Theresa McPhail v. Municipality of Culebra

603 by made David terize certain statements plagued legitimate duties and would be Oklahoma Ownby with an injection collateral issues connection against brought by OKC investigation intermina- court action would make state However, proceeding type ble. . . This even Ownby as “new evidence.” investiga- would make shambles light most favorable if construed in the in its agency gathering and stifle would not Appellants, this “new evidence” of facts. quash sub- require the District Court to correctly Court found poena. District investi- Appellants’ argument that the DOE Report, on use of the OKC the issue OKC gation “tainted” the use of the document, 60(b) motions are Appellants’. R. which Report, allegedly privileged an based, question of the against to be remote to the cannot as a defense be entertained subpoena issued to subpoena enforcement of the issued enforcement of the subpoena private deposi- comes at Bank. Issuance of two Bank records action, this early then, as stage Appellants of administrative have suf- Clearly, tors.9 v. Em- recognized Court United States a result of prejudice no harm or as fered Gas, 1152, at 3: pire supra these motions. the District denial of Court’s remanding this exists for No valid reason admin- This tHe commencement of presen- the District Court proceeding to be ex- procedures istrative which must of “new evidence.” of this kind tation determination prior agency hausted such public interest underlying Mandatory Allocation violations of “[T]he oil”, day as energy our New source of Regulations. City vital Price See Co., Co., 468 Nichols Oil Telephone York New Com. v. Rowan & v. York Railroad 1021, 1024, 1401, 573, 580, 84 (Em.App.1972). F.2d 60 U.S. S.Ct. 1368, enforcement of prompt calls for L.Ed. the Economic Stabilization Section 211 of sought All relief subpoena question. Act, amended, note as 12 U.S.C. § by Appellants is denied. 5(a)(1) (ESA), incorporated in § Emergency Petroleum Allocation Act IT SOIS ORDERED. 1973, amended, seq. as 15 U.S.C. 751 et § (EPAA), provide speedy designed “was brought under

resolution cases States, 73, Bray v. United 423 U.S. [ESA].” 74, 307, 309, 46 L.Ed.2d 215 S.Ct. sought Appellants rehearing would way purpose, in no be consistent al., Plaintiffs, et Theresa McPHAIL delay but instead cause undue Appellants, subpoena already enforcement of the found States, City valid in United et al. First al., Paso, Texas, et National Bank of El al., et OF CULEBRA MUNICIPALITY F.2d decided TECA No. 5 Defendants, Appellees. March 1979. 77-1343. No. Furthermore, which R. Appeals, Court of United State equi Appellants rehearing, is a rule of seek First Circuit. ty “attempts proper bal which to strike Argued Feb. 1979. conflicting principles ance between the litigation brought must be to an end 9,May 1979. Decided justice Appellants should be done.”8 5, 1979. Rehearing Denied June 60(b) seek to use R. as a vehicle for presentation of evidence irrelevant Court,

sole issue before the District subpoena’s validity. charac- Miller, Wright Pro- R. 78.

8. 11 & Practice and 9. Federal cedure, Gonzalez,

Alex with whom E. Berrios Perez, Dubon, R., Rey, Hato P. Gonza- of the Hobie Cat. manufacturer and seller Berrios, R., Rey, P. & Hato were lez showing at trial Evidence was introduced brief, appellants. plaintiffs, put Cat design of the Hobie R., Vicente, Juan, P. D. San Harold sailing the in extreme boat person Vincente, Rua, Jr., Milton J. whom &Lasa come near should the boat of electrocution Juan, R., Mercado, P. were and Rua & San mast mount- line. aluminum defendants, brief, appellees. on for top two on in a frame that sits ed metal sits on The mariner fiberglass pontoons. COFFIN, Judge, CAMP- Before Chief frame, holding a tiller arm metal BOWNES, the metal Judges. Circuit BELL and the water. Because descends into the that COFFIN, Judge. Chief insulators, fiberglass effective pontoons are entering the mast only way for appeal o. v. current from a This is through the pass ground a reach is to granted in a and favor of manufacturer to be in contact Although helmsman who has products liability seller a case. arm. The the frame and the tiller plaintiff-appel- both significant we see merit in warning to complete contained a appellants’ fail- owner’s manual arguments,' lants’ launching, lines indicat- power avoid when on which ure to advance below the ing af- the manufacturer’s awareness us to arguments are based forces danger. firm. expert testified at trial that Plaintiff’s judgment overturning Following the tiller arm grounding the frame to wire verdict,

