
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1105                               MICHAEL JOHNSON, ET AL.,                               Plaintiffs - Appellants,                                          v.                         NATIONAL SEA PRODUCTS, LTD., ET AL.,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS              [Hon. W. Arthur Garrity, Jr., Senior U.S. District Judge]                                            __________________________                                 ____________________                                        Before                               Torruella, Selya and Cyr                                   Circuit Judges.                                   ______________                                _____________________               Joseph G. Abromovitz, with whom Marsha A. Morello, George F.               ____________________            _________________  _________          Leahy and Abromovitz & Leahy, P.C., were on brief for appellants.          _____     ________________________               Brian P.  Voke, with whom  Richard P. Campbell,  Kathleen M.               ______________             ___________________   ___________          Guilfoyle, Campbell  & Associates,  P.C., David T.  DeCelles, and          _________  _____________________________  __________________          Avery, Dooley, Post & Avery, were on brief for appellees.          ___________________________                                 ____________________                                  September 20, 1994                                 ____________________                    TORRUELLA, Circuit Judge.  Appellants Michael and Kelli                               _____________          Johnson ("plaintiffs")  filed an  action alleging  negligence and          breach of warranty against defendant National Sea Products, Ltd.,          in connection  with  injuries that  Michael  Johnson  ("Johnson")          suffered when a pallet of  frozen fish fell upon him.   At trial,          the jury found in favor of the defendant on the negligence claim.          The court directed  a verdict  for the  defendant on  plaintiffs'          breach of warranty  claim.   Plaintiffs ask this  court to  grant          them  a  new  trial due  to  errors  allegedly  committed by  the          district  court.  Plaintiffs also  ask this court  to reverse the          district  court's order  directing  a verdict  on  the breach  of          warranty claims.  We affirm the district court in all respects.                                          I.                                          I.                                      BACKGROUND                                      BACKGROUND                    On  May 19,  1989, Michael  Johnson was injured  when a          pallet  loaded with boxes of frozen cod fillets ("the fish") fell          on him while he was working as a stock-loader at Condyne, Inc., a          public warehouse  in  Avon, Massachusetts,  which  stored  frozen          foods.                    National Sea  is a Canadian corporation  engaged in the          business of harvesting, processing  and distributing fish.  Among          their many products  are Hi-liner cod  fillets which are  frozen,          packed  in sealed plastic  containers, placed in  boxes, and then          packed into "master cartons" for shipment.  Before being shipped,          National Sea piles the master cartons on several 40" x 48" wooden          pallets  and applies a plastic  stretch wrap to  hold the cartons                                         -2-          together and to keep them from falling off the pallet.                    National Sea consists of two corporations: National Sea          Products, Ltd.,  a Canadian  company, and National  Sea Products,          Inc., a United States  company.  The Canadian corporation  is the          parent  company, and the  United States  corporation is  a wholly          owned subsidiary.   These corporations are, in turn, divided into          several operating units, among which is Canada Products-Corporate          Sales   ("Canada  Products"),   a   division   of  the   Canadian          corporation, with responsibility for servicing major accounts.                      One of  Canada Products'  major accounts was  Long John          Silver, also known as Jerrico, Inc., which was expected to be the          purchaser of  the  fish involved  in  this case.    The fish  was          processed  and packaged  according to specifications  provided by          Long John Silver and the  cartons were placed on the pallets  for          shipment  according  to  Long John  Silver's  specifications  for          pallet configuration,  which required that each  layer have eight          cartons and that there be five layers on the  pallet.  Sometimes,          for storage  at its  Lunenburg, Nova  Scotia plant,  National Sea          uses a different pallet  configuration for these cartons, placing          them ten cartons to a layer, three layers high.                    Although the fish involved  in this case were prepared,          packaged   and  placed   on   pallets  to   Long  John   Silver's          specifications, in  anticipation of a possible  order, there was,          at  the time of Johnson's accident, no  order by Long John Silver          for these fish.                    The  fish in  question were  shipped from  the Canadian                                         -3-          corporation  to  Canada  Products   care-of  the  Condyne  public          warehouse.   Generally, when the  shipment arrives at  Condyne, a          bill   for  storage  is  generated  and   sent  to  the  American          corporation,  which enters  the shipment  in its  records  and is          responsible  ultimately  for  paying   the  storage  bill.    The          ownership  of the goods does not  pass, however, until the end of          the month when there  is an intercompany financial reconciliation          of  all  transferred  products.   