Robert L. Turcotte, Administrator of the Estate of Gerard P. Turcotte v. Ford Motor Company

only fol- was audited account lowing to retain counsel. decision her argument. is factual

All of the above most evidences that

At it careful a trial. Our plaintiff’s was entitled to

reading depositions the trial court were before summary judgment granted it time question conclude causes us to knowledge plaintiff’s of the al- actual

leged churning activity, factual

underpinnings defendant asserted finding upon the. court- based fairly knowledge, cannot

of constructive regarded undisputed. The facts

be best,

question equivocal are clear- only

ly dispute, and can be matters development before after full

deterined

the fact-finder. here, essentially

Where, the issue it- one, the case does not lend

a factual summary judg- disposition by self summary judg-

ment. follows that It improper and the cause must

ment was trial. and remanded reversed judg- ordered that

It therefore

ment be be re- reversed the cause proceedings.

manded further

Moore, Judge, Circuit concurred and part, opinion. dissented in TURCOTTE, Administrator Robert L. Turcotte, the Estate of Gerard P. Plaintiff-Appellee, COMPANY,

FORD MOTOR Defendant- Appellant.

No. 73-1251. Appeals,

United States Court First Circuit.

Argued 3,Oct. 1973.

Decided Feb. Rehearing April

On Turnpike

car on the Massachusetts near Millbury, Massachusetts and into burst flames. Decedent in the died fire. owner the Maverick was William J. Woonsocket, Island, Sullivan of purchased who it from Menard Ford Sales, Bellingham, Inc., of South Massa- chusetts. The son driver was Sullivan’s operator Michael. The of the other ve- hicle was a citizen. Massachusetts trial, plaintiff At contended that positioning gas Ford’s tank in the 1970 Maverick in manner that the top tank’s also served as the floor of trunk constituted a defect by which caused his son’s death fire. alleged argue Plaintiff did not Instead, defect caused the he collision. that, upon collision, proper- contended a ly-designed Maverick would not have burst into flames and that his son would otherwise have survived the initial im- pact. jury case went The theory liability, of strict and a verdict was returned for in the amount $500,000.1 of judgment The trial court entered plus $61,315.- for that amount in08 interest. Ford’s motions for new trial and for alteration amendment I., Reynolds, Providence, Paul V. R. judgment This were both denied. defendant-appellant. for appeal variety is based on a of issues. Dolan, Providence, I., John P. R. for plaintiff-appellee. I. Conflict of Laws COFFIN, Judge, Before Chief Mc The issue is whether threshold Judge, MOORE,* ENTEE, Circuit correctly trial court decided that Judge. Senior Circuit wrongful and its Island’s death statute liability govern the instant law strict Judge.

MeENTEE, Circuit corporation, Ford, case. a Delaware citizen, Plaintiff, filed a Rhode Island law should contends Massachusetts diversity Applying suit the United States have controlled. the conflict seeking Island, Island, District for Rhode the forum Court of laws state, of Rhode rules alleged wrongful Elec. recover for see Klaxon v. Stentor Co. 487, 496, Mfg. a Co., death of son. The decedent was 61 S.Ct. his 313 U.S. passenger Maverick, 1020, hold manufac- in a 1970 85 1477 L.Ed. by Compa- properly in- tured defendant Ford Motor that Rhode Island law was ny, questions. when the car another voked on both was struck * Sullivan, by designa- against Circuit, sitting Michael William and Of tlie tion Second negligence. alleging settled This claim was tion. joint prior trial, a release tortfeasor by plaintiff complaint Initially, plaintiff’s in favor of the executed also advanced was warranty. $10,000. negligence for a consideration of theories of and breach of Sullivans dropped However, further discussed at release is these counts were infra. brought an ac- outset of trial. Plaintiff also

177 (1956) amended, which measures abandoned Rhode Island has damages by quasi-compensatory theory of conflict stand- delicti old loci lex ceiling recovery. laws, place ard with no See in which law 14, States, governed, favor 481 v. United F.2d the tort D’Ambra cert, (1st “interest-weighing” approach. denied, 414 19 U.S. modern 299, (1973) Stewart, 290, 1075, 592, L.Ed.2d v. 104 R.I. 94 S.Ct. Woodward cert, 923, petition “partly (finding dis A.2d Rhode Island statute missed, contrast, L. punitive”). Massachu- 393 U.S. S.Ct. Supreme wrongful statute, Court Ed.2d 371 death Mass.Gen. setts in (Supp.1973), summarized the of Rhode has Island Laws Ann. ch. punitive purely this new terests consider under it will measures five-point guideline: approach e., degree standard, solely by i. culpability rather than defendant’s (1) Predictability of results. Also, plaintiff’s time actual loss. (2) order. of interstate Maintenance recovery limited of this collision (3) judicial Simplification $50,000.4 Westext See Tiernan task. F.Supp. Transp., Inc., gov- forum’s Advancement of the (D.R.I.1969). Application Massa- ernmental interests. preclude the thus chusetts statute (5) Application of better rule judgment $500,000 entered law. plaintiff.5 Stewart, 299-300, supra Woodward v. Applying in the Rhode Island 923; Leflar, 243 A.2d see Choice-In- at terest-weighing approach to this conflict fluencing in Considerations Conflicts laws, of find the fourth factor that Law, (1966).2 41 N.Y.U.L.Rev. 267 We above, of the forum’s advancement listed separately

