Fortier v. Olin Corp., 87-1168

• Decision Date: 09 December 1987
• Docket Number: No. 87-1168,87-1168
• Citation: 840 F.2d 98
• Parties: Prod.Liab.Rep.(CCH)P 11,684 Henry FORTIER and Raymond Croteau, Plaintiffs, Appellees, v. OLIN CORPORATION, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 98

840 F.2d 98

Prod.Liab.Rep.(CCH)P 11,684

Henry FORTIER and Raymond Croteau, Plaintiffs, Appellees, v. OLIN CORPORATION, Defendant, Appellant.

No. 87-1168.

United States Court of Appeals First Circuit.

Heard Dec. 9, 1987.

Decided Feb. 18, 1988.

Howard B. Myers with whom David J. Braiterman and Myers, Jordan & Duffy, Concord, N.H., were on brief, for defendant, appellant.

Frank E. Kenison with whom Brown and Nixon, P.C., Manchester, N.H., was on brief, for plaintiffs, appellees.

Before COFFIN, BOWNES and TORRUELLA, Circuit Judges.

BOWNES, Circuit Judge.

This diversity tort action arises out of a hunting accident near Berlin, New Hampshire, on November 2, 1977, involving three teenage cousins, Henry Fortier, Raymond Croteau, and Paul Croteau. Paul was walking behind Henry and Raymond carrying a Winchester Model 94.30 caliber rifle. ¹ Paul stumbled and fell. The rifle discharged; the bullet passed through Raymond's left foot and then pierced Henry's right foot where it lodged.

Henry and Raymond brought suit in state court against defendant-appellee Olin Corporation, the manufacturer of the rifle. Olin removed the case to the federal district court. ² The complaints allege misrepresentations as to the rifle's safety, strict liability based on defective design and failure to adequately warn of the possibility of accidental discharge. The defective design and failure to adequately warn claims can be read as sounding in both strict liability and negligence. The district court held that the defendant was strictly liable for defective design of the rifle's firing pin and for failure to warn of the rifle's dangerous propensities to discharge accidently. Croteau v. Olin Corporation, 644 F.Supp. 208, 211-12 (D.N.H.1986). The opinion does not make it entirely clear whether defendant was also being held liable for negligent design and whether the failure to warn finding rested in strict liability or negligence. The proof required for each is however, quite similar. Both appellant and appellees have briefed and argued the appeal as stemming from findings of strict liability based on defective design and negligent failure to warn.

Appellant makes two claims before us: that the court's opinion was insufficient as a matter of law and that the court erred as a matter of law and made clearly erroneous findings of fact in holding defendant liable in strict liability for defective design and in negligence for failure to warn. No appeal has been taken from the assessment of damages. We affirm the finding of strict liability based upon defective design and, therefore, do not reach the failure-to-warn issue.

I.

We do not find the district court's opinion insufficient as a matter of law. Although not set forth in the detail appellant would prefer, the court's factual findings are clear, unambiguous, and securely anchored in the record. We think part of appellant's dissatisfaction with the district court's opinion is that it reaches a result different than what defendant sought. The court devoted over three pages of its five-page opinion to liability. Appellants suggest that this is too short to do justice to a case of this complexity. After reading over 850 pages of transcript ³ and examining all the exhibits, we do not find this case especially complex or difficult. Part of this is due to the clarity with which the issues were presented. The case was well tried by both sides, although at times counsel spent unnecessary time hacking at the underbrush instead of focusing on the trees. Appellant is particularly exercised because the district court did not specifically rule on or at least directly advert to the lengthy and numerous proposed findings of fact and rulings of law submitted by the parties. Plaintiffs filed 78 requests, defendant filed 220. We have read them all. They cover every conceivable aspect of the case and attest to counsel's grasp of the evidentiary details as well as their ingenuity in being able to wring from the evidence all possible inferences and nuances. Appellant states that the requests were filed "to help guide the judge in evaluating the evidence." Some of them could also be viewed as decoys submitted in an attempt to lure the judge down the path of reversible error. In any event, as appellant acknowledges, a district judge is under no duty to rule on requests submitted by the parties. Under Federal Rule of Civil Procedure 52(a), the court's duty is to "find the facts specially and state separately its conclusions of law thereon." We think that the opinion of the district court complies with the strictures of the rule.

II.

