Liriano v. Hobart Corp., Docket Nos. 96-9641

• Decision Date: 09 March 1999
• Docket Number: Docket Nos. 96-9641
• Citation: 170 F.3d 264
• Parties: Prod.Liab.Rep. (CCH) P 15,466 Luis LIRIANO, Plaintiff-Appellee, v. HOBART CORPORATION, Defendant-Appellant, 616 Melrose Meat Corporation,s/h/a Super Associated, Third-Party Defendant-Appellant. (L), 97-7449(CON).
• Court: U.S. Court of Appeals — Second Circuit

Page 264

170 F.3d 264

Prod.Liab.Rep. (CCH) P 15,466

Luis LIRIANO, Plaintiff-Appellee, v. HOBART CORPORATION, Defendant-Appellant,

616 Melrose Meat Corporation,s/h/a Super Associated,

Third-Party Defendant-Appellant.

Docket Nos. 96-9641(L), 97-7449(CON).

United States Court of Appeals, Second Circuit.

Argued Oct. 20, 1997.

Decided March 9, 1999.

Brian J. Isaac, Trolman Glaser & Lichtman, P.C., New York, NY, for Plaintiff-Appellee.

James A. Henderson, Jr., Cornell Law School, Ithaca, NY, for Defendant-Appellant (Steven B. Prystowsky, Saul Wilensky, Lester Schwab Katz & Dwyer, New York, NY William M. Kimball, New York, N.Y. (James P. O'Connor, of counsel ) for Third-Party-Defendant-Appellant.

of counsel to Thompson Hine & Flory L.L.P., Cleveland, OH, Attorneys for Hobart Corporation).

Before: NEWMAN, CALABRESI, and CUDAHY, ^* Circuit Judges

Judge JON O. NEWMAN concurs in a separate opinion.

CALABRESI, Circuit Judge:

In Liriano v. Hobart Corp., 132 F.3d 124 (2d Cir.1998) ("Liriano I "), we certified to the New York Court of Appeals the question of whether a manufacturer can be liable under a failure-to-warn theory in a case in which the substantial modification defense would preclude liability under a design defect theory. See id. at 132. We also certified the question of whether, if failure-to-warn liability could exist, it would nonetheless be unavailable as a matter of law on the facts of the present case. See id. The New York Court of Appeals answered the first question in the affirmative and declined to answer the second. See Liriano v. Hobart Corp., 92 N.Y.2d 232, 236, 700 N.E.2d 303, 304, 677 N.Y.S.2d 764, 765 (1998) ("Liriano II "). Consequently, we now address the second question ourselves, and we find it to be a close one. Viewing the facts, as we must, in the light most favorable to the plaintiff, we resolve that question in the negative. We also find that all other claims the appellants have raised on appeal lack merit. We therefore affirm the decision of the district court granting judgment and damages for the plaintiff.

BACKGROUND

The facts of this case are set out in Liriano I and again in Liriano II. See Liriano I, 132 F.3d at 125-26; Liriano II, 92 N.Y.2d at 236-37, 700 N.E.2d at 305, 677 N.Y.S.2d at 766. We repeat only those that are necessary to resolve the issues that remain before us.

Luis Liriano was severely injured on the job in 1993 when his hand was caught in a meat grinder manufactured by Hobart Corporation ("Hobart") and owned by his employer, Super Associated ("Super"). The meat grinder had been sold to Super with a safety guard, but the safety guard was removed while the machine was in Super's possession and was not affixed to the meat grinder at the time of the accident. The machine bore no warning indicating that the grinder should be operated only with a safety guard attached.

Liriano sued Hobart under several theories, including failure to warn. Hobart brought a third-party claim against Super. The United States District Court for the Southern District of New York (Shira A. Scheindlin, J.) dismissed all of Liriano's claims except the one based on failure to warn, and the jury returned a verdict for Liriano on that claim. It attributed five percent of the liability to Hobart and ninety-five percent to Super. The district court then held a partial retrial limited to the issue of whether and to what extent Liriano was responsible for his own injury. On that retrial, the jury assigned Liriano one-third of the fault.

Before she entered judgment based on these calculations, Judge Scheindlin granted Liriano's motion to add $21,252.34 to the total damage award. The increase reflected the amount of a hospital bill that had been submitted to the jury during trial but somehow had not been included in the initial damage calculation.

