Laramie v. Sears, Roebuck & Co.
| Citation | 142 N.H. 653,707 A.2d 443 |
| Decision Date | 18 March 1998 |
| Docket Number | No. 95–803.,95–803. |
| Parties | Peter LARAMIE and another v. SEARS, ROEBUCK & COMPANY. |
| Court | Supreme Court of New Hampshire |
Hamblett & Kerrigan, P.A., Nashua (John P. Griffith, on the brief and Robert D. Lietz, on the brief and orally), for plaintiff.
Hall, Morse, Anderson, Miller & Spinella, P.C., Concord (Douglas J. Miller, on the brief), and Donahue & Donahue, Lowell, Massachusetts (Joseph D. Regan orally), for defendant.
The defendant, Sears, Roebuck & Company (Sears), appeals the verdict reached in this products liability case following a jury trial in Superior Court (Brennan , J.). Sears asserts that the trial court erred in denying Sears' motions for directed verdict, in allowing one of the plaintiffs' witnesses to testify as an expert, in admitting into evidence an exemplar pictograph warning, in precluding Sears' counsel from conducting cross-examination about a prior lawsuit arising out of the same incident, in allowing a medical journal article to be introduced into evidence, and in denying Sears' motions for contribution and costs. We affirm.
This action was brought by Peter and Lynn Laramie, individually and on behalf of their minor daughter, Emma Laramie, for damages arising out of an incident in which Emma sustained serious scald burns while being bathed in a kitchen sink. The plaintiffs alleged counts of negligence, failure to warn, and strict liability against Sears as seller of the dishwasher that plaintiffs claimed caused their daughter's injuries.
From the evidence presented at trial, the jury could have found the following facts. On the evening of October 28, 1991, the Laramies had dinner at their apartment in Nashua. After the dishes had been cleared away and the dishwasher started, Mrs. Laramie proceeded to bathe nine-month-old Emma in the kitchen sink. Neither Mr. nor Mrs. Laramie could remember at trial whether either of them had cleared the garbage disposal after dinner that night. While Mrs. Laramie was bathing Emma, wastewater from the dishwasher backed up into the sink causing Emma to sustain a full-thickness burn to her perineal area that required skin grafting.
At trial, the plaintiffs argued that Sears was negligent in failing to warn them that scalding hot water from the dishwasher could back up into the sink and that Sears was strictly liable for their damages because the lack of such a warning made the dishwasher unreasonably dangerous. Sears counterclaimed, arguing that if found liable, it was entitled to full indemnification or contribution from Mr. and Mrs. Laramie because they were negligent in bathing Emma. The jury found for the plaintiffs on the negligence claim and awarded Emma $40,000 for her injuries. The jury awarded nothing, however, to Mr. and Mrs. Laramie for their individual claims, and found for Sears on the strict liability claim. The jury also found that Mr. and Mrs. Laramie were negligent and attributed eighty-five percent of the total negligence to them and fifteen percent to Sears. The jury ruled against Sears, however, on its counterclaim.
Sears first argues that the trial court erroneously denied its motions for directed verdict because the evidence presented at trial was insufficient to support a verdict in the plaintiffs' favor. Although Sears challenges the denial of directed verdicts on both the negligence and strict liability claims, we need only consider the one on which Sears did not prevail, i.e., the negligence claim. In order to establish Sears' negligence, the plaintiffs had the burden of proving "that the defendant owed the plaintiff[s] a duty, that the duty was breached, that the plaintiff[s] suffered an injury, and that the defendant's breach was the proximate cause of the injury." Ronayne v. State , 137 N.H. 281, 284, 632 A.2d 1210, 1212 (1993).
Sears argues that it was entitled to a directed verdict because the plaintiffs failed to introduce sufficient evidence of foreseeability or causation.
A trial court may grant a directed verdict only when the evidence and all reasonable inferences therefrom, construed most favorably to the party opposing the motion, would not enable a jury to find for that party. The trial court cannot weigh the evidence or judge the credibility of the witnesses, and, if the evidence is conflicting or several reasonable inferences may be drawn, the motion for a directed verdict should be denied.
Arthur v. Holy Rosary Credit Union , 139 N.H. 463, 465, 656 A.2d 830, 832 (1995) (quotations, citations, and brackets omitted). Our standard of review on this issue is whether the trial court abused its discretion. See id. We cannot conclude that the sole inference supported by the evidence, viewed most favorably to the plaintiffs, was so overwhelmingly in favor of Sears that it was an abuse of the trial court's discretion to let the case go to the jury. See Bronson v. The Hitchcock Clinic , 140 N.H. 798, 800, 677 A.2d 665, 667–68 (1996).
