Kelly v. Sears Roebuck
This text of Kelly v. Sears Roebuck (Kelly v. Sears Roebuck) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Bluebook
Kelly v. Sears Roebuck, (1st Cir. 1992).
Opinion
USCA1 Opinion
October 23, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1406
JAMES KELLY,
Plaintiff, Appellant,
v.
SEARS, ROEBUCK AND CO.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert B. Collings, U.S. Magistrate Judge]
_____________________
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Before
Torruella, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Cynthia Mead, with whom Albert E. Grady and Office of
_____________ ________________ __________
Albert E. Grady, were on brief for appellant.
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Terrance J. Hamilton, with whom Casner & Edwards, was on
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brief for appellee.
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Per Curiam. In this products liability action, a jury
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rendered a verdict holding that the defendant's negligence and
breach of warranty were not a proximate cause of plaintiff's
injuries. The district court entered judgment for the defendants
and plaintiff appealed claiming that he was entitled to a new
trial on two grounds. For the reasons that follow, we affirm the
judgment of the district court.
I
On January 5, 1989, James Kelly was using a Sears
Craftsman 10" table saw to cut up scrap wood. While cutting a
six foot length of pine wood, his left hand came into contact
with the unguarded blade, resulting in the partial amputation of
his little finger and lacerations and fractures to his ring and
middle fingers.
The table saw was designed and manufactured with a
blade guard. However, the blade guard and related safety
features in this particular saw were removed and had not been
used for several years prior to the accident. In addition, the
owner's manual --which included specific warnings regarding the
use of the saw -- was misplaced at the time of the accident. The
saw itself, however, contained other pertinent warnings.
Plaintiff Kelly sued defendant Sears, Roebuck and
Company ("Sears") alleging that Sears' table saw was defective
and had caused plaintiff to sustain injuries in his left hand.
The case went to trial on July 22, 1991 and on July 30, 1991, the
jury returned a special verdict finding that (1) Sears did not
-2-
breach its warranty of design; (2) Sears was negligent with
respect to the design of the table saw; (3) Sears breached its
warranty as it pertains to the lack of warning on the removable
guard assembly; and (4) Sears was negligent by not placing
warnings on the removable guard assembly. The jury, however,
found that any negligence or breach of warranty on the part of
Sears was not a proximate cause of plaintiff's injuries. The
district court entered judgment for Sears and discharged the
jury.
II
Plaintiff's principal argument on appeal is the alleged
inconsistency of the jury verdict. Plaintiff asserts that (1)
the jury's finding that Sears did not breach its warranty of
design is inconsistent with its finding of negligence in design,
and (2) the determination that Sears was negligent and breached
its warranty with respect to warnings is inconsistent with the
finding that Sears' negligence and breach of warranty were not a
proximate cause of plaintiff's injuries.1
We need not consider plaintiff's claim since he failed
to assert the alleged inconsistency before the district court in
a timely manner. It is long-settled law in this circuit that the
failure of a litigant to bring to the attention of the trial
court an alleged inconsistency in the jury verdict before the
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1 Alternatively, appellant's proximate cause claim may be aimed
at the trial court's failure to direct a finding of causation
upon the determination of breach of warranty. Even if the claim
had merit, appellant has waived it when he failed to move for
either a directed verdict of a judgment notwithstanding verdict.
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jury is discharged constitutes a waiver of this claim. Masure v.
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Donnelly, 962 F.2d 128, 134 (1st Cir. 1992) ("[B]y failing to
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point out the alleged inconsistency before the jury was
discharged, [appellant] waived this argument"); Peckham v.
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Continental Casualty Ins. Co., 895 F.2d 830, 836 (1st Cir. 1990)
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("[t]he law is perfectly clear that [appellants] waived any claim
of internal inconsistency 'by failing to object after the verdict
was read and before the jury was discharged'") (quoting McIsaac
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v. Didriksen Fishing Corp., 809 F.2d 129, 134 (1st Cir. 1987));
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Fern ndez v. Chard n, 681 F.2d 42, 58 (1st Cir.), cert. denied,
_________ _______ _____ ______
459 U.S. 989 (1982) (litigant who waits until after the jury is
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