Ricci v. Alternative Energy Inc.

United States Court of Appeals
For the First Circuit

No. 99-1919

THOMAS R. RICCI, ETC.,

Plaintiff, Appellant,

v.

ALTERNATIVE ENERGY INC., BEAVER PLANT OPERATIONS, INC.,
ZURN EPC SERVICES, INC., AND ZURN INDUSTRIES, INC.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Boudin, Circuit Judge,
Bownes, Senior Circuit Judge, and
Lynch, Circuit Judge.

Kevin J. McAllister, with whom Brennan, Recupero, Cascione,
Scungio & McAllister and E. James Hamilton were on brief, for
appellant.
Daniel R. Mawhinney, with whom Michael R. Bosse and Thompson &
Bowie were on brief, for appellees Zurn EPC Services, Inc. and Zurn
Industries, Inc.
Phillip D. Buckley, Paul W. Chaiken, and Rudman & Winchell, LLC
on brief for appellees Alternative Energy, Inc. and Beaver Plant
Operations, Inc.
 May 2, 2000

LYNCH, Circuit Judge. A fall of some 80 feet from a tall
biomass stack at a power plant in Livermore Falls, Maine, killed
David Ricci, a young environmental worker sent to do emissions
testing on the stack. This tort action by Ricci's father,
Thomas Ricci, was brought against the company whose stack was
involved, Alternative Energy, Inc., and its predecessor ("the
AEI defendants") and the design/build contractor of the power
plant, Zurn EPC Services, Inc., and its parent corporation ("the
Zurn defendants").

The primary question in this case is whether, on the

materials submitted on summary judgment, a factfinder could find

only that the competing inferences explaining Ricci's cause of

death are equally probable, or whether the evidence would permit

the factfinder to infer that one explanation, on which

plaintiff's negligence claim rests, is the more probable cause

of Ricci's falling to his death. Specifically, the question is

whether the inferences (for there were no witnesses to the

accident) permit the conclusion that it is more likely that

Ricci inadvertently fell into a ladderway opening while moving

about the high platform where his work tools and gloves were

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found than it is that he fell as he was about to descend the

ladder. The question is important to plaintiff's negligence and

other tort theories because the platform next to the ladderway

opening was admittedly missing safety guards called for in the

design plans. The district court found the one inference no

more likely than the other and, because the plaintiff could not

prevail if the inferences were evenly balanced, entered summary

judgment dismissing plaintiff's claim.

On appeal, plaintiff argues that the grant of summary

judgment was in error for two reasons. Only a jury, and never

the judge in a jury-claimed case, can weigh the probabilities of

different inferences, he says, and so it was improper to resolve

this question on summary judgment. The plaintiff also urges

that the inference that Ricci fell through the unguarded hole is

both rational and more probable or, alternatively, that the res

ipsa loquitur doctrine applies to this case, entitling plaintiff

to get to the jury.1 The plaintiff is wrong on the first point,

1 The plaintiff makes another argument which may be swiftly
rejected. It was premature, plaintiff says, for the trial court to
consider summary judgment when it had not yet ruled on plaintiff's
objections to the magistrate's order denying plaintiff the right to
depose the two OSHA compliance officers who investigated Ricci's death.
The Secretary of Labor had successfully moved to quash the deposition
subpoenas. A party who wishes to forestall ruling on summary judgment

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but we conclude that it was error for the district court to

grant summary judgment for the defendants.

I

Our review of the entry of summary judgment is de novo,

and we resolve all reasonable inferences in favor of the

nonmovant in describing the undisputed material facts. See

Sheehan v. Marr, No. 98-1813, 2000 WL 298565, at *3 (1st Cir.

March 27, 2000).

On August 26, 1996, Ricci was sent by his employer,

Eastmount Environmental, Inc. of Rhode Island, to the Livermore

Falls, Maine, power plant to conduct emissions testing on the

biomass smoke stack.

The stack was housed in a structure adjacent to the

"precipitator." The precipitator and the stack housing were

approximately one to two feet apart. Ricci was to perform his

testing high up the stack, on a platform approximately four feet

wide that encircled the stack. Access to the platform was from

because material discovery has not been taken is obliged to file an
affidavit under Federal Rule of Civil Procedure 56(f). Plaintiff did
not do this. In any event, plaintiff had the full OSHA file, and the
magistrate's order was plainly correct. See United States ex rel.
Touhy v. Ragen, 340 U.S. 462, 468 (1951). Plaintiff had what he needed
from the OSHA file.