Ultimately,  Long  John  Silver          purchased  the fish  in question.   The  fish, however,  were not          purchased or  shipped to  Long  John Silver  until the  following          month, long after the accident.                     When  the  shipment of  fish  arrived  at Condyne,  the          Condyne  receiver  ordered  the  truck  driver,  an  employee  of          Carleton  County Brokerage, Ltd.,1  to remove the  top layer from          each  of the  pallets,  reducing them  to  four layers  of  eight          cartons each,  and to make up  new pallet loads with  the removed          boxes.   Apparently this was done  so that the pallet loads would          fit into Condyne's rack  storage system.  After the  truck driver          had  reconfigured the boxes on  the pallets, the  shipment was 22          pallet loads instead of the original 17.                    Rather  than  placing  the  fish in  the  rack  storage          facilities,  however,  Johnson, using a forklift, bulk stacked or                                        ____________________          1   Plaintiffs' original suit included Harold B. Legge Transport,          Ltd. as  trucking agent for  National Sea.   Subsequent discovery          revealed that Legge had contracted with Carleton County Brokerage          Ltd. to ship the subject  load.  Hence, Carleton was added as   a          direct defendant.   During  the course of  trial, plaintiffs  and          Carleton settled.                                         -4-          free  stacked  the  fish by  piling  one pallet  load  on  top of          another, four pallet loads high with a fifth pallet load spanning          the gap  between each stack of  four.  Each pallet  load was four          feet  high, and weighed over  one ton.   Johnson was piling these          heavy loads 16 to 20 feet high.                    Johnson  testified  that the  accident  occurred as  he          stacked the  pallet loads four and five loads high.  He testified          that as  he attempted to move the two highest pallet loads in the          stack, the top  pallet fell.   Johnson jumped from the  truck and          ran,  but was hit by the pallet load.  There is no evidence as to          whether the pallet which fell had been configured by National Sea          or by Carleton's driver.                    In  his suit,  Johnson  alleged that  National Sea,  as          seller of the fish,  packaged the fish in an  unstable palletized          configuration rather than National  Sea's own recommended 3 x  10          configuration.   The method of stacking by National Sea created a          condition referred to  by the witnesses as "pyramiding"  when the          pallets  of fish were bulk stacked, i.e., one pallet stacked atop                                              ____          another, four or five pallets high.                    The trial  in the district court  commenced on November          29,  1993.   Much  of the  trial  concerned whether  National Sea          should have foreseen that the pallet loads  of fish would be bulk          stacked four  or five loads high rather than stored in racks.  It          was undisputed  that the pallet  configuration of the  cartons of          fish  was entirely safe for  rack storage and  that Johnson would          not  have been  injured if  the pallet loads  had been  placed in                                         -5-          racks at Condyne.                      Following the close of the evidence, the district court          judge granted  National Sea's motion  for a  directed verdict  on          plaintiffs'  breach of warranty counts  because it found that the          goods had  not  reached an  ultimate consumer  and therefore,  no          warranties attached.  On  December 16, Rule 49(b) interrogatories          were submitted to the jury.                      The jury  answered the  following interrogatory  in the          negative, thereby  precluding further response to  the subsequent          interrogatories and disposing  of the case  in favor of  National          Sea:                      Was  it  reasonably  foreseeable  by  the                      Defendant,  National  Sea Products,  Ltd.                      that the pallet  loads in question  would                      be  stacked  at  Condyne  Freezers  by  a                      forklift truck one on top of another to a                      level of four/five pallet loads high?                    On appeal, the plaintiffs contend that: 1) the district          court  erred in  granting  National Sea's  motion for  a directed          verdict  as  to the  plaintiffs'  breach of  warranty  claims; 2)          statements made  by defense counsel during  closing argument were          improper and resulted in reversible error; and 3) the court erred          in  instructing  the  jury on  the  issue  of foreseeability  and          defective design.                                         II.                                         II.                                      DISCUSSION                                      DISCUSSION                            A.  Breach of Warranty Claims                            A.  Breach of Warranty Claims                                _________________________                    The plaintiffs claim that  Michael Johnson was entitled          to  benefit  from  warranties  of merchantability  and  that  the                                         -6-          district  court  erred in  dismissing  their  breach of  warranty          claims.  Under Massachusetts  law, "a warranty of merchantability          is implied in two situations: (1) when title  to goods passes for          a  price, and (2) when a contract  is made for the future passing          of  title  to goods  for  a  price."    Mason v.  General  Motors                                                  _____     _______________          Corporation, 397 Mass. 183, 187-88, 490 N.E.2d 437, 440 (1986).          ___________                    Plaintiffs have not presented any evidence showing that          there was a sale of goods, or any contract for sale, particularly          one  involving  themselves.   Therefore,  we  need not  determine          whether Johnson was  a member of the class of persons entitled to          benefit from any warranties  of merchantability that might attach          to a sale of the fish.                       There was  no  evidence  of a  sale  of  goods  between          National  Sea  and  Long  John  Silver.    Rather,  the  evidence          indicates  that at the time of the accident, Long John Silver had          not  yet placed an order for these  fish, and that the fish might          have been sold to anyone.  There was no contract for sale between          National  Sea and Long John Silver: no price had been determined,          no delivery date had been set, and no quantity or other terms had          been specified.                    Nor  was there  a sale  or contract  for sale  from the          National  Sea parent to the  United States subsidiary.   The fish          were owned, at the  time of the  accident, by Canada Products,  a          division of the Canadian  corporation.  The fish could  have been          sold at the end of the month to the United  States corporation at          a price  to  be determined  at  that time,  but  that was  not  a                                         -7-          certainty.   Instead,  the fish  might have  been disposed  of or          returned  to  Canada   prior  to  any  transfer.     Under  these          circumstances,  absent any sale of  the fish or  contract for the          sale  of  the fish,  no  warranty of  merchantability  could have          attached.                      A directed verdict is appropriate where the evidence is          such   that  a  reasonable  person  could  be  led  to  only  one          conclusion, namely, that the moving party is entitled to judgment          as   a  matter  of  law.    Luson  Int'l  Distributors,  Inc.  v.                                      _________________________________          Fabricating & Production Machinery, Inc., 966 F.2d 9, 10-11  (1st          ________________________________________          Cir.  1992).    Therefore, the  district  court  did  not err  in          directing a verdict on this issue.                        B.  Defense Counsel's Closing Argument                        B.  Defense Counsel's Closing Argument                            __________________________________                    As grounds for a new trial, the  plaintiffs charge that          National Sea's counsel, Mr. Richard Campbell, engaged in improper          arguments  in  two respects.   First,  the plaintiffs  argue that          Mr. Campbell referred to supposedly excluded  evidence, that this          reference  prejudicially  influenced  the  jury,  and   as  such,          constituted reversible  error.  In his  closing argument, counsel          argued that National  Sea did  not learn that  their product  was          being bulk stacked  on top of another,  four or five  high, until          representatives  of  National  Sea,   Morgan  Palmer  and  Walter          Waldrop, went to Avon  after the accident  in August, 1989.   Mr.          Campbell told           the jury:                      So National Sea  Products never was  told                      that  this stuff  was being  bulk stacked                      one  pallet on  top  of another.   Never.                      National Sea Products  didn't learn  that                                         -8-                      these pallets were being bulk stacked one                      on  top of  another,  four or  five high,                      until  Morgan  Palmer and  Walter Waldrop                      went   down  to  Avon  in  August,  1989.                      August, 1989.                    Plaintiffs'  counsel  immediately   objected  to   this          reference,  contending that  such  testamonial evidence  had been          excluded by  the court.  Following plaintiffs' objections to this          statement, Mr. Campbell  made efforts  to remind  the judge  that          evidence of these facts was not entirely excluded.  Despite these          efforts, the court gave the following "curative" instruction:                      [T]he Court's recollection is  clear that                      the evidence was excluded.  But I'll tell                      the jury:    You might  have a  different                      recollection.   You  may have  heard that                      statement in the  course of the testimony                      of the  witness, in  which event  you may                      consider it.  If, on the other hand--it's                      my   recollection   and   that   of   the                      plaintiff's   counsel   that  the   Court                      excluded  it for the basic reason because                      it happened subsequent  to the  accident.                      That was the basis of the Court's ruling.                      And I do believe it was excluded.                    Plaintiffs  contend  that  the  trial  judge's curative          statements were not sufficient to erase the prejudicial effect of          defense counsel's  reference to the excluded testimony.   We need          not determine whether the curative instructions were satisfactory          because our review of  the record reveals that this  evidence was          not excluded by  the court and  therefore, the defense  counsel's          argument was not inappropriate.                    During   Morgan   Palmer's  testimony,   the  following          exchange took place:                      Q.  