
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1073                         CURTIS CLEVELAND and JUDY CLEVELAND,                               Plaintiffs, Appellants,                                          v.                                    HASBRO, INC.,                          d/b/a MILTON BRADLEY TOY COMPANY,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Morris E. Lasker, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                           Selya and Boudin, Circuit Judges,                                             ______________                           and McAuliffe,* District Judge.                                           ______________                                 ____________________            Bruce  A.  Bierhans with  whom  Andrew  D.  Nebenzahl, Kenneth  B.            ___________________             _____________________  ___________        Walton and Bierhans & Nebenzahl were on briefs for appellants.        ______     ____________________            John  P.  Graceffa with  whom Kathryn  M.  Anbinder and  Morrison,            __________________            _____________________      _________        Mahoney & Miller were on brief for appellee.        ________________                                 ____________________                                   November 6, 1996                                 ____________________                                    ____________________        *Of the District of New Hampshire, sitting by designation.                 BOUDIN, Circuit  Judge.  In this  diversity case, Curtis                         ______________            and  Judy Cleveland appeal from the district court's grant of            summary judgment  in favor  of Hasbro,  Inc.   The Clevelands            sued Hasbro for negligence and loss of consortium based  upon            an injury  that Curtis Cleveland suffered  while loading toys            onto  his  truck  at   Hasbro's  plant  in  East  Longmeadow,            Massachusetts.  The district court ruled, as a matter of law,            that Hasbro had  never assumed  a duty of  care owing to  the            Clevelands.     Our  review  is  plenary,  and  we  take  the            allegations  of  facts in  the  light most  favorable  to the            Clevelands.  See  Guzman-Rivera v. Rivera-Cruz, 29 F.3d  3, 4                         ___  _____________    ___________            (1st Cir. 1994).                 In September 1991, Curtis was a truck driver employed by            V.K. Putnam  Trucking, Inc. ("Putnam") of  Belgrade, Montana.            All  of the loads that Putnam contracted to haul were "driver            assist" loads, meaning  that the truck driver rather than the            shipper was  responsible for  loading cargo.   Putnam drivers            were  provided  with  a stipend  for  the  purpose  of hiring            "lumpers"  to assist  in this  process.   At his  option, the            driver could load himself and pocket the stipend.                 In early September, Curtis was offered the Hasbro job by            the  Putnam dispatcher  and  told  that  it would  be  driver            assist.   On September 6, Curtis and Judy arrived at Hasbro's            East  Longmeadow  plant to  pick up  a  shipment of  toys for            delivery  to a purchaser in Oregon.  Curtis claims that prior                                         -2-                                         -2-            to  arriving at Hasbro, he  spoke by telephone  with a Hasbro            employee  who  assured him  that  the  company would  provide            "lumpers"  or other  personnel  to load  the  cargo into  his            truck.   Curtis says that without this assurance he would not            have accepted the job.                 When the  Clevelands arrived at  Hasbro to  pick up  the            load, they were  told that no Hasbro employees were available            to assist in loading  the truck.  Curtis then decided to load            the truck himself with help from his wife.  Hasbro provided a            manual pallet jack to  the Clevelands for use in  loading the            cargo  pallets onto the truck, but declined to make available            a more expensive electric jack that was also on the premises.                 After several  hours of  loading, Curtis  had difficulty            moving an  especially heavy pallet  up an inclined  ramp into            his truck.  Starting with the pallet-laden jack at a distance            from the truck, Curtis gave the jack a long running push from            inside  the warehouse toward the  interior of his  truck.  He            got the load into the truck;  but he then lost control of the            jack, and  as it slid back  out, he jumped aboard  it and was            ultimately  thrown  between  two  other  pallets,  sustaining            injuries.   The Clevelands  then completed loading  the truck            and drove the truck back to Oregon.                 The  Clevelands brought  suit in  the district  court in            August  1994,  alleging that  Hasbro  had  been negligent  in            failing  to provide personnel to  load the truck  and that it                                         -3-                                         -3-            was  also  negligent in  other respects,  such as  failing to            permit the Clevelands to use the electric jack and failing to            provide medical assistance to Cleveland following his injury.            