677 F.2d 1226 (8th Cir. 1982), 81-1040, Randall v. Warnaco, Inc. Hirsch-Weis Div.

Docket Nº:81-1040.
Citation:677 F.2d 1226
Party Name:Vera RANDALL, Appellant, v. WARNACO, INC., HIRSCH-WEIS DIVISION, Appellee.
Case Date:May 10, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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677 F.2d 1226 (8th Cir. 1982)

Vera RANDALL, Appellant,



No. 81-1040.

United States Court of Appeals, Eighth Circuit

May 10, 1982

Submitted Jan. 14, 1982.

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[Copyrighted Material Omitted]

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Fredric A. Swartz, Edward M. Swartz, Alan L. Cantor, Swartz & Swartz, Boston, Mass., Shelley J. Lashkowitz, Fargo, N. D., for appellant.

James M. Samples, Robert L. Collins, Faegre & Benson, Minneapolis, Minn., Armond G. Erickson, Tenneson, Serkland, Lundberg, Erickson & Marcil, Ltd., Fargo, N. D., for defendant-appellee Warnaco, Inc., Hirch-Weis Division.

Before BRIGHT and ROSS, Circuit Judges, and LARSON, Senior District Judge. [*]

BRIGHT, Circuit Judge.

Vera Randall brought this products liability action against Warnaco, Inc., Hirsch-Weis Division (Warnaco) to recover damages for injuries she sustained when a fire broke out in a tent manufactured by Warnaco. Warnaco in turn filed a third-party complaint seeking contribution and indemnity against Larry Sakellson, the owner of the tent and Randall's camping companion. The district court directed a verdict for Warnaco on Randall's negligence theory and submitted the case to the jury only on the issue of strict liability. On a special verdict form, the jury found in favor of Warnaco on Randall's strict liability theory. The district court entered judgment on the verdict, dismissing Randall's complaint and the third-party complaint against Sakellson. Following denial of her motion for a new trial, Randall brought this appeal from the adverse judgment.

On appeal, Randall argues that the district court improperly dismissed her negligence claim, incorrectly instructed the jury on strict liability, and made several erroneous evidentiary rulings. We determine that the court should have submitted Randall's negligence theory to the jury, because that theory of recovery contained elements separate from her strict liability theory. Accordingly, we remand this case for a new trial on the issue of negligence, but affirm the judgment of the district court in all other respects.

I. Background.

Vera Randall sustained serious burns on November 13, 1975, when she and Larry Sakellson camped in the Bitterroot National Forest in Montana. At the time, Sakellson and Randall were using a Caravan-model tent manufactured by Warnaco's Hirsch-Weis Division and purchased by Sakellson from a retail store in Fargo, North Dakota. Sakellson modified the tent to accommodate a wood-burning stove he had built from sheet metal. The stove consisted of a rectangular metal box mounted on metal legs with a door on one side. Sakellson equipped the stove with a pipe and vented it through a hole he had cut in the tent's roof. He clamped metal stovepipe rings to the fabric around the hole in the roof to protect the fabric from the hot stovepipe. In addition, Sakellson placed several layers of aluminum foil underneath the stove to prevent hot ash or coals from burning the tent floor.

Sakellson testified that during the camping trip he had started fires in the stove by using small twigs and paper in combination with charcoal lighter fluid. When he had exhausted the supply of charcoal lighter fluid, he switched to Coleman brand camping

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fuel to start fires in the stove. In doing so, Sakellson would pour a small amount of fuel into a cup and then pour it from the cup onto a log. He would then place the log into the stove and ignite the log with a lighted match. Although Randall had observed Sakellson follow this procedure on several occasions, she had not started a fire in the stove herself prior to November 13, 1975.

The evening of the accident, Sakellson went to sleep around 8:00 p.m. Randall crawled into her separate sleeping bag about an hour later. Shortly thereafter, because she was cold, Randall got out of her sleeping bag to check the fire. She checked the stove and observed that the fire started earlier by Sakellson had gone out. She then poured a small amount of Coleman fuel into a cup and from the cup dribbled the fuel onto one of the logs Sakellson had stored in the tent. According to Randall, the log appeared to soak up the fuel. She then placed the log into the stove and reached in to light it with a match. Flames leaped out of the side door of the stove toward her.

