*3 Sakellson modified the tent to accommodate Before ROSS, BRIGHT and Circuit from wood-burning stove he had built Judges, LARSON, and Senior District sheet metal. The consisted a rec- stove Judge.* tangular legs metal box mounted on metal BRIGHT, Judge. Circuit with a door on one side. Sakellson pipe vented equipped the stove with a Vera brought Randall liabil- through tent’s a hole he had cut in the ity against Warnaco, action Inc., Hirsch- rings to clamped stovepipe roof. He metal Weis (Warnaco) Division to recover dam- hole roof to the fabric around the in the ages injuries she sustained when a fire protect stovepipe. the fabric from the hot broke out in tent by manufactured War- addition, layers placed In several Sakellson naco. Warnaco in turn filed a third-party stove to aluminum foil underneath the complaint seeking contribution and indem- prevent burning the hot ash or coals from nity against Sakellson, Larry the owner of tent floor. the tent and camping Randall’s companion. The district court directed a during camp- verdict for testified that Sakellson Warnaco on by stove ing trip he had started fires in the and submitted the case to the only on using twigs paper small in combination the issue of special On a he had lighter with charcoal fluid. When form, verdict the jury lighter found in favor supply exhausted the of charcoal Warnaco on Randall’s liability theory. fluid, camp- he switched to Coleman brand * EARL R. LARSON, designation. United States Dis- Senior Judge, sitting trict District of Minnesota, ing door, fuel tent through fires in To make her exit doing start the stove. so, pour Sakellson would a small amount of of flame. through ran a sheet As a Randall fuel into cup pour and then fire, it from the severe she received burns result of cup log. onto a He place would then body, including fifty percent over of her log into ignite log stove with a face, hands, legs. lighted Although match. Randall had ob- in federal brought Randall this action served procedure Sakellson follow this manufacturer, against War- the tent court1 occasions, several she had not started fire Division, naco, Inc., claiming Hirsch-Weis prior the stove herself to November injuries suffered damages she strict lia- sought recovery under fire. She accident, The evening of the Sakellson warranty negligence, bility, and breach sleep went to p.m. around 8:00 theories, injuries alleging resulted that her separate crawled into her sleeping bag manufacture the failure from Warnaco’s about an thereafter, hour later. Shortly *4 material, its fail- tent with flame retardant cold, because she was of got Randall out her tent, in the a second exit ure to include sleeping bag to check the fire. checked She warning supply of the tent’s its failure to a the stove and observed that the fire started abandoned her flammability. Randall earlier by gone Sakellson had out. She during warranty theory trial. breach of poured then a small amount Coleman of court, objec- Randall’s The over district fuel into a cup and from cup the dribbled tion, alleging Warnaco’s the claim the dismissed fuel of logs onto one the Sakellson had stored at Randall’s case. Randall, negligence in the the close of According tent. to evidence, log appeared the to soak the court up the At close of all the fuel. She the placed then log jury the into only the stove and submitted the case to the light reached in it to with a match. Flames remaining theory liabili- of —strict leaped out of the side door of the stove form, the ty special a verdict tort. On toward her. had that failed to determined Randall necessary to hold War- prove the elements Randall testified she then her turned Following entry strictly of naco liable. back on the cooking stove reach for a motion for a judgment and denial of her utensil something or with which close the trial, appealed. stove new Randall door. When she turned back she ob- served the and ceiling wall of tent on the Negligence of Claim. II. Dismissal fire. Sakellson awoke to Randall’s screams and saw on top flames of the can of Cole- Liability Theory A. Whether the Strict man fuel the and on wall of the tent behind Negligence Claim. the Subsumed Randall. got He out sleeping bag, of his she was entitled maintains that Randall grabbed can, unzipped the only exit to negligence theory submitted to have her tent, and threw the can out of the tent. prima a because she established truck, Because the can landed near his Sa- agree. We negligence.2 facie case of kellson of