Cigna Insurance v. OY Saunatec, Ltd.

United States Court of Appeals
For the First Circuit

No. 99-1912
No. 99-1964

CIGNA INSURANCE COMPANY,
AS SUBROGEE OF WALTHAM RACQUET CLUB, INC.

Plaintiff, Appellee/Cross-Appellant,

v.

OY SAUNATEC, LTD.,
a/k/a HELO FACTORIES LTD., a/k/a SAUNATEC PLC.

Defendant, Appellant/Cross-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Boudin and Lipez, Circuit Judges, and
Casellas,* District Judge.

Elliott R. Feldman with whom William N. Clark, Jr., Cozen
and O'Connor, Roy P. Giarrusso and Giarusso, Norton, Cooley &
McGlone were on brief for Plaintiff, Appellee.
Robert D. Rachlin with whom Eric A. Poehlmann and Downs
Rachlin & Martin PLLC were on brief for Defendant, Appellant.

February 15, 2001
* Of the District of Puerto Rico, sitting by designation.
LIPEZ, Circuit Judge. On March 18, 1997, the Waltham

Racquet Club suffered severe damage from a fire that began on the

sauna heater located in its men's sauna room. Its insurer, Cigna

Insurance Company, later instituted this subrogation action

against OY Saunatec, Ltd., the manufacturer of the sauna heater,

alleging that Saunatec had negligently designed the heater,

negligently failed to warn, and breached its implied warranty of

merchantability. Saunatec appeals and Cigna cross-appeals from

a judgment entered on a jury verdict finding in favor of Cigna on

its negligence claims and in favor of Saunatec on the breach of

warranty claim. The jury found that the club had suffered

$853,756.37 in compensatory damages. The jury also found that

the club was 35% comparatively negligent, 12% of which was

attributable to the club's breach of duty of ordinary care and

23% of which was attributable to the club's failure to install

sprinklers in and around the sauna room. The court reduced the

damages awarded to Cigna accordingly. We affirm.

I. Background

We summarize the relevant facts, taken in the light

most favorable to the verdict. The Waltham Racquet Club,

originally constructed in 1974, included a men's sauna room

installed by an outside contractor. The sauna room was

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constructed entirely of wood, with two benches of differing

height running around the walls. The contractor also installed

the heater at issue in this case, a metal box placed in a corner

of the room with heating elements that were designed to be

covered by a mound of rocks. The heater did not, however,

contain a metal grill that would prevent direct contact with the

rocks. There were two wooden railings around the heater to

prevent patrons of the club from accidentally coming into contact

with the heater itself.

The 480 volt Saunatec heater installed in the club in

1974 was not listed by Underwriter's Laboratories (UL), contrary

to Saunatec's policy. The heater was equipped with a thermostat,

a control box, and a timer. At the time of its sale to the club,

a high limit switch was also installed. This switch was designed

to turn the heater off if it should become too hot, but it was

removed at some point before the 1997 fire. The high limit

switch was not the only part of the heater that had been changed

by 1997. The elements, timer, control box, and thermostat had

all been replaced in the time between installation and the 1997

fire. These changes had no effect upon the operation of the

heater because the replacements were all compatible with the

original design.

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 The heater was designed to be controlled directly by

the thermostat and timer. The timer set the hours during which

the heater would be in operation, roughly from 5:30 a.m. to 10:45

p.m. During those hours, the thermostat would turn the heating

elements on or off depending upon the temperature of the room and

the setting on the thermostat. Though there was some dispute

over whether the thermostat's sensor was properly located in the

sauna room, the jury could reasonably have found that its precise

location would not have affected the running of the heater.

Though the 1997 fire is the subject of this case, it

was not the first fire that the club experienced as a result of

this heater. Sometime between 1978 and 1988,1 someone left a

towel on top of the heater's rocks, starting a small fire. The

damage from this fire did not extend beyond the sauna room,

though there was rather extensive damage to the room itself.

Much of the interior woodwork and benches were scarred and burnt;

the rest of the sauna suffered smoke damage. After the fire, the

club had the damaged wood replaced. The heater was also examined

1 None of the witnesses at trial could identify the exact
date of this fire beyond generalized statements giving a range
of possible dates. Despite some differences in the dates given
by different witnesses, all were sure that the fire had occurred
during the time Susan Pappas was manager of the club. Because
a more precise date is irrelevant to our resolution of the
issues in this case, we have adopted the dates of Pappas's
tenure as the temporal boundaries of that fire.

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by a licensed electrician who determined that the fire had not

caused any damage to the heater.

Despite this first fire, the club continued to use the

heater, placing signs in the sauna warning about the danger of

fire if items were left on top of the heater. Members were also

warned of this danger through notices in the club's newsletter

and by members of the club's safety committee. In addition, the

club instituted changes in the schedules of the maintenance crew,

informing them that they were to check the sauna at least twice

every day to ensure that no items had been left near the heater

and to remove any items they found there. As a result, the

maintenance crew might enter the men's sauna to check for

discarded items as often as four times a day in addition to the

daily cleanup required as part of the general routine in the

club. The club also had a window installed in the door to the

sauna and instructed the maintenance crew to look into the sauna

for discarded items every time they passed. Finally, the club

had smoke detectors located throughout the building, including

one that was in the men's room immediately outside of the sauna.

These detectors were directly linked to the Waltham Fire

Department. The club did not install a sprinkler system, in part

because of a mistaken belief that none were available that could

operate in the high temperatures of the sauna.

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 These warnings and other measures did not completely

prevent members from leaving towels and other items in the

vicinity of the heater, a problem encountered by other clubs that

had saunas. On March 18, 1997 at 7 a.m., the club had another

fire from combustible materials left on top of the heater. By

that time in the morning, the heater had been on for

approximately an hour and a half, and the club had been open for

an hour. The heater had been checked for discarded items late

the night before and none had been found. There were no checks

in the morning because the maintenance crew did not arrive until

after seven. During the hour that the club was open, a member of

the club either accidentally or deliberately left a towel or

other combustible item on top of the heater, where it caught

fire.

The fire was discovered in its early stages by members

in the men's locker room who tried unsuccessfully to extinguish

it. Although the fire department arrived shortly thereafter, the

fire caused extensive damage to the men's and women's locker

areas, the lower lobby area, the wood joists providing structural

support to the second floor, and the restaurant located directly

above the sauna and men's locker room. In addition, the entire

club suffered smoke and heat damage. Later investigation

indicated that the fire had spread quickly because the normal

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operation of the heater had dried out the wood in the sauna room

and made it more combustible.

Cigna insured the club. After settling the club's

claim, it instituted this subrogation action against Saunatec,

alleging negligent design, negligent failure to warn, negligent

failure to warn of post-sale safety improvements, and breach of

the implied warranty of merchantability. Jurisdiction was based

upon diversity of citizenship, with Massachusetts law providing

the rule of decision. After an eight day jury trial, the jury

returned a special verdict, finding that Saunatec had negligently

designed the heater, had negligently failed to warn the club

post-sale that the addition of a metal grill would have

eliminated the danger posed by the defect, and had breached its

warranty to the club. The jury also found, however, that

Saunatec had met its burden of proving its affirmative defense

that the club had been unreasonable in its use of the heater,

thus preventing Cigna's recovery on the breach of warranty claim.

As to Cigna's negligence claims, the jury found the club was 35%

comparatively negligent, of which 23% was related to the failure

of the club to equip its sauna room with a sprinkler system. The

jury assessed damages at $853,756.37. The court reduced that

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award by the club's 35% comparative negligence before entering

judgment in the amount of $554,941.64.2

Following the entry of judgment, the parties filed

motions for judgment as a matter of law pursuant to Fed. R. Civ.

