712 F.2d 1275 (8th Cir. 1983), 83-1224, In re Randall

Docket Nº:83-1224, 83-1255.
Citation:712 F.2d 1275
Party Name:In re Vera RANDALL, Petitioner. Vera RANDALL, Appellant, v. WARNACO, INC., HIRSCH WEIS DIVISION, Appellee, v. Larry J. SAKELLSON, Appellee.
Case Date:August 01, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1275

712 F.2d 1275 (8th Cir. 1983)

In re Vera RANDALL, Petitioner.

Vera RANDALL, Appellant,

v.

WARNACO, INC., HIRSCH WEIS DIVISION, Appellee,

v.

Larry J. SAKELLSON, Appellee.

Nos. 83-1224, 83-1255.

United States Court of Appeals, Eighth Circuit

August 1, 1983

Submitted May 20, 1983.

Page 1276

Armond G. Erickson, Tenneson, Serkland, Lundberg, Erickson & Marcil, Ltd., Fargo, N.D., James M. Samples, Mary H. Terzino, Faegre & Benson, Minneapolis, Minn., for appellee Warnaco, Inc., Hirsch-Weis Div.

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

Before LAY, Chief Judge, and HEANEY and FAGG, Circuit Judges.

LAY, Chief Judge.

Vera Randall brought this diversity suit for personal injuries against Warnaco, Inc., Hirsch-Weis Division (Warnaco), a tent manufacturer, to recover damages for injuries she sustained when a fire broke out in a tent manufactured by Warnaco. Plaintiff claimed that the tent was defectively manufactured and tested by the defendant resulting in severe and disabling burns to her. The occurrence took place November 13, 1975. After a three week jury trial in July and August of 1980, the jury returned a verdict for Warnaco on plaintiff's strict liability count. After plaintiff had presented her case in chief, the district court directed a verdict for Warnaco on Randall's negligence count. On appeal to this court, the judgment was reversed on the ground that the district court erred in failing to submit Randall's claim of negligence to the jury. Randall v. Warnaco, 677 F.2d 1226, 1228 (8th Cir.1982). On remand to the district court, Warnaco moved for summary judgment. The district court thereafter made a finding under Fed.R.Civ.P. 49(a) 1 that the conduct of the defendants was not a proximate cause of plaintiff's injuries. On this basis the district court granted summary judgment in favor of the defendant. This appeal was then filed by the plaintiff. We once again reverse and remand for a plenary

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jury trial on the merits of plaintiff's negligence count. 2

On appeal, plaintiff asserts three grounds of error:

(1) The district court erroneously made a finding of no causation under Fed.R.Civ.P. 49(a).

(2) The district court erroneously found there was no genuine issue of material fact as to the cause of plaintiff's...

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