Cyr v. B. Offen & Co., Inc.
| Citation | 501 F.2d 1145 |
| Decision Date | 06 May 1974 |
| Docket Number | Nos. 74-1007--,s. 74-1007-- |
| Parties | Alphonse CYR, Jr. and Arlene Cyr, Plaintiffs-Appellees, v. B. OFFEN & CO., INC., Defendant-Appellant and Third-Party Plaintiff-Appellant, v. BLANCHARD PRESS, INC., Third-Party Defendant-Appellee. Cyrenus COUTURE, Adm. Estate of Richard Couture, Plaintiff-Appellee, v. B. OFFEN & CO., INC., Defendant-Appellant and Third-Party Plaintiff-Appellant, v. BLANCHARD PRESS, INC., Third-Party Defendant-Appellee. Alphonse CYR, Jr. and Arlene Cyr, Plaintiffs-Appellees, v. R. HOE & CO., INC., Defendant-Appellant and Third-Party Plaintiff-Appellee, v. RUMFORD PRINTING COMPANY, Third-Party Defendant-Appellee. 74-1009. . Heard |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
John Gilbert Upton, Concord, N.H., with whom Upton, Sanders & Smith, Concord, N.H., was on briefs, for Cyrenus Couture.
William S. Orcutt, Manchester, N.H., with whom Wiggin, Nourie, Sundeen, Pingree & Bigg, Manchester, N.H., was on brief, for R. Hoe & Co., Inc.
E. Donald Dufresne, Manchester, N. with whom McLane, Graf, Greene & Branch, Manchester, N.H., was on brief, for Rumford Printing Company.
Stanley M. Brown, Manchester, N.H. with whom McClane, Graf, Greene & Brown, Manchester, N.H., was on brief, for Alphonse Cyr, Jr. and Arlene R. Cyr.
James C. Wheat, Manchester, N.H., with whom Wadleigh, Starr, Peters, Dunn & Kohls, Manchester, N.H., was on brief, for Blanchard Press.
Joseph F. Devan, Manchester, N.H., with whom Sheehan, Phinney, Bass & Green, Manchester, N.H., was on briefs, for B. Offen & Co. Inc.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
A complex series of legal rulings are appealed in this diversity suit arising out of an industrial accident which resulted in serious injury to Alphonse Cyr and in the death of Richard Couture, employed as 'fly boys' at Rumford Press.
On October 20, 1969, the 4:00 p.m. to midnight shift at Rumford had the presses shut down for adjustment of the printing plates. Between 5:30 and 5:45 the head pressman, Sullivan, told Couture that the rollers would have to be cleaned of hardened accumulated ink. This was one of the tasks customarily undertaken by 'fly boys' who also would 'fly' the magazines off the press. They were the most junior members of the crew, working their way into the trade. At Rumford, roller cleaning was habitually accomplished by entering the ovens into which the rollers directed the printed paper for drying when the press was operating. Once within the drying ovens, the fly boys scraped and cleaned the rollers with rags and cleaning solvent.
On the day in question, there was some misunderstanding. When Sullivan suggested that the rollers needed cleaning, he did not have in mind any immediate need for action. He thought he was indicating that something be undertaken later, during the course of the shift. However, Couture understood that the job was to be done immediately. Couture and Cyr took their equipment and entered the two drying ovens situated one above the other at one end of the ninety foot long double deck printing press. Cyr entered the lower level oven, put the flammable solvent on the floor close to the gas burners, and set to work. Couture entered the upper level oven.
During this time the press was not turned off. It was either on jog speed, which permitted manual operation, or running slowly. This was consistent with cleaning practices as the rollers were only partially exposed within the ovens and had to be rotated to permit thorough removal of ink. But another practice frequently engaged in was not observed on this occasion. Often, a workman stood outside the ovens while the cleaning operation was conducted. This was done on a voluntary basis, but it gave assurance that anyone at the control panel of the press would be notified of the fly boys' presence inside the ovens.
Such notice to the person in charge of the press controls was needed because the operation of the press was inextricably tied to the working of the ovens. Once the press attained a certain speed, the dryers went on automatically. The only way to avoid this eventuality was to place the press controls on stop or safe or to push safe-run buttons located at various places around the press. Any of these procedures would shut down the presses. The evidence indicated that the fly boys never touched the press control panel. Nor were they given instruction in or in the habit of pushing the saferun button to accomplish this job. 1 In fact, the movement of the rollers necessary for satisfactory cleaning would be impossible if the safe-run button was on. In any case, the safe-run button was not depressed on this occasion.
