Carrel v. National Cord & Braid Corp.
| Decision Date | 15 August 2006 |
| Citation | 852 N.E.2d 100,447 Mass. 431 |
| Parties | Hyman CARREL v. NATIONAL CORD & BRAID CORPORATION. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Edward T. Dangel, III, Boston, for the plaintiff.
Ralph C. Sullivan, Boston (Richard W. Jensen with him) for the defendant.
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.
In the summer of 1996, Hyman Carrel (Carrel), then sixteen years old, attended Camp Squanto (camp). The camp was run under the auspices of the Old Colony Council (Old Colony), which is the northeast regional authority of the Boy Scouts of America, Inc. (Boy Scouts). As part of his camp experience, Carrel participated in its "zip-line" course.1 Under the direction of the course supervisor, Carrel stood on the ground below the "zip line" and pulled a bungee cord tied to the course's brake block fifteen feet above him. Unfortunately, the knot by which the bungee cord was attached to the block came undone and the bungee cord recoiled with significant force. The end of the cord that had been tied around the brake block struck Carrel in the eye, causing serious injury.
Carrel filed suit against, inter alia, the Boy Scouts, Project Adventure (the company that supplied the Boy Scouts with the bungee cord), and National Cord & Braid Corporation (National Cord) (the alleged manufacturer of the bungee cord), asserting various theories of negligence and breach of warranty.2 After settling his claims against the Boy Scouts and Project Adventure, Carrel proceeded to trial against National Cord solely on the theory that it had breached the implied warranty of merchantability and fitness with respect to the sale of its bungee cord.3 This theory was grounded on Carrel's contentions that the type of bungee cord sold to the Boy Scouts (through Project Adventure), especially when new, had certain latent properties that cause some types of knots tied with the cord, adequate for other purposes, to come undone easily, and that National Cord failed to include with its product an adequate warning about these properties and the resulting danger they posed to foreseeable users.
The jury returned a special verdict in favor of National Cord. Carrel appealed, arguing principally that the judge's instruction to the jury that National Cord's "duty to warn might be lessened or might not exist if the user's experience, expertise and knowledge far exceeds the manufacturer's," misstated the law and was unsupported by the evidence. Carrel also asserted that the judge improperly admitted evidence that National Cord was a small family business that had never previously received a complaint of the type at issue here, while erroneously excluding evidence that National Cord carried liability insurance for injuries arising from its sale of bungee cord, and testimony that the latent dangers of National Cord's product had been "known" in the industry since the 1970's. We transferred the case to this court on our own motion. As foreshadowed in Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 751 N.E.2d 848 (2001) (Hoffman), we explicitly adopt the "sophisticated user doctrine"4 as an affirmative defense in product liability actions. We also conclude that the instruction on that defense was properly given in the circumstances of this case, and that Carrel's other claims of error at trial are without merit.
1. The trial. The jury heard the following evidence at trial. National Cord, which started operating in 1992, is a manufacturer of commercial grade shock cord, commonly known as bungee cord. It is a small "family" business, consisting of six employees — its president, Armand Pratt; his wife; his two sons; and two part-time employees. Despite its small size, National Cord sells significant quantities of bungee cord (of various lengths and thicknesses) to approximately seventy-five regular customers across the United States. After National Cord produces a length of bungee cord, it wraps the cord around a spool and places the spool in a box for shipment. National Cord does not place any warning on or inside the boxes, on the spools, or on the cord itself.
National Cord's customers are almost exclusively suppliers or other manufacturers who purchase the bungee cord for resale to the general public or for inclusion as a component part in some other product. The bungee cord manufactured and sold by National Cord has a considerable number of uses, including use in recreational and sporting activities.5
National Cord began selling bungee cord to Project Adventure in 1993. Project Adventure is a nonprofit educational, training, and consulting organization that specializes in assisting and equipping other organizations wishing to participate in adventure education, such as zip-line courses. National Cord supplies Project Adventure with one-half inch thick braided bungee cord. As National Cord knew, Project Adventure resold the bungee cord, without alteration, to, inter alia, summer camps.
