Jenks v . NH Motor Speedway 09-CV-205-JD 01/11/12 P 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 009
New Hampshire Motor Speedway, et a l .
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, and the Speedway and Thompson brought third-
party claims against Textron Financial Corporation and A.B.L.,
Inc. (“ABL”). 1 ABL moves for summary judgment on the third-party
claims brought by the Speedway and Thompson.
1 Summary judgment was granted in Textron Financial Corporation’s favor on the third-party claims against i t . Standard of Review
Summary judgment is appropriate if the moving party “shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A party opposing summary judgment “must set forth
specific facts showing that there is a genuine issue for trial.”
Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 , 256 (1986). The
court considers the undisputed facts and all reasonable
inferences from those facts in the light most favorable to the
nonmoving party. Avery v . Hughes, 661 F.3d 6 9 0 , 693 (1st Cir.
2011).
Background
Roderick Jenks worked at the New Hampshire Motor Speedway on
July 1 6 , 2006, as part of a program in which the Speedway donates
money to a charity in exchange for work done by individuals who
volunteer to participate. Jenks, along with several others, was
assigned to provide security in the track infield. After
receiving their assignments, Jenks walked with a fellow worker,
Marc MacAlpine, toward their assigned area.
Breann Thompson, a Speedway employee, drove by Jenks and
MacAlpine in a golf car. MacAlpine asked Thompson to give them a
2 ride, and she agreed. MacAlpine got into the passenger seat next
to Thompson, and Jenks rode on the back of the car in an area for
carrying golf bags. When Thompson swerved, Jenks fell off the
car, hit his head, and was seriously injured.
The golf car driven by Thompson was an EZ-Go TXT model that
was manufactured by Textron, Inc. ABL leased the golf car, along
with many others, to the Speedway for the racing event. ABL was
in the business of selling, leasing, and servicing golf cars and
had leased golf cars to the Speedway for other events.
Jenks brought negligence claims against the Speedway and
Thompson. In their third-party complaint, the Speedway and
Thompson allege claims for contribution and indemnity against
ABL.
Discussion ABL moves for summary judgment on the contribution and indemnity claims brought against i t . In support, ABL contends that strict liability does not apply to lessors of products, that the Speedway and Thompson cannot prove a failure to warn claim without expert testimony to support ABL’s liability, and that the danger of riding on the back of the car was open and obvious which precludes strict liability. The Speedway and Thompson oppose the motion.
3 A. Strict Liability
In the third-party complaint, the Speedway and Thompson
allege that they are entitled to contribution from ABL, as a
joint tortfeasor, for any judgment recovered by Jenks against
them and that they are entitled to indemnity from ABL because any
liability by them to Jenks is derivative of ABL’s fault. The
Speedway and Thompson do not allege what theory of liability they
assert as to ABL. For purposes of its motion for summary
judgment, ABL assumes that the Speedway and Thompson would assert
a strict liability claim of failure to warn or inadequate warning
against i t . In their objection, the Speedway and Thompson accept
that interpretation of their claims and assert the viability of a
failure to warn claim against ABL.
New Hampshire follows the Restatement (Second) of Torts, §
402A, for strict liability. Kelleher v . Marvin Lumber & Cedar
Co., 152 N.H. 813, 824 (2005). “Under the doctrine of strict
liability, one who sells any product in a defective condition
unreasonably dangerous to the user or consumer or to his property
is subject to liability for physical harm thereby caused to the
ultimate user or consumer.” Id. (internal quotation marks
omitted). “If the design of a product makes a warning necessary
to avoid an unreasonable risk of harm from a foreseeable use, the
lack of warning or an ineffective warning causes the product to
4 be defective and unreasonably dangerous.” Chellman v . Saab-
Scania A B , 138 N.H. 7 3 , 78 (1993).
ABL argues that strict liability is limited to sellers of
products and, therefore, inapplicable to it because it leased the
golf car to the Speedway. The Speedway and Thompson urge the
application of strict liability to ABL as a commercial lessor of
golf cars.