ran out the tent and tossed the can Warnaco on directing In a verdict for second time exploded. before it When he not deter- get the trial did negligence, turned around to out tent, of the the tent was all aflame. to establish mine that Randall had failed diversity citizenship negligence Jurisdiction on Randall failed to rests claim because of requisite controversy. amount In 28 of out a submissible case make (1976). gov- denying U.S.C. § posttrial North law Dakota and order memorandum its rights parties. trial, erns spe- and liabilities of the the court motion for a new Randall’s cifically a verdict on stated that it had directed appeal, confusing 2. On negligence Warnaco asserts that Randall claim to avoid prima negli- negli- failed to establish facie of case Randall’s because it deemed gence, implying that by the district court removed gence the strict liabili- claim to be subsumed negligence ground. claim on this We theory. reject ty charac- Wamaco’s we transcript reviewed and find no reference ruling. court’s terization of the trial by the trial court it directed a verdict on co, Inc., Division, No. 477— negligence theory. submissible case on her Hirsch-Weis Instead, (D.N.D. 11,1980). In alleg slip op. court dismissed her claim Dec. trial, ing a new negligence Warnaco’s motion rejecting to avoid confus for Randall’s ing justified ruling jury,3 “plaintiff’s rights because its the trial court further * * * preserved would be ground better if she were required pursue negligence theory the more subsumed totally favorable strict * * liability theory *.” Randall v. Warna claim.4 liability. While the court strict products refused to submit Randall’s instructions negligence e.g., to the & avoid confu Roebuck Sears, Company, Jiminez v. sion, nevertheless submitted the 482 P.2d comparative Cal.Rptr. Cal.3d both (1971) (applicability Randall and de doctrine third-party 769, fendant Sakellson. The court relied on Busch loquitur). instant But res ipsa v. Busch Construction, N.W.2d 377 subsumed plaintiff’s (Minn. 1977), submitting as authority plain Im theory. tiff’s comparative in a jury’s of defend favor plicit case. The North Dakota Su the non- ant was the conclusion that neither preme Court has not yet decided whether com the tent nor construction flame retardant parative applies constituted a rear exit failure to provide case. See Johnson v. Monsanto Co., 303 design manufacturing which ren defect or (N.D.1981); N.W.2d 86, 94 v. Ertelt, Feuerherm dangerous, unreasonably dered the product (N.D.1979). N.W.2d In view, our injuries. causing proximately plaintiff’s serious doubt exists that North Dakota would light jury could not conclusion, follow Minnesota’s lead and apply comparative negligent find that the tent was consistently as a defense to strict designed if a manufactured, or ly North Dakota has Supreme Court adopted dangerous is not because unreasonably *5 rule of strict set out in 402A § of the negligent not manufactured, it it is way was (Second) Restatement of Torts, has quoted Halvorson v. it to manufacture way. with from approval comment n to that section. 48, 307 Minn. Co., American Hoist & Derrick Olson v. A. W. Chesterton 256 Co., 530, N.W.2d Wag (1976). also 303, 240 N.W.2d 307 See (N.D.1977). Comment n 402A §to states: Co., 611 F.2d ner v. Harvester International negligence. n. Contributory Since the lia- 1979) (applying Minnesota 224, 229 with which bility this Section deals is not Jennings, law); v. Everest & McIntyre negligence based upon seller, of the 1978), cert. de 575 F.2d strict liability, rule to strict liabili- applied 187, 58 L.Ed.2d nied, 439 U.S. 99 S.Ct. (see 524) ty cases § applies. Contributory law). (1979) (applying Al Missouri negligence of the plaintiff is not a defense though does a verdict of nondefectiveness negligence when such consists in a merely negligence on other preclude failure to discover in the defect product, grounds, negligent to warn, as failure such guard against or to of its exist- possibility Wagner, Engi Heath 229; Leskey supra ence. On the other hand the form of contrib- neering 39, 40-41 Minn., 293 N.W.2d Co., negligence utory which in consists voluntari- (1980); Bigham Co., Minn., v. J. C. Penney proceeding ly and unreasonably to encounter (1978), case, under N.W.2d 892 in this danger, a known and commonly under passes grounds of law, no there were applicable the name of assumption risk, is a defense negligence lia by not encompassed this Section as in other cases strict bility