progressive degeneration of her feet and that there was no actual, identifiable or precipitous event marking the development of her condition. Dyson, 610 So.2d at 954-955.

This court disagreed and affirmed the finding that the employee had suffered an accident within the meaning of LSA-R.S. 23:1021(1). Specifically, this court noted that even though the employee may have eventually reached the same point of disability without an identifiable, on-the-job injury, the pivoting movement the employee made with her feet which immediately preceded her pain constituted the identifiable event that produced her injury. Dyson, 610 So.2d at 955-956.

Similarly, in Robin, the employee, a deli worker at a supermarket, was required to work alone in the deli for several days due to the illness of two other employees. The employee was required to lift meats and cheeses weighing ten to twenty pounds and to stock items weighing forty-five to sixty pounds, and during the time that she worked alone, her back began hurting. Robin, 93-2310 at pp. 2-3, 646 So.2d at 1032.

On the last day that she worked alone, her back was hurting very badly by the end of her shift, and during the night after her shift, the 110employee reported to the local emergency room with severe back pain. Robin, 93-2310 at p. 3, 646 So.2d at 1032. The employee was subsequently diagnosed with a pre-existing cumulative trauma disorder of the lumbar spine which had been aggravated to such a degree-that it caused a ruptured lumbar disc. The employer argued that the employee had failed to prove the occurrence of an “event” and that the herniated disc was simply a gradual deterioration which is excluded from coverage under LSA-R.S. 23:1021(1). Robin, 93-2310 at pp. 4, 5, 646 So.2d at 1033.

In affirming the award of benefits, this court noted that while the employee had experienced back pain throughout the time she was required to work alone, she had also testified that the pain she experienced the night after her last day of work was a different kind of pain than what she had felt before. This court further found that the employee’s testimony was consistent with the doctor’s explanation that her work duties resulted in continuous micro-traumas and cumulated in a ruptured disc. Thus, this court concluded that under those circumstances, the “event” which resulted in the employee’s injury consisted of the lifting duties she performed on her last day of work. Robin, 93-2310 at p. 6, 646 So.2d at 1034.

In Jackson, an employee truck driver began experiencing a tingling in his arms while attempting to hold the steering wheel of his truck straight as it was being pulled through the mud by a bulldozer. However, assuming that the pain would go away as it had in the past, the employee continued working. Jackson, 96-1424 at pp. 2, 9, 694 So.2d at 1179, 1184. When he later sought treatment for the pain, he reported to the physician that he had experienced a “slow, gradual onset” of these problems and did not refer to any particular event giving rise to his symptoms. Jackson, 96-1424 at p. 4, 694 So.2d at 1180. The employee was diagnosed with chronic, [, j degenerative rotator cuff disease; however, his physician noted that something could have occurred to aggravate this condition. Jackson, 96-1424 at p. 4, 694 So.2d at 1181.

Rejecting the employer’s argument that the employee suffered from a gradual deterioration and, thus, could not prove the occurrence of an accident as defined in LSA-R.S. 23:1021(1), the workers’ compensation judge found that the employee had a pre-existing condition that was aggravated by the work accident. Jackson, 96-1424 at p. 4, 694 So.2d at 1181. In affirming that finding, this court noted that the employee had identified the event constituting an accident, namely, the attempt to hold the steering wheel of the cement truck while a bulldozer pulled it backwards. Jackson, 96-1424 at p. 8, 694 So.2d at 1183.

In the instant case, the workers’ compensation judge found that, based on Be-gue’s “own admission,” no accident had occurred within the meaning of LSA-R.S. 23:1021(1). We disagree. It is true that Begue testified that he did not have an “accident” at Crossover on May 7 or 8, 2001. He explained that he considered an “accident” to be an incident where something would fall on him or physically hit him, and candidly stated that nothing like that had occurred. Nonetheless, Begue was clearly able to identify specific events at work that led first to the onset of symptoms and then, subsequently, to the sudden, marked increase in his symptoms as he attempted to continue to perform his work activities.

Specifically, Begue first began experiencing symptoms of tingling in his hands one day in March 2001, while driving a forklift at work over rough terrain. Indeed, Begue testified that “the whole process started while I was 1 ^driving a forklift.” Believing that he had simply been gripping the steering wheel too tightly, Begue continued to work at that point. However, the symptoms persisted and increased until eventually, on May 7, 2001, Begue experienced a sudden and marked increase in his symptoms of pain and tiredness in his arms while preparing a large order of pipes for shipment. This event, which triggered an aggravation of Begue’s pre-existing cervical spinal stenosis and bilateral subacromial bursitis, clearly constitutes an “accident” within the meaning of LSA-R.S. 23:1021(1) and the controlling jurisprudence interpreting the statute. Thus, despite Begue’s candid admission that he had not sustained an accident in the sense of the occurrence of a traumatic event, we conclude that the workers’ compensation judge erred in concluding that the events related by Begue did not constitute an “accident” within the meaning of LSA-R.S. 23:1021(1).

Because we have found merit to Begue’s first assignment of error and have concluded that he did in fact prove that he sustained an accident within the meaning of LSA-R.S. 23:1021(1), we pretermit discussion of his second assignment of error, in which he argues that the workers’ compensation judge erred in finding that his disability was excluded from coverage pursuant to LSA-R.S. 23:1031.1(B), where Be-gue had not asserted that his disability had resulted from an occupational disease.

AWARD OF BENEFITS

Because we have concluded that the workers’ compensation judge erred in failing to find that Begue had suffered a work accident that |1Raggravated his preexisting conditions of cervical spinal steno-sis and bilateral subacromial bursitis, we likewise conclude that the workers’ compensation judge erred in failing to award Begue weekly indemnity benefits and reimbursement of medical expenses related to these conditions.