plaintiff’s jury we review the evi cost, most, expert testi- at The $10. would light dence in the most favorable to wire conduct fied further would plaintiff, Continental Ore Co. v. Union Car and entering the mast most of the current 690, 6,n. Corp., bide & 370 696 Carbon U.S. Timothy’s saved life. Defend- would have 1404, (1962). Appel 8 82 L.Ed.2d 777 S.Ct. testimony, expert contradicted this ants’ lants her minor Theresa McPhail and two position, rejected defendants’ but son, brought after children this action her and finding against the seller plaintiffs for Timothy, sailing was electrocuted in a acci manufacturer.2 dent of the island of coast Culebra.

Timothy sailing was a 16 foot Hobie Cat1 Although question, is a close friend, passenger belonging to who was out case might make out above facts set Timothy Cat on the boat. sailed Hobie Puerto design applicable under defective to a in a small inlet to offer dock located law, theory of foreseea based on the Rican of the dock. sailing lesson to owner pro and failure misuse or accident ble declined, Timothy was When lesson economically fea and readily vide available pulled away and was blown from dock v. Cer See Mendoza sible measures. trying to tack out of further inshore while Corona, (1969); Ferr 97 P.R.R. 487 vezeria dock, ap the inlet. Not far from the Corp., P.R.R. 244 110 er v. General Motors proximately 50 from end of feet the inshore (1971). adopted the California Puerto Rico inlet, the mast of the Hobie Cat came strict definition of manufacturer’s hung wire high contact with tension See Green tort Ferrer and Mendoza. was Timothy 20 feet the water. over Inc., Products, 59 v. Yuba Power man passenger The clear killed. was thrown 57, 697, P.2d 897 Cal.Rptr. 377 Cal.2d injured. and was not trial in (Cal.1962). Subsequent case, made Court the Puerto Rico