After  discovery,  in  June  1995 Hasbro  moved  for  summary            judgment.   The district  court granted Hasbro's  motion (and            denied the  Clevelands' cross-motion)  on November  29, 1995.            The Clevelands now appeal.                 On  appeal,  the Clevelands  advance  three  theories of            liability: first,  that  Hasbro, by  its  employee's  alleged            statement, assumed  a duty to provide  assistance in loading;            second,  that Hasbro had breached its general duty of care as            a landowner; and third, that the employee's alleged statement            constituted  negligent misrepresentation  under Massachusetts            law.   Hasbro  says that  this third  theory has  been waived            because not pressed in  the district court, but it  turns out            to make no difference.                 The Clevelands'  first negligence claim  rests upon  the            premise   that  the  statement  allegedly  made  by  Hasbro's            employee  gave rise to a duty of  care on Hasbro's part; they            then  argue  that  the  failure  of  Hasbro  to  provide  the            assistance was a breach of this duty and a proximate cause of            Curtis'  injuries.    The   district  court  found  that  the            statement  by  Hasbro's  agent,  assuming it  was  made,  was            insufficient  to   give  rise  to   a  duty  of   care  under            Massachusetts law.                                         -4-                                         -4-                 It is by  no means  clear that  Massachusetts law  would            impose on Hasbro a general duty of care based on the isolated            statement of the Hasbro employee.   Most of the Massachusetts            cases,  some recognizing  and others rejecting  a voluntarily            assumed duty of care, concern activities that the "volunteer"            undertook  and  then  performed  in  an  allegedly  negligent            manner.1 Here, when  Curtis arrived at the plant, Hasbro made            quite  clear that it was  not going to  provide assistance at            all,  although it did  allow Curtis  to make  use of  an idle            jack.                 Nor  are  the  Clevelands'  other   theories  especially            promising.    A landowner  does have  a  duty of  care toward            invitees  (e.g.,  to  furnish  a safe  premise),  Mounsey  v.                       ____                                   _______            Ellard, 363 Mass. 693, 707  (1973), but the Clevelands' claim            ______            to  assistance in loading a truck,  customarily loaded by the            driver,  probably stretches this  duty beyond  its accustomed            bounds.  As for negligent misrepresentation, see, e.g., Danca                                                         ___  ____  _____            v.  Taunton Savings  Bank, 385  Mass. 1,  8 (1982),  there is                _____________________            little  proof  that the  employee  was negligent  as  well as            mistaken.                 But we  think that the  duty of care  issue need not  be            resolved in order to  affirm the district court.   Rather, we                                            ____________________                 1See, e.g., Somerset Savings  Bank v. Chicago Title Ins.                  _________  ______________________    __________________            Co., 420 Mass. 422 (1995) (alleged failure of title insurance            ___            company to exercise due care in search of plaintiff's title);            Mullins v. Pine  Manor College, 389 Mass. 47  (1983) (failure            _______    ___________________            of college to provide adequate campus security).                                         -5-                                         -5-            will assume that on occasion a mere representation of intent-            -although  neither negligent nor  couched as a promise--might            lead  a victim to alter his position in reliance or otherwise            give  rise to duties that  would not otherwise  exist.  There            exist  a brace  of  theories that  respond  to such  problems            including,  in  addition   to  negligent   misrepresentation,            invoked by Cleveland, various forms of estoppel.                   Nevertheless, we think that  this case must be affirmed,            because, in  light of Curtis' own  carelessness, a reasonable            jury  could not  under  Massachusetts law  properly return  a            verdict for the Clevelands in this  case.  We are entitled to            affirm  on any  dispositive ground,  Levy v.  Federal Deposit                                                 ____     _______________            Ins. Co., 7 F.3d 1054,  1056 (1st Cir. 1993), since  it makes            ________            no  sense to  send a  case back  to district  court when  the            result is foreordained.   Two different doctrines converge on            our result.                 