prod.liab.rep. (Cch) P 15,466 Luis Liriano v. Hobart Corporation, 616 Melrose Meat Corporation,s/h/a Super Associated, Third-Party

federally interpreta ty and to defeat the existence of a 8-18 and meaning of section property right. protectable the state court decision Sherman- tion of I, As noted Natale Colonial we conclusion, need not light In of this meaning effect of the decision in Sher Municipal consider the Defendants’ addition- legitimate dispute.” “was a marir-Colonial challenges judgment. to the al dispute at 105. That was resolved Natale, court in favor of see the state Conclusion Bogardus, supra, per and the last Natale v. judgment of the District Court is re- sought mit that Natale had was issued versed, and the case is remanded with di- Though the promptly thereafter. state court judgment rections to enter for the defen- finally that new subdivision determined dants-appellants. No costs. (the required Lot 95 approval was not applied) been permits one for which mandamus, its issued a writ of conclusion right clear to Natale’s

warrant mandamus relief as matter of state that Natale’s entitle

law does not establish permits so clear as to accord

ment federally property right in protectable

him a permits. those The state court issued man LIRIANO, Plaintiff-Appellee, Luis analysis damus after it made refined Supreme a state of two state statutes and CORPORATION, HOBART decision, thereby resolving an Court Defendant-Appellant, legitimate previously that had been “a dis pute.” Corporation,s/h/a 616 Melrose Meat Municipal Defendants contend that Associated, Third-Party recognition qualified immunity our for the Defendant-Appellant. necessarily chairman of the PZC in Natale I 97-7449(CON). 96-9641(L), Docket Nos. federally protect- means that Natale lacked a out, right. they point property able As our Appeals, United States Court of prior legal uncertainty as decision noted Second Circuit. permit applications

to whether should Argued Oct. 1997. granted, 927 F.2d at have been see that, light uncertainty, of this concluded Decided March 1999. reasonably the PZC chairman “could assume require

that the Commission could the Na- approval obtain before

tales to subdivision issued,” requested permits id. legal uncertainty, the

That same defendants

contend, defeats the Natales’ claim to a fed-

erally protectable property interest in the

permits. “uncertainty”

Though as to an officer’s le-

gal obligation permits, purposes to issue immunity, necessarily qualified iden- “uncertainty” applicant’s to an

tical to as purposes permits,

entitlement

federally protectable property interest in the meaning

permits, dispute case was sufficient-

state and local law in this qualified immuni-

ly support in doubt both Isaac,

Brian J. Glaser & Trolman Licht- man, P.C., York, NY, Plaintiff-Ap- New pellee. Henderson, Jr.,

James A. Cornell Law School, Ithaca, NY, Defendant-Appellant (Steven Wilensky, B. Prystowsky, Saul Les- York, NY, Dwyer, ter Schwab Katz & New L.L.P., that remain before sary the issues Flory to resolve Hiñe & Thompson of counsel us. Cleveland, OH, Attorneys Corpo-

