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 .

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.,

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,

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.,

(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.”

(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 ,

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,

(1st Cir. 2011).

In Brescia v . Great Road Realty Trust,

(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.”

. 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,

(2009); DeBenedetto v . CLD Consulting Engs., Inc.,

(2006); Kelleher,

(Restatement (Third) of Torts: Products Liability § 2 1 ) ; Bielagus v . EMRE of N.H. Corp.,

(2003) (Restatement (Third) of Torts: Products Liability § 1 2 ) ; Trull v . Volkswagen of Am., Inc.,

(2000); but see Vautour v . Body Masters Sports Inds., Inc.,

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.,

, 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.,

6 1 , 664 (7th Cir. 1998); Torres v . Goodyear Tire & Rubber Co., Inc.,

5 0 , 753 (9th Cir. 1990); Wallace v . Busch Entm’t Corp.,

(S.D. Cal. Aug. 1 6 , 2011); Am. Coach Lines of Orlando, Inc. v . N . Am. Bus Indus., Inc.,

, at *28 (M.D. Fla. Feb. 1 4 , 2011); Mullaney

7 v . Hilton Hotels Corp.,

(D. Hawaii

2009); Adeyinka v . Yankee Fiber Control, Inc.,

(S.D.N.Y. 2008); Brobbery v . Enter. Leasing C o . of

Chicago,

(Ill. App. 2010); Peterson v .

Safway Steel Scaffolds Co.,

(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.,

(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,

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

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