Case Information
*2 Before WILKINSON, Chief Judge, WILLIAMS, Circuit Judge, and FRIEDMAN, United States District Judge for the Eastern District of Virginia, sitting by designation. _________________________________________________________________ Affirmed by published opinion. Judge Williams wrote the opinion, in which Chief Judge Wilkinson and Judge Friedman joined. _________________________________________________________________ COUNSEL
ARGUED: Colleen Ann Scherkenbach, QUARLES & BRADY, Phoenix, Arizona; Frank J. Daily, QUARLES & BRADY, Milwau- kee, Wisconsin, for Appellants. James Marion Thompson, THOMP- SON & SMITH, Augusta, Georgia, for Appellees. ON BRIEF: C. Christine Burns, QUARLES & BRADY, Phoenix, Arizona; Edward H. Starr, Jr., MAYS & VALENTINE, Richmond, Virginia, for Appel- lants. Chad A. McGowan, Atlanta, Georgia; J. David Standeffer, STANDEFFER & BRISLANE, Anderson, South Carolina; Danny L. Durham, FLEMING, BLANCHARD, JACKSON & DURHAM, Augusta, Georgia, for Appellees.
_________________________________________________________________ OPINION
WILLIAMS, Circuit Judge:
In this diversity action, we follow the South Carolina appellate courts' consistent holdings that the doctrines of strict liability and negligence are distinct theories of recovery in a products liability case, and that the denial of liability under one of these doctrines does not automatically preclude the imposition of liability under the other. Therefore, we affirm the district court as to all issues of liability. *3 I.
This appeal arises out of a tragic residential fire in Anderson, South Carolina. On the morning of November 7, 1992, five people, includ- ing two-year-old John Moore, three-year-old Ashley Moore, and six- year-old Nikki Moore; their mother Sueanne Brock; and the paternal grandfather of some of the children, Allen Moore, were killed, and five year-old Felisha Moore was permanently disabled, when their rental house was destroyed by fire. Plaintiffs' experts opined that the fire began when one of the infant children, Ashley Moore, ignited the sofa in the den with a Cricket disposable butane cigarette lighter that had no child-resistant safety features. Plaintiffs 1 premised their dam- ages claims against Atria Reclamelucifers Fabrieken BV, Cricket SA, and Poppell BV (collectively, "Cricket") on the theories of both strict liability and negligence. Plaintiffs claimed that Cricket's failure to include safety features on the lighter rendered it defective and unrea- sonably dangerous. Plaintiffs also claimed that Cricket breached the duty of care owed them when it manufactured and sold the lighter absent safety features despite knowledge that damage could be caused by young children operating the lighter.
At the conclusion of the liability phase of the bifurcated trial, the jury expressly rejected Plaintiffs' theory that the absence of a child resistant safety feature was a design defect resulting in strict liability. The jury did find, however, that Cricket negligently designed the lighter and that this negligent design was the proximate cause of the deadly fire, thus rendering Cricket liable for damages. In addition to determining liability, the jury was asked to apportion the fault between each of the adult plaintiffs and Cricket on separate verdict forms. On Sueanne Brock's verdict form, the jury determined that Cricket was twenty percent at fault while Brock was eighty percent _________________________________________________________________ 1 John K. Talkington is the personal representative of the estates of Ashley Moore, John Moore, and Nikki Moore and the conservator for Felisha Moore, the only survivor of the fire. Pamela Quigley is the per- sonal representative of the estates of Allen Moore and Sueanne Brock. "Plaintiffs" refers to the plaintiffs collectively. We note that this case began with the filing of five separate complaints. Cricket subsequently filed a motion, opposed by Plaintiffs, to consolidate the cases for trial. The district court granted the motion. *4 at fault. The jury computed the same ratio as to Allen Moore. As a result, the adult plaintiffs' claims were extinguished. 2 At the conclu- sion of the damages phase, Cricket made various motions, including a renewal of its motion for judgment as a matter of law. The district court denied all of Cricket's motions. Because the parties had stipulated that any negligence found on behalf of the adult plaintiffs would not be imputed to the child plain- tiffs, the damages phase of the trial continued for the child plaintiffs' claims. The jury awarded each of the three deceased child plaintiffs' estates $1000 in actual damages and awarded Felisha Moore, the only survivor, actual damages in the amount of $2.6 million. At the conclu- sion of the damages phase, Cricket again renewed its motion for judg- ment as a matter of law or, in the alternative, a new trial. The child plaintiffs also sought a new trial on damages only, arguing that the award of damages was unreasonably low. The district court denied all motions and imposed a $2,603,000 judgment against Cricket. Cricket now appeals the liability verdicts. 3 _________________________________________________________________
2
In Nelson v. Concrete Supply Co. ,
II.