Theresa McPhail sued both authori- are included design defects of responsible power ties and the clear that Municipality of Cule- extremely racing also found the light 1. A Hobie Cat is an position of condition and model bra not liable sailboat. Timothy aluminum mast against power approximately lines. A related claim was 27 feet Authority was Resources tall. Puerto Rico Water by the court. dismissed (on trailer) out of the water the Puerto Rican definition of “de and the user fect”, require is in contact with either the frame or the Restatement tiller; (4) warning in the manu- product “unreasonably ment owner’s dangerous”3 (5) need not be met in order to adequate; posting al was all of liability. impose warnings See Montero Saldana v. appropriate on the mast Corp., American Motors Puerto Rico Bar up imprac- take as to be both space so much (May 1978); unreadable; Ass’n Ref.No.1978-52 Cro (6) evi- tical and there was no Corp., v. J. B. nin E. Olson 8 Cal.3d way any was in dence that the Hobie Cat Cal.Rptr. 501 P.2d 1153 More (7) any dangerous; defective over, adopted Puerto Rico has the rule an proximate failure to warn was not Daly Corp., nounced in Motors v. General injury Timothy’s cause of failure — Cal.3d Cal.Rptr. 575 P.2d 1162 see the line was. (1978), injured assumption that an victim’s matter, As an our initial review of contributory the risk or will the many trial record us that of convinces not bar but only recovery will reduce in a foregoing represent the trial conclusions liability strict case. Montero Saldana v. rejection court’s resolutions of con- of supra. Thus, Corp., American Motors even flicting (e. g., findings the evidence num- Timothy negligent sailing if was in near above) findings bered 4 and and 6 based power lines and that negligence contributed (e. g., no evidence in the trial record injury, to the his survivors would be enti above). findings 3 and 5 We numbered to recovery. tled some of propriety doubt the former and must the foregoing make all of ar- reject the latter. guments before this Unfortunately, court. Nevertheless, we think that the record does not reveal that one shred of judgment n. of theory this o. v. was correct as a matter presented was to the trial court. Rather, law under set out in opinion district the rules section granting court’s judgment n. o. Torts. Under that sec begins v. with the Restatement of proposi- tion, tion that correctly rely upon liability supplier “Plaintiffs in order to incur a Torts, unreasonably (Second) Restatement must know chattel is section 388 that a ”4. quoting dangerous After to supposedly and fail exercise reasonable applicable section, the court warning danger. trial went on to care in Restate (1) that: possibility (Second) hold ment a. electrocu- of Torts Comment § from sailing general liability tion a In into line is a contrast to the rule of (2) known and danger; sailing law, obvious liability into without products fault in power lines is not a predicates liability use for which a rule of thus sailboat section 388 supplied; (3) negli is upon even if a shock from contact a standard akin to common with gence. rule, overhead wires Applying agree was foreseeable dan- we ger, suggested (a to duty feature wire the trial court there was no grounding tiller) danger mast to would warn of the involved in into actually or, danger pow- power alternative, increase because most in that “rea er line accidents will while by warning occur the boat is sonable care” was exercised person (Second) 3. which and for whose it is Restatement of Torts 402A use § supplied, supplier if the (a) knows or has reason to know that provides: 4. The section likely dangerous chattel to be is or is for Dangerous “§ to Chattel Known be for supplied, use for which it is and Intended Use (b) for has no reason to believe that those directly supplies through One who or supplied whose use the chattel is its will realize person third for another chattel to use is condition, dangerous subject suppli- to to those whom the (c) in- fails to exercise reasonable care to expect er should to use chattel with the dangerous form them of its condition or endangered by consent of the to other or danger- likely the facts it to be which make probable use, physical its for harm caused ous.” the use of the in the chattel manner for negligent.6 appellants presented have Nor manual. “It is obvious the owner’s to necessary any argument tending reconcile supplier inform us with not more supplied presented whose law below with the use chattel those looking Puerto Rico espoused a condition which mere casual liberal view Finally, will . . . Restatement does over disclose Court. the record (Second) k. Comment As any Torts reveal law other than section not it, Thus, put the trial court involved we are charged jury.7 388 was sailing a with an aluminum mast into boat presented plausi- with a case in which not “patent a power line was and obvious”. ble, de- if of defective avante-garde, re- presented to a and later sign was above, As noted Puerto Rico does not Rather, o. v. jected apply negligence quasi-negligence or stan- rec- we can draw from the conclusion “unreasonably dangerous” dard condi- ord, appellants presented section warning tions “reasonable care” jury, judge, charged was products liability