Williams v. Inverness Corp.

• Decision Date: 06 September 1995
• Docket Number: No. 7394,Docket No. K,7394
• Citation: 664 A.2d 1244
• Parties: Angela M. WILLIAMS et al. v. INVERNESS CORPORATION. DecisionLawen-94-789.
• Court: Maine Supreme Court

Page 1244

664 A.2d 1244

Angela M. WILLIAMS et al. v. INVERNESS CORPORATION.

Decision No. 7394.

Law Docket No. Ken-94-789.

Supreme Judicial Court of Maine.

Argued April 11, 1995.

Decided Sept. 6, 1995.

Arlyn H. Weeks (orally), Conley, Haley & O'Neil, Bath, for plaintiffs.

Robert H. Steir, Jr. (orally), Bernstein, Shur, Sawyer & Nelson, Portland, for defendant.

Before ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

DANA, Justice.

Inverness Corporation appeals a judgment entered in the Superior Court (Kennebec County, Marsano, J.) following a jury verdict in favor of Angela M. Williams. Inverness contends that the court erred in submitting the issues of negligence, strict liability, breach of express warranty, and breach of implied warranty to the jury. Inverness also asserts that the court's special verdict form was confusing and prejudicial to Inverness, and that the court erred in not granting a mistrial after the jury submitted an incomplete special verdict form. We affirm the judgment.

I.

The evidence at the trial can be summarized as follows. Margaret Barrera owned and operated a jewelry cart at a Brunswick mall. She sold items produced by a number of manufacturers, including earrings manufactured by Inverness, a Delaware corporation headquartered in New Jersey. Barrera also offered ear piercing using exclusively the Inverness Ear Piercing System.

According to promotional material introduced at the trial, Inverness is the "world's largest producer of ear piercing products." The Inverness system is used "by more retailers throughout the world than any other system" and it "has pierced the ears of more than 50 million people." The Inverness system includes a "compact, professional work center [that] fits easily on the counter or under it. Everything [the vendor needs] is included: piercing instrument, sterile marking pen, sealed earring cassettes, aftercare instructions for customers and Ear Care Solution for an added sale." To "round out the Inverness Ear Piercing System," Inverness provides vendors with "a training program and an eye-catching assortment of selling aids[,] [i]ncluding ... [f]ull-color counter displays, window displays and tent cards." Barrera had purchased the Inverness Ear Piercing System from a local beauty school, and she purchased sealed earring cassettes directly from Inverness. The sealed earring cassettes can only be used in conjunction with the Inverness ear piercing equipment.

Angela Williams, a seventeen-year-old high school student, had visited Barrera's stand "lots of times." She had observed the Inverness earring display, and had heard of Inverness. According to Angela, "[Inverness] was the only earring company that I knew of that pierced ears [in the cartilage area]."

In June 1991 Angela asked Barrera to pierce her left ear high in the cartilage area. Barrera produced a release form furnished by Inverness and bearing its name. The release form states at the top, in large letters, "The Only Completely Safe, Sterile Ear Piercing Method." In smaller print, the form states that "ear piercing should be limited to the earlobe area as piercing in the cartilage can result in redness, swelling and infection." Angela testified that she did not read the release form, but she did notice the Inverness name at the top. She also testified that she signed the release form after Barrera pierced her ear, and that Barrera did not tell her that ear piercing should be limited to the earlobe area.

Within two weeks Angela's ear swelled, became hot, and discharged green pus. She was subsequently admitted to the hospital where she received intravenous antibiotics. She was discharged after five days, but continued on intravenous therapy at home. Angela was pregnant when her ear was pierced. Her physicians told her that there was a "considerable risk" that the infection and the antibiotics would affect her fetus. Angela had an abortion in July 1991.

Angela's mother filed a complaint on behalf of Angela in May 1992. The complaint alleged negligence against Barrera, and liability for Barrera's negligence, strict liability, breach of implied warranties, and breach of express warranty against Inverness. Angela dismissed the claim against Barrera before the trial.

Angela presented eleven witnesses at the trial, including herself. After she rested, she and Inverness both moved for a judgment as a matter of law on the issue of whether Inverness is liable to Angela for negligence on the part of Barrera based on an application of the doctrine of apparent agency, and the court denied the motion. Inverness then moved for a judgment as a matter of law on the remaining claims, and the court denied this motion, as well. Inverness did not present any testimony.