ration). injured on the severely Liriano was Luis caught in a job 1993 when his hand York, Kimball, New N.Y. M. William Cor- manufactured Hobart grinder meat counsel) (James O’Connor, for Third- P. (“Hobart”) by his em- and owned poration Party-Defendant-Appellant. The (“Super”). Associated ployer, Super Super with a had been sold to grinder meat CALABRESI, NEWMAN, and Before: safety guard re- safety guard, but the CUDAHY,* Judges Circuit Super’s machine was in moved while the not affixed to the meat possession and was concurs in a Judge 0. NEWMAN JON of the accident. The grinder at the time separate opinion. warning indicating that the machine bore no grinder operated should be with CALABRESI, Judge: Circuit guard attached. Corp., Hobart In Liriano v. 132 F.3d 124 several theo- Liriano sued Hobart under Cir.1998) (“Liriano /”), to we certified ries, including to warn. Hobart failure Appeals question York Court the New third-party against Super. claim brought a be liable un- a manufacturer can of whether District Court for the The United States theory in a case der a failure-to-warn (Shira District of New York A. Southern modification defense which the substantial J.) Scheindlin, Liriano’s dismissed all of liability design preclude under a defect would on failure to except claims the one based See id. at 132. We theory. also certified the warn, and the returned a verdict whether, question of if failure-to-warn liabili- It attributed five Liriano on that claim. exist, ty it nonetheless be un- could ninety- liability to and percent of the on the facts of available as a matter law Super. to The district court percent five present case. See id. The York New partial retrial limited to the issue then held question the first Appeals Court of answered and to what extent Liriano was of whether in the affirmative and declined answer the injury. On that re- responsible for his own Corp., v. Hobart second. See Liriano 92 trial, jury assigned Liriano one-third of 303, 304, 677 N.Y.2d 700 N.E.2d the fault. (1998) (“Liriano II”). judgment based on Before she entered Consequently, we now address second calculations, Judge granted Scheindlin these ourselves, question and we find it to be a $21,252.34 Liriano’s motion to add facts, must, Viewing one. as we close damage The increase reflected total award. plaintiff, light most favorable hospital bill that had been the amount of a negative. in the resolve We jury during trial but some- submitted to the appellants also find that all other claims the initial how had not been included appeal on lack merit. there- have raised damage calculation. fore affirm the decision of the district court (1) Super appealed, arguing Hobart and granting judgment damages and for the duty there was no that as a matter of plaintiff. (2) warn, and that even if there had been warn, duty presented the evidence was not BACKGROUND sufficient to allow the failure-to-warn claim to (3) facts of this case are set out in Liri jury. argued further reach I, I and in Liriano II. See Liriano ano again holding erred in district court II, 125-26; Liriano at comparative 132 F.3d at N.Y.2d retrial on the issue of Liriano’s retrying also Hobart’s and Su- 700 N.E.2d at N.Y.S.2d at fault without other, per’s shares of fault relative to each repeat those that are neces- 766. We * Circuit, sitting designation. Cudahy, Judge Honorable Richard D. of the Seventh United States Court (4) that the district court s addition of was the owner of a house on whose property hospital damage bill to its calculation 599, 49 there was a coal hole. See id. at N.E. impermissible ques- additur. We certified at 1010. The hole abutted the street in front (1) (2) house, tions to the New York of of Court and casual observers would I, Appeals. way See Liriano 132 F.3d at 132. have no of knowing that the area around (1) That Court answered in Liri- the hole part was not public thorough favor, saying ano’s that there can fare. indeed be See id. at 49 N.E. at 1011. A duty pedestrian to warn in a case like this one. See called Lorenzo fell into the coal II, 92 N.Y.2d at hole and injuries. N.E.2d at sued for her See id. Writing majority 677 N.Y.S.2d at 770. The Court of of the Supreme Judi however, Appeals, Massachusetts, declined to cial ques- answer Court of Oliver Wendell (2). Holmes, Jr., tion See id. held for the defendant. He that, noted accident, at the time of the there (2), (4). (3), questions now resolve and heap had been a of coal on the street next to hole, the coal argued and he pile that such a DISCUSSION provided sufficient warning passers-by Sufficiency A. of the Evidence they that presence were in the open of an arguments challenging Hobart makes two heap hole. “A of coal on a sidewalk in sufficiency of the evidence. The first indication, Boston is an according to common concerns the obviousness of the danger that experience, very possibly may that there be a faced, impugns and second 601, coal hole to it.” receive Id. at 49 N.E. at relationship causal between negli- Hobart’s 1011. And that was that. gence injury. and Liriano’s Each of these true, It was acknowledged, Holmes that arguments implicates long issues debated in men, “blind foreigners and unused to our of torts. respect law With to the assert- ways, right streets,” have a to walk in the id. clarity danger, question ed of the is when 600, 1011, at 49 N.E. at and that people such is so obvious that a court can might not warning benefit from the piles that determine, as a matter of that no addi- provided sighted coal Bostonians. But required. tional is respect With Holmes wrote that coal-hole eases were sim- causation, jury may the issue is whether a common, ple, likely and to be repeated, oft