Sir,  in May, prior to May  19, 1989,                      what was your  understanding with  regard                                         -9-                      to  how  National Sea  Products Limited's                      product  was  being  stored at  the  Avon                      facility of Condyne?                      A.  It was being put into racks.                      Q.  Did  there come a time, sir, when you                          _____________________________________                      learned  that the  product was  not being                      _________________________________________                      stored in racks?                      _______________                      A.  In August --                      MR. LEAHY:  Objection.                                  _________                      THE COURT:  Excuse  me.  The objection is                                               ________________                      overruled  in  the  sense  that  you  can                      _________                      answer the  question, "Yes, there  came a                      time," and then there will be a question.                      Q.  Let me try again.                      Did there  come  a time,  sir,  when  you                      learned   that   National  Sea   Products                      Limited's products were not  being stored                      in racks at the Avon facility of Condyne?                      A.  Yes.                          ___                      Q.  When was that?                      A.  That was in August of 1989.                          __________________________                      MR. LEAHY:  Objection.                                  _________                      THE COURT:  Excuse me?                      MR. LEAHY:  Objection.                      I noted an objection.   He said August of                      1989,  and  that's  post  accident,  your                      Honor.                      THE COURT:   He answered the question and                      the answer may stand.                      ____________________                      Q.  Can you tell  the jury, sir, what the                      circumstances were by  which you  learned                      that the product was being stored outside                      of a rack at  the Avon facility in August                      of 1989?                      MR. LEAHY:  Objection.                      THE COURT:  Objection sustained.                                         -10-                      Q.   Did  you personally  visit the  Avon                      plant in August of 1989?                      A.  Yes.          (emphasis added).                    Thus, while the court  excluded certain observations as          post-accident,  it clearly  admitted  testimony  indicating  that          National  Sea first learned its products were not being stored in          Condyne's racks in August  of 1989 and that Morgan Palmer went to          Condyne's  plant in August  of 1989.  Its  rulings in this regard          have  not been challenged on appeal.  Because this case concerned          only two types of storage: storage  in racks or bulk stacking, it          was  reasonable to infer from  the evidence admitted  that if the          products were not  being stored  in racks, they  were being  bulk          stacked.                     The  trial judge  had  broad discretion  to deal  with          supposed improprieties in closing  arguments, and absent an abuse          of  discretion,  we will  defer  to his  or her  actions  in this          regard.   Gonz lez-Mar n  v. Equitable  Life Assurance  Soc., 845                    ______________     _______________________________          F.2d  1140,  1147-48  (1st Cir.  1988).    Far  from abusing  his          discretion, the  trial judge  in this  case  gave an  unnecessary          curative instruction,  which if anything, could  have caused harm          to the defendants, not the plaintiffs.                    The  plaintiffs  point  to another  allegedly  improper          aspect of Campbell's closing argument, which they raised for  the          first  time in  their post-trial  motion for  a new  trial.   The          plaintiffs claim  that  Mr.  Campbell  displayed to  the  jury  a          Condyne brochure which was  not in evidence to show  that Condyne                                         -11-          promoted its rack storage facilities.  A review of the transcript          of Mr. Campbell's closing argument,  however, does not reveal any          objection  on  behalf of  plaintiffs  to  this alleged  brochure-          waiving.   Since a timely  objection was not  made, the issue was          not preserved  for appeal.   See Doty  v. Sewall, 908  F.2d 1053,                                       ___ ____     ______          1056  (1st Cir. 1990).  Our  review is therefore limited to plain          error.  Id.                   ___                    Our  review of the record does not reveal any statement          indicating that  a Condyne brochure of  promotional materials was          displayed  before the  jury.    Mr.  Campbell also  submitted  an          affidavit  in response to the plaintiffs' motion for a new trial,          that denies that any  brochure was shown  to the jury during  his          closing argument.  Because there is absolutely no evidence in the          record that  the alleged brochure waiving  actually occurred, nor          any  objection   on  behalf  of  the  plaintiffs,  we  find  that          plaintiffs' claim has no merit.                         C.  Jury Instructions on Foreseeability                       C.  Jury Instructions on Foreseeability                           ___________________________________                    The  plaintiffs  complain  that  the  court   erred  by          refusing to  charge the jury with their  requested instruction in          Request Number 55.  