McKinnon v. Skil Corp.

• Citation: 638 F.2d 270
• Decision Date: 20 March 1981
• Docket Number: No. 80-1298,80-1298
• Parties: 7 Fed. R. Evid. Serv. 859 James A. McKINNON, Plaintiff, Appellant, v. SKIL CORPORATION, Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 270

638 F.2d 270

7 Fed. R. Evid. Serv. 859

James A. McKINNON, Plaintiff, Appellant, v. SKIL CORPORATION, Defendant, Appellee.

No. 80-1298.

United States Court of Appeals, First Circuit.

Argued Oct. 9, 1980.

Decided Jan. 14, 1981.

Rehearing Denied March 20, 1981.

Edmund M. Pitts, Boston, Mass., with whom Pitts & Pitts, Boston, Mass., was on brief, for appellant.

David A. Barry, Boston, Mass., with whom Kenneth L. Carson, Regina Roman, and Sugarman, Rogers, Barshak & Cohen, Boston, Mass., were on brief, for appellee.

Before ALDRICH, PELL ^* and CAMPBELL, Circuit Judges.

PELL, Circuit Judge.

The appellant, James McKinnon, sued Skil Corporation on negligence and breach of warranty theories for injuries he incurred while operating a portable electric saw manufactured by the defendant. The jury returned a verdict for Skil on April 4, 1980. McKinnon alleges that the trial judge committed numerous prejudicial errors by giving misleading or erroneous instructions, refusing to give an instruction requested by the plaintiff, and by the exclusion from evidence of certain documents and testimony offered by the plaintiff. The appellant also contests the admission of other evidence offered by the defendant. Federal jurisdiction is based upon diversity of citizenship.

I.

McKinnon is a professional floor re-finisher and installer. He purchased a new Model 559 Type 5 circular saw manufactured by the defendant on October 31, 1975. On each of the several occasions that he used the saw prior to the date of his accident, he observed that the lower blade guard was sticking so that it did not return to cover the blade at all or returned slowly. He knew that the blade guard should be kept in good working order and also knew he could return the saw to the retailer if there was any problem with it. He, however, decided against taking the latter course, and made no complaint about the saw either to the retailer or the defendant prior to the accident.

On January 16, 1976, McKinnon was using the saw to cut boards laid out on a workbench. After making a cut, and without looking to see whether the lower blade guard had returned to cover the blade, he set the saw down on the floor and it cut his right foot, partially amputating a toe and lacerating another toe. His teenage son testified that the saw was set down about two feet from his father's right foot, and that the saw traveled in a semi-circle when the lower blade guard did not return to the safe position, and the momentum of the saw carried it against his father's right foot. There was also testimony that the saw blade will continue to rotate approximately ten seconds after the release of the trigger.

McKinnon was taken to a hospital after the accident and according to the entries in the hospital record, he told the clerk in the emergency room and the doctor who treated him that he had dropped the saw on his foot. Several months after the accident the plaintiff returned to work on a full-time basis.

II.

The plaintiff first contends that the trial judge's instructions regarding the implied warranty of merchantability gave rise to the inappropriate implication that McKinnon had misused the saw. ¹ Because this objection is raised for the first time on appeal, Rule 51 of the Federal Rules of Civil Procedure precludes consideration of this issue. Roy v. Star Chopper Co., 584 F.2d 1124, 1132 (1st Cir. 1978), cert. denied, 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1979); Morris v. Travisono, 528 F.2d 856, 859 (1st Cir. 1976); Nimrod v. Sylvester, 369 F.2d 870, 872 (1st Cir. 1966).

The plaintiff's second objection to the trial judge's instructions contests the application of comparative negligence to the warranty claim. The judge instructed the jury that the plaintiff's negligence; if any, diminishes his right to recover on either negligence or warranty theories in proportion to his degree of fault unless he is found to be more than fifty percent negligent, in which case recovery is barred. The plaintiff contends that his objection on this ground was subsumed in his objection to the trial judge's failure to give the plaintiff's requested breach of warranty instruction, and therefore is not barred from review by Rule 51.

The plaintiff's objection to the trial judge's failure to give the requested instruction, however, concerned a different aspect of the warranty instruction, which will be discussed separately hereinafter. Even assuming it well-founded, but cf. Murray v. Fairbanks Morse, 610 F.2d 149 (3d Cir. 1979), the plaintiff never made an objection on the ground alleged here. Rule 51 requires that the subject matter and ground for objection to jury instructions be stated distinctly. Under Rule 51, "(o)bjection to one part of the charge does not permit ... (a party) to assert error as to a different part; nor may objection on one ground serve as a predicate to a challenge on another." Gillentine v. McKeand, 426 F.2d 717, 723 n.19 (1st Cir. 1970).