P. 50.3 The court denied both motions and the parties appealed.

On appeal, Saunatec argues that the club's products liability

cause of action accrued as of the first fire and is therefore

barred by the statute of limitations, that the court erred in

placing the issue of the post-sale duty to warn before the jury,

and that the court erroneously denied Saunatec's request that the

jury be instructed on the affirmative defense of misuse. Cigna,

in turn, cross-appeals, challenging the district court's jury

instruction on Saunatec's unreasonable use defense and the

instruction that the club could have been contributorily

negligent by failing to install a sprinkler system in and around

the sauna room. Although we normally examine issues raised by

the appeal before turning to the cross-appeal, the misuse and

unreasonable use issues are so closely related that we will

2 The court also assessed pre-judgment interest at a rate
of 12% per year from the date of the complaint. This interest
totaled $108,008.33 and increased the judgment against Saunatec
to $662,949.97. Saunatec has not challenged the district
court's award of pre-judgment interest in this appeal.
3 Saunatec's motion was also designated, in the
alternative, as a motion for a new trial pursuant to Fed. R.
Civ. P. 59.

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discuss them as a single issue. Otherwise, we deal with the

issues raised by the parties in turn.

II. The Standard of Review

The parties appeal and cross-appeal primarily from the

denial of their respective motions for judgment as a matter of

law. We review the denial of these motions de novo. Foster-

Miller, Inc. v. Babcock & Wilcox Canada, 210 F.3d 1, 7 (1st Cir.

2000). "[W]e examine the evidence presented to the jury, and all

reasonable inferences that may be drawn from such evidence, in

the light most favorable to the jury verdict." Ed Peters Jewelry

Co. v. C. & J. Jewelry Co., 215 F.3d 182, 193 (1st Cir. 2000).

While we do not consider "the credibility of the witnesses,

resolve conflicts in testimony, or in any other manner weigh the

evidence," we will "assume the veracity . . . of any admissions

made and stipulations entered into by the party opposing the Rule

50 motion . . . as well as any evidence derived from

disinterested witnesses that has not been contradicted or

impeached." Id. After viewing the evidence from this

perspective, we will reverse the denial of either motion "only if

reasonable persons could not have reached the conclusion that the

jury embraced." Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 716

(1st Cir. 1994). We review denial of Saunatec's "alternative

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request for a new trial for an abuse of discretion, recognizing

that 'the trial judge may set aside a jury's verdict only if he

or she believes that the outcome is against the clear weight of

the evidence such that upholding the verdict will result in a

miscarriage of justice.'" See England v. Reinauer Transp. Cos.,

194 F.3d 265, 270 (quoting Conway v. Electro Switch Corp., 825

F.2d 593, 598-99 (1st Cir.1987)).

Both parties have challenged the district court's jury

instructions. We review these contentions de novo. See Data

Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1159 (1st

Cir. 1994). Saunatec, in particular, challenges the failure to

give an instruction. In such cases, "[t]he trial court's refusal

to give a particular instruction constitutes reversible error

only if the requested instruction was (1) correct as a matter of

substantive law, (2) not substantially incorporated into the

charge as rendered, and (3) integral to an important point in the

case." White v. New Hampshire Dep't of Corr., 221 F.3d 254, 263

(1st Cir. 2000). Nonetheless, parties that have preserved their

challenges to jury instructions must not simply show error, but

also "must show that the assigned error affected 'substantial

rights,'" or, in other words, that the error was not harmless

pursuant to Fed. R. Civ. P. 61. Play Time, Inc. v. LDOS

Metromedia Communications, Inc., 123 F.3d 23, 29 n.7 (1st Cir.

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1997). With these standards in mind, we turn to the merits of

the parties' arguments.

III. The Statute of Limitations

We first address Saunatec's argument that Cigna's

negligence claims4 based upon the 1997 fire are barred by the

statute of limitations because Cigna failed to file suit in 1991,

three years after the latest possible date of the first fire.

Under Massachusetts law, tort claims, including negligence based

product liability claims, are subject to the limitations

provisions in Mass. Gen. Laws ch. 260 § 2A, which bars all claims

not brought within three years of the accrual of a cause of

action.5 The Massachusetts legislature has left this accrual

4 Saunatec addresses its statute of limitations argument
on appeal solely to Cigna's negligence claim because of the
jury's finding that Cigna's breach of warranty claim was barred
by the club's unreasonable use of the heater. Though Cigna has
cross-appealed from that part of the judgment, we affirm the
district court on this point. See Section V, infra.
Consequently, we do not analyze whether its breach of warranty
claim would also survive Saunatec's statute of limitations
challenge, though we note the similarities between the
negligence and breach of warranty limitations statutes. See
Mass. Gen. Laws ch. 106 § 2-318 (stating, in pertinent part,
that "[a]ll actions under this section shall be commenced within
three years next after the date the injury and damage occurs");
Bay State-Spary & Provincetown Steamship, Inc. v. Caterpillar
Tractor Co., 533 N.E.2d 1350, 1354 (Mass. 1989) (noting that
section 2-318 parallels the tort statute of limitations).
5 The statute reads: "Except as otherwise provided,
actions of tort . . . shall be commenced only within three years
next after the cause of action accrues." Mass. Gen. Laws ch.
260 § 2A (1992).

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determination to judicial interpretation. See Cambridge Plating

Co. v. Napco, Inc., 991 F.2d 21, 25 (1st Cir. 1993). The courts

have adopted the date of injury as the date a cause of action

usually accrues. See Cannon v. Sears, Roebuck & Co., 374 N.E.2d

582, 584 (Mass. 1978). This focus upon the date of injury arises

from the inability of a plaintiff to "maintain [a negligence

action] unless one has suffered injury or damage." See id. at

584. A contrary rule based upon notice of breach, the time of

manufacture, or the time of sale "would be intrinsically

unfair[;] . . . the plaintiff might be barred from bringing an

action even before the facts arose on which he could assert a

claim for relief." Id.

In the present case, there is no dispute that any claim

that the club or Cigna might have for the damage done in the

first fire accrued at the latest in 1988 and is therefore now

barred. Cigna, however, seeks recovery solely for the damages

resulting from the 1997 fire. Nonetheless, Saunatec asserts that

all recovery should be barred, arguing that because there is only

a single negligent act in a products liability case, there is

only a single cause of action available to a prospective

plaintiff. According to Saunatec, any injury that the plaintiff

knows or reasonably should know is caused by the defendant

results in the accrual of the unitary products liability cause of

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action. Thus, under Saunatec's theory, a prospective plaintiff

who fails to sue within three years of an initial injury is

forever foreclosed from all recovery for the defendant's breach

of duty.

Although we have been unable to discover a

Massachusetts decision that directly addresses this issue, the

precedents do not support Saunatec's single cause of action

argument. Both the Massachusetts Supreme Judicial Court and

Court of Appeals have indicated that there may be "cases in which

the plaintiffs suffer successive, but distinct, injuries, which

may give rise to separate causes of action," even though there is

only a single negligent act. Olsen v. Bell Tel. Labs., Inc., 445

N.E.2d 609, 612 (Mass. 1983); Gore v. Daniel O'Connell's Sons,

Inc., 461 N.E.2d 256, 259 (Mass. App. Ct. 1984) (noting the

possibility that a cause of action based upon a second, distinct

illness would not be barred by the statute solely because the

defendant's conduct had also caused a prior illness). Moreover,

other jurisdictions have directly addressed the argument Saunatec

raises here and have refused to use an initial injury to bar

actions based upon a later, distinct injury. See Fearson v.