An employee is entitled to temporary total disability benefits pursuant to LSA-R.S. 23:1221(l)(c) if he proves by clear and convincing evidence that he is physically unable to engage in any employment. Collins v. Family Dollar Stores, Inc., 99-0622, p. 6 (La.App. 1st Cir.5/12/00), 760 So.2d 1210, 1214, writs denied, 2000-2356, 2000-2363 (La.11/13/00), 773 So.2d 727. However, even an employee who can perform only sedentary work is not entitled to temporary total disability benefits. Boutte v. Langston Companies, Inc., 97-972, p.6 (La.App. 3rd Cir.2/4/98), 707 So.2d 1315, 1319. On the other hand, pursuant to LSA-R.S. 23:1221(3)(a), an employee is entitled to supplemental earnings benefits if he proves by a preponderance of the evidence that he sustained a work-related injury that results in his inability to earn 90% of his pre-injury wages. Vicknair v. Nature Conservancy, 97-2229, p. 3 (La. App. 1st Cir.6/29/98), 718 So.2d 476, 478, writ denied, 98-2495 (La.11/25/98), 729 So.2d 567.

The record before us demonstrates that the tasks which Begue was required to perform as a hydrostatic pipe tester ranged from medium duty to heavy duty work. However, commencing May 8, 2001, Begue was restricted to either light duty, no work or sedentary work. While Crossover offered Begue light duty work, it was unable to offer him any work once Begue was restricted to sedentary work on June 14, 2001.

But we note that Begue additionally testified that it was his understanding that toward the end of June 2001, he was completely restricted from work, although it is unclear which of his medical providers 1 ¶^restricted him from work in this manner. Also, according to Begue, Dr. Chiasson released him to return to work with certain lifting restrictions in January of 2002, at his request, because of financial difficulties. Despite this release to return to work, he nonetheless testified at the October 28, 2002 hearing that he still was not working because of the pain he was experiencing throughout his body. Additionally, the record indicates that Begue received unemployment benefits during some of the time that he was restricted from work, for which Crossover claims a credit.

Considering the record before us, we conclude that we must remand this matter to the workers’ compensation judge for a determination of the type, amount and duration of indemnity benefits to which Be-gue is entitled, together with any credits to which Crossover may be due. LSA-C.C.P. art. 2164.

Additionally, with regard to medical benefits, Begue is entitled to reimbursement for all reasonable and necessary expenses incurred in relation to the aggravation of his pre-existing conditions of cervical spinal stenosis and bilateral su-bacromial bursitis. LSA-R.S. 23:1203; Collins, 99-0622 at p. 10, 760 So.2d at 1217. However, we note that Begue also received treatment for a mass that was discovered on his thyroid during the treatment of his work-related injuries. Having failed to prove any causal connection between the thyroid mass and his work accident, Begue is not entitled to reimbursement for expenses related to treatment of his thyroid condition. On the record before us, we are unable to determine the precise amount of reimbursement to which Begue is entitled for reasonable and necessary medical expenses incurred; thus, we must remand for a determination of that award also. LSA-C.C.P. art. 2164; see also Dyson, 610 So.2d at 956.

|, .PENALTIES AND ATTORNEY’S FEES

Begue also requests that this court render an award of penalties and attorney’s fees to him, asserting that Crossover was arbitrary and capricious in denying him benefits and had no reasonable basis to controvert his claim.

Pursuant to LSA-R.S. 23:1201(F), an employee is entitled to an award of both penalties and attorney’s fees if the employer or insurer fails to commence payments of benefits timely or to pay continued installments timely (or to pay medical benefits timely) unless the claim is reasonably controverted. Conversely, pursuant to LSA-R.S. 23:1201.2, the employee is entitled to an award of only attorney’s fees where the employer or insurer arbitrarily discontinues payment of benefits due. Williams v. Rush Masonry, Inc., 98-2271, p. 7 (La.6/29/99), 737 So.2d 41, 45.

In this case, LWCC initially paid some medical benefits to Begue while the claim was under investigation, which it later discontinued, but never paid any weekly indemnity benefits. Nonetheless, we conclude that Begue has not established his entitlement to penalties or attorney’s fees. Although we ultimately concluded that Crossover’s and LWCC’s argument as to the non-existence of an accident lacked merit, we cannot say that their refusal to pay or continue payment of benefits was arbitrary or that the claim was not reasonably controverted. Although he explained at trial that he had not listed an accident because of his understanding of what an “accident” means, we cannot say that the employer or insurer acted unreasonably in disputing his claim. See Seal v. Gaylord Container Coloration, 97-0688, p. 12 (La.12/02/97), 704 So.2d 1161, 1168. Thus, we decline to render an award of penalties or attorney’s fees.

|1fiCONCLUSION

For the above and foregoing reasons, the November 12, 2002 judgment, dismissing Begue’s claim for workers’ compensation benefits with prejudice is reversed. This matter is remanded to the Office of Workers’ Compensation for further proceedings consistent with the views expressed herein, including rendition of a specific award of weekly indemnity benefits and reimbursement of medical expenses incurred. The workers’ compensation judge is further ordered to conduct such proceedings preferentially and to render judgment accordingly. Costs of this appeal are assessed against defendants, Crossover, Inc. and Louisiana Workers’ Compensation Corporation.

REVERSED AND REMANDED WITH ORDER.

KUHN, J., concurs with reasons.

MCDONALD, J., dissents.

l iKUHN, J.,

concurring.

I write separately to note that despite the plain language of La. R.S. 23:1021(1) defining an accident as “an ... event ... directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration,” the jurisprudence nevertheless eclipses the apparent attempt of the legislature to exclude from the ambit of the Workers’ Compensation Act “wear and tear” injuries.

According to relevant jurisprudence:

In order for a claimant to be entitled to recover workers’ compensation benefits, he must establish by a preponderance of evidence that an accident occurred on the job site and that an injury was sustained. A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. The evidence is to be viewed in a light most favorable to the claimant. When there is proof of an accident and of a following disability, without an intervening cause, it is presumed that the accident caused the disability.