infer that particular negligence a defendant’s and he believed it would be better to estab- plaintiffs was the cause-in-fact of a actual lish clear rule than to fact-specific invite injury general from the fact negligence that inquiries every in simple such case. “In like the injuries defendant’s tends to cause sort,” cases explained, of this he “courts have plaintiffs. like the question The obviousness what, felt every able to determine in subject important was the of an but now complex, however defendants are bound at generally rejected opinion by Justice peril their to know.” Id. the facts so With Holmes, then on the Supreme Massachusetts limited, uncomplicated this was an in case Court;1 Judicial the causation could, which the defendant as a matter of answered in a opinion celebrated of Judge law, rely plaintiffs responsibility Cardozo, then on the New York Court of know what danger she faced. Appeals.2 We examine each in turn. disagreed. Justice Knowlton See id. at (1) Obviousness 601-04, (Knowlton, J., 49 N.E. at 1011-13 years ago, More than a hundred dissenting). opinion His delved farther into Boston profited woman named Maria particular Wirth circumstances than did argument from an about opinion obviousness as a Holmes’s majority. for the In so very matter doing, of law that is similar to the one he showed that Lorenzo’s failure to Wirth, urges today. Lorenzo appreciate See v. peril might her have been fore- 596, Mass. 49 N.E. 1010 Wirth seen hence Wirth and that Wirth’s failure Wirth, Herzog, 1. See v. 170 Mass. 49 N.E. 2. See Martin Lorenzo v. N.Y. 126 N.E. 1010(1898). 814(1920). dangers might the relevant negligence. He situations where might constitute to warn obvious, the cases especially when seem noted, the accident oc- example, See, particularized on facts. turn perhaps when Lorenzo nightfall, curred after Co., 49 e.g., Victory Paper v. Stock Havas see, heap of coal recognize, the or could not 1136, 1139-40, N.Y.2d 402 N.E.2d 603, 49 at id. at N.E. it was. See for what (1980) (stating 426 N.Y.S.2d throng persons” on “a There was 1012. negligence “particularly appropri- is an issue street, it would have been such jury” ate to leave ... because very daylight to see far even difficult “idiosyncratic nature of most tort cases” and walking. See id. at one was ahead of where generally appro- because “reasonableness” is plaintiff at 1012. And 49 N.E. resolution); Long v. priate for Cabri fact, was, foreigner unused to Boston’s R.R. 306 N.Y. 118 N.E.2d Island Spain, from ways. just come “[S]he (1954) (holding of cross- put through into a cellar seen coal had never as to ing railroad tracks is so obvious 603, 49 N.E. at 1012. In a coal hole.” Id. at prevent contributory negligence sum, “simple” not the one that the case was reaching jury).3 Stagl See also it out to be. Holmes had made What Airlines, Inc., Delta more, the facts he recited was either none of Cir.1995) (noting the demise of the Holmes or unforeseeable “What unusual Wirth. cases); Fleming position collecting required complex under of conduct is kind James, Jr., Hazard, Jr., Geoffrey & C. John conditions, the usual standard of due to reach 7.21, Leubsdorf, § Civil Procedure at 371 care, ordinary persons namely, care of of ed.1992) (4th (stating of that the decline question prudence, is a of fact .... common especially pronounced has Holmes view been 604, jury.” question for a Id. at [and thus] injury); personal Harper in tort suits for & added). (emphasis 49 N.E. at 1012-13 Even James, 17.2, 8-13, § at 571-72 nn. 573-74 nn. dangers involving “obvious” like coal cases (collecting many au- 576-78 nn. 33-37 believed, holes, might not be re- Knowlton thorities). matters of law when solvable as viewed posi- But the secular decline of the Holmes the fidlness of circumstances that rendered tendency tion and the concomitant of the clear than it be the issue less would when permit New York Court of issues posed in the abstract. go fully not of obviousness to do majority Holmes commanded the of the all, dispose question of the before After us. 1898, Court in Supreme Judicial Knowl- cautioned, might as Holmes himself position prevailed has in the court of ton’s general trends are far from conclusive in “ history. legal ‘[T]he so-called Holmes York, concrete cases. Lochner v. New Cf. ought of conduct in- view—that standards 45, 75, 539, 198 U.S. 25 S.Ct. 49 L.Ed. 937 creasingly fixed court for to be (1905) (Holmes, J., dissenting). And it is not certainty largely reject- been sake —has surprising that there have been situations in tendency away ed.... has been from York which New state courts have deemed enlarging fixed standards and towards dangers to be clear that so warn ” jury.’ sphere Harper, of the Fowler V. were, law, ings necessary. as a matter of not James, Jr., Fleming Gray, & Oscar S. The See, e.g., George Meyer Mfg., Dickerson v. J. 15.3, (2d § at n. Law Torts 16 970, 1001, 971, 248 A.D.2d 669 N.Y.S.2d 1002 James) ed.1986) (hereinafter Harper (quot- & (4th 1998) Dep’t (holding there is no that ing Nuckoles v. F.W. Woolworth 372 duty danger closely warn examin Cir.1967)). (4th 286, F.2d 289 ing workings the mechanical of a machine The courts of New York have several times operating); Pigliavento the machine while approach 840, 842, Tyler endorsed Knowlton’s and ruled that Equip. Corp., 248 A.D.2d 1998) (3d (hold 747, very wary judges taking Dep’t should be 749 juries, duty liability away ing from even in that there is no of the issue of 70, 24, expressly Holmes had held otherwise in 48 S.Ct. 72 L.Ed. 167 3. Balti Goodman, 66, more & Ohio R.R. Co. v. 275 U.S. falling unguarded platform from an have been visible to someone oper- who was truck); Mele, ating

