Kulingoski v. Liquid Transporters

Opinion

USCA1 Opinion

November 10, 1994
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

          No. 94-1521

                                 BERNARD KULINGOSKI,

                                Plaintiff - Appellant,

                                          v.

                              LIQUID TRANSPORTERS, INC.,

                                 Defendant, Appellee.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE 

                       [Hon. Shane Devine, U.S. District Judge]
                                           ___________________

                                 ____________________

                                        Before

                               Torruella, Chief Judge,
                                          ___________

                            Coffin, Senior Circuit Judge,
                                    ____________________

                             and Keeton,* District Judge.
                                          ______________

                                _____________________

               Edward  H. Moquin,  with whom  Moquin &  Daley, P.A.  was on
               _________________              _____________________
          brief for appellant.
               Charles J. Dunn, with whom  Wadleigh, Starr, Peters, Dunn  &
               _______________             ________________________________
          Chiesa was on brief for appellee.
          ______

____________________

                              
          ____________________

          *  Of the District of Massachusetts, sitting by designation.



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Per Curiam.   Bernard  Kulingoski brought  a negligence
                    Per Curiam
                    __________

          action   against   Liquid   Transporters,   Inc.,   a  commercial

          transporter, after sustaining injuries from falling off of one of

          its  "hopper" trailers.  He  alleges that Liquid Transporters was

          negligent in failing to  provide a safe standing surface  to work

          from on  its trailers.   Liquid Transporters presented  a defense

          that Kulingoski's employer, W.R.  Grace Co., who was not  a party

          to the action,  was responsible  for the accident,  based on  its

          failure  to  require  its   employees  to  follow  proper  safety

          precautions while loading the trailer.  A trial was held, and the

          jury returned a verdict for  Liquid Transporters.  Kulingoski now

          appeals,  claiming that  the  district court  erred by  admitting

          evidence regarding Liquid Transporters' defense that W.R. Grace's

          omissions constituted  a superseding  cause of the  accident, and

          then  instructing the jury with respect to this defense.  For the

          foregoing reasons, we affirm.

                                    I.  BACKGROUND
                                    I.  BACKGROUND

                    A.  Facts
                    A.  Facts

                    Liquid  Transporters  furnishes  trucks,  trailers  and

          tankers in order to  haul products on behalf of  manufacturers to

          different  locations  throughout  the United  States  and Canada.

          Liquid Transporters had  a contract with  W.R. Grace, a  chemical

          company  located  in Nashua,  New  Hampshire,  pursuant to  which

          Liquid Transporters  would haul a dry,  powdered product produced

          by W.R. Grace to a Proctor & Gamble plant in Ontario, Canada.  

                    W.R.  Grace's  security   procedures  required   Liquid

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Transporters  to  use  the  following  system  to  transport  the

          chemical powder.   A Liquid Transporters' employee  would drive a

          truck-tractor and trailer up to the gate of W.R. Grace, and leave

          the trailer at the gate.  When W.R. Grace had completed producing

          the chemical powder, one of its employees would take a W.R. Grace

          truck-tractor,  hook  it up  to  the  empty Liquid  Transporters'

          trailer, and bring the  trailer to a W.R. Grace  loading platform

          area.   W.R. Grace employees would  then load the trailer,  and a

          W.R.  Grace employee would then  deliver the trailer  back to the

          front gate area.   A Liquid Transporters' driver would  then pick

          up the trailer and deliver it to Canada.  

                    Kulingoski worked  for W.R. Grace,  and was responsible

          for loading the trailer  with the chemical powder.   W.R. Grace's

          ordinary  procedure for loading this  type of trailer  was for an

          employee  to stand on the loading area platform and push a button

          which  lowers a chute down into each of several portholes located

          on  the  top of  the trailer.   The  trailer  is designed  with a

          walkway along the side of the  top which is used when an employee

          loading the trailer needs to adjust  the chute.  On September 15,

          1990, the night of the  accident, due to the way the  trailer had

          previously  been  loaded, Kulingoski  had  to  rake the  chemical

          powder  into the trailer's portholes.  While he was standing near

          the  trailer's  front  edge   and  raking  the  chemical  powder,

          Kulingoski fell off the trailer and was injured.

                    B.  Proceedings Below
                    B.  Proceedings Below

                    Kulingoski  originally  brought  this  action   in  New

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Hampshire state court, and Liquid Transporters removed the action

          to  federal court on the basis of diversity jurisdiction.  During

          the  course  of  the  trial,  Kulingoski  contended  that  Liquid

          Transporters was  negligent, based  on its  failure to provide  a

          pierced  steel leveled surface on  the top of  the trailer, which

          would prevent  skidding and reduce  the hazard of  slipping while

          working on the trailer.   Liquid Transporters asserted  a defense

          that  W.R. Grace's  failure to  require  its employees  to follow

          appropriate  safety procedures  when  loading the  trailer was  a

          superseding  cause  of  Kulingoski's  accident.   Throughout  the

          trial, Kulingoski  opposed this  defense, claiming that  based on

          the  facts of this case,  the defense was  not legally cognizable

          under New Hampshire law.  Specifically, Kulingoski filed a motion

          in limine to exclude all  evidence regarding W.R. Grace's  unused
          __ ______

          safety harness system.   Kulingoski also objected to the  court's

          decision to instruct the  jury on the superseding  cause defense.