Sanders v. Grace Nursing Home, 98-1344, p. 3 (La.App. 1st Cir.9/24/99), 754 So.2d 1024, 1026 (citing Jackson v. Savant Ins. Co., 96-1424, p. 3 (La.App. 1st Cir.5/9/97), 694 So.2d 1178, 1180).

|91 believe that in this case the OWC determination of no accident can be supported by an implicit finding that Begue’s symptomatic spinal stenosis and bilateral subacromial bursitis were injuries that were simply gradual deteriorations or progressive degenerations of his spine and shoulders.

But duty bound by the jurisprudence and viewing the evidence in a light most favorable to the worker, the record establishes that Begue’s testimony alone discharged his burden of proof. Defendants presented no other evidence that discredited or cast serious doubts on Begue’s testimony about when the onset of pain occurred or suggested an intervening cause. Indeed, it was not a disputed fact that the operation of the forklift over a rough surface in the work yard during March was the triggering mechanism that led to the onset of Begue’s symptoms. Moreover, the record is devoid of any medical evidence of examinations or treatment related to his cervical spine or shoulders for over the seven years preceding his May 2001 complaints. The record additionally shows that Begue’s testimony is corroborated by the circumstances following the forklift operation. While Begue was not absent from work during the four months prior to the onset of the more intense, constant pain of May 7th and 8th, subsequently, he sought medical treatment on a regular basis.

OWC provided little insight into its reasoning. In the judgment, OWC stated only that “by Employee’s own admission, which is supported by other evidence, [he] did not sustain a work related accident....” But as suggested in the primary opinion, Begue’s explanation of what he believes an accident to be does not describe exclusive criteria by which the legal standard of “an accident” for purposes of Workers’ Compensation recovery is measured. A thorough review of the record provides no basis to conclude that OWC evaluated witness credibility and found other witnesses to be more credible 13than Begue or otherwise rejected Begue’s testimony. And insofar as the finding that the onset of his pain commenced with the forklift operations in early March and persistently continued until May when he experienced pain that was different and noticeably more intense and constant, the record provides no testimonial or documentary evidence setting forth a different version. Thus, in light of the jurisprudence — despite the plain language of La. R.S. 23:1021 and accepting the proposition that this court does not and should not make policy decisions — I must concur in the result.

      . Begue had previously worked for Crossover from approximately October 1996 to May 1999.

      . LWCC did pay some medical benefits while the claim was under investigation.

      . For this reason, Begue had related to Dr. Chiasson that he had not sustained an ‘'accident” at work.

      . With regard to causation, Dr. Chiasson testified that repetitive activities such as lifting pipes waist high or shoulder high, moving them and setting them down, and using a crank handle, could cause asymptomatic conditions of bursitis and cervical spinal stenosis to become symptomatic. Additionally, given Begue’s history of being asymptomatic prior to the events in question, Dr. Chiasson opined that the aggravation of Begue's pre-existing conditions was work-related.

      . See H. Alston Johnson, III, Workers' Compensation Law and Practice, § 216, p. 453 in 13 Louisiana Civil Law Treatise (4th ed.2002).


source: Caselaw Access Project

author: J^PETTIGREW, J.

license: Public Domain

text:
    STATE of Louisiana v. Norman WADE.
    No. 2003 CA 1364.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 3, 2003.

      Sherry E. Patrick, Assistant District Attorney, Baton Rouge, for State of Louisiana.
    Otha Curtis Nelson, Sr., Baton Rouge, for Defendant-Appellant Norman Wade.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   J^PETTIGREW, J.

Norman Wade appeals a judgment rendered by the East Baton Rouge Parish Juvenile Court denying his motion to reduce court-ordered child support. For the reasons that follow, we vacate the judgment below.

FACTS AND PROCEDURAL HISTORY

On April 16, 1993, the State of Louisiana, Department of Social Services, through the District Attorney for the 19th Judicial District, Parish of East Baton Rouge, in Docket No. 3-93-242, filed a petition to make the East Baton Rouge Parish Family Court judgment rendered on February 27,1992, in Docket No. 90244, executory in East Baton Rouge Parish Juvenile Court. The Juvenile Court signed said judgment on April 16, 1993. The Family Court judgment in Docket No. 90244 established that Norman Wade was the father of the minor child, P.S., set child support at $75.00 per month, and set arrears for nonsupport at $825.00. According to the record, on June 7, 1999, the Hearing Officer for the Juvenile Court accepted a stipulation of the parties wherein Mr. Wade’s child support was increased to $300.00 per month retroactive to June 1, 1999. A judgment accepting the Hearing Officer’s recommendation was signed by the Juvenile Court on July 15,1999.

Thereafter, on November 17, 2000, Mr. Wade filed a motion for reduction. The matter proceeded to hearing before the Hearing Officer on April 4, 2001, at which time Personna Spurlock, payee, and Mr. Wade both testified. At the conclusion of the hearing, the Hearing Officer took the matter under advisement pending receipt and review of medical records pertaining to Mr. Wade’s diabetic condition. On September 5, 2001, the Hearing Officer dismissed Mr. Wade’s motion for reduction, finding that Mr. Wade was underemployed.

Mr. Wade excepted to the findings of the Hearing Officer, and a hearing was scheduled for October 18, 2001, before the Juvenile Court, in Docket No. 3-93-242. After hearing from Ms. Spurlock and Mr. Wade, the court denied Mr. Wade’s request for reduction, finding no evidence to justify a reduction and making the Hearing Officer’s recommendation of September 5, 2001, the judgment of the Juvenile Court. A judgment in accordance with these findings was signed by the Juvenile Court on April 2, 2002.

]3It is from this judgment that Mr. Wade has appealed, assigning the following specification of error:

The trial Judge committed manifest and reversible error when she ruled that there was no evidence that would justify a reduction in the THREE HUNDRED AND NO/100 ($300.00) DOLLARS because on the 7th day of June, 1999 the appellant had been ordered to pay the sum of THREE HUNDRED FIFTEEN AND NO/100 ($315.00) DOLLARS per month for the support of one of his other children.

