United States Court of Appeals
For the First Circuit
Nos. 06-2705, 06-2706
CLAIRE BROWN,
Appellee/Cross-Appellant,
v.
CROWN EQUIPMENT CORPORATION,
Appellant/Cross-Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. David M. Cohen, U.S. Magistrate Judge]
Before
Torruella, Boudin and Dyk,*
Circuit Judges.
Jeffrey F. Peck with whom Ulmer & Berne, LLP, John A.K.
Grunert and Campbell, Campbell, Edwards & Conroy, P.C. were on
brief for appellant/cross-appellee.
Jonathan S. Franklin, Kimberly S. Walker, Fulbright & Jaworski
L.L.P., Robin S. Conrad and Amar D. Sarwal, National Chamber
Litigation Center, Inc., on brief for International Association of
Defense Counsel and Chamber of Commerce of the United States of
America, Amici Curiae.
Nicole L. Lorenzatti with whom Terrence D. Garmey and Smith
Elliott, Smith & Garmey P.A. were on brief for appellee/cross-
appellant.
Stephen B. Pershing, Center for Constitutional Litigation,
P.C., and Lewis S. Eidson on brief for the American Association for
Justice, Amicus Curiae.
January 28, 2009
*
Of the Federal Circuit, sitting by designation.
Per Curiam. This appeal arises out of a law suit stemming
from the death of Thomas Brown, who was killed operating a forklift
manufactured by the Defendant, Crown Equipment Company. Brown's
wife, Claire, filed suit in the Maine Superior Court for damages
arising from the accident, claiming inter alia that Crown had
negligently failed to warn Brown's employer of risks posed by the
forklift; Crown removed the case to federal district court on
diversity grounds.
A jury found for Brown on the failure to warn claim,
awarding $4.2 million in damages. Subsequently, pursuant to a state
statute limiting the damages that can be awarded for loss of
consortium, the district judge lowered the award to $1,523,809.1 Both
sides raised various issues on appeal, most of which were resolved in
our prior decision in the matter. Brown v. Crown Equip. Corp., 501
F.3d 75 (1st Cir. 2007). However, we did certify the following two
questions of Maine law to the Supreme Judicial Court ("SJC") of
Maine:
(1) Does Maine law incorporate the rule of
Restatement (Third) Torts: Products Liability
§ 10 that a manufacturer has a duty to warn
known but indirect purchasers where the
product was not defective at the time of sale
but a product hazard developed thereafter?
1
The jury's initial award of $4,200,000 was reduced by $200,000
due to Mr. Brown's comparative negligence. The trial judge was then
required to reduce the initial award to $1.6 million because of the
statutory cap on consortium damages. There remained the question of
how the jury was to determine the appropriate reduction to be taken
for the comparative negligence finding. Brown, 501 F.3d at 79.
-2-
(2) Under Maine law, how is a jury's dollar
adjustment for comparative negligence to be
applied where a portion of the original
damages award is reduced pursuant to the
statutory damage cap?
Id. at 79-80.
We also allowed, however, that "[t]o the extent that the answer from
the Maine SJC is qualified, we will address the liability issue in
light of the Maine SJC's explanation as to Maine law." Id. at 80.
On the first question the Maine SJC found Crown to have
had a post-sale duty to warn Brown or his employer; but it did not
locate such a duty in the Restatement, as Brown had urged; instead it
held that the present facts permitted Brown to recover under a
"straightforward negligence" theory. Brown v. Crown Equip. Corp.,
960 A.2d 1188, 1193-94 (Me. 2008). Its response to the second
question also called for a modest alteration in the damages
calculation that neither party now disputes.
In light of the Maine SJC's response on the liability
issue, Crown has asked us to remand to provide it with a new trial.
Crown argues the SJC's decision "indicates that the failure to warn
claim was incorrectly" tried to the jury, because the jury was given
an instruction that corresponded with section 10 of the Restatement.2
2
Under section 10 of the Restatement a seller is liable for a
post-sale failure to warn where:
(1) the seller knows or reasonably should know that the
product poses a substantial risk of harm to persons or
property; and
(2) those to whom a warning might be provided can be
-3-
A new trial, it contends, will allow a jury to be instructed in
accordance with a general negligence theory of liability, while also
allowing Brown to develop a trial strategy based on that theory.
Brown urges instead that we affirm the district court judgment on
liability, remanding only to adjust the amount of damages.