          The  court denied the motion in limine and overruled Kulingoski's
                                       __ ______

          objections  to its jury instructions.  Following a two day trial,

          the jury returned a verdict for Liquid Transporters.   Kulingoski

          now appeals.

                                    II.  ANALYSIS
                                    II.  ANALYSIS

                    A.  The Jury Instructions
                    A.  The Jury Instructions

                    A party  is  entitled to  have  its legal  theories  on

          controlling  issues,  which  are supported  by  the  law  and the

          evidence, presented to the jury.  See Jerlyn Yacht Sales, Inc. v.
                                            ___ ________________________

          Wayne  B. Roman  Yacht Brokerage,  950 F.2d  60, 68-69  (1st Cir.
          ________________________________

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1991).   When  reviewing the adequacy  of jury  instructions, the

          question is whether the trial judge gave adequate instructions on

          each element of the case to insure that the jury fully understood

          the  issues, or  whether the  instructions tended  to  confuse or

          mislead the jury.  See  Davet v. Maccarone, 973 F.2d 22,  26 (1st
                             ___  _____    _________

          Cir. 1992);  Shane v. Shane,  891 F.2d 976, 987  (1st Cir. 1989);
                       _____    _____

          see, e.g., Jerlyn Yacht Sales, 950 F.2d at 69.  An error  in jury
          ___  ____  __________________

          instructions  will warrant reversal  of a judgment  only if, upon

          review of  the record as a  whole, the error is  determined to be

          prejudicial.  Davet, 973 F.2d at 26; Transnational Corp. v. Rodio
                        _____                  ___________________    _____

          & Ursillo, Ltd., 920 F.2d 1066, 1070 (1st Cir. 1990).
          _______________

                    The  court's instruction  to  the jury  on  superseding

          cause was  supported both  by the  law of  New Hampshire and  the

          facts of the case.  "New Hampshire law follows the principle that

          a  defendant is relieved of  liability by a  superseding cause of

          the accident  which he could  not reasonably  be found to  have a

          duty  to foresee."  Bellotte v.  Zayre Corp., 531 F.2d 1100, 1102
                              ________     ___________

          (1st Cir.  1976) (citing  Morin v. Manchester  Housing Authority,
                                    _____    _____________________________

          195 A.2d 243, 245 (N.H. 1963));  see Reid v. Spadone Machine Co.,
                                           ___ ____    ___________________

          404 A.2d  1094, 1098-99 (N.H. 1979).  In the usual case, there is

          no  legal reason which prevents  a defendant from  arguing that a

          third person's  negligence was  the sole  proximate cause of  the

          plaintiff's injury.  See Reid, 404 A.2d at 1099 (citing Murray v.
                               ___ ____                           ______

          Bullard Co., 265 A.2d 309, 312 (N.H. 1970)).  The availability of
          ___________

          the defense depends on the "reasonable" foreseeability of the act

          of the  third party.   Reid, 404  A.2d at 1099.   Absent  special
                                 ____

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circumstances,  a defendant  is  not expected  to anticipate  the

          wrongful  conduct of  others.    See  Morin,  195  A.2d  at  245.
                                           ___  _____

          Additionally, where after a defendant commits a negligent  act, a

          duty  then devolves on another person in reference to such act or

          condition,  and  this  person  fails to  perform  his  duty, such

          failure  may be superseding cause  of any resulting  injury.  See
                                                                        ___

          generally Restatement (Second)  of Torts    452; cf. Murray,  265
          _________                                        __  ______

          A.2d  at 312  (finding  that  charge  to  jury  with  respect  to

          employer's failure  to properly  adjust machine as  a superseding

          cause  which  defendant manufacturer  could  not  have reasonably

          foreseen, was appropriate under New Hampshire law). 

                    Liquid Transporters introduced  sufficient evidence  to

          support  a superseding  cause  defense.   Evidence introduced  at

          trial permitted the jury to reasonably conclude that Kulingoski's

          employer,  W.R. Grace, failed to  require its employees  to use a

          safety harness while loading  trailers, like the one  involved in

          this  accident.  A "Health and Safety Coordinator" at W.R. Grace,

          James  Todd, testified  that there  was safety  harness equipment

          available  in the loading dock  area at the  time of Kulingoski's

          accident,  but that W.R. Grace failed to require its employees to

          use  this safety equipment.  W.R.  Grace's accident report stated

          that the accident was  caused by Kulingoski's failure to  use and

          observe   "safety  appliance   or  regulation."     Additionally,

          Kulingoski  himself  testified that  an improved  harness system,

          that W.R. Grace introduced after his accident, made it "safe" for

          him to work on the trailer.  