DISCUSSION

Upon review of the record before us, we note that the Juvenile Court had no subject matter jurisdiction to render judgment in this ease. Thus, for the reasons set forth more fully below, the Juvenile Court’s judgment is vacated. Accordingly, we do not reach the merits of Mr. Wade’s appeal and pretermit consideration of same.

Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled. La. Code Civ. P. art. 1. Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La.Code Civ. P. art. 2. The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties or waived; a judgment rendered by a court that has no jurisdiction over the subject matter of the action or proceeding is void. La.Code Civ. P. art. 3. The issue of subject matter jurisdiction addresses the court’s authority to adjudicate the cause before it; the issue may be considered at any time, even by the court on its own motion, at any stage of an action. Boudreaux v. State, Dept. of Transp. and Development, 2001-1329, pp. 7-8 (La.2/26/02), 815 So.2d 7, 12-13.

As set forth in La. R.S. 13:1621 A, exclusive jurisdiction is conferred on the East Baton Rouge Parish Juvenile Court for the following proceedings:

(1) All proceedings in the interest of children under seventeen years of age alleged to be delinquent, except as provided in R.S. 13:1570 and 1571.1 through 1571.4 and Code of Juvenile Procedure Article 106; and all proceedings in the interest of children under eighteen years of age alleged to be in need of supervision or in need of care.
14(2) All proceedings to decree minors abandoned, for the adoption of minors, and for the relinquishment or termination of parental rights.
(3) All such additional jurisdiction, power, and authority now or hereafter provided by law for juvenile courts, and particularly but not restricted to the jurisdiction, power, and authority under the provisions of R.S. 13:1569 through 1592, R.S. 46:236.5, and Articles 14 through 17 and Article 23 of the Code of Juvenile Procedure. [Footnotes omitted.]

Paragraph B establishes concurrent jurisdiction in the East Baton Rouge Parish Juvenile Court and Family Court as follows:

B. The court shall have concurrent jurisdiction with the family court for the parish of East Baton Rouge in the following proceedings:
(1) All cases of desertion, nonsupport, or criminal neglect of minors by either parent.
(2) All cases of desertion, nonsupport, or criminal neglect of a spouse by the other spouse.
(3) All proceedings under the Uniform Reciprocal Enforcement of Support Law.
(4) Proceedings brought by the Department of Social Services on its own behalf or on behalf of any person for whom support has been ordered to enforce support by interstate income assignment pursuant to R.S. 46:236.4, or proceedings brought by the district attorney to establish or enforce support pursuant to the provisions of R.S. 46:236.2 or 236.1(F). [Footnote omitted.]

Thus, both the Family Court and the Juvenile Court would appear to have concurrent original jurisdiction in any action brought by the State to establish filiation and support under La. R.S. 46:236.1. However, paragraph C of La. R.S. 13:1621 provides as follows:

C. However, the court which renders the initial order in any of the proceedings enumerated in subparagraph B shall have exclusive continuing jurisdiction to modify or enforce such order. [Emphasis added.]

The instant proceeding was initiated in the East Baton Rouge Parish Family Court on January 16, 1990, when the State filed a “Petition To Establish Paternity And Support Obligation” pursuant to La. R.S. 46:236.1 in Docket No. 90244. Thereafter, on February 27, 1992, the Family Court signed a stipulated judgment establishing that Norman Wade was the father of the minor child, P.S., setting child support at $75.00 per month, and setting arrears for non-support in the sum of $825.00. Pursuant to La. R.S. 13:1621 C, the Family Court had continuing exclusive jurisdiction to modify or enforce said judgment. Jurisdiction could not be conferred on the Juvenile Court by the consent of the parties. R Accordingly, the Juvenile Court had no subject matter jurisdiction in this case. The judgment rendered, by the Juvenile Court on April 2, 2002 is void and has no legal effect. Thus, this court must vacate the Juvenile’s Court’s judgment for lack of subject matter jurisdiction. See Swanson v. Department of Public Safety and Corrections, 2001-1066, p. 5 (La.App. 1 Cir. 6/21/02), 837 So.2d 634, 637; State v. L.B., 95-2116, p. 3 (La.App. 1 Cir. 5/30/96), 676 So.2d 179, 181.

CONCLUSION

For the above and foregoing reasons, the judgment of the Juvenile Court is vacated. Appeal costs in the amount of $595.56 are assessed against the State of Louisiana.

VACATED.


author: JGPETTIGREW, J.

text:
    Brett MATHERNE v. POUTRAIT-MORIN/ZEFAL-CHRISTOPHE, TODSON, INC., Trek, Inc., Avenir and Tuffy’s World Class Bicycle Shop, D/B/A World Class Bicycles
    No. 2002 CA 2136.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 12, 2003.
    Gregg Spyridon, Metairie, for Plaintiff-Appellant Brett Matherne.
    W. Paul Andersson, New Orleans, for Defendant-Appellee Trek Bicycle Corporation.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   JGPETTIGREW, J.

This is a suit for personal injuries sustained by plaintiff as a result of a bicycle accident. Plaintiff sued the bicycle’s manufacturer under the Louisiana Product’s Liability Act (LPLA) (La. R.S. 9:2800 et seq.). Defendant manufacturer moved for summary judgment that resulted in the dismissal of some, but not all, of the claims against it. Two years later, defendant filed a Supplemental Motion for Summary Judgment that resulted in a dismissal of plaintiffs remaining claims. Plaintiff now appeals the dismissal of his lawsuit.

FACTS

The evidence reveals that in the fall of 1986, plaintiff Brett Paul Matherne (“Mr.Matherne”), then a student at Louisiana State University in Baton Rouge, desired to compete in triathion competitions. In furtherance of this objective, Mr. Math-erne sought to purchase a bicycle well-suited for such competitions. Relying on the advice of other athletes, Mr. Matherne spent three to four months shopping for a bicycle that would best suit his needs.