on a concrete mixer Caris v. grinder. It argued could be that 134 A.D.2d 521 N.Y.S.2d such a combination of facts was not so unlike- 1987) duty Dep’t (holding ly that there is no say, a court should as a matter of diving to warn of the headfirst into the defendant could not have foreseen above-ground swimming pool only or, them, four them if aware of need not have deep). feet guarded against them issuing warning. argument That would strength draw were, therefore, If the before us Appeals’ the Court of direction ques- simply grinders whether meat are sufficient- tion of whether a was needed must ly dangerous known to be so that manufac- be asked in terms of the information avail- justified turers would be believing injured able to the party rather than the needed, warnings further might we injured party’s employer, II, see hand, just be in doubt. On one as a coal hole N.Y.2d at 700 N.E.2d at danger appreciated by was deemed a most N.Y.S.2d at and its added comment that Bostonians in so most New Yorkers “in cases where reasonable might minds dis- probably appreciate the danger of agree as to plaintiffs the extent of the knowl- grinders century meat Any later. addition- edge hazard, is one for warning might al superfluous. seem On the jury.” Id. hand, only years other Liriano was seventeen injury Nevertheless, old at the time of his and had it remains the fact that meat recently immigrated to the grinders United States. widely dangerous. known to be job He had been on the at position one Given that of the New York given week. He had never been instructions courts on specific question before us is grinder, obvious, about how to use the meat and he anything but well be of grinder only had used the meat two or three two minds as to whether a failure to warn And, noted, Judge times. Seheindlin grinders the that meat dangerous are would be injured mechanism that enough would not to raise a issue.4 4. Several state decisions in New York have a strictly law manufacturer could be held liable danger touched on the injuries of by guardless whether grinders for caused meat grinders pose that meat law, is obvious as a matter of safety guard and hence that the lack of a is a emerges but no clear doctrine from design them. defect under New York law. Under the Appellate One Division test, has stated that “[t]he expectation danger consumer an obvious inserting hazards open of one's hand into an defective, product does not amake because no grinder meat operating while the machine is implied warranty is breached. See QVC Castro v. Co., patent.” Mfg. v. Biro Network, Inc., Hernandez 114, (2d Cir. 1998). Dep’t That state- 1998) (discussing the various New York tests for ment, however, Moreover, was dicta. it defects). product One could therefore conclude primary holding dicta in a case whose has been danger by posed grinders lacking that the meat squarely overruled: held that a sub- Hernandez safety guards is not deemed obvious as matter stantial modification defense would bar an action however, reluctant, of law in New York. We are warn, id., based on failure to see and that is the reasoning represents to claim that this the think- very proposition rejected by the Court of ing Appeals. of the may imply Court of Garcia Accordingly, though in Liriano II. the statement result, directly any this but it did not address danger grinders that the of meat is Hernandez question beyond requirements that of the for suggestive, dispositive. obvious is it is not summary judgment in the case before it. As a result, imprudent we many think it to read so Appeals' The Court of decision in Garcia v. cursory inferences Co., into Garcia's statement. Like Mfg. Biro 63 N.Y.2d 469 N.E.2d Hernandez, merely (1984), suggestive; Garcia is opposite 480 N.Y.S.2d way. cuts the contradictory suggestions, faced with these imply danger It operat- can be read to of any cannot prediction make ing grinders guards confident as to what safety meat without is not it, too, highest might New York’s obvious as a court hold. We be- matter of law. But wisest, therefore, say lieve it summary judgment conclusive. denied that the law on Garcia defendant-manufacturer, point letting is not settled. a strict liability grinder injuries go differently. claim for meat Hobart sees the matter For the for- ward, proposition because adequately clearly the defendant had not that New York considers obvious, grinder danger demonstrated that the meat had a it cites Cramer Scale v. Toledo guard follows, (4th when it was manufactured. Dep’t See 158 A.D.2d id. It 551 N.Y.S.2d 718 1990). might argue, one that under New York In that of a meat manufacturer haz- is flatter and less is another road that way be to state the issue that would