will consider these interests interests, strongly governmental points respect to, first, appropriate with the wrongful Island the Rhode towards wrongful second, and, death the statute appropriate in the death more statute appropriate tort law.3 interest Island’s instant case. Rhode brought seeing plaintiff, suit un citi Plaintiff this its here in that is wrongful adequately compensated der the zen, Rhode Island death is statute, wrongful of the fo- Gen.Laws R.I. 10-7-1 course of § death. While case, Massachusetts, 2. In a held later Brown v. Church of the the court in collision Holy Jesus, 322, 326-327, wrongful death statute Name of 105 R.I. Island’s that Rhode damages govern but A.2d the Rhode Island of the measure would govern “factors,” negligence court listed four drawn from the law would Massachusetts Id., (Second) Conflicts, R.I. at Restatement which it defendants’ conduct. weighing would in also consider the five in- 923-924. 243 A.2d at terests in set forth Woodward: recovery the under limit on 4. The current (a) place injury occurred, the where the wrongful is death statute Massachusetts (b) place causing the where the conduct $200,000. § 2 Ann. ch. Mass.Gen.Laws occurred, injury the (Supp.1973). (c) domicile, residence, nationality, the place incorporation place of busi- possible 5. court considered The trial also parties, ness of the wrongful applicability Michigan death of the (d) place relationship, where (Supp. statute, 27A.2922 § Mich.Stat.Ann. any, parties between is centered. 600.2922, because Michi- § M.C.L.A. (Second) See Restatement of Conflict place gan manufacture. of the car’s 145(2) (1971). Laws too will refer to However, difference there no substantive relevant, considering these where in factors Michigan Rhode Island between general the five interests of the Is- Rhode compensatory apply mea- Both statutes. approach. land ceilings recov- no sures of Woodward, ery. Hence, Supreme two statutes those of Rhode between Court analyses separate Le- laws. See Island true conflict of made it clear that there is no Alia, Conflicts,” necessary. flar, B. these Bt issues are On the facts True “False ease, involving also an U.L.Rev. automobile protecting Similarly, in rum some interest in has view the fact that situation, any allegedly causing in injury, citizens such interest conduct particularly compelling in a tort case in- Maverick, occurred outside volving injury personal Massachusetts, punitive aspect substantial provide wrongful there death because failure adequate compensation the Massachusetts death stat- marginal could mean that ute is of relevance here. On plaintiffs hand, may will later burdens become other Massachusetts protecting on the state. Tiernan v. an See Westext interest in busi- noncitizen Transp., Inc., supra nesses, in- Ford, In the such as from unlimited case, wrongful stant Rhode this Island interest death as a means of plainly recovery encouraging be defeated if these businesses continue $50,000 operating state, were limited Mas- providing under in the local jury jobs sachusetts statute. The found ac- and tax revenues. note in We first $500,000. response tual loss interest the exis- wrongful tence of unlimited death liabil- Moreover, consideration of ity in Rhode Island has not deterred maintaining Rhode Island’s in interest continuing supply Ford from automo- interstate order con does indicate dealerships bile that state. But trary application of the Massachusetts any event, we find that the Massachu- heading, statute. Under this Rhode Is encouraging setts interest noncitizen inquire land another courts whether enterprises business in- is weak policy state’s law would be “offend compared stant case when the Rhode by application ed” of Rhode Island law. protecting Island interest its citizens Holy See Brown Church of the Name uncompensated harm. Jesus, supra, R.I. 252 A. remaining 2d at 180. Ford is not a Massachusetts three inter corporation. Therefore, Massachusetts ests considered under Rhode Island approach does not have as immediate an interest conflicts are either inconclu making $50,000 recovery point available the sive or to Rhode statute.6 Island’s Therefore, limitation its statute it would if we hold that Island’s wrongful gov- properly defendant were a Massachusetts citizen. death statute interest, predictability figures, 6. The first listed of insurance rate we note that in- most results, policy refers to the commendable of terstate businesses calculate insurance rates enabling parties they assumption to know at the time that there will be no produce state-imposed ceilings wrongful enter a transaction that it will on death re- consequences coveries, contrary same set of socio-economic re- to Massachusetts law. gardless disputes Leflar, Speiser, Recovery Wrongful of where occur. See S. for supra 282-83; 13:6, (1966) ; Leflar, at Brown v. Church Death pra at 730 su- cf. cf. Holy Jesus, supra Name of at at 311. case, applied judi simplification A.2d at 180. to the instant The interests of As of the compels inquire application this interest us to whether cial task and rule better expectation point Ford had a when it reasonable of law also to Rhode Island’s statute. probably adept to a transferred dealership the Maverick Massachusetts Rhode Island courts more wrongful computing damages that a death action aris- under their own ’ ing alleged compensatory in from defects the car would be standard than under Massa brought punitive under the Massachusetts statute chusetts’ standard and it is clear planned Supreme ac- whether Ford the transaction Court of Rhode Island would cordingly. compensatory We cannot find that such reason- find the measure with no ceil expectation planning ing able or existed. Under to be the better rule of law. Rosen Cf. approach Warren, (2d either the old lex loci delicti thal v. 475 F.2d cert, interest-weigh- denied, conflicts law or modern 414 U.S. 94 S.Ct. ing approach, likely (1973) ; as that it was at least 38 L.Ed.2d Tiernan design arising Transp., Inc., supra a sold actions from the car Westext at 1264 of 295 brought F.Supp.; Speiser, supra (“The to a Rhode Island resident would S. § 7:4 under Rhode Island’s statute as under Mas- most remarkable facet continued exis statute, though wrongful damage such car sachusetts’ even tence of death limitations purchased Moreover, complete logical support in Massachusetts. is absence of provided although them.”) its Ford has not us with Application erick. law in- Massachusetts in the measure erned the plainly Island defeat Rhode would this case. stant interest. appro regard choice of With application time, At the same law, liability first priate we note strict appear to would not Rhode Island law a unclear whether it that is somewhat policy. law offend Massachusetts exists between fact of laws conflict again a that not Massa- note Ford is Mas Island. and Rhode Massachusetts corporation. Thus, even if we chusetts apparently never courts sachusetts expressly adopted, failure to Massachusetts’ assume that adopt rejected, doc liability represents products strict liability. products In trine of strict protect state’s man- an intention that trial lay, relevant case absence of liability, Ford ufacturers from excessive parties