Cleveland v. Hasbro, Inc.

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 96-1073



                         CURTIS CLEVELAND and JUDY CLEVELAND,



                               Plaintiffs, Appellants,



                                          v.



                                    HASBRO, INC.,

                          d/b/a MILTON BRADLEY TOY COMPANY,



                                 Defendant, Appellee.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                 [Hon. Morris E. Lasker, Senior U.S. District Judge]
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                                 ____________________



                                        Before



                           Selya and Boudin, Circuit Judges,
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                           and McAuliffe,* District Judge.
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            Bruce  A.  Bierhans with  whom  Andrew  D.  Nebenzahl, Kenneth  B.
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        Walton and Bierhans & Nebenzahl were on briefs for appellants.
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            John  P.  Graceffa with  whom Kathryn  M.  Anbinder and  Morrison,
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        Mahoney & Miller were on brief for appellee.
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                                   November 6, 1996

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        *Of the District of New Hampshire, sitting by designation.



BOUDIN, Circuit  Judge.  In this  diversity case, Curtis
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            and  Judy Cleveland appeal from the district court's grant of



            summary judgment  in favor  of Hasbro,  Inc.   The Clevelands



            sued Hasbro for negligence and loss of consortium based  upon



            an injury  that Curtis Cleveland suffered  while loading toys



            onto  his  truck  at   Hasbro's  plant  in  East  Longmeadow,



            Massachusetts.  The district court ruled, as a matter of law,



            that Hasbro had  never assumed  a duty of  care owing to  the



            Clevelands.     Our  review  is  plenary,  and  we  take  the



            allegations  of  facts in  the  light most  favorable  to the



            Clevelands.  See  Guzman-Rivera v. Rivera-Cruz, 29 F.3d  3, 4
                         ___  _____________    ___________



            (1st Cir. 1994).



                 In September 1991, Curtis was a truck driver employed by



            V.K. Putnam  Trucking, Inc. ("Putnam") of  Belgrade, Montana.



            All  of the loads that Putnam contracted to haul were "driver



            assist" loads, meaning  that the truck driver rather than the



            shipper was  responsible for  loading cargo.   Putnam drivers



            were  provided  with  a stipend  for  the  purpose  of hiring



            "lumpers"  to assist  in this  process.   At his  option, the



            driver could load himself and pocket the stipend.



                 In early September, Curtis was offered the Hasbro job by



            the  Putnam dispatcher  and  told  that  it would  be  driver



            assist.   On September 6, Curtis and Judy arrived at Hasbro's



            East  Longmeadow  plant to  pick up  a  shipment of  toys for



            delivery  to a purchaser in Oregon.  Curtis claims that prior


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to  arriving at Hasbro, he  spoke by telephone  with a Hasbro



            employee  who  assured him  that  the  company would  provide



            "lumpers"  or other  personnel  to load  the  cargo into  his



            truck.   Curtis says that without this assurance he would not



            have accepted the job.



                 When the  Clevelands arrived at  Hasbro to  pick up  the



            load, they were  told that no Hasbro employees were available



            to assist in loading  the truck.  Curtis then decided to load



            the truck himself with help from his wife.  Hasbro provided a



            manual pallet jack to  the Clevelands for use in  loading the



            cargo  pallets onto the truck, but declined to make available



            a more expensive electric jack that was also on the premises.



                 After several  hours of  loading, Curtis  had difficulty



            moving an  especially heavy pallet  up an inclined  ramp into



            his truck.  Starting with the pallet-laden jack at a distance



            from the truck, Curtis gave the jack a long running push from



            inside  the warehouse toward the  interior of his  truck.  He



            got the load into the truck;  but he then lost control of the



            jack, and  as it slid back  out, he jumped aboard  it and was



            ultimately  thrown  between  two  other  pallets,  sustaining



            injuries.   The Clevelands  then completed loading  the truck



            and drove the truck back to Oregon.