But to the road believes of ardous. A driver who complex functions misunderstand area to be distinguished through torts schol- the mountainous warnings. As two out, might well way more her destination warning can do to reach pointed ars have despite steep can It on that road exhort its audience to be careful. choose to drive than herself to people grades, activities the warned a driver who knows also affect what but not, though A. might James even engage choose to in. See an alternative Jr., Twerski, Henderson, by understanding posed Aaron D. Doc- of the risks her Liability: The Collapse grade exactly trinal in Products the same as those steep is Warn, Accordingly, 65 N.Y.U. a certain level Empty Shell Failure to the first driver. grade And the func- of a road L.Rev. where as to the of obviousness warning to assist the reader the reason for might, principle, tion of a is eliminate choices, warning variety. can making the first But no posting sign value road, making patently steep lie as much in known the existence the sec- matter how communicating the fact alternatives as in have a sign might kind of still beneficial ond result, dangerous. duty sign It particular post that a choice is effect. As a duty may necessar- variety persist follows that the to warn is not even when the second ily merely sign is clear. obviated because a the road is obvious and a not be warranted. type of the first would concrete, convey be more can

To messages. states types at least two One meat, like grinds One who one who drives activity place, object, or particular that a road, from steep on a can benefit people dangerous. explains Another activity dangerous being told that his danger posed risk the such a need not way. being of a safer As we have told object, activity achieve place, or in order to said, the risk argue one can about whether they purpose have taken which grinding meat is obvi involved in Thus, says sign that highway that risk. person fail to responsible ous that a would “Danger Steep says sign Grade” less than — risk, believing reasonably that it of that Sug says “Steep ge Grade Ahead—Follow convey helpful information. But if no Dangerous Areas.” Detour to Avoid sted the risk it is also the case — as it is — that feasibly grinders can be re responsible posed If the or meat hills mountains visible, safety guard, have a plainly attaching a steep grade are the first duced attaching question. Given that sign merely person states what a reasonable different feasible, guards reasonable care re having without to be warned. is does know that sign they quire that meat workers be informed The second tells drivers what they accept using the risks of un- might not have that there need not otherwise known: theories, grinder parents. sued It stated that there is "no necessi had been on several in- tim's warn, ty already through cluding eight-year-old to a failure to after an customer aware— knowledge learning specific boy severely injured grinder. or a his hand in the See common — of hazard," Cramer, A.D.2d at Appellate id. at 551 N.Y.S.2d at 719. added), (emphasis upheld grant summary judgment at and that it Division a of [the "clear that the victim’s favor of the manufacturer on the failure-to-wam the record fully dangers,” parents] id. claim. at at 719. But aware of See id. 551 N.Y.S.2d obvious; added). Contrary (emphasis to Hobart’s conten Cramer did not hold that the tion, then, grind Appellate case does not hold that meat Division decided the Cramer causation, obviously dangerous law. ers are as matter of of not that of obviousness. It holds, unremarkably, of a that the absence held that the facts of the case showed that the It warning legal warning cause of an accident absence of a was not a cause of the victim, being only eight record demonstrates accident and that when the uncontroverted old, everything years plaintiff already category that the knew was not in a foreseeable Indeed, warning conveyed. one plaintiffs. would have See id. at 551 N.Y.S.2d at argue by resolving the issue on the 719-20. It did discuss could that therefore whether showed about the vic plaintiff Palsgraf basis of what the record needed be warned. Cf. knowledge, parents' than Long actual rather Island R. 248 N.Y. 162 N.E. 99 tim’s holding they as a must have known matter that law, ques suggests that the relevant also addressed the of whether Cramer Cramer the vic- tion is one of fact. the manufacturer should have warned guarded grinders? ordinary ly Even if most related injury.” to his Whether or not may users a matter of law — know of the there warning, had been a says, Hobart Liri- — as using guardless risk of grinder, meat it operated ano well have the machine as does not that a follow sufficient number of he did and injuries suffered the that he suf- them will — as a matter of law — also know fered. Liriano evidence, introduced no Ho- protective guards available, notes, that that us bart suggesting either that he would ing them is a possibility, realistic and that have refused to grind meat had the machine they may guards ask such that be used. It is a warning borne or that a warning would precisely pieces these last persuaded information that not to direct its em- may reasonable duty manufacturer ployees have a to use grinder safety without the convey if the danger even of using a attachment. grinder were itself deemed obvious. argument Hobart’s about causation Consequently, the instant case does not logically follows from the notion duty that its require us to decide the difficult to warn in merely required case whether New York would consider the risk to inform guard Liriano that a was available posed by grinders meat to be obvious as a that he should not unguarded use an jury matter of law. A reasonably could find grinder. The reasoned, contention is tightly that there people exist employed who are it rests on a false premise. It assumes (a) grinders meat and who do not know that that the burden onwas Liriano to introduce it is feasible to reduce the risk with additional evidence showing that the failure (b) guards, guards such that are made avail- to warn was a injury, but-for cause of his (c) grinders, able with the grind- that even after he had shown that wrong Hobart’s ers should be used guards. with the greatly increased the likelihood harm Moreover, jury can reasonably also find that occurred. But Liriano does not bear that there are enough such people, and that that burden. aWhen negligent defendant’s them inexpensive, that wrongful act deemed precisely because it a reasonable manufacturer would inform strong has a propensity cause the type of them safety guards exist and that the injury ensued, that very tendency causal grinder is to be meant used with such is evidence enough to establish a prima facie Thus, guards. even if New York would con- case of cause-in-fact. burden then shifts sider the danger grinders of meat to be to come forward with evi defendant law, obvious as a matter of that obviousness that its negligence dence was not such but- does not substitute for the warning that a for cause. jury could, did, and indeed find that Hobart know, general matter, as a duty provide. It follows that we negligence kind of that the attributed to say, cannot as matter that Hobart the defendant exactly tends to cause the kind duty had no to warn Liriano present injury plaintiff Indeed, suffered. case. We therefore adopt decline to appel- that what the jury must have found when argument lants’ that the issue negligence of it ruled that Hobart’s failure to consti- was for the court jury and that the negligence. situations, tuted In such rather entitled, evidence, not to return a requiring plaintiff than the bring to in more verdict for Liriano. evidence to demonstrate that his case is of ordinary kind, the the presumes law normali-