Construing the evidence in the light most favorable to Plaintiffs, see Atlas Food Sys. & Servs., Inc. v. Crane Nat'l Vendors, Inc., 99 F.3d 587, 597 (4th Cir. 1996), the facts of this case are as follows. At approximately 8:45 a.m. on November 7, 1992, Sueanne Brock's neighbors, Roy and Billie Lee Crawford, saw Brock's house engulfed in flames. The couple immediately ran across the street and tried to help. Mr. Crawford began knocking out the windows with a hammer to get into the house. Suddenly, Allen Moore, enveloped in flames, jumped through the front window and onto the front porch. As Mr. Crawford dragged him to the ground to extinguish the fire, Allen said, "I know who done it." Unfortunately, Allen died shortly thereafter. Emergency personnel responded immediately and began putting out the fire. A search of the home revealed Brock and three of the chil- dren in the front bedroom. They all died as a result of smoke inhala- tion associated with the fire. Five-year-old Felisha, the only survivor, initially was treated at the Anderson Memorial Hospital but, due to the seriousness of her injuries, she was airlifted to the Burn Unit at the Humana Hospital in Augusta, Georgia, that same day. 4 After the fire was extinguished, various fire and law enforcement personnel attempted to reconstruct the scene. Anderson County Arson Investigator Arthur Sullivan led the investigation. Various photo- graphs were taken and a videotape was made of the scene. During a walk-around of the building, Sullivan discovered a gallon jug outside the house that smelled of kerosene and noted that an outdoor shed contained evidence of previous fires. Sullivan's notes indicated that the family used two kerosene heaters for warmth, and he later learned _________________________________________________________________ 4 Felisha remained comatose in the Burn Unit for five weeks while she underwent aggressive care. In mid-December, Felisha was transferred to Greenville Memorial Hospital in Greenville, South Carolina, where she received care until April of 1993, at which time she was placed in a nearby rehabilitation facility. After two months, she was transported back to Greenville Memorial Hospital. At that time Felisha continued to use a gastronomy tube for partial feeding, and although she could follow simple commands, her verbal responses were very limited and her move- ments poor. The following month, Felisha was released to the care of her foster parents, Roger and Carol Dean. *6 that Brock's eldest son, Michael Brock, had started a fire in the back shed prior to this incident. Sullivan did not test the house for the pres- ence of accelerants. Anderson City Chief Fire Investigator Charles Mull also participated in the investigation. He discovered a cigarette lighter on the living room floor, a few feet from the couch and a few feet from where three-year-old Ashley Moore's body was found. Mull notified Sullivan of his discovery, and Sullivan took the lighter into evidence. Both Brock and Allen Moore were smokers.
Due to the number of casualties and the evidence suggesting that the fire may have been intentionally set, the Anderson authorities con- tacted the South Carolina Law Enforcement Division (SLED). SLED Agent Ross learned that Billy Ray Moore, Brock's boyfriend and the father of her two-year-old son John Moore, had threatened her life the night before the fire. The couple had gotten into a drunken fight at a party earlier in the evening. At approximately 3:00 a.m. on the morn- ing of the fire, Billy Ray was seen slashing Brock's tires outside the home. Then, between 5:00 and 6:00 a.m., Billy Ray was seen in the home arguing with Brock. Agent Ross discovered accelerant on Allen Moore's clothes and subsequent reports suggested that Billy Ray's clothes smelled of kerosene. Later testing, however, failed to reveal any kerosene on Billy Ray's clothes. At the conclusion of his investi- gation, Agent Ross ultimately agreed with the Anderson County authorities and concluded that the fire was accidental, rather than arson.
