299 F.3d 60 (1st Cir. 2002), 01-2270, Babcock v. General Motors Corp.

Docket Nº:01-2270.
Citation:299 F.3d 60
Party Name:Frances A. BABCOCK, in her capacity as Executrix of the Estate of Paul A. Babcock, III, and Individually, Plaintiff, Appellee, v. GENERAL MOTORS CORPORATION, Defendant, Appellant.
Case Date:August 12, 2002
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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299 F.3d 60 (1st Cir. 2002)

Frances A. BABCOCK, in her capacity as Executrix of the Estate of Paul A. Babcock, III, and Individually, Plaintiff, Appellee,



No. 01-2270.

United States Court of Appeals, First Circuit

August 12, 2002

Heard May 10, 2002.

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[Copyrighted Material Omitted]

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Daniel L. Goldberg, with whom S. Elaine McChesney, Donald J. Savery, Bingham Dana LLP, Thomas J. Sweeney, Daniel B. McLane, and Eckert Seamans Cherin & Mellott, LLC, were on brief, for appellant.

Edward M. Kaplan, with whom Robert M. Larsen, Timothy A. Gudas, and Sulloway & Hollis, P.L.L.C., were on brief for appellee.

Before LIPEZ, Circuit Judge, CAMPBELL and BOWNES, Senior Circuit Judges.

BOWNES, Senior Circuit Judge.

This appeal is taken by defendant-appellant General Motors Corporation ("GM") from an adverse jury verdict in favor of plaintiff-appellee Frances A. Babcock as executrix of the estate of Paul A. Babcock, III, and individually. The case arose from an accident on February 21, 1998, when a General Motors pickup truck driven by Paul A. Babcock, III, went off the road and struck a tree. The accident rendered Babcock a paraplegic. On June 15, 1999, Babcock died as a result of complications from his injuries.


Plaintiff brought suit alleging negligence and strict liability against the defendant. The jury returned a verdict finding GM liable on the negligence count and not liable on the strict liability count. It is undisputed that when Babcock was first seen after the accident his seat belt was not fastened around him. The complaint alleged that Babcock was wearing his seat belt prior to the accident, but that the belt unbuckled as soon as pressure was exerted on it and the buckle released due to a condition known as "false latching." The main focus of the trial was on this claim of false latching.

Three main issues are before us: (1) whether the verdict should be set aside because it was internally inconsistent; (2) whether GM forfeited its objection to the alleged inconsistency because of its failure to follow the requirements of Rules 49(b) and 51 of the Federal Rules of Civil Procedure as applied by this court; and (3) whether the evidence was sufficient to support the verdict of liability based on negligence. We affirm the judgment below.


A. The Claim of Inconsistent Verdicts

GM advances a series of arguments to the effect that the jury's verdict on the negligence count is invalid and cannot stand: (1) as a matter of law, in the absence of a defect in the product, GM could not be found liable for negligence; (2) thus, the verdicts were inconsistent; (3) the inconsistency in the verdicts was caused by the district court's erroneous jury instructions; and (4) plaintiff's failure to appeal the verdict in favor of GM on the strict liability claim precludes entry of

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judgment for plaintiff on the negligence claim and mandates entry of judgment for GM.

None of these arguments or variations thereof was made in the trial court. During the discussions on the proposed jury charge, the trial judge discussed the Verdict Form with counsel on two separate occasions. GM did not object to the form on either occasion. The Verdict Form on liability submitted to the jury stated:


1. Has plaintiff proved her negligence claim by a preponderance of the evidence?

Yes No

2. Has plaintiff proved her product liability claim by a preponderance of the evidence?

Yes No

[Answer questions 3 and 4 only if you have answered yes to question 1 and/or 2] Although the Verdict Form is entitled "Special Verdict Form," it seems clear that it was not a true "special verdict," as described in Rule 49(a) of the Federal Rules of Civil Procedure. Rule 49(a) states: "The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact." Here, for example, a special verdict form would have included questions such as whether Babcock was wearing his seat-belt at the time of the accident. When such a form is used, the jury makes only findings of fact; it is up to the court to apply the law. See 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2503, at 155-56 (2d ed.1994). It seems clear that this is not the type of verdict form used in this case. Rule 49(b), which addresses general verdicts, states: "The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict." This is the type of form used in this case: the jury returned a verdict against GM, and also answered specific interrogatories designed to channel its deliberations, focusing its attention on the crucial issues that it had to resolve in order to decide which party should prevail.1 See Wright & Miller, supra, § 2511, at 217 & n. l (discussing the purpose of Rule 49(b)). The last sentence of Rule 49(b) specifically discusses inconsistent answers to questions submitted to the jury: "When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial." We have held that under Rule 49(b), objections to the inconsistency of verdicts must be made after the verdict is read and before the jury is discharged. E.g., Merchant v. Ruhle, 740 F.2d 86, 89 (1st Cir. 1984); Skillin v. Kimball, 643 F.2d 19, 19-20 (1st Cir. 1981). Consistent with those precedents, we hold that GM forfeited its objection to the alleged inconsistency Page 64 by failing to object at the critical time. See Mclsaac v. Didriksen Fishing Corp., 809 F.2d 129, 134 (1st Cir. 1987). "To decide otherwise would countenance 'agreeable acquiescence to perceivable error as a weapon of appellate advocacy.'" Id. (quoting Merchant, 740 F.2d at 92). Consequently, unless there is plain error, we cannot grant relief on GM's claim that the jury's inconsistent...

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