Jenks v . NH Motor Speedway 09-CV-205-JD 04/23/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Melissa Jenks, individually, and as g/n/f of Roderick Jenks
v. Civil N o . 09-cv-205-JD Opinion N o . 2012 DNH 075 New Hampshire Motor Speedway, Breann Thompson, and Textron, Inc.
v.
A.B.L., Inc.
O R D E R
Melissa Jenks, as the guardian and next friend of her
husband, Roderick Jenks, and on her own behalf, sued New
Hampshire Motor Speedway, Breann Thompson, and Textron, Inc.,
alleging negligence claims against Thompson and the Speedway and
product liability claims against Textron. Textron brought cross
claims against the Speedway and Thompson for contribution and
indemnification. The Speedway and Thompson brought cross claims
against Textron for contribution and indemnification and third-
party claims against Textron Financial Corporation and A.B.L.,
Inc. (“ABL”) 1
1 Summary judgment was granted in Textron Financial Corporation’s favor on the third-party claims against i t . In anticipation of trial, the court ordered briefing on the
issue of whether New Hampshire would recognize a continuing duty
to warn as provided by § 10 of the Restatement (Third) of Torts:
Products Liability (1998) (“Restatement: P L ” ) . Jenks filed a
motion supported by a memorandum of law to allow evidence and
instruction on the continuing duty to warn. The Speedway and
Thompson filed a memorandum in support of the continuing duty to
warn. Textron filed an objection to the plaintiffs’ motion, and
Jenks, the Speedway, and Thompson have filed replies. Textron
filed a surreply.
Discussion
As addressed in the motion and memoranda, the issues to be
resolved here are: 1 ) whether New Hampshire would recognize a
post-sale or continuing duty to warn in products liability cases,
and 2 ) whether evidence of a continuing duty to warn will be
allowed, accompanied by an appropriate jury instruction on that
issue at the conclusion of the case.
A. New Hampshire Law
When this court sits in diversity jurisdiction, the substantive law of the forum state governs the decision. Erie R.R. C o . v . Tompkins, 304 U.S. 6 4 , 78 (1938). “Where the highest
2 [state] court has not spoken directly on the question at issue, [the federal court] must predict, as best [it] can, that court’s likely answer.” Nolan v . C N 8 , 656 F.3d 7 1 , 76 (1st Cir. 2011). The prediction is based on the state supreme court’s analogous decisions, any decisions of lower state courts, and other reliable sources such as the decisions of other courts and commentary in treatises. See Barton v . Clancy, 632 F.3d 9, 17 (1st Cir. 2011); Acosta-Mestre v . Hilton Int’l of P.R., Inc., 156 F.3d 4 9 , 54 (1st Cir. 1998).
Textron argues that a lack of New Hampshire Supreme Court precedent adopting a post-sale or continuing duty to warn bars that theory in this case. Textron misunderstands the difference between this court’s obligation under diversity jurisdiction to apply established New Hampshire law and its related duty to proceed when governing precedent is lacking.2 While a federal
2 Textron faults Jenks for asking this court to address a novel issue of state law. Federal courts “‘must be hesitant to blaze a new (and contrary) trail’” in state law. Hatch v . Trail King Inds., Inc., 656 F.3d 5 9 , 70 (1st Cir. 2011) (quoting Warren v . United Parcel Serv., Inc., 518 F.3d 9 3 , 100 (1st Cir. 2008)). When a novel issue is raised and the pertinent state law is unsettled, it might be necessary to certify the question to the New Hampshire Supreme Court. See, e.g., Am. States Ins. C o . v . LaFlam, 672 F.3d 3 8 , 44 (1st Cir. 2012); Hungerford v . Jones, 988 F. Supp. 2 2 , 25 (D.N.H. 1997). Notably, Textron did not ask that the question be certified to the New Hampshire Supreme Court in response to Jenks’s motion and instead argued, based on existing precedent, that the supreme court has not and would not adopt a
3 court cannot change existing state law by adopting new
exceptions, see Katz v . Pershing, LLC, --- F.3d ---, 2012 WL
612793, at *6 (1st Cir. Feb. 2 8 , 2012), when precedent is
lacking, a federal court must predict, if possible, the course
the state court would take, Barton, 632 F.3d at 1 7 . See also
Gonzalez Figueroa v . J.C. Penney P.R., Inc., 586 F.3d 313, 322
(1st Cir. 2009); Jenks v . New Hampshire Motor Speedway, et a l . ,
Civil N o . 09-cv-205-JD, O p . N o . 2012 DNH 009, at *4-*8 (Jan. 1 1 ,
2012). Therefore, the absence of governing precedent in New
Hampshire on the issue of a continuing duty to warn of a product
defect does not necessarily preclude that theory in this case.