Johns-Manville Sales Corp., 525 F.Supp. 671, 674 (D.D.C. 1981)

(cited in Olsen and Gore) (rejecting single cause of action

argument and holding that onset of asbestosis did not foreclose

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cause of action based upon the later onset of lung cancer);

VaSalle v. Celotex Corp., 515 N.E.2d 684, 686 (Ill. App. Ct.

1987).

We conclude, therefore, that under Massachusetts law,

the fact that there is only one negligent act, i.e., the design

of the heater or the failure to provide post-sale warnings, does

not mean that there was only a single cause of action that

accrued at the time of the first injury. Instead, if there are

multiple injuries, there will be multiple causes of action with

multiple dates of accrual if the injuries are "separate and

distinct." The fires in this case satisfy that requirement.

Though they were each caused by the same design defect, they are

otherwise unrelated. At least nine years passed between the two

fires. The first fire did not in any way cause or contribute to

the second. Because the fires are temporally and causally

distinct, we conclude that Massachusetts courts would hold that

the two causes of action arising from the two fires have

different dates of accrual. As Cigna has filed this suit within

three years of the second fire, or in other words within three

years of the injury that caused the second cause of action to

accrue, its claim is not barred by the statute.

In an attempt to escape this conclusion, Saunatec

points to our recent decision in Nicolo v. Philip Morris, Inc.,

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201 F.3d 29 (1st Cir. 2000). Relying upon Nicolo, Saunatec

argues that a plaintiff may only maintain two causes of action in

cases that involve a second latent injury that was not reasonably

foreseeable at the time of the first palpable injury. We

disagree. In Nicolo, where we construed Rhode Island statutes

and case law similar to the Massachusetts law at issue here, we

held that a products liability case could present two distinct

causes of action. See id. at 35. The plaintiff in Nicolo had

suffered two injuries from a single wrongful act. The first

injury was "a series of smoking-related illnesses, including

asthma, emphysema, and chronic obstructive pulmonary disease."

Id. at 30. The second injury, lung cancer, had been diagnosed

several years after the onset of her respiratory ailments. As in

the present case, the plaintiff had only sought recovery for her

second injury, cancer.

In arguing that the foreseeability of the second injury

is the "touchstone" of whether a claim may be maintained for that

injury, and that the foreseeability of the second fire here bars

a claim for damages based upon it, Saunatec has mistaken our

discussion of when a second cause of action for the latent injury

accrues for a discussion of whether there can be two causes of

action at all. Contrary to Saunatec's claims, our holding in

Nicolo that the cause of action for cancer was separate from the

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cause of action for the respiratory ailments did not involve the

question of the reasonable foreseeability of a second injury

which had not yet occurred. The concept of reasonable

foreseeability entered our analysis only because of the unique

difficulty of detecting cancer. As with all latent diseases,

cancer can exist undetected in an individual throughout its early

stages. In other words, a plaintiff could be injured long before

that injury was detected. Nicolo presented a variant of the

usual latent disease case because the plaintiff may have been

afflicted with both undetectable cancer and detectable

respiratory illnesses at the same time. Under the normal rules

of accrual linked to the date of injury, both causes of action

accrued at the same time, even though one injury may have been

effectively unknowable. See Cannon, 374 N.E.2d at 584.

Both Rhode Island and Massachusetts, however, have

adopted a discovery rule, an exception to the normal rules of

accrual governing the accrual of causes of action in which an

injury or its cause is inherently unknowable. See Nicolo, 201

F.3d at 35; Hanson Housing Auth. v. Dryvit Sys., Inc., 560 N.E.2d

1290, 1293 (Mass. App. Ct. 1990). The discovery rule prevents

the cause of action of an injured plaintiff from accruing "until

the plaintiff learns, or reasonably should have learned, that he

has been harmed by the defendant's conduct." White v. Peabody

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Constr. Co., 434 N.E.2d 1015, 1020 (Mass. 1982). In analyzing

whether the plaintiff could have reasonably foreseen that at the

time of her respiratory illnesses she was in the early stages of

cancer, 6 we were applying the discovery rule to determine when

the cancer cause of action accrued. See Nicolo, 201 F.3d at 35-

36 (noting that cancer "does not lend itself to lay

identification," but that "symptoms indicative of cancer" along

with other information about the disease may mean that a

plaintiff reasonably should know she had the disease). Thus,

Nicolo stands for the proposition that, in multiple injury cases

in which the second injury is latent, a second cause of action

does exist, but it may be time barred if the plaintiff should

have discovered that second injury at the time of the first.

The present case, however, does not require us to

analyze the discovery rule and its foreseeability component.

There is nothing inherently unknowable or latent about the

injuries the club sustained as a result of Saunatec's negligence.

The fact that the second fire became a reasonably foreseeable

future possibility because of the first fire is irrelevant.

6 In order for a cause of action to accrue under the
discovery rule, it is only necessary that the plaintiff know
about the injury and know that the injury was caused by the
defendant. A cause of action can accrue though the plaintiff is
unaware of either the full extent of the injury or of how the
defendant violated its legal duty. See Bowen v. Eli Lilly &
Co., 557 N.E.2d 739, 741 (Mass. 1990).

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Though caused by a single wrongful act, the two fires are

otherwise unrelated with no possibility that they existed at the

same time. Consequently, they give rise to two causes of action

with two different dates of accrual. This case was filed within

three years of the accrual date of that second cause of action

and is therefore timely.7

Saunatec's fears that the accrual rule in this case

will result in a multitude of lawsuits from the single act of

selling a defective product reflect a misunderstanding of current

law. In setting the date of injury as the date of accrual, the

Massachusetts courts recognized that "manufacturers and retailers

[may be required] to defend suits based on a product which they

may have placed in the stream of commerce years ago." Cannon,

7 To emphasize the error of Saunatec's foreseeability
/discovery argument, we note that a plaintiff's notice of breach
or injury is examined under the discovery rule to determine
whether a claim that would otherwise be barred by the normal
rules of accrual should nonetheless be preserved to prevent the
harsh result of barring a claim before the plaintiff had
knowledge of it. Saunatec, however, seeks to use notice of
breach to defeat rather than to preserve claims. We have been
unable to discover any authority for the proposition that once
a plaintiff has been injured in a manner sufficient to give
notice of a breach of duty, that notice may then be used to bar
claims arising from later and separate injuries that would,
absent this notice, not otherwise be barred. By barring a
plaintiff from maintaining a claim before that claim has arisen,
Saunatec's suggested application of notice in this case
implicates the same concerns that prompted Massachusetts courts
to reject notice of breach as the normal rule of accrual. See
Cannon, 374 N.E.2d at 584.

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374 N.E.2d at 584. Our holding today in no way increases this

burden. But for the fortuity of the first fire, Saunatec would

not be able to argue that the statute of limitations bars this

action, even though it arises approximately twenty-three years

after its product was sold. Allowing Cigna to proceed based upon

the second fire prevents the injustice attendant upon foreclosing

its later-arising cause of action solely because of an initial

injury. This does not mean, however, that Saunatec fails to gain

any benefit from the first fire. Though the notice of defect

implicit in these first injuries is not properly a part of the

test for accrual of a cause of action, it is the cornerstone of

the unreasonable use and comparative negligence defenses in

products liability cases. In addition to the ordinary

difficulties that the passage of time places upon a plaintiff to

prove its case, a plaintiff that continues to use a product after

an initial injury will find, as Cigna did, that its recovery is

reduced or prevented by these defenses. Moreover, as the

district court noted, though "[e]ach fire would constitute an

actionable injury, . . . after the first successful lawsuit,

these defenses would cut off future claims." Cigna Ins. Co. v.