In December 1986, Mr. Matherne purchased a model 460 Trek bicycle equipped with toe clips from Tuffy’s World Class Bicycle Shop d/b/a World Class Bicycles (“Tuffy’s”) in Baton Rouge, Louisiana. The toe clips in question were a standard accessory on the bicycle selected ,by Mr. Matherne, and are designed to hold a cyclist’s feet in better contact with the pedals, thereby increasing pedaling power and efficiency.

The owner’s manual that accompanied Mr. Matherne’s bicycle, provided, in pertinent part, as follows:

Pedals and Toeclips

Operation. Getting on and off a bicycle equipped with toeclips is a little tricky at first, but with just a little practice, it becomes extremely easy. First straddle the bike with both feet flat on the ground. Position the left 13pedal up toward the handlebars. After making sure that both toestraps are wide enough to accept your shoes, place your left foot in the left' clip, push forward, and mount the saddle. Flip the right toeclip rightside up by drawing your foot across the small tab on the bottom of the cage and place your right foot in the right clip. As you pedal along, reach down and tighten the straps.
Toeclips will increase your efficiency and power a great deal because you are able to pull up on the toeclip cages as well as push down on the pedals. They also prevent your feet from slipping off the pedals when they are wet or when you apply a great deal of pressure. Although toeclips are an accessory, we' highly recommend them. Caution: Always remember to release the straps before coming to a complete stop.

In his deposition, Mr. Matherne recalled that when he purchased his bike in 1986, he took it fór a test ride in the parking lot, and the retailer instructed him in the use of toe clips. Mr. Matherne admitted that he initially had difficulty riding with the toe clips, and fell several times while on “training” rides. Mr! Matherne stated that his first fall took place around 1986, when his bicycle was new. On this occasion, Mr. Matherné related that being unfamiliar with the use of toe clips, he tightened the straps on both of them. When Mr. Matherne came to a complete stop at a stop sign, he was unable to extricate his feet and, consequéntly, his bicycle fell over on top of him. After that experience," Mr. Matherne began keeping the strap on his right toe clip loose because he did not like to reach down and loosen the strap before coming to a stop. Mr. Matherne related that he fell a second time while at L.S.U. When executing a turn at 20 miles per hour on a training ride, Mr. Matherne stated that he ended up in a yard.

Sometime between 1986 and 1991, Mr. Matherne stated that he purchased Detto cycling shoes, which he wore in addition to the toe clips. These specialized shoes were designed with rigid soles and featured a cleat or ledge under the instep that would fit in between the bars on each pedal. When combined with the toe clips, these shoes ensured that Mr. Matherne’s foot could not unintentionally leave the pedal. Mr. Matherne surmised that he was probably wearing these shoes when he had his second accident, and further recalled that he was unable to step out of the pedals when this accident occurred.

After receiving his MBA degree from L.S.U. in 1991, Mr. Matherne was employed as a Private Banking Loan Officer for First National Bank of Commerce in New Orleans. LMr. Matherne would take regular training rides, and participated with co-workers from the bank in three consecutive two-day, 150-mile “Tour for the Cure” bicycle rides organized to raise money for Multiple Sclerosis (“M.S.”). Mr. Matherne stated that he wore his cycling shoes while competing in these M.S. Bicycle Tours. Each year prior to the M.S. Bicycle Tour, Mr. Matherne had his bicycle overhauled at a bicycle shop on Freret Street. As part of one of these overhauls, Mr. Matherne requested that the leather straps on the toe clips be replaced because they had become worn due to wear.

On October 3, 1993, Mr. Matherne and a friend were completing the last miles of his third two-day, 150-mile M.S. cycling marathon, in St. Tammany Parish. While traveling at about 18 miles-per-hour, Mr. Matherne noticed that the front tire of his bicycle had gotten too close to the rear tire of his companion’s bicycle. Accordingly, Mr. Matherne attempted to back off and steer slightly away. Mr. Matherne was not able to recall exactly how the accident occurred, but stated that he believed the front tire of his bicycle struck the rear tire of his friend’s bicycle in front of him. This caused Mr. Matherne to lose his balance, and his bike went down. As was his custom, Mr. Matherne rode with the strap on his right toe clip loose, but kept the strap on the left toe clip tight. Consequently, Mr. Matherne’s left foot remained secured to the bicycle pedal and suffered damage when the bike pulled it along its skid path.

As a result of this accident, Mr. Math-erne sustained various cuts and abrasions, damage to his bicycle, and an oblique fracture of his left ankle that required surgical repair. Mr. Matherne subsequently instituted the present action in an attempt to recover damages for the injuries he suffered as a result of this accident.

ACTION OF THE TRIAL COURT

Mr. Matherne filed suit in St. Tammany Parish on September 30, 1994, alleging that “the left toe clip and toe clip strap on the bicycle failed to release plaintiffs left foot from the bicycle causing plaintiff to sustain serious and permanent disabling bodily injuries.” Mr. Matherne contended that the toe clips in question were unreasonably dangerous due to inadequate warning and defective design under the LPLA. Named as defendants in this action were the bicycle manufacturer, Trek Bicycle Corporation | s(“Trek”); manufacturers of toe clip assembly, Poutrait-Morin S.A./Zefal-Christophe (“Christophe”), Western States Import Company d/b/a Diamondback (a/k/a Avenir) (“Avenir”); distributor of toe-clip assembly, Todson, Inc. (“Todson”); and the retailer from whom Mr. Matherne purchased the bicycle, Tuffy’s World Class Bicycle Shop d/b/a World Class Bicycles (“Tuffy’s”). Mr. Matherne later reached a settlement with defendants Christophe, Avenir, and Todson. On March 6, 1998, Mr. Matherne obtained an order dismissing with prejudice his claims against said defendants, but reserving his claims against the remaining defendants, Trek and Tuffy’s.