proceeded on court and the protected class. Even outside of the is liability arguendo assumption strict that a interest if we assume Massachusetts permissible re basis not be a encouraging noncitizen manufacturers contrast, covery in Massachusetts.7 products state, in the to sell their adopted expressly has Rhode Island prod- when the interest insubstantial Narragansett Elec. doctrine. Ritter v. citi- uct here was sold a Rhode Island 176, 187, Co., A.2d 109 R.I. Rhode citizen al- zen and another legedly Island Moreover, in the trial court died a result of a defect it. that, presented held instant case undeniable interest Massachusetts’ Supreme issue, of Rhode Court high- driving controlling behavior interpret doctrine Island would that ways caused the factor which Su- —a authorizing liability in the defects where apply preme Island to Court Rhode design a do not cause automobile of an negligence law Mas- Massachusetts inju rather exacerbate the collision but Woodward collision sachusetts resulting court ries therefrom. case, supra, 300-301, A. 104 R.I. at be of laws found a true conflict thus significant 2d 923-924—-is also not Rhode Island tween Massachusetts plaintiff here. consideration Where liability re the court strict complains oc- of defective Island law. solved in favor Michigan car sold to a curred on a decision, Reviewing this second conflicts resident, the fact that the Rhode Island arguendo we, too, Mas assume will alleged tragic had results on defect recognize strict sachusetts would something highway Massachusetts any re products To form. fortuity. collision causes again conflict, apply Rhode solve the In- are not at issue. in Massachusetts interest-weighing approach. Island’s alleges once colli- stead the. cause, occurred, sion whatever significant Clearly Rhode Island has car defect existed in Sullivan’s which by governmental advance interest to Massachu- caused the death his son. liability applying own law strict its significant adju- interest in has no setts rather than the of Massachusetts law dicating a of that nature. claim theory. recovery on which denies that remaining protection interests consid- Rhode Island’s interest The three products. Island conflicts of its from defective under Rhode citizens ered approach son, application plaintiff, his citizens include also indicate Such liability Sullivan, purchaser of Mav- law.8 We this state’s strict Predictability appear to does not means foreclosed results 7. The was no court important holding an here. Ford could that be interest from Massachusetts would reasonably plan adopt liability if that its liabil- in tort foresee or of strict not the doctrine ity presented opportunity. Massa- in a car to a Ores for defects delivered with Cf. 449, dealership Co., F.Supp. Is- to Rhode and sold man v. 321 chusetts G. D. Searle & governed by (D.R.I.1971) (accurately predicting, Massa- land resident would be Ritter, prior rather than Rhode Island law. Island would chusetts law that Rhode to tort). liability adopt or inter- in lex loci delicti either of strict Under the doctrine preme therefore hold that the trial court cor- Court of Rhode Island there in- rectly apply corporated chose to Rhode Island law into state law the doctrine of liability.9 products liability expressed strict strict (Second) Restatement of Torts 402A Liability II. Strict (1965).11 Id., 109 R.I. A.2d generally Merlino, at 261. See Products We now review the trial court’s Liability Law, in the 22 R. —Revolution holding that under Rhode Island law (1973). I. B.J. 9 automobile manufacturers can be held strictly design liable for defects The Ritter court construed this rule highway which do not cause collisions contemplating, “first, that there must injuries but instead exacerbate there design be a defect or manufacture precise question from. This has never product which makes the unsafe its for been considered the Rhode Island use, second, liability intended that courts.10 not does attach unless the was begin using analysis product our with the way lead- in a it ing Rhode Island case of v. Nar- Ritter was intended to be used when he in- was ragansett Co., supra. jured by Elec. Su- it.” A.2d R.I. est-weighing approach, design Island, Island law and thus conflict with Rhode likely govern. interest-weighing was at least as approach to Ford has the Rhode Island provided specific clearly not points applica the court with its in- to conflicts towards rates, might liability surance have indicated tion of Rhode Island strict law planned that it note that otherwise. We where the car was sold to a Rhode Island generally products liability Michigan’s single insurance is com- citizen. contact here is puted state-by-state. basis, holding on a designed national that car there. A McCreight, Impact See design Actuarial that the law of the state of must Liability Upon govern Products Michigan’s Insurance Choice of would mean that courts Analysis, Law single 88 Ins.L.J. 342-43 effect deemed source (1972). design in of law on defective automobile Simplification judicial might country. task Hardman v. Helene Curtis Cf. point application Inc., seem to Indus., Ill.App.2d 42, 59, of Massachu 198 N.E.2d obviously simpler setts law because it is apply denying any recovery a rule on strict liability applies 10. It is clear that strict un- liability grounds grapple in than with the der Rhode Island law when a defect is al- tricacies of that Is doctrine. But Rhode leged to have an caused automobile collision. courts, having adopted liability, land’s strict Kelly Co., See v. Ford A.2d Motor dealing have committed themselves to (R.I.1972). 608-609 interpretation in difficult cases. Cf. Holy Brown sus, supra, Church of the Name of Je Liability “Special of Seller of Product 329-330, 105 R.I. at 252 A.2d at Physical Harm for to User (rejecting proposition simplifi 180-181 that or Consumer resulting application cation of task any product One who sells a defec- immunity Massachusetts charitable doctrine unreasonably dangerous tive condition outcome). regard warrants With property user or consumer or to his is sub- law, the better rule of the Ritter case su ject thereby liability physical harm pra, approval makes clear Rhode Island’s consumer, caused to the ultimate user or liability. the doctrine of strict And we hold property, to his today, infra, Rhode Island courts (a) engaged the seller the business encompass would extend that doctrine to selling product, such a strict defects. (b) expected it is does reach Island, Michigan’s 9. Like Rhode courts have user or consumer without substantial adopted liability but change strict doctrine of in in the condition which it sold. reject yet accept (1) ap- have not had or occasion in rule stated Subsection encompass plies lia although extension of that doctrine to bility design (a) possible for defective which exacerbates the seller has exercised all injury resulting collisions. But see preparation in care product, and sale of his Corp., Larsen v. 391 F.2d General Motors (8th Michigan 1968) (construing (b) bought 495 Cir. the user or consumer has not law). However, product any even if we assume that from or entered into con- reject Michigan liability for defective tractual the seller.” relation with

