
USCA1 Opinion

	




          July 25, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2344                    RICHARD L. COLANTUONI AND CAROL L. COLANTUONI,                               Plaintiffs, Appellants,                                          v.                        ALFRED CALCAGNI & SONS, INC., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            William E. McKeon, Jr., with whom Kevin M. Cain was on brief for            ______________________            _____________        appellants.            Michael G. Sarli for appellee Alfred Calcagni & Son, Inc.            ________________            John F. Kelleher for appellee R.D. Werner Co., Inc.            ________________            Peter J. Comerford for appellee Frank N. Gustafson & Sons, Inc.            __________________                                 ____________________                                 ____________________                COFFIN, Senior Circuit Judge.  Plaintiffs Richard and Carol                        ____________________          Colantuoni brought this action against four defendants to recover          for injuries sustained when Richard Colantuoni fell from a ladder          at a  construction site  at Rhode Island  College.   The district          court  rejected  plaintiffs'  claims  of  liability  and  granted          summary judgment for  three of the  defendants.  After  reviewing          the record, we affirm.                                I.  Factual Background                                    __________________                On  the morning  of April 25,  1989, Richard  Colantuoni, a          sheet metal worker,  was using the upper section  of an extension          ladder (the  "fly section") to  tie in a  sheet metal duct  to an          overhead roof fan at his  worksite when he fell from  the ladder,          sustaining serious injury.  He brought this action, charging that          his accident  was caused by  the negligence of Alfred  Calcagni &          Son, Inc., the  general contractor at the job  site; R.D. Werner,          Inc.,  the alleged manufacturer of the ladder; Frank N. Gustafson          &  Sons, Inc.,  a  subcontractor at  the  construction site;  and          Design  Erectors, Inc.,  a subcontractor to  Gustafson.   He also          claimed  that  Werner  was  liable   for  damages  based  on  two          additional  theories   of   liability:   strict   liability   for          manufacture  of  a  defective  product;  and  breach  of  implied          warranty.                The district  court granted summary  judgment for Calcagni,          Gustafson, and  Werner, and  entered a  default judgment  against          Design Erectors.  The court  held that the doctrine of assumption          of  the risk  barred  recovery  for  plaintiffs'  negligence  and          products  liability claims.  The court rejected plaintiffs' claim          for  breach  of  implied  warranty,  finding  that  there was  no          evidence that the ladder was not fit for its intended purpose, or          failed to meet  standards of implied fitness  or merchantability,          and that  there was nothing  to indicate that there  was anything          specifically wrong with  the ladder.  The court  also found that,          in  waiting until the eve of the  statute of limitations to serve          the  defendants,  plaintiffs  failed to  comply  with  the notice          requirement  of R.I. Gen.  Laws   6A-2-607  (requiring reasonable          notice to  seller in  breach of warranty  action).   Finally, the          court held that  except for the ladder manufacturer,  none of the          defendants owed  a duty  to Colantuoni,  and so these  defendants          could not be liable based  on negligence.  Plaintiffs appeal from          this judgment.                Our  review  of  an  order  granting  summary  judgment  is          plenary.  Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993).                    ______    _____                     II.  Negligence and Strict Liability Claims                          ______________________________________                Plaintiff advances  several  claims  of  error  on  appeal,          arguing  first  that   the  district  court  erred   in  granting          defendants' summary judgment  motions based on assumption  of the          risk,  because a  general issue  of  fact existed  as to  whether          plaintiff  knowingly  and  voluntarily assumed  the  risk  of his          injury.    We agree  with  the  district  court that  the  record          unequivocally  shows that plaintiff  assumed the risk  of injury.          In Rhode Island, the doctrine  of assumption of the risk operates          as a complete bar to recovery for actions based on negligence and                                         -3-          strict liability.  We therefore affirm the district court's grant          of summary judgment for defendants on these claims.          A.  Assumption of the Risk in Rhode Island              ______________________________________                In Rhode Island, the  doctrine of assumption of the risk is          an affirmative defense which  operates to absolve a defendant  of          liability for creating a risk of harm to a plaintiff.  Kennedy v.                                                                 _______          Providence  Hockey Club,  Inc., 376  A.2d  329, 333  (1977).   To          ______________________________          establish this defense, a defendant must show that plaintiff knew          of  the existence  of  a  danger,  appreciated  its  unreasonable          character, and then  voluntarily exposed himself to it.   Drew v.                                                                    ____          Wall,  495  A.2d  229,  231   (R.I.  1985).    The  standard  for          ____          determining   whether  a  plaintiff   knew  of   and  voluntarily          encountered  a risk  is  subjective,  and is  keyed  to what  the          particular  plaintiff   in  fact   saw,   knew,  understood   and          appreciated.  Kennedy, 376 A.2d at 332; Drew, 495 A.2d at 231-32.                        _______                   ____          While the  question of  whether a plaintiff  assumed the  risk is          usually a question  for the trier of fact to decide, if the facts          suggest only  one reasonable inference, the issue  becomes one of          law, and may be decided  by the trial court on summary  judgment.          Id. at 231; Rickey v. Boden, 421 A.2d 539, 543 (R.I. 1980).          ___         ______    _____                Traditionally, assumption of the risk existed as a  defense          to  negligence actions, operating to terminate the duty defendant          owed to plaintiff.  Kennedy, 376 A.2d at 332-333.  In a diversity                              _______          case interpreting Rhode  Island law, we  held that assumption  of          the risk  is  a  viable  defense  to  products  liability  cases.          Turcotte v. Ford  Motor Co., 494 F.2d  173, 183 (1st  Cir. 1974).          ________    _______________                                         -4-          The Rhode Island Supreme Court later endorsed this view.  Mignone                                                                    _______          v.  Fieldcrest  Mills,  556  A.2d  35,  41  (R.I.  1989)  (citing              _________________          Turcotte).            ________          B.  Application               ___________                Viewing the record, as we must, in the light most favorable          to plaintiffs, Pagano, 983 F.2d at  347, we nevertheless conclude                         ______          that the only reasonable inference to draw from the record before          us is that plaintiff assumed the risk of  his injury.  Colantuoni          was injured when he  fell from a ladder while "tying  in" a sheet          metal  duct  to an  overhead  roof  fan.    This was  a  standard          procedure that usually took no longer than seven to eight minutes          to complete.  Plaintiff had  worked in the sheet metal  trade for          twenty-four years, and had used  both step ladders and  extension          ladders as part of  his work and at home.   In his position as  a          sheet metal worker, plaintiff generally did duct work on heating,          ventilation and air conditioning  systems, including the overhead          installation of these systems.                     At the time of his accident, Colantuoni was the job foreman          for Shane Engineering.  As foreman, he was responsible for making          sure the  job proceeded on  schedule and was done  correctly, and          for ordering materials for the job.   Among other things, he knew          that  he would  need ladders,  staging,  or some  other means  of          reaching the ceiling and above ceiling spaces to install the duct          work at  the job site.   Shane  Engineering had a  hydraulic lift          that could  be used to  access hard-to-reach areas, but  the lift          could not be used to reach the ceiling space because it would not                                         -5-          fit  into  the  room  where   plaintiff  was  working.    It  was          plaintiff's  decision as  foreman to  figure  out an  alternative          method of reaching the ceiling.                  On the  date of  the accident,  plaintiff's coworker  David          Solari found the top half of an extension ladder for plaintiff to          use while installing  the duct work.  Plaintiff  knew that he was          using the fly section  of an extension ladder,  and he knew  that          the  standard safety  instructions affixed  to  extension ladders          included  warnings not to take  such ladders apart.   There is no          evidence in the record as to who separated the ladder.                  In   his   deposition,  plaintiff   acknowledged  that   he          appreciated the risks inherent in  using the ladder in an altered          condition at  the time of his fall.   He noted, for example, that          the ladder did not have rubber feet on the bottom, which posed an          even  greater   danger  of   slipping  than  ladders   with feet.          Nonetheless, he felt  comfortable using the ladder  without tying          it to  a stationary  object, or having  a fellow  worker put  his          weight on the bottom  of the ladder to improve its stability, and          despite the presence of other ladders at the job site.  Plaintiff          checked the  ladder's stability by  looking at it and  testing it          with his hands, and  climbing up a few rungs and  bouncing on it,          to see if it would slip.                Colantuoni suggests  that the  following facts  support his          claim that he did not assume the risk of his injury: he had never          seen  someone slip  and fall while  using the  fly section  of an          extension ladder,  he had  not been warned  by defendants  of the                                         -6-          possibility of  slipping,  and  he had never used  the particular          ladder  at issue.  He likens his case to that of the plaintiff in          Handrigan v.  Apex Warwick,  Inc., 275 A.2d  262 (R.I.  1971), in          _________     ___________________          which the Rhode  Island Supreme Court upheld a jury verdict for a          plaintiff who was  injured when he fell from  an extension ladder          that had been  set up by another individual.   