Sears asserts that it was undisputed that prior to Emma Laramie's injury, it had no actual notice of any accident of this nature occurring. There was conflicting evidence, however, as to whether Sears should have known of the risk. We have recognized that "[a]n obligation rests upon the one who delivers an article, which he knows, or ought to know , to be peculiarly dangerous, to give notice of its character or bear the natural consequences of his failure to do so." Lenz v. Company , 88 N.H. 212, 214, 186 A. 329, 330 (1936) (emphasis added) (quotation omitted).
Arnold Robert Kays, a witness called by Sears who had worked for the manufacturer of the dishwasher at issue on matters of design and safety, testified that he knew that dishwashers could empty into garbage disposals and could back up into sinks and that such backups did occur on occasion. Mr. Kays also testified that his company had recommended that the water in the dishwasher reach 140 degrees fahrenheit in order to properly wash dishes. Plaintiffs' expert witness, Leonard C. Mandell, testified that it had been generally known in the scientific community since the 1940s or 1950s, and that the information had been widely disseminated in the 1960s, 1970s, and 1980s, that exposure to 140 degree water could cause a full-thickness burn in five to seven seconds. Although Mr. Kays disclaimed any knowledge that mothers bathed infants in kitchen sinks, there was other evidence, including the testimony of Sears' witness Professor Ralph Lipsey Barnett, that such a practice was accepted and even recommended by some authorities.
On the issue of causation, Sears argues that the plaintiffs failed to show that the danger presented by the dishwasher was not obvious or commonly known. Notwithstanding the apparent incongruity of arguing that a risk that was not reasonably foreseeable by Sears was, however, commonly known and obvious to the plaintiffs, Sears contends that "[t]he failure to warn of risks already apparent to plaintiffs who were intelligent, educated users, could not be the proximate cause of plaintiffs' injuries."
Deposition testimony of Mrs. Laramie introduced at trial suggested that she had some awareness that dishwashers could back up due to a clogged disposal, but also indicated that her concern with such a backup was that debris from the disposal would enter the dishwasher. Mr. Laramie testified that he knew how the dishwasher worked in principle, and knew that the dishwasher and disposal were somehow connected, even though he had never looked to see how they were hooked up.
Plaintiffs' expert witness, Mr. Mandell, stated his opinion that the dishwasher's risk was not open and obvious, primarily because the average person does not know the temperature at which water can scald and that dishwasher wastewater reaches that temperature. Mr. Laramie testified that although he knew that the water in a dishwasher had to be hot in order to properly clean dishes, he did not know what temperature the water reached. Mr. and Mrs. Laramie's testimony also indicated that they had never observed a dishwasher backup before. Finally, Mrs. Laramie testified that had there been a warning on the dishwasher, she would not have bathed Emma in the sink while the dishwasher was running. Given such conflicting evidence on the issues of foreseeability and causation, we cannot say that the trial court abused its discretion in denying Sears' motions for directed verdict. See Arthur , 139 N.H. at 465, 656 A.2d at 832.
We note Sears' argument in its brief that although the jury found on the strict liability claim that the plaintiffs' use of the dishwasher was a misconduct or misuse that was unforeseeable by Sears, the jury "improperly ignored the lack of foreseeability evidence in unreasonably returning its negligence verdict for the infant alone." We need not decide, however, whether the verdicts are inconsistent because that would not assist us in determining whether Sears should have been granted a directed verdict. At most, an inconsistency between two verdicts indicates that one of them is wrong. See State v. Brown , 132 N.H. 321, 329, 565 A.2d 1035, 1039–40 (1989). It does not compel a finding that there was not enough evidence to send the case to the jury at all, especially considering that the alleged inconsistency tells us nothing about which verdict is wrong. Id. at 329–30, 565 A.2d at 1040; see also Daigle v. City of Portsmouth , 129 N.H. 561, 576, 534 A.2d 689, 696–97 (1987) (); cf . Amabello v. Colonial Motors , 117 N.H. 556, 561, 374 A.2d 1182, 1185 (1977) ().
It does not appear on the record before us that Sears moved to set aside the verdicts or for a new trial on the basis of inconsistent verdicts. Therefore, the issue of inconsistent verdicts is not properly before us, and we adhere to our ruling that the ...
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