181 ing impacts. added); (emphasis see No rational basis at 262 Greenman exists 57, limiting recovery Prods., Inc., 59 situations v. Yuba Power Cal.2d design 897, Cal.Rptr. 697, 701, in manu- P.2d where the defect 377 27 (1963). factor of facture was the causative 901 accident, the accident and argues Ford since no automobile resulting injury, usually caused would ration- manufacturer or consumer pas- ‘second of the so-called senger collision’ ally in intend his car be involved part interior of the with the highway collision, the defect automobile, all are foreseeable.” alleged outside in the instant case falls scope liability doctrine of the strict Id.; see 80 Harv.L.Rev. 689 pinpoints This as construed Ritter. negli- Although Larsen was a us, namely, before crucial issue gence ease, carried other courts have the tort whether under Rhode Island law rejection Evans its the narrow over encompasses concept use” of “intended lia- view “intended use” strict consequences of normal auto- foreseeable g., bility See, Bremier Volks- area. v. e. use, collisions, even mobile such wagen America, Inc., F.Supp. 340 though consequences are not literal- such Maryland (construing (D.D.C.1972) 949 ly intended or desired. law); Corp., Dyson v. Motors General (con- (E.D.Pa.1969) F.Supp. Among jurisdictions 1064 there has other struing Pennsylvania law). developed split authority on this conflicting symbolized by question, agree with the trial court that Corp., cases of Evans v. General Motors adopt the Larsen in- Rhode Island would cert, (7th de- F.2d 822 Cir. terpretation “intended use” nied, L.Ed. 385 U.S. 87 S.Ct. prod- construing strict the doctrine v. Mo- 2d and Larsen General Evans-type liability. in- A literal ucts (8th 1968). Corp., tors 391 F.2d 495 Cir. terpretation use” fails to of “intended Evans, held that the Seventh Circuit recognize phrase em- was first that the pur- intended under Indiana law “[t]he early ployed products-liability cases pose include of an automobile does not merely Greenman, supra, to il- such as participation in collisions with other its objects, despite central doctrine the broader lustrate abili- the manufacturer’s phrase foreseeability. ty possibility that such to foresee the respon- preclude manufacturer meant sibility may F.2d at 825. collisions occur.” 359 ancillary conse- probable for the dismissal The court therefore affirmed quences E. I. Hall v. of normal use. See negligence, alleging complaint of a Co., 345 F. Pont De Nemours & Du implied warranty strict breach of (E.D.N.Y.1972). Supp. 353, In- analogous in a fact situation stead, ex- “must also be a manufacturer Accord, Shumard v. the case at bar. pected anticipate environment F.Supp. Corp., 270 Motors General prod- for the use his which is normal law); (S.D.Ohio 1967) (construing Ohio anticipate he must ... uct Chrysler F.Supp. Corp., 264 v. Willis reasonably risks foreseeable (construing (S.D.Tex.1967) Texas product an environ- use his law); Chrysler Corp., 229 So. Walton v. Boyle-Midway, Inc., Spruill ment.” v. (Miss.1969). 2d 568 1962); (4th F.2d 83-84 cf. Eighth However, in Lar- Circuit Riegel Corp., 484 F. Raymond Textile construing rejected sen, Michigan law, (manufacturer 1973) (1st Cir. 2d 1025 position narrow Evans as “much too nightgown strictly where liable held and unrealistic.” 391 F.2d two seconds into flames within burst range). grill of electric hot contact with not made for automobiles are “While recognized progeny colliding Larsen and purpose oth- with each in which cars frequent the “environment” er, contin- and inevitable high- crowded, used, our nation's gency use will of normal automobile speed highways, involvement injury-produc- makes result in collisions Olenik, 295, 305, foreseeable to manufacturers 128 Vt. A.2d collisions adopted consequence of normal an inevitable which the as was duty imposes upon Supreme a in Padu- use and thus them Court Rhode Island against aggravated guard Homes, Inc., needlessly la v. A.2d to J. J. Deb-Cin (R.I.1973): injuries. 529, 531 Indeed, upon “The law should cur- the Ritter case itself contains be based concepts right “intended rent and similar construction of the what a concept, although just judiciary an alert use” not in automo- and the should be four-year- never-ending keeping case, In to need bile context. that a the for girl opened principles drop-type old the oven door common law abreast its range upon it of an electric and stood so with the times. Ancient distinctions top society pot today’s that she could see into which make no sense range. upon weight of the Her the and tend to discredit the law should range opened readily rejected. oven door the to caused be . . .” upon topple over her her sister. and suggested adop Ford has that against The action the manufacturer concept Larsen tion of the of “intended range alleged distributor of and the the use” in automobile will cases result range’s tip capacity over that to having produce expensive armored weights equal the child when to that of to avoid defec tanks so as for placed were on the oven constituted door design. tive But this need not be design a defect defendants First, plaintiff prove result. must still negligence liable on and were theories of particular design that car’s consti liability. Obviously, strict oven door an tuted a “defective condition unreasona stepping- intended is not serve as dangerous” bly user, to the that opinion re- stool children. Yet in its proxi such defect was the actual and manding the case for trial on both theo- injuries beyond mate cause those Supreme ries, the Court of Island by the caused collision Ford itself. rejected that the defendants’ contention sympathetic juries that shirk claims will use of the child’s oven door constituted responsibilities their cases serious “abnormal” or “unintended” use as to an injury impose liability manu liability. there could be no “[The matter facturer no design what the state of judge] jury trial concluded that ferocity particular or the of the could find from evidence that [the [the] collision. But our review of cases knew that a result manufacturer] juries date that con shows continue to design danger range cynical. example, found the For both of the oven use shelf was door Co., Marshall v. Ford Motor F.2d jury could have foreseeable that the (10th (Oklahoma law), 1971) Cir. negligent found that it had in fail- been Gray Corp., v. General Motors give ing warning notice or (8th 1970) (Minnesota F.2d 110 a condition would result from such a use law), juries given where Lar cases agree.” of the oven R.I. door. sew-type instructions on use” “intended 283 A.2d at 260. returned de nevertheless verdicts for holding they “in- fendant view the Ritter car manufacturers because use,” particular found tended it is see how cars not de difficult were fectively designed. reject Moreover, the Rhode Island arbi courts could an trary jury approach similar Larsen “intended verdict on the cau defect or rejected by can use” in the We are sation appellate automobile context. issues trial language following supported by also mindful of as not courts Rothberg decision, from Vermont evidence.12 reject, however, gas design 12. We Ford’s tank constituted a con- contention “defective jury unreasonably dangerous” user, verdict in the instant case dition taking supported expert wit- evidence. An into account the safer tank comparable ness who examined that the cars time the car testified manufactured at