The product liability theory of a post-sale or continuing
duty to warn is set forth in § 10 of the Restatement: P L . Under
§ 1 0 , a seller or distributor is liable “for harm to persons or
property caused by the seller’s failure to provide a warning
after the time of sale or distribution of a product if a
reasonable person in the seller’s position would provide such a
warning.” When the Restatement: PL was published in 1998,
“[j]udicial recognition of the seller’s duty to warn of a
product-related risk after the time of sale, whether or not the
product is defective at the time of original sale within the
continuing duty to warn.
4 meaning of other Sections of this Restatement, [was] relatively new.” Id., § 1 0 , cmt. a. Previously in this case, the court predicted that the New Hampshire Supreme Court would follow § 1 and § 20(b) of the Restatement: PL which expand strict liability t o , among others, commercial lessors of defective products. See Order, doc. n o . 146, O p . N o . 2012 DNH 009 at *4-*8. In that order, the court reviewed the New Hampshire Supreme Court’s precedent in the area of products liability along with decisions from other courts and concluded that the supreme court would impose strict liability on commercial lessors of defective products. The same standard for predicting the New Hampshire Supreme Court’s likely course with respect to a post-sale or continuing duty to warn applies here.
The New Hampshire Supreme Court has not addressed this issue directly in product liability cases. In McLaughlin v . Fisher Eng’g, 150 N.H. 195 (2003), the plaintiffs brought a product liability suit against the manufacturer of a snowplow mount, seeking damages for enhanced injuries allegedly caused by the mount in an accident. The plaintiffs sought to introduce evidence of fourteen post-sale lawsuits against Fisher to prove that the asserted defect existed, that the defect caused a risk of harm, and that Fisher knew or should have known of the danger. Id. at 197. The trial court ruled that the post-sale lawsuits
5 were not relevant unless the plaintiffs “‘were to establish the
criteria concerning a duty to warn after the sale.’”3 Id.
(quoting trial court). The trial court ultimately excluded the
evidence of other lawsuits except for certain statements made by
Fisher in the prior lawsuits to the extent that “the plaintiffs
qualified those statements as admissions.” Id.
On appeal, the supreme court stated: “We agree with the
plaintiffs that evidence of other lawsuits was relevant to the
issue of Fisher’s knowledge that the snowplow mount was
potentially dangerous.” Id. at 198. The court held, however,
that the evidence was not necessary because Fisher had admitted
its knowledge of the danger and that the plaintiffs were not
unreasonably prejudiced by its exclusion. Id. In addition, the
court noted that the evidence about other lawsuits “was likely to
produce a trial within a trial and confuse the jury.” Id. As
such, the issue of whether the theory of continuing duty to warn
was viable under New Hampshire law was not presented. It is
apparent, however, that in McLaughlin the supreme court assumed
it to be a valid theory of liability.
In Cheshire Med. Ctr. v . W.R. Grace & Co., 853 F. Supp. 5 6 4 ,
567 (D.N.H. 1994), the federal district court instructed the jury
3 The case does not explain what criteria were necessary to establish a duty to warn after the sale.
6 in a products liability case that the defendant had a continuing
duty to warn of dangers associated with the product even after it
had been sold. The validity of that theory was not challenged.
Therefore, the court had no occasion to consider whether the New
Hampshire Supreme Court would recognize that theory.
In Tate v . Robbins & Myers, Inc., 790 F.2d 10 (1st Cir.
1986), the First Circuit considered an appeal in a products
liability case from the District of New Hampshire in which the
plaintiff proceeded on theories of an inadequate warning at the
time of sale and a breach of the continuing duty to warn. The
trial court had excluded a post-sale manual, as evidence of the
breach of the continuing duty to warn, on the ground that the
plaintiff failed to provide evidence that the plaintiff had
notified the manufacturer of his purchase of the machine. Id. at
11-12. The court affirmed on appeal. As in Cheshire Med., the
case proceeded on a continuing duty to warn theory without a
challenge to that theory. It is apparent that the theory was
accepted by both the trial and appellate courts.
