
USCA1 Opinion

	




          November 10, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1521                                 BERNARD KULINGOSKI,                                Plaintiff - Appellant,                                          v.                              LIQUID TRANSPORTERS, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                        [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                             and Keeton,* District Judge.                                          ______________                                _____________________               Edward  H. Moquin,  with whom  Moquin &  Daley, P.A.  was on               _________________              _____________________          brief for appellant.               Charles J. Dunn, with whom  Wadleigh, Starr, Peters, Dunn  &               _______________             ________________________________          Chiesa was on brief for appellee.          ______                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                                 ____________________                                         -2-                    Per Curiam.   Bernard  Kulingoski brought  a negligence                    Per Curiam                    __________          action   against   Liquid   Transporters,   Inc.,   a  commercial          transporter, after sustaining injuries from falling off of one of          its  "hopper" trailers.  He  alleges that Liquid Transporters was          negligent in failing to  provide a safe standing surface  to work          from on  its trailers.   Liquid Transporters presented  a defense          that Kulingoski's employer, W.R.  Grace Co., who was not  a party          to the action,  was responsible  for the accident,  based on  its          failure  to  require  its   employees  to  follow  proper  safety          precautions while loading the trailer.  A trial was held, and the          jury returned a verdict for  Liquid Transporters.  Kulingoski now          appeals,  claiming that  the  district court  erred by  admitting          evidence regarding Liquid Transporters' defense that W.R. Grace's          omissions constituted  a superseding  cause of the  accident, and          then  instructing the jury with respect to this defense.  For the          foregoing reasons, we affirm.                                    I.  BACKGROUND                                    I.  BACKGROUND                    A.  Facts                    A.  Facts                    Liquid  Transporters  furnishes  trucks,  trailers  and          tankers in order to  haul products on behalf of  manufacturers to          different  locations  throughout  the United  States  and Canada.          Liquid Transporters had  a contract with  W.R. Grace, a  chemical          company  located  in Nashua,  New  Hampshire,  pursuant to  which          Liquid Transporters  would haul a dry,  powdered product produced          by W.R. Grace to a Proctor & Gamble plant in Ontario, Canada.                      W.R.  Grace's  security   procedures  required   Liquid                                         -2-          Transporters  to  use  the  following  system  to  transport  the          chemical powder.   A Liquid Transporters' employee  would drive a          truck-tractor and trailer up to the gate of W.R. Grace, and leave          the trailer at the gate.  When W.R. Grace had completed producing          the chemical powder, one of its employees would take a W.R. Grace          truck-tractor,  hook  it up  to  the  empty Liquid  Transporters'          trailer, and bring the  trailer to a W.R. Grace  loading platform          area.   W.R. Grace employees would  then load the trailer,  and a          W.R.  Grace employee would then  deliver the trailer  back to the          front gate area.   A Liquid Transporters' driver would  then pick          up the trailer and deliver it to Canada.                      Kulingoski worked  for W.R. Grace,  and was responsible          for loading the trailer  with the chemical powder.   W.R. Grace's          ordinary  procedure for loading this  type of trailer  was for an          employee  to stand on the loading area platform and push a button          which  lowers a chute down into each of several portholes located          on  the  top of  the trailer.   The  trailer  is designed  with a          walkway along the side of the  top which is used when an employee          loading the trailer needs to adjust  the chute.  On September 15,          1990, the night of the  accident, due to the way the  trailer had          previously  been  loaded, Kulingoski  had  to  rake the  chemical          powder  into the trailer's portholes.  While he was standing near          the  trailer's  front  edge   and  raking  the  chemical  powder,          Kulingoski fell off the trailer and was injured.                    B.  Proceedings Below                    B.  Proceedings Below                    Kulingoski  originally  brought  this  action   in  New                                         -3-          Hampshire state court, and Liquid Transporters removed the action          to  federal court on the basis of diversity jurisdiction.  During          the  course  of  the  trial,  Kulingoski  contended  that  Liquid          Transporters was  negligent, based  on its  failure to provide  a          pierced  steel leveled surface on  the top of  the trailer, which          would prevent  skidding and reduce  the hazard of  slipping while          working on the trailer.   Liquid Transporters asserted  a defense          that  W.R. Grace's  failure to  require  its employees  to follow          appropriate  safety procedures  when  loading the  trailer was  a          superseding  cause  of  Kulingoski's  accident.   Throughout  the          trial, Kulingoski  opposed this  defense, claiming that  based on          the  facts of this case,  the defense was  not legally cognizable          under New Hampshire law.  