Everett v. Bucky Warren, Inc.

• Citation: 376 Mass. 280,380 N.E.2d 653
• Parties: William EVERETT, Jr. v. BUCKY WARREN, INC., et al. (and a companion case).
• Decision Date: 05 September 1978
• Court: United States State Supreme Judicial Court of Massachusetts

Page 653

380 N.E.2d 653

376 Mass. 280

William EVERETT, Jr. v. BUCKY WARREN, INC., et al. (and a companion case).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 17, 1978.

Decided Sept. 5, 1978.

Thomas E. Connolly, Boston, for plaintiff.

David W. Kelley, Boston, for George Whittie, executor.

John B. Johnson, Boston, for Bucky Warren, Inc.

John F. Finnerty, Boston, for New Preparatory School, Inc.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS and ABRAMS, JJ.

QUIRICO, Justice.

In this case the plaintiff seeks damages from the suppliers of a protective helmet he was wearing when, while playing in a hockey game, he was struck in the head by a puck and was seriously injured. The question before us is whether, on the various counts brought under both negligence and strict liability theories,¹ the evidence was sufficient to support the verdicts for the plaintiff.

We summarize the evidence that is most favorable to the plaintiff. Alholm v. Wareham, 371 Mass. ---, --- - --- ^a 358 N.E.2d 788 (1976); Kelly v. Railway Express Agency,Inc., 315 Mass. 301, 302, 52 N.E.2d 411 (1943). ² The controversies in this case revolve around the design of the protective helmet worn by the plaintiff when he was injured. It is described as a three-piece helmet because its protective components are three sections of high-impact plastic lined on the inside with shock foam. One piece covers the back of the head, extending from the nape up about six inches, and running horizontally between positions slightly behind each ear; the second piece, approximately two inches wide, rings the front of the head from the same positions, thus covering the forehead; and the third piece joins the tops of these two sections and covers the top of the head. This top piece is loosely connected to the other two sections by six strips of leather, each 11/2 to 13/4 inches in width and 11/2

to 2 inches in length. The side pieces are linked by a 3/4 inch wide elastic strap, whose length is adjustable. The result of this three-piece design and loose method of linking the sections is that there are gaps within the helmet where no plastic piece covers. The gap between the top piece and the two side pieces ranges from 1/2 to 3/4 of an inch. The gaps between the two side pieces varies with the size of the wearer's head and the tension with which the elastic straps are adjusted, and ranges from zero to 3/4 of an inch. This three-piece design, characterized by the internal gaps, was somewhat unique, and there were available at the time of the plaintiff's injury and for some time prior thereto helmets that were designed as one-piece units and were therefore without such gaps.

When the injury occurred the plaintiff, who was approximately nineteen-years old, was a post-graduate student and a member of the hockey team at the defendant New Preparatory School (New Prep) in Cambridge, Massachusetts. On January 10, 1970, the New Prep team went to Providence, Rhode Island, to play the Brown University freshman team. During the game the plaintiff, a defense man, attempted to block the shot of a Brown player by throwing himself into a horizontal position on the ice, about ten to fifteen feet in front of the shooting player and perpendicular to the intended line of flight of the puck. The puck struck the plaintiff above and slightly back from his right ear, and penetrated into the gap of the helmet formed where the three helmet sections came together. As a result of this penetration the puck hit his head and caused a fracture of the skull. This serious injury subsequently required that a plate be inserted in the plaintiff's skull, and caused the plaintiff to have headaches that will continue indefinitely.

The helmet was being worn by the plaintiff on the night of his injury as a result of its being supplied to him through the following process. The helmet was manufactured by J. E. Pender (Pender), a proprietorship engaged in the manufacture of sporting goods and represented in this action by the defendant George Whittie, executor of the will of James E. Pender. ³ In 1967 through 1969 Pender sold at least fourteen helmets of the type worn by the plaintiff to the defendant Bucky Warren, Inc. (Bucky Warren), a retailer in sporting goods, which in turn sold them to New Prep. The helmets had been specially ordered by Owen Hughes, the coach of the New Prep team, who was the person authorized by the school to make such purchases. They were painted in the colors of the school to match the team uniforms. Each player on the plaintiff's team was supplied with one of these helmets for practice and game use, although Hughes's testimony indicated that, had a player so wished, he could have worn a different helmet of his own choosing. Rather than purchasing his own helmet, the plaintiff chose to wear the one supplied to him by the school authorities.

