Talkington Ex Rel. Moore v. Atria Reclamelucifers Fabrieken BV , 152 F.3d 254 ( 1998 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOHN K. TALKINGTON, as Conservator
for Felisha Sue Moore, a minor and
as Personal Representative
(Administrator) of the Estates of
Ashley Renae Moore, John Curtis
Moore, and Elizabeth Nicole
Moore; PAMELA QUIGLEY, Personal
Representative for Eugene Allen
Moore and Sueanne Elizabeth
Moore,
Plaintiffs-Appellees,
v.
ATRIA RECLAMELUCIFERS FABRIEKEN
No. 97-1386
BV (CRICKET BV); CRICKET SA;
POPPELL BV,
Defendants-Appellants,
and
TARKETT NORTH AMERICA HOLDING
INCORPORATED, formerly known as
Stora Holding Incorporated and as
Swedish Match Holding
Incorporated,
Defendant.
SOUTH CAROLINA DEPARTMENT OF
SOCIAL SERVICES,
Movant.
Appeal from the United States District Court
for the District of South Carolina, at Anderson.
G. Ross Anderson, Jr., and Henry M. Herlong, Jr.,
District Judges.
(CA-95-3148-8-20, CA-95-3150-8-20, CA-95-3151-8-20,
CA-95-3152-8-20, CA-95-3193-8-20)
Argued: May 7, 1998
Decided: July 15, 1998
Before WILKINSON, Chief Judge, WILLIAMS, Circuit Judge, and
FRIEDMAN, United States District Judge for the
Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge Williams wrote the opinion, in
which Chief Judge Wilkinson and Judge Friedman joined.
_________________________________________________________________
COUNSEL
ARGUED: Colleen Ann Scherkenbach, QUARLES & BRADY,
Phoenix, Arizona; Frank J. Daily, QUARLES & BRADY, Milwau-
kee, Wisconsin, for Appellants. James Marion Thompson, THOMP-
SON & SMITH, Augusta, Georgia, for Appellees. ON BRIEF: C.
Christine Burns, QUARLES & BRADY, Phoenix, Arizona; Edward
H. Starr, Jr., MAYS & VALENTINE, Richmond, Virginia, for Appel-
lants. Chad A. McGowan, Atlanta, Georgia; J. David Standeffer,
STANDEFFER & BRISLANE, Anderson, South Carolina; Danny L.
Durham, FLEMING, BLANCHARD, JACKSON & DURHAM,
Augusta, Georgia, for Appellees.
_________________________________________________________________
OPINION
WILLIAMS, Circuit Judge:
In this diversity action, we follow the South Carolina appellate
courts' consistent holdings that the doctrines of strict liability and
negligence are distinct theories of recovery in a products liability
case, and that the denial of liability under one of these doctrines does
not automatically preclude the imposition of liability under the other.
Therefore, we affirm the district court as to all issues of liability.
2
I.
This appeal arises out of a tragic residential fire in Anderson, South
Carolina. On the morning of November 7, 1992, five people, includ-
ing two-year-old John Moore, three-year-old Ashley Moore, and six-
year-old Nikki Moore; their mother Sueanne Brock; and the paternal
grandfather of some of the children, Allen Moore, were killed, and
five year-old Felisha Moore was permanently disabled, when their
rental house was destroyed by fire. Plaintiffs' experts opined that the
fire began when one of the infant children, Ashley Moore, ignited the
sofa in the den with a Cricket disposable butane cigarette lighter that
had no child-resistant safety features. Plaintiffs 1 premised their dam-
ages claims against Atria Reclamelucifers Fabrieken BV, Cricket SA,
and Poppell BV (collectively, "Cricket") on the theories of both strict
liability and negligence. Plaintiffs claimed that Cricket's failure to
include safety features on the lighter rendered it defective and unrea-
sonably dangerous. Plaintiffs also claimed that Cricket breached the
duty of care owed them when it manufactured and sold the lighter
absent safety features despite knowledge that damage could be caused
by young children operating the lighter.
At the conclusion of the liability phase of the bifurcated trial, the
jury expressly rejected Plaintiffs' theory that the absence of a child
resistant safety feature was a design defect resulting in strict liability.