(2) Causation ty requires and the defendant to adduce evi- On rebriefing following the Court of that the exception. dence is an case Accord- decision, Appeals Hobart has ingly, this, made another in a case like it is up argument why jury to the should not have bring to tending defendant in evidence to been allowed to plaintiff. find for the inference, In this the strong rebut arising from the argument, accident, Hobart raises the issue causa that the defendant’s negligence was tion. It maintains that Liriano “failed to fact a but-for plaintiffs injury. cause the present any evidence Hobart’s failure to States, See Zuchowicz United v. place the 381, (2d Cir.1998). [on was causal- machine] 388 nn.

272 matter, judges general has defendants. As a procedendi shifting of the onus

This not all issues may retrial on some but order clas- York. Its long in New been established case, the they may so even when in a and do seventy more than statement was made sic v. Under Akermanis issues are related. decid- years ago, when the Court Service, Inc., F.2d 898 Sea-Land 688 buggy a car collided with ed a case in which Cir.1982), to judge has discretion a district lights. See sundown without driving after plaintiffs com- order of the issue of retrial Herzog, v. 228 N.Y. Martin requiring the parative negligence without The N.E. driver the extent of to reconsider total fact-finder driving negligence in buggy argued that his ex- damages. id. at As we See 906-07. to be the lights not been shown without Corp., Rail plained in Crane v. Consolidated Writing for the of the accident. cause-in-fact (2d Cir.1984), Akermanis 731 F.2d 1042 Court, leg- the reasoned that Judge Cardozo jury judge that a not infer need teaches lights after driving without islature deemed merely because she given error on a issue negligent because precisely to be sundown a related issue. See id. at finds error on to cause accidents using lights tended not 1050-51. in the case. See that had occurred the sort simple fact N.E. at 815. The id. at might conclude possible judge It is that a conditions, he under those of an accident required given facts of a reex- case said, the enough support inference of two defen- amining the relative liabilities negli- causal connection between but-for of a part dants as of a retrial on See id. at particular accident. gence and plaintiffs comparative But on negligence. inference, he case, at 816. light N.E. of Aker- of this facts and noted, up it was Crane, could rebutted. But be such a is not man- manis and retrial party produce the evidence negligent court decided that dated. district supporting a rebuttal. See id. such attributed to Hobart relative shares of fault by supported “amply Judge applied to The words that Cardozo affirm that record.” decision. lights equally buggy’s to use failure “If failure to warn: applicable Hobart’s Damage Adjustment C. nothing to break connec else is shown Appellant Super argues that the dis sufficient, tion, prima facie impermissible granted trict additur court contributing to the Id. negligence result.” damage award to ac when it increased the fact approach, Under that hospital count for a bill amount and whose of but-for detailed did introduce evidence dispute. nature were not in Additur is failure to causal connection between Hobart’s judge practice which a offers defendant injury cannot bar his claim. warn and his facing a retrial and ac the choice between strong prima case arose from the His facie damage higher award than that cepting negligence linkage causal between Hobart’s remittitur, jury. it Like determined Cal and the harm that occurred. See Guido damages— judges is a use to fix tool abresi, Concerning Law Cause only by something generally that can be done Kalven, Jr., Harry Essay An Torts: actually having to the fact-finder — without (1975) (describing the con U. Chi. L.Rev. 69 hold a second trial. link”). And, prima cept of since “causal rebutted, it suffices.5 case was not facie Schiedt, Under the rule of Dimick 79 L.Ed. 603 293 U.S. 55 S.Ct. B. Partial Retrial (1935), denied the same federal courts are enjoyed by to use a retrial freedom additur that The district court ordered case, negli many judges. court In this how comparative state on the issue of Liriano’s ever, The district was no true gence but declined to do the as there additur. same figure not a and