Kelly v. Sears Roebuck
U.S. Court of Appeals for the First Circuit
Kelly v. Sears Roebuck
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October 23, 1992 [NOT FOR PUBLICATION]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
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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
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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,
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459 U.S. 989 (1982) (litigant who waits until after the jury is
excused to raise claim that answers to special interrogatories
were inconsistent with the general verdict waives his right to
assert this argument); Skillin v. Kimball, 643 F.2d 19 (1st Cir.
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1981) (failure to inform trial judge that special verdict was
inconsistent before jury was discharged constitutes waiver of
right to review).
Plaintiff also filed a motion below alleging that he
was entitled to a new trial because the district court failed to
give three supplemental jury instructions pertaining to proximate
cause. After reviewing the record, we find that plaintiff's
contention lacks merit. See, e.g., Shane v. Shane, 891 F.2d 976,
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987 (1st Cir. 1989) (refusal to give instruction is not
reversible error "unless the error is determined to have been
prejudicial after review of the record as a whole") (citation
omitted).
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The district court instructed the jury on the issue of
proximate causation on each of the four separate claims. To
illustrate, the trial judge instructed inter alia that
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[t]he plaintiff must prove that the
Sears' breach of warranty was a proximate
cause. It follows from that, that if the
sole, that is the only proximate cause
was the negligence of some persons or
entities other than Sears, then Sears'
breach of warranty could not be the
proximate cause of the plaintiff's
injury.
So in determining the issue of proximate
cause, you may consider whether and to
what extent persons or entities other
than Sears, such as plaintiff's employer,
or prior persons who owned or used the
saw, were negligent.
The district court's instructions adequately apprised the jury of
the issue of proximate cause. The refusal to give plaintiff's
requested instructions was not prejudicial. See, e.g., Brown v.
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Trustees of Boston University, 891 F.2d 337, 354 (1st Cir. 1989)
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("As long as the judge's instruction properly apprises the jury
of the applicable law, failure to give the exact instruction
requested does not prejudice the objecting party") (quoting
McKinnon v. Skil Corp., 638 F.2d 270, 274 (1st Cir. 1981)).
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The judgment of the district court is affirmed.
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