theory. If the user or consumer discovers to warn Dakota a failure law, Under North danger, the defect and is aware of the dangers in a intended inherent product’s nevertheless proceeds unreasonably to make reasonably use and in a use which can be injured use of the and is product it, he is by unreasonably constitute may anticipated, barred from recovery. [Restatement subjecting dangerous seller defect, (Second) (1965).] of Torts § 402A comment n in v. Plains strict tort. Schmidt Regardless of whether North Dakota will ulti- (N.D.1979); Elec., N.W.2d Inc., 281 negligence mately adopt ordinary as a defense 256 N.W 2d v. W. Chesterton Olson A. argu- strict we do not accept (N.D.1977). responsibili- This same ment that an instruction defendant’s recognized cases, has been in ty in this case would have confused 221 N.W.2d Seibel v. Symons Corporation, jury, inasmuch as the district court in- (N.D.1974), that when a 50, 54-55 except structed on as a plaintiff’s defense. to warn is failure 4. The trial court reasoned as follows: bur- relieves the presented, plaintiff it recognizes proving The manufactur- den of by some situa- advantage Jahnig tions it N.W.2d may Coisman, S.D., er. plaintiff’s (1979). have instructions addition to analysis plaintiff
Our proved by prepon- of the law of the case Has the as jury instructions, embodied in the how- of the evidence all the issues she derance ever, proving against de- demonstrates that the has the burden of theory did not fendant as those issues have been set out necessarily neg- subsume the ligence in these instructions? claim. question in the The answered this trial court instructed negative, leaving remaining questions
Randall had the burden of proving each of special verdict form unanswered. the following elements to establish strict liability: general in interrogatory Because this was First: That the tent involved in this form, case jury’s determination the basis was a Caravan model prove tent manufac- that Randall had failed to placed
tured and
liability theory
stream of
unknown. The
com-
remains
by
merce
might
defendant
have determined that Randall failed
Hirsch-Weis. In
there
element of her strict
dispute
is no
establish
second
on this
court’s in-
issue.
claim as set out in the
structions because
substantially
Sakellson
Second: That
the tent was defective
changed the tent’s condition after it en-
when
defendant,
it left the control of
by venting
tered the stream of commerce
and it
expected
was
product
woodburning
to accommodate the
stove and
would reach
user,
and did reach the
pipes.
rejected
plaintiff, without
change
substantial
considering
Randall’s claim without
wheth-
the condition in which
placed
it was
er
in fact.
was defective
the stream
of commerce
defendant.
product,
modification of the
Sakellson’s
Third: That
the defect
rendered the
however,
not bar
under Ran-
need
product unreasonably dangerous to a
negligence theory. Although
dall’s
Sakell-
user, for the use intended.
might
modifying
son’s conduct in
the tent
Fourth:
That
using
proximate
be considered on the issue of
way
in a
it was intended to be
apportioning
cause
fault under the
used, or in such way
as could have
negligence theory,
could still find
been reasonably anticipated by the de-
injuries
War naco
based
liable
fendant.
Willi-
City
Bartels v.
*6
Fifth: That the defective condition was a
ston,
(N.D.1979)(pure
276 N.W.2d
proximate
plaintiff’s injuries.
cause of
applies in cases in-
comparative negligence
No.
[Instruction
22]
Thus,
tortfeasor).
volving
in
more than one
In submitting the case to the jury,
verdict,
the
light
of the instructions and
provided
special
a
verdict form which
liability theory
say
we cannot
that the strict
contained the following question:
totally
negligence claim.5
subsumed the
case,
In the instant
given by
court,
finding
court’s instruction
tions
a
of no defect
provided
part
in
as follows:
would be inconsistent with a
product may
negligent
A
Although
also be defective and unrea-
failure to warn.
the North
sonably dangerous by
Supreme
Dakota
relationship
gence
reason
Court has not addressed the
of a failure to
dangers
liability
negli
warn of
ticipated.
reasonably
between strict
that can
and
be
an-
context,
analysis
in
A
duty
of the
manufacturer has a
persuasive.
dangers
court in
warn of
Halvorson is
product’s Minnesota
inherent in the
use,
intended
dangers
Warnaco, Inc.,
and also to warn of
[Randall
Hirsch-Weis Divi
sion,
involved
reasonably
use which
supra, slip op.
can be
at 2-3.]
anticipated. . . .