The jury did find, however, that Cricket negligently designed the
lighter and that this negligent design was the proximate cause of the
deadly fire, thus rendering Cricket liable for damages. In addition to
determining liability, the jury was asked to apportion the fault
between each of the adult plaintiffs and Cricket on separate verdict
forms. On Sueanne Brock's verdict form, the jury determined that
Cricket was twenty percent at fault while Brock was eighty percent
_________________________________________________________________
1 John K. Talkington is the personal representative of the estates of
Ashley Moore, John Moore, and Nikki Moore and the conservator for
Felisha Moore, the only survivor of the fire. Pamela Quigley is the per-
sonal representative of the estates of Allen Moore and Sueanne Brock.
"Plaintiffs" refers to the plaintiffs collectively. We note that this case
began with the filing of five separate complaints. Cricket subsequently
filed a motion, opposed by Plaintiffs, to consolidate the cases for trial.
The district court granted the motion.
3
at fault. The jury computed the same ratio as to Allen Moore. As a
result, the adult plaintiffs' claims were extinguished.2 At the conclu-
sion of the damages phase, Cricket made various motions, including
a renewal of its motion for judgment as a matter of law. The district
court denied all of Cricket's motions.
Because the parties had stipulated that any negligence found on
behalf of the adult plaintiffs would not be imputed to the child plain-
tiffs, the damages phase of the trial continued for the child plaintiffs'
claims. The jury awarded each of the three deceased child plaintiffs'
estates $1000 in actual damages and awarded Felisha Moore, the only
survivor, actual damages in the amount of $2.6 million. At the conclu-
sion of the damages phase, Cricket again renewed its motion for judg-
ment as a matter of law or, in the alternative, a new trial. The child
plaintiffs also sought a new trial on damages only, arguing that the
award of damages was unreasonably low. The district court denied all
motions and imposed a $2,603,000 judgment against Cricket. Cricket
now appeals the liability verdicts.3
_________________________________________________________________
2 In Nelson v. Concrete Supply Co., 399 S.E.2d 783 (S.C. 1991), the
South Carolina Supreme Court overturned nearly 150 years of jurispru-
dence, see Freer v. Cameron, 37 S.C.L. (4 Rich.) 228 (1851), when it
expressly rejected the doctrine of contributory negligence and joined the
vast majority of its sister jurisdictions in adopting the more equitable
doctrine of comparative negligence in assessing damages in tort actions.
See Nelson, 399 S.E.2d at 784. Specifically, the court adopted the "not-
greater-than" modified version of comparative negligence. See id. (citing
Langley v. Boyter, 325 S.E.2d 550 (S.C. Ct. App. 1984)). Under compar-
ative negligence, even if the jury concludes that the plaintiff was partly
at fault for her damages, the plaintiff may still recover. This doctrine has
been modified in South Carolina, however, such that the plaintiff's
recovery is reduced by the percentage of fault proportioned to the plain-
tiff, as long as the plaintiff's fault is "not greater than" that of the defen-
dant. See Nelson, 399 S.E.2d at 784. Accordingly, if a jury finds that a
plaintiff is more than fifty percent at fault, as was the case here, the
plaintiff recovers nothing. See id.
3 Talkington, as conservator for Felisha Moore, cross-appeals Felisha's
damages verdict. By separate order, the damages issues raised in Talk-
ington's cross-appeal are certified to the South Carolina Supreme Court
pursuant to Rule 228 of the South Carolina Appellate Court Rules. See
Talkington v. Atria Reclamelucifers Fabrieken BV, No. 97-1424 (4th Cir.
argued May 7, 1998). We reserve imposition of judgment on the cross-
appeal pending receipt of the state court's response to the questions pre-
sented.
4
II.
