Varano v. Jabar

• Decision Date: 08 September 1999
• Docket Number: No. 99-1094,99-1094
• Citation: 197 F.3d 1
• Parties: (1st Cir. 1999) LISA A. VARANO, Plaintiff, Appellant, v. MICHAEL G. JABAR, D/B/A MIKE'S ROOFING COMPANY; STERN COMPANY, INC., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

197 F.3d 1 (1st Cir. 1999)

LISA A. VARANO, Plaintiff, Appellant, v. MICHAEL G. JABAR, D/B/A MIKE'S ROOFING COMPANY; STERN COMPANY, INC., Defendants, Appellees.

No. 99-1094.

United States Court of Appeals, for the First Circuit.

Heard Sept. 8, 1999.

Decided November 24, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Hon. Gene Carter, U.S. District Judge.

William C. Knowles, with whom Gene R. Libby, Rita H. Logan and Verrill & Dana, LLP were on brief, for appellant.

James Q. Shirley, with whom Sheehan Phinney Bass + Green, P.A., Anna Barbara Hantz and Gottesman and Hollis, P.A. were on brief, for appellee Michael G. Jabar d/b/a Mike's Roofing Company.

Before Stahl, Circuit Judge, John R. Gibson,^* Senior Circuit Judge, and Lynch, Circuit Judge.

JOHN R. GIBSON, Senior Circuit Judge.

Lisa Varano appeals from the judgment as a matter of law entered against her on her products liability claim against Michael Jabar, and also from the judgment entered against her on a jury verdict on her negligence claim. Varano claimed she became ill from fumes released when Jabar, doing business as Mike's Roofing, used an adhesive containing isocyanates to repair the roof above the store where Varano was working. After Varano presented her case, the district court entered judgment as a matter of law against her on her strict liability failure-to-warn claim because the court concluded that Jabar was not a "seller" of the adhesive, which is a statutory element of Varano's claim under Maine law. The court permitted Jabar to introduce evidence that he had used the adhesive in the past without any problems. The court submitted Varano's negligence claim to the jury, but refused Varano's requested res ipsa loquitur instruction on the ground that Varano had not adduced evidence that would warrant the instruction. The jury returned a verdict for Jabar. On appeal, Varano argues that the district court erred in entering judgment against her on her strict liability claim, in permitting Jabar to introduce evidence of his past use of the adhesive without injuries, and in denying her requested res ipsa loquitur instruction. We affirm.

Varano testified that on February 17, 1995, she was working in her office in the back of the Nautica store in a mall in Kittery, Maine. She heard some banging on the roof of the store, followed by the presence of a strong odor of glue or adhesive. She went outside the store and saw that employees of Jabar's company, Mike's Roofing, were working on the roof. Back inside the store, Varano found that the odor had grown stronger, so she called the property management company to report the problem. As the day went on, the odor became stronger until Varano could see a "vapor" and a "haze" in the room.

By the next day, Varano had a sore throat and chest discomfort. She was admitted to the emergency room on March 2 and March 8, 1995 because she was experiencing chest pains and could not breathe.

On March 9, 1995, Jabar's employees were back at work on the roof of the mall. When Varano arrived at work, one of her coworkers told her that the odor had returned. Varano again called the management company to complain. In response, two of Jabar's employees and Jabar's wife, Wendy Collins, came to the Nautica store. Varano asked them what they were using on the roof. One of Jabar's employees left and returned with a can of Firestone Splice Adhesive. He opened the can, and Varano identified the odor as the one she had smelled in the store on February 17.

After the incidents at the store in February and March 1995, Varano was diagnosed with occupational asthma, induced by exposure to isocyanates. Splice Adhesive contains isocyanates.