Randall testified that she then turned her back on the stove to reach for a cooking utensil or something with which to close the stove door. When she turned back she observed the wall and ceiling of the tent on fire. Sakellson awoke to Randall's screams and saw flames on top of the can of Coleman fuel and on the wall of the tent behind Randall. He got out of his sleeping bag, grabbed the can, unzipped the only exit to the tent, and threw the can out of the tent. Because the can landed near his truck, Sakellson ran out of the tent and tossed the can a second time before it exploded. When he turned around to get Randall out of the tent, the tent was all aflame.

To make her exit through the tent door, Randall ran through a sheet of flame. As a result of the fire, she received severe burns over fifty percent of her body, including her face, hands, and legs.

Randall brought this action in federal court 1 against the tent manufacturer, Warnaco, Inc., Hirsch-Weis Division, claiming damages for the injuries she suffered in the fire. She sought recovery under strict liability, negligence, and breach of warranty theories, alleging that her injuries resulted from Warnaco's failure to manufacture the tent with flame retardant material, its failure to include a second exit in the tent, and its failure to supply a warning of the tent's flammability. Randall abandoned her breach of warranty theory during trial.

The district court, over Randall's objection, dismissed the claim alleging Warnaco's negligence at the close of Randall's case. At the close of all the evidence, the court submitted the case to the jury on the only remaining theory of recovery-strict liability in tort. On a special verdict form, the jury determined that Randall had failed to prove the elements necessary to hold Warnaco strictly liable. Following entry of judgment and denial of her motion for a new trial, Randall appealed.

II. Dismissal of Negligence Claim.

  1. Whether the Strict Liability Theory Subsumed the Negligence Claim.

    Randall maintains that she was entitled to have her negligence theory submitted to the jury because she established a prima facie case of negligence. 2 We agree.

    In directing a verdict for Warnaco on negligence, the trial court did not determine that Randall had failed to establish a

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    submissible case on her negligence theory. Instead, the court dismissed her claim alleging Warnaco's negligence to avoid confusing the jury, 3 and because "plaintiff's rights would be better preserved * * * if she were required to pursue the more favorable strict liability theory * * *." Randall v. Warnaco, Inc., Hirsch-Weis Division, No. A77-3020, slip op. at 2 (D.N.D. Dec. 11, 1980). In rejecting Randall's motion for a new trial, the trial court further justified its ruling on the ground that Randall's strict liability theory totally subsumed her negligence claim. 4

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    Our analysis of the law of the case as embodied in the jury instructions, however, demonstrates that the strict liability theory did not necessarily subsume the negligence claim.

    The trial court instructed the jury that Randall had the burden of proving each of the following elements to establish strict liability:

    First: That the tent involved in this case was a Caravan model tent manufactured and placed in the stream of commerce by defendant Hirsch-Weis. In this case, there is no dispute on this issue.

    Second: That the tent was defective when it left the control of defendant, and it was expected that the product would reach and did reach the user, plaintiff, without substantial change in the condition in which it was placed in the stream of commerce by defendant.

    Third: That the defect rendered the product unreasonably dangerous to a user, for the use intended.

    Fourth: That plaintiff was using the product in a way it was intended to be used, or in such a way as could have been reasonably anticipated by the defendant.

    Fifth: That the defective condition was a proximate cause of plaintiff's injuries.

    (Instruction No. 22 (R:115).)

    In submitting the case to the jury, the court provided a special verdict form which contained the following question:

    Has the plaintiff proved by a preponderance of the evidence all the issues she has the burden of proving against defendant as those issues have been set out in these instructions?

    The jury answered this question in the negative, leaving the remaining questions on the special verdict form unanswered.

    Because this interrogatory was general in form, the basis for the jury's determination that Randall had failed to prove her strict liability theory remains unknown. The jury might have determined that Randall failed to establish the second element of her strict liability claim as set out in the court's instructions, because Sakellson substantially changed the tent's condition, after it entered the stream of commerce, by venting it to accommodate the woodburning stove and pipes. Thus, the jury may have rejected Randall's claim without considering whether the product was defective in fact.

    Sakellson's modification of the product, however, need not bar recovery under Randall's negligence theory. Although Sakellson's conduct in modifying the tent might be considered on the issue of proximate cause and in apportioning fault under the...

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