Perlmutter v. United States Gypsum Co.

54 F.3d 659, 1995 WL 271960
CourtCourt of Appeals for the Tenth Circuit
DecidedMay 9, 1995
DocketNo. 94-1187
StatusPublished
Cited by16 cases

This text of 54 F.3d 659 (Perlmutter v. United States Gypsum Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perlmutter v. United States Gypsum Co., 54 F.3d 659, 1995 WL 271960 (10th Cir. 1995).

Opinion

TACHA, Circuit Judge.

Plaintiffs, developers of a shopping mall in Northglenn, Colorado, sued defendant United States Gypsum Company, manufacturer of a plaster product containing asbestos, under several legal theories, including negligence and strict liability. After a jury verdict for plaintiffs on the negligence cause of action, defendants appealed to this court. Because we found error in the district court’s jury instructions, we reversed and remanded. Perlmutter v. United States Gypsum Co., 4 F.3d 864, 875 (10th Cir.1993) (Perlmutter I). On remand, the district court granted defendant summary judgment, which plaintiff now appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

Plaintiffs are developers who built a shopping mall in Northglenn, Colorado, in 1967. Defendant sold plaintiffs an acoustical plaster product for use in construction of the mall’s ceiling. The product, which contained asbestos, was sold under the trade name Audicote. At the time plaintiffs purchased the Audicote for the Northglenn Mall, defendant did not label or advertise the product’s asbestos content. Over the next twenty years, the Audi-cote in Northglenn Mall was periodically disturbed when plaintiffs repaired water damage and performed routine maintenance on the ceiling. Plaintiffs claim that asbestos was released into the mall when this work was performed.

In 1987, plaintiffs negotiated a sale of the mall. The parties abandoned the proposed transaction, however, when they discovered that the mall contained asbestos. Plaintiffs then removed the asbestos-containing Audi-cote at a cost of $1.75 million, and subsequently sold the mall to a different purchaser.

Plaintiffs then sued defendant to recover the cost of removing the Audicote. Plaintiffs sued for failure to warn of the hazards of Audicote under theories of both strict liability and negligence. A jury found in favor of plaintiffs on the negligence claim but for defendant on the strict liability claim. Both parties appealed that judgment to this court.

On appeal, although we affirmed the district court’s evidentiary decisions, Perlmutter I, 4 F.3d at 870-71, we reversed the district court on several important issues related to plaintiffs’ negligence claim. First, we held that Colorado law imposed on defendant no post-sale duty to warn plaintiffs of Audieote’s dangers, because Audicote was not defective at the time that defendant sold it to plaintiffs. Id. at 869-70. Second, we concluded that the district court’s refusal to issue jury instructions concerning intervening causes and misuse of product was reversible error. Id. at 872-73. Consequently, we reversed the judgment and remanded the case for a new trial on plaintiffs’ negligence claim. Id. at 875.

On remand, the district court granted defendant’s motion for summary judgment, agreeing with defendant that plaintiffs could not “prove an essential element of the negligence claim — that Audicote created an unreasonable risk of harm as it was applied in the mall in 1967.” Plaintiffs then petitioned this court for a writ of mandamus ordering the district court to hold a trial on plaintiffs’ negligence claim. We denied plaintiffs’ petition, reasoning that plaintiffs could obtain adequate relief through an appeal. Plaintiffs now appeal the summary judgment, arguing (1) that the district court’s summary judgment order is inconsistent with our decision in Perlmutter I, and (2) that the district court incorrectly held that a finding that Audicote created an unreasonable risk of harm was an essential element of plaintiffs’ negligence claim. In addition, plaintiffs renew their claim for prejudgment interest and punitive damages.

[662]*662II.

As a federal court sitting in diversity, “our task ... is to ascertain and apply Colorado law to the end that the result obtained in federal court is the result that would have been reached if this litigation had been pursued in a Colorado court.” Lutz Farms v. Asgrow Seed Co., 948 F.2d 638, 641 (10th Cir.1991). We regard the pronouncements of the Supreme Court of Colorado as authoritative statements of Colorado law. Romero v. International Harvester Co., 979 F.2d 1444, 1449 n. 3 (10th Cir.1992). And, although we are not obligated to follow the pronouncements of lower state courts, “in the absence of any compelling reason to disregard [them],” we follow decisions of the Colorado Court of Appeals as well. Id. Our review of the district court’s determinations of state law is de novo. Salve Regina College v. Russell, 499 U.S. 225, 239, 111 S.Ct. 1217, 1225, 113 L.Ed.2d 190 (1991).

Although we apply Colorado law to the substantive legal questions in this case, we review the grant of summary judgment using federal standards. See Romero, 979 F.2d at 1449. “We review the grant of summary judgment de novo, using the same standard applied by the district court.” Universal Money Ctrs., Inc. v. AT & T, 22 F.3d 1527, 1529 (10th Cir.), cert. denied, — U.S. —, 115 S.Ct. 655, 130 L.Ed.2d 558 (1994). Summary judgment is properly granted by a district court when there is no genuine issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In applying this standard, we review the factual record in the light most favorable to the nonmoving party. Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).

III.

Plaintiffs contend that the district court failed to follow our mandate ordering a new trial because it decided the issue on summary judgment. The district court is bound to act in accordance with a mandate from this court. See Hicks v. Gates Rubber Co., 928 F.2d 966, 969 (10th Cir.1991). Nevertheless, “[a] mandate from [an appellate] court ordering a new trial does not preclude the district court from entering summary judgment if all of the appropriate requirements are met.” Sales v. State Farm Fire & Casualty Co., 902 F.2d 933, 935 (11th Cir.1990); see also United States v. United States Gypsum Co., 340 U.S. 76, 86, 71 S.Ct. 160, 168, 95 L.Ed. 89 (1950); Cameo Convalescent Ctr., Inc. v. Percy, 800 F.2d 108, 110 (7th Cir.1986). “To decide whether the district court violated [our] mandate, it is necessary to examine the mandate and then look at what the district court did.” Hicks, 928 F.2d at 969.

In Perlmutter I,

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Perlmutter v. United States Gypsum Co.
54 F.3d 659 (Tenth Circuit, 1995)

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54 F.3d 659, 1995 WL 271960, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perlmutter-v-united-states-gypsum-co-ca10-1995.