Larue v. National Union Elec. Corp., s. 77-1275 and 77-1276

Decision Date22 February 1978
Docket NumberNos. 77-1275 and 77-1276,s. 77-1275 and 77-1276
Citation571 F.2d 51
PartiesMichael LARUE, P. P. A., Plaintiff, Appellee, v. NATIONAL UNION ELECTRIC CORP., Defendant, Appellant. Michael LARUE, P. P. A., Plaintiff, Appellant, v. NATIONAL UNION ELECTRIC CORP., Defendant, Appellee.
CourtU.S. Court of Appeals — First Circuit

Stephen T. Keefe, Jr., Quincy, Mass., for National Union Electric Corp. William Schwartz, Boston, Mass., with whom Edward M. Swartz, Boston, Mass., John C. Corrigan, Jr., Arlington, Mass., and Swartz & Swartz, Boston, Mass., were on brief, for Michael Larue p.p.a.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Conrad Larue brought this diversity action in January 1973, on behalf of his minor son Michael and in his own right, for injuries suffered by Michael. The complaint charged National Union Electric Corp. with negligent design and manufacture of a vacuum cleaner and breach of express and implied warranties. National Union denied all liability and alleged contributory negligence on the part of Michael. After a trial in March, 1977, during which Conrad Larue's claim was by stipulation merged into Michael's, the issues of negligence, implied warranty, and contributory negligence were submitted to the jury. A special verdict was returned upholding National Union on the warranty claim but finding for Michael on the negligence count. The jury determined that $125,000 would fully compensate Michael but that his own comparative negligence required reduction of the award to.$93,750. National Union and Larue both appeal, the former both attacking the verdict as contrary to law and seeking a new trial because of allegedly erroneous evidentiary rulings, and the latter arguing the issue of comparative negligence should not have been submitted to the jury.

On January 25, 1971, Michael Larue, then 11 years old, was playing with his parents' canister-type vacuum cleaner, a Eureka Model 842A. He and his sister were home because they had missed the bus for school; his father was at work and his mother in school. The previous evening his mother had taken out the two filters that rested above the fan housing and motor in order to clean them. The morning of the accident the vacuum cleaner was left out in a hallway, plugged in, with the filters not yet replaced and the hood that covered its top half left open. Neither Michael nor his mother could remember whether the hose was attached to the vacuum cleaner or left hanging in a closet.

According to Michael's testimony, he was sitting on the yellow plastic filter support, which in turn rested on the metal casing that covered the fan and engine, riding the vacuum cleaner as if it were a toy car. He was dressed in pajamas. His older sister was in another room watching television. At some point in his play the motor was turned on. Michael continued to ride the vacuum cleaner until his penis slipped through openings in the filter support and casing into the fan. He immediately suffered an amputation of the head of his penis and part of the shaft. He rushed outside to seek help, was taken to the hospital, and underwent the first of a number of complicated operations to repair the damage to his penis.

National Union attempted to present a different account of how Michael suffered his injury. Dr. Shields, a urologist who first treated Michael after the accident, testified in a deposition that Michael originally told him he had started to vacuum his room and began to scratch his genital area with the hose. In so doing he somehow caught himself and severed his penis. National Union attempted to buttress this version of events through the expert testimony of Dr. Reservitz, a urologist, who gave the opinion that the probable cause of the injury was the hose end. Dr. Reservitz conceded on cross-examination, however, that if there were no evidence of blood at the tip of the hose, "(I)t wouldn't be probable" for the accident to have happened as he supposed. Because of the absence of any evidence of blood on the hose, the court ruled that Dr. Reservitz's opinion as to the accident's cause could not stand and ordered the jury to disregard it. Dr. Shields also had expressed doubt about the hose hypothesis. He testified that he had told Conrad Larue to look for the severed penis in the fan area of the vacuum cleaner, as he believed the injury could not have been caused by the hose. As Shields predicted, Larue found the penis in the fan area.

National Union also sought to suggest that Michael had deliberately caused the injury through evidence of observations by Dr. Shambaugh, a psychiatrist who interviewed Michael in the course of his treatment in Boston. Dr. Shambaugh's notes said:

"This 12 year old boy apparently put his phallus into a vacuum cleaner in Jan. 71. He is now having his second plastic operation on the organ. He is a bright, interested boy who told me about a long series of accidents beginning at age four when his sister knocked him off a teeter toter (sic ). Since then the accidents have been (mainly) self-inflicted, such as falling out of trees and nearly cutting a finger off with a floor sander a year or so ago. Sometimes he has been involved in fights with other boys and suffered minor trauma.