183 Second, of as the case trial on the the defense remand for new damages prod only. sumption issue of risk remains viable liability cases. Restatement ucts See wrongful The death Rhode Island stat- 402A, n (Second) of Comment Torts § ute is not a statute on true survivor’s design (1965). Thus, defect where a Campbell’sAct, 9 the of Lord & order apparent to the automo known made Viet., ch. 93 or the Federal Em- alleging purchaser, such bile an action Liability Act, ployers’ et 51§ U.S.C. injury lie. the of cannot defect as cause seq. (1970). words, In the Rhode other App.2d Short, Burkard v. Ohio damages Cf. Island by not measure statute does N.E.2d 636-637 surviving plaintiff the the amount obviously (rejecting liability for expect could to from dece- have received unpadded dashboard). man Automobile Instead, dent the Rhode had he lived. might them ufacturers often relieve estate-type statute, Island is an statute design liability, when at least of selves of of the death in terms which thinks fully they purchaser plaintiff, the if rather economic loss to the decedent purchaser of informed such advance type this than to his survivors. Under safety and demerits the relative merits earnings statute, the the lifetime of of compared other of cars to their expenses projected, decedent are lifetime models.13 deducted, estimated and and the resulting present sum is value of the Damages III. plaintiff. D’Ambra awarded See States, supra F. v. at 16 of 481 United holdings two Our in the first sections comput- estate-type method of The opinion jury 2d. verdict of the this affirm ing initially damages was established part of We Ford. Narragansett concerning Rhode Island McCabe the now consider issues Lighting damages. Co., 59 A. Elec. R.I. $500,000 jury’s award of (1904). apparent In re- compensation Ford contends court, sponse wrongful by to a Wil- decision provision of Rhode Island States, liams v. United 435 F.2d 804 statute, 10- death R.I. Gen.Laws § legisla- (1st ap- Island (Supp.1972), improperly 7-1.1 computa- estate-type ture codified the plaintiff’s expert plied by witness enacting by tion 10-7-1.1.14 damages. agree, method question § chapter by § of this danger [“Ac- scribed under 10-7-2 the Maver- fire created administrator, by expert design. etc.”] tion executor or testified further ick’s persons shall be ascer- recoverable fire Maverick’s that but tained as follows: not entered would killed decedent gross jury amount of 1. Determine was entitled of the car. The the interior earnings prospective income or accept decedent’s to these conclusions. his life expectancy, over the remainder of course, might purchaser be found Of including he therein all estimated income defect the risk of known have assumed probably have earned his own would models, all existed in other the defect also exertions, physical and mental. both meaningful choice on so that he had no per- 2. Deduct therefrom the estimated despite generally, state- matter. More expenses sonal the decedent Restatement, n in Comment ment himself, probably have incurred exclu- greatly may choose to abolish or some states dependents, any of his over sive of assumption risk of the choosing limit the defense of expectancy. life of his course situation, purchaser-seller in the thus ascer- remainder 3. Reduce casualty injury incident as a view there present date value as of the tained to its equipped profitable enterprise business determining award, In said of the award. among enterprise the costs distribute concerning shall admissible evidence according principles insur- beneficiaries including trends, limited but not economic James, Harper Law F. & F. ance. power money, purchasing projected 21.5, 1182-83 Torts § projected or de- increase inflation living.” (Supp.1972) cost of : crease R.I. 10-7-1.1 Gen.Laws “Pecuniary damages determined.— —I-Iow Pecuniary de- to the beneficiaries challenging verdict, publication upon by the size census relied Schu- concerning pack college graduates Ford raises three issues included with (1) projection postgraduate was a of dece- 10-7-1.1: education not mean does properly resulting figures income on dent’s lifetime based that the income were government higher publication they encom- much than would have oth- college including passed graduates, Schupack erwise trial, great all been. As noted graduate pro- persons those who attend also numbers with graduate (2) degrees, fessional was considera- teachers, schools? such as earn properly average person only tion of income taxes determining omitted less than the with expens- degree. decedent’s lifetime bachelor’s The Rhode Island obviously requires great es? were future inflation and in- statute deal productivity properly speculation. requires judge creases account- It jury for? joint ed to take on “the role of sooth- sayer analyst and mathematical in or- little merit. first issue has der to foretell what the future held Schupack, an At trial Mark professor economics Duke, for the deceased.” Romano v. University, testified at Brown (R.I.1973). 304 A.2d context, In this expert as an respect with for witness Schupack’s we cannot find that earnings probable lifetime averages on reliance the census for all expenses Schupack of decedent. college graduates was so inconsistent presented jury a series of cal with prospects decedent’s reasonable varying as culations based on sumptions, first, factual that their admission into evidence con- future to decedent’s as stituted an abuse of discretion career, second, education and trial Bros., court. See Krall v. Crouch prevailing future interest Ford rates. (8th 1973) 473 F.2d (per Cir. Schupack, contends it was error curiam). making assumption when the factual However, on the issue of in college that decedent been a come taxes we feel there was To error. earnings graduate, project future compute expenses, decedent’s lifetime publication on based a Bureau of Census required by statute, Rhode Island college graduates, in covered all Schupack reduced each annual income cluding postgraduate those with educa figure projected by he