The plaintiff brought this action ⁴ claiming that, because of the gaps, the Pender helmet was defectively designed, and that therefore all three defendants, Pender, Bucky Warren, and New Prep, were liable to him in negligence for supplying him the helmet, and that the defendants Pender and Bucky Warren were also liable to him in tort on a strict liability theory. At trial, motions for directed verdicts were denied, and fourteen special questions were submitted to the jury. The jury found that all three defendants were negligent, that the helmet was not in a reasonably safe condition when sold by Pender and Bucky Warren, that the plaintiff's injury was caused by the condition of the helmet and the negligence of the defendants, and that the plaintiff himself neither assumed the risk of the injury nor was contributorily negligent. ⁵ The plaintiff was awarded $85,000 in damages. After proper motions the judge, notwithstanding the jury verdicts, entered judgments in favor of all defendants on the negligence counts, holding that, as matter of law, the plaintiff assumed the risk of his injury. He entered judgment for the plaintiff for $85,000 on the strict liability counts, however, on the ground that assumption of the risk was not a defense to this cause of action. Appeals and cross appeals were claimed, ⁶ and we granted an application for direct appellate review. G. L. c. 211A, § 10(A).

The issues raised here are whether there was sufficient evidence for the jury to find that: (a) the defendants Pender and New Prep were negligent,⁷ (b) the plaintiff was not negligent and did not assume the risk of his injury, and (c) the helmet was defective and unreasonably dangerous as sold by Pender and Bucky Warren. Additionally, we address certain evidentiary and procedural matters raised by the defendants.

Before proceeding to a discussion of the substantive questions raised, we address briefly a choice of law problem argued before us by the defendant Pender. Since the injury occurred in Rhode Island, the trial judge, relying on Brogie v. Vogel, 348 Mass. 619, 621, 205 N.E.2d 234 (1965), applied the law of that State to the case. It is argued here that the more recent cases of Saharceski v. Marcure, --- Mass. ---^b 366 N.E.2d 1245 (1977), and Pevoski v. Pevoski, 371 Mass. ---^c 358 N.E.2d 416 (1976), require that the law of this Commonwealth be applied, since the domicil of all the parties is Massachusetts and the helmet was manufactured and sold here. Pender, however, did not raise this question at the trial, and therefore we will not address it on appeal. See Mass.R.Civ. P. 51(b), 365 Mass. 816 (1974); cf. Commonwealth v. Johnson, --- Mass. ---, --- - ---^d 373 N.E.2d 1121 (1978). Pursuant to Mass.R.Civ.P. 44.1, 365 Mass. 809 (1974), the plaintiff gave notice before trial that he intended to seek the application of Rhode Island law. The case was then tried on a theory of strict liability consistent with Rhode Island decisions. No objections were made at the time by Pender. A motion for a directed verdict was made but, contrary to the assertion of counsel at oral argument, it does not challenge the applicability of Rhode Island law. We therefore apply the law of Rhode Island to the substantive issues of this case. See 5A Moore's Federal Practice par. 51.04, at 2507 (2d ed. 1977).

1. Negligence. A "manufacturer is under a duty to use reasonable care to design a product that is reasonably safe for its intended use." W. Prosser, Torts § 96, at 645 (4th ed. 1971). Kelly v. Ford Motor Co., 110 R.I. 83, 85, 290 A.2d 607 (1972). Ritter v. Narragansett Elec. Co., 109 R.I. 176, 186 n. 3, 283 A.2d 255 (1971). Back v. Wickes Corp., --- Mass. ---, --- ^e 378 N.E.2d 964 (1978). The Pender helmet was designed by James E. Pender, who possessed no engineering background. It was intended to protect the vital areas of the head, the temples and cranium. It was designed in three pieces, however, not for safety reasons, but to facilitate adjustment. Pender indicated in his deposition he was deceased at the time of trial that the helmet was consciously designed so that there would be gaps between its sections when it was properly adjusted; the larger the head of the wearer, the larger would be the gaps. The jury could reasonably have concluded from the examination of the helmet that Pender knew, or should have known, that a puck could penetrate between the sections and cause serious injury to the wearer. Pender was aware that other manufacturers were producing helmets of a one-piece design, but he nevertheless failed to make any tests of his own helmet to determine its safety. We hold that this evidence was sufficient to support the answer of the jury that Pender was negligent in the design of the helmet.

We reach a similar conclusion with regard to the defendant New Prep. As stated in its brief, the issue with regard to New Prep is whether "it was bad practice for a hockey coach to supply the (p)laintiff with the helmet in question and (whether) the supplying of said helmet to the (p)laintiff was causally related to his injuries." As to...