According to the testimony of Dr. Carl Abraham, Carrel's expert, the intrinsic properties of the type of bungee cord at issue here (one-half inch braided cord) leads to knots tied in it loosening and coming undone at a higher rate than would similar knots tied in other thinner types of bungee cord or other nonbraided ropes. Specifically, this type of bungee cord has a tendency to narrow when pulled. This narrowing alters the coefficient of friction, which previously kept together the portions of the cord tied around each other in the knot. At a certain reduced friction point, the altered state of the cord causes the two portions to unwind from each other. Dr. Abraham further explained that the stiffer the cord is, the easier it is for this phenomenon to occur, and that new bungee cords are stiffer than used cords. Dr. Abraham finally noted that knots tied at the ends of bungee cords pose a greater problem than ones tied in the middle because they offer an observer less time to realize the knot is loosening and react to it.
Dr. Abraham's testimony supported Carrel's claim that the intrinsic properties of this type of bungee cord were generally known to experts in the field at the time the cord was manufactured and sold to Project Adventure. National Cord's president, however, testified that National Cord was unaware of these properties and never performed any testing on its product. Moreover, National Cord had never, prior to this incident, received a complaint regarding knots tied in a bungee cord coming loose.
In 1996, Old Colony, on behalf of the camp, purchased braided one-half inch thick bungee cord from Project Adventure for its zip-line course.6 The zip-line course was one component of the Boy Scout's Project COPE (Challenging Outdoor Personal Experience) (COPE), a national program designed to develop team-building skills in youngsters, personal self-esteem, and respect for others through the completion of difficult outdoor activities. The Boy Scouts established national standards for COPE to ensure safety at their course sites. They also created training programs and manuals to educate COPE directors and other personnel regarding the safe and proper operation of COPE courses. Personnel who successfully completed the training programs were certified by COPE.
The supervisor of the camp's course, Jeffrey Burton, was a certified COPE director. Burton was responsible for the preparation, maintenance, and use of the camp's zip-line course, subject to COPE's national standards. He had recommended the purchase of new bungee cord to replace older cord he had observed while inspecting the zip-line course. He selected the bungee cord from a Project Adventure brochure given to him by the camp's director. There was no warning in the brochure regarding the use of bungee cord in zip-line courses or regarding the tendency of new bungee cord to stretch and, thus, of certain knots tied with the cord coming undone.
On the camp's zip-line course, riders ascended to a platform approximately thirty-five feet above the ground. There they were attached by harness to a zip-line cable. Riders then travelled fifty yards through the air to a second lower platform (fifteen feet above ground), where they were disconnected from the zip line and descended back to the ground. The course employed a braking mechanism, known as a brake block, to slow down riders as they approached the second platform so that they would not be injured by reaching that platform at an unsafe speed. A bungee cord was attached to the brake block to anchor it. Sometimes, however, the braking system caused riders to come to a complete stop before reaching the lower platform. Burton decided, on his own initiative, to use the bungee cord attached to the brake block as a pulley system. He stationed two of the program participants on the ground below the brake block. If the rider stopped before reaching his destination, these two persons pulled the bungee cord toward the rider. This moved the brake block in the same direction. The rider then grabbed the cord (when it was within his reach), and the persons below pulled the rider back toward the destination platform.7
According to Burton, when he received the shipment of bungee cord from Project Adventure, there were no instructions or warnings sent with it. He simply received a box containing an invoice, other products he had requested, and a spool of bungee cord. However, according to the deposition testimony of a Project Adventure employee, admitted at trial, Project Adventure sent an instruction sheet with each shipment of this type of bungee cord, warning of the danger of tying knots in new bungee cord.8 This instruction sheet focused specifically on attaching bungee cords to brake blocks in courses of the type at issue here. It warned:
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