Brown v. Crown Equipment Corp., No. 05-158-P-DMC.

• Decision Date: 07 November 2006
• Docket Number: No. 05-158-P-DMC.
• Citation: 460 F.Supp.2d 188
• Parties: Claire BROWN, Plaintiff v. CROWN EQUIPMENT CORP., Defendant.
• Court: U.S. District Court — District of Maine

460 F.Supp.2d 188

Claire BROWN, Plaintiff v. CROWN EQUIPMENT CORP., Defendant.

No. 05-158-P-DMC.

United States District Court, D. Maine.

November 7, 2006.

COPYRIGHT MATERIAL OMITTED

Terrence Garmey, Nicole L. Lorenzatti, Smith, Elliott, Smith & Garmey, P.A., Portland, ME, for Plaintiff.

James M. Campbell, David M. Rogers, Kiley M. Belliveau, Campbell, Campbell, Edwards & Conroy, Boston, MA, for Defendant.

MEMORANDUM DECISION ON MOTION FOR JUDGMENT AS A MATTER OF LAW OR FOR A NEW TRIAL.¹

DAVID M. COHEN, United States Magistrate Judge.

Trial was held in this action from August 16 to August 28, 2006. Docket. The jury verdict was entered on the docket on August 28, 2006. Docket No. 156. Judgment in favor of the plaintiff was entered on September 8, 2006. Docket No. 170. On September 20, 2006 the defendant filed the instant motion for judgment as a matter of law and in the alternative for a new trial. Docket No. 172. I deny the motion.

I. Judgment as a Matter of Law

The motion is properly brought pursuant to Fed.R.Civ.P. 50(b). A motion for judgment under Rule 50(b) may be granted only when there is no legally sufficient evidentiary basis for a reasonable jury to find as it did. Richards v. Relentless, Inc., 341 F.3d 35, 41 (1 st Cir.2003) (discussing judgment under Rule 50(a), which has the same standard as Rule 50(b)). The court must view the evidence in the light most favorable to the party in whose favor the jury decided and draw all reasonable inferences in her favor. Acevedo-Garcia v. Monroig, 351 F.3d 547, 565 (1st Cir.2003). In this case, the jury decided in favor of the plaintiff only on her claim that the defendant negligently failed to warn foreseeable users of the lift truck it manufactured of dangers involved in its operation that became known to the defendant after it sold the truck. Verdict (Docket No. 156).

A. Post-Sale Duty to Warn

As it did before trial, see Defendant's Motion In Limine to Prohibit the Introduction of Evidence About Design Features of Lift Trucks, Product Up-Grades and Product Informational Bulletins Developed After the Initial Sale of the Subject Lift Truck (Docket No. 43) and Defendant's Memorandum of Law in Support of Final Pretrial Memorandum Regarding Post-Sale Duties (Docket No. 33), the defendant contends, here in conclusory fashion, that the Maine Law Court has not recognized and would not recognize a cause of action for a negligence-based post-sale duty to warn with respect to product liability claims. Crown Equipment Corporation's Renewed Motion for Judgment as a Matter of Law, etc. ("Motion") (Docket No. 172), at 3.

This argument was fully considered and rejected before trial. Memorandum on Motions In Limine (Docket No. 123) at 1-4. The defendant offers no reason why I should change my view.

B. Discharge of Duty

The defendant next contends that it discharged as a matter of law any postsale duty to warn about the risk of horizontal intrusion into the area of the lift truck occupied by the operator because "the evidence established that Crown in fact did warn Prime Tanning [Thomas Brown's employer] about the hazard of horizontal intrusion," because Prime Tanning's personnel were "obligated by federal law" to read the warning about horizontal intrusion in the operator's manual provided by the defendant. Motion at 4, 6-13. However, it was entirely possible for the jury to conclude that the warning included in the manual was inadequate. The jury was instructed in this regard as follows: "Warnings and instructions, if necessary, should be clear, understandable and effectively communicated to the actual product user to be considered adequate." Jury Instructions (Court Exh. 1) at 12. In this case, it is not possible to conclude that the warning in the operator's manual met this standard as a matter of law. The jury could reasonably have found that warning to be inadequate.

C. Lack of Causal Connection

The defendant goes on to assert that there was no causal connection between any alleged failure to warn and the death of Thomas Brown

because the person responsible for placing the lift truck in the chemical storage area (Dan Labbe) had actual knowledge about the risk of horizontal intrusion, and the person responsible for overall safety and training at Prime Tanning (Ron Allard) testified that if he had read the warning which was contained in the Crown operator's manual in Prime Tanning's possession, as he was obligated by OSHA regulations to do, Mr. Brown's accident would not have occurred.

