Downs v. Gulf & Western Mfg. Co., Inc.

• Decision Date: 27 May 1987
• Docket Number: Civ. A. No. 81-1386-G.
• Citation: 677 F. Supp. 661
• Court: U.S. District Court — District of Massachusetts
• Parties: Elizabeth DOWNS, Plaintiff, v. GULF & WESTERN MANUFACTURING CO., INC., Defendant.

677 F. Supp. 661

Elizabeth DOWNS, Plaintiff, v. GULF & WESTERN MANUFACTURING CO., INC., Defendant.

Civ. A. No. 81-1386-G.

United States District Court, D. Massachusetts.

May 27, 1987.

William J. Dailey, Jr., Sloane and Walsh, Neil Sugarman & David A. Angier, Sugarman & Sugarman, Boston, Mass., for plaintiff.

Anil Madan, Rosann Madan, Madan & Madan, Boston, Mass., for defendant.

MEMORANDUM AND ORDER GRANTING A NEW TRIAL

GARRITY, District Judge.

The plaintiff, Elizabeth Downs, worked for a time as a punch press operator. She brought suit against the defendant, Gulf & Western Mfg. Co., after one of her hands was inadvertently caught and severely damaged in a press's powerful stroking mechanism. She sustained the injury in 1980 while operating a press made in 1944 by E.W. Bliss Co., formerly a separate entity and now a division of the defendant. She claims that her injury resulted, first, from defendant's negligent design, manufacture, and sale of the press without proper safety devices and adequate warnings of dangerousness and, second, from defendant's breach of an implied warranty of merchantability. After a trial lasting several days, a jury of six men and women returned a special verdict with their answers, "yes" or "no", to a series of questions of fact.¹ The jury found that defendant's negligence contributed to plaintiff's injury to the extent of 15%; that defendant had not breached an implied warranty of merchantability; and that plaintiff had "misused" the press within the meaning of Allen v. Chance Mfg. Co., Inc., 1986, 398 Mass. 32, 34-35, 494 N.E.2d 1324 and Correia v. Firestone Tire & Rubber Co., 1983, 388 Mass. 342, 355-56, 446 N.E.2d 1033.

Before the court is a motion submitted by plaintiff, styled a "motion for entry of judgment", seeking an award of damages despite the adverse findings of the jury.² The argument underlying her motion has two parts. First, under the rule of Hayes v. Ariens Co., 1984, 391 Mass. 407, 410-11, 462 N.E.2d 273, see Laaperi v. Sears, Roebuck & Co., Inc., 1 Cir.1986, 787 F.2d 726, 728-29 n. 1, a finding that defendant was negligent, even to the degree of only 15%, compelled, as a matter of law, a finding that defendant had breached an implied warranty of merchantability, even though the jury had concluded otherwise.³ And second, defendant failed to adduce legally sufficient evidence of "product misuse", a complete defense to a breach of warranty claim.⁴ Hence a judgment for plaintiff on that theory of liability was warranted. The defendant has opposed this line of argument on the grounds that plaintiff waived her right to post-judgment relief by failing to contest the jury's findings before it had been discharged; that she has moved for relief in an untimely fashion; and that even if these procedural barriers are overcome, defendant produced sufficient evidence of misuse both to submit the question to the jury initially and, on the present posture of the case, to preserve the jury's findings intact.

In thoughtful post-trial memoranda and oral argument, the parties have drawn the court's attention to the controlling facts and legal principles in the case. After careful consideration of them, the court has concluded that a new trial of plaintiff's claims against the defendant is justified, principally for the reasons put forward by plaintiff. While the procedural objections raised by defendant are not insubstantial, and raise rather close questions of law and policy, the court concludes that they are defeated by the considerations set forth, in some detail, post.

I. The Jury's Finding of Product Misuse

The defendant urges, at the outset, that it is unnecessary to reach the apparent conflict between the jury's finding of both 15% negligence and no breach of warranty in light of its conclusion of fact, in the eighth interrogatory, that plaintiff had improperly misused the press.⁵ That finding, in defendant's view, bars recovery even if a breach of warranty is also found. There are several problems with defendant's position.

