USCA1 Opinion
November 10, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1521
BERNARD KULINGOSKI,
Plaintiff - Appellant,
v.
LIQUID TRANSPORTERS, INC.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Coffin, Senior Circuit Judge, ____________________
and Keeton,* District Judge. ______________
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Edward H. Moquin, with whom Moquin & Daley, P.A. was on _________________ _____________________
brief for appellant.
Charles J. Dunn, with whom Wadleigh, Starr, Peters, Dunn & _______________ ________________________________
Chiesa was on brief for appellee. ______
____________________
____________________
* Of the District of Massachusetts, sitting by designation.
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Per Curiam. Bernard Kulingoski brought a negligence Per Curiam __________
action against Liquid Transporters, Inc., a commercial
transporter, after sustaining injuries from falling off of one of
its "hopper" trailers. He alleges that Liquid Transporters was
negligent in failing to provide a safe standing surface to work
from on its trailers. Liquid Transporters presented a defense
that Kulingoski's employer, W.R. Grace Co., who was not a party
to the action, was responsible for the accident, based on its
failure to require its employees to follow proper safety
precautions while loading the trailer. A trial was held, and the
jury returned a verdict for Liquid Transporters. Kulingoski now
appeals, claiming that the district court erred by admitting
evidence regarding Liquid Transporters' defense that W.R. Grace's
omissions constituted a superseding cause of the accident, and
then instructing the jury with respect to this defense. For the
foregoing reasons, we affirm.
I. BACKGROUND I. BACKGROUND
A. Facts A. Facts
Liquid Transporters furnishes trucks, trailers and
tankers in order to haul products on behalf of manufacturers to
different locations throughout the United States and Canada.
Liquid Transporters had a contract with W.R. Grace, a chemical
company located in Nashua, New Hampshire, pursuant to which
Liquid Transporters would haul a dry, powdered product produced
by W.R. Grace to a Proctor & Gamble plant in Ontario, Canada.
W.R. Grace's security procedures required Liquid
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Transporters to use the following system to transport the
chemical powder. A Liquid Transporters' employee would drive a
truck-tractor and trailer up to the gate of W.R. Grace, and leave
the trailer at the gate. When W.R. Grace had completed producing
the chemical powder, one of its employees would take a W.R. Grace
truck-tractor, hook it up to the empty Liquid Transporters'
trailer, and bring the trailer to a W.R. Grace loading platform
area. W.R. Grace employees would then load the trailer, and a
W.R. Grace employee would then deliver the trailer back to the
front gate area. A Liquid Transporters' driver would then pick
up the trailer and deliver it to Canada.
Kulingoski worked for W.R. Grace, and was responsible
for loading the trailer with the chemical powder. W.R. Grace's
ordinary procedure for loading this type of trailer was for an
employee to stand on the loading area platform and push a button
which lowers a chute down into each of several portholes located
on the top of the trailer. The trailer is designed with a
walkway along the side of the top which is used when an employee
loading the trailer needs to adjust the chute. On September 15,
1990, the night of the accident, due to the way the trailer had
previously been loaded, Kulingoski had to rake the chemical
powder into the trailer's portholes. While he was standing near
the trailer's front edge and raking the chemical powder,
Kulingoski fell off the trailer and was injured.
B. Proceedings Below B. Proceedings Below
Kulingoski originally brought this action in New
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Hampshire state court, and Liquid Transporters removed the action
to federal court on the basis of diversity jurisdiction. During
the course of the trial, Kulingoski contended that Liquid
Transporters was negligent, based on its failure to provide a
pierced steel leveled surface on the top of the trailer, which
would prevent skidding and reduce the hazard of slipping while
working on the trailer. Liquid Transporters asserted a defense
that W.R. Grace's failure to require its employees to follow
appropriate safety procedures when loading the trailer was a
superseding cause of Kulingoski's accident. Throughout the
trial, Kulingoski opposed this defense, claiming that based on
the facts of this case, the defense was not legally cognizable
under New Hampshire law. Specifically, Kulingoski filed a motion
in limine to exclude all evidence regarding W.R. Grace's unused __ ______
safety harness system. Kulingoski also objected to the court's
decision to instruct the jury on the superseding cause defense.