one-fourth. This tion. good It is clear that decedent stood a reduction was intended to encom 25% attending graduating chance pass housing, food, clothing, the costs of college. four-year good from a grades He had personal care, and medical tobacco and outstanding and an athletic beverages alcoholic attributable to the Indeed, poignant record. the most as five-person family. husband in a Schu pect en of the case is that decedent was pack pro made no further reduction in route with three friends to look over the jected earnings for federal and in state University campus Massachusetts taxes, come and Ford contends that this Amherst when the crash and fire which agree. Indeed, was error. We trial took his life occurred.15 agree, court indicated that it too would Although knowing way we have no if it were not for a decision sure, possible decedent court, it Talbert, Boston & Me. v. R.R. gone beyond college (1st would have F.2d Cir. which the postgraduate some form of education. precluded trial court felt deduction important, But more the fact that income taxes.16 expressed The record includes letters to dece- thoughts also 16. The court as fol- University’s dent from admissions of- Brown lows : coach, precedent fice and from its assistant basketball “There is no Rhode Island courts, both of which indicate that decedent was this issue. And federal in federal being sought by highly-regarded school. causes of action or where state is cit- law wrongful Talbert, However, death action state our decision wrongful case, the trial courts. difference did not control federal holding admissibility death two recoveries between the forums court’s staggering. Therefore, would be under Rhode Island income evidence under tax Erie, Bin- the doctrine state law must control. aims” of law.17 The “twin Cf. 263, ney States, Tompkins, v. United 460 F.2d of Erie U.S. R.R. (9th curiam). 1972) (per 58 S.Ct. 82 L.Ed. “discouragement shop- of forum Considering of income tax- the matter inequitable ping ad- and avoidance solely in the context of Rhode Island es v. Hanna of the laws.” ministration law, plaintiff failure of we hold that the 1136, 460, 468, Plumer, 85 380 S.Ct. U.S. present subject con- evidence on the Erie, 1142, 14 L.Ed.2d 8 Under error. The trial court itself stituted applied in a diversi- a state should be rule express noted in that the authorization § ty important an if it have so case “would of evidence of inflation 10-7-1.1 upon fortunes of one both effect the in “economic trends” resulted an other litigants it would that to enforce failure large unjustifiably verdict in- because likely plaintiff choose the be to cause a come tax evidence was excluded.18 The n. Id. at 85 S.Ct. federal court.” 468 admittedly speculative of nature income case, if Rhode at 1142. In the instant tax evidence cannot be deemed a barrier required evidence of income Island law admissibility to its under Rhode Island wrongful computing death dam- taxes in forecasting Surely of future law. the ages, yet district court in the federal is, anything, more inflation rates in di- evidence Rhode Island barred such forecasting speculative of fu- than the versity cases, plaintiff who no rational bring ture tax rates. a had the choice would ever by plaintiff ed, espoused variety approaches. crue to the exclusion of of a spiraled bite,’ position is evidence on the ‘taxation taken [Citations omitted! by multiplier. by wrongful In a case such the inflation First in a death Circuit hand, earnings Employees in which as the one the Federal [sic] action under Liability forty-three year projected for a time were Act that evidence of taxes is is signifi- readily span, apparent properly that a it Maine R. excluded. Boston and damages (1st percentage Talbert, be at- cant of must R. 286 Cir. Co. v. 360 F.2d savings ruling, support [sic]). on taxes. Before tributable In 1960 of shouldering heavy States, such of 144 the damages burden v. Court cited Stokes United imposed 1944) defend- (2d be should found 87 which F.2d Cir. justify conjectural. ant, such should be able to court are too that such deductions policy compelling a rule the basis of Cir- on the First “Because the statement of arguments. pertains not find convinc- I do such evidence cuit the nature of the support ing inadmissibility, in of the exclusion rationale I do not as the basis of its taxes; rather, I find that of evidence and Maine find that the fact that Boston argument Talbert, supra, of such ev- for the inclusion a federal R.R. Co. v. persuasive.” idence is me of while the case before cause action signifi- is based state law constitutes on Moreover, of cases neither teachings cant distinction. Under law. See involved state we relied in Talbert case, believe this First I therefore Circuit (2d States, F.2d 82 144 v. United Stokes far the lack I am bound rule that from tb law) Chicago ; (general 1944) maritime Cir. constituting a failure of evidence on taxes (8th Ry. Curl, 178 F.2d & N.W. part plaintiff, proof (FELA). 1949) evidence is inadmissible. remark, income tax factors can 18. The inflation and how- “I do feel constrained countervailing thought ever, forces of as the Rhode Is- that the context of wrongful damages. computation Laws, Wrongful death I con- am land Death York, McWeeney example v. New For con- a rule in it would that vinced (2d Cir.), R.R., part H. F.2d N.H. & cert, error on the stitute denied, U.S. S.Ct. the erosion to submit evidence of justified part by the court by L.Ed.2d 93 far the better income taxation income to allow consideration are a its refusal that economic trends rule. Given refusal to allow its simultaneous in the com- taxes under R.I.G.L. 10-7-1.1 factor savings putation damages, inflation. ac- consideration whatever earnings Moreover, by the decision duced the the recent final net a sub- amount, assuming Supreme in Ro- of Rhode Island stantial even Court the use joint-return supra, ordering Duke, to in- would seem rates. mano v. a new upon damages, expect future income trial as to consideration of sist computing past under will taxes in witnesses discuss