462 F.3d 74 (2nd Cir. 2006), 05-3958, Kosmynka v. Polaris Industries, Inc.

Docket Nº:05-3958-CV.
Citation:462 F.3d 74
Party Name:Martin T. KOSMYNKA and Christine Kosmynka, Plaintiffs-Appellees, v. POLARIS INDUSTRIES, INC., Defendant-Appellant.
Case Date:September 01, 2006
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 74

462 F.3d 74 (2nd Cir. 2006)

Martin T. KOSMYNKA and Christine Kosmynka, Plaintiffs-Appellees,


POLARIS INDUSTRIES, INC., Defendant-Appellant.

No. 05-3958-CV.

United States Court of Appeals, Second Circuit.

Sept. 1, 2006

Argued: March 14, 2006.

Page 75

[Copyrighted Material Omitted]

Page 76

[Copyrighted Material Omitted]

Page 77

Wayne D. Struble, Bowman and Brooke LLP, Minneapolis, Minnesota (David S. Miller, on the brief); Annette G. Hasapidis, of counsel, for Defendant-Appellant.

Brian J. Isaac, Pollack, Pollack, Isaac & De Cicco, New York, New York (Roura & Melamed, on the brief, for Plaintiffs-Appellees.

Before: JACOBS and WESLEY, Circuit Judges, and KOELTL, District Judge. [*]

DENNIS JACOBS, Circuit Judge.

Martin Kosmynka was loading an all-terrain vehicle ("ATV") onto a trailer when the vehicle climbed the far wall of the trailer, flipped over, and rendered Mr. Kosmynka paralyzed. Mr. Kosmynka and his wife sued the ATV manufacturer, defendant Polaris Industries, Inc. ("Polaris"), on theories of strict products liability, negligence, and breach of implied warranty. Polaris now appeals from a judgment entered after a jury trial in the United States District Court for the Eastern District of New York (Wexler, J.), awarding Mr. Kosmynka and his wife (Christine Kosmynka) $2.2 million in damages. The jury found in favor of Polaris on the strict products liability and breach of warranty claims, but found that Polaris negligently designed the vehicle or failed to provide adequate safety warnings.

Polaris appeals on the grounds that [i] it was entitled to judgment as a matter of law, and [ii] the verdict was inconsistent because a product defect is (as the jury was properly charged) an element of the claims for negligent design and negligent failure to warn. We reject the argument that Polaris is entitled to judgment as a matter of law. But we conclude that the jury verdict was inconsistent, and that Polaris preserved its objection to the inconsistency. Accordingly, we vacate the judgment of the district court and remand the case for retrial. 2


When an appeal comes to us after a jury verdict, we view the facts of the case in the light most favorable to the prevailing party. Promisel v. First Am. Artificial Flowers, Inc., 943 F.2d 251, 253 (2d Cir.1991).


In the summer of 1999, Mr. Kosmynka purchased a new 2000 all-wheel drive Polaris Sportsman 500 ATV ("Sportsman") from his local Polaris dealer, towing it home on a two-wheel "tilt bed trailer" (essentially a seesaw on wheels), which he had previously bought for general yard and garden work. The trailer was not purchased with factory-optional walls or

Page 78

side boards; so Mr. Kosmynka retrofitted it himself.

On October 6, 1999, Mr. Kosmynka's neighbor, who had the identical vehicle, borrowed the trailer in order to take his Sportsman to the Polaris dealership for servicing. After the neighbor unsuccessfully tried to get the vehicle onto the trailer, Mr. Kosmynka took over. After engaging the all-wheel drive switch and selecting the "low-low" gear for additional traction, Mr. Kosmynka applied the thumb throttle and attempted to ease the vehicle up the trailer bed. Seconds later, the vehicle's front wheels "start[ed] climbing the front of the boards" of the trailer; the Sportsman then tipped over backwards and landed on top of Mr. Kosmynka, rendering him paralyzed.

The Polaris owner's manual contained no instruction about how to load or unload the vehicle onto any trailer; then again, Mr. Kosmynka did not recall reading any sections whatever of that manual.

The Kosymnkas' lawsuit proceeded to a jury trial.


After the presentation of evidence, the district judge instructed the jury on negligence, strict products liability, and breach of implied warranty. The court's charge paralleled the New York Pattern Jury Instructions, as did the verdict sheet, which contained interrogatories on each theory of liability, on contributory negligence, on the fault chargeable to each party, and on damages.