The court denied the motion in limine and overruled Kulingoski's __ ______
objections to its jury instructions. Following a two day trial,
the jury returned a verdict for Liquid Transporters. Kulingoski
now appeals.
II. ANALYSIS II. ANALYSIS
A. The Jury Instructions A. The Jury Instructions
A party is entitled to have its legal theories on
controlling issues, which are supported by the law and the
evidence, presented to the jury. See Jerlyn Yacht Sales, Inc. v. ___ ________________________
Wayne B. Roman Yacht Brokerage, 950 F.2d 60, 68-69 (1st Cir. ________________________________
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1991). When reviewing the adequacy of jury instructions, the
question is whether the trial judge gave adequate instructions on
each element of the case to insure that the jury fully understood
the issues, or whether the instructions tended to confuse or
mislead the jury. See Davet v. Maccarone, 973 F.2d 22, 26 (1st ___ _____ _________
Cir. 1992); Shane v. Shane, 891 F.2d 976, 987 (1st Cir. 1989); _____ _____
see, e.g., Jerlyn Yacht Sales, 950 F.2d at 69. An error in jury ___ ____ __________________
instructions will warrant reversal of a judgment only if, upon
review of the record as a whole, the error is determined to be
prejudicial. Davet, 973 F.2d at 26; Transnational Corp. v. Rodio _____ ___________________ _____
& Ursillo, Ltd., 920 F.2d 1066, 1070 (1st Cir. 1990). _______________
The court's instruction to the jury on superseding
cause was supported both by the law of New Hampshire and the
facts of the case. "New Hampshire law follows the principle that
a defendant is relieved of liability by a superseding cause of
the accident which he could not reasonably be found to have a
duty to foresee." Bellotte v. Zayre Corp., 531 F.2d 1100, 1102 ________ ___________
(1st Cir. 1976) (citing Morin v. Manchester Housing Authority, _____ _____________________________
195 A.2d 243, 245 (N.H. 1963)); see Reid v. Spadone Machine Co., ___ ____ ___________________
404 A.2d 1094, 1098-99 (N.H. 1979). In the usual case, there is
no legal reason which prevents a defendant from arguing that a
third person's negligence was the sole proximate cause of the
plaintiff's injury. See Reid, 404 A.2d at 1099 (citing Murray v. ___ ____ ______
Bullard Co., 265 A.2d 309, 312 (N.H. 1970)). The availability of ___________
the defense depends on the "reasonable" foreseeability of the act
of the third party. Reid, 404 A.2d at 1099. Absent special ____
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circumstances, a defendant is not expected to anticipate the
wrongful conduct of others. See Morin, 195 A.2d at 245. ___ _____
Additionally, where after a defendant commits a negligent act, a
duty then devolves on another person in reference to such act or
condition, and this person fails to perform his duty, such
failure may be superseding cause of any resulting injury. See ___
generally Restatement (Second) of Torts 452; cf. Murray, 265 _________ __ ______
A.2d at 312 (finding that charge to jury with respect to
employer's failure to properly adjust machine as a superseding
cause which defendant manufacturer could not have reasonably
foreseen, was appropriate under New Hampshire law).
Liquid Transporters introduced sufficient evidence to
support a superseding cause defense. Evidence introduced at
trial permitted the jury to reasonably conclude that Kulingoski's
employer, W.R. Grace, failed to require its employees to use a
safety harness while loading trailers, like the one involved in
this accident. A "Health and Safety Coordinator" at W.R. Grace,
James Todd, testified that there was safety harness equipment
available in the loading dock area at the time of Kulingoski's
accident, but that W.R. Grace failed to require its employees to
use this safety equipment. W.R. Grace's accident report stated
that the accident was caused by Kulingoski's failure to use and
observe "safety appliance or regulation." Additionally,
Kulingoski himself testified that an improved harness system,
that W.R. Grace introduced after his accident, made it "safe" for
him to work on the trailer.