Rule 51 promotes judicial economy and integrity by serving a dual purpose. Compliance with the Rule provides an opportunity for the trial judge to correct errors while it eases the burden on appellate courts by reducing the potential number of reviewable court rulings. Harrington v. United States, 504 F.2d 1306, 1316-17 (1st Cir. 1974); Marshall v. Nugent, 222 F.2d 604, 615 (1st Cir. 1955). Consequently the Rule bars review of objections not presented to the trial court in all but the most exceptional cases. ²

The only objection to the jury instructions which was preserved for appeal contested the court's refusal to give a proposed instruction tendered by the plaintiff which related to the breach of warranty claim. The instruction directed that "(t)he Skil Corporation has a duty under the law to anticipate the environment in which its product will be used, and it must design against the reasonably foreseeable risks attending the product's use in that setting." ³

Where the foreseeability of the plaintiff's particular use of a product is in dispute, an explicit instruction on foreseeability of use is appropriate. This case, however, is unlike Back v. Wickes Corp., 375 Mass. 633, 378 N.E.2d 964 (Mass.1978), upon which the plaintiff relies. A crucial disputed issue in Back was whether the manufacturer had a duty to minimize risks inherent in vehicular collisions. The court reasoned that although an accident is not a normal or ordinary function of a vehicle, nonetheless it is foreseeable.

In the instant case, the judge advised the jury at length on the aspects of warranty law and concluded that "the law implies a warranty ... that the article which has been purchased is reasonably fit for the purposes, the ordinary purposes for which such goods are used." The instruction adequately covered the law as applied to the facts of this case. The evidence at trial established, and the defendant did not contest, that the plaintiff was a foreseeable user and that cutting wood flooring was a normal use.

A special instruction on the duty to design in light of all "anticipated" or "reasonably foreseeable" uses would be mere surplusage in a case where the trial judge had already instructed the jury on the manufacturer's duty to make a product fit for ordinary use and where there is no claim that the plaintiff's use was other than "normal," "ordinary," "proper," or "intended" by the manufacturer. Such an instruction, given after the conclusion of the charge as a whole, might have wrongly suggested to the jury that there was in fact some dispute as to whether the plaintiff's use of the saw for cutting hardwood floors was ordinary, proper, or even reasonably foreseeable. ⁴

Although all parties are entitled to adequate jury charges upon the controlling issues in the case, the court need not employ the precise language urged. Wolff v. Puerto Rico, 341 F.2d 945, 946 n.1 (1st Cir. 1965). As long as the judge's instruction properly apprises the jury of the applicable law, failure to give the exact instruction requested does not prejudice the objecting party. Sears, Roebuck & Co. v. Penn Central Co., 420 F.2d 560, 564 (1st Cir. 1970). Because the foreseeability of the particular use was not a disputed issue in the instant case, the court's refusal to give the instruction was appropriate.

III.

The plaintiff contests numerous trial court rulings excluding evidence. The plaintiff sought to admit into evidence an Occupational Safety and Health Act (OSHA) safety regulation requiring circular saws to have properly functioning lower blade guards. ⁵ This regulation was offered on the issue of Skil Corporation's negligence to show that the saw did not comply with minimum safety requirements.

Massachusetts permits, in the sound discretion of the trial court, the admission of safety standards for consumer products promulgated by government organizations to prove negligence in product liability cases. Torre v. Harris-Seybold Co., --- Mass.App. ---, 404 N.E.2d 96, 105 (Mass.App.1980). However, the standards must meet the threshold evidentiary showings of trustworthiness, relevancy, materiality, and necessity. 404 N.E.2d at 106 n.10. The trial court is accorded considerable discretion in determinations relating to the admissibility of evidence. Gilliam v. Omaha, 524 F.2d 1013, 1016 n.4 (8th Cir. 1975). In this case, the trial court did not abuse its discretion in refusing to admit the OSHA regulation when it ruled that OSHA workplace standards were not relevant in this consumer product liability action against a manufacturer. ⁶

The plaintiff contends that OSHA standards are relevant as evidence of whether or not the defendant acted as would a reasonably prudent person under these circumstances. He contends that the regulation provides evidence of industry practice and standard of care.

The employment and consumer contexts are not that fungible. OSHA was enacted to assure safety in the workplace, 29 U.S.C. § 651(b), and therefore its terms apply only to...