Varano sued Jabar, alleging a products liability claim for failure to warn of the danger posed by exposure to Splice Adhesive and negligence¹ in failing to warn her. Varano's theory was that there was a "release" of Splice on the roof that worked its way down through the decking of the roof into the back of the Nautica store where Varano was working. Jabar's expert testified that Varano could not have been exposed to levels of isocyanates sufficient to cause asthma in connection with the use of Splice Adhesive on the roof. Jabar's medical expert testified that Varano's medical condition was not caused by isocyanate exposure, but rather by recurrent infections. The district court granted judgment as a matter of law against Varano on the ground that Jabar was not a "seller" of Splice Adhesive within the meaning of Maine's products liability statute, Me. Rev. Stat. Ann. tit. 14, § 221 (West 1997). The court submitted Varano's negligence claim to the jury, which found for Jabar.

I.

Varano argues that the district court erred in entering judgment as a matter of law against her on her strict liability claim on the ground that Jabar was not a seller of Splice Adhesive within the meaning of Me. Rev. Stat. Ann. tit. 14, § 221. We conclude that, whether or not Jabar was a seller under Maine law, the court submitted to the jury the same elements in the negligence instruction as Varano would have been entitled to under a strict liability failure-to-warn instruction. Therefore, any possible error in denying Varano the chance to submit her strict liability failure-to-warn claim to the jury was harmless.

Varano's complaint pleaded a strict liability claim based only on failure to warn of danger associated with the use of Splice Adhesive.² Varano's tendered strict liability instruction included a statement that the "roofing products may be defective and unreasonably dangerous because of a failure to provide adequate warnings regarding potential dangers involved in the use of the products." Varano's tendered instruction did not contain any indication that the jury had to find that Jabar knew or should have known of the danger to find Jabar liable for failure to warn of that danger. Jabar contends that, even assuming the district court erred in failing to submit the strict liability failure-to-warn claim to the jury, the error is harmless as a matter of law because the court instructed the jury on negligent failure to warn. Jabar argues that the two claims are so similar under Maine law that the jury's rejection of the negligence claim establishes that it would have also rejected the strict liability claim.

In Cheshire Medical Center v. W.R. Grace & Co., 49 F.3d 26, 32-33 (1st Cir. 1995), we held that failure to submit a strict liability failure-to-warn instruction would be harmless if the court instructed on a negligent failure-to-warn claim and if the strict liability duty to warn was no more stringent than the duty of prudent care under New Hampshire law.

The Maine Supreme Judicial Court has stated that the duty imposed by Maine's products liability statute, Me. Rev. Stat. Ann. tit. 14, § 221, in a duty to warn context, is the "responsibility to inform users and consumers of dangers about which [the seller] either knows or should know at the time the product is sold." Bernier v. Raymark Indus., Inc., 516 A.2d 534, 540 (Me. 1986), quoted in Lorfano v. Dura Stone Steps, Inc., 569 A.2d 195, 197 (Me. 1990). "[T]his aspect of strict liability bears a strong resemblance to a negligence action." Lorfano, 569 A.2d at 196. The Maine court quoted the comments of Professor Prosser, who stated that the two claims are the same, except that the claim sounding in strict liability is subject to strict liability defenses and other limitations on liability, rather than the defenses and limitations relevant to negligence claims. Id. (quoting W. Prosser & W. Keeton, The Law of Torts § 99, at 697 (5th ed. 1984)).

Thus, while the Maine Court indicated that there are differences in the defenses and limitations on liability applicable to the two causes of action, both causes spring from an identical duty of care:

Regardless of whether a failure to warn claim is phrased in terms of negligence [or] strict liability, the analysis . . . is basically the same. [T]he general rule [is] that the supplier of a product is liable to expected users for harm that results from foreseeable uses of the product if the supplier has reason to know that the product is dangerous and fails to exercise reasonable care to so inform the user.

Pottle v. Up-Right, Inc., 628 A.2d 672, 675 (Me. 1993) (internal quotations omitted and emphasis added).

Varano's proposed strict liability instruction did not include the concept that Jabar would only be liable for failure to warn of dangers of which he knew or should have known. On appeal, Varano continues to argue that strict liability does not require a breach of a duty of care. However, under Maine law it is clear that strict liability failure-to-warn cases do require breach of such a duty. See Pottle, 628 A.2d at 675; Lorfano, 596 A.2d at 196. We need not decide whether, on different facts, there might be some differences between the strict liability failure-to-warn and negligent failure-to-warn claims under Maine law; the only...