The New Hampshire Supreme Court has not addressed the
question of whether strict liability would apply to a commercial
lessor in the business of leasing defective products.2 When
applying state law under diversity jurisdiction, “[i]f the
highest court has not spoken directly on the question at issue,
[federal courts] predict how that court likely would decide the
issue, looking to the relevant statutory language, analogous
decisions of the state supreme court, decisions of the lower
state courts, and other reliable sources of authority.” Barton
v . Clancy, 632 F.3d 9, 17 (1st Cir. 2011).
In Brescia v . Great Road Realty Trust, 117 N.H. 154 (1977),
the court considered whether a land trust, formed by the owner of
a construction company, could be held strictly liable for a
defect in a crane that the trust leased to the construction
2 None of the parties has asked the court to certify the question to the New Hampshire Supreme Court.
5 company. The court noted that “[t]he applicability of the
doctrine in an action between a lessee and lessor is not well
established.” Id. at 156. The court also noted that strict
liability under § 402A of the Restatement does not apply to one
who only occasionally sells and is not in the business of selling
the product and stated “to the extent the doctrine [of strict
liability] is applicable to a lease arrangement, it would seem to
be applicable only where the lease in question represents
something more than business happenstance on the part of the
lessor.” Id. at 157. The court concluded that because the trust
was not in the business of leasing cranes, strict liability did
not apply. Id. The holding in Brescia does not preclude strict
liability of a commercial lessor, which is in the business of
leasing the product in question.
The Restatement (Third) of Torts: Products Liability expands
strict liability to include “other forms of commercial product
distribution that are the functional equivalent of product
sales.” Id. § 1 , cmt.b.
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Jenks v . NH Motor Speedway 09-CV-205-JD 01/11/12 P 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 009
New Hampshire Motor Speedway, et a l .
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, and the Speedway and Thompson brought third-
party claims against Textron Financial Corporation and A.B.L.,
Inc. (“ABL”). 1 ABL moves for summary judgment on the third-party
claims brought by the Speedway and Thompson.
1 Summary judgment was granted in Textron Financial Corporation’s favor on the third-party claims against i t . Standard of Review
Summary judgment is appropriate if the moving party “shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A party opposing summary judgment “must set forth
specific facts showing that there is a genuine issue for trial.”
Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 , 256 (1986). The
court considers the undisputed facts and all reasonable
inferences from those facts in the light most favorable to the
nonmoving party. Avery v . Hughes, 661 F.3d 6 9 0 , 693 (1st Cir.
2011).
Background
Roderick Jenks worked at the New Hampshire Motor Speedway on
July 1 6 , 2006, as part of a program in which the Speedway donates
money to a charity in exchange for work done by individuals who
volunteer to participate. Jenks, along with several others, was
assigned to provide security in the track infield. After
receiving their assignments, Jenks walked with a fellow worker,
Marc MacAlpine, toward their assigned area.
Breann Thompson, a Speedway employee, drove by Jenks and
MacAlpine in a golf car. MacAlpine asked Thompson to give them a
2 ride, and she agreed. MacAlpine got into the passenger seat next
to Thompson, and Jenks rode on the back of the car in an area for
carrying golf bags. When Thompson swerved, Jenks fell off the
car, hit his head, and was seriously injured.
The golf car driven by Thompson was an EZ-Go TXT model that
was manufactured by Textron, Inc. ABL leased the golf car, along
with many others, to the Speedway for the racing event. ABL was
in the business of selling, leasing, and servicing golf cars and
had leased golf cars to the Speedway for other events.
Jenks brought negligence claims against the Speedway and
Thompson. In their third-party complaint, the Speedway and
Thompson allege claims for contribution and indemnity against
ABL.
Discussion ABL moves for summary judgment on the contribution and indemnity claims brought against i t . In support, ABL contends that strict liability does not apply to lessors of products, that the Speedway and Thompson cannot prove a failure to warn claim without expert testimony to support ABL’s liability, and that the danger of riding on the back of the car was open and obvious which precludes strict liability. The Speedway and Thompson oppose the motion.
3 A. Strict Liability
In the third-party complaint, the Speedway and Thompson
allege that they are entitled to contribution from ABL, as a
joint tortfeasor, for any judgment recovered by Jenks against
them and that they are entitled to indemnity from ABL because any
liability by them to Jenks is derivative of ABL’s fault. The
Speedway and Thompson do not allege what theory of liability they
assert as to ABL. For purposes of its motion for summary
judgment, ABL assumes that the Speedway and Thompson would assert
a strict liability claim of failure to warn or inadequate warning
against i t . In their objection, the Speedway and Thompson accept
that interpretation of their claims and assert the viability of a
failure to warn claim against ABL.