The jury found that [i] Polaris was "negligent in the design of the ATV or in the failure to adequately warn of dangers in using the ATV"; [ii] the ATV was not defectively designed and Polaris adequately warned of the dangers of operating the ATV; and [iii] Polaris did not breach its implied warranty to Plaintiff. 3 After apportionment of 30 percent of the fault to Polaris (and 70 percent to Mr. Kosmynka), the award in favor of plaintiffs totaled $2.2 million.

Immediately after the verdict was read, counsel for Polaris requested a sidebar and advised the judge (with the jury still empaneled) that the negligence and strict liability findings were inconsistent. As counsel explained, the jury had misapplied the court's negligence charge by finding Polaris negligent even though the product was found not defective:

[It was] [i]nconsistent that [the jury] would find negligence but no defect because an element of the negligence claim is that the product had to be defective plus an additional element, that the defect existed by reason of the defendant not using the reasonable care. That's the difference between strict liability

Page 79

and negligence, they wouldn't have had to show, to find strict liability, that the[y] didn't use reasonable care.

So it was possible to find defect and negligence, but you can't find negligence but no defect. There still would have had to have been a defective product for them to find negligence.

Counsel for both sides explained to the court that the jury could be re-instructed, because the jury was still empaneled. The court concluded, however, that re-instruction was impracticable: "[The jury] already ha[s] the charge in front of them." The court also declined to declare a mistrial. Consequently, the court allowed the verdict to stand, entered judgment, and denied Polaris' subsequent motions for judgment as a matter of law and for a new trial.



Polaris argues that it is entitled to judgment as a matter of law because [i] it neither owed nor breached a duty to protect Mr. Kosmynka from a risk that was not reasonably foreseeable and [ii] plaintiffs failed to prove that Polaris' negligence was the proximate cause of Mr. Kosmynka's injury.

Under Rule 50(a)(1), Fed.R.Civ.P., judgment as a matter of law is proper only when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." A jury verdict should be set aside only where there is " 'such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or ... such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.' " Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir.1992) (ellipsis in original) (quoting Mattivi v. S. African Marine Corp., 618 F.2d 163, 168 (2d Cir.1980)).


Under New York law, which applies in this diversity action, see Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996), a negligent tortfeasor is liable for any reasonably foreseeable risk that is proximately caused by its action. See Di Ponzio v. Riordan, 89 N.Y.2d 578, 583, 657 N.Y.S.2d 377, 679 N.E.2d 616 (1997); see also Codling v. Paglia, 32 N.Y.2d 330, 340-41, 345 N.Y.S.2d 461, 298 N.E.2d 622 (1973) ("[A manufacturer] can fairly be said to know and to understand when an article is suitably designed and safely made for its intended purpose."). "[A]lthough virtually every untoward consequence can theoretically be foreseen 'with the wisdom born of the event,' the law draws a line between remote possibilities and those that are reasonably foreseeable because '[n]o person can be expected to guard against harm from events which are ... so unlikely to occur that the risk ... would commonly be disregarded.' " Di Ponzio, 89 N.Y.2d at 583, 657 N.Y.S.2d 377, 679 N.E.2d 616 (citations omitted); see also Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 344, 162 N.E. 99 (1928) ("The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension."). "There must be knowledge of a danger, not merely possible, but probable." MacPherson v. Buick Motor Co., 217 N.Y. 382, 389, 111 N.E. 1050 (1916).

Within limits, negligence is a question of fact best left to the jury. See, e.g., Ugarriza v. Schmieder, 46 N.Y.2d 471, 474, 414 N.Y.S.2d 304, 386 N.E.2d 1324 (1979)

Page 80

("[T]he very question of negligence is itself a question for jury determination."); Palsqraf, 248 N.Y. at 345, 162 N.E. 99 ("The range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury.").

To prove negligent design, a plaintiff must demonstrate that the product defect was a "substantial factor in causing the injury," see Fritz v. White Consol. Indus., 306 A.D.2d 896, 898, 762 N.Y.S.2d 711 (App.Div.2003) (internal quotation marks and citation omitted), and that "it was feasible to design the product in a safer manner," Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 108, 463 N.Y.S.2d 398, 450 N.E.2d 204 (1983); a defendant can rebut such a showing by presenting evidence that the product (as designed) "is a safe product--that is, one whose utility outweighs its risks when the product has been designed so that the risks are reduced to the greatest extent possible while retaining the product's inherent usefulness at an acceptable cost." Id. at 108-09, 463 N.Y.S.2d 398...

To continue reading