We first outline the New Hampshire law on strict liability-defective design. New Hampshire has adopted the Restatement (Second) of Torts Sec. 402A theory of products liability:

Sec. 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The Rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

See Buttrick v. Lessard, 110 N.H. 36, 260 A.2d 111, 113 (1969); Thibault v. Sears, Roebuck & Company, 118 N.H. 802, 395 A.2d 843, 850 (1978).

" 'Strict liability does not make the manufacturer or seller an insurer nor does it impose absolute liability.' " Elliott v. LaChance, 109 N.H. 481, 256 A.2d 153, 156 (1969) (quoting Dippel v. Sciano, 35 Wis.2d 443, 155 N.W.2d 55, 63 (1967)). " '[S]trict liability is not a no-fault system of compensation.' " Thibault, 395 A.2d at 845-46.

A product is defectively designed when it is "manufactured in conformity with the intended design but the design itself poses unreasonable dangers to consumers." Thibault, 395 A.2d at 846 (citations omitted). This contrasts with a manufacturing defect, which occurs when the product does not conform to the manufacturer's design.

In Thibault, the New Hampshire Supreme Court discussed at length the factors to be examined in determining whether a design is defective. To prove his/her case, "the plaintiff must first prove the existence of a 'defective condition unreasonably dangerous to the user.' " 395 A.2d at 816 (quoting Buttrick v. Lessard, 260 A.2d at 113); Bellotte v. Zayre Corporation, 116 N.H. 52, 352 A.2d 723 (1976). The court directed that "[i]n determining unreasonable danger, courts should consider factors such as social utility and desirability." Thibault, 395 A.2d at 846 (citations omitted). Some products can be so important that, despite the hazards they pose, they might be rendered acceptable if the manufacturer warns of those hazards. Id. Thus the presence or absence of a warning may determine whether the product is defective. Id. The cost of additional safeguards, as well as their impact on the product's effectiveness, are also factors to be considered. Id. The defect and danger must be examined having in mind the manufacturer's general duty, which " 'is limited to foreseeing the probable results of the normal use of the product or a use that can reasonably be anticipated.' " Thibault, 395 A.2d at 847 (quoting McLaughlin v. Sears, Roebuck & Company, 111 N.H. 265, 281 A.2d 587, 588 (1971)).

In determining the existence of an unreasonably dangerous condition, the court in Thibault stated, "[t]he obviousness of the danger should be evaluated against the reasonableness of the steps which the manufacturer must take to reduce the danger." 395 A.2d at 847 (citations omitted). The fact finder must then reach the ultimate conclusion on this issue by evaluating and balancing the many conflicting factors. All the factors--reasonableness, foreseeability, utility of the product, the obviousness of potential harm, and other factors as appropriate--are questions of fact. 395 A.2d at 847-48.

Thibault also requires that plaintiff prove causation and foreseeability. 395 A.2d at 847. Causation is proved by showing that the unreasonably dangerous condition existed when the product was purchased. 395 A.2d at 847 (citing McLaughlin v. Sears, Roebuck & Company, 281 A.2d at 588). While the Thibault court did not further elaborate upon this element, ordinary tort principles of causation apply: the defect must have caused the injury. See Buttrick v. Lessard, 260 A.2d at 113 (plaintiff must prove malfunction of automobile lights caused the accident and arose from a defect present at time of purchase). See also Reid v. Spadone Machine Company, 119 N.H. 457, 404 A.2d 1094, 1097 (1979) (plaintiff must prove the dangerous condition caused the injury); Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652, 659-60 (1st Cir.1981) (applying N.H. law) (proximate cause and cause-in-fact).

We note also that section 402A and the cases refer to the plaintiff as the user or consumer of the product. Defendant did not below or before us argue that the plaintiffs were not users or consumers within the meaning of strict liability. Although New Hampshire has not spoken directly on the issue, it is well-settled that bystanders injured under circumstances similar to the facts of this case may recover from the manufacturer in a strict liability action. W.L. Prosser, Handbook of the Law of Torts, at 663 (4th ed. 1971); Piercefield v. Remington Arms Company, Inc., 375 Mich. 85, 133 N.W.2d 129 (1965) (bystander injured by exploding shotgun); Lamendola v. Mizell, 115 N.J.Super. 514, 280 A.2d 241, 244 (1971) (plaintiff struck by car manufactured by defendant) (collecting cases)....