Again, implicit
jury’s finding ip
favor
theory
liability may present
a broader
of defendant was
Strict
its conclusion that defendant
cases,
dangers
recovery
did not fail
it relieves
to warn of
because
so as to render
some
establishing
unreasonably
plaintiff
dangerous
the tent defective
and a
the tent
of the burden of
proximate
plaintiffs injuries.
cause of
If
neces-
It does not
manufacturer’s
sarily
unreasonably
was not
dangerous
follow, however,
that a determination
warn,
strictly
because of a
particular
failure to
defendant could
liable
that a
is not
defendant
negligent
not be held
implicit finding
for such a failure.
con-
that his
carries with it an
Halvorson, supra.
upon
negligence
Based
the instruc-
negligent. Because
duct was not
unreasonably dangerous be-
The conclusion that Vera
is uct was not
negligence
entitled to a new trial on
warning
her
labels. Id. at
inadequate
cause of
support
claim receives
from this court’s de 1354-55.
holding
cisions
that a
verdict for the
in Sterner
recognize
We
that the verdicts
plaintiff on a negligence claim not
is
incon may
and irreconcilable.
seem inconsistent
sistent with a verdict for the
on
defendant
J., concurring). We
(Henley,
at
Id.
liability
strict
Wagner
claim.
v. In
See
sense,
note,
general
also
in more
(8th
ternational Harvester
focuses the conduct fearful defendant and Wisconsin liability product, juries might condition of the lest be misled conceptually impossible say instruction, becomes juries that a able to con- wanted be verdict including recovery, defendant a strict sider bases for additional always disposes plaintiffs count light, negligence. Viewed in this the Wiscon- defect, alleged claim based on the same unless provide Supreme sin decision to al- Court’s one negligent assumes the conduct of ternative and strict recov- the manufacturer must render the un- certainly ery cases reasonably dangerous in the strict unreasonable. we conclude *7 jurisdiction sense. At rejected least one has apply court to Wisconsin’s district products failed assumption. such an See Fischer v. Cleveland liability rule when it declined to Co., Punch & Shear Works 91 Wis.2d liability jury instruct the on both strict (1979); N.W.2d cf. Wilson v. General at 685.] [Id. (N.D.1981) Motors 311 N.W.2d Supreme The has also North Dakota Court (implying product that need be unreasona- liability recognized products claim based that a bly dangerous hold manufacturer liable may warnings predicated inadequate on negligence). Thus, Circuit, apply- the Seventh liability negligence both and strict theories. ing law, plaintiffs Wisconsin held that were Co., supra, 256 Chesterton See Olson A.W. products entitled to have their claims N.W.2d at submitted on both and strict Co., theories. Hansen v. Cessna Aircraft negligence, Randall On retrial on the issue of holding, In so the Wamaco’s seek establish court observed: the its tent based on failure to manufacture materials, Since adopted failure to was with its in Wis- flame retardant exit, plaintiffs consin to warn make failure to easier for include a second and its liability cases, quite flammability. it seems the tent’s by the reasonably anticipated defendant.” the combination of the stove and spilled made clear Coleman fuel caused Randall’s instructions court’s other The injuries, caught even before the had tent if it could be liable Warnaco could that fire. Warnaco now insists that use to which reasonably foreseen liability theory verdict on the rests circum- these put. Under the tent was that Randall failed to establish whole con- stances, as a instructions causation, and, therefore, necessarily dispos- of strict proper standards formed with es of her claim as well. W. Chesterton v. A. Olson See Co., recognize parties seriously We N.W.2d at 535. supra, that causation, disputed which is an essential Rulings. Evidentiary IV. element of both and strict liabil- ity however, disagree, theories. We with that several Finally, maintains Randall Warnaco’s contention that the verdict evidentiary rulings call the trial court’s for it on strict liability precludes recovery specifically address reversal. We as a matter of law on Randall’s without the court