Motion at 4. However, neither reason, as presented, is conclusive on this issue. The jury could well have discounted Allard's cited testimony and concluded that Thomas Brown would have used the lift truck as he did on the day of his death even if Allard had read the warning in the operator's manual. In addition, as previously noted, the jury could have concluded that the warning in the manual was inadequate, so that a reasonable person in Allard's position either would not have read it or would not have seen the need to take protective steps after reading it. The jury could also conclude that Allard's belief that he would have prevented the accident, stated with the benefit of hindsight, was not reasonable. As for the defendant's assertion that "the persons at Prime Tanning responsible for the lift truck's use in the facility and the training of operators required by federal law [Allard and Labbe] had actual knowledge of the risk of horizontal intrusion (the very risk about which the plaintiff claimed Crown failed to warn)" before the accident, id. at 12, Allard specifically testified that before the accident he "did not understand that with a certain design of a stand-up [lift truck] with a certain rack there was a potential risk" Trial Transcript, Vol. III at 446. Labbe testified that "the hazard of underride intrusion" had not "been expressed" to him before the accident. Id., Vol. I at 92-93.² The jury was entitled to credit this testimony.

The defendant's first assertion draws too broad a conclusion from the testimony cited by the defendant in its support. That testimony, Motion at 5-6, concerned the modification of the lift truck to allow it to perform a specific function in an area of "drive-in" racks, with very specific space limitations that were not present in the general storage area where the accident occurred. Labbe's "awareness of the potential risk of horizontal intrusion," id. at 5, was very specifically the risk of horizontal intrusion inherent in that very specific and limited area outfitted with "drive-in" racks, and nothing in the quoted testimony even suggests that this awareness necessarily applied as well to the area in which the accident occurred. In addition, Labbe's quoted testimony about the warning in the operator's manual, id. at 6, says nothing about the adequacy of that warning to inform him about the risk of the type of horizontal intrusion that killed Thomas Brown; in it, Labbe merely confirms that the questioner read the warning in the manual correctly. As the plaintiff points out, Plaintiffs Response to Defendant's Renewed Motion for Judgment, etc. ("Opposition") (Docket No. 187) at 22, Labbe also testified that the warning about horizontal intrusion hazard on page 3 of the manual did not concern "essentially the same exact thing as what [the operator of the modified lift truck in the drive-in application] conveyed to [him] and Mr. Allard and others ... [as] his concern that in the drive-in rack situation there was the potential hazard of horizontal intrusion from the angle iron...." Trial Transcript, Vol. I at 150.

D. Information about Product Upgrades or Enhancements

The defendant contends that there is no duty to provide "remote purchasers" of its lift trucks with information about the availability of product upgrades or enhancements developed after the sale of a product that was not defective, unreasonably dangerous or negligently designed at the time of its initial sale, and that since the jury found that the lift truck in this case was not defective or unreasonably dangerous at the time of its initial sale, the plaintiffs emphasis at trial on the availability of a fourth corner extension kit developed after the initial sale permitted the jury to find it liable on the basis of that forbidden theory. Motion at 13. This argument appears to be based on the assumption that "Crown discharged as a matter of law any post-sale duty to warn Prime Tanning or Thomas Brown of the risk of horizontal intrusion in this case," id., a contention that I have rejected. Accordingly, this argument must also fail.

To the extent that the defendant's argument may reasonably be construed to apply even if it did not establish as a matter of law that it had discharged its post-sale duty to warn, the comments to the section of the Restatement (Third) of Torts: Products Liability, on which my decision that such a duty would be recognized by the Maine Law Court and the jury instructions on this issue were both based, make clear that not all evidence relevant to the question whether such a duty has been discharged is objectionable merely because it could also be used to demonstrate a theory that the manufacturer had "an unbounded post-sale duty," Motion at 15, to advise remote purchasers of every post-sale product upgrade or enhancement. The Restatement makes clear that the post-sale duty to warn arises only if a reasonable person in the seller's position would provide such a warning and that a reasonable person would provide a warning if the seller knows or reasonably should know that the product poses a substantial risk of harm to persons, that those to whom a warning might be provided can be identified and can reasonably be assumed to be unaware of the risk of harm, that a warning can be effectively communicated to and acted on by those to whom it might be provided, and that the risk of harm is sufficiently great to justify the burden of providing a warning....