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a ladder attached to the stack that passed through a twenty-

eight inch by thirty inch rectangular opening in the platform.

The ladder was accessible from the precipitator roof via a

catwalk approximately two to three feet wide that spanned the

distance between the precipitator roof and the ladder. The

platform was approximately seventy feet above the precipitator

roof.

Ricci, who had never been to the Livermore Falls

facility, arrived there at approximately 1:40 p.m. He spoke

only briefly to the plant engineer. Ricci and a co-worker, Paul

Lynch, were intended to work together. Lynch, however, had

initially gone to the wrong plant. Discovering his mistake,

Lynch then went to the Livermore Falls facility and found

Ricci's body there. At approximately 3:30 p.m., Lynch notified

Dale Dyer, the plant engineer, that he had found Ricci and

requested rescue personnel. Ricci's body was in the narrow

crevice between the precipitator and the stack housing,

approximately two to three feet to the left of a point directly

underneath the platform ladderway opening.

There were no eyewitnesses to Ricci's fall. Hair and

tissue specimens and blood splatters were observed at a number

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of locations above, on, and below the precipitator roof level,

close to the base of the ladder, and near Ricci's body. Two

wrenches and an apparently unused Saf-T-Climb2 were found on the

precipitator roof a few feet to the right of the catwalk that

accessed the ladder. Gloves and a tool box were found on the

platform. One estimate is that the gloves were approximately

two to four feet from the ladderway opening. The tool box was

approximately eight feet away from the ladderway opening.

Another Saf-T-Climb was found attached to the center rail of the

ladder, at waist height, above the platform. There is no

evidence that the Saf-T-Climb was damaged or defective. There

is no evidence that the Saf-T-Climb device found there was used

or left by anyone other than Ricci. Rope and conduit were

coiled at the base of the ladder. Ricci's safety belt was still

around his waist, and attached to it was a D-ring that would be

used to attach to a Saf-T-Climb. There is no evidence that

Ricci's safety belt or D-ring were damaged or defective. The

2 A Saf-T-Climb is a ratcheting device used to safely
climb a ladder. The ratcheting mechanism attaches to a center
rail on the stack ladder and moves up as one climbs but holds
fast if one falls. The ratcheting mechanism is connected to
nylon webbing that has a clipping hook at its end. This hook
clips in to a D-ring on the climber's harness or safety belt.

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weather had been relatively calm with no evidence of rain prior

to the discovery of Ricci's body.

There are only five to six inches of slack in the Saf-

T-Climb when it is attached to a climber on the ladder. Other

climbers sometimes also use a six foot lanyard, attached to

their harness or safety belt and with a clip on the end, to

secure themselves before attaching to or detaching from the Saf-

T-Climb when getting on or off a ladder. There is no evidence

that Ricci wore such a lanyard. There was a rope attached to

his harness, but it had a taped end instead of a hook or

clipping device. Lynch, Ricci's coworker, stated that Ricci did

not appear to have a safety lanyard on his harness when he found

him. There is evidence that gloves, even when worn for

climbing, are not always worn when attaching to or detaching

from the Saf-T-Climb. There was testimony, the admissibility of

which was unresolved, that Ricci always wore his gloves when

climbing. There is evidence that some of Ricci's co-workers told OSHA

that Ricci went through a ritual of putting on his gloves before

ascending or descending ladders. There was also a statement from

one of Ricci's supervisors that Ricci was "highly safety-

conscious in his work."

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 The evidence suggests that if Ricci were alone and

wanted to do the assigned work, at some point he would have

needed to descend the ladder to get the rope and conduit found

at the base of the ladder. Lynch testified that all of the

necessary testing materials were not on the platform when he

found Ricci's body.

Plaintiff supported his theory of how the accident

happened with a report and testimony from an expert witness.

Defendants did not move to strike the testimony, but objected to

it in their reply to plaintiff's opposition to the motion for

summary judgment. The district court did not rule on this

evidentiary matter, however.3

II

A. Res Ipsa Loquitur

Under Maine law, application of the res ipsa loquitur

doctrine may affect plaintiff's burden of proof. See Sheltra v.

3 Defendants also argue to this court that the evidence of
Ricci's always wearing his gloves is inadmissible. They claimed before
the district court that this evidence was inadmissible. The district
court made no ruling on this question. As with the issue of the
admissibility of plaintiff's expert's testimony, we leave this question
to the district court.

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Rochefort, 667 A.2d 868, 870 (Me. 1995). Thus, we turn to that

contention first.

