Allen v. Chance Mfg. Co., Inc.

• Decision Date: 07 February 1989
• Docket Number: No. 88-1536,88-1536
• Parties: , Prod.Liab.Rep.(CCH)P 12,133 Paul H. ALLEN, Plaintiff, Appellee, v. CHANCE MANUFACTURING CO., INC., Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 465

873 F.2d 465

57 USLW 2676, Prod.Liab.Rep.(CCH)P 12,133

Paul H. ALLEN, Plaintiff, Appellee, v. CHANCE MANUFACTURING CO., INC., Defendant, Appellant.

No. 88-1536.

United States Court of Appeals First Circuit.

Heard Feb. 7, 1989.

Decided April 28, 1989.

Michael B. Bogdanow with whom James F. Meehan, Cynthia J. Cohen and Meehan, Boyle & Cohen, P.C., Boston, Mass., were on brief, for defendant, appellant.

Alan L. Cantor with whom Fredric A. Swartz, and Swartz & Swartz, Boston, Mass., were on brief, for plaintiff, appellee.

Before CAMPBELL, Chief Judge, and COFFIN, Senior Circuit Judge, and TORRUELLA, Circuit Judge.

LEVIN H. CAMPBELL, Chief Judge.

On a summer night in 1978, Paul Allen was dismantling the Skydiver, an amusement park ride that resembled a Ferris wheel. Allen, then 20 years old, was employed by Dean & Flynn Fiesta Shows, an amusement park that traveled from place to place. As part of the disassembly process, Allen had to secure the motor to the frame of the ride. The motor had to be attached to the frame by placing a metal pin through a hole in the motor bracket and a hole mounted on the frame. As he had many times before, Allen struck the pin with a metal hammer. Fragments of the pin apparently shattered and flew into both of Allen's eyes. He was not wearing safety glasses. Allen permanently lost the sight of his right eye, and his left eye was seriously injured.

Following the accident, Allen brought suit in district court against Chance Manufacturing Company ("Chance"), manufacturer of the Skydiver, claiming negligence and breach of implied warranty of merchantability. ¹ Allen alleged that the pins were negligently and defectively designed and manufactured by Chance and that Chance failed to provide adequate warnings--in particular, about the need to wear safety glasses when hammering the pins. Because the accident took place in Massachusetts, it is agreed that Massachusetts law governs.

At trial, Allen presented the expert opinion of a metallurgist that the pins were defectively designed and manufactured, in a way that made them likely to shatter. Allen's evidence also indicated that although the manufacturer's manual cautioned that workers should wear safety glasses while working on the Skydiver, there was no such warning affixed to the ride itself. In addition, witnesses testified that Chance representatives had been on hand on one or more occasions while amusement park workers who were not wearing safety glasses disassembled rides. The testimony was that the Chance people had not warned these workers to put on safety glasses.

Chance defended on two fronts. First, it put on its own expert metallurgical testimony, to the effect that the pins were not defectively designed or manufactured. Second, it suggested that its warnings were adequate, and that Paul Allen should have known to wear safety glasses. Chance pointed to Allen's own testimony that while hammering pins on previous occasions, he had frequently been struck in the hands and arms by metal chips. As a result, Chance argued, Allen should have been well aware of the danger. The amusement park had an ample supply of safety glasses, although it did not require their use. Chance argued that if Allen had worn the safety glasses, the injury would not have occurred.

At the close of trial, the jury found for Allen on both the negligence and the warranty claims. The jury indicated on a special verdict form that Chance had not been negligent in its warnings, but that its warnings (or lack thereof) had violated the implied warranty of merchantability. ² The jury also found that Chance was negligent, as well as in breach of its warranty, with respect to the design and manufacture of the pins. Chance's negligence and breaches, the jury found, proximately caused Allen's injury. The jury found that Allen's own negligence was 25 percent responsible for his injury. Finally, the jury fixed compensatory damages at $1 million. If Chance had been liable only on the negligence claim, Allen's recovery would have been reduced by 25 percent, under the Massachusetts comparative negligence statute, Mass.Gen.Laws ch. 231, Sec. 85 (1986). But because Chance was also liable for the breach of warranty, the award was not reduced. See Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 353-57, 446 N.E.2d 1033, 1039-41 (1983) (a plaintiff's contributory negligence is not generally relevant to a breach of warranty claim).