Trek moved for summary judgment on April 6, 2000, asserting that pursuant to the LPLA and the jurisprudence interpreting it, Mr. Matherne could not rely on a known and intended attribute of the toe clip as proof of a defect in his bicycle. Additionally, Trek asserts that a manufacturer has no duty to warn users of its product about dangers that are common knowledge or which are obvious to the ordinary user. Mr. Matherne responded by filing his own motion for summary judgment on June 1, 2000, seeking a determination that he was not contributorily negligent.

In a judgment filed on June 30, 2000, the district court denied Mr. Matherne’s motion regarding victim fault. The district court partially granted Trek’s motion for summary judgment and dismissed Mr. Matherne’s claims concerning Trek’s alleged failure to provide adequate instruction and warnings. Based upon assertions contained in a late-filed affidavit of Mr. Matherne’s expert, James M. Green, the district court preserved Mr. Matherne’s right to pursue a theory of alternate design.

On June 25, 2002, Trek filed a supplemental motion for summary judgment seeking dismissal of Mr. Matherne’s remaining claims and for all costs, including those costs associated with taking the deposition of Mr. Matherne’s expert, Mr. Green. Following a hearing, the district court took the matter under advisement, and in a | (¡judgment filed on August 8, 2002, dismissed Mr. Matherne’s remaining design defect claims. The district court further assessed Mr. Matherne with all costs of this case, but declined to grant additional sanctions requested by Trek.

Mr. Matherne now appeals from the district court’s judgments of June 30, 2000, and August 8, 2002, that dismissed his claims against Trek.

ISSUES ON APPEAL

In connection with his appeal in this matter, Mr. Matherne sets forth the following issues for consideration by this court:

1) Whether summary judgment should have been granted when there was a genuine issue of material fact on all issues;
2) Whether the wrong instructions for use of toe clips were a characteristic of the bicycle that rendered the product unreasonably dangerous in design;
3) Whether Mr. Matherne’s injuries resulted from a reasonably anticipated modification of the product which rendered the product defective in design;
4) Whether Trek had a duty to warn of the dangerous characteristics of the reasonably anticipated modifications;
5) Whether an alternative design existed that was “capable” of preventing or lessening Mr. Matherne’s injuries;
6) Whether the trial court erred in weighing and determining the credibility of Mr. Matherne’s expert witness, and resolved disputed issues of fact and inferences in favor of Trek in order to grant summary judgment;
7) Whether the trial court erred in granting summary judgment on an issue raised sua sponte by the trial court and not litigated by the express or implied consent of the parties;
8) Whether the trial court erred in holding that clipless pedals were a “custom” or “special” feature that was only available in a specialized market such that it did not constitute an alternative design; and
9) Whether- there was a genuine issue of material fact for a jury to determine whether clipless pedals were a “custom” or “special” feature available as an alternative design.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, ^depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966 B. Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.... ” La. Code Civ. P. art. 966 A(2).

The burden of proof on a motion for summary judgment is set forth in La.Code Civ. P. art. 966 C(2):

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

The initial burden of proof remains with the mover and is not shifted to the non-moving party until the mover has properly supported the motion and carried the initial burden of proof. Only then must the non-moving party “submit evidence showing the existence of specific facts establishing a genuine issue of material fact.” See Scott v. McDaniel, 96-1509, p. 5 (La.App. 1 Cir. 5/9/97), 694 So.2d 1189, 1191-1192, writ denied, 97-1551 (La.9/26/97), 701 So.2d 991. If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La.Code Civ. P. arts. 966 and 967.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders, 96-1751 at 7, 696 So.2d at 1035. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Walker v. Phi Beta Sigma Fraternity (RHO Chapter), 96-2345, p. 6 (La.App. 1 Cir. 12/29/97), 706 So.2d 525, 528.

I ¿DISCUSSION

Mr. Matherne has based his claim on the theory that his injuries resulted from a manufacturing characteristic of his bicycle that made the bicycle unreasonably dangerous in its design. Additionally, Mr. Matherne alleges that the manufacturer’s instructions concerning the use of the product were sufficiently flawed so as to render the design of the bicycle and toe clips defective.

The LPLA provides the exclusive theories of liability for manufacturers for damage caused by their products. La. R.S. 9:2800.52. Louisiana Revised Statute 9:2800.54 establishes the elements of a cause of action under the Act. The elements, which must be proven by the claimant are: (1) the defendant is the manufacturer of the product; (2) the claimant’s damage was proximately caused by a characteristic of the product; (3) this characteristic made the product unreasonably dangerous and (4) the claimant’s damage arose from a reasonably anticipated use of the product by the claimant or someone else. See La. R.S. 9:2800.54 A; Kennedy, John, A Primer on the Louisiana Products Liability Act, 49 La. Law Rev. 565, 583 (1989). A “reasonably anticipated use” means a use or handling of a product that the product’s manufacturer should reasonably expect of an ordinary person in the same or similar circumstances. La. R.S. 9:2800.53(7).

In the instant case, Mr. Matherne based his claim on the theories of liability contained in La. R.S. 9:2800.54 B(2) and (3); i.e., that the Trek bicycle was unreasonably dangerous due to the design of the toe clips, and that an adequate warning about the toe clips was not provided. Pursuant to La. R.S. 9:2800.56, liability may be imposed on a manufacturer because a product is unreasonably dangerous in its design. Louisiana Revised Statute 9:2800.56, provides:

§ 2800.56. Unreasonably dangerous in design
A product is unreasonably dangerous in design if, at the time the product left its manufacturer’s control:
(1) There existed an alternative design for the product that was capable of preventing the claimant’s damage; and
(2) The likelihood that the product’s design would cause the claimant’s damage and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the product. An | ^adequate warning about a product shall be considered in evaluating the likelihood of damage when the manufacturer has used reasonable care to provide the adequate warning to users and handlers of the product.