We recently described the doctrine in Varano v. Jabar,

197 F.3d 1 (1st Cir. 1999):

Under Maine law, the res ipsa loquitur doctrine
permits a finding of negligence in connection with an
unexplained event if the plaintiff can show (1) the
event was of a kind which ordinarily does not occur in
the absence of negligence; (2) other responsible
causes are sufficiently eliminated by the evidence;
and (3) the indicated negligence is within the scope
of the defendant's duty to the plaintiff. See Poulin
v Aquaboggan Waterslide, 567 A.2d 925, 926 (Me. 1989);
Ginn v. Penobscot Co., 334 A.2d 874, 878, 880 (Me.
1975). According to the Restatement (Second) of
Torts, 'It is the function of the court to determine
whether the inference may reasonably be drawn by the
jury, or whether it must necessarily be drawn.'
Section 328D(2) (1965).

Id. at 5. As in Jabar, there are reasonable alternative

explanations for the proximate cause of Ricci's accident, and so

the res ipsa doctrine does not, on this evidence, apply. See

Wellington Assocs., Inc. v. Capital Fire Protection Co., 594

A.2d 1089, 1092 (Me. 1991).

B. Sufficient Evidence to Prove Causation

1. Role of Judge and Jury

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 Plaintiff argues that a judge, on summary judgment, may

not "make assessments of factual possibilities and

probabilities" and uses that premise to attack the court's

ruling that "[i]f the probabilities are evenly matched, the

Plaintiff[] cannot prevail." Plaintiff's argument confuses the

question of the proper role of the judge on summary judgment

with the question of plaintiff's burden of proof.

It is the role of the judge on summary judgment to

determine whether a particular inference is reasonable. See

Mullin v. Raytheon Co., 164 F.3d 696, 698 (1st Cir. 1999);

Greenburg v. Puerto Rico Maritime Shipping Auth., 835 F.2d 932,

936 (1st Cir. 1987). Evidence presented on summary judgment may

be "inherently incredible" and so disregarded. Greenburg, 835

F.2d at 936. Judgment about whether an inference is reasonable

is different from a "judge superimpos[ing] his own ideas of

probability and likelihood (no matter how reasonable those ideas

may be)." Id. In fact, for negligence cases, the Restatement

(Second) of Torts, which is frequently cited with approval by

the Maine Supreme Judicial Court, see, e.g., Walter v. Wal-Mart

Stores, Inc., No. 99-364, 2000 WL 371164, at ¶27-¶28 (Me. March

12, 2000); Kaechele v. Kenyon Oil Co., No. 99-280, 2000 WL

-10-
225891, at *3 n.5 (Me. Feb. 29, 2000); Bryan R. v. Watchtower

Bible and Tract Soc'y, 738 A.2d 839, 844-45 (Me. 1999); Collomy

v. School Admin. Dist. No. 55, 710 A.2d 893, 895-96 (Me. 1998),

provides:

It is the function of the court to determine . . .
whether the evidence as to the facts makes an issue
upon which the jury may reasonably differ as to
whether the conduct of the defendant has been a
substantial factor in causing the harm to the
plaintiff . . . .

Restatement (Second) of Torts § 434(1)(a). The trial judge acts

well within his authority, then, in assessing the reasonableness

of the inferences that might be drawn from circumstantial

evidence.

The trial court stated that the plaintiff could not

prevail if the only conclusion that could reasonably be drawn

was that the probabilities of plaintiff's and defendants'

competing theories as to what caused Ricci's fall were evenly

matched. The trial court's statement was accurate. "A mere

possibility of such causation is not enough; and when the matter

remains one of pure speculation and conjecture, or the

probabilities are at best evenly balanced, it becomes the duty

of the court to direct a verdict for the defendant."

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Restatement (Second) of Torts § 433B cmt. a (emphasis added);

accord Champagne v. Mid-Maine Med. Ctr., 711 A.2d 842, 845 (Me.

1998) (stating that a tort plaintiff must establish causation to

avoid summary judgment and that "judgment as a matter of law in

a defendant's favor is proper when any jury verdict for the

plaintiff would be based on conjecture or speculation");

Unobskey v. Continental Ins. Co., 147 Me. 249, 257-58 (Me. 1952)

("Conjecture [and] choice of possibilities . . . [are] not

proof. There [must be] something more to lead a reasoning mind

to one conclusion rather than to the other.") (internal

quotation marks omitted) (second alteration in original). Given

that the burden of proof is on a plaintiff to show that it was

more likely than not that the defendant's negligence caused the

harm, the trial judge's method of analysis was appropriate. Cf.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (explaining

that summary judgment should be entered against a party "who

fails to make a showing sufficient to establish the existence of

an element essential to that party's case, and on which that

party will bear the burden of proof at trial").