In support of its argument that a continuing duty to warn is
not consistent with New Hampshire law, Textron relies on
decisions that pre-date the Restatement: PL and are based on
product liability as provided in the Restatement (Second) of
7 Torts.4 See, e.g., Thibault v . Sears, Roebuck & Co., 118 N.H.
802, 807 (1978); McLaughlin v . Sears, Roebuck & Co., 111 N.H.
265, 267 (1971). Textron further argues that the New Hampshire
Supreme Court has recognized only a narrow version of product
liability. Textron notes that the supreme court has not imposed
liability on successors to a product’s manufacturer based on a
“product line” theory, Simoneau v . S . Bend Lathe, Inc., 130 N.H.
466, 469-70 (1988), and has not imposed liability for defects
that were “scientifically unknowable” at the time of sale, Heath
v . Sears, Roebuck & Co., 123 N.H. 5 1 2 , 530 (1983).
Textron also contends that the New Hampshire Supreme Court’s
decision in Vautour v . Body Masters Sports Indus., Inc., 147 N.H.
150 (2001), demonstrates the court’s narrow view of product
liability. In Vautour, the supreme court rejected § 2(b) of the
Restatement: P L , which requires plaintiffs to present evidence of
a safer alternative design as part of the proof of a design
defect claim. Id. at 155. The court noted “considerable
controversy” about § 2(b) that stemmed “from the concern that a
reasonable alternative design requirement would impose an undue
burden on plaintiffs because it places a potentially
insurmountable stumbling block in the way of those injured by
4 Products liability under § 402-A of the Restatement (Second) of Torts references the seller of a defective product.
8 badly designed products.” Id. (internal quotation marks
omitted). The court also noted the practical problems of
applying § 2(b) and that applying § 2(b) would over-emphasize one
aspect of the risk-utility analysis. Id. at 156. Therefore, the
New Hampshire Supreme Court maintained a broader view of product
liability by rejecting § 2 ( b ) . Vautour does not support
Textron’s argument.
Under New Hampshire law, a manufacturer of a product is
strictly liable for injury caused by the product’s defective
design if “‘the design of the product created a defective
condition unreasonably dangerous to the user.’” Price v . BIC
Corp., 142 N.H. 386, 389 (1997) (quoting LeBlanc v . Am. Honda
Motor Co., Inc., 141 N.H. 579, 585 (1997)). One aspect of a
defective design claim is “the presence and efficacy of a warning
to avoid an unreasonable risk of harm from hidden dangers or from
foreseeable uses.” Price, 142 N.H. at 389. “[A] manufacturer’s
duty to warn is not limited to intended uses of its product, but
also extends to all reasonably foreseeable uses to which the
product may be put.” Id. at 390.
In this case, the alleged defect is the danger of falling
when riding on the back of the golf car manufactured and sold by
Textron. Jenks, the Speedway, and Thompson contend that the
danger associated with riding on the back of the car existed at
9 the time Textron sold the car, obligating Textron to provide a
warning at the time of sale. They also contend that as more
information about the danger of riding on the back its golf cars
became available and known to Textron, it had a continuing duty
to provide a warning. Therefore, as alleged, the defect existed
in the car and was known by Textron when the car was sold and, or
alternatively, Textron learned of the defect or gained
information about the defect after the car was sold. The
question is whether Textron had a continuing duty to provide a
warning about the danger of riding on the back of the car.
Other jurisdictions that have considered this question have
concluded, under both strict liability and negligence causes of
action, that the seller or manufacturer of a defective product
has a continuing or post-sale duty to warn of the defect, at
least when it would be reasonable to provide such a warning.
See, e.g., Brown v . Crown Equip. Co., 554 F.3d 3 4 , 36 (1st Cir.
2009) (Maine Supreme Judicial Court found continuing duty to warn
under negligence theory); Robinson v . Brandtjen & Kluge, Inc.,
500 F.3d 6 9 1 , 697 (8th Cir. 2007) (recognizing post-sale duty to
warn in negligence and under § 10 of Restatement: P L ) ; Ahlberg v .