then make the two court divine proper of fault between did allocation York, ing -persuasion, opposed as the risk of non City 92 N.Y.2d Gayle 5. See also New (1998) plain- production, the tiff). remains 680 N.Y.S.2d 900 burden N.E.2d conclusion, (reaching analogous suggest- choose between an increased resulting defendants from his placing somehow his hand damage simply and a new trial. It into spout award meat-grinder Hobart’s from adjusted jury award to account safety guard for which the had been removed manifestly long discrete item that should have after Hobart sold product. Never- theless, part damage been calculations and as in the absence of a definitive Court dispute. to whose amount there was no of Appeals answer to our question, second jury already we, liability, court, When a has found diversity fed as a must make our best may adjustments eral courts make such prediction with as to how New York courts would See, running e.g., out afoul of Dimick. Unit answer that had this case been tried Equal Employment ed States Opportunity in a state court. I am in considerable doubt Massey Yardley Chrysler Comm’n v. Plym prediction be, to what that should but for outh, Inc., (11th 117 F.3d Cir. reasons similar to those set forth 1997); Decato v. majority, Travelers Ins. agree I that the New York Court of (1st 1967). 796, 798 Cir. Appeals likely permit most liability issue in this case to be by jury, decided The district court did err. affirm I therefore concur. its respects. decision in all Like the majority, I see no need to decide NEWMAN, JON 0. Circuit Judge, how this ease would have been resolved had concurring: meat-grinder manufactured its with- safety guard out a diversity appeal plate circular When was first above before —the us, spout with large holes enough pieces unsure about how of meat but enough small prevent case should be decided under inser- New York Instead, tion of a law that hand. we asked the New York the issue for us Court of whether a New York Appeals permit court would questions. answer two The first jury liability to consider was whether a failure to warn of designs manufacturer that the danger using product meat-grinder reasonably in a after a safe manner can safety guard, installed, originally negligent nonetheless be held for failure has been removed. Some think product’s danger about a it should make that results no safety guard difference whether a product a modification of the after its originally long installed so sale. The York as the machine Appeals New Court of an- the user guard. confronts lacks such swered that such After liability failure-to-warn can all, the obviousness of placing exist. In order to understand how New one’s hand apply unguarded spout York would into the its tort law in this of a rather context, meat-grinder unusual is the same person using we also for a asked the State’s a machine highest that was equipped court whether such never with a failure-to-warn guard person as for liability using is a fact issue a machine manu- for a under the guard factured with a circumstances of this was later re- Unfortunately, case. moved. But the confronting the Court of circumstances declined to answer the the user of question. vary second these two machines in two respects potentially relevant to the Appeals’ The Court of decision not to an- this case. swer our fact-specific inquiry is understanda- ble, First, since the certification process is most if the visibly second machine indi- usefully employed to resolve unsettled issues cates equipped that it once was safety with a However, many law. guard, contexts a full the user is alerted to the understanding legal of a state’s may using standard the machine without a device that the only by be seeing achieved thought how state’s manufacturer advisable en- highest apply court would hancing safety. standard to example, For if the specific facts of latch, a case. I think that guard is so was attached some form of in this and I extremely opening would have been permitted of which removal of interested to guard, see how the New York Court of and if the legend latch bore the Appeals applied here,” would have its safety guard failure-to- “lock the user of a ma- warn injury standard to the facts of guard Liriano’s chine which the had been un- danger. that encountering the When reasonably person be and removed could