Specifically, Kulingoski filed a motion          in limine to exclude all  evidence regarding W.R. Grace's  unused          __ ______          safety harness system.   Kulingoski also objected to the  court's          decision to instruct the  jury on the superseding  cause defense.          The  court denied the motion in limine and overruled Kulingoski's                                       __ ______          objections  to its jury instructions.  Following a two day trial,          the jury returned a verdict for Liquid Transporters.   Kulingoski          now appeals.                                    II.  ANALYSIS                                    II.  ANALYSIS                    A.  The Jury Instructions                    A.  The Jury Instructions                    A party  is  entitled to  have  its legal  theories  on          controlling  issues,  which  are supported  by  the  law  and the          evidence, presented to the jury.  See Jerlyn Yacht Sales, Inc. v.                                            ___ ________________________          Wayne  B. Roman  Yacht Brokerage,  950 F.2d  60, 68-69  (1st Cir.          ________________________________                                         -4-          1991).   When  reviewing the adequacy  of jury  instructions, the          question is whether the trial judge gave adequate instructions on          each element of the case to insure that the jury fully understood          the  issues, or  whether the  instructions tended  to  confuse or          mislead the jury.  See  Davet v. Maccarone, 973 F.2d 22,  26 (1st                             ___  _____    _________          Cir. 1992);  Shane v. Shane,  891 F.2d 976, 987  (1st Cir. 1989);                       _____    _____          see, e.g., Jerlyn Yacht Sales, 950 F.2d at 69.  An error  in jury          ___  ____  __________________          instructions  will warrant reversal  of a judgment  only if, upon          review of  the record as a  whole, the error is  determined to be          prejudicial.  Davet, 973 F.2d at 26; Transnational Corp. v. Rodio                        _____                  ___________________    _____          & Ursillo, Ltd., 920 F.2d 1066, 1070 (1st Cir. 1990).          _______________                    The  court's instruction  to  the jury  on  superseding          cause was  supported both  by the  law of  New Hampshire and  the          facts of the case.  "New Hampshire law follows the principle that          a  defendant is relieved of  liability by a  superseding cause of          the accident  which he could  not reasonably  be found to  have a          duty  to foresee."  Bellotte v.  Zayre Corp., 531 F.2d 1100, 1102                              ________     ___________          (1st Cir.  1976) (citing  Morin v. Manchester  Housing Authority,                                    _____    _____________________________          195 A.2d 243, 245 (N.H. 1963));  see Reid v. Spadone Machine Co.,                                           ___ ____    ___________________          404 A.2d  1094, 1098-99 (N.H. 1979).  In the usual case, there is          no  legal reason which prevents  a defendant from  arguing that a          third person's  negligence was  the sole  proximate cause of  the          plaintiff's injury.  See Reid, 404 A.2d at 1099 (citing Murray v.                               ___ ____                           ______          Bullard Co., 265 A.2d 309, 312 (N.H. 1970)).  The availability of          ___________          the defense depends on the "reasonable" foreseeability of the act          of the  third party.   Reid, 404  A.2d at 1099.   Absent  special                                 ____                                         -5-          circumstances,  a defendant  is  not expected  to anticipate  the          wrongful  conduct of  others.    See  Morin,  195  A.2d  at  245.                                           ___  _____          Additionally, where after a defendant commits a negligent  act, a          duty  then devolves on another person in reference to such act or          condition,  and  this  person  fails to  perform  his  duty, such          failure  may be superseding cause  of any resulting  injury.  See                                                                        ___          generally Restatement (Second)  of Torts    452; cf. Murray,  265          _________                                        __  ______          A.2d  at 312  (finding  that  charge  to  jury  with  respect  to          employer's failure  to properly  adjust machine as  a superseding          cause  which  defendant manufacturer  could  not  have reasonably          foreseen, was appropriate under New Hampshire law).                     Liquid Transporters introduced  sufficient evidence  to          support  a superseding  cause  defense.   Evidence introduced  at          trial permitted the jury to reasonably conclude that Kulingoski's          employer,  W.R. Grace, failed to  require its employees  to use a          safety harness while loading  trailers, like the one  involved in          this  accident.  A "Health and Safety Coordinator" at W.R. Grace,          James  Todd, testified  that there  was safety  harness equipment          available  in the loading dock  area at the  time of Kulingoski's          accident,  but that W.R. Grace failed to require its employees to          use  this safety equipment.  W.R.  Grace's accident report stated          that the accident was  caused by Kulingoski's failure to  use and          observe   "safety  appliance   or  regulation."     Additionally,          Kulingoski  himself  testified that  an improved  harness system,          that W.R. Grace introduced after his accident, made it "safe" for          him to work on the trailer.                                           -6-                    The  evidence also  indicated that  Liquid Transporters          could  not  have  reasonably  foreseen W.R.  