USCA1 Opinion

        [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 99-1337



                        STEPHEN ISABELLE,



                      Plaintiff, Appellant,



                                v.



                   NISSAN NORTH AMERICA, INC.,



                       Defendant, Appellee.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF NEW HAMPSHIRE

                                 

       [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]







                              Before



                     Boudin, Circuit Judge,

                                

                 Bownes, Senior Circuit Judge,

                                

                   and Stahl, Circuit Judge.

                                

                                

                                

     Brian C. Shaughnessy, with whom Normand & Shaughnessy, P.A.

was on brief for appellant.



     Richard P. Campbell, with whom Lisa DeBrosse Johnson and

Campbell Campbell & Edwards PC were on brief for appellee.  











October 15, 1999







                                

  PER CURIAM.  This diversity jurisdiction case is on

appeal from a grant of summary judgment for the defendants in a

products liability case based on an alleged design defect.  The

district court ruled that under New Hampshire law the plaintiff in

a strict liability defective design case must show that the

defective product reached the plaintiff without substantial change

in its condition.  That ruling is the sole issue before us.

                                I.

  We recite the undisputed facts as stated by the district

court:

         On August 25, 1993, the plaintiff was

  working as a used car salesman for his

  employer, Auto City of Manchester, when he

  drove a 1985 King Cab Nissan pickup truck

  across a car lot for a customer.  He proceeded

  at a low speed, approximately ten miles an

  hour.  As he stepped on the brake, the seat

  slid forward freely, pushing the plaintiff

  forward as well.  As a result, his foot

  pressed hard on the brake, stopping the truck

  abruptly.  This caused him to be thrown

  forward and backward.  He hit his head on a

  sun visor and suffered lacerations, bruising,

  and severe injuries to his back, head, neck,

  and arms, as well as other injuries.  After

  the incident the plaintiff examined the seat. 

  He found that the seat adjuster lever, which

  locked and released the seat on its track, was

  caught on a tool pack stored beneath the seat. 

  The plaintiff asserts that the tool pack

  prevented the seat from locking into place and

  allowed the seat to slide forward and backward

  freely.



         The plaintiff does not know the present

  location or the present owner of the vehicle,

  and has not seen the vehicle since the date of

  the incident.  The plaintiff's witnesses,

  including his expert witness, have not

  examined the vehicle or any of its component

  parts.  At the time of the incident the

  vehicle was eight years old with 144,973 miles

  on its odometer, its exterior was heavily

  rusted, its interior was filthy, and the seats

  were in poor condition.  The plaintiff does

  not know whether, as of the time of the

  incident, the strap that held the tool pack in

  place, the tool pack itself, the seat adjuster

  lever, or the seat track, were original parts

  or in the same or similar condition as when

  the truck was manufactured and originally

  sold, or, with the exception of the tool pack,

  even if they were manufactured or sold by the

  vehicle manufacturer or its distributor. 

  Moreover, in February 1990, the truck had had

  an accident on Interstate 93, suffered

  extensive damage, and was declared "totaled"

  for insurance purposes.  The plaintiff does

  not know whether the seat track, the seat

  adjuster lever, or any of the component parts

  for moving the seat were damaged in the

  accident or otherwise.



  We describe the alleged design defect as the plaintiff

did in his brief at 6-7.

    The 1985 Nissan King Cab pickup truck was

  designed to hold a tool pack which contained

  the vehicle's tire iron and other accessories

  under the driver's seat of the vehicle.  The

  tool pack was designed to be held in place by

  a rubber fastening strap which would hold the

  tool pack to the mounting frame of the front

  seat.  The mounting frame and tool pack are

  stationary as are the seat rails which allow

  for the adjustment of the seat both forward

  and backward.  The front seat, along with the

  adjustment lever which is attached to the

  front seat, move forward and backward on the

  seat rails and allow for adjustment to the

  desired position by the driver.  When the seat

  is adjusted to its rear-most position, the

  seat adjustment lever is located directly

  above the storage area for the tool pack.  



  Plaintiff offered to show, based on his examination of

the seating mechanism of the truck, that on the date of the

accident a tool pack was located directly under the driver's seat

as intended by the manufacturer of the truck.  Plaintiff contends

that this was a design defect because it allowed the seat adjuster

lever on the driver's seat to become stuck on the tool pack and

thus prevented the seat from locking into place.  The result was

that when the plaintiff applied the brakes as the truck was moving

forward, the seat suddenly slid forward injuring plaintiff's head

and cervical spine.

                               II.

  Both parties and the district court relied primarily on

the New Hampshire case of Thibault v. Sears, Roebuck & Co., 118

N.H. 802, 395 A.2d 843 (1978).  In Thibault, the New Hampshire

Supreme Court carefully explained the design defect theory of

strict products liability.  It held specifically:

    Accordingly, we hold that the trial court

  should not read RSA 507:7-a (Supp. 1977) in a

  jury charge on the strict liability count,

  . . . .  The trial court should read or

  paraphrase Restatement (Second) of Torts

   402A(1) and (2) to the jury; the jury should

  then usually be asked by special verdict if

  plaintiff's proof has met the requirements of

  the Restatement.  If plaintiff's proof is

  sufficient, the jury must [then consider

  defenses].  (Emphasis added.) 



Id. 118 N.H. at 813, 395 A.2d at 850.



  The Restatement (Second) of Torts  402A provides in pertinent part:

    Special Liability of Seller of Product for

  Physical Harm to User or Consumer

    (1)  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, or to his

  property, if

    (a)  the seller is engaged in the business of

  selling such a product, and

    (b)  it is expected to and does reach the user

  or consumer without substantial change in the

  condition in which it is sold.



(Emphasis added.)  We agree with the district court that subsection

(1)(b) is a requirement of New Hampshire law.  The plaintiff spins

a complex and lengthy argument that Thibault did not adopt

subsection (1)(b) and, if it did, subsequent cases make the holding

dubious.  We disagree.  First of all, Thibault is clearly on point

and we have been unable to find any New Hampshire case even

arguably to the contrary.  Secondly, our own circuit precedent

squarely holds that Section 402A in its entirety has been adopted

by the Supreme Court of New Hampshire.  Raymond v. The Raymond

Corp., 938 F.2d 1518, 1520-21 (1st Cir. 1991); Fortier v. Olin

Corp., 840 F.2d 98, 99 (1st Cir. 1988).

  Finally, we consider plaintiff's alternative argument. 

Plaintiff says that even if subsection (1)(b) applies, a reasonable

jury could find it to be satisfied in this case.  He argues (based

on his expert's proferred judgment) that the dangerous condition

created by the manufacturer was to locate the kit under the seat;

and he says that his own testimony, albeit based on only a brief

look under the seat before the vehicle disappeared for good, would

permit a jury to find that this condition pertained "without

substantial change" at the time of the accident.    

  Even if "change in condition" were read so narrowly, we

do not see how a jury could find causation without more information

as to the condition of the truck.  There is nothing to show that

the pack, strap, seat, track or adjuster lever were original

equipment or properly operating or otherwise in good repair.  Thus,

given the age and prior damage to the truck, it would be sheer

speculation for a jury to conclude that it was the alleged defect

rather than some intervening change or damage to other parts that

led to the accident in this case.  

  Affirmed.  Costs awarded to appellee.