Bosse v. Litton Unit Handling Systems, Division of Litton Systems, Inc.

• Decision Date: 08 April 1981
• Docket Number: No. 80-1166,80-1166
• Citation: 646 F.2d 689
• Parties: Roland BOSSE, Plaintiff, Appellee, v. LITTON UNIT HANDLING SYSTEMS, DIVISION OF LITTON SYSTEMS, INC., Defendant, Third Party Appellant, v. WERNER ASSOCIATES, INC., Third Party Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 689

646 F.2d 689

Roland BOSSE, Plaintiff, Appellee, v. LITTON UNIT HANDLING SYSTEMS, DIVISION OF LITTON SYSTEMS, INC., Defendant, Third Party Appellant, v. WERNER ASSOCIATES, INC., Third Party Defendant, Appellee.

No. 80-1166.

United States Court of Appeals, First Circuit.

Argued Dec. 4, 1980.

Decided April 8, 1981.

William E. Aivalikles, Nashua, N. H., with whom Holland & Aivalikles, Nashua, N. H., was on brief, for Roland Bosse and Helen Bosse.

William S. Orcutt, Manchester, N. H., with whom Wiggin & Nourie, Manchester, N. H., was on brief, for Litton Unit Handling Systems, Division of Litton Systems, Inc.

Theodore Wadleigh, Manchester, N. H., with whom Wadleigh, Starr, Peters, Dunn & Kohls, Manchester, N. H., was on brief, for Werner Associates, Inc.

Before COFFIN, Chief Judge, ALDRICH and BOWNES, Circuit Judges.

ALDRICH, Senior Circuit Judge.

Plaintiff Roland Bosse, ¹ while employed by Werner Associates, Inc. (Werner), a subcontractor engaged in the installation of a catwalk or walkway in the Anheuser-Busch bottling plant in Merrimack, New Hampshire, fell when a hanger bolt sheared and a section of the walk let go. The component parts, in this instance with the bolt in place, had been supplied by the general contractor, defendant Litton Unit Handling Systems (Litton). Plaintiff sued Litton because of the bolt, and Litton cross-claimed against Werner upon a contract of indemnity. The jury found in favor of plaintiff against Litton, and the court ultimately ruled in favor of Werner on Litton's cross-claim. Consolidated appeals by Litton, and a cross appeal by plaintiff, raise a number of questions.

Units of the catwalk were shipped by Litton partially assembled, held together by bolts. As installation proceeded, with the parts adjusted to fit, the hangers attached to the ceiling and the plates constituting the walk were to be welded together. Until then the walkway depended upon the bolts. While plaintiff was standing on one of the unwelded plates and hammering it to adjust its position, a bolt sheared and he fell to the floor.

Basically, plaintiff's negligence complaint ² was that Litton, who admittedly did not intend the plates to be walked on until welded, failed to alert Werner's workers to that fact by any form of written notification. In addition, it claimed the bolt was made of weak material, and had been further weakened by being overtorqued. Litton's witness testified that although actually the bolts were strong enough to support plaintiff, Litton had orally advised Werner in the past that unwelded plates were not to be stood upon; that the hangers could, and by good practice should, be adjusted before the plates are laid, and that it did not know that Werner was proceeding otherwise. ³ Litton's expert testified that the bolt had sheared not because of overtorquing, but because of excessive hammering. Perhaps the crowning piece in plaintiff's case was an acknowledgement by Litton's manager that it was "hazardous" to walk on an unwelded plate. We do not construe this opinion as an admission that Litton knew the hazard was to be experienced, but it was otherwise damaging. ⁴

The jury found for plaintiff. Whether it found contributory negligence on plaintiff's part and adjusted the award downward cannot be told, because the court did not put a special question in this regard. ⁵ The court did put a special question as to their relative percentages if there was negligence by both Litton and Werner. To this the jury answered Litton, 65%, Werner, 35%.

On Litton's appeal, the only substantial question in the main case relates to the charge. Of its fifteen pages, without intending any disparagement by our use of the phrase, the first six pages and the last six pages were standard boilerplate. In the central three pages all that was said with respect to Litton's liability, other than causation in fact, was, again, standard definitions of negligence, as failure to exercise the due care that should be exercised by a reasonbly prudent person, corporation, or manufacturer.

Later, in the midst of discussing contributory negligence and comparative negligence, the court interjected the following.

"A warning must adequately indicate the scope of the danger, and must designate, specifically, all of the dangers that may cause serious injury. And if you find that Mr. Bosse voluntarily encountered a known danger "

Thus the charge, in skeleton form, followed the two theories of plaintiff's negligence case: negligence in using a "crummy" bolt, and negligence in failing to warn. We say skeleton, because there was no flesh. ⁶ In fact, there were not even all the bones. Particularly, there was no instruction that for each of these claims a basic requirement was that Litton foresaw, or should have foreseen, the danger. Corso v. Merrill, 1979, 119 N.H. 647, 406 A.2d 300; Thibault v. Sears, Roebuck & Co., 1978, 118 N.H. 802, 808-09, 395 A.2d 843, 847. On this aspect Litton had filed a number of requests. Following the charge it noted its objections.