III.
Cricket raises four issues on appeal. First, it contends that the dis- trict court erroneously failed to grant Cricket judgment as a matter of law after the jury returned a verdict in which it found that the Cricket lighter was not "defective and unreasonably dangerous," thereby bar- ring the imposition of strict liability upon Cricket under South Caroli- na's products liability law as well as under negligence law. Second, Cricket asserts that the district court should have granted it judgment as a matter of law because Plaintiffs failed to prove that a child's use of the lighter was the proximate cause of the fire. Third, Cricket con- tends that the district court abused its discretion when it failed to sub- mit a separate special interrogatory on superseding and intervening causes to the jury. And finally, Cricket asserts that the three special *7 verdict forms erroneously prevented the jury from apportioning the degree of fault among all three tortfeasors -- Cricket, Brock, and Allen Moore.
We review de novo the district court's refusal to grant judgment as
a matter of law. See Benesh v. Amphenol Corp. ,
This case is before us pursuant to diversity jurisdiction, see 28
U.S.C.A. § 1332 (West 1993), and thus we are bound to apply gov-
erning state law, as interpreted by the relevant state's highest court,
see Erie R.R. Co. v. Thompkins ,
A.
Cricket contends that it should have been granted judgment as a matter of law because the jury expressly found that the Cricket lighter was not defective and unreasonably dangerous. As a result, Cricket argues that it could not be negligent for manufacturing the lighter in accordance with its design and, therefore, the jury's verdict is fatally inconsistent. Plaintiffs maintain, however, that the jury's verdict is not inconsistent, and that Cricket's argument is based upon a misappre- hension of the fundamental differences between strict liability and negligence. Strict liability, Plaintiffs contend, is determined by refer- *8 ence to the expectation of the ordinary consumer. Negligence, how- ever, may be based upon the reasonable foreseeability of harm to unintended users, in this case, children.
At the conclusion of the damages phase of the trial, the jury returned the following marked verdict form:
2. Do you find by a preponderance of the evidence that the defendants . . . were negligent in the design of the lighter and that this negligence was a proximate cause of the accident? _x_ Yes ___ No
3. Do you find by a preponderance of the evidence that the Cricket lighter was defective and unreasonably danger- ous and that this defect was a proximate cause of the accident? ___ Yes _x_ No
(J.A. at 176.) Cricket claims that these answers are fatally inconsis- tent. If the product is not defective, Cricket argues, then manufactur- ing it consistent with its design cannot constitute negligence.
We first note that the proper remedy for an inconsistent jury verdict
is a new trial, not judgment as a matter of law as Cricket suggests.
See Atlas Food Sys. & Servs., Inc. v. Crane Nat'l Vendors, Inc., 99
F.3d 587, 598 (4th Cir. 1996). We need not concern ourselves with
this dilemma, however, because where, as here, there is a view of the
case that makes the jury's answers to special interrogatories consis-
tent, a reviewing court must resolve them that way. See Atlantic &
Gulf Stevedores, Inc. v. Ellerman Lines, Ltd.,
Although substantial similarities in analysis exist between strict liability for the sale of defective products and negli- gence principles of liability, especially in design and inade- quate warning cases, differences do exist. . . . Strict liability and negligence are not mutually exclusive theories of recov- ery; that is, an injury may give rise to claims that can be established either under principles of strict liability or negli- gence, and failure to prove one theory does not preclude proving the other.
Id. at 325-26 (emphasis added); cf. Gasque v. Heublein, Inc., 315 S.E.2d 556, 558 (S.C. Ct. App. 1984) (rejecting argument that negli- gence and strict liability are so closely intertwined that it should depart from "two issue rule" in products liability cases and concluding that there are "obvious differences between the two theories, i.e., the different quantum of proof required and the fact that one's origins are statutory while the others are at common law"). In Bragg, the court further elaborated that:
The distinction between strict liability and negligence in design-defect and failure-to-warn cases is that in strict liabil- *10 ity, knowledge of the condition of the product and the risks involved in that condition will be imputed to the manufac- turer, whereas in negligence these elements must be proven. Whether strict liability or negligence affords a plaintiff the broader theory of recovery will depend largely on the scope of evidence admitted by the trial court and on the jury instructions given under each theory.
