944 F.2d 7 (1st Cir. 1991), 90-1534, Kavanaugh v. Greenlee Tool Co.

Docket Nº:90-1534.
Citation:944 F.2d 7
Party Name:Michael James KAVANAUGH, Jr. and Mary Kavanaugh, etc., Plaintiffs, Appellants, v. GREENLEE TOOL COMPANY, Defendant, Appellee.
Case Date:August 29, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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944 F.2d 7 (1st Cir. 1991)

Michael James KAVANAUGH, Jr. and Mary Kavanaugh, etc.,

Plaintiffs, Appellants,


GREENLEE TOOL COMPANY, Defendant, Appellee.

No. 90-1534.

United States Court of Appeals, First Circuit

August 29, 1991

Heard March 4, 1991.

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Robert LeRoux Hernandez, with whom Lauren D. Kaufman, Malden, Mass., Dennis J. Calcagno and Calcagno, Jones & Tombari, Quincy, Mass., were on brief, for plaintiffs-appellants.

Anil Madan, with whom Georgia B. Vrionis and Madan and Madan, P.C., Boston, Mass., were on brief, for defendant, appellee.

Before CAMPBELL, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

After plaintiff-appellant Michael J. Kavanaugh, Jr. was injured while using a Greenlee "Super Tugger" cable puller, he, his wife Mary, and their minor children brought this diversity action against defendant-appellee Greenlee Tool Co. ("Greenlee"), the manufacturer, and Fishbach and Moore, Inc., the supplier. 1 The complaint alleged that Michael's injuries were caused by Greenlee's negligent design and manufacture of the Super Tugger and by its breach of related warranties.

The district court submitted special jury verdicts pursuant to Federal Rule of Civil Procedure 49(a). 2 On the basis of the jury's responses to the special verdicts, the district court entered judgment for defendants, and later denied plaintiffs' motion for judgment n.o.v. or new trial. On appeal, plaintiffs contend that the judgments must be set aside on the ground that the special verdicts are defective. We affirm.



  1. Verdict Inconsistencies

    The principal claim advanced on appeal is that the special jury verdicts cannot be harmonized; hence, a new trial is necessary. Alternatively, plaintiffs maintain that judgment must be entered against Greenlee as that is the only way the special

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    verdicts can be harmonized. 3 The parties agree that these special verdicts are governed by Federal Rule of Civil Procedure 49(a), which permits the district court to submit issues of fact to the jury in the form of written questions. Fed.R.Civ.P. 49(a). 4 See generally 5A J. Moore & J. Lucas, Moore's Federal Practice p 49.03 (2d ed. 1991). The clerk in turn is required to enter judgment in the form approved by the court based on the special verdicts; see Fed.R.Civ.P. 58(2). See also Anderson v. Cryovac, 862 F.2d 910, 915-16 (1st Cir.1988) (discussing rule 49(a)).

    "We note, initially, our 'substantial reluctance to consider inconsistency in civil jury verdicts a basis for new trials,' " McIsaac v. Didriksen Fishing Corp., 809 F.2d 129, 133 (1st Cir.1987) (quoting Merchant v. Ruhle, 740 F.2d 86, 91 (1st Cir.1984)). An appellate court confronted with a claim of inconsistent special verdicts " 'must affirm if there is a view of the case that makes the jury's answers to the interrogatories consistent.' " Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 590 (1st Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 138, 62 L.Ed.2d 90 (1979) (quoting Atlantic Tubing & Rubber Co. v. International Engraving Co., 528 F.2d 1272, 1276 (1st Cir.), cert. denied, 429 U.S. 817, 97 S.Ct. 60, 50 L.Ed.2d 77 (1976)); see also Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798 (1962); Santiago-Negron v. Castro-Davila, 865 F.2d 431, 443 (1st Cir.1989). In the present circumstances we conclude that it was unnecessary for the district court to attempt a conventional reconciliation of the inconsistent verdicts.

    All of the alleged inconsistencies in the special verdicts stem from the jury's failure to comply with the written instructions on the special verdict form and with the companion explanations given in the charge to the jury. 5 As to the inconsistency arising

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    between questions 1 and 3, relating to Greenlee's liability on the negligence claim, the jury was instructed that unless it answered "yes" to both parts of questions 1 and/or 2, which it did not, it should not respond to question 3. See infra Appendix at p. a. Similarly, the inconsistencies spawned by the answers to questions 6, 7 and 8 resulted from the jury's failure to comply with the instructions appearing after question 5. See id. at p. b; note 5 supra. The instructions after question 5 directed the jury not to respond to questions 6, 7 and 8 unless it found a breach of warranty (question 4) and no misuse of the cable puller by Michael Kavanaugh (question 5), or unless it found negligence on the part of either defendant (questions 1 and 2). Since the jury found misuse on the part of Michael Kavanaugh and no negligence on the part of either defendant, it contravened the court's instructions by providing responses to questions 3, 6, 7 and 8.