latched exists, may liability knowledge disparity of by jury appreciation to have had his found a enhanced, beyond he for failure to by what a fact-finder imposed of the be by reasonably perceived simply should of the alternative? knowing what seeing open spout and question in this the critical This becomes objects placed spout. into that happens to case, on have no firm basis which and we apprecia- To extent such enhanced whatever highest York’s court predict the answer New relevant, tion the risk is it undermines injury occurring as a give to it. An claim, plaintiffs a manufacturer need since one of a rather obvious result certainly not warn of an obvious risk and by an alterna might that have been avoided more need so as to a risk that is even not do manufacturer and product tive known to a presented by machine obvious than the risk a likely product user of the has not known to a equipped guard. that never with a by the New York Court not been considered tendency guard a removed enhance appears not to have been Appeals, and in user’s of the risk is uncertain awareness directly confronted other New York however, safety guard because the is Perhaps courts. the most relevant clue originally that was installed was not secured Appeals the Court of the observation (and legend a latch there was no concern- question in response' made in its to our first attachment). Instead, ing is bolted to its might “where reasonable minds this case: meat-grinder, and the record is unclear disagree plaintiffs to the extent of the conclusion, any, as to what if a user could hazard, one knowledge of the reasonably appearance draw from the of the jury.” Corp., v. Hobart for the previous a machine as to the existence of 764, 769, N.Y.2d guard. I am not sure that N.E.2d implicated by the The second circumstance ex minds could differ as to the reasonable previous safety guard of a is the existence knowledge of employee’s tent of a store one in opinion discussed the Court’s —the open spout hand in the placing hazard of his availability option insisting upon a likely meat-grinder, but I think it a guard, facing machine that has a rather than the Court of would rule that reason using the choice between a machine with closely related able minds differ guard using a and not that lacks machine concerning the extent the em guard. opinion The Court’s the ex- offers alternative, e., knowledge of a safer i. ployee’s ample steep of a road marked in one instance avoiding use of a machine from which a sign “Danger Steep

with a that warns — safety guard request removed had been and Grade” in another instance with a more ing guard place. a machine with the For sign indicating option informative of an reason, absence of the clear steep grade. alternate route that avoids the requested Ap from the Court of answer we example precisely analogous proper peals, agree I that Liriano’s case was gives our case because the record no indica- ly for its decision. submitted to tion that an alternate machine with Those One final comment is warranted. guard readily was as available as an alternate every who believe that decision in human Moreover, driving option route. of a one, logically affairs is a rational influenced driver to choose indicated alternate driv- by the incentives and disincentives that in- ing immediately route available is more real- circumstances, given here set of will istic than option supermarket em- perverse be think it that a manufacturer can ployee availability to insist on a machine the Nevertheless, liable for failure to warn about the hazard of entirely of which uncertain. meat-grinder originally equipped with a analogy usefully the Court’s a cir- indicates safety guard subsequently that has been re- cumstance common to both the Court’s ex- though liability might not exist ample moved even and our case: the alternate means of safely guard initially no such been installed. proceeding option more is an known to Surely, say, a entity relationship the devout rationalists will rule that bears dangerous countenancing seemingly and is not known to the of law such contra- condition

dictory results will create an incentive for meat-grinder not to install manufacturers GREAT NORTHERN INSURANCE safety guards in place, thereby the first ob- COMPANY and Linn Howard

taining at least escape liability chance Selby, Plaintiffs-Appellants, that, decision, today’s under ap- is deemed propriate consideration. I acknowl- MOUNT VERNON FIRE INSURANCE edge that the safety disincentive to install a COMPANY, Defendant-Appellee. exist, but, guard might many predic- as with tions made on the assumption that a disin- No. 97-7989. centive to take action will result in the action (or being United States Appeals, not taken Court that an incentive take taken), action will result in Second being the action I Circuit. it extremely

think doubtful that meat- Argued March 1998. grinder manufacturers will forgo elect Question 1,May safety Certified guards in 1998. hope avoiding failure- liability to-warn meat-grinders Question Certified by Answered guards which such have been removed. We York New Court of have been well advised the life 18, 1999. Feb. logic experience, law see Oliver Decided March 1999. Holmes, Jr., Wendell The Common Law 1 (Little, 1990)(1891), Brown & Co. and it is

often the case that life of life itself not

logic. Though rationality guides many hu- actions, guide

man it does not them all. De-

spite the arguably disincentive by created imposition liability in this manu-

facturers well elect safety to install

guards simply they because have some con- (humanitarian, economic)

cern that hands

should not be by severed their machines.

Moreover, if our correctly predicts decision

New York manufacturers of meat-grind- equipped safety

ers with guards readily can liability injuries

avoid resulting from use guard

after the has been removed

inexpensive furnishing of some reasonable

form of notice of the using hazard of guard.

machine without the Hobart has al-

ready acted in placing direction on its against

machine use if the

guard Thus, has been removed. the circum- giving

stances liability rise to Hobart’s in this unlikely again.

case to arise reasons, all of

For these I concur.

Case Details

Case Name: prod.liab.rep. (Cch) P 15,466 Luis Liriano v. Hobart Corporation, 616 Melrose Meat Corporation,s/h/a Super Associated, Third-Party

Court Name: Court of Appeals for the Second Circuit

Date Published: Mar 9, 1999

Citation: 170 F.3d 264

Docket Number: Docket 96-9641(L), 97-7449(CON)

Court Abbreviation: 2d Cir.