Wilson v. Bradlees of New England, Inc.

• Decision Date: 03 April 1996
• Docket Number: No. 95-2293,95-2293
• Citation: 96 F.3d 552
• Parties: , Prod.Liab.Rep. (CCH) P 14,735 Elizabeth WILSON, individually and as Mother and next friend of Ailsa DeBold, Plaintiff, Appellant, v. BRADLEES OF NEW ENGLAND, INC., et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 552

96 F.3d 552

65 USLW 2221, Prod.Liab.Rep. (CCH) P 14,735

Elizabeth WILSON, individually and as Mother and next friend of Ailsa DeBold, Plaintiff, Appellant, v. BRADLEES OF NEW ENGLAND, INC., et al., Defendants, Appellees.

No. 95-2293.

United States Court of Appeals First Circuit.

Heard April 3, 1996.

Decided Sept. 25, 1996.

Edwin Paul Gale with whom Thomas Craig, P.A. was on brief, Manchester, NH, for appellant.

E. Donald Dufresne with whom Alexander J. Walker, Jr., Devine, Millimet & Branch, P.A., Michael J. Goldman, Freeman & Hawkins, Michael S. Owen and Wiggin & Nourie, P.A. were on briefs, Manchester, NH, for appellees Union Underwear Company, Inc., Sharky's Sportswear Co. and Paradise Screen Printing Co.

Before TORRUELLA, Chief Judge, CYR and BOUDIN, Circuit Judges.

BOUDIN, Circuit Judge.

Ailsa DeBold suffered severe burns after her sweatshirt and T-shirt caught fire. Her mother, Elizabeth Wilson, brought suit for damages--on behalf of Ailsa and Elizabeth--against Union Underwear, Inc., the manufacturer of the garments, Sharkey's Sportswear, Inc., the wholesaler, Paradise Screen Printing, the printer of the garments' logos, and Bradlees of New England, Inc., the retailer. After initially refusing to do so, the district court eventually granted summary judgment for all defendants, on the ground that the Flammable Fabrics Act, 15 U.S.C. § 1191, et seq., preempted Wilson's common-law claims. Believing that under current conditions the statute does not preempt Wilson's common-law claims, we reverse.

The complaint, which we take as true, Snow v. Harnischfeger Corp., 12 F.3d 1154, 1157 (1st Cir.1993), cert. denied, 513 U.S. 808, 115 S.Ct. 56, 130 L.Ed.2d 15 (1994), alleged the following. On February 15, 1991, Ailsa DeBold, who was 12 years old at the time, reached across a stove to turn off a whistling kettle; her sweatshirt and T-shirt ignited, and she suffered second and third degree burns over her torso and abdomen. Both of the garments were made of a 50/50 blend of cotton and polyester; it is agreed that the fabric complied with the applicable federal flammability standard, known as Commercial Standard ("CS") 191-53. 16 C.F.R. part 1610.

Wilson's suit was based on four theories: strict liability, negligence, failure to warn, and breach of implied warranty. Defendants moved for summary judgment, arguing that Wilson's claims were preempted by the Flammable Fabrics Act. The district court initially denied the motion, but on motion for reconsideration reversed itself. The district court held that all of Wilson's claims were expressly preempted by section 1203(a) of the Flammable Fabrics Act, 15 U.S.C. § 1203(a), which provides:

Except as provided in subsections (b) and (c) of this section, whenever a flammability standard or other regulation for a fabric, related material, or product is in effect under this chapter, no State or political subdivision of a State may establish or continue in effect a flammability standard or other regulation for such fabric, related material, or product if the standard or other regulation is designed to protect against the same risk of occurrence of fire with respect to which the standard or other regulation under this chapter is in effect unless the State or political subdivision standard or other regulation is identical to the Federal standard or other regulation.

Quoting Cipollone v. Liggett Group, 505 U.S. 504, 521, 112 S.Ct. 2608, 2620, 120 L.Ed.2d 407 (1992), the district court held that the phrase "flammability standard or other regulation" should be read to "sweep[ ] broadly and suggests no distinction between positive enactments and common law." All of Wilson's claims based on the garments' defective nature--strict liability, negligence, and breach of implied warranty--hinged on the allegation that the garments failed to meet some standard of performance. The district court reasoned that these claims would, if successful, establish a "flammability standard" different from the federal standard--CS 191-53--which the fabric admittedly met.

Wilson's remaining claim nominally did not rest on the defective nature of the garments but rather upon a failure to warn of the danger presented. Still, the district court held that imposition of a common-law duty to warn would "give rise to state law regulation or duty 'designed to protect against the same risk' of fire-related injuries protected by the performance-based standards" of federal law. Accordingly, the court granted summary judgment for the defendants on all claims. Wilson appealed. We review the legal issue presented de novo. Brown v. Hearst Corp., 54 F.3d 21, 24 (1st Cir.1995).