Construing the evidence in the light most favorable to Plaintiffs,
see Atlas Food Sys. & Servs., Inc. v. Crane Nat'l Vendors, Inc., 99
F.3d 587, 597 (4th Cir. 1996), the facts of this case are as follows. At
approximately 8:45 a.m. on November 7, 1992, Sueanne Brock's
neighbors, Roy and Billie Lee Crawford, saw Brock's house engulfed
in flames. The couple immediately ran across the street and tried to
help. Mr. Crawford began knocking out the windows with a hammer
to get into the house. Suddenly, Allen Moore, enveloped in flames,
jumped through the front window and onto the front porch. As Mr.
Crawford dragged him to the ground to extinguish the fire, Allen said,
"I know who done it." Unfortunately, Allen died shortly thereafter.
Emergency personnel responded immediately and began putting out
the fire. A search of the home revealed Brock and three of the chil-
dren in the front bedroom. They all died as a result of smoke inhala-
tion associated with the fire. Five-year-old Felisha, the only survivor,
initially was treated at the Anderson Memorial Hospital but, due to
the seriousness of her injuries, she was airlifted to the Burn Unit at
the Humana Hospital in Augusta, Georgia, that same day.4
After the fire was extinguished, various fire and law enforcement
personnel attempted to reconstruct the scene. Anderson County Arson
Investigator Arthur Sullivan led the investigation. Various photo-
graphs were taken and a videotape was made of the scene. During a
walk-around of the building, Sullivan discovered a gallon jug outside
the house that smelled of kerosene and noted that an outdoor shed
contained evidence of previous fires. Sullivan's notes indicated that
the family used two kerosene heaters for warmth, and he later learned
_________________________________________________________________
4 Felisha remained comatose in the Burn Unit for five weeks while she
underwent aggressive care. In mid-December, Felisha was transferred to
Greenville Memorial Hospital in Greenville, South Carolina, where she
received care until April of 1993, at which time she was placed in a
nearby rehabilitation facility. After two months, she was transported
back to Greenville Memorial Hospital. At that time Felisha continued to
use a gastronomy tube for partial feeding, and although she could follow
simple commands, her verbal responses were very limited and her move-
ments poor. The following month, Felisha was released to the care of her
foster parents, Roger and Carol Dean.
5
that Brock's eldest son, Michael Brock, had started a fire in the back
shed prior to this incident. Sullivan did not test the house for the pres-
ence of accelerants. Anderson City Chief Fire Investigator Charles
Mull also participated in the investigation. He discovered a cigarette
lighter on the living room floor, a few feet from the couch and a few
feet from where three-year-old Ashley Moore's body was found. Mull
notified Sullivan of his discovery, and Sullivan took the lighter into
evidence. Both Brock and Allen Moore were smokers.
Due to the number of casualties and the evidence suggesting that
the fire may have been intentionally set, the Anderson authorities con-
tacted the South Carolina Law Enforcement Division (SLED). SLED
Agent Ross learned that Billy Ray Moore, Brock's boyfriend and the
father of her two-year-old son John Moore, had threatened her life the
night before the fire. The couple had gotten into a drunken fight at a
party earlier in the evening. At approximately 3:00 a.m. on the morn-
ing of the fire, Billy Ray was seen slashing Brock's tires outside the
home. Then, between 5:00 and 6:00 a.m., Billy Ray was seen in the
home arguing with Brock. Agent Ross discovered accelerant on Allen
Moore's clothes and subsequent reports suggested that Billy Ray's
clothes smelled of kerosene. Later testing, however, failed to reveal
any kerosene on Billy Ray's clothes. At the conclusion of his investi-
gation, Agent Ross ultimately agreed with the Anderson County
authorities and concluded that the fire was accidental, rather than
arson.
III.
Cricket raises four issues on appeal. First, it contends that the dis-
trict court erroneously failed to grant Cricket judgment as a matter of
law after the jury returned a verdict in which it found that the Cricket
lighter was not "defective and unreasonably dangerous," thereby bar-
ring the imposition of strict liability upon Cricket under South Caroli-
na's products liability law as well as under negligence law. Second,
Cricket asserts that the district court should have granted it judgment
as a matter of law because Plaintiffs failed to prove that a child's use
of the lighter was the proximate cause of the fire. Third, Cricket con-
tends that the district court abused its discretion when it failed to sub-
mit a separate special interrogatory on superseding and intervening
causes to the jury. And finally, Cricket asserts that the three special
6
verdict forms erroneously prevented the jury from apportioning the
degree of fault among all three tortfeasors -- Cricket, Brock, and
Allen Moore.