trends pro- held that federal and state There the court income tax rates as 10-7-1.1. forecasting spective expenses means of future, of a self-em- business Schupack ployed properly deducted same manner that decedent were forecast fu- earnings. productivity prospective It dis- ture inflation his rates at the initial trial! cussed the new statute as follows: We next 1971 amendment turn to Ford’s contentions “Section Assembly’s concerning accounting answer is the at trial for General There, productivity Williams case. future inflation in- any argues legislators creases. Ford Schupack, it clear that made reducing probable expenditures projected made for the after life- decedent’s dependents earnings support present time net value, of the decedent’s their disregarded that, simply compounded figure in fi- then by are to be and that nalizing award, an an evidence concern- annual of rate to reflect his 5%% earnings, ing of forecast the future trend future annual inflation may deflationary, (2%'%) inflationary productivity be it and increase (3%).19 any Schupack so, If be considered. Before did fact finalized, he evidence must committed a award can be mathematical error expenses produced significantly all be as to of' the increased his final damages beyond they the had to incur deceased would have calculations what produce using should example of to that estimated amount been. An earnings.” highly-simplified his future sums demonstrates However, this.20 the record unclear is origi- (emphasis in the 304 A.2d at 50 precisely Schupack as to how made his saying nal). goes It almost without adjustments prod- final for inflation and and in- that income taxes are substantial uctivity. We cannot tell whether in fact expenses evitable which the decedent suggests. he made the error which Ford produce the would have had to incur to earnings clear, however, It of future estimated does seem amounts Schupack that the Rhode at In the calculations Island trial. statute assumption adjustments require does the dece- not based the that for infla college graduate, productivity only tion and dent would have been a to be made projected earnings of future would have re- deduction taxes are reduced to after Schupack’s quarrel inflation-productivity rate, the Ford does not we would 5% rates, naturally figure $30,000. a selection of the and arrive at final of 3% 2%% long- study past contrast, of if were derived from his we accounted for the infla- productivity productivity rates. term increase tion and increases initial inflation the earnings, get determination of net we would entering hy- person following earnings a a the Assume that was result. at the Net pothetical profession salary scale end of Year One would increased whose be to earnings $10,500. earnings the end of such that his net at Net the end of Year $22,050. $10,000, and the end Two would Total Year One would be be increased to adjusted earnings $20,000. Assume of Year be net would therefore be Two would 5%, $32,550. present year rate The further that the annual interest is value of this two inflation-prod- at an the annual total annual interest rate of is that combined 5% just discrep- uctivity $29,500. Thus, over a rate is there is also 5%. ancy favoring Applying Ford contends to $500 the method which close forty- Schupack trial, year period. add the two over two Over that used at year period Schupack earnings figures earn- three total net fact made net to obtain surely error, discrepancy ings $30,000. this two this be If we then reduce greater. year present inter- value at far total to 5% adjust upward reflect it est rate and then para- that present Ford contends the release value. The sentence by plaintiff operate graph thus which authorizes executed should 3 of 10-7-1.1 against trends,” judgment see reduce the it of “economic consideration general “statutory pro interpreted rata is as a share” Sulli n. best computation liability, vans’ asserted to be one-half on the overall observation damages. possi- Precisely Therefore, process. awarded how avoid reduction is n suggested above, bility we think Ford arrived at one-half error clear, upon remand, advisable, dece- since at trial con evidence it earnings projected tained lifetime no reference whatsoever dent’s liability proportionate expenses adjusted relative to reflect future shares of attaching productivity to Ford and the Sullivans. As and increases inflation figure earnings correctly trial court determined be final net before low, may operate present reduced to value. before release favor, apportionment defendant’s an legal liability The re be made.22 must IV. Joint Tortfeasor Release lease, establishing any percent far appeal concerns issue final age part liability of the Sulli joint release effect of a tortfeasor vans, expressly “is not indicates it liability. of Ford’s extent lia be construed an admission of trial, disputed bility, compromise commenced Prior Ford is a but against Thus, party attempt third action William claim.” to reduce Ford’s Sullivan, judgment by and driver the owner Michael one-half on the basis of seeking Maverick, contribution the executed no merit. release has pursuant Uniform Island’s finding hereby af- Among Joint Contribution Tortfeasors damages is vacat- firmed. award seq. of R.I. 10-6-1 et Act. Gen.Laws § dis- and the case remanded to the ed Subsequently, the amended. as trict court for a new trial issue brought plaintiff, under Fed.R.Civ.P. only. against the Sullivans direct claim a However, any negligence. evi- before Judge (concurring MOORE, Circuit plaintiff heard, executed a dence was part dissenting part). in favor of the joint release tortfeasor $10,- bring myself consideration to for a I cannot subscribe Sullivans consequence, accept direct both the “our nation’s a or doctrine that 000.21 As complaint party high-speed highways crowded, in- third makes and Ford’s claim were, against the ac- with volvement foreseeable the Sullivans collisions parties quiescence dismissed with conse- of all manufacturers as an inevitable quence of normal use” of an automobile. prejudice. by through pertinent part, payment release executed of an adverse In the Ford judgment. 