The liability problem in this case concerns a product that
(so the jury found) was not negligent when made but for which dangers
developed or became apparent thereafter; and any obligation to warn
was complicated by the fact that Brown's employer had not bought the
forklift from Crown but acquired it from an intermediate owner. The
Restatement has a fairly expansive provision establishing a post-sale
duty to warn; traditional negligence law, which requires as a
distinct element that there be "a duty owed to the plaintiff by the
defendant" could be read more narrowly under certain circumstances.3
identified and can reasonably be assumed to be unaware of
the risk of harm; and
(3) a warning can be effectively communicated to and acted
on by those to whom a warning might be provided; and
(4) the risk of harm is sufficiently great to justify the
burden of providing a warning.
Restatement (Third) of Torts § 10 (1998).
3
In traditional negligence cases, a plaintiff must prove the
following: (1) a duty owed to the plaintiff by the defendant; (2)
the defendant's breach of that duty; and (3) injury of the plaintiff
by that breach. Parker v. Harriman, 516 A.2d 549, 550 (Me. 1986).
The common-law test of whether a duty is owed (in this case it would
be the duty to warn) is the "probability or foreseeability of injury
to the plaintiff. The risk reasonably to be perceived within the
range of apprehension delineates the duty to be performed and the
scope thereof." Fortin v. The Roman Catholic Bishop of Portland, 871
A.2d 1208, 1232 (Me. 2005) (internal quotations omitted). Under
-4-
In the trial court Crown argued that there was no duty to
warn at all but, to the extent that one existed, it urged that the
Restatement language be used to define the duty--probably hoping that
the specific tests provided might work to its advantage. By contrast
Brown seemingly thought that a jury would be sympathetic to finding
a duty to warn on the present facts, and urged that a general
negligence instruction be given. The trial court found that the
Restatement test expressed Maine law and used its language in the
instruction to the jury.
On appeal, Crown continued to argue that there was no duty
to warn at all and, unsure whether the Maine SJC would adopt such a
duty or what form it would adopt--the Restatement test is
controversial--we asked the court for guidance. Although we asked
specifically about the Restatement test since it was used in the
instruction, at the outset of our opinion we identified the central
question for the SJC to decide as being "whether Maine law would
recognize a post-sale duty to warn claim." Brown, 501 F.3d at 76.
We also made clear that we welcomed any general guidance that the SJC
could provide on this question.
Accordingly, we begin by rejecting any suggestion by Crown
that the Maine court exceeded its brief in its response: namely, that
Maine did not adopt the Restatement formulation but that on these
Maine law the question of whether a duty is owed in a negligence case
is one of law for the trial judge. E.g., Searles v. Trustees of St.
Joseph's College, 695 A.2d 1206, 1209 (Me. 1997).
-5-
facts a duty to warn did exist.4 It was a peculiarity of this case,
clearly helpful to Brown, that Crown did know that Brown's employer
had a Crown forklift and had visited the employer's site on another
matter relating to the forklift but provided no warning. The
dominant issue on Crown's appeal--whether a duty to warn existed--was
properly addressed by the Maine SJC in Brown's favor.
Crown also cannot show that the jury instruction given in
the district court warrants a new trial. True, the Maine SJC
declined to adopt the Restatement test for the duty to warn. But
given the existence of a duty to warn on the present facts (which the
Maine SJC has just established), it is very hard for Crown to show
that it was prejudiced by the particular Restatement formulation,
which it had itself urged as a default position, and it has failed to
make such a showing.
Crown argues that it would have pursued a different
strategy under a negligence-based standard. Yet the trial judge did
not decide on the correct instructions to be given to the jury until
after both sides had completed their presentation of the evidence,
although it was before their respective closing statements.
4
Further, we have cited with approval a Fifth Circuit opinion
holding that the form of a certified question should "not . . .
restrict the [state] Supreme Court's consideration of the problems
involved and the issues as the Supreme Court perceives them to be in
its analysis of the record certified . . ., [including] the Supreme
Court's restatement of the issue or issues and the manner in which
the answers are to be given...."). Vanessa Redgrave v. Boston
Symphony Orchestra, 855 F.2d 888, 903 (1st Cir. 1988) (citing
Martinez v. Rodriguez, 394 F.2d 156, 159 (5th Cir. 1968)).
-6-
Therefore, it is not surprising that Crown fails to point to any
evidence that it would have offered, nor any arguments that it would
have made, had the jury received only a traditional negligence
instruction.
Therefore, in light of the Maine SJC's answer to our
certified questions, we uphold the jury's verdict and remand only so
that the district court can modify its damages award so that it
comports with the Maine SJC's ruling.
It is so ordered.
-7-