2. Inferences from Circumstantial Evidence

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 Under Maine law on the tort of negligence, a plaintiff

must show "(1) a duty owed to the plaintiff by the defendant;

(2) a breach of that duty; and (3) that the breach was the

actual and legal cause of plaintiff's injury." Hayes v.

Larsen's Mfg. Co., 871 F. Supp. 56, 58 (D. Me. 1994) (internal

quotation marks omitted). This appeal concerns only the third

element; the viability of plaintiff's case on the first two

elements has not been tested.

As plaintiff says, "[i]n order to establish proximate

cause, Plaintiff[] [has] to prove that David Ricci either fell

through[] or inadvertently stepped through the ladderway

opening." Defendants agree.4 Plaintiff urges he has done so

through circumstantial evidence. Under Maine law, proximate

cause may be established entirely through circumstantial

evidence. "A plaintiff may under many circumstances be

completely unable to remember or recount or explain an accident,

but may nevertheless recover if the deficiency is met by other

reliable evidence. Such evidence may be direct or

circumstantial. It may come from . . . known physical facts.

4 Defendants have not argued that they are entitled to summary
judgment on other grounds even if plaintiff could make this showing.

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It may raise reasonable inferences which satisfy the burden of

proof." Thompson v. Frankus, 115 A.2d 718, 720 (Me. 1955).

Defendants make a general argument that the cause of

the accident must be speculative because there were no witnesses

to it. Yet tort law often encounters situations in which there

are no witnesses and no direct evidence as to the cause of an

event that results in harm. Fire cases are one example. "By

the very nature of a fire, its cause must often be proven

through a combination of common sense, circumstantial evidence

and expert testimony." Minerals & Chems. Philipp Corp. v. S.S.

Nat'l Trader, 445 F.2d 831, 832 (2d. Cir. 1971). In criminal

prosecutions, as well, circumstantial evidence can sustain a

conviction. See Commonwealth v. Webster, 59 Mass. 295 (1850),

available in 1850 WL 2988, at *11-*17 (describing the use of

circumstantial evidence in proving criminal acts and noting that

"[i]t would be injurious to the best interests of society, if

[circumstantial evidence] could not avail in judicial

proceedings").

The defendants are right in one sense: where there is

no direct evidence, there may well be cases where the inferences

as to causation are simply too speculative to permit the case to

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survive summary judgment. The real question, then, becomes

whether the evidence would permit a jury reasonably to find that

plaintiff's theory of how Ricci fell is more probable than

defendants' theory. The district court's conclusion that the

evidence would not permit such a finding was certainly

reasonable; nonetheless, our review on summary judgment is de

novo and not deferential. Considering the circumstantial

evidence, we disagree with the well-respected trial judge that

a jury could not reasonably find plaintiff's explanation more

probable than defendants'. While close, this is a case in which

different people, drawing on their life experiences, could

reasonably reach different conclusions.

A jury could easily find that Ricci wore his gloves and

climbed the ladder up to the platform with the Saf-T-Climb

device engaged, arrived at the platform, took his gloves off and

disconnected from the Saf-T-Climb, and stood or walked on the

platform. The Saf-T-Climb device was found at waist level above

the platform, and Ricci's gloves and tool box were on the

platform. Ricci's tool box was approximately eight feet away

from the ladder, strongly suggesting that Ricci had to be

disconnected from his Saf-T-Climb and away from the ladder to

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put it there. Thus, a jury could reasonable infer that he did

not fall from the ladder before accessing the platform. This

was also the conclusion reached by Dale Dyer, the plant employee

who shared responsibility for administering safety programs.

Dyer observed and took photographs of Ricci's body and the

accident scene immediately after the body was discovered. A

jury could also easily infer from the location of Ricci's body

that he fell from either the platform opening or the ladder and

that he did not fall over the platform's perimeter guardrail.

It is reasonable to infer that Ricci would have worn

his gloves and used his Saf-T-Climb, which he had worn and used

on his way up, when climbing down the stack ladder. A jury

could reasonably infer, therefore, that Ricci did not fall from

a point below the ladderway opening while descending the stack

ladder (another of defendants' theories), because he had on

neither his gloves nor his Saf-T-Climb.