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The evidence also indicated that Liquid Transporters
could not have reasonably foreseen W.R. Grace's failure to
require its employees to follow adequate safety procedures when
loading trailers. W.R. Grace required Liquid Transporters to
leave its trailers outside of its plant, and Liquid Transporters
had no opportunity to witness W.R. Grace employees loading Liquid
Transporters' trailers.
On appeal, Kulingoski makes two specific arguments
challenging Liquid Transporters' superseding cause defense.
First, he argues that the lack of an adequate safety harness
system was not a cause of the incident, and therefore "the
harness cannot be a superseding intervening cause if it is not
first a cause." Kulingoski's contention misconstrues the nature
of Liquid Transporters' defense, as well as the law regarding
superseding cause. First, Liquid Transporters does not argue
that the absence of the harness itself was a superseding cause of
the accident. Rather, it argues that W.R. Grace's failure to
require that Kulingoski wear a safety harness was the superseding
cause of Kulingoski's accident. Second, the superseding cause
defense presumes that the defendant was originally negligent, but
that some unforeseeable intervening act later operates to
supersede the defendant's negligence. This intervening act is
then deemed to be the superceding cause of the plaintiff's
injury. See, e.g., Bellotte, 531 F.2d at 1102; Reid, 404 A.2d at ___ ____ ________ ____
1098-99; Morin, 195 A.2d at 245. See also Restatement (Second) _____ ________
of Torts 440.
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Kulingoski also claims that the court's instructions
regarding superseding cause were confusing and the jury did not
understand them. Kulingoski does not point to specific
statements in the jury instructions which were erroneous or
confusing. Rather, he bases this assertion on the fact that
because the jury returned a verdict in favor of Liquid
Transporters very quickly, this indicates that the jury must have
been confused about the issue of superseding cause, and therefore
the court's instructions were erroneous. We find this contention
entirely meritless. We have reviewed the actual instruction
given to the jury, and believe that it was an accurate statement
of New Hampshire law regarding superseding cause. There is
simply no basis for Kulingoski's argument that the jury was
confused.1 Rather, Kulingoski's contention appears to simply be
a reflection of his disbelief that the jury found against him.
B. The Admission of Evidence B. The Admission of Evidence
Kulingoski also claims that the court erred by
admitting evidence regarding the safety harness. Kulingoski
rests this contention on his belief that W.R. Grace's failure to
provide a safety harness could not have been a superseding cause
of the accident based on the law of New Hampshire.
The admission and exclusion of evidence is primarily
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1 We also believe that the jury was perfectly capable of
understanding that New Hampshire has a no-fault workers'
compensation system, and that because W.R. Grace had paid
Kulingoski workers' compensation benefits, it was not admitting
fault which then relieved Liquid Transporters of liability.
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committed to the discretion of the trial court, and this
determination will not be disturbed absent a showing of an abuse
of discretion. Doty v. Sewall, 908 F.2d 1053, 1058 (1st Cir. ____ ______
1990). Evidence is "relevant" if it has "any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence." Fed. R. Evid. 401. Relevant
evidence is admissible, although it "may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury
. . . ." Fed. R. Evid. 403.
As noted above, Liquid Transporters' defense of
superseding cause was supported by the law of New Hampshire.
Given that this defense was legally cognizable, Liquid
Transporters was entitled to introduce evidence which supported
this defense. Evidence regarding the availability of safety
equipment and the effectiveness of such safety equipment, tended
to show that W.R. Grace's failure to require its employees to use
such safety equipment was negligence, which therefore could have
constituted a superseding cause of Kulingoski's accident.
Kulingoski has failed to point to any reasonable danger of unfair
prejudice or confusion, which was produced by admitting the
evidence, and which would justify excluding the evidence under
Fed. R. Evid. 403. Moreover, we fail to see any reason for
excluding the evidence. Therefore, the court properly admitted
the evidence.
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For the foregoing reasons, we affirm. ______
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