New Hampshire follows the Restatement (Second) of Torts, §
402A, for strict liability. Kelleher v . Marvin Lumber & Cedar
Co., 152 N.H. 813, 824 (2005). “Under the doctrine of strict
liability, one who sells any product in a defective condition
unreasonably dangerous to the user or consumer or to his property
is subject to liability for physical harm thereby caused to the
ultimate user or consumer.” Id. (internal quotation marks
omitted). “If the design of a product makes a warning necessary
to avoid an unreasonable risk of harm from a foreseeable use, the
lack of warning or an ineffective warning causes the product to
4 be defective and unreasonably dangerous.” Chellman v . Saab-
Scania A B , 138 N.H. 7 3 , 78 (1993).
ABL argues that strict liability is limited to sellers of
products and, therefore, inapplicable to it because it leased the
golf car to the Speedway. The Speedway and Thompson urge the
application of strict liability to ABL as a commercial lessor of
golf cars.
The New Hampshire Supreme Court has not addressed the
question of whether strict liability would apply to a commercial
lessor in the business of leasing defective products.2 When
applying state law under diversity jurisdiction, “[i]f the
highest court has not spoken directly on the question at issue,
[federal courts] predict how that court likely would decide the
issue, looking to the relevant statutory language, analogous
decisions of the state supreme court, decisions of the lower
state courts, and other reliable sources of authority.” Barton
v . Clancy, 632 F.3d 9, 17 (1st Cir. 2011).
In Brescia v . Great Road Realty Trust, 117 N.H. 154 (1977),
the court considered whether a land trust, formed by the owner of
a construction company, could be held strictly liable for a
defect in a crane that the trust leased to the construction
2 None of the parties has asked the court to certify the question to the New Hampshire Supreme Court.
5 company. The court noted that “[t]he applicability of the
doctrine in an action between a lessee and lessor is not well
established.” Id. at 156. The court also noted that strict
liability under § 402A of the Restatement does not apply to one
who only occasionally sells and is not in the business of selling
the product and stated “to the extent the doctrine [of strict
liability] is applicable to a lease arrangement, it would seem to
be applicable only where the lease in question represents
something more than business happenstance on the part of the
lessor.” Id. at 157. The court concluded that because the trust
was not in the business of leasing cranes, strict liability did
not apply. Id. The holding in Brescia does not preclude strict
liability of a commercial lessor, which is in the business of
leasing the product in question.
The Restatement (Third) of Torts: Products Liability expands
strict liability to include “other forms of commercial product
distribution that are the functional equivalent of product
sales.” Id. § 1 , cmt.b. “One otherwise distributes a product
when, in a commercial transaction other than a sale, one provides
the product to another either for use or consumption . . . .
Commerical nonsale product distributors include, but are not
limited t o , lessors . . . .” Id. § 20(b).
6 The New Hampshire Supreme Court commonly relies on the Restatement, including the Restatement (Third) of Torts, when construing New Hampshire tort law. See Goudreault v . Kleeman, 158 N.H. 236, 254 (2009); DeBenedetto v . CLD Consulting Engs., Inc., 153 N.H. 793, 798-99 (2006); Kelleher, 152 N.H. at 835 (Restatement (Third) of Torts: Products Liability § 2 1 ) ; Bielagus v . EMRE of N.H. Corp., 149 N.H. 635, 646 (2003) (Restatement (Third) of Torts: Products Liability § 1 2 ) ; Trull v . Volkswagen of Am., Inc., 145 N.H. 259, 263-67 (2000); but see Vautour v . Body Masters Sports Inds., Inc., 147 N.H. 1 5 0 , 154-55 (rejecting alternative design requirement in Restatement (Third) of Torts: Products Liability § 2(b)). This court has noted the change provided by the Restatement (Third) of Torts: Products Liability § 1. See Warford v . Indus. Power Sys., Inc., 2008 WL 4642638, at *12 n.9 (D.N.H. Oct. 2 0 , 2008). As the Speedway and Thompson point out, other jurisdictions apply strict liability to commercial lessors who are in the business of leasing the allegedly defective product. See, e.g., Whitaker v . T.J. Snow Co., 151 F.3d 6 6 1 , 664 (7th Cir. 1998); Torres v . Goodyear Tire & Rubber Co., Inc., 901 F.2d 7 5 0 , 753 (9th Cir. 1990); Wallace v . Busch Entm’t Corp., 2011 WL 3607232, at *9 (S.D. Cal. Aug. 1 6 , 2011); Am. Coach Lines of Orlando, Inc. v . N . Am. Bus Indus., Inc., 2011 WL 653524, at *28 (M.D. Fla. Feb. 1 4 , 2011); Mullaney
7 v . Hilton Hotels Corp., 634 F. Supp. 2d 1130, 1139 (D. Hawaii
2009); Adeyinka v . Yankee Fiber Control, Inc., 564 F. Supp. 2d
265, 275 (S.D.N.Y. 2008); Brobbery v . Enter. Leasing C o . of
Chicago, 935 N.E. 2d 1084, 1091 (Ill. App. 2010); Peterson v .
