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.
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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
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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.
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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].
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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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