Alternatively, liability may be imposed on a manufacturer, pursuant to La. R.S. 9:2800.57, because an adequate warning about the product was not provided. Louisiana Revised Statute 9:2800.57 provides:

§ 2800.57. Unreasonably dangerous because of inadequate warning
A. A product is unreasonably dangerous because an adequate warning about the product has not been provided if, at the time the product left its manufacturer’s control, the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.
B. A manufacturer is not required to provide an adequate warning about his product when:
(1) The product is not dangerous to an extent beyond that which would be contemplated by the ordinary -user or handler of the product, with the ordinary knowledge common to the community as to the product’s characteristics; or
(2) The user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that may cause damage and the danger of such characteristic.
C. A manufacturer of a product who, after the product has left his control, acquires knowledge of a characteristic of the product that may cause damage and the danger of such characteristic, or who would have acquired such knowledge had he acted as a reasonably prudent manufacturer, is liable for damage caused by his subsequent failure to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.

Failure to Warn

As we have previously noted, the district court dismissed Mr. Matherne’s claims concerning Trek’s alleged failure to provide adequate warnings in its partial grant of Trek’s motion for summary judgment filed on June 30, 2000. In dismissing Mr. Matherne’s claims against Trek, the district court stated in pertinent part:

In the present case, it seems almost elementary that an experienced cyclist would obviously be aware of the potential hazards of having his feet clamped to the pedals in the event of a sudden stop or accident. The user obviously, and knowingly, trades off this risk for the benefits of enhanced performance through a constant application of power to the pedals throughout the rotation. Therefore, under the undisputed facts of this case, hnthe Court concludes that [Mr. Matherne] is not entitled to recover under this theory of liability.

In its motion for summary judgment, Trek challenged the ability of Mr. Math-erne to establish that a characteristic of the toe clips on his bicycle made them unreasonably dangerous, or that it had a duty to provide an adequate warning about the toe clips. Mr. Matherne responds with the contention that in 1992, Trek significantly changed the bicycle’s owner’s manual and warned about the possibility of bodily injury resulting from the improper use of the toe clips and straps. In addition, the 1992 Trek manual no longer advised owners of its bicycles to tighten the straps of the toe clips. Mr. Matherne points out that the new instructions recommended the following:

Always keep toe straps loose while riding any place where you may need to remove your feet from the pedals to remain upright.

Mr. Matherne contends that his injuries would not have occurred if the information contained in the 1992 manual had appeared in his 1986 manual. We note however that the owner’s manuals are consistent in their admonition that toe straps must be loose for a cyclist to remain upright when stopped.

The primary danger posed by the use of toe clips is that a cyclist may not be able to get his foot off of the pedals in the event of a fall. Mr. Matherne clearly stated in his deposition that at the time of his accident he knew of both the complained of characteristics of the toe clip and the possible dangers of these characteristics. In his deposition, Mr. Matherne responded to questions as follows:

Q. And it was the objective, it was the purpose, of the [toe] strap to hold your foot tight onto the pedal, was it not?
A. To maximize pedal potential, sure.

With respect to Trek’s alleged failure to warn, Mr. Matherne engaged in the following colloquy:

Q. Prior to your fall in 1993, so long as the strap [on the toe clips] was on tight, you knew there was no opportunity for release other than something that you would have performed; is that right?
A. That’s correct.
lnQ. So that while riding moments before the accident occurred, you knew that your left foot would not be released by this toe clip assembly unless you loosened the strap?
A. Correct.
Q. Yet, the strap was kept tight by you on your left foot.
A. To maximize the pedaling potential, yes.

Again, in his deposition, Mr. Matherne was asked:

Q. Did you understand in 1986 or ’87 when you fell at the stop sign that when toe clip straps were tight, the possibility of injury existed?
A. I know the possibility of falling existed because that was my experience.
Q. Did you know as well that when one fell, one ran the possibility of an injury?
A. I know that now.
Q. No, that’s not my question, Mr. Matherne. My question is very simple. When you fell at the stop sign, did you know, either at that time or immediately thereafter, that when your straps were both tight, you could fall, and that in falling, you could be injured?
A. Yes.
Q. Thank you.

We agree that the record reflects that Mr. Matherne was a sophisticated user of the toe clips, and had used them continuously since he purchased his Trek bicycle seven years earlier in 1986. Mr. Matherne admitted that he had actual knowledge, coupled with personal experience, that the toe clip system would hold his feet securely in place during a fall and that this characteristic could lead to injury. This knowledge covers more than would be required by any reasonable warning, yet Mr. Matherne continued to use the toe clips and even purchased special shoes to further insure that his feet would not slip off the pedals. Accordingly, the district court was correct in granting Trek’s motion for summary judgment with respect to Mr. Matherne’s claims concerning Trek’s alleged failure to provide adequate warnings.

119Availability of an Alternative Design

Mr. Matherne asserts that the design of the toe clips on his bicycle held his feet to the pedals of the bicycle after his crash, and this made the Trek bicycle unreasonably dangerous and, also, defective.

In an effort to defeat Trek’s motion for summary judgment, Mr. Matherne submitted the affidavit of James M. Green, a civil engineer and “bicycling expert.” In his affidavit, Mr. Green stated, in pertinent part:

At the time the Trek bicycle and toe clips left the defendant’s control in 1986, there existed an alternative design for the product which was available to Trek and it would be reasonable to expect that Trek employ this technology and design.