Chrylser Corp., 481 F.3d 6 3 0 , 633 (8th Cir. 2007) (recognizing
post-sale duty to warn in negligence and strict product
liability); Dowdy v . Coleman Co., Inc., 2011 WL 6151432, at *3
10 (D. Utah Dec. 1 2 , 2011); In re Avandia Mktg., Sales Practices &
Prods. Liability Litig., 817 F. Supp. 2d 535, 547-48 (E.D. Penn.
2011); Reiss v . Komatsu Am. Corp., 735 F. Supp. 2d 1125, 1150
(D.N.D. 2010); Snoznik v . Jeld-Wen, Inc., 2010 WL 1924483, at *22
(W.D.N.C. May 1 2 , 2010); Quist v . Sunbeam Prods., Inc., 2010 WL
1665254, at *4-*5 (D. Minn. Apr. 2 2 , 2010); Wendorf v . JLG
Indus., Inc., 683 F. Supp. 2d 5 3 7 , 546-47 (E.D. Mich. 2010);
Murphy v . Ford Motor Co., Inc., 2009 WL 2998960, at *5 (W.D. L a .
Sept. 1 4 , 2009); Rash v . Stryker Corp., 589 F. Supp. 2d 733, 736
(W.D. V a . 2008); Toms v . J.C. Penney Co., Inc., 2007 WL 2893052,
at *7 (D.N.J. May 2 3 , 2008); Tabor v . Metal Ware Corp., 168 P.3d
814, 818 (Utah 2007); Lewis v . Ariens Co., 751 N.E.2d 8 6 2 , 866-67
(Mass. 2001); Lovick v . Wil-Rich, 588 N.W.2d 6 8 8 , 693-94 (Iowa
1999); Liriano v . Hobart Corp., 92 N.Y.2d 2 3 2 , 240-41 (N.Y.
1998).
Jenks argues, alternatively, that a continuing duty to warn
is part of existing negligence law in New Hampshire. Textron
contends that even if such a duty exists, a continuing duty to
warn as a negligence claim was not pleaded in Jenks’s amended
complaint or by the Speedway and Thompson. For that reason,
Textron asserts that a continuing duty to warn as a negligence
theory cannot be considered in this case.
11 Based on the New Hampshire cases, New Hampshire’s product
liability law, related federal cases, and the reasoning of many
other jurisdictions, this court can predict that the New
Hampshire Supreme Court would recognize a continuing duty to warn
of a product defect under § 10 of the Restatement: PL as a strict
product liability claim. While the New Hampshire Supreme Court
might also find a continuing duty to warn under a negligence
theory, it is not necessary to make that prediction in this case.
A product liability claim asserting a continuing duty to warn
under § 10 is cognizable in this case.
B. Evidence and Jury Instruction
The plaintiffs, the Speedway, and Thompson also ask that
they be allowed to present evidence on the continuing duty to
warn and that the jury be instructed on that theory. To succeed
on a claim under § 1 0 , the plaintiffs, the Speedway, and Thompson
must show that a reasonable person in Textron’s position would
provide a post-sale warning. Restatement: PL § 10(a). Whether a
reasonable person would provide such a warning depends on proof
that:
(1) the seller knows or reasonably should know that the product poses a substantial risk of harm to persons or property; and (2) those to whom a warning might be provided can be identified and can reasonably be assumed to be unaware
12 of the risk of harm; and (3) a warning can be effectively communicated to and acted on by those to whom a warning might be provided; and (4) the risk of harm is sufficiently great to justify the burden of providing a warning.
Id. § 10(b). “As with all rules that raise the question whether
a duty exists, courts must make the threshold decisions that, in
particular cases, triers of fact could reasonably find that
product sellers can practically and effectively discharge such an
obligation and that the risks of harm are sufficiently great to
justify what is typically a substantial post-sale undertaking.”
Id. cmt. a. Therefore, “[i]n deciding whether a claim based on a
breach of a post-sale duty to warn should reach the trier of
fact, the court must determine whether the requirements in
Subsection (b)(1) through (4) are supported by proof.” Id.