Statutory coverage of common-law torts. Where Congress has adopted a specific preemption provision, our initial concern is with express preemption and with the reach of the clause in question. Cipollone, 505 U.S. at 517, 112 S.Ct. at 2617-18. Here, the defendants point to section 1203(a), quoted in full above, which says that a state may not "establish or continue in effect a flammability standard or other regulation" if it is designed to protect against the same risk of occurrence of fire as the federal standard or other regulation. There are statutory exceptions, e.g., 15 U.S.C. § 1203(b), but they admittedly do not apply here.

Wilson's claims do appear to address the same risk as the federal flammability standard insofar as those claims assert that the clothing in question should have been made or designed to be less flammable. (Wilson's failure to warn claims are, at least in part, a different matter which we reserve for later discussion.) But Wilson says that section 1203(a) was meant to preempt only positive state law (e.g., a state statute or administrative regulation) and not a judge or jury determination made in a common-law tort action.

To us, the language of section 1203(a) does not dictate the answer to the question thus posed; indeed, there is no indication that Congress, in adopting section 1203(a), ever considered the question. But courts are often asked to resolve statutory issues where the legislature had no specific intent on the precise point at issue. Language, precedent and policy remain pertinent--more to provide a reasonable solution than to discover a largely fictional legislative intent. See Versyss, Inc. v. Coopers and Lybrand, 982 F.2d 653, 654 (1st Cir.1992), cert. denied, 508 U.S. 974, 113 S.Ct. 2965, 125 L.Ed.2d 665 (1993).

To start with statutory language, the phrase "standard or other regulation" does suggest that Congress was speaking of positive law. The term "standard" could be used to refer either to a statute or a common-law decision, but "regulation" is a term peculiar to positive law; and to refer to "standard or other regulation" arguably implies that Congress was addressing those standards that are contained in statutes or administrative directives. The further reference to "State or political subdivision" may slightly reinforce the inference that Congress was referring to something adopted by a state legislature or local entity. ¹

On the other hand, the Supreme Court has now read the term "requirement," in the counterpart preemption provision of the Medical Device Amendments of 1976, 21 U.S.C. § 360k(a), to embrace common-law rules. Medtronic, Inc. v. Lohr, --- U.S. ----, ---- - ----, 116 S.Ct. 2240, 2259-60, 135 L.Ed.2d 700 (Breyer, J., concurring), 2262-63 (four Justices concurring in part) (1996). Linguistically, this is a slightly easier stretch--simply because the phrase "or other regulation" does not appear in the Lohr statute. But one could argue that the two statutes are so close in structure that they should be read in the same fashion, a view that finds a trace of support in the legislative history cited below. In short, section 1203(a) could be read either way.

Legislative history is the usual next resort where language is not conclusive. The Flammable Fabrics Act has a complicated history with two different strands, one concerning substantive changes in the law and the other related to successive preemption provisions. Substantively, the original statute is a curiosity. Faced in 1953 with episodes of burning clothing, Congress did not enact the usual full fledged regulatory statute giving an agency administrative oversight. Instead, it enacted, as positive law, the then existing industry-developed standard fixing a minimum resistance-to-flammability level. 67 Stat. 112. ²

The 1953 version of the statute made it unlawful to make or sell fabric or clothing that failed the CS 191-53 standard, and it gave the Federal Trade Commission power to enforce the standard. 67 Stat. 112-13. In addition, the statute required the Secretary of Commerce to submit a report and legislative proposals if he found that CS 191-53 was "inadequate" to protect the public. Id. at 112. No preemption language was contained in the original statute.

In 1967, Congress amended the statute to give the Commerce Department authority to issue its own flammability standards and other regulations, including labeling requirements. 81 Stat. 568, 569. Pending adoption of such new federal standards, a savings clause in the amendments continued CS 191-53 in force. Id. at 574. The savings clause is not codified but remains in force today. See 15 U.S.C. § 1191 (note captioned "Savings Provision" following section).

In 1968 the Secretary of Commerce began a rulemaking proceeding, based on a preliminary finding that the existing standards were inadequate. 33 Fed.Reg. 15,662. No new federal flammability standards have ever been adopted, and CS 191-53 continues to be the federal standard. It has been included in the Code of Federal Regulations to reflect the existence of the savings clause. See 16 C.F.R. part 1610, codification note.

The 1967 amendments included a preemption provision stating that the Flammable Fabrics Act "supercede[d] any law of any State or political subdivision thereof inconsistent with...