Wilson v. Bradlees of New England Inc

• Citation: 250 F.3d 10
• Decision Date: 05 December 2000
• Docket Number: No. 99-1779,99-1779
• Parties: (1st Cir. 2001) ELIZABETH WILSON, INDIVIDUALLY AND AS MOTHER AND NEXT FRIEND OF ALISA DEBOLD; ALISA DEBOLD, Plaintiffs, Appellants, v. BRADLEES OF NEW ENGLAND, INC., UNION UNDERWEAR COMPANY, INC. PARADISE SCREEN PRINTING CO., a/k/a PARADISE SCREEN PRINTING, INC., SHARKY'S SPORTSWEAR CO., a/k/a SHARKY'S CLOTHING CO., a/k/a/ SHARKY'S DRY GOODS COMPANY, a/k/a SPORTSWEATS, INC., Defendants, Appellees. Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 10

250 F.3d 10 (1st Cir. 2001)

ELIZABETH WILSON, INDIVIDUALLY AND AS MOTHER AND NEXT FRIEND OF ALISA DEBOLD; ALISA DEBOLD, Plaintiffs, Appellants, v. BRADLEES OF NEW ENGLAND, INC., UNION UNDERWEAR COMPANY, INC. PARADISE SCREEN PRINTING CO., a/k/a PARADISE SCREEN PRINTING, INC., SHARKY'S SPORTSWEAR CO., a/k/a SHARKY'S CLOTHING CO., a/k/a/ SHARKY'S DRY GOODS COMPANY, a/k/a SPORTSWEATS, INC., Defendants, Appellees.

No. 99-1779

United States Court of Appeals For the First Circuit

Heard December 5, 2000

Decided May 17, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge] [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Thomas Craig with whom David Woodbury and the Law Offices of Thomas Craig were on brief for appellants.

Alexander J. Walker, Jr. with whom Richard E. Mills, Daniel E. Will, Devine, Millimet & Branch, P.A., Michael J. Goldman and Hawkins & Parnell, LLP were on brief for appellee Union Underwear Company, Inc.

Dennis T. Ducharme with whom Wiggin & Nourie, P.A. was on brief for appellees Sharky's Sportswear Company and Paradise Screen Printing Company.

Before Torruella, Chief Judge, Lipez, Circuit Judge, and Stearns,^* District Judge.

STEARNS, District Judge.

This sad case began when twelve year old Ailsa Debold, irritated by a whistling tea kettle, leaned across a kitchen stove to turn off the burner. Her blended cotton and polyester sweatshirt came in contact with the burner and caught fire.¹ Ailsa suffered disfiguring second and third degree burns to her chest and abdomen.

Ailsa's mother, Elizabeth "Jane" Wilson, brought this lawsuit individually and as next friend of Ailsa.² Named as defendants were Union Underwear Company, Inc. (Union), the manufacturer of Ailsa's sweatshirt, Paradise Screen Printing Company (Paradise), which had silk-screened a college logo on the front of the sweatshirt, Sharky's Sportswear Company (Sharky's), the sweatshirt's wholesaler, and Bradlees of New England, the retail seller of the sweatshirt to Ailsa's mother.³ The sweatshirt was an adult-large size, purchased by Elizabeth Wilson for her daughter in the Junior Miss Department of a Bradlees store in Concord, New Hampshire, some five and one-half months prior to the accident.

The case was filed on January 29, 1993, and came previously before this court on plaintiff's appeal of a district court order granting summary judgment to all defendants. We reversed the district court's determination that the plaintiff's common-law products liability and failure to warn claims were pre-empted by section 1203(a) of the Flammable Fabrics Act (FFA), 15 U.S.C. §§ 1191-1204. See Wilson v. Bradlees of New England, Inc., 96 F.3d 552, 558-559 (1st Cir. 1996) (holding that a manufacturer's compliance with the FFA textile flammability standard is relevant, but not outcome determinative). After remand and further discovery, the district court granted summary judgment to Union on so much of plaintiff's failure to warn claim as involved the obvious danger that clothing can catch fire.

Trial began on April 6, 1999. At the close of plaintiff's evidence, the district court granted Union's motion for judgment as a matter of law on the balance of plaintiff's failure to warn claim. Judgment also entered for Sharky's on plaintiff's claim(s) of ordinary negligence. The case was submitted to the jury on the remaining claims of defective design, negligent manufacture, and strict products liability. The jury, in answering a special verdict question, found that the sweatshirt had not been defectively designed and, pursuant to the instructions on the verdict slip, answered no further questions. Judgment thereafter entered for Union and Sharky's and this appeal ensued.

DISCUSSION

Plaintiff raises a variety of issues on appeal, the majority of which involve evidentiary rulings made by the district court. At oral argument, plaintiff's counsel stated that the alleged errors had been briefed in their considered order of importance. Consequently, they will be addressed for the most part in the same sequence.