The parties submitted proposed special verdict forms during the trial, and discussed these forms with the court. Inverness characterized the court's verdict form as "confusing," and raised the possibility that the jury "might think that [it's] supposed to skip the other questions between 1 and 8." Although the court explained the form to the jury as part of its charge, the jury, in fact, answered only questions 1 and 8. Without discussing the matter with counsel, the court instructed the jury to return to its deliberations until it could return "a verdict which includes an analysis of the entire form." Inverness then moved for a mistrial based on "the deficiency in the verdict form." The court denied that motion. The jury deliberated for a short period, and answered all six remaining questions on the verdict form.

The completed verdict form set forth a verdict for Angela on every claim and an award of $90,000. A judgment was entered accordingly, and this appeal followed.

II.

When reviewing a trial court's denial of a motion for a judgment as a matter of law, we must determine whether by any reasonable view of the evidence, including the inferences to be drawn therefrom, taken in the light most favorable to the non-moving party, the verdict can be sustained. Ames v. Dipietro-Kay Corp., 617 A.2d 559, 561 (Me.1992); M.R.Civ.P. 50. The judgment in favor of the non-moving party must stand unless it is clearly erroneous. Ames, 617 A.2d at 561.

Angela's negligence claim against Inverness rests on an application of the doctrine of apparent agency. In Libby v. Concord Gen. Mut. Ins. Co., 452 A.2d 979, 982 (Me.1982), we stated:

"[A]pparent" authority is "that which, though not actually granted, the principal knowingly permits the agent to exercise or which he holds him out as possessing." Apparent authority exists only when the "conduct of the principal leads a third person to believe that a given party is his agent."

Id. (citations omitted) (emphasis in original). See also Twin Island Dev. Corp. v. Winchester, 512 A.2d 319, 324 (Me.1986) ("Apparent authority can arise if the principal knowingly or negligently holds someone out as possessing authority to act for him or her, even though no actual authority has been given...."). We note that the Restatement (Second) of the Law of Agency § 267 (1958) provides,

One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care and skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.

Id. See also W. Prosser, Keeton, et al., Prosser and Keeton on the Law of Torts, § 70 at 508 (5th ed. 1984) (explaining that the principal is liable for torts committed by an agent in "cases in which a tort may be based upon the apparent authority of the agent to act for his principal").

We have noted that negligence does not exist in the abstract. Trusiani v. Cumberland and York Distribs., Inc., 538 A.2d 258, 261 (Me.1988). Whether one party owes a duty of care to another is a question of law. Morrill v. Morrill, 616 A.2d 1272, 1274 (Me.1992). Duty involves the question of whether a defendant is under any obligation for the benefit of the particular plaintiff. Trusiani, 538 A.2d at 261. We have observed that many factors can influence the duty determination, including "the hand of history, our ideals of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall." Id. (quoting William L. Prosser, Palsgraf Revisited, 52 Mich.L.Rev. 1, 15 (1953)). We have explained that duty often also turns "on recognizing and weighing relevant policy implications." Cameron v. Pepin, 610 A.2d 279, 282 (Me.1992). When we find a duty in a negligence case "the duty is always the same--to conform to the legal standard of reasonable conduct in the light of the apparent risk." Trusiani, 538 A.2d at 261.

The transaction in this case is a hybrid partaking of incidents of a sale and a service. Barrera was not simply a retailer; she also provided the service of piercing ears using exclusively the Inverness Ear Piercing System. Barrera had a duty to conform to the standard of care required of an ordinary careful provider of ear piercing services. It would be a question for the jury whether Barrera breached this standard by piercing Angela's ear in the cartilage area and/or in failing to adequately warn Angela of the risks involved in the procedure. ¹

The key issue here is whether it is a question for the jury whether Inverness either intentionally or negligently held Barrera out as its agent with respect to the ear piercing, and whether Inverness therefore could be held liable for Barrera's negligence. There are critical pieces of evidence in the record that can fairly be interpreted as leading to an inference that Inverness did hold Barrera out as its agent. Most important, a jury reasonably could infer that Inverness knew, or should have known, that Barrera distributed Inverness's release forms and after-care instructions. Indeed, a jury reasonably could infer that Inverness...