First, the jury's answer to the eighth interrogatory was surplusage, neither essential to the jury's conclusions (having previously found no breach of warranty by defendant) nor warranted by the Special Verdict's instructions.⁶ The only basis asserted by defendant for relying on the extraneous finding is that it must have reflected the jury's genuine view of the case. That may be correct, and there is little suggestion of egregious confusion in the jury's deliberations.⁷ Yet allowing the superfluous finding to govern the case would negate the substantial efforts taken to craft a proper Special Verdict and leave the jury free to roam through the facts of the case at will. A jury's findings are normally controlling on the factual issues presented to it, yet those findings should not govern other issues the jury chooses to address, and certainly not issues it is expressly directed to bypass. See United States v. Horton, 5 Cir.1980, 622 F.2d 144, 148 (per curiam) (upholding grant of new trial in part because "jury failed to follow the trial judge's instructions ..."); McCormick v. City of Wildwood, D.N.J.1977, 439 F.Supp. 769, 772-74 ("Granting a new trial is the appropriate remedy where the jury's verdict does not comport with the court's instructions"); see generally J. Moore & J. Lucas, 6A Moore's Federal Practice ¶ 59.084 at 59-111, 59-125 (1986).

Even if the jury's finding of "misuse" by the plaintiff is not rejected as mere surplusage, it still does not control the outcome because it is clearly contrary to "the great weight of the evidence" presented at trial. See, e.g., Coffran v. Hitchcock Clinic, Inc., 1 Cir.1982, 683 F.2d 5, 6; 5A Moore's Federal Practice ¶ 50.032 at 50-36, 50-37. While the court is mindful of the limits on its discretion and the parties' right to have "fairly open" questions resolved by the jury, the result in this case rises to the level of being "seriously erroneous" and a "clear miscarriage of justice." See Chedd-Angier Production v. Omni Publications, Int., 1 Cir.1985, 756 F.2d 930, 934; Coffran, supra, at 6; see generally 6A Moore's Federal Practice, supra, ¶ 59.085. Since the result could not have been reached by a "reasonable jury", McIsaac v. Didriksen Fishing Corp., 1 Cir.1987, 809 F.2d 129, 132, the court orders a new trial on that basis.

On the "misuse" issue, the Supreme Judicial Court has stated that the defendant "must prove that the plaintiff knew of the product's defect and its danger, and that he proceeded voluntarily and unreasonably to use the product and that, as a result, he was injured." Allen v. Chance Mfg. Co., Inc., supra, 398 Mass. at 34, 494 N.E.2d 1324. There is a "subjective" component of the test—"the plaintiff's actual knowledge and appreciation of the risk"—and an objective element—"the reasonableness of his conduct in the face of the known danger." Id. The jury's finding is against the weight of the evidence on each of the elements of the "misuse" test.

As to voluntariness, the only evidence adduced by defendant was that a fellow employee of plaintiff, not her boss, had pointed out a method of operating the press safer than the one she was following at the time. While the advice suggests that plaintiff was aware of potential injury, it does not lessen the possibility of duress or otherwise bear on the issue of volition. The evidence regarding these issues, unrefuted in the record, was that plaintiff's immediate superior, a shop foreman, had ordered her to work on the press in the dangerous manner that led to her injury. She testified, again without refutation or rebuttal, that she saw no realistic choice but to follow the foreman's orders. The option of quitting her job was no doubt available, but it was effectively foreclosed, or at least quite circumscribed. The plaintiff lacked a trade or college degree and had to help support a family. For a woman in her constrained position, commanded to follow a questionable practice but needing her job, the facts strongly rebut voluntariness in the ordinary sense of the word.

The conditions established by her employer also bear on the requirement of reasonableness. It is true, as defendant vigorously contended and demonstrated at trial, that it was an unsound practice to put a hand near the point of operation when a press could inadvertently be activated by a foot pedal; that applicable safety codes proscribed use of the press without tools, safety devices, and warnings, all of which were absent in this case; and that there were feasible alternate methods of preparing the press for operation that would have made it safer. Yet all these considerations point as much, if not more, to the negligence of plaintiff's employer for not guarding the machine, putting up warnings, or supplying proper tools; not to plaintiff's irresponsibility. To be sure, the employer's negligence cannot be attributed to defendant, but it should also not be held against plaintiff. See Solimene v. B. Grauel & Co., K.G., 1987, 399 Mass. 790, 795, 796, 507 N.E.2d 662. As a subordinate, low-paid worker in a metal working shop, she had no authority and virtually no practical control over her working environment. For all intents and purposes, she had to work with the press as it existed, with the tools as provided, and in the manner prescribed by her boss. In this light her actions, albeit hazardous, do not seem unreasonable in retrospect, or outside the compass of possible conduct for which liability is proper. See Venezia v. Miller Brewing Co., 1 Cir.1980, 626 F.2d 188, 190.

Finally, on the matter of subjective knowledge of defect, defendant produced an array of facts at trial and at argument on the instant motion which are not dispositive. Defendant insists that plaintiff was aware of the press's defectiveness and dangerousness because, in her testimony, she conceded that she had worked on or seen some presses in the past which had the point of operation guards or...