Safway Steel Scaffolds Co., 400 N.W. 2d 909, 915 (S.D. 1987).
Based on the New Hampshire Supreme Court’s past decisions in
the area of strict product liability, the Restatement (Third) of
Torts: Products Liability § 1 and § 2 0 , and the trend in other
jurisdictions, the New Hampshire Supreme Court is likely to
extend strict product liability to commercial lessors of
defective products. Therefore, ABL is not entitled to summary
judgment based on its status as a commercial lessor.
B. Expert Testimony to Support Product Liability Claim
ABL asserts that it is entitled to summary judgment because
the Speedway and Thompson lack expert opinion evidence to prove a
failure to warn claim against i t . The basis for a failure to
warn claim is that a danger inherent in the product required a
warning to avoid an unreasonable risk of harm from a foreseeable
use of the product. LeBlanc v . Am. Honda Motor Co., Inc., 141
N.H. 579, 585-86 (1997). A defendant in a product liability case
is liable for failing to warn if “the lack of a warning or an
8 ineffective warning causes the product to be defective and
unreasonably dangerous.” Chellman, 138 N.H. at 7 8 .
ABL concedes that the Speedway and Thompson have an expert
witness, D r . William J. Vigilante, who has provided opinions
about the deficiencies of the warning Textron put on the golf
car. ABL contends, however, that D r . Vigilante’s opinions
pertaining to Textron’s obligations and failures do not apply to
ABL. The Speedway and Thompson respond by providing D r .
Vigilante’s opinions that the golf car was defective due to
deficient warnings when Textron sold the car to ABL. The
Speedway and Thompson contend that ABL’s liability arises from
the deficiency of the warning provided by Textron and ABL’s
failure to provide any additional warning on the car, despite
knowing that people rode in the back of the golf cars.
As presented, the warning claim against ABL relies on D r .
Vigilante’s opinions to show the deficiency of the warning, both
as to Textron’s failure to provide an adequate warning and to
ABL’s failure to add a warning. The Speedway and Thompson rely
on fact evidence pertaining to ABL’s actions or lack of action to
show that ABL failed to provide an adequate warning.
ABL has not shown that the Speedway and Thompson lack
evidence to prove an essential part of their claim against ABL.
9 C. Open and Obvious Danger In the last part of its memorandum, ABL states that it
“incorporates and adopts by reference the argument advanced by
Textron in its memorandum of law that the danger associated with
Mr. Jenks riding while standing and holding on the back of the
moving golf car on a cement road, was open and obvious as a
matter of law.” Mem. doc. n o . 111 at 1 0 . The court will not
address an argument made by Textron in support of its own motion
for summary judgment in the context of ABL’s motion for summary
judgment. If ABL intends to join in that part of Textron’s
motion, ABL must file an appropriate motion to that effect.
Conclusion
For the foregoing reasons, ABL’s motion for summary judgment
(document n o . 111) is denied.
10 If ABL intends to join in part of Textron’s motion for
summary judgment, ABL shall file a motion to join on or before
January 2 0 , 2012.
SO ORDERED.
VJJoseph )Joseph A. DiClerico, Jr. United States District Judge January 11, 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