Hobart and Super appealed, arguing (1) that as a matter of law, there was no duty to warn, and (2) that even if there had been a duty to warn, the evidence presented was not sufficient to allow the failure-to-warn claim to reach the jury. Super further argued (3) that the district court erred in holding a retrial on the issue of Liriano's comparative fault without also retrying Hobart's and Super's shares of fault relative to each other We now resolve questions (2), (3), and (4).

                and (4) that the district court's addition of the hospital bill to its damage calculation was an impermissible additur.  We certified questions (1) and (2) to the New York Court of Appeals.  See Liriano I, 132 F.3d at 132.   That Court answered question (1) in Liriano's favor, saying that there can indeed be a duty to warn in a case like this one.  See Liriano II, 92 N.Y.2d at 243, 700 N.E.2d at 309, 677 N.Y.S.2d at 770.   The Court of Appeals, however, declined to answer question (2).  See id
                

DISCUSSION

A. Sufficiency of the Evidence

Hobart makes two arguments challenging the sufficiency of the evidence. The first concerns the obviousness of the danger that Liriano faced, and the second impugns the causal relationship between Hobart's negligence and Liriano's injury. Each of these arguments implicates issues long debated in the law of torts. With respect to the asserted clarity of the danger, the question is when a danger is so obvious that a court can determine, as a matter of law, that no additional warning is required. With respect to causation, the issue is whether a jury may infer that a defendant's particular negligence was the cause-in-fact of a plaintiff's actual injury from the general fact that negligence like the defendant's tends to cause injuries like the plaintiff's. The obviousness question was the subject of an important but now generally rejected opinion by Justice Holmes, then on the Massachusetts Supreme Judicial Court; ¹ the causation question is answered in a celebrated opinion of Judge Cardozo, then on the New York Court of Appeals. ² We examine each in turn.

(1) Obviousness

More than a hundred years ago, a Boston woman named Maria Wirth profited from an argument about obviousness as a matter of law that is very similar to the one Hobart urges today. See Lorenzo v. Wirth, 170 Mass. 596, 49 N.E. 1010 (1898). Wirth was the owner of a house on whose property there was a coal hole. See id. at 599, 49 N.E. at 1010. The hole abutted the street in front of the house, and casual observers would have no way of knowing that the area around the hole was not part of the public thoroughfare. See id. at 599, 49 N.E. at 1011. A pedestrian called Lorenzo fell into the coal hole and sued for her injuries. See id. Writing for a majority of the Supreme Judicial Court of Massachusetts, Oliver Wendell Holmes, Jr., held for the defendant. He noted that, at the time of the accident, there had been a heap of coal on the street next to the coal hole, and he argued that such a pile provided sufficient warning to passers-by that they were in the presence of an open hole. "A heap of coal on a sidewalk in Boston is an indication, according to common experience, that there very possibly may be a coal hole to receive it." Id. at 601, 49 N.E. at 1011. And that was that.

It was true, Holmes acknowledged, that "blind men, and foreigners unused to our ways, have a right to walk in the streets," id. at 600, 49 N.E. at 1011, and that such people might not benefit from the warning that piles of coal provided to sighted Bostonians. But Holmes wrote that coal-hole cases were simple, common, and likely to be oft repeated, and he believed it would be better to establish a clear rule than to invite fact-specific inquiries in every such case. "In simple cases of this sort," he explained, "courts have felt able to determine what, in every case, however complex, defendants are bound at their peril to know." Id. With the facts so limited, this was an uncomplicated case in which the defendant could, as a matter of law, rely on the plaintiff's responsibility to know what danger she faced.

Justice Knowlton disagreed. See id. at 601-04, 49 N.E. at 1011-13 (Knowlton, J., dissenting). His opinion delved farther into the particular circumstances than did Holmes's opinion for the majority. In so doing, he showed that Lorenzo's failure to appreciate her peril might have been foreseen by Wirth and hence that Wirth's failure to warn might constitute negligence. He noted, for example, that the accident occurred after nightfall, when Lorenzo perhaps could not see, or recognize, the heap of coal for what it was. See id. at 603, 49 N.E. at 1012. There was "a throng of persons" on the street, such that it would have been difficult even in daylight to see very far ahead of where one was walking. See id. at 603-04, 49 N.E. at 1012. And the plaintiff was, in fact, a foreigner unused to Boston's ways. "[S]he had just come from Spain, and had never seen coal put into a cellar through a coal hole." Id. at 603, 49 N.E. at 1012. In sum, the case was not the "simple" one that Holmes had made it out to be. What is more, none of the facts he recited was either unusual or unforeseeable by Wirth. "What kind of conduct is required under complex conditions, to reach the usual standard of due care, namely, the ordinary care of persons of common prudence, is a question of fact .... [and thus] a question for a jury." Id. at 604, 49 N.E. at 1012-13 (emphasis added). Even cases involving "obvious" dangers like coal holes, Knowlton believed, might not be resolvable as matters of law when viewed in the fullness of circumstances that rendered the issue less clear than it would be when posed in the abstract.

Holmes commanded the majority of the Supreme Judicial Court in 1898, but Knowlton's position has prevailed in the court of legal history. " '[T]he so-called Holmes view--that standards of conduct ought increasingly to be fixed by the court for the sake of certainty--has been largely rejected.... The tendency has been away from fixed standards and towards enlarging the sphere of the jury.' " Fowler V. Harper,...