OY Saunatec, Ltd., 59 F.Supp. 2d 163, 165 (D. Mass. 1999).

Cigna's negligence claim is not barred by the statute of

limitations.

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 IV. Post-Sale Duty to Warn

Saunatec next contends that the district court erred

when it instructed the jury on the post-sale duty to warn.

Saunatec argues that the duty to warn is inapplicable in the

present case for three principal reasons. 8 First, it contends

that its product was not defective and therefore the duty to warn

never arose. Second, it claims that because the risks associated

with the defect were open and obvious from the time of sale, it

owed the club no duty to warn. Finally, it argues that even if

the risks were not open and obvious at the time of sale, the

first fire effectively warned the club of those risks, thereby

extinguishing Saunatec's duty to warn. We address each of these

arguments in turn.

A. The heater's design defect

Under Massachusetts law, there is no post-sale duty to

warn unless the product at issue was negligently designed as

originally sold. See Williams v. Monarch Machine Tool Co., 26

F.3d 228, 232 (1st Cir. 1994). When the design defect is present

8 Saunatec also contends in its briefs that the jury
could not have found a duty to warn because there was
insufficient evidence demonstrating the feasibility of such a
warning. We reject this argument out of hand. The evidence at
trial indicated that on at least one occasion in the past,
Saunatec had been able to notify its customers of a problem with
one of its heater components by releasing that information
through its distributors. The jury was entitled to conclude
that Saunatec could have done the same in the present case.

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at the time of sale, the manufacturer "has a duty to take

reasonable steps to warn at least the purchaser of the risk" as

soon as it "learns or should have learned of the risk created by

its fault." doCanto v. Ametek, Inc., 328 N.E.2d 873, 878 (Mass.

1975) (citing Carney v. Bereault, 204 N.E.2d 448 (Mass. 1965)).

The district court correctly instructed the jury that it could

only find that Saunatec had a post-sale duty to warn of safety

improvements if it first found that "the heater was negligently

or improperly designed or unsafe at the time it was sold."

There was ample evidence to support a conclusion that

the heater was negligently designed. According to the UL

standards in existence at the time of the sale of the heater,9

all heaters must include some form of guard to prevent

combustible materials from coming into contact with any part of

the heater that exceeded 536 degrees Fahrenheit. The "guard"

could include the rocks that are normally piled on top of the

heating elements in a sauna heater. If the rocks prevented

contact, the industry standards at the time of sale generally did

not require the addition of a separate metal grill on top of the

9 UL standards were admitted primarily as evidence of the
generally accepted industry safety standards for the manufacture
of these heaters. Testimony at trial indicated that these
standards were created with input from the manufacturing
industry and thus served as proxies for industry safety
standards.

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heater. In the case of the club's heater, however, the rocks

were an insufficient barrier between combustible materials and

the high temperature parts of the heater. Under the UL standards

then in force, Saunatec was required to modify its heater, either

by adding a metal grill or by increasing the dimensions of the

heater to allow for more rocks to be included on top of the

elements. Without these design changes, the heater failed to

adhere to the industry safety standards. The UL standards also

required that heaters pass a drape test. Under this test, cloth

material was draped over the heater to determine if the placement

of a towel on the heater would start a fire. Evidence at trial

demonstrated that the club's heater could not have passed this

test. The jury was justified in concluding that the heater had

been negligently designed at the time of sale, thus triggering a

duty to warn of post-sale safety improvements.

B. The nature of the danger

Though a negligently designed product is an essential

prerequisite for the duty to warn, the duty does not arise in

every case involving a negligently designed product. Saunatec is

correct in its general contention that, when the dangers

associated with a defective product are open and obvious, there

is usually no duty to warn "because a warning will not reduce the

likelihood of injury." Colter v. Barber-Greene Co., 525 N.E.2d

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1305, 1312 (Mass. 1988). To fall under this rule, the dangers

must have been sufficiently obvious to say that the plaintiff was

"fully aware of the risks posed by the product." Morrell v.

Precise Eng'g, Inc., 630 N.E.2d 291, 293 (Mass. App. Ct. 1994).

Saunatec unpersuasively contends that the risks posed by the

heater were open and obvious from the time of sale because all

people are aware that there is a remote risk of fire associated

with leaving towels on sauna heaters even when those heaters are

properly designed.

The knowledge of a general risk associated with an

entire class of properly designed products, however, is not

sufficient to allow the conclusion in this case that at the time

of sale the club was "fully aware of the risks posed by the

product." Morrell, 630 N.E.2d at 293. The evidence at trial

indicated that, in contrast to properly designed heaters that

will not normally cause fires even when a towel is left on them

for an entire day, the club's defectively designed heater could

start a fire in under ten minutes after a towel was left on it.

The differing times to combustion of a properly designed heater

versus the club's heater were solely the result of the defective

design of the latter. Though the lack of a grill contributed to

the danger posed by the club's heater, it was not a signal of a

design defect. Many heaters sold at that time did not have

-23-
grills and were not defective, just as the club's heater might

not have been defective if the rocks on top of the heater had

provided a more effective guard. In short, Saunatec cannot

escape the duty to warn engendered by its negligent design

because this heater posed an inordinate risk of fire that was by

no means open and obvious from the time of sale.

C. Warning of design improvements

Saunatec next contends that the first fire effectively

notified the club of the danger posed by its heater, making any

warning that Saunatec might have given superfluous. The jury

found that the first fire gave the club notice that its heater

was defective. See Section V.D infra. That fire may also have

made the club fully aware of the danger posed by the heater.

Nonetheless, it is still not sufficient to extinguish Saunatec's

duty to warn. Though the duty to warn principally extends to

warnings of the danger created by a design defect, it is not

limited to warning solely of those dangers. Massachusetts courts

have indicated that in certain cases, the manufacturer of a

negligently designed product also has a duty "to warn at least

the purchaser of changes which eliminate or tend to eliminate the

risk created by the manufacturer's initial fault." doCanto, 328

N.E.2d at 878.

-24-
 This is one of those cases. The jury could reasonably

conclude that Saunatec should have known of the defect and that

Saunatec had developed a safety improvement that would have

eliminated the danger that arose from its design defect.

Saunatec conducted tests upon its heaters in order to ensure that

they met the UL standards. When a particular model failed to

meet those standards, Saunatec would change the design. Though

not all heaters that Saunatec manufactured at the time this

heater was designed needed metal grills to satisfy the UL,

Saunatec knew that some did. Indeed, by 1975 or 1976, Saunatec

had modified its designs to include metal grills upon all heaters

sold in the United States. In 1978, the UL changed its standards

to require that all heaters it listed include a metal grill as

shielding between combustible materials and the heating

elements.10 Finally, the club's expert also testified at length

that the addition of a metal grill was feasible and would have

both cured the defect in the heater and prevented both fires.

10 Saunatec latches on to the UL standards, and the 1978
change that required grills on heaters, to argue that the duty
to warn cannot be based upon changes in the relevant UL
standards or upon later design improvements that may be
associated with changes in those standards. Saunatec is
refuting an argument that Cigna does not make. Because the
district court and Cigna based the duty to warn in this case
upon the defective design of the heater at the time of sale, we
decline to address whether changes in the UL standards or later
design improvements in the heater would trigger the duty to warn
even if there were no showing of an initial design defect.