Textron originally sold the golf car that was involved in
the accident at issue in this case in 1997 but then repurchased
it. In 2001, Textron sold the car to its authorized dealer,
A.B.L., Inc. A.B.L leased the car, along with many others, to
the Speedway for use during the race weekend in July of 2006,
when Roderick Jenks fell from the back of the car and was
seriously injured. Textron acknowledges that the only statement
pertaining to riding on the back of the car was on a decal
13 affixed to the dashboard of the car, which would not warn someone
who was riding on the back.
Jenks, the Speedway, and Thompson proffer evidence to show
that Textron was aware of the danger of riding on the back of the
car when the car was sold and that it received additional
information about that danger after the car was sold. They refer
to the information about golf car accidents compiled by the
National Electronic Injury Surveillance Systems database and
contend that information was available to and known by Textron
executives.
In addition, an attorney representing the family of a person
who was killed when he fell off of the back of a Textron golf car
sent a letter to Textron in July of 2003. The family asked
Textron to put a warning on the back of its golf cars to prevent
additional fatalities. Textron’s assistant general counsel asked
for more details but apparently did not pass along the
information within Textron. When the National Consumer Product
Safety Commission investigated that accident, Textron’s counsel
claimed that the family and their attorney had not been
cooperative.
Jenks, the Speedway, and Thompson also provide evidence that
Textron knew that A.B.L. owned the golf car and had means to
easily identify to whom a warning should be given. They note
14 that when the decal affixed to the dashboard of the cars
deteriorated, A.B.L. would ask Textron to provide new decals.
They also represent that Textron began putting warnings on the
back of its golf cars in 2008.
Textron contends that § 10 does not apply in this case
because Roderick Jenks, the Speedway, and Thompson were aware of
the risk of riding on the back of the car. Section 10(b)(2)
provides that a reasonable person would provide a post-sale
warning if “those to whom a warning might be provided can be
identified and can reasonably be assumed to be unaware of the
risk of harm.” Although Textron provides evidence that some
Speedway employees, including Thompson, were aware that riding on
the back of a golf car could be dangerous, there is evidence that
people often did ride on the back of golf cars, suggesting a lack
of awareness of the danger. Roderick Jenks’s experience as a
school bus driver does not show, in and of itself, that he
understood the danger of riding on the back of a golf car.
In addition, § 10(b) applies to what a reasonable seller
would assume, not to what the victim actually knew or thought.
Textron included a warning not to allow riders on the back of the
car as part of the decal on the golf car’s dashboard, which
suggests that Textron assumed those who used its cars were not
aware of the danger of riding on the back. Textron also added a
15 warning to the back of its golf cars in 2008. Therefore, a
reasonable seller of golf cars could have assumed a warning was
necessary.
Textron has not shown that § 10(b)(2) bars claims based on a
continuing duty to warn in this case. Jenks, the Speedway, and
Thompson have provided a sufficient showing to be permitted to
present evidence in support of a products liability claim against
Textron based on a continuing duty to warn theory. Whether a
jury instruction will be given on the claim depends on whether
the claim survives a motion for a directed verdict, if such a
motion is made.
Conclusion
For the foregoing reasons, the plaintiff’s motion to allow
evidence and instruction on the continuing duty to warn (document
n o . 159) is granted to the extent that a product liability claim
under § 10 of the Restatement: PL is cognizable in this case.
Jenks, the Speedway, and Thompson will be permitted to present
evidence at trial on that claim. If the claim goes to the jury,
an appropriate instruction will be given.
At this juncture, the claims, cross claims, and
counterclaims are established. The court urges the parties to
realistically evaluate their claims and defenses and to consider
16 the risks and costs of trial. With those matters in mind, the
parties are expected to use their best efforts to resolve all or
part of this case before trial.
SO ORDERED.
VJJos'eph A. DiClerico, Jr. United States District Judge April 2 3 , 2012
cc: R. Matthew Cairns, Esquire James M . Campbell, Esquire R. Peter Decato, Esquire Dona Feeney, Esquire Mark V . Franco, Esquire Neil A . Goldberg, Esquire John A.K. Grunert, Esquire Daniel R. Mawhinney, Esquire David S . Osterman, Esquire Christopher B . Parkerson, Esquire Michael D. Shalhoub, Esquire William A . Whitten, Esquire