cases. Mendoza Cer- judge correctly rejected a verdict Moreover, Corona, supra. vecería even The fault as a matter of law. incorrect jurisdictions applying the Restatement presenting the consequences and the liability, 388 would products rules section squarely appel- wrong law below rest preamble govern this case. The to sec- not lants, Herman must affirm. See expressly that section 402A states Corp., 524 Virgin Oil F.2d Hess Islands provides special governing rule commer- 1975) (3d (affirmatively 772 n. lead- Cir. liability.5 Restatement cial manufacturers’ ing precludes appellate court into trial error (Second) (1965). In of at 300 Torts ’§ Inc., Tool, review); v. AMF Western Reed short, judgment right v. was a n. o. 1970) (failure (9th n. 2 Cir. 431 F.2d wrong decision under law. legal theory argued at directed to include Plaintiffs-appellants must bear requested in- subsequent verdict motion in responsibility problem. for this The when precludes appellate review structions judgment n. opinion granting o. indicates theory involves factual issues. plaintiffs requested that that section 388 be his applied. party may “sandbag” A not The record does not reveal that plaintiffs argued any presenting theory law to the trial theory by other or to case one ap Indeed, pleadings, arguing for another on the trial court. court and then memorandum, Vargas, plaintiffs’ pre-trial peal. v. Gonzalez United States order, (1st 1978). pre-trial plaintiff plaintiffs’ court’s mem 585 F.2d 546 Cir. When on a opposition judgment jury orandum in v. obtains a verdict his favor to n. o. inadequate theory, urge a plaintiffs proceeding legally all he cannot indicate that were appeal support to theory appellees wholly theory new on a that were somehow on refusing explains to the more liberal doctrine of read 5. Comment to section 388 that by argued appellant apply section to to is intended such situations “crashworthiness” as the of a car who it owner loans into section 402A. knowing has to a friend that it no brakes and to fails warn of the condition. appeal does not contain the 7. The record on jury charge. party urging error As Defendants-appellees cite 402A in did section below, responsibility appellants’ is occurred judgment their motion for n. o. v. That citation designate portion record in which to of the argument plausible was followed that the may United States v. One that error be found. not condition involved here was an “unreason- Mercury, 527 F.2d Motor Yacht Named ably dangerous” defect because into (1st 1975). 1113-14 Because Cir. anticipated by not a use n. o. to a the facts v. amounts statement seller because the of such use was presented support a at trial could not reasona- not exacerbated defective condition liability exists under ble man’s conclusion that was hidden We from user the boat. presented jury, the instruc- the law to arguments need not reach these because the law —would seem to tions —which contain the permissibly rely upon trial court to chose part be an essential of the record. argued appellant. law Nor are we con- vinced that the court have trial erred Court’s discussion the two theories that verdict. Federal Insurance Co. Bon- Colon, (1st Motors, No. illa 392 F.2d 664-65 Cir. Montero v. American Saldana 1968). Although (May 1978), Federal Insurance in- re- problem 1978-52 appeal attempt argue appellants explain volved an on mains that failed to theory affirmatively plaintiff Rather, had ex- congruence to the trial court. below, same clearly cluded we think that the rule jury charge plain- establishes that when, apply through proceeded upon theory misdirected ef- tiff-appellants must or a preparation, plaintiff fort lack of sim- failure to use reasonable care. defendants’ ply present law proper charge, appel- fails important, More to which jury. jury is a object, court The result expressly lants did not excludes may may ap- verdict that or reflect find- theory presented not “crash-worthiness” ings necessary argued fact peal. jury was instructed: “The manu- appeal jury plaintiff verdict in which duty not have the facturer does to warn —a can find no solace. potential dangers which can come to solely user of its own because Affirmed. persons because of acts third or from product use of the in an unintended manner MEMORANDUMAND ORDER ON ap unintended-purpose.” or for PETITION FOR REHEARING in- Sailing power lines not an into BY THE COURT. Nothing purpose product. tended provided transcript have charge impose allowed the liabil- jury charge and have made further ity provide for failure measures arguments explaining Puerto Rico law in a nothing argued misuse and unintended petition for rehearing. cog- we are Because below suggested should difficulty nizant sometimes extreme differently. charged obtaining during trial transcripts pe- de- petition rehearing hereby question, riod have taken extraor- nied. dinary supplementa- measure of permitting record. true, it may While appellant as

argues, that a liability manufacturer’s strict synonymous are L.P.R.A. proposition light

doubt of the Puerto Rico

Case Details

Case Name: Theresa McPhail v. Municipality of Culebra

Court Name: Court of Appeals for the First Circuit

Date Published: Jun 5, 1979

Citation: 598 F.2d 603

Docket Number: 77-1343

Court Abbreviation: 1st Cir.