This- and other allegations contained in Mr. Green’s affidavit, were sufficient to defeat Trek’s initial motion for summary judgment as to whether there existed an alternate design for the toe clips. Thereafter, Trek deposed Mr. Green, in Ashe-ville, North Carolina, and in his subsequent deposition testimony, Mr. Green responded as follows:

Q. What manufacturers of bicycles in June of 1986 were providing as original equipment on their model lines alternatives to the toe clip system?
A. And I’m to assume this is the general-use cycle?
Q. I’ve eliminated the custom cycle manufacturer. There are people who, as you well know, Mr. Green, make up frame sets for individuals on a custom order basis that aren’t available in your bike store, either here in Asheville or in New Orleans.
A. Okay. Now I’m with you. I’m not aware of any [bicycle manufacturers] in [the general-use] category that provided other alternatives other than the toe clip system in 1986.
Q. Okay. Do you know when the types of manufacturers that I just cataloged for you, and any others that you can think of that fall into that category, began to offer alternative designs to toe clips on their bicycle lines?
A. I became aware of it from my work on or about from 1990 on, is when I first started seeing alternative designs. But I have not done an exhaustive industry study on that issue.

hsLater on his deposition, Mr. Green admitted that toe clips of substantially the same design as those on Mr. Matherne’s bicycle are still offered for sale in reputable bicycle shops throughout the country, Mr. Green further stated that the toe-clip system utilized by Mr. Matherne did not violate Consumer Product Safety Commission standards, and is generally less expensive than alternative foot retention systems that require the user to purchase additional equipment such as specialized shoes to make them work.

Perhaps most importantly, in Mr. Green’s deposition, the following colloquy took place:

Q. Okay. You can fall and injure an ankle with a clipless pedal [foot retention system] as well as with a toe clip system; is that right?
A. Generally, yes.
Q. You can suffer serious injury to an ankle with a clipless pedal system, can you not?
A. Yes.
Q. Falls frequently occur so quickly that a cyclist, even an experienced cyclist, is sometimes unable to get his foot loose even with a clipless system, wouldn’t you agree?
A. I would agree that he voluntarily does not have enough time in a fall. There’s just not enough perceive-react time there available for them, with whatever system he has.

With respect to the conflicting instructions regarding the use of toe clips contained in the 1986 owner’s manual and later editions of said manual, Mr. Green responded in his deposition as follows:

Q. Do you have an opinion as to which would have been the correct instructions?
A. Well that is the problem. To be the most effective, they [the straps on the toe clips] need to be tight. To be able to stop suddenly, or for them to release during a fall, they need to be loose. So it puts the user at a disadvantage, extreme disadvantage, in not knowing what’s the most effective versus what’s the most safe....”

Trek asserts that Mr. Matherne not only intended for the toe clip to perform exactly as it did, but also knew of an alternative method to secure his foot to the pedal but chose not to use it. The following colloquy took place in Mr. Matherne’s deposition:

|UQ. Did you, Mr. Matherne, during the course of your ownership of this bicycle between 1986 and 1993 ever investigate replacing or updating the mechanism that held your foot or shoe to the pedal or to the bicycle?
A. I was thinking of buying a new bicycle.
Q. All right. But my question is a little different.
When did you first become aware that the industry had available what we now call clipless pedals? Do you know what I am talking about?
A. Sure.
I think the first one I remember might have been in 1991.
Q. Would you have seen those, say, in the bicycle magazines? I think they were fairly a[sic] big item in those days.
A. I think I saw it at the MS [Bicycle] Tour.
Q. You saw them on the first MS Tour in 1991?
A. That is what I think.
Q. And did you investigate the cost or the utility of those items?
A. Someone did tell me the cost.
Q. And were you interested in replacing the clip and strap mechanism that you had with the newer technology?
A. No. Otherwise, I would have done that.
Q. Were there any advantages to the clipless pedals that you found attractive? A. I did not really investigate them.
Q. In talking to people in cycling, what did you learn about [clipless pedals]?
A. That there was no toe cage and no strap; that you had to buy the shoe and the pedal mechanism. That’s about the extent of it.
Q. Did you learn anything about how they came to release the shoe?
A. I think the best of my recollection is that if you turn your foot to the side or something, they pop out.
Q. And, accordingly, you didn’t have a strap that you had to physically release?
A. Right.
11rQ. Did you find that a feature that was attractive to you?
A. I didn’t know whether or not that’s attractive. It wasn’t something that I had to have.
Q. All right. Were you interested in eliminating the necessity of reaching down and loosening a strap?
A. As a convenience, yeah, that might have been attractive. But I didn’t, you know, seek out and go buy the pedals.
Q. Was it a financial matter? Or just a matter of convenience you didn’t think you needed?
A. I think it was — I don’t know what the matter was. It’s so long ago — but I think it was so new to the market, that I wasn’t going to move on something new to the market or something that I really had no knowledge about.

Considering the foregoing, we believe it is evident that prior to his accident, Mr. Matherne had knowledge of alternate foot retention systems that alleviated the need for the user to manually loosen straps in order to release the foot; however, Mr. Matherne was not interested in this design. While we agree that under the right set of circumstances, the toe clip system can pose a danger to some users, this danger is apparent, and consequently, we do not find said danger to be unreasonable.

Mr. Matherne has not pointed to a safer, alternative design that would have provided the same benefits, nor has he shown that the utility of the toe clips was outweighed by their risk of harm. Accordingly, the district court’s grant of summary judgment was proper.

CONCLUSION

For the above and foregoing reasons, the decisions of the district court granting defendant Trek’s motions for summary judgment and dismissing the claims of Mr. Matherne, are hereby affirmed. All costs associated with this appeal shall be assessed against Mr. Matherne.

AFFIRMED.

      . A toe clip is a thin metal cage attached to each pedal that holds the toe of a cyclist's, shoe together with an adjustable leather strap that goes over the instep of the cyclist’s foot. The toe clip is designed so that when the leather strap is manually tightened, the cyclist's foot will be securely fastened to the pedal. In order to get the foot off of the pedal, the strap must be manually loosened.

      . Mr. Matherne was unable to serve defendant Alan Troy, d/b/a Tuffy’s World Class Bicycles d/b/a World Class Bicycle Shop (''Tuffy’s”), and as a result, said defendant never made an appearance in this lawsuit. Mr. Matherne’s claims against Tuffy’s were ultimately dismissed without prejudice following the decision by the district court to grant summary judgment.