-25-
 Furthermore, the rationale that underlies the refusal

to impose a duty to warn of open and obvious dangers cannot apply

here to defeat Saunatec's duty to warn of design changes. Unlike

warnings of open and obvious dangers, which are not required

under Massachusetts law because it is unlikely that such a

warning would "reduce the likelihood of injury," a warning of a

design change that can eliminate the risk posed by a defect is,

at least potentially, effective.11 See, e.g., Colter, 525 N.E.2d

at 1312. In the present case, the evidence indicated that if the

club had heeded a warning to install a grill on the heater, it

would have completely eliminated "the risk created by

[Saunatec's] initial fault." Consequently, we conclude that this

issue was properly before the jury, even if the first fire fully

apprised the club of the dangers associated with its heater. The

district court was correct in instructing on this issue.

V. Misuse and Unreasonable Use

Saunatec and Cigna each argue that the district court

erroneously instructed the jury on the issue of the two related

affirmative defenses, misuse and unreasonable use, that Saunatec

interposed against Cigna's claims. Saunatec argues that there

11 Likewise, although we have concluded that the danger
was not open and obvious at the time of sale, a contrary
conclusion on that point would not have eliminated Saunatec's
duty to warn because, as discussed above, Saunatec still would
have been required to warn of design improvements.

-26-
can be no dispute that leaving towels upon the heater, either

deliberately or accidentally, was a misuse of the heater.

Because misuse, whether by the club or a patron, is a complete

defense to a claim of negligent design, Saunatec contends that

the court should have either granted judgment in favor of

Saunatec or instructed the jury on the issue. In its cross-

appeal, Cigna argues that the evidence did not support an

instruction on Saunatec's affirmative defense that the club had

unreasonably used the heater. We find no merit in either of

these contentions.

Under Massachusetts products liability law, misuse of

a product is an affirmative defense to a negligent design claim

while the unreasonable use of a product is an affirmative defense

to a claim of breach of the implied warranty of merchantability.

Both defenses eliminate all recovery under the legal theories

they address. See Allen v. Chance Mfg. Co., 494 N.E.2d 1324,

1327 (Mass. 1986); Back v. Wickes Corp., 378 N.E.2d 964, 969

(Mass. 1978). Each defense also requires an examination of

precisely how the plaintiff "misused" the defendant's product.

Though there are similarities in the type of "misuse" that

comprises each defense, this case serves as a reminder that each

defense has distinct contours. Before examining these defenses,

however, we first turn to an examination of the respective causes

of action to which they respond.

-27-
A. Negligent design and breach of the implied warranty of
merchantability.

As in all negligence claims, an action for negligent

design begins with the allegation that the defendant has breached

a duty and that this breach of duty has caused actual harm.

Manufacturers have a duty to design products with reasonable care

and are held to the standard of "an ordinary reasonably prudent

designer in like circumstances." Fahey v. Rockwell Graphic Sys.,

Inc., 482 N.E.2d 519, 523 (Mass. App. Ct. 1985) (overruled on

other grounds in Allen, 494 N.E.2d at 1327 n.2); doCanto v.

Ametek, Inc., 328 N.E.2d 873, 877 (Mass. 1975). "[T]he focus in

design negligence cases is not on how the product is meant to

function, but on whether the product is designed with reasonable

care to eliminate avoidable dangers." Uloth v. City Tank Corp.,

384 N.E.2d 1188, 1191 (Mass. 1978). A manufacturer always has a

duty when designing products to consider the environment in which

the product will be used and must design against all reasonably

foreseeable uses which could arise from that environment. See

McIsaac v. Didriksen Fishing Corp., 809 F.2d 129, 132 (1st Cir.

1987); Back v. Wickes Corp., 378 N.E.2d 964, 969 (Mass. 1978).

In determining the environment in which a particular product is

used, and thus also the reasonably foreseeable risks attendant

upon that setting, we look to the market that the manufacturer

has chosen. See McIsaac, 809 F.2d at 132 (holding that because

-28-
the defendant manufacturer did not caution the commercial marine

market against using its product, it was responsible for

anticipating reasonably foreseeable risks associated with use in

that setting). This duty arises from a social policy that places

an increased responsibility for ensuring the safety of a product

"upon the manufacturer, who stands in a superior position to

recognize and cure defects." Uloth, 384 N.E.2d at 1192.

Actions under Massachusetts law for breach of the

implied warranty of merchantability are the functional equivalent

of strict liability in other jurisdictions, and they are as

comprehensive as the strict liability provision in section 402A

of the Restatement (Second) of Torts. See Back, 378 N.E.2d at

968-69; Swartz v. General Motors Corp., 378 N.E.2d 61 (Mass.

1978). The warranty duty is "one imposed by law as a matter of

social policy, and not necessarily one which the defendant has

acquired by contract."12 Back, 378 N.E.2d at 969. Manufacturers

warrant that their products will be "fit for the ordinary

purposes for which such goods are used," and, as in negligent

design claims, ordinary purposes include both intended and

foreseeable uses of a product. Id. (quoting Mass. Gen. Laws ch.

12 Unlike a contract based warranty, the implied warranty
applies even though the parties are not in privity, see Hoffman
v. Howmedica, Inc., 364 N.E.2d 1215, 1218 (Mass. 1977), and a
manufacturer or seller may not disclaim or limit the warranty.
See Back, 378 N.E.2d at 969.

-29-
106 § 2-314(2)(c)). Though the "inquiry [in a breach of warranty

action] focuses on product characteristics rather than on the

defendant's conduct [as in negligent design], ... the nature of

the decision [in both actions] is essentially the same." Id. at

970. The jury in a breach of warranty action weighs factors just

as in a negligent design action, considering "among other

factors, the gravity of the danger posed by the challenged

design, the likelihood that such danger would occur, the

mechanical feasibility of a safer alternative design, the

financial cost of an improved design, and the adverse

consequences to the product and to the consumer that would result

from an alternative design." Id. (quotation omitted).

Furthermore, a finding that a defendant has negligently designed

a product is tantamount to a finding that the product is unfit

for ordinary use. See Hayes v. Ariens Co., 462 N.E.2d 273, 275

(Mass. 1984) (overruled on other grounds in Vassallo v. Baxter

Healthcare Corp., 696 N.E.2d 909 (Mass. 1998)); Richard v.

American Mfg. Co., 489 N.E.2d 214, 215 (Mass. App. Ct. 1986).

B. A defendant's first line of defense: unforeseeable misuse.

Though both duties are expressions of a social policy

that places responsibility upon manufacturers to eliminate

defective products, neither negligent design nor warranty

liability is absolute. See Colter v. Barber-Greene Co., 525

N.E.2d 1305, 1310 (Mass. 1988); Back, 378 N.E.2d at 969. The

-30-
cornerstone of both duties is the anticipation of foreseeable

uses. Neither theory requires manufacturers to design against

uses that could not be foreseen. In negligent design, a

plaintiff "must prove that the defendant failed to exercise

reasonable care to eliminate avoidable or foreseeable dangers to

the user." Bolduc v. Colt's Mfg. Co., 968 F. Supp. 16, 17 (D.

Mass. 1997) (citing Uloth v. City Tank Corp. 384 N.E.2d 1188

(Mass. 1978)). Likewise, because the ordinary uses of a product

include "both those uses which the manufacturer intended and

those which are reasonably foreseeable," Back, 378 N.E.2d at 969,

the manufacturer has warranted that its "product will withstand,

in a reasonably safe manner, foreseeable 'misuse' incident to or

arising out of the product's intended use." Venezia v. Miller

Brewing Co., 626 F.2d 188, 190 (1st Cir. 1980).