Bragg,
Viewing the negligence claim as merely one step beyond strict liability, however, obscures the true difference between negligence and strict liability under Pennsylvania *11 law. In strict liability, the focus is on a defect in the product, regardless of fault, and that defect is determined in relation to a particular subset of the general population: the intended user who puts the product to its intended use. In negligence, the focus is on the reasonableness of a defendant's conduct, and this reasonableness is determined in relation to a differ- ent subset of the general population, and one that is conceiv- ably broader: anyone who foreseeably may be subject to an unreasonable risk of foreseeable harm. . . . . In strict liability, the plaintiff need not show fault, but only prove a product defect. A product cannot be defective when its design and performance meet all of the require- ments of the intended user, regardless of the foreseeability of misuse by unintended users. In negligence, the plaintiff must prove fault of the manufacturer, which is an element not required in strict liability law. The scope of inquiry, however, expands because of the duty to unintended but foreseeable users. Although the results may very well often be the same in strict liability and negligence under a given set of facts, the focus of each claim is different, and there- fore proof of negligence may be possible without a finding of strict liability. Id. at 1438.
South Carolina, like Pennsylvania, links strict liability with "in-
tended use" while negligence encompasses all"foreseeable" uses. In
South Carolina, "to recover under a strict liability theory, the plaintiff
must establish that: (1) the defendant's product was in a defective
condition unreasonably dangerous for its intended use; (2) the defect
existed when the product left the defendant's control; and (3) the
defect was the proximate cause of the injury sustained." Bragg, 462
S.E.2d at 328 (emphasis added). In other words, the plaintiff must
show that "the product, as designed, is unreasonably dangerous in its
failure to conform to the ordinary user's expectations." Id. (emphasis
added).
Quite a different standard applies to negligence claims. To make
out a negligence claim in South Carolina, a plaintiff must prove three
*12
elements: "(1) a duty of care owed by the defendant to the plaintiff;
(2) a breach of that duty by a negligent act or omission; and (3) dam-
age proximately resulting from the breach of duty." Rickborn v. Lib-
erty Life Ins. Co.,
Based upon the foregoing instructions and the facts of this case, the jury concluded that the Cricket lighter was not defective or unreason- ably dangerous to the ordinary consumer (an adult) for its intended use (lighting a cigarette) and, therefore, found that Cricket was not strictly liable for Plaintiffs' injuries. Under South Carolina law, it is not inconsistent with this finding for the jury nevertheless to impose liability upon Cricket based upon a finding that Cricket negligently failed to exercise due care towards the vulnerable child plaintiffs when it was reasonably foreseeable that serious harm could result from Cricket's failure to include child-resistant safety features on its lighter. Accordingly, we reject Cricket's claim that it is entitled to judgment as a matter of law, or in the alternative, a new trial, based upon the alleged inconsistency of the jury's verdict.
B.
Cricket next argues that the district court erred when it did not
grant judgment as a matter of law because Plaintiffs failed to show
by a preponderance of the evidence that three-year-old Ashley's use
of a Cricket lighter proximately caused the fire. In a negligence
action, a plaintiff must demonstrate that the defendant's breach of
duty was the proximate cause of the plaintiff's damage. See Goode v.
St. Stephens United Methodist Church,
1.
To establish that Ashley started the fire with a Cricket lighter, Plaintiffs relied primarily upon the testimony of two witnesses: Arthur Sullivan and Ted Kaplon. 7 Absent any objection by Cricket, the district court qualified both Sullivan and Kaplon as experts in the _________________________________________________________________ 6 Cricket also does not contest that it was reasonably foreseeable that unattended children would play with its lighter and that the existence of child safety features would have prevented a child from igniting the lighter. 7 Plaintiffs also presented the testimony of Dr. Sandra Conradi via deposition. Because we agree with Cricket that Dr. Conradi's testimony did not add significant support to Plaintiffs' theory of negligence, we focus only upon the testimony of Sullivan and Kaplon.