Like the plaintiff          in Handrigan, plaintiff claims, he neither knew of the danger nor             _________          proceeded deliberately to encounter it.                We disagree.   First, Handrigran is entirely  inapposite to                                      __________          this case, having been an  action for breach of implied warranty.          The  challenges  were  to  instructions  as  to  the fitness  for          intended  use  of  a  ladder,  abnormal  use,  and  inclusion  of          plaintiff  within  the  intended class  of  beneficiaries  of the          relevant  statute.   Assumption of  the  risk was  not an  issue.          Moreover, nothing in Handrigan suggests that plaintiff, helping a                               _________          friend paint his  house, had any familiarity or  prior experience          with extension ladders, or with the risks attendant to their use.          Colantuoni, by  contrast, was standing  on the fly section  of an          extension ladder, and knew at the time of his accident that using          the ladder in that manner presented  a risk of slipping.  He  had          long years of experience in the construction trades, and had used          ladders as part of his work.                 Nor does the claimed absence of evidence of a warningaffect          the assumption of the risk  defense.  As plaintiff himself notes,          "[A] person  does not assume the risk  of a hidden or undisclosed          danger, not  of common  knowledge, in the  absence of  warning or                                         -7-          personal knowledge."   James v.  Rhode Island Auditorium,  199 A.                                 _____     _______________________          293,  295 (R.I. 1938).  Here,  however, plaintiff's own testimony          is sufficient evidence of his personal knowledge of the danger to          support the defense of assumption of the risk.  Finally, the fact          that  Colantuoni  had never  seen  an  accident  such as  his  is          irrelevant, as it is sufficient that he knew of the potential for          that type of  accident to occur.   Rickey, 421 A.2d at  543 (R.I.                                             ______          1980).   Compare  Soucy  v.  Martin, 402  A.2d  1167 (R.I.  1979)                   _______  _____      ______          (plaintiff who had  never loaded or carried steel  beams and knew          nothing about  them neither  appreciated nor  voluntarily assumed          the risk involved in moving the beams); Rhode  Island Auditorium,                                                  ________________________          199 A.2d at 295-98 (plaintiff attending her first hockey game and          who had  no prior  knowledge of  the risk  of being  struck by  a          flying puck did not assume the risk of this injury).                Plaintiff  also  contends  that  summary  judgment  on  the          assumption  of the risk defense was improper because he presented          a sworn affidavit  in which he stated that he had no knowledge at          the  time of  the accident  of the  ladder's propensity  to slip.          This evidence, submitted after defendants had filed their motions          for  summary  judgment,  stands in  direct  contradiction  to his          deposition testimony.                  When  an  interested  witness  has given  clear  answers to          unambiguous questions,  he cannot  create a  conflict and  resist          summary judgment with an affidavit that is clearly contradictory,          but does not give a satisfactory explanation of why the testimony          is changed.  10A C. Wright, A. Miller & M. Kane, Federal Practice                                                           ________________                                         -8-          and Procedure   2726, at 30-31 (2d ed. Supp. 1994).   See Slowiak          _____________                                         ___ _______          v.  Land O'Lakes,  Inc., 987  F.2d  1293, 1297  (7th Cir.  1993);              ___________________          Trans-Orient Marine v. Star Trading  & Marine, 925 F.2d 566, 572-          ___________________    ______________________          73 (2d Cir. 1991); Davidson & Jones Dev. v. Elmore Dev., 921 F.2d                             _____________________    ___________          1343, 1352 (6th Cir. 1991).                  In this case, Colantuoni's statement in his affidavit  that          "[a]t all times  that I had used  this ladder, I believed  it was          safe  to use it  and I  had no  knowledge, at  that time,  of its          propensity  to slip"  clearly  contradicts  his prior  deposition          testimony that he realized the  ladder might slip.  The affidavit          does   not  discuss  any  earlier  confusion  at  his  deposition          testimony.   His only  explanation for the  contradiction between          the supplemental affidavit  and deposition testimony is  that the          former describes  his state of mind at  the time of the accident,          while the latter describes  his state of mind at the  time of his          deposition.    This  is  clearly  not  viable.    The  deposition          testimony  clearly referred  to the  time of  the accident.   His          attorney was  present at the deposition, and  had the opportunity          to  clarify any  incorrect impressions.   Moreover,  we think  it          significant  that the affidavit was offered only after defendants          had filed motions  for summary judgment.  In these circumstances,          we are persuaded that plaintiff's affidavit should be disregarded          in considering the propriety  of summary judgment.  