Thus, so long as a plaintiff can "prove that at the

time of his injury he was using the product in a manner that the

defendant seller, manufacturer, or distributor reasonably could

have foreseen," a defendant manufacturer may not escape liability

solely by showing that the plaintiff has used the product in a

way that was not intended by the manufacturer. Cocco v. Deluxe

Sys., Inc., 516 N.E.2d 1171, 1174 (Mass. App. Ct. 1987) (quoting

Allen v. Chance Mfg. Co., 494 N.E.2d 1324 (Mass. 1986)); Venezia,

626 F.2d at 191 (noting that uses protected by the warranty

include those that are "the 'probable ancillary consequences of

-31-
normal use,' and the consequences 'incident to the normal and

expected use' of a particular product") (citing Turcotte v. Ford

Motor Co., 494 F.2d 173, 181 (1st Cir. 1974)). On the other

hand, if a plaintiff has used a product in a manner that the

manufacturer could not have foreseen given the product's intended

use, the manufacturer may escape negligent design liability

completely through the misuse affirmative defense. See Robinson

v. Boston Housing Auth., Docket No. 964972, 1999 WL 791947, at

*1-2 (Mass. Super. Ct. Aug. 9, 1999) ("The deliberate misuse of

a product is a complete defense to a claim of negligent

design."). Likewise, this type of unforeseeable misuse will also

bar a breach of warranty action. See Allen, 494 N.E.2d at 1326

("Foreseeability of use is an element of the plaintiff's case.");

Venezia, 626 F.2d at 191. Indeed, to allow recovery for uses

that could not have been foreseen at the time of manufacture

would be to hold the manufacturer to a duty that it could not

possibly fulfill.

C. A defendant's second line of defense: foreseeable but
unreasonable use.

A plaintiff's path is not wholly cleared, however, just

because its use of a product was foreseeable. In a negligent

design action, a defendant may always prove comparative

negligence in an attempt to reduce or prevent recovery. See

-32-
Mass. Gen. Laws ch. 231 § 85.13 Similarly, in a breach of

warranty action, a defendant can raise the unreasonable use

defense, arguing that though the plaintiff's use was foreseeable,

"the plaintiff's unreasonable conduct in the face of a known

defect was a breach of duty that caused the injury." Allen, 494

N.E.2d at 1326-27 (noting that the unreasonable use defense

arises only when there has been a foreseeable use of the

product). To prevail on the unreasonable use defense, the

defendant has the burden of proving that the plaintiff

subjectively knew that the product was defective and dangerous,

that, despite that subjective belief, the plaintiff's use of the

product was objectively unreasonable, and that the plaintiff's

conduct was a cause of the injury. See id. at 1326. If all the

requirements of the defense are met, the plaintiff cannot recover

for breach of warranty, while the defendant may have also proved

that the plaintiff breached its own duty of care and was thereby

comparatively negligent. See Richard, 489 N.E.2d at 215.

13 Section 85 reads, in pertinent part:
Contributory negligence shall not bar recovery in any
action by any person or legal representative to
recover damages for negligence resulting in death or
in injury to person or property, if such negligence
was not greater than the total amount of negligence
attributable to the person or persons against whom
recovery is sought, but any damages allowed shall be
diminished in proportion to the amount of negligence
attributable to the person for whose injury, damage or
death recovery is made.
Mass. Gen. Laws ch. 231 § 85.

-33-
 Nonetheless, the comparative negligence and the

unreasonable use defenses are not precisely analogous. While

evidence of unreasonable use is potential evidence of comparative

negligence, the reverse is not necessarily true. A user may

breach its duty of care without knowing the product was defective

or dangerous and thus may be comparatively negligent without

finding its recovery for breach of warranty barred by the

unreasonable use defense. See Hallmark Color Labs. v. Damon

Corp., 477 N.E.2d 1052, 1053-54 (Mass. App. Ct. 1985) (noting

that ordinary negligence is irrelevant to a breach of warranty

claim). Furthermore, even in cases in which a plaintiff's

actions satisfy the requirements of both defenses, each defense

has a different effect upon plaintiff's recovery. Comparative

negligence reduces recovery by a percentage amount corresponding

to the plaintiff's negligence unless that negligence is greater

than the defendant's, at which point all recovery is barred. See

Mass. Gen. Laws ch. 231 § 85. Unreasonable use by the plaintiff,

however, will foreclose all recovery for breach of warranty. See

Allen, 494 N.E.2d at 1327.

D. The application of the misuse and unreasonable use defenses in
the present case.

Because Cigna alleged both breach of warranty and

negligent design, both defenses are potentially applicable here.

We conclude, however, that the district court did not err, either

-34-
in instructing on unreasonable use or in declining to instruct on

misuse. Turning first to the misuse defense, the evidence at

trial indicated that a towel or other combustible object had been

left on the heater, thus starting the fire. Saunatec argues on

appeal that this was a misuse of the heater that the district

court improperly disregarded when it refused to instruct on the

misuse defense. Even if the towel had been intentionally placed

upon the heater, however, this action is not sufficient as a

matter of law to justify an instruction on the misuse defense.

Saunatec bases its argument upon an imprecise and incorrect

definition of what the Massachusetts courts have meant by the

term "misuse" as it applies to the misuse defense. To be sure,

any use of a product in a manner other than that intended by the

manufacturer would be considered in layman's terms a "misuse" of

that product. Thus, leaving towels on a heater is arguably a

"misuse" of that heater as it was not intended to function as a

clothes dryer. Adding to the confusion created by the lay

definition is that some courts have mistakenly used the term

"misuse" to refer to both the misuse and the unreasonable use

defenses, while others have failed to see the real differences

that exist between these two defenses. See Downs v. Gulf &

Western Mfg. Co., 677 F. Supp. 661, 664 (D. Mass. 1987) (using

term "misuse" to describe unreasonable use); Fahey, 482 N.E.2d at

-35-
526 n.13 (noting that "unreasonable use" and "unforeseeable

misuse" appear to be interchangeable terms).

Nonetheless, "misuse" in the context of the misuse

defense is a legal term of art with a distinct and decidedly

different meaning than the lay concept of product "misuse." See

Allen, 494 N.E.2d at 1327 n.2 (overruling Fahey by rejecting its

suggestion that the terms are interchangeable). "'Unforeseeable

misuse' concerns the question whether the defendant could have

reasonably foreseen that the plaintiff would misuse the product

in the way he did." Id. In order to justify a misuse defense,

Saunatec would therefore need to show that the club's misuse of

the heater was unforeseeable. If the club or its members had

used the sauna heater to grill steaks, an example cited during

the trial, we would have no difficulty concluding that such a

"misuse" could not be foreseen by a sauna manufacturer and that

Saunatec would be entitled either to an instruction on the

defense or judgment in its favor.

Contrary to Saunatec's representations in its briefs,

however, there was ample evidence at trial to show that the

accidental or even intentional draping of a towel on the heater

was a foreseeable use. Indeed, the UL standards, which were

formulated with industry input, explicitly required heaters to

pass a test designed to mimic the effects of placing a towel upon

a heater. This test, in and of itself, indicated that sauna

-36-
manufacturers could foresee that towels and other combustibles

might occasionally be left on top of heaters. Because it was

foreseeable that club patrons would leave towels on the heater,

the district court correctly held that a misuse instruction was

not justified. See Cocco v. Deluxe Sys., Inc., 516 N.E.2d 1171,

1174 (Mass. App. Ct. 1987) (affirming the refusal to give an

intentional misuse instruction where the plaintiff's hands were

injured while clearing a jam on a shredding machine when a co-

worker accidentally triggered an unguarded on-off switch because

"[i]t was undisputed that both jamming and that workers would use

their hands to clear the jams were foreseen").14

The unreasonable use defense, on the other hand, is

fully applicable to foreseeable uses of a product and "concerns

the reasonableness of the plaintiff's alleged conduct" while

undertaking that foreseeable use. Allen, 494 N.E.2d at 1327 n.2.