Following the verdict, Chance moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial. After a lengthy period--during which, as will be discussed in Part II below, the district court certified a question of state law to the Massachusetts Supreme Judicial Court and awaited and finally received the court's answer, 398 Mass. 32, 494 N.E.2d 1324--the district court denied these motions. Chance now appeals on two grounds from the denial of its motion for a new trial. First, Chance contends that the district court erred when it refused to instruct the jury--and to let Chance argue to the jury in its closing argument--that if Allen's employer's negligence, or some combination of the employer's and Allen's own negligence, was the sole proximate cause of Allen's injury, then Chance could not be held liable. Second, Chance argues that the district court erred when it refused to instruct the jury that if it found that Allen had unreasonably misused the pins, in the knowledge that it was dangerous to do so, then Chance could not be found liable under the warranty theory. ³

We agree with Chance's "sole proximate cause" argument, and remand for a new trial. In light of this conclusion we need not decide the applicability of the "knowing and unreasonable use" defense, which we nevertheless discuss in Part II.

I. THE "SOLE PROXIMATE CAUSE" ISSUE

Allen's employer, Dean & Flynn Fiesta Shows--the proprietor of the amusement park--was, understandably, not a party to this case. See Mass.Gen.Laws ch. 152, Secs. 23, 24 (1986) (employee eligible for Workers' Compensation may not sue employer). Under the Massachusetts comparative negligence law, Mass.Gen.Laws ch. 231, Sec. 85 (1986), a jury must apportion negligence between only the plaintiff and the defendant; the fault of non-parties like the employer is not to be taken into account. See Correia, 388 Mass. at 346-52, 446 N.E.2d at 1035-38. Warranty liability, similarly, is not ordinarily affected by non-parties' negligence.

It is also clear, however, that a defendant can be held liable for a tort only if its conduct or product was a proximate cause of the injury. Thus, a defendant is relieved from all liability if it can show that the injury was legally caused in its entirety by other persons or entities--that is, that the sole proximate cause of the injury was elsewhere, and not in the defendant. The Massachusetts Supreme Judicial Court recognized this possibility in Correia, when it noted that the negligence of a non-party can be taken into account when the "[non-party's] negligence, either standing alone or combined with the negligence of [the plaintiff's decedent], was the sole proximate cause of [decedent's] injuries." Correia, 388 Mass. at 352, 446 N.E.2d at 1039. See also In re Massachusetts Asbestos Cases, 639 F.Supp. 1, 1 (D.Mass.1985) (following Correia ). On the authority of Correia, Chance requested the following jury instruction:

If you find that the conduct of someone other than Chance Manufacturing Co. was the sole proximate cause of the plaintiff's accident, then you must return a verdict for Chance Manufacturing Co. This conduct may be the negligence of Dean & Flynn Fiesta Shows [Allen's employer], and/or negligence of the plaintiff. ⁴

The district court declined to give such an instruction, and Chance made a timely objection. In addition, the district court ordered Chance not to argue the employer's negligence in its closing argument to the jury. The court stated: "I won't permit you to argue that. If you do, I will interrupt you." The court based this order on its view that no evidence of the employer's negligence had been presented. After the court had informed defense counsel that he could not argue that the employer's negligence proximately caused the accident, the following discussion took place between the court and counsel:

THE COURT: Where is the evidence of negligence on the part of the employer?

MR. PIERCE [Chance's counsel]: Well, the ride superintendent, he believed that everybody should be wearing safety glasses.

THE COURT: So what? And if the workers didn't, where is the evidence that he didn't tell them every morning. There is no evidence that he didn't tell them every morning.

MR. PIERCE: The evidence elicited by Mr. Swartz [Allen's counsel] was that there was no policy at Dean & Flynn regarding the wearing of safety glasses.

THE COURT: I don't recall that evidence.

MR. SWARTZ: I don't either.

THE COURT: I don't recall such evidence. I recall the evidence coming out that there were--I mean, from his own witness, as a matter of fact, the guy said that he thought that they should wear glasses. But the bottom line was it's hard to get them to do it because they're awkward to put on. They're awkward to work with.

MR. PIERCE: Just so I am clear, your ruling is that I may not argue employer negligence to the jury?

THE COURT: Yes, because I don't think there was any evidence of employer negligence.

The court's--and plaintiff's counsel's--memory of the evidence was faulty. Raymond LaCourse was the ride superintendent for the employer, Dean & Flynn, responsible (by his own testimony) for supervising "all the rides and all the men." LaCourse testified that he had read the Skydiver manual and had seen the warning that safety glasses should be worn. He added that he knew, even without being told by the manufacturer, that safety glasses should be worn while hammering pins. But despite his knowledge that safety glasses should be...