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The  evidence also  indicated that  Liquid Transporters

          could  not  have  reasonably  foreseen W.R.  Grace's  failure  to

          require its  employees to follow adequate  safety procedures when

          loading  trailers.   W.R. Grace  required Liquid  Transporters to

          leave its trailers outside of its plant,  and Liquid Transporters

          had no opportunity to witness W.R. Grace employees loading Liquid

          Transporters' trailers. 

                    On  appeal,  Kulingoski  makes  two  specific arguments

          challenging  Liquid  Transporters'  superseding   cause  defense.

          First,  he argues  that the  lack of  an adequate  safety harness

          system  was not  a  cause of  the  incident, and  therefore  "the

          harness  cannot be a superseding  intervening cause if  it is not

          first a cause."   Kulingoski's contention misconstrues the nature

          of  Liquid Transporters' defense,  as well  as the  law regarding

          superseding  cause.   First, Liquid  Transporters does  not argue

          that the absence of the harness itself was a superseding cause of

          the accident.   Rather, it  argues that W.R.  Grace's failure  to

          require that Kulingoski wear a safety harness was the superseding

          cause of  Kulingoski's accident.   Second, the  superseding cause

          defense presumes that the defendant was originally negligent, but

          that  some   unforeseeable  intervening  act  later  operates  to

          supersede the  defendant's negligence.   This intervening  act is

          then  deemed  to  be  the superceding  cause  of  the plaintiff's

          injury.  See, e.g., Bellotte, 531 F.2d at 1102; Reid, 404 A.2d at
                   ___  ____  ________                    ____

          1098-99; Morin, 195 A.2d  at 245.  See also  Restatement (Second)
                   _____                     ________

          of Torts   440.

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Kulingoski  also claims  that the  court's instructions

          regarding superseding cause  were confusing and the  jury did not

          understand  them.     Kulingoski  does  not   point  to  specific

          statements  in  the jury  instructions  which  were erroneous  or

          confusing.   Rather,  he bases  this assertion  on the  fact that

          because  the  jury  returned   a  verdict  in  favor  of   Liquid

          Transporters very quickly, this indicates that the jury must have

          been confused about the issue of superseding cause, and therefore

          the court's instructions were erroneous.  We find this contention

          entirely  meritless.   We  have reviewed  the actual  instruction

          given to the jury, and believe that  it was an accurate statement

          of  New Hampshire  law  regarding superseding  cause.   There  is

          simply  no  basis for  Kulingoski's  argument that  the  jury was

          confused.1  Rather, Kulingoski's  contention appears to simply be

          a reflection of his disbelief that the jury found against him.   

B.  The Admission of Evidence
                    B.  The Admission of Evidence

                    Kulingoski   also  claims  that   the  court  erred  by

          admitting  evidence regarding  the  safety harness.    Kulingoski

          rests  this contention on his belief that W.R. Grace's failure to

          provide  a safety harness could not have been a superseding cause

          of the accident based on the law of New Hampshire. 

                    The admission  and exclusion  of evidence  is primarily
                              
          ____________________

          1   We  also  believe  that the  jury  was  perfectly capable  of
          understanding   that  New  Hampshire   has  a  no-fault  workers'
          compensation  system,  and  that  because  W.R.  Grace  had  paid
          Kulingoski workers'  compensation benefits, it  was not admitting
          fault which then relieved Liquid Transporters of liability.

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committed  to  the  discretion  of  the  trial  court,  and  this

          determination  will not be disturbed absent a showing of an abuse

          of  discretion.  Doty  v. Sewall, 908  F.2d 1053,  1058 (1st Cir.
                           ____     ______

          1990).   Evidence is "relevant"  if it has  "any tendency to make

          the  existence  of  any  fact  that  is  of  consequence  to  the

          determination of the action  more probable or less probable  than

          it would be without the evidence."  Fed. R. Evid.  401.  Relevant

          evidence is  admissible,  although it  "may  be excluded  if  its

          probative  value is  substantially  outweighed by  the danger  of

          unfair prejudice, confusion of the issues, or misleading the jury

          . . . ."  Fed. R. Evid. 403.  

                    As  noted   above,  Liquid  Transporters'   defense  of

          superseding  cause was  supported by  the law  of  New Hampshire.

          Given   that  this   defense  was   legally   cognizable,  Liquid

          Transporters was  entitled to introduce evidence  which supported

          this  defense.   Evidence  regarding the  availability of  safety

          equipment and the effectiveness  of such safety equipment, tended

          to show that W.R. Grace's failure to require its employees to use

          such safety equipment was  negligence, which therefore could have

          constituted   a  superseding  cause   of  Kulingoski's  accident.

          Kulingoski has failed to point to any reasonable danger of unfair

          prejudice  or  confusion, which  was  produced  by admitting  the

          evidence, and  which would  justify excluding the  evidence under

          Fed.  R. Evid.  403.   Moreover, we  fail to  see any  reason for

          excluding the  evidence.  Therefore, the  court properly admitted

          the evidence.

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For the foregoing reasons, we affirm. 
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