Shortly after the fly boys' entry into the dryers, Sullivan needed to test the adjustments on the press, and started up the press. Within a very few minutes the press speed increased; the gas-fired burners within the dryers automatically ignited. Cyr heard the noise indicating the flow of gas and attempted to get out of the dryer, but the flammable solvent exploded, igniting his clothing. A similar explosion occurred at the same moment on the upper decks. Cyr was seriously injured and hospitalized, but survived. Couture's injuries resulted in his death several weeks after his hospitalization. 2
The Couture Estate and the Cyrs instituted suit against B. Offen & Co., Inc. as manufacturer and seller of the drying system of Press No. 79 and R. Hoe & Co., Inc. as the assembler of the entire press and seller of the ovens, alleging negligence and strict liability on the theory that the dryers were defective due to the failure to contain a disconnect device on the drying oven doors, a 'fail-safe' device which could have prevented ignition of the burners while the doors were open.
The jury returned verdicts for each plaintiff on both counts, against both R. Hoe Co., Inc. 3 and B. Offen Co., Inc. 4 Damages on the negligence counts were reduced in direct proportion to the comparative negligence of the injured men. The jury rendered the following verdicts: in Alphonse Cyr v. R. Hoe & Co., Inc., $45,000 in negligence and $60,000 in strict liability; in Arlene Cyr v. R. Hoe & Co., Inc., $7,000; in Alphonse Cyr v. B. Offen & Co., Inc., $45,000 in negligence, $60,000 in strict liability; in Arlene Cyr v. B. Offen & Co., Inc., $7,000; in Cyrenus Couture, Administrator of the Estate of Richard Couture v. R. Hoe & Co., Inc., $45,000 in negligence and $50,000 in strict liability, which was limited pursuant to NHRSA, Ch. 556 13 to $20,000; in Estate of Richard Couture v. B. Offen & Co., Inc., $45,000 in negligence and $50,000 in strict liability, similarly limited to $20,000. The damages awarded in strict liability represented the total damages the jury believed the plaintiffs suffered; the negligence awards were reduced in proportion to the contributory negligence of the plaintiffs, and were not additional to those in strict liability but alternative awards. In practical effect this would mean recovery of the larger award.
We address first the appellants' challenge to the district court's failure to direct the jury that contributory negligence and assumption of the risk could be considered as a basis for reducing the damages in strict liability. Similar directions were requested on both the negligence and strict liability counts. The district court directed the jury as requested on the negligence count 5 but removed the issue of contributory negligence or assumption of the risk from the jury on the strict liability count.
The majority of states have adopted a rule in strict liability cases, consistent with comment n to the Restatement of Torts 2d 402A. This rule limits defenses to situations where a plaintiff voluntarily and unreasonably proceeds to encounter a known danger. 6 There are strong policy reasons supporting this position. 7 Had this been the law applicable to this case, it might have been supportable to rule as a matter of law that Cyr and Couture did not voluntarily and unreasonably proceed to encounter a known danger. 8 But New Hampshire law controls, and that state has explicitly refused to adopt the Restatement rule. Nor is the New Hampshire, court-made law so dated or unclear that certification for a ruling on the question presents a viable alternative for us. 9 We are Erie bound to follow the clear expression of law in Stephan v. Sears, Roebuck and Co., 110 N.H. 248, 266 A.2d 855, 857 (1970):
'We affirm the doctrine that failure to discover or foresee danger which the ordinary person would have discovered or foreseen as well as negligent conduct after discovery of the danger and in the use of the product will constitute a defense to an action based on strict liability.'
See, also, Buttrick v. Lessard, 110 N.H. 36, 260 A.2d 111 (1969). Although there was considerably more evidence of actual knowledge in our recent case, decided after the trial of the instant case, Stevens v. Kanematsu-Gosho Co., Inc., 494 F.2d 367 (1st Cir. 1974), we reached the same conclusion on New Hampshire law. We therefore rule that the district court should have submitted to the jury the defenses of contributory negligence and assumption of the risk on the strict liability count.
This ruling affects Alphonse Cyr's recovery only, since contributory negligence could not be considered in determining Arlene Cyr's damages and the recovery of the Couture Estate was limited by New Hampshire's wrongful death statute. The New Hampshire legislature has indicated in its comparative negligence statute, that where a plaintiff's negligence is a relevant inquiry, and is found to exist, recovery should not be barred, but reduced in the ratio that the negligence of the plaintiff contributed to the injury. NHRSA Ch. 507:7-a. Applying this policy, Cyr's recovery in strict liability should be reduced in accordance with the reduction in negligence to $45,000.
We turn now to a problem on which New Hampshire's...
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