Under Massachusetts  law, as elsewhere,  a defendant  is            liable only if the wrongdoing was the "proximate"--as well as            the "but  for" cause  of the  harm in  question.  Peckham  v.                                                              _______            Continental  Casualty Ins. Co.,  895 F.2d 830,  836 (1st Cir.            ______________________________            1990) (applying  Massachusetts law).   The rubric is  used to            draw a legal  line somewhere, along  the chain of  causation,            between the more immediate  and foreseeable consequences of a            wrong  and those that are more remote, unlikely or partly the            product of  intervening forces.  Young  v. Atlantic Richfield                                             _____     __________________                                         -6-                                         -6-            Co.,  400  Mass. 837,  842  (1987);  Restatement (Second)  of            ___                                  ________________________            Torts,    440, 442 (1965).            _____                 Assuming that  a Hasbro  employee made the  statement to            Curtis,  it might  be  reasonable to  anticipate that  Curtis            could find himself  at the  plant unable to  load the  truck,            resulting in delay and  additional expense (e.g., charges for                                                        ____            delayed  delivery,  inability  to   carry  out  other  jobs).            Perhaps it might be reasonable to assume that, in the absence            of  expected help,  Curtis would  incur added expense  to get            labor or would even attempt to load the truck himself.                 But to describe the  injury itself as proximately caused            by the  Hasbro statement or  resulting lack of  help requires            more.   It  requires that it  be reasonably  foreseeable that            Curtis  would  then attempt  to load  the  truck in  a highly            negligent  manner.     By his  own  admission, Curtis  ran an                                                                   ___            extremely  heavy load  resting on  a jacked-up  pallet  up an            inclined ramp into  his truck.   He  knew that  the load  was            unusually heavy and difficult to maneuver slowly; that is why            he attempted the  running start.   It is  hard to explain  so            risky a course in the face of a known hazard.                 But even if we  assume dubitante that Curtis' negligence                                        _________            was  foreseeable  enough  to  satisfy   the  requirements  of            proximate cause,  compare Restatement, supra,    443, cmt. c,                              _______ ___________  _____            the Clevelands are still barred from recovery.  Massachusetts            has  eliminated  contributory negligence  as  a defense  but,                                         -7-                                         -7-            under  its  comparative  negligence  doctrine,  it  does  bar            recovery where  the victim's  negligence exceeds that  of the            wrongdoer.  Mass. Gen.  L. ch. 231,   85.  That is plainly so            in this case.                 It is  doubtful that  the Clevelands have  proffered any            substantial proof of negligence by Hasbro.  The  statement of            its employee, if made  at all, was  mistaken but there is  no            indication of fault.  For all we know, Hasbro does often have            lumpers available and the employee's prediction may have been            perfectly  reasonable.   Plaintiffs,  although they  claim to            have  charged "negligent misrepresentation,"  have pointed to            no evidence at all of negligence on the part of the employee.                 But assuming  arguendo that a rational  jury might still                               ________            be  entitled to infer some measure of fault, there is nothing            whatever  to suggest that Hasbro's fault  comes even close to            that of Curtis.   Curtis' negligence  is patent, serious  and            beyond reasonable dispute; Hasbro has  at most made a  garden            variety  administrative error,  weakly inferable at  best and            (by any  test of  foreseeability) only remotely  connected to            Curtis' own injury.  Bluntly put, Curtis injured himself.                 Matters of proximate cause and comparative fault are, as            a  general rule, for the  jury; but the  settled exception to            the general rule  applies when a reasonable  jury could reach            only one result.  This is such a case and, without suggesting            that the  district  court  was wrong  in  its  broader  legal                                         -8-                                         -8-            holding,  we  think  that   our  own  ruling  on  comparative            negligence offers a firm and narrow basis for the result.                 Affirmed.                 _________                                         -9-                                         -9-