"Clearly then he has been concerned with the theme of bodily harm (& castration) for at least since the age of four."

Because Dr. Shambaugh was seriously ill by the time of trial, he was unable to testify as to any recollection of his interview with Michael. Counsel for National Union offered the notes solely for the purpose of impeaching previous testimony that Michael had had a normal, healthy emotional outlook before his accident. Counsel for the Larues asserted a purported patient-client privilege under both Maine and Massachusetts law. The district court ruled the privilege inapplicable but excluded the document anyway, although it did not make clear whether the ground was prejudice or irrelevance.

The principal issue at trial was the adequacy of safety features in the Eureka vacuum cleaner in light of foreseeable risks of injury resulting from household use. The Larues contended National Union had failed to take sufficient precautions both by not installing a shield over the opening in the engine and fan casing to prevent insertion of stray parts of the human body and by not using an "interlock" switch that would prevent the motor from turning on while the hood was up. The strongest evidence in support of these contentions was the testimony of plaintiff's expert, Dr. Paul, a design engineer on the MIT faculty. Dr. Paul contended that the vacuum was essentially a "booby trap" because of its lack of precautions. He explained that the rotation of the fan at 15,000 rpm left it invisible. Someone fiddling around with the interior of the machine, and especially a child, would have no warning of the danger created by the sharp, quickly moving fan blades. Some amount of exposure to the risk was inherent in the design, as the filters that covered the fan casing periodically had to be removed. Dr. Paul testified that suction created by the fan was sufficient to pull in stray items through the overlarge openings. He asserted that the safety devices that could eliminate this risk a shield or an interlock switch were feasible and, at least with regard to the switch, inexpensive.

To demonstrate the reasonableness of installing a protective shield over the fan housing, plaintiff produced a Eureka 4001 vacuum cleaner, manufactured during the same period as the 842A model and marketed overseas. The 4001 was in all material respects identical to the 842A, except that it was wired to take the higher voltages used in Europe and contained a shield over the fan housing such as would have prevented Michael's accident. The shield was required by Swedish safety regulations; National Union contended the risk that the shield was intended to guard against was an electrical hazard caused by the stronger current in use in Europe. The Larues argued the shield was intended to protect against the physical hazard as well. National Union objected to the introduction of the 4001 model into evidence, contending that it was manufactured over a different period than the 842A model, that it was irrelevant to the case at bar and unduly prejudicial to its case. After no evidence transpired as to differences in the periods of manufacture, the district court admitted the vacuum cleaner.

Both parties concede that the substantive law of Maine, the lex loci delictus, applies to this case and that Mrs. Larue purchased the vacuum cleaner from someone other than National Union, the manufacturer. National Union seeks to exploit these two facts to obtain a ruling that plaintiff failed to bring himself within any exception to the privity requirement as it applies to products liability suits grounded in Maine law. The district court rejected this argument during the proceedings below.

In Flaherty v. Helfont, 123 Me. 134, 122 A. 180 (1923), the Supreme Judicial Court of Maine recognized both the general requirement of privity in products liability suits and the exception to the rule expressed in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916). The Flaherty court stated:

"In case of any such substance whose dangerous qualities are latent and not obvious, manufacturers, vendors, or distributors who intentionally or negligently fail to inform persons dealing with them of such qualities, or with greater reason misrepresent the same, are, notwithstanding want of privity, liable for injuries caused thereby to persons whose exposure to the danger could reasonably be contemplated."

Id., 122 A. at 181. In MacPherson, Judge Cardozo, writing for the Court of Appeals, explained at length what kinds of products were subject to this exception to the privity requirement:

"If the nature of a thing is such that it is reasonably...

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  • Torre v. Harris-Seybold Co.
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    ...Blohm v. Cardwell Mfg. Co., 380 F.2d 341, 342-344 (10th Cir. 1967) (devices in use by other manufacturers); Larue v. National Union Elec. Corp., 571 F.2d 51, 57 (1st Cir. 1978) (model manufactured by same defendant for overseas use). Evidence concerning subsequent technological advances or ......
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    ...Harvester's disregard for the importance of considering alternate designs in products liability cases. In Larue v. National Union Elec. Corp., 571 F.2d 51 (1st Cir. 1978), we approved the introduction into evidence of a vacuum cleaner which incorporated safety features left out of another m......
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  • Udder nonsense? The emerging issue of raw milk sales in Florida.
    • United States
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    • November 1, 2008
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