admitted contention that claim. The strict liability instructions re- experi- videotape proper foundation quired that Vera Randall establish all five pour- each young women showing ment five prevail. elements of strict Her log. ing fuel on a Coleman prove failure to any one element would demonstration, obtain- Warnaco For this explain jury’s verdict. Because the Forest National logs ed from the Bitterroot form permitted of the verdict had Montana, Randall to the one similar deny recovery on strict because of night of the on the used to start the fire modification, jury may not have at issue videotape evidence The accident. question reached the of causation. pour- young women we of the five say cannot as a showed each matter of law that the over question cup resolved the and then ing of causation ad- fuel into Coleman task, versely to Randall. performing this logs. one of the varying spilled subjects each of III. Liability. Instruction on Strict her hands and amounts of fuel on Randall next tent’s floor. asserts improperly instructed the this evi- admission of objected to Randall must establish that “the defect approxi- that use ground dence on the rendered the unreasonably danger fuel each of mately cup half user, ous to a for the use intended.” In record. support in the subjects no found added). struction (emphasis Randall ar very only she used asserts that gues required that she should have been night of fuel on the small amount of prove only [prod “that the use made of the Therefore, this ex- contends she accident. reasonably was foreseeable and that uct] requisite lacked the perimental evidence [product] unreasonably dangerous for admission. foundation when so Hughes Magic used[.]” experimental admissibility of Chef, Inc., (Iowa 1980). 288 N.W.2d the discretion largely within evidence rests agree We Hughes forth sets court; the court’s determination of the trial appropriate single rule. A erroneous in- showing of absent a will not be overturned struction, however, require does not rever- Wagner v. Interna abuse of discretion. instruction, sal subsequent if a or considera- at 232. supra, 611 F.2d tional Harvester tion charge, of the entire cures the error. experimental may properly admit A court Wright v. Co-op Farmers Arkansas *8 the tests were conducted evidence if Oklahoma, 694, (8th 1980). 620 F.2d 697 Cir. actu substantially similar conditions 22, The fourth quot- element of instruction Co., v. B. F. Goodrich al Collins conditions. supra 8, ed clearly jury informed the that 1977). Admissi 908, (8th 910 Cir. it 558 F.2d could “plaintiff consider whether was us- perfect however, depend on not ing bility, does way the in a it was intended to used, experimental be or in actual and way identity such a as could have been between 1234 unduly prejudicial. sion be Ordinarily,
conditions.
dissimilarities
could
deemed
affect
evidence,
209,
weight
French,
the
of
212
the
not its admissi-
v.
638 F.2d
See Brandt
bility. Ramseyer
(10th
1981);
v.
Young
General Motors
v. Illinois Central
Cir.
859,
(8th
417
(5th
F.2d
864
Cir.
Co.,
338
Gulf
F.2d
Railroad
admissi-
1980).7
rule on the
Cir.
We do not
experiment
As an
to demonstrate
on
bility
grounds
on these
of
evidence
this
the absorption properties of the wooden
to ob-
appellants failed
appeal,
this
because
logs, the evidence
properly
admissible
ject
reenact-
as an unfair
to the evidence
and relevant to support
Warnaco’s
ment.
that Randall suffered her burns when fuel
that
log
evidentiary
had run off the
onto the floor
We
the other
of
have reviewed
the
ignited
tent
setting
the
light
Randall on fire.
of
rulings
appeal
In
on
raised
light of
the testimony
largely
regarding
rulings
the
record
whole. Those
as a
amount of fuel
night
used on the
Ad-
discretion.
fell
the trial court’s
within
accident and the
during
occurred,
amount used
the
the error
ditionally,
any error
if
experiments,
say
we cannot
that the trial must be
harmless.
deemed
court abused its
admitting
discretion in
the
judgment of
the
Accordingly, we affirm
experimental evidence here at
issue as
the
district court on
against
objection
the
that
this evidence claim,
new
remand for a
reverse and
adequate
lacked
foundation.
