598 F.2d 603 | 1st Cir. | 1979
Lead Opinion
This is an appeal from a judgment n. o. v. granted in favor of a manufacturer and a seller in a products liability case. Although we see significant merit in plaintiff-appellants’ arguments,' appellants’ complete failure to advance below the theory on which the arguments are based forces us to affirm.
Following a judgment overturning plaintiff’s jury verdict, we review the evidence in the light most favorable to the plaintiff, Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696 n. 6, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962). Appellants Theresa McPhail and her two minor children brought this action after her son, Timothy, was electrocuted in a sailing accident on the coast of the island of Culebra. Timothy was sailing a 16 foot Hobie Cat
Theresa McPhail sued both the authorities responsible for the power lines and the manufacturer and seller of the Hobie Cat. Evidence was introduced at trial showing that the design of the Hobie Cat put the person sailing the boat in extreme danger of electrocution should the boat come near a power line. The aluminum mast is mounted in a metal frame that sits on top of two fiberglass pontoons. The mariner sits on the metal frame, holding a metal tiller arm that descends into the water. Because the fiberglass pontoons are effective insulators, the only way for current entering the mast to reach ground is to pass through the helmsman who has to be in contact with both the frame and the tiller arm. The owner’s manual contained a warning to avoid power lines when launching, indicating the manufacturer’s awareness of the danger.
Plaintiff’s expert testified at trial that a wire grounding the frame to the tiller arm would cost, at most, $10. The expert testified further that the wire would conduct most of the current entering the mast and would have saved Timothy’s life. Defendants’ expert contradicted this testimony, but the jury rejected defendants’ position, finding for plaintiffs against the seller and manufacturer.
Although it is a close question, the facts set out above might make out a case of defective design under applicable Puerto Rican law, based on the theory of foreseeable misuse or accident and failure to provide readily available and economically feasible safety measures. See Mendoza v. Cervezeria Corona, 97 P.R.R. 487 (1969); Ferrer v. General Motors Corp., 110 P.R.R. 244 (1971). Puerto Rico adopted the California definition of manufacturer’s strict liability in tort in Ferrer and Mendoza. See Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (Cal.1962). Subsequent to the trial in this case, the Puerto Rico Supreme Court made clear that defects of design are included
Appellants make all of the foregoing arguments before this court. Unfortunately, the record does not reveal that one shred of this theory was presented to the trial court. Rather, the district court’s opinion granting judgment n. o. v. begins with the proposition that “Plaintiffs correctly rely upon the Restatement (Second) of Torts, section 388 . ”
As an initial matter, our review of the trial record convinces us that many of the foregoing conclusions represent the trial court’s rejection of jury resolutions of conflicting evidence (e. g., the findings numbered 4 and 6 above) and findings based on no evidence in the trial record (e. g., the findings numbered 3 and 5 above). We doubt the propriety of the former and must reject the latter.
Nevertheless, we think that the judgment n. o. v. was correct as a matter of law under the rules set out in section 388 of the Restatement of Torts. Under that section, in order to incur liability a supplier must know that a chattel is unreasonably dangerous and fail to exercise reasonable care in warning of that danger. Restatement (Second) of Torts § 388, Comment a. In contrast to the general rule of liability without fault in products liability law, the rule of section 388 thus predicates liability upon a standard akin to common negligence. Applying this rule, we agree with the trial court that there was no duty to warn of the danger involved in sailing into power lines or, in the alternative, that “reasonable care” was exercised by warning of
As noted above, Puerto Rico does not apply a negligence or quasi-negligence standard of “unreasonably dangerous” conditions or “reasonable care” in warning to products liability cases. Mendoza v. Cervecería Corona, supra. Moreover, even in jurisdictions applying the Restatement rules of products liability, section 388 would not govern this case. The preamble to section 388 expressly states that section 402A provides the special rule governing commercial manufacturers’ liability.
Plaintiffs-appellants must bear the responsibility for this problem. The opinion granting judgment n. o. v. indicates that plaintiffs requested that section 388 be applied. The record does not reveal that plaintiffs argued any other law or theory to the trial court. Indeed, the pleadings, the plaintiffs’ pre-trial memorandum, the court’s pre-trial order, and plaintiffs’ memorandum in opposition to judgment n. o. v. all indicate that plaintiffs were proceeding on a theory that appellees were somehow negligent.
A party may not “sandbag” his case by presenting one theory to the trial court and then arguing for another on appeal. United States v. Gonzalez Vargas, 585 F.2d 546 (1st Cir. 1978). When plaintiff obtains a jury verdict in his favor on a legally inadequate theory, he cannot urge a wholly new theory on appeal to support
Affirmed.
. A Hobie Cat is an extremely light racing sailboat. The aluminum mast on the model Timothy was sailing was approximately 27 feet tall.
. The jury also found the Municipality of Culebra not liable for the condition and position of the power lines. A related claim against the Puerto Rico Water Resources Authority was dismissed by the court.
. Restatement (Second) of Torts § 402A (1965).
. The section provides:
Ҥ 388. Chattel Known to be Dangerous for Intended Use
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for
which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.”
. Comment a to section 388 explains that the section is intended to apply to such situations as the liability of an owner of a car who loans it to a friend knowing that it has no brakes and fails to warn of the condition.
. Defendants-appellees did cite section 402A in their motion for judgment n. o. v. That citation was followed by a plausible argument that the condition involved here was not an “unreasonably dangerous” defect because sailing into power lines is not a use anticipated by the seller and because the danger of such use was not exacerbated by a defective condition that was hidden from the user of the boat. We need not reach these arguments because the trial court permissibly chose to rely upon the law argued by appellant. Nor are we convinced that the trial court would have erred in refusing to read the more liberal doctrine of “crashworthiness” now argued by appellant into section 402A.
. The record on appeal does not contain the jury charge. As the party urging that error occurred below, it is appellants’ responsibility to designate the portion of the record in which that error may be found. United States v. One Motor Yacht Named Mercury, 527 F.2d 1112, 1113-14 (1st Cir. 1975). Because a judgment n. o. v. amounts to a statement that the facts presented at trial could not support a reasonable man’s conclusion that liability exists under the law presented to the jury, the instructions — which contain the law — would seem to be an essential part of the record.
Rehearing
MEMORANDUM AND ORDER ON PETITION FOR REHEARING
BY THE COURT.
Appellants have provided a transcript of the jury charge and have made further arguments explaining Puerto Rico law in a petition for rehearing. Because we are cognizant of the sometimes extreme difficulty of obtaining trial transcripts during the period in question, we have taken the extraordinary measure of permitting supplementation of the record.
While it may be true, as appellant now argues, that a manufacturer’s strict liability and liability for negligence are synonymous under 31 L.P.R.A. § 5141, a proposition we doubt in light of the Puerto Rico Supreme Court’s discussion of the two theories in Montero Saldana v. American Motors, No. 1978-52 (May 31, 1978), the problem remains that appellants failed to explain this congruence to the trial court. Rather, the jury charge clearly establishes that plaintiff-appellants proceeded upon a theory of defendants’ failure to use reasonable care. More important, the charge, to which appellants did not object, expressly excludes the “crash-worthiness” theory presented on appeal. The jury was instructed: “The manufacturer does not have the duty to warn of potential dangers which can only come to a user solely because of its own negligence or because of acts of third persons or from the use of the product in an unintended manner or for ap unintended-purpose.”
Sailing into power lines was not an intended purpose of the product. Nothing in the charge allowed the jury to impose liability for failure to provide safety measures for unintended misuse and nothing argued below suggested that the jury should be charged differently.
The petition for rehearing is hereby denied.