Grace's  failure  to          require its  employees to follow adequate  safety procedures when          loading  trailers.   W.R. Grace  required Liquid  Transporters to          leave its trailers outside of its plant,  and Liquid Transporters          had no opportunity to witness W.R. Grace employees loading Liquid          Transporters' trailers.                     On  appeal,  Kulingoski  makes  two  specific arguments          challenging  Liquid  Transporters'  superseding   cause  defense.          First,  he argues  that the  lack of  an adequate  safety harness          system  was not  a  cause of  the  incident, and  therefore  "the          harness  cannot be a superseding  intervening cause if  it is not          first a cause."   Kulingoski's contention misconstrues the nature          of  Liquid Transporters' defense,  as well  as the  law regarding          superseding  cause.   First, Liquid  Transporters does  not argue          that the absence of the harness itself was a superseding cause of          the accident.   Rather, it  argues that W.R.  Grace's failure  to          require that Kulingoski wear a safety harness was the superseding          cause of  Kulingoski's accident.   Second, the  superseding cause          defense presumes that the defendant was originally negligent, but          that  some   unforeseeable  intervening  act  later  operates  to          supersede the  defendant's negligence.   This intervening  act is          then  deemed  to  be  the superceding  cause  of  the plaintiff's          injury.  See, e.g., Bellotte, 531 F.2d at 1102; Reid, 404 A.2d at                   ___  ____  ________                    ____          1098-99; Morin, 195 A.2d  at 245.  See also  Restatement (Second)                   _____                     ________          of Torts   440.                                         -7-                    Kulingoski  also claims  that the  court's instructions          regarding superseding cause  were confusing and the  jury did not          understand  them.     Kulingoski  does  not   point  to  specific          statements  in  the jury  instructions  which  were erroneous  or          confusing.   Rather,  he bases  this assertion  on the  fact that          because  the  jury  returned   a  verdict  in  favor  of   Liquid          Transporters very quickly, this indicates that the jury must have          been confused about the issue of superseding cause, and therefore          the court's instructions were erroneous.  We find this contention          entirely  meritless.   We  have reviewed  the actual  instruction          given to the jury, and believe that  it was an accurate statement          of  New Hampshire  law  regarding superseding  cause.   There  is          simply  no  basis for  Kulingoski's  argument that  the  jury was          confused.1  Rather, Kulingoski's  contention appears to simply be          a reflection of his disbelief that the jury found against him.                       B.  The Admission of Evidence                    B.  The Admission of Evidence                    Kulingoski   also  claims  that   the  court  erred  by          admitting  evidence regarding  the  safety harness.    Kulingoski          rests  this contention on his belief that W.R. Grace's failure to          provide  a safety harness could not have been a superseding cause          of the accident based on the law of New Hampshire.                     The admission  and exclusion  of evidence  is primarily                                        ____________________          1   We  also  believe  that the  jury  was  perfectly capable  of          understanding   that  New  Hampshire   has  a  no-fault  workers'          compensation  system,  and  that  because  W.R.  Grace  had  paid          Kulingoski workers'  compensation benefits, it  was not admitting          fault which then relieved Liquid Transporters of liability.                                         -8-          committed  to  the  discretion  of  the  trial  court,  and  this          determination  will not be disturbed absent a showing of an abuse          of  discretion.  Doty  v. Sewall, 908  F.2d 1053,  1058 (1st Cir.                           ____     ______          1990).   Evidence is "relevant"  if it has  "any tendency to make          the  existence  of  any  fact  that  is  of  consequence  to  the          determination of the action  more probable or less probable  than          it would be without the evidence."  Fed. R. Evid.  401.  Relevant          evidence is  admissible,  although it  "may  be excluded  if  its          probative  value is  substantially  outweighed by  the danger  of          unfair prejudice, confusion of the issues, or misleading the jury          . . . ."  Fed. R. Evid. 403.                      As  noted   above,  Liquid  Transporters'   defense  of          superseding  cause was  supported by  the law  of  New Hampshire.          Given   that  this   defense  was   legally   cognizable,  Liquid          Transporters was  entitled to introduce evidence  which supported          this  defense.   Evidence  regarding the  availability of  safety          equipment and the effectiveness  of such safety equipment, tended          to show that W.R. Grace's failure to require its employees to use          such safety equipment was  negligence, which therefore could have          constituted   a  superseding  cause   of  Kulingoski's  accident.          Kulingoski has failed to point to any reasonable danger of unfair          prejudice  or  confusion, which  was  produced  by admitting  the          evidence, and  which would  justify excluding the  evidence under          Fed.  R. Evid.  403.   Moreover, we  fail to  see any  reason for          excluding the  evidence.  Therefore, the  court properly admitted          the evidence.                                         -9-                    For the foregoing reasons, we affirm.                                                   ______                                         -10-