Appel-
question
negligence.8
trial
of
on the
However,
misinterpretation
appeal.
to avoid
lant
to costs
is entitled
of
ruling,
this
some additional comment
ROSS,
Judge, dissenting.
seems
Circuit
appropriate. While the experimental
evidence here in question may have served
agree
majority’s conclu
I do
with the
permissible
the
purpose of demonstrating
refusing
erred in
sion that the trial court
physical
certain
properties,
likely
it also
claim to the
appellant’s negligence
submit
impermissible
served the
purpose of reen
Appellant’s
in this case.
acting the accident
the jury.
on Warnaco’s
primarily
count was based
the
In
failure
the consumer or recall
videotape demonstration,
the
to warn
Warnaco
was an
attempted
allegedly
tent
it
knew there
when
duplicate the
of
scene
Appellant
accident,
flammability problem.
extreme
using a similar tent
replica
and a
holds,
gener
stove,
argues,
majority
assembling articles similar to
ally
for the
those
not be inconsistent
would
night
tent on the
of the acci-
dent,
negli
defendant was
to have found the
recruiting
young
five
women sim-
gent
danger
failing
ilar in
to warn about the
age and size to Vera Randall.
In
duplicating the
was nondefective
scene,
accident
Warnaco
that,
sought
prove
purposes
of strict
more than
absorption
properties
therefore,
negligence theory
should
logs;
it portrayed to the
accident,
this ease.
night
presented
have been
Vera
Randall,
women,
like the
young
poured
Wagner
five
v. International Harvester
Coleman
1979) (applying
fuel on
herself and
on the floor
F.2d
In
tent.
regard,
law); McIntyre
this
experimental
v. Everest &
Minnesota
evidence
very
(8th Cir.),
became
close to
cert.
Jennings,
a reenact-
F.2d
accident,
ment of
denied,
and as
such its
admis-
S.Ct.
439 U.S.
highly
introducing
Because of the
must
nature
the evidence
demonstrate
persuasive
judge
great
films, a trial
must exercise
caution
than
more
identical
set of conditions
nearly
ruling
when
showing
on the admission of films
demonstrate
merely
when
experiments
experiment,
to assure that
will
Fletcher,
su-
Jackson
physical
properties.
enlightened,
rather
than misled.
Jackson
at 1027.
pra,
1981);
Fletcher,
647 F.2d
Brandt v. French,
1235
(1978)
law);
(applying
product’s
L.Ed.2d 173
use or those uses which can be
Missouri
Bjerk
Corp.,
v.
Engineering
Universal
552 reasonably anticipated
negli-
in both
exists
1314,
(8th
1977) (applying
1317
Cir.
under North Dako-
gence
liability
and strict
law);
Plywood-
Minnesota
Sterner v. U.S.
W.
ta
v. A.
Chesterton
law. See Olson
Champion
Inc.,
1352,
Paper,
519 F.2d
1355
530,
(N.D.1977).
256 N.W.2d
535
(8th
1975)
Cir.
(applying
law).
Iowa
Corp.,
Symons
v.
error in the court’s failure to instruct the
jury as to negligence. Appellant argues, majority ap- and the
pears conclude, prejudiced that she was Interrogatory 1. (R:115). No. 1 No. 22 provided Instruction part: Has the plaintiff proved by preponder- ance of the It would that under current North appear evidence all the issues she has the covering al- proving against burden of Dakota law as defendant those issues teration or modification of a after been set out in these instruc- (See tions? user is a sale to the initial or consumer Instruction No. injury Yes_ No_ Answer: cause of contributory substantial against regard- If bars the manufacturer Interrogatory your answer No. 1 is legal “No” less which the action remaining you upon need not consider interrogatories. & 28-01.1-04 §§ based. See N.D.Cent. Code (R:123). (1979). -06