Cigna concedes that Saunatec has proved two of the three

14 Saunatec also contends that the district court "appears
to have reasoned that the misuse defense was not applicable
since it appeared that the Club did not misuse the product, but
rather, that a patron of the Club misused the product."
(Emphasis in original). We express no opinion upon whether, if
this were a fair reading of the district court's opinion, such
a holding would conform to Massachusetts law because we conclude
that Saunatec is attacking a rationale never advanced by the
district court in its opinion. Indeed, its opinion on the
misuse point is wholly in line with our conclusion that the
misuse instruction was not warranted because Saunatec had failed
to demonstrate the type of unforeseeable misuse required to
justify this instruction.

-37-
predicates for the defense, namely that the club's use, though

foreseeable, was objectively unreasonable and that this use

caused the fire, but contends that the instruction was

nonetheless improper because Saunatec failed to meet its burden

of proving that the club subjectively knew that the heater was

both defective and dangerous. According to Cigna, to satisfy

this requirement, Saunatec needed to prove that the club was

aware that the heater was defective specifically because it

lacked a metal grill.

We have been unable to find a requirement that a

plaintiff must actually know with technical specificity the

nature of the defect in the product it is using. Nor do we agree

that the Massachusetts courts would adopt such a rule. To do so

would be to stand the unreasonable use defense on its head by

allowing consumers to escape its application simply by

deliberately maintaining technical ignorance in the face of

mounting evidence that a product is defective. On the contrary,

it is enough to show that the plaintiff knew the product was

defective in some way, rather than showing that it knew the

technical elements of the defect. In the present case, the jury

was entitled to infer that the club subjectively knew that the

heater was both defective and dangerous. Pasquale Franchi, the

president of the corporation that owned the club, testified that

he had supervised the installation of several saunas. The jury

-38-
could therefore infer that he was aware of how sauna heaters

generally worked and that this general awareness would have

extended to understanding that, as Cigna's own expert testified,

properly designed heaters do not catch fire, not even when draped

with a towel. Given this evidence, it would not be unreasonable

for the jury to conclude, as it apparently did, that after the

first fire, the club subjectively knew that its heater had some

type of defect and that, because of that defect, the heater posed

a danger that the club knew could only be alleviated through

fairly extensive remedial measures. The district court did not

err in giving an instruction on unreasonable use.

VI. The sprinkler instruction

Finally, Cigna challenges in its cross-appeal the

district court's instruction on the club's duty to install

sprinklers following the first fire. Cigna contends that

Saunatec has failed to provide the evidentiary basis required to

impose such a duty on the club. The district court gave the

following instruction on a property owner's duty to install

sprinklers:

Now, let me talk to you about the
issue of sprinklers, which you've heard
something about, because I need to give you
a separate instruction on this issue.
The defendant also claims that the
Club was negligent in its failure to install
a sprinkler system in the sauna enclosure.
That's Question No. 12 [on the special
verdict form].

-39-
 Ordinarily, a building owner such as
the Waltham Racquet Club has no duty to
provide its building with any sort of
firefighting or fire protection equipment and
so cannot be held liable for failing to do
so. Also, there is no statutory or building
code requirement for sprinklers. However, a
building owner may be held liable for
negligently failing to install fire
protection devices if he uses dangerously
inflammable material that create a
foreseeably substantially greater probability
of a fire spreading.
It is up to you to determine whether
the defendant has proven that the Club had a
duty to install sprinklers in the men's sauna
and is negligent for failing to do so.

This instruction followed the court's general instruction on

comparative negligence in which it indicated that the jury was to

consider whether the club had fulfilled its "duty to exercise the

care that a reasonably prudent person would have exercised under

similar circumstances."

The panel is unable to agree on the propriety of the

sprinkler instruction. The majority concludes that the sprinkler

issue was properly before the jury. The majority's analysis is

set forth in subsection A infra. I, however, would not find a

duty to install sprinklers on these facts. That different view

is set forth in subsection B infra.

A. The majority analysis

Absent an increased risk of fire, Massachusetts common

law does not impose any obligation on a building owner to install

sprinklers or keep other specialized fire apparatus available.

-40-
Conversely, the Supreme Judicial Court has recognized a special

duty, or at least contemplated that a jury could find such a

duty, where the owner had knowledge of a "particular danger of

fire." Little v. Lynn & Marblehead Real Estate Co., 16 N.E.2d

688 (Mass. 1938). The obvious examples are of highly inflammable

or explosive materials, but Massachusetts courts do not appear to

have imposed any very rigid formula on the source or degree of

the increased risk.

Here, the jury had ample basis for concluding that the

club knew of a "particular danger of fire" well in excess of what

might be expected in the ordinary house or office. The

particular danger lay in the combined presence of a strong heat

source which past experience had shown was not adequately

shielded; in patently inadequate new precautions taken after the

first fire; and in a surrounding envelope of dried out wood that

the evidence showed to be specially inflammable. There is

nothing surprising about the jury's decision to allocate 35

percent of the damage to the club, leaving the manufacturer to

bear the other 65 percent, nor in attributing a portion of the 35

percent to the failure to install a sprinkler.

Cigna does not object to the generally phrased

instruction given by the judge as to the sprinkler system but

only to the result. This amounts to saying that no rational jury

could find on these facts that there was "a particular danger of

-41-
fire" sufficient to require the club to take extra precautions of

which the most obvious, next to supplying a grill, would have

been to install a sprinkler system. This is exactly the kind of

practical day-to-day judgment in which a jury's good sense ought

to be respected. Here, no basis exists for an appellate court to

call it unreasonable.

No Massachusetts case creates any general rule

inconsistent with what the jury did in this case or rejects a

jury award on the facts anything close to those before us. Quite

possibly the instruction given here, or the result arrived at,

would not be permitted in some other jurisdiction; but the

language and results in decisions of different state courts

dealing with sprinklers or other fire precautions is far from

uniform; and nothing in Massachusetts case law appears to limit

the duty to "extraordinary" hazards, "explosives," or the like.

Fireman's Fund Am. Ins. Co. v. Almacenes Miramar, Inc.,

649 F.2d 21, 25 (1st Cir. 1981), the only pertinent First Circuit

precedent, rejected a claim that a sprinkler should have been

installed in a warehouse where one of the tenants stored a

chemical rub that created a somewhat greater risk of fire than

normal. But putting aside the fact that this case involved a

construction of Puerto Rico law and not the law of Massachusetts,

there is a singular distinction: in Fireman's Fund, there was an

increased risk of fire once the substance ignited but no

-42-
indication of any accompanying unusual source of ignition. Here,

by contrast, the sauna itself is a proven dangerous heat source

set in a peculiarly combustible surrounding of dried out wood.

In several other respects, Fireman's Fund is a vivid

contrast to the facts in this case. There the risk had been

created by a tenant who stored the chemical and not by the owner

who was sought to be held liable; the properties of the chemical

were not known to the owner or otherwise obvious to him and the

lease forbad the tenant from storing specially dangerous

chemicals. Finally, "there was no evidence here of any previous

fires" in the landlord's building. Id. at 28.