area of fire cause and origin. On direct examination, Sullivan opined, without objection, that "[t]he most probable cause of this fire, based on our tests and our witness testimony and putting everything together, most likely this fire was started by placing an open flame to the couch. In this instance, most likely a child." (J.A. at 254.) Sullivan further testified that he had considered the alternative scenarios for the fire's origin proposed by Cricket, but that he had ruled out gas, kerosene heaters, a smoldering cigarette that had been dropped by Allen Moore after he fell asleep on the couch, and arson as likely causes of the fire. Cricket did not object to Sullivan's testimony or, in particular, his final opinion of the fire's cause. Rather, Cricket thor- oughly cross-examined Sullivan, questioning his reasoning and the bases for his conclusions and pointing out perceived inconsistencies. During his testimony, Sullivan revealed that he based his conclusion, in part, upon a "burn test" conducted by fire officials in which the effects of a smoldering cigarette and an open flame upon a sofa were compared. The test was videotaped and presented to the jury without objection. Kaplon, an electrical engineer with 25 years of experience in fire investigation, testified, without objection, that the cause of the fire was "Ashley igniting the sofa with the cigarette lighter." (J.A. at 344.) Upon extensive questioning by both counsel, Kaplon defended his position and gave well-reasoned responses for rejecting Cricket's alternative scenarios, including arson, a malfunctioning kerosene heater, and a dropped smoldering cigarette. We conclude that a jury, after hearing the testimony of these two experts, could reasonably conclude that the fire was caused by Ashley igniting the sofa with a Cricket cigarette lighter.
2.
Cricket asserts, however, that the entirety of Kaplon's testimony
and the burn test relied upon by Sullivan, along with his correspond-
ing opinion testimony, should have been excluded under Daubert v.
Merrell Dow Pharmaceuticals, Inc.,
a.
Turning to Cricket's claim regarding Kaplon's testimony, we hold
that Cricket fails to demonstrate that the admission of Kaplon's testi-
mony was error. Cricket's attempt to exclude Kaplon's testimony
under Daubert demonstrates a fundamental misunderstanding of the
Supreme Court's decision. "Daubert instructs district courts to make
a `preliminary assessment of whether the reasoning or methodology'
underlying expert testimony `is scientifically valid.'" Freeman v.
Case Corp.,
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to deter-
mine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.
Fed. R. Evid. 702. Kaplon's credentials were unchallenged by
Cricket. Further, Kaplon's testimony did assist the jury in resolving
the key factual dispute in the case. We also note that Cricket does not
challenge the district court's instructions to the jury as to burden of
proof or as to how the jury should assess expert testimony. Cf.
Freeman,
As to the videotape of the burn test, assuming without deciding that its admission was error, we readily conclude that the evidence did not affect Cricket's substantial rights and, therefore, was harmless. See Fed. R. Evid. 103(a) (An "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected."). Accordingly, the admission of the burn test and Sullivan's testimony discussing the test was not reversible error. The picture is poor in quality and does little, if anything, to support Plaintiffs' theory of the case. Moreover, Sullivan's reliance upon the test in formulating his opinion was very limited; Sullivan based his elimination of Cricket's smoldering cigarette scenario on two much more compelling factors. First, he reasoned that if Cricket's theory that the fire originated from a lit cigarette dropped into the cushions of the couch by Allen Moore when he fell asleep was correct, the burns on Moore's back would have been much less extensive. Sec- ond, and more fundamentally, Sullivan opined that Moore would never have been able to get off the couch, but would have died there, if he had been on it from the time that the fire began smoldering. Therefore, we conclude that the burn test was, at most, only cumula- tive evidence. Based upon the foregoing, we conclude that any error did not affect Cricket's substantial rights. Absent reversible error, we affirm the district court's admission of the challenged evidence. *18 3.
Cricket finally asserts that the weak circumstantial evidence that Ashley started the fire was insufficient "[i]n view of more compelling circumstantial and direct evidence that a smoker, kerosene stove or arsonist caused the fire." (Appellant's Br. at 28-29.) We acknowledge that there is evidence in this case that suggests alternative explana- tions for the cause of the fire. Plaintiffs' burden of proof does not require him to eliminate every possible cause of the fire, however.