10-6-8 states: See Gen.Laws of R.I. § damages agree (1956). Despite possibility prejudice or “I further that all claims the per- accepted by against rights, all me other to its to have recoverable Ford seems agree- corporations jointly appropriateness by sons, or sev- firms of the release or- ing against erally party me in for said dam- to dismiss its liable to tort third action hereby ages, the extent of reduced to Sullivans. statutory pro of said Wil- rata share suggested must under The trial court that Ford and Michael Sullivan liam Sullivan Among presumably against suit, Tort- commence a new Contribution Uniform Act, Sullivans, re- their all so order to determine such feasors liability. proportionate against or all such Whether me other share of coverable maintained, joint in view of not can such suit be tortfeasors.” prejudice third Apparently, of Ford’s inserted into dismissal this clause was upon attempt party complaint, agreement in an to insulate a matter release possible rights pass judgment. of contri- no the Sullivans may subsequently have accrued bution (Supp. such force The collision here was with Gen.Laws R.I. 10-7-1.1 gas 1972) of the vehicle to cause the tank should be left to the discretion of as judge into the trial from the rear to burst on remand both as to the struck assuming that there evidence admitted and as to flames. Even the instruc- gas jury in that tions to the thereon. a “defective condition” Since as majority top part of the floor was a state: “The Rhode Island stat- tank’s ' great obviously requires car, ute speculation.”, it must have been deal of to create dangerous.” “unreasonably Collisions I would leave to the future foreseeable, yes, judge but collisions trial task not-too-enviable endeavoring type us, speculation hard to be to a before no. It would to reduce vehicle, requir- any except necessary imagine sum, automotive minimum. In as gasoline purposes, give ing propulsion taxes, the field of I the trial possi- judge being designed appellate to avoid the rein com- so free without explosion accept reject bility ment when evidence of a tank fire or army violently may he Even believe to be relevant struck in collision. running damage caught after over tanks on fire issue. resulting explosion. field mines with significance AND ON legal MEMORANDUM ORDER short, I think some PETITION given FOR REHEARING “unreason- should to the adverb be ably.” Nor can I reconcile “intended granted petition for rehear- Ford’s lit- with collisions which “are not use” ing only: impact the final issue erally intended.” joint Upon tortfeasor release. con- recognize opposing I two and conflict supplemental sideration of filed briefs ing philosophies developed in which have parties, original both to our we adhere may field which to re this referred position.» clarify However, we wish spectively as Evans1 Larsen2 Each holdings our as follows: following (see has its cases cited own negligence No determination of high majority opinion). What part yet of the Sullivans has been made. decide est court of Rhode Island would The settlement and release between of facts simi confronted with a state disposi- Sullivans Turcotte were here, presented I do not lar those Therefore, they tive issue. cannot express my I views that only know. can joint this time be considered tort- Evans to me more rationale is far meaning feasors within the of Gen.Laws (1) field in this consistent with the law I., (Supp.1972). of R. 10-6-2 See developed years and as it has over Angelos, Theobald v. 44 208 A. N.J. prag applied in common sense (1965); Swigert Welk, 2d 129 v. 213 Md. way do I find matic than Nor Larsen. (1957); 133 A.2d 428 Mil- Davis v. 3 course, although, I Ritter conclusive ler, (1956). 385 Pa. 123 A.2d 422 recognize “fore must carried that it has right While these concerned cases seeability” previous beyond well bring litigation keep into or in a tort Island decisions. putative joint given tortfeasor who had Despite necessity, my, release, recognition inconclusive import- their of the liability, that there as to concur retaining views I ance the defendant of of opportunity issue should be a trial on the culpability new determine my damages. only settling col- I from recog- differ tortfeasor is also a leagues believing method nition of the in which a straits defendant determining damages, placed of ing hav- settling now if he allows tortfeasor Island, Lipshutz, been codified in Rhode be absent. See Mazer v. Narragansett Corp., Co., Evans v. General Ritter v. Motors 359 F.2d Elec. 109 R.I. cert, (7th denied, (1971). Cir. 385 U.S. 283 A.2d 255 Corp., 2. Larsen v. General Motors 391 F.2d (8th 1968). Cir. 1966). (3d Pulvari While F.2d F.Supp. Corp., Greyhound

v. (D.D.C.1968) arguably different takes a

view, deem to be follow what we authority.

preponderance of despite indicate that cited cases release the Sullivans

the settlement re- probably have been should could original parties so in the trial

tained as any, legal liability, if could their Instead, established. then have been acquiesced in

Ford the dismissal parties. n. we said Sullivans as As original opinion, it to

22 of the we leave court to determine Ford

the district bringing separate ac-

now barred might against tion Sullivans negligent they whether determine were so, they joint

and, if whether were tort- respect Tur-

feasors Gerard death. Should these hurdles

cotte’s ques- surmounted, remain the there will apportioning dam-

tion of the basis

ages. court We leave district day. and another

The NATIONAL CASH REGISTER COMPANY, Petitioner, RELATIONS

NATIONAL LABOR BOARD, Respondent.

No. 73-1188. Appeals, Court of

United States Eighth Circuit.

Submitted Dec.

Decided March

Case Details

Case Name: Robert L. Turcotte, Administrator of the Estate of Gerard P. Turcotte v. Ford Motor Company

Court Name: Court of Appeals for the First Circuit

Date Published: Apr 8, 1974

Citation: 494 F.2d 173

Docket Number: 73-1251

Court Abbreviation: 1st Cir.