In our case an able district judge sent the sprinkler

issue to a jury under an instruction that is not claimed to be

inconsistent with Massachusetts law. The jury returned a result

that can easily be supported on the facts and, indeed, would

strike many observers as an eminently sensible resolution of a

fault allocation problem that has no perfect solution. No error

of law being present, this court should certainly not upset this

outcome.

B. A different view

The majority formulates the standard for finding that

the club had a duty to install sprinklers (a showing that a

property owner has "knowledge of a particular danger of fire") in

-43-
terms that differ from the instruction the district court

delivered to the jury:

[A] building owner may be held liable for
negligently failing to install fire
protection devices if he uses dangerously
inflammable material that create a
foreseeably substantially greater probability
of a fire spreading.

This narrower formulation of when a property owner may be

required to install sprinklers seems consistent with the state's

law. The closest case on point indicates that the duty to

install sprinklers is linked to "materials or fluids of an

inflammable nature, such as celluloid, naphtha and benzine," that

were so dangerous that the fire department considered a sprinkler

system necessary for safe storage. See Little v. Lynn &

Marblehead Real Estate Co., 16 N.E.2d 688, 690, 692 (Mass. 1938).

Furthermore, this formulation is in line with those decisions

from other jurisdictions that have squarely addressed this duty.15

15 The cases cited at trial and on appeal for the
proposition that there can be a duty to install sprinklers or
other fire prevention equipment all concern the duty that one
landowner owes to another, abutting landowner. It is the
general rule in negligence cases , however, that "no action
[can] be founded upon the breach of a duty owed only to some
person other than the plaintiff." See W. Page Keeton, Prosser
and Keeton on Torts, § 53, at 357 (5th ed. 1984). The parties
do not point to any cases, nor have I been able to discover any,
involving a duty of a customer to install sprinklers for the
protection of the manufacturer of a defectively designed
product. Nonetheless, because neither party has raised this
issue on appeal, I leave an examination of the legal basis of
this duty to later cases and instead assume that the duty
abutting landowners owe each other is an appropriate analogy for

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See, e.g., Comfort v. Stadelman Fruit, Inc., 592 P.2d 213, 220

(Or. 1979); Mermod, Jaccard & King Jewelry Co. v. Hellmuth, Obata

& Kassabaum, Inc., 615 S.W.2d 93, 96 (Mo. Ct. App. 1981) (quoting

Comfort with approval) (rejecting argument that a high quantity

of combustibles--defined simply as things that will burn--was

enough to create a duty to install sprinklers because there was

no showing that the defendant had stored "explosives, highly

inflammable chemicals or materials, or oily rags").

Although the instruction stated the law correctly, the

more difficult question is whether it was proper to put the

sprinkler issue to the jury. There must be both a legal and an

evidentiary basis for an instruction before it may be given to

the jury. See Sullivan v. Nat'l Football League, 34 F.3d 1091,

1107 (1st Cir. 1994). My colleagues point to a mix of facts that

they believe provide the evidentiary justification for the

sprinkler instruction and verdict. I disagree with that view

because it relies on facts (a strong heat source, a prior fire,

the effectiveness of the precautions taken) that were only

relevant to the general comparative negligence instruction. By

the terms of the court's instructions, the failure to install

sprinklers could become part of the comparative negligence mix

only if the jury found that the club had a duty to install

the duty that the club owed to Saunatec in this case.

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sprinklers because it "use[d] dangerously inflammable material

that create[d] a foreseeably substantially greater probability of

a fire spreading." The presence of such material, and not the

other facts cited by my colleagues, is the sole basis for the

duty to install sprinklers. I find no evidence that creates a

jury question on the presence of such a dangerously inflammable

material.

The dried out wood that lined the sauna room was drier

and more combustible than usual as a result of the normal

operation of the heater.16 This is not a sufficient factual basis

for imposing a duty to install sprinklers. Materials do not

become "dangerously inflammable" merely because they will burn
17
when exposed to fire. See Centraal Stikstof Verkoopkantoor N.V.

v. Pensacola Port Auth., 205 F. Supp. 724, 728 (N.D. Fla. 1962)

(noting that duty cannot be based upon a finding that a material

was "highly combustible, i.e., [it] will burn if ignited");

16 The evidence indicated that the wood in most homes
throughout the northeast is dry because of the long heating
season, though that wood is not as dry as wood subject to the
high temperatures of a sauna.
17 Evidence at trial indicated that Saunatec itself was
relatively unconcerned with the danger posed by dry wood in
saunas. Saunatec knew that the normal operation of a sauna
would dry the wood in the room and create precisely the
situation that existed in the club at the time of the fire.
Nonetheless, Saunatec did not recommend that purchasers of its
heaters replace the wood periodically nor did it recommend the
installation of sprinklers in cases such as this one where
sprinklers were not required by building codes.

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Fireman's Fund, 649 F.2d at 23, 27-28 (refusing to find duty even

though vapor rub stored on defendant's premises would burn at a

significantly lower temperature than wood or paper); Hellmuth

Obata & Kassabaum, Inc., 615 S.W.2d at 96 (holding no duty to

install sprinklers where company stored combustible items such as

paper, fabric samples, and solvents for office cleaning). Absent

some evidence that the wood in the sauna was a "dangerously

inflammable or explosive or hazardous material[] . . ., [such] as

oil-soaked sawdust," that wood cannot support a duty to install

sprinklers. Comfort, 592 P.2d at 220-21 (noting that it "cannot

be said as a matter of law that there is such great or

foreseeable danger in maintaining premises made of wood so as to

make every person liable for fire spreading to adjoining premises

unless" the owner has installed fire protection equipment).

A duty to install sprinklers is an onerous one, usually

imposed upon landowners by ordinance or statute in special

circumstances, and not by the common law when the material

involved is so commonplace as dried out wood in the sauna room of

a health club. I am not surprised, therefore, that I could not

find any case that would support a duty to install sprinklers in

a situation involving the materials we have here.18 I conclude,

18 Though Saunatec points to a number of cases--including
two applying Massachusetts law--that it claims support the
sprinkler duty here, those cases do not support the duty. See,
e.g., Hanover Ins. Co. v. Charles D. Nolan & Sons, Inc., 1998 WL

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therefore, that the sprinkler instruction should not have been

given. Although this error was not harmless, see, e.g., Moulton

v. Rival Co., 116 F.3d 22, 26 (1st Cir. 1997), there would be no

need for a new trial because of the clarity of the jury

instructions and the verdict form. The jury ascribed 23% of the

total fault to the club's failure to install sprinklers.

Consequently, I would remand to increase Saunatec's percentage

fault to 88% with a corresponding adjustment in the judgment

against it.

VII. Conclusion

For the reasons set forth above, the judgment in the

district court is:

Affirmed

77918 (Mass. Super. 1998) (addressing different issue from that
raised by Cigna, namely the duty to maintain an already
installed sprinkler system); Thomalen v. Marriott Corp., 845 F.
Supp. 33 (D. Mass. 1994) (same); Brodrick Moving & Storage Co.
v. Moorer, 685 S.W.2d 75 (Tex. Ct. App. 1984) (issue of duty to
install sprinklers not before the court because defendant only
challenged the sufficiency of evidence to support adverse
verdict and did not challenge jury instruction indicating it
could breach its duty of care through a failure to install
sprinklers); United States Borax & Chem. Corp. v. Archer-
Daniels-Midland Co., 506 N.W.2d 456 (Iowa Ct. App. 1993) (same).

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