Rather, he is merely required to demonstrate that it is reasonably probable that Ashley ignited the lighter, causing the injuries to the plaintiffs. We conclude that Plaintiffs presented sufficient evidence to render it reasonably probable that negligence in the design of the lighter was a proximate cause of the accident. The question of proxi- mate cause, therefore, was properly submitted to the jury.
C.
Next, Cricket contends that the district court abused its discretion
when it failed to include an interrogatory on the verdict forms asking
whether the adult plaintiffs' negligent supervision of the child plain-
tiffs was a superseding, intervening act of negligence that relieved
Cricket of liability as to the claims of all plaintiffs. Cf. Grant v. Dis-
trict of Columbia,
Now, the defendants also contend as a defense to the negli- gence cause of action that even if they were negligent, *19 which of course they deny, they contend that the intervening acts or omissions of the adult plaintiffs relieved them of lia- bility. The test of whether the intervening acts or omissions of the adult plaintiffs serve to break the chain of causation is whether the intervening independent acts or omissions were reasonably foreseeable by the defendants, or if not rea- sonably foreseeable, whether the acts or omissions of the defendants would have caused injury or loss even without the intervening independent act or omissions over which it had no control.
If the intervening cause was foreseeable, then the defendants are not relieved from liability. If the intervening cause was not foreseeable, then the chain of causation has been broken and the defendants are relieved from liability for any wrong which they may have had. Where, however, the concurrent negligence of two or more persons combines to produce injury or loss to a third party, the negligence of the one pro- vides no excuse or defense for the negligence of the other. The liability is not defeated by the mere fact that the negli- gence of one preceded that of another in point of time.
(J.A. at 785-86.) Cricket does not challenge this instruction on appeal. Rather, Cricket maintains only that an additional interrogatory was necessary to inform the jury that the intervening negligence of the adult plaintiffs could break the causal chain and relieve Cricket from liability as to the claims of all plaintiffs, not just the adults. We dis- agree.
The jury was charged that if it found that the adult plaintiffs' negli-
gence was not foreseeable, then the causal chain would be broken,
and Cricket would be "relieved from liability for any wrong which
they may have had." (J.A. at 786) (emphasis added). This is an accu-
rate and adequate instruction on superseding, intervening causes, see
Small v. Pioneer Machinery, Inc.,
D.
Cricket contends that the district court abused its discretion when it failed to submit a single verdict form to the jury to apportion fault among all three tortfeasors, i.e., Brock, Moore, and Cricket. Cricket points to the jury's finding that Brock and Moore were 160% at fault for the fire (80% each) to support its assertion that the jury may have found Cricket 0% at fault if given a single verdict form. This argu- ment is nothing short of absurd. Through some innovative mathemat- ics, Cricket has attempted to create an "inconsistent result" where there is none.
The claims of the adult plaintiffs and the claims of the child plain- tiffs in this case, while consolidated for trial purposes, remained dis- tinct causes of action. Put simply, the jury's determination of the negligence of Brock and Moore vis-a-vis Cricket was irrelevant to its determination of Cricket's negligence vis-a-vis the child plaintiffs. On the child plaintiffs' verdict form, the jury expressly found that Cricket was "negligent in the design of the lighter and that this negligence was a proximate cause of the accident." (J.A. at 171.) As discussed, supra, the jury obviously rejected Cricket's argument that the adult plaintiffs' negligence was a superseding, intervening cause absolving Cricket from liability. Rather, it is clear that the jury, heeding the dis- trict court's instructions regarding the principles of negligence, super- seding causes, and joint tortfeasors, concluded that (1) Cricket was at least one percent at fault, and (2) the negligence of the adult plaintiffs was foreseeable. We see nothing inconsistent in these conclusions and the verdict forms as completed. Therefore, the district court did not abuse its discretion in refusing to submit the requested interrogatory to the jury. IV.
Based upon the foregoing, we affirm the district court as to all lia- bility issues. AFFIRMED