"Litton excepts to the court's failure to give Litton's requests numbers four, five, seven, eight, insofar as our requests spoke of foreseeability; "

Plaintiff objected to the court's treatment of defendant's duty to warn, and the court responded with a short supplemental charge:

" (I)f you find that Litton knew or should have known of a dangerous product or design, then they have the duty to warn the user, the ultimate user, of it."

This treatment of the foreseeability issue would seem ungenerous, at best, even with respect to defendant's duty to warn, considering the importance of the matter and the absence of any pertinent charge heretofore. ⁷ Moreover, it would be a highly sophisticated jury that would transfer these few words to the other aspect of plaintiff's case, to which most of the testimony related, the bolt's alleged deficiencies. The charge as a whole is fatally flawed by the absence of any direct instruction on foreseeability as a basic condition to plaintiff's claim for negligent manufacture.

Plaintiff contends that defendant failed to save its rights. It is true that we have frequently stressed that a mere recitation of numbered requests does not sufficiently serve F.R.Civ.P. 51's purpose of alerting the court. United States v. Lachmann, 1 Cir. 1972, 469 F.2d 1043, 1044, cert. denied, 411 U.S. 931, 93 S.Ct. 1897, 36 L.Ed.2d 390; Charles A. Wright, Inc. v. F. D. Rich Co., 1 Cir., 1966, 354 F.2d 710, 713, cert. denied, 384 U.S. 960, 86 S.Ct. 1586, 16 L.Ed.2d 673. Counsel did particularize, however, albeit minimally, that he wished the court to charge on foreseeability. This would not have spoken "distinctly" as a criticism of the form or adequacy of a foreseeability charge that had been given, but as alerting the court to the total failure to charge on the subject, the court's attention was necessarily drawn to the issue. Particularly was this so when the issue was so basic that the court should have charged on it even in the absence of a request. Even without requests the court has a "duty to correctly and adequately charge the jury on the controlling issues in the case," Liakos v. Moreno, 1966, 351 Mass. 90, 94, 217 N.E.2d 764, 767. It is enough that, after the charge, attention is called to the omission. Mahoney v. Gooch, 1923, 246 Mass. 567, 571, 141 N.E. 605, 606. There must be a new trial.

We turn to Litton's cross-action against Werner. Its subcontract provided that Werner shall

"indemnify, hold harmless and defend Buyer and UHS (Litton) from all claims, demands, payments, suits, actions and judgments brought, recovered or executed against it or them on account of death, injury or damage sustained by any party, by reason of any act or omission of Installer or his agents, servants, employees or subcontractors, arising out of the work to be performed hereunder."

In light of the jury's finding that Werner was negligent, ⁸ by the seeming plain meaning of this language plaintiff's injury was "sustained by reason of (an) act or omission of (Werner) arising out of the work performed hereunder." The last act, and a but-for cause, was Werner's negligently permitting plaintiff to stand on an unwelded plate, either in disregard of Litton's alleged oral instructions, or simply because it was "hazardous" to do so quite apart from any instruction (n.4, ante), and, particularly, to have permitted his hammering while so doing. The expert testimony was uncontradicted, indeed we would think it obvious, that hammering would cause additional strain on the bolt. Alternatively, the jury could have adopted Litton's claim that Werner should have insisted on the use of a safety harness, again, a final, causal act. We suspect that even a most naive jury might have looked askance at Werner's reply that the jerk on a safety line would have been as hazardous as a 20-foot fall to the floor.

The district court, however, held that Litton's own negligence barred it from recovery. Its reasoning was that indemnity agreements are to be strictly construed, and that intent to indemnify a party for the consequences of his own negligence must be unequivocally expressed. This strict construction rule has been losing favor, see, e. g., Martin v. The Maintenance Co., Inc., 2 Cir., 1978, 588 F.2d 355 (New York law), and during the pendency of this appeal it was rejected by the New Hampshire court. Commercial Union Assurance Co. v. Brown Co., 1980, N.H., 419 A.2d 1111. An indemnity agreement is now to be construed like any other contract, i. e., according to the intent of the parties as determined by "the written agreement, all its provisions, its subject matter, the situation of the parties at the time it was entered into and the object intended." 419 A.2d at 1113.

As already stated, we believe the plain language of the agreement points toward indemnification whenever Werner is found at fault, regardless of Litton's concurrent negligence. Martin v. The Maintenance Co., Inc....