See  Slowiak,                                                              ___  _______          987 F.2d at 1297; Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.                            ______    _____          1986).                                         -9-                In sum,  we find  that on  the record before  us, the  only          reasonable inference  to  draw  is  that plaintiff  knew  of  the          possibility that the fly part  of the extension ladder might slip          when he  was standing on  it, appreciated the prospect  that this          might happen, and nonetheless chose to use  this ladder to tie in          the sheet metal duct to the overhead roof fan.  We therefore find          that, as a matter of law, he assumed the risk of  injury, thereby          negating any claims of negligence or products liability.                        III.  Breach of Implied Warranty Claim                              ________________________________                The plaintiff  also claimed  that Werner  was liable  for a          breach  of implied  warranty.1   As a  threshold element  of tort          liability  for  personal  injuries under  theories  of  breach of          implied  warranty of merchantability and fitness for a particular          purpose,  a plaintiff  must  prove  that  the  defendant  sold  a          defective product which  posed a  threat of  injury to  potential          consumers.   Scittarelli v.  Providence Gas Co.,  415 A.2d  1040,                       ___________     __________________          1046 (R.I. 1980).   Plaintiff has failed to  produce any evidence          that the ladder was defective, and therefore dangerous.                Werner  presented evidence  that  the extension  ladder  at          issue was designed so as to inhibit someone from disassembling it          and   using  the  top  half  separately.    Specifically,  Werner                                        ____________________               1It is unclear whether plaintiffs' warranty claim is          premised on R.I. Gen. Laws   6A-2-314, which covers the implied          warranty of merchantability, or R.I. Gen. Laws   6A-2-315, which          covers the implied warranty of fitness for particular purpose, as          plaintiff's complaint alleges merely a claim for "breach of          implied warranty," and plaintiff fails to elaborate on this claim          elsewhere.  For the purposes of the case before us, we treat the          complaint as encompassing a claim under both sections.                                         -10-          submitted engineering  drawings depicting the guide grooves which          were riveted to  the fly section of the ladder  between the first          and second rungs,  and the end  caps which were  attached to  the          rails at the bottom  of the fly section  and the top of  the base          section.  This  construction meant that the ladder  could only be          taken apart by removing  the rivets.   There was no mechanism  to          enable the  ladder  to  be  separated.    In  addition,  Werner's          affidavit,  prepared  by  Werner's vice  president  in  charge of          engineering, described the engineering  drawings, and stated that          the ladder "was manufactured in such a way that the guide grooves          on the  fly section could  not pass through  the end caps  on the          base  section, thereby making  the ladder nonseparable."   Werner          also  presented evidence of  the safety instructions  attached to          both the  base and fly sections of  the ladder, which stated that          the fly section  of the ladder  "should not be  used as a  single          ladder unless equipped with feet, ice picks or equivalent."                   Plaintiff failed to rebut this evidence with any proof that          the  ladder  was  easily  disassembled,  or  in  any  other   way          defective, and  therefore  not "merchantable"  as a  nonseparable          extension  ladder at the time of sale, nor fit for the particular          purpose  for  which it  was  used.    Instead,  plaintiff  simply          suggests  that the fact  that Werner gave  instructions regarding          the use of  the fly section of  the ladder as a single  ladder is          proof that the ladder is warrantied for use in a separated state.          The evidence, however, is that the ladder was constructed in such          a way to prevent it from  being taken apart and used in  separate                                         -11-          pieces.   The  fact  that Werner  recognized  the possibility  of          misuse  and minimized  the danger  from such  use by  providing a          warning in no  way proves that  the ladder was  warrantied to  be          used in such a manner.                  The party resisting summary judgment "may not rest upon the          mere allegations or denials of the . . . pleading, but . . . must          set forth  specific facts showing  that there is a  genuine issue          for  trial."   Fed. R. Civ.  P. 56(e).   There is  no trialworthy          issue unless  there is sufficient competent evidence  to enable a          finding favorable  to the  opposing party.   Anderson  v. Liberty                                                       ________     _______          Lobby, Inc., 477 U.S. 242,  248-49 (1986).  Colantuoni has failed          ___________          to produce  any such  evidence.  We  therefore conclude  that the          district  court was correct in granting defendant Werner's motion          for summary judgment on the breach of implied warranty claim.                The decision of the district court is therefore AFFIRMED.                ________________________________________________________                                         -12-
