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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[NOT FOR PUBLICATION]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
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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
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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.
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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).
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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 _____ __________________
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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,
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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
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holding, we think that our own ruling on comparative
negligence offers a firm and narrow basis for the result.
Affirmed. _________
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Document Info
Docket Number： 96-1073
Filed Date： 11/6/1996
Precedential Status： Precedential
Modified Date： 9/21/2015