                 The  Clevelands brought  suit in  the district  court in



            August  1994,  alleging that  Hasbro  had  been negligent  in



            failing  to provide personnel to  load the truck  and that it


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was  also  negligent in  other respects,  such as  failing to



            permit the Clevelands to use the electric jack and failing to



            provide medical assistance to Cleveland following his injury.



            After  discovery,  in  June  1995 Hasbro  moved  for  summary



            judgment.   The district  court granted Hasbro's  motion (and



            denied the  Clevelands' cross-motion)  on November  29, 1995.



            The Clevelands now appeal.



                 On  appeal,  the Clevelands  advance  three  theories of



            liability: first,  that  Hasbro, by  its  employee's  alleged



            statement, assumed  a duty to provide  assistance in loading;



            second,  that Hasbro had breached its general duty of care as



            a landowner; and third, that the employee's alleged statement



            constituted  negligent misrepresentation  under Massachusetts



            law.   Hasbro  says that  this third  theory has  been waived



            because not pressed in  the district court, but it  turns out



            to make no difference.



                 The Clevelands'  first negligence claim  rests upon  the



            premise   that  the  statement  allegedly  made  by  Hasbro's



            employee  gave rise to a duty of  care on Hasbro's part; they



            then  argue  that  the  failure  of  Hasbro  to  provide  the



            assistance was a breach of this duty and a proximate cause of



            Curtis'  injuries.    The   district  court  found  that  the



            statement  by  Hasbro's  agent,  assuming it  was  made,  was



            insufficient  to   give  rise  to   a  duty  of   care  under



            Massachusetts law.


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It is by  no means  clear that  Massachusetts law  would



            impose on Hasbro a general duty of care based on the isolated



            statement of the Hasbro employee.   Most of the Massachusetts



            cases,  some recognizing  and others rejecting  a voluntarily



            assumed duty of care, concern activities that the "volunteer"



            undertook  and  then  performed  in  an  allegedly  negligent



            manner.1 Here, when  Curtis arrived at the plant, Hasbro made



            quite  clear that it was  not going to  provide assistance at



            all,  although it did  allow Curtis  to make  use of  an idle



            jack.



                 Nor  are  the  Clevelands'  other   theories  especially



            promising.    A landowner  does have  a  duty of  care toward



            invitees  (e.g.,  to  furnish  a safe  premise),  Mounsey  v.
                       ____                                   _______



            Ellard, 363 Mass. 693, 707  (1973), but the Clevelands' claim
            ______



            to  assistance in loading a truck,  customarily loaded by the



            driver,  probably stretches this  duty beyond  its accustomed



            bounds.  As for negligent misrepresentation, see, e.g., Danca
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            v.  Taunton Savings  Bank, 385  Mass. 1,  8 (1982),  there is
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            little  proof  that the  employee  was negligent  as  well as



            mistaken.



                 But we  think that the  duty of care  issue need not  be



            resolved in order to  affirm the district court.   Rather, we



                                
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                 1See, e.g., Somerset Savings  Bank v. Chicago Title Ins.
                  _________  ______________________    __________________

            Co., 420 Mass. 422 (1995) (alleged failure of title insurance
            ___

            company to exercise due care in search of plaintiff's title);

            Mullins v. Pine  Manor College, 389 Mass. 47  (1983) (failure
            _______    ___________________

            of college to provide adequate campus security).



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will assume that on occasion a mere representation of intent-



            -although  neither negligent nor  couched as a promise--might



            lead  a victim to alter his position in reliance or otherwise



            give  rise to duties that  would not otherwise  exist.  There



            exist  a brace  of  theories that  respond  to such  problems



            including,  in  addition   to  negligent   misrepresentation,



            invoked by Cleveland, various forms of estoppel.  



                 Nevertheless, we think that  this case must be affirmed,



            because, in  light of Curtis' own  carelessness, a reasonable



            jury  could not  under  Massachusetts law  properly return  a



            verdict for the Clevelands in this  case.  We are entitled to



            affirm  on any  dispositive ground,  Levy v.  Federal Deposit
                                                 ____     _______________



            Ins. Co., 7 F.3d 1054,  1056 (1st Cir. 1993), since  it makes
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            no  sense to  send a  case back  to district  court when  the



            result is foreordained.   Two different doctrines converge on



            our result.