Request Number 55 stated:                      a manufacturer  has a duty  to anticipate                      the  environment  in  which   it's  [sic]                      product   will  be  used  and  to  design                      against  the reasonably  foreseeable risk                      attending  the  products  used   in  that                      setting.                    The  plaintiffs contend  that the  product  in question          included not only the  frozen fillets of fish packed  within each          box but also the method by  which National Sea stacked the  boxes                                         -12-          of  frozen fish  one atop another  and then  stretch-wrapped each          pallet for shipment.  Plaintiffs argue that it was foreseeable to          National Sea that the  product would be bulk stacked  at Condyne.          They  maintain  that National  Sea,  therefore,  had  a  duty  to          anticipate  that the product would be bulk stacked at Condyne and          to design  their product in  a manner that took  into account the          alleged   reasonably  foreseeable   risks   of   bulk   stacking.          Plaintiffs contend that whether National Sea fulfilled its duties          in this  respect was an issue that  should have been submitted to          the jury and that no other  part of the court's charge  addressed          this particular claim.                    "An error in jury instructions will warrant reversal of          a  judgment  only  if  the  error  is  determined  to  have  been          prejudicial,  based on a review of the record as a whole."  Davet                                                                      _____          v. Maccarone,  973 F.2d 22,  26 (1st Cir  1992).  We  examine the             _________          jury instructions to determine "whether they adequately explained          the law  or whether they tended to confuse or mislead the jury on          the  controlling issues."    Id. at  26  (internal quotation  and                                       ___          citation omitted).                    We do not  find reversible error in  the court's charge          to the  jury.  In  the present case,  the alleged defect  was the          manner in which cartons of fish were stacked on the  pallet.  The          plaintiff bears the burden  to show that  his use of the  product          was a foreseeable one,  regardless of whether or  not it was  the          intended use of the product, and "[w]here there is no foreseeable          use, there is no liability."  Allen v. Chance Mfg. Co., 398 Mass.                                        _____    _______________                                         -13-          32, 34, 494 N.E.2d 1324, 1326 (1986).                    The court charged  the jury on the  subject of National          Sea's   obligation  to   consider   the  reasonably   foreseeable          circumstances  and foreseeable dangers  involved in the packaging          and palletizing of its product, and to  guard against foreseeable          harm as follows:                        "Ordinary care" is not an absolute term                      but a  relative one;  that is to  say, in                      deciding   whether   ordinary  care   was                      exercised in a given case, the conduct in                      question must  be viewed in the  light of                      all  the   surrounding  circumstances  as                      shown by the evidence  in this case.  The                      amount of care  exercised by a reasonably                      prudent person will vary in proportion to                      the danger  known to be involved  in what                      is being  done, and it  follows that  the                      amount of caution required  in the use of                      ordinary care will  vary with the  nature                      of   what's  being   done  and   all  the                      surrounding  circumstances  shown by  the                      evidence in the case.   To put it another                      way: As the danger that should reasonably                      be  foreseen increases, so  the amount of                      care required by the law increase[s].                        Bringing those principles closer to the                      facts of this case, the defendant was not                                          _____________________                      required  to  package  and palletize  its                      _________________________________________                      cartons in a way  that made them accident                      _________________________________________                      proof  or  even to  package  or palletize                      _________________________________________                      them  in the  safest  possible way,  but,                      _________________________________________                      rather, to package and palletize  them in                      _________________________________________                      a  manner  that is  reasonable  under the                      _________________________________________                      circumstances.  Its duty was, rather, one                      _________________________________________                      of  reasonable  care  to protect  against                      _________________________________________                      foreseeable harm.                      ________________          (emphasis added).                    This   instruction   was   accurate  and   no   further          instructions  were required  by  law.   Because the  instructions          "show  no tendency to confuse or mislead the jury with respect to                                         -14-          the applicable principles of law," they are satisfactory and must          be upheld.  Harrington v. United States, 504 F.2d 1306, 1317 (1st                      __________    _____________          Cir. 1974).                    Affirmed.                    ________                                         -15-