    In White v. Grinfas, 809 F.2d 1157 (5th Cir.1987), the jury disregarded written instructions not to proceed further if it responded in a particular fashion to a preliminary special verdict question. The district court resolved the resulting inconsistencies by disregarding the responses given to questions which the jury had been instructed not to answer. The Fifth Circuit affirmed.

    To effectuate best the intent of the jury, we hold that if the district court has correctly found that the jury's answer to a question that was supposed to terminate further inquiry is clear and disposes of the legal issues, on review we must ignore the jury's necessarily conflicting answers to any other questions. The subsequent questions are by definition irrelevant in these circumstances, and cannot be used to impeach the jury's clear verdict.

    Id. at 1161; see also Richard v. Firestone Tire & Rubber Co., 853 F.2d 1258, 1260 (5th Cir.1988) ("Thus, in White we recognized the broad discretion the district court enjoys to refuse to consider interrogatories answered in violation of the court's instructions."), cert. denied, 488 U.S. 1042, 109 S.Ct. 868, 102 L.Ed.2d 992 (1989).

    The district court possesses "considerable discretion" when it comes to the disposition of inconsistent special verdicts, a " 'discretion [that] encompasses the power to refuse to accept the jury's answers to special interrogatories.' " Santiago-Negron, 865 F.2d at 444 (quoting Atlantic Tubing & Rubber Co., 528 F.2d at 1276). Where, as here, the complaining party, whether tacitly or explicitly, accedes to the written instructions on the special verdict form and to the companion directions included in the charge to the jury, and interposes no objection to the jury's inconsistent responses until after the jury has been discharged, the district court may exercise its discretion to reject special verdicts which the court, with the agreement of all parties, correctly instructed the jury not to answer. 6 Accordingly, we uphold Judge

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    Zobel's decision to disregard the responses to questions 3, 6, 7 and 8.

  2. Misuse Defense

    The remaining assignments of error turn on whether the special jury verdicts were spoiled by certain omissions in question 5, relating to Greenlee's "misuse defense." Under Massachusetts law, a breach of warranty claim fails if the defendant can demonstrate that "the plaintiff knew of the product's defect and its danger, [yet] ... proceeded voluntarily and unreasonably to use the product and ..., as a result, he was injured." Allen v. Chance Mfg. Co., Inc., 398 Mass. 32, 494 N.E.2d 1324, 1326 (1986). Thus, question 5, which merely asked whether "Michael James Kavanaugh, Jr. act[ed] unreasonably in his use of the Greenlee cable puller," omitted certain key elements in Greenlee's misuse defense, viz., whether Michael Kavanaugh "knew of the product's defect and its danger," and whether his injuries resulted from his misuse of the cable puller. See id. Moreover, the omissions were not cured by the jury charge.

    We conclude nonetheless that plaintiffs have not preserved the issue for appeal. 7 Prior to the charge to the jury, the district judge and counsel went over the jury charge and the special verdict questions and instructions in great detail. When asked whether there were any objections or suggestions, plaintiffs' counsel responded "We're satisfied." After delivering the charge to the jury, the district judge once again invited the views of counsel. Plaintiffs' counsel acquiesced. Finally, after the special verdicts were returned and before the jury was discharged, plaintiffs' counsel failed to interpose objection. As we observed on an earlier occasion, in concluding that an appellant had waived a similar claim of error:

    It is well settled that a litigant who accedes to the form of a special interrogatory will not be heard to complain after the fact. If a slip has been made, the parties detrimentally affected must act expeditiously to cure it, not lie in wait and ask for another trial when matters turn out not to their liking.

    Anderson, 862 F.2d at 918 (citations omitted).

    Plaintiffs assert additionally that they were denied their right to trial by jury on the issues of fact omitted from the special verdict form relating to the misuse defense. Rule 49(a) anticipates just such a belated seventh amendment claim, however, by providing that--

    each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury. As to an issue omitted without such demand the court may...

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