The most reasonable competing inferences, which the

trial judge identified, were that Ricci fell or stepped into the

ladderway opening inadvertently (perhaps for lack of a chain

guard) or that Ricci had positioned himself over or near the

ladderway opening as he was about to descend the ladder and fell

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before he was able to engage his Saf-T-Climb. We agree that

those are the two most probable inferences. The judge held that

neither inference was more probable than the other and that any

jury finding would, therefore, be based only on sheer

speculation. We disagree and explain why we think a jury could

rationally conclude that the first scenario was the more likely.

Both sides have working for them the fact that the

ladderway opening was a special danger. Defendants suggest that

it is easy to infer that Ricci lost his footing while straddling

the hole or attempting to mount the ladder. In response,

plaintiff urges that Ricci would have been particularly careful

in the face of such a danger, making an inadvertent fall while

accessing the ladder unlikely.

It is reasonable to view the evidence as disfavoring

the explanation that Ricci had stepped onto the ladder in order

to descend. Considering the purpose of the Saf-T-Climb, a jury

could conclude that it would not make sense for Ricci to have

gotten on the ladder before attaching to the Saf-T-Climb.

Further, the normal procedures called for Ricci to attach

himself to the Saf-T-Climb before getting on the ladder. This

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discounts the likelihood of defendants' argument that Ricci fell

while standing on the ladder itself.

Further, if Ricci had straddled or leaned over the

ladderway opening to connect to the Saf-T-Climb, it is

reasonable to infer that he would have been highly conscious of

his precarious position and that, had he slipped, he could and

would have grasped something to prevent falling through.

The location of Ricci's gloves is also significant with

regard to the theory that Ricci fell while getting on the

ladder. That Ricci would have worn gloves down the ladder is a

logical inference from his having worn the gloves up.5 His

gloves were neither in his pocket, nor were they right next to

the opening, as might be expected from someone preparing to go

down. The employee who ultimately brought the gloves down

testified that they were probably "two feet, three feet" from

the ladderway opening and that the tool box was perhaps eight

feet away. A photograph of the scene indicates that the gloves

were about three to three and a half feet from the edge of the

opening. There were only five to six inches of slack in the

5 The inference would be buttressed by the evidence, previously
described, of Ricci's safety consciousness and his practice of always
wearing his gloves, if admissible.

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Saf-T-Climb when a climber was attached to it. A jury could

infer that these distances meant the gloves would have been

barely reachable, or not reachable, by a person attached to the

Saf-T-Climb. A jury could conclude that if Ricci had been about

to descend, he would have put his gloves in his pocket or moved

them closer to the ladderway opening instead of leaving them

where they were found. This supports the inference that Ricci

was not leaning over or straddling the ladderway opening in

order to attach to his Saf-T-Climb when he fell.6 Accordingly,

a jury could reasonably conclude that the most likely cause of

Ricci's fall was his inadvertently stepping into the ladderway

opening while moving about the platform.

These reasonable inferences are sufficient, though

barely so, to permit a jury to find that plaintiff's explanation

is more probable than defendants'. Entry of summary judgment

was error. We reach this conclusion without considering

plaintiff's expert's opinion as to how the accident occurred.

6 The trial judge pointed to defendants' statement that there
was evidence that the gloves could be reached by a person on the
ladder. But that evidence was a statement by the person who retrieved
the gloves that he could do so without detaching from his lanyard; he
could not recall where he was standing when he retrieved the gloves.
The lanyard gave an extra five or six feet of slack not available to
Ricci.

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 It is true that plaintiff's expert testified that it

was more probable than not that Ricci had inadvertently fallen

through the ladderway opening. The reasons given by the expert

were largely those summarized above. We need not decide whether

any separate weight should be given to the expert's testimony in

this case, a case in which different peoples' views may depend

on their individual practical experiences and notions of common

sense.7

Our opinion is based only upon the record evidence on

summary judgment. The evidence may develop differently at

trial, and, if so, our conclusion does not foreclose the

possibility of a directed verdict.

C. Dismissal of Other Claims

7 Cf. Bieghler v. Kleppe, 633 F.2d 531, 533-34 (9th Cir. 1980)
(stating that where there were no witnesses to an accident, entry of
summary judgment was error in face of affidavit from accident
reconstruction expert, even though affidavit did not describe in detail
how conclusions were reached). Under Federal Rule of Evidence 703, an
expert may base his opinion on facts or data not admissible in evidence
if they are "of a type reasonably relied upon by experts in the
particular field." See also United States v. Corey, No. 98-1893, 2000
WL 298583, at *4 (1st Cir. March 28, 2000). Here, the expert relied on
statements from Ricci's father and co-workers to the effect that it was
Ricci's practice to wear gloves while climbing and that he was careful.
Even if that evidence were not admissible, there is no indication it is
of a type not relied on by experts in the field.