                 Under Massachusetts  law, as elsewhere,  a defendant  is



            liable only if the wrongdoing was the "proximate"--as well as



            the "but  for" cause  of the  harm in  question.  Peckham  v.
                                                              _______



            Continental  Casualty Ins. Co.,  895 F.2d 830,  836 (1st Cir.
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            1990) (applying  Massachusetts law).   The rubric is  used to



            draw a legal  line somewhere, along  the chain of  causation,



            between the more immediate  and foreseeable consequences of a



            wrong  and those that are more remote, unlikely or partly the



            product of  intervening forces.  Young  v. Atlantic Richfield
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Co.,  400  Mass. 837,  842  (1987);  Restatement (Second)  of
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            Torts,    440, 442 (1965).
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                 Assuming that  a Hasbro  employee made the  statement to



            Curtis,  it might  be  reasonable to  anticipate that  Curtis



            could find himself  at the  plant unable to  load the  truck,



            resulting in delay and  additional expense (e.g., charges for
                                                        ____



            delayed  delivery,  inability  to   carry  out  other  jobs).



            Perhaps it might be reasonable to assume that, in the absence



            of  expected help,  Curtis would  incur added expense  to get



            labor or would even attempt to load the truck himself.



                 But to describe the  injury itself as proximately caused



            by the  Hasbro statement or  resulting lack of  help requires



            more.   It  requires that it  be reasonably  foreseeable that



            Curtis  would  then attempt  to load  the  truck in  a highly



            negligent  manner.     By his  own  admission, Curtis  ran an
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            extremely  heavy load  resting on  a jacked-up  pallet  up an



            inclined ramp into  his truck.   He  knew that  the load  was



            unusually heavy and difficult to maneuver slowly; that is why



            he attempted the  running start.   It is  hard to explain  so



            risky a course in the face of a known hazard.



                 But even if we  assume dubitante that Curtis' negligence
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            was  foreseeable  enough  to  satisfy   the  requirements  of



            proximate cause,  compare Restatement, supra,    443, cmt. c,
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            the Clevelands are still barred from recovery.  Massachusetts



            has  eliminated  contributory negligence  as  a defense  but,


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under  its  comparative  negligence  doctrine,  it  does  bar



            recovery where  the victim's  negligence exceeds that  of the



            wrongdoer.  Mass. Gen.  L. ch. 231,   85.  That is plainly so



            in this case.



                 It is  doubtful that  the Clevelands have  proffered any



            substantial proof of negligence by Hasbro.  The  statement of



            its employee, if made  at all, was  mistaken but there is  no



            indication of fault.  For all we know, Hasbro does often have



            lumpers available and the employee's prediction may have been



            perfectly  reasonable.   Plaintiffs,  although they  claim to



            have  charged "negligent misrepresentation,"  have pointed to



            no evidence at all of negligence on the part of the employee.



                 But assuming  arguendo that a rational  jury might still
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            be  entitled to infer some measure of fault, there is nothing



            whatever  to suggest that Hasbro's fault  comes even close to



            that of Curtis.   Curtis' negligence  is patent, serious  and



            beyond reasonable dispute; Hasbro has  at most made a  garden



            variety  administrative error,  weakly inferable at  best and



            (by any  test of  foreseeability) only remotely  connected to



            Curtis' own injury.  Bluntly put, Curtis injured himself.



                 Matters of proximate cause and comparative fault are, as



            a  general rule, for the  jury; but the  settled exception to



            the general rule  applies when a reasonable  jury could reach



            only one result.  This is such a case and, without suggesting



            that the  district  court  was wrong  in  its  broader  legal


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holding,  we  think  that   our  own  ruling  on  comparative



            negligence offers a firm and narrow basis for the result.



                 Affirmed.
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