Dismissal of the Failure to Warn Claim

On February 3, 1999, two months prior to trial, the district court entered partial summary judgment for Union, dismissing so much of plaintiff's failure to warn claim as involved an obvious danger. While rejecting Union's argument that plaintiff was required to prove causation by expert testimony, the district court tentatively agreed that the danger that clothing can catch fire if exposed to a heated stove burner is "probably obvious."⁴ However, in light of Ailsa's deposition testimony that she had been warned by her parents that fabrics can burn and that her clothing should be kept away from hot objects like stoves, the district court concluded that any necessity for a superabundant warning in Ailsa's case was "obviated."⁵ The court, however, reserved for trial the issue whether Union had a duty to warn of the "particular" flammability characteristics of the sweatshirt that were not obvious, specifically the possibility that the sweatshirt could "ignite spontaneously," could "be very difficult to extinguish," or could "melt and cause a more severe burn."

At the close of plaintiff's evidence, the district court granted Union's motion for judgment as a matter of law pursuant to Rule 50(a) on the remainder of the duty to warn claim. The district court's reasoning was set out in a written opinion denying plaintiff's motion for a new trial. The court found that plaintiff had failed to prove that a more particularized warning as to the unwonted flammability characteristics of the sweatshirt would have prevented Ailsa's spontaneous act of reaching for the kettle.⁶ Review of the district court's Rule 50(a) ruling is plenary.⁷ Irvine v. Murad Skin Research Laboratories, Inc., 194 F.3d 313, 317 (1st Cir. 1999).

Plaintiff's attack on the district court's ruling has two facets. First, plaintiff claims that the court erred by viewing the effect of a warning from Ailsa's vantage, rather than from the perspective of her mother. The argument is based on a misreading of Bellotte v. Zayre Corp., 352 A.2d 723 (N.H. 1973).⁸ In Bellotte, the New Hampshire Supreme Court held that because a five year old child inherently lacks the capacity to appreciate the unavoidable flammability danger inherent in all clothing, to frame the "unreasonably dangerous" test from the perspective of the child (as the plaintiffs in Bellotte urged) would "make the seller an insurer, a path we decline to follow." Id. at 725. Consequently, the court determined that the test should be framed in terms of the child's parent who purchased the clothing. The court, however, cautioned that "when it is practical to do so the warning should be given to the person who will use the product." Id. Ailsa was twelve years old when the accident happened and, in contrast to the five year old child in Bellotte, or the three year old child in Price v. Bic Corp., 702 A.2d 330 (N.H. 1997), nothing in the record suggests that she lacked the capacity to understand a warning.⁹

The second facet of plaintiff's attack is directed to the district court's failure to instruct the jury as to the so-called "read and heed" presumption approved by Restatement (Second), Torts, § 402A, comment j.

Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.

While it is clear from plaintiff's brief that it is Elizabeth Wilson and not her daughter for whom the presumption is principally advocated, Ailsa, as Bellotte instructs, is the appropriate focus. While the district held, accurately in our view, that no evidence had been presented that a particularized warning would have prevented Ailsa's instinctual reaction, plaintiff's argument also founders on the fact that New Hampshire has not adopted the "read and heed" presumption, and we will not do so on its behalf. Plaintiff chose to bring this lawsuit in federal court. "[L]itigants who reject a state forum in order to bring suits in federal court under diversity jurisdiction cannot expect that new trails will be blazed." Ryan v. Royal Ins. Co. of America, 916 F.2d 731, 744 (1st Cir. 1990). See also Cheshire Medical Center, 49 F.3d at 35 (declining to predict an expansion of the doctrine of strict liability under New Hampshire law in light of the state Supreme Court's historically conservative approach to products liability law).

The Sears & Roebuck Complaint

In October of 1998, plaintiff filed a separate lawsuit in the Massachusetts Superior Court against Sears & Roebuck, the manufacturer and seller of the stove, claiming that a defective heating element had been the proximate cause of Ailsa's injuries. On the fifth day of trial, while cross-examining Ailsa, counsel for Union asked whether she had "ever claimed that it was the stove that caused your injuries?" A seasonable objection was made. At sidebar, both counsel proceeded on the correct assumption that the admissibility of the Sears & Roebuck complaint depended on whether the pleadings were facially inconsistent. This precipitated a debate over the significance of the use of the definite article "the" (instead of the indefinite article "a") to describe proximate cause in the Sears & Roebuck complaint. The district court, apparently believing that the distinction made a difference, overruled the objection. Union's counsel then asked Ailsa if she had retained a lawyer to file suit against Sears & Roebuck. To this question Ailsa responded: "I can't be sure. That's left in my mother's hands, I don't know." After showing Ailsa the Sears & Roebuck complaint, counsel then asked: "And on page two of that complaint do you claim that the injuries that you sustained were the direct and proximate result of Sears, Roebuck?" When...