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 Plaintiff also complains about (a) dismissal of the

failure to warn and failure to train claims set forth in Counts

III and IV and (b) entry of summary judgment on the strict

products liability claim against the Zurn defendants set forth

in Counts IX and X.

As to the failure to train and to warn, the trial court

found that plaintiff "ha[d] not seriously pressed an argument

that some breach of those duties caused the accident in

question." The argument has been waived and is not open to

plaintiff on remand.

The dismissal of the strict liability claims followed

from dismissal of the negligence claim on proximate causation,

and that ground is no longer available. The Zurn defendants

argue that summary judgment is warranted nonetheless, because

the biomass factory is not a "product" under Maine law for

purposes of this claim. The district judge did not address this

argument, and we think it better to permit that to happen on

remand.

D. Choice of Law As To Remedy

Plaintiff claims that the district court erred in

ruling that Maine's wrongful death statute and Maine's law on

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comparative negligence and damages apply to this case. We

disagree. Plaintiff acknowledges that Maine's choice of law

rules govern this diversity action. Maine applies the

provisions of the Restatement (Second) of Conflict of Laws to

choice of law determinations in tort cases. See Adams v. Rubin,

964 F. Supp. 507, 509 (D. Me. 1997).

The Restatement provides as a general principle that

"the rights and liabilities of the parties with respect to an

issue in tort are determined by the local law of the state which

. . . has the most significant relationship to the ocurrence and

the parties." Restatement (Second) of Conflict of Laws

§ 145(1). In applying this general principle, courts are to

inquire into: "(a) the place where the injury occurred, (b) the

place where the conduct causing the injury occurred, (c) the

domicil[e], residence, nationality, place of incorporation and

place of business of the parties, and (d) the place where the

relationship, if any, between the parties is centered." Id.

§ 145(2). The comments to § 145 further note that "subject only

to rare exceptions, the local law of the state where conduct and

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injury occurred will be applied." Id. § 145 cmt. d.8 Given that

Ricci's accident occurred at the AEI defendants' power plant in

Maine, that the negligent conduct alleged (inadequate safety

chains or rails around the ladderway opening) occurred in Maine,

and that the contract for Ricci's services was entered into in

Maine, it is Maine law that applies to this case.

More significantly, the Restatement is fairly clear

with regard to choice of law questions in negligence actions.

Generally, the local law of the state where the injury occurred

applies. See id. § 146. The same holds true for statutory

wrongful death actions. See id. § 175. As with the general

principle for torts, in negligence actions in which the injury

and conduct occurred in the same state, that state's laws "will

usually be applied." Id. § 146 cmt. d.9

8 As an example of a rare exception, the Restatement suggests
cases in which "all interested persons" are domiciled in a state other
than the state in which the conduct and injury occurred. See
Restatement (Second) of Conflict of Laws § 145 cmt. d.
9 As with the general principle, the Restatement suggests that
there may be exceptions to this rule. The examples given, however, are
nothing like the present case. See Restatement (Second) of Conflict of
Laws § 146 cmt. d (describing a negligence action arising from mid-air
conduct and injury over state Y where all other relevant contacts for
both parties are with state X).

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 The relative clarity of the relevant Restatement

sections notwithstanding, plaintiff argues that Rhode Island has

the most significant interest with respect to damages, the

wrongful death statue, and contributory negligence because Ricci

resided in Rhode Island and the loss caused by his death will be

most felt there. Plaintiff relies on Collins v. Trius, Inc.,

663 A.2d 570 (Me. 1995), for this proposition. Collins involved

a bus accident in Maine. The Maine Supreme Judicial Court ruled

that Canadian law on damages applied in the case because the bus

company and bus driver were Canadian, the passengers were

Canadian, the passengers had purchased their tickets in Canada,

and the trip originated and was to conclude in Canada. See id.

at 572-73.

Those facts are far different from the facts in the

present case, in which the only connection to Rhode Island is

that Ricci resided there. This is simply not enough to overcome

Maine's relationship to and interest in this tort action. The

decision of the district court on choice of law was clearly

correct.

III

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 The decision of the district court awarding summary

judgment to the defendants is reversed and the case is remanded

for proceedings consistent with this opinion.

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