We review de novo the district court's refusal to grant judgment as
a matter of law. See Benesh v. Amphenol Corp. , 52 F.3d 499, 502 (4th
Cir. 1995). A court may only grant a motion for judgment as a matter
of law if, viewing the evidence in the light most favorable to the non-
moving party and drawing every legitimate inference in that party's
favor, the court "determine[s] that the only conclusion a reasonable
trier of fact could draw from the evidence is in favor of the moving
party." Tools USA & Equip. Co. v. Champ Frame Straightening
Equip. Inc., 87 F.3d 654, 656-57 (4th Cir. 1996) (alteration in origi-
nal). The district court's evidentiary rulings are reviewed for abuse of
discretion. See Sasaki v. Class, 92 F.3d 232, 241 (4th Cir. 1996).
This case is before us pursuant to diversity jurisdiction, see 28
U.S.C.A. § 1332 (West 1993), and thus we are bound to apply gov-
erning state law, as interpreted by the relevant state's highest court,
see Erie R.R. Co. v. Thompkins, 304 U.S. 64, 78 (1938). If the law
is not entirely clear, we must rule as it appears the state court would
rule. See St. Paul Fire & Marine Ins. Co. v. Jacobson, 48 F.3d 778,
783 (4th Cir. 1995). In trying to determine how the highest state court
would interpret the law, we "should not create or expand that State's
public policy." Id. The parties agree that South Carolina law applies
to these claims. For the reasons discussed below, we reject Cricket's
claims and affirm the judgment of the district court on all issues of
liability.
A.
Cricket contends that it should have been granted judgment as a
matter of law because the jury expressly found that the Cricket lighter
was not defective and unreasonably dangerous. As a result, Cricket
argues that it could not be negligent for manufacturing the lighter in
accordance with its design and, therefore, the jury's verdict is fatally
inconsistent. Plaintiffs maintain, however, that the jury's verdict is not
inconsistent, and that Cricket's argument is based upon a misappre-
hension of the fundamental differences between strict liability and
negligence. Strict liability, Plaintiffs contend, is determined by refer-
7
ence to the expectation of the ordinary consumer. Negligence, how-
ever, may be based upon the reasonable foreseeability of harm to
unintended users, in this case, children.
At the conclusion of the damages phase of the trial, the jury
returned the following marked verdict form:
2. Do you find by a preponderance of the evidence that the
defendants . . . were negligent in the design of the
lighter and that this negligence was a proximate cause
of the accident?
_x_ Yes ___ No
3. Do you find by a preponderance of the evidence that the
Cricket lighter was defective and unreasonably danger-
ous and that this defect was a proximate cause of the
accident?
___ Yes _x_ No
(J.A. at 176.) Cricket claims that these answers are fatally inconsis-
tent. If the product is not defective, Cricket argues, then manufactur-
ing it consistent with its design cannot constitute negligence.
We first note that the proper remedy for an inconsistent jury verdict
is a new trial, not judgment as a matter of law as Cricket suggests.
See Atlas Food Sys. & Servs., Inc. v. Crane Nat'l Vendors, Inc., 99
F.3d 587, 598 (4th Cir. 1996). We need not concern ourselves with
this dilemma, however, because where, as here, there is a view of the
case that makes the jury's answers to special interrogatories consis-
tent, a reviewing court must resolve them that way. See Atlantic &
Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364
(1962); see also Atlas Food Sys., 99 F.3d at 599 (4th Cir. 1996) (hold-
ing that appellate courts must "harmonize seemingly inconsistent ver-
dicts if there is any reasonable way to do so").
The South Carolina appellate courts consistently have acknowl-
edged that a products liability claim may be brought under several
theories, including strict liability, breach of warranty, and negligence.
See Cousar v. New London Engineering Co., 410 S.E.2d 243, 243-44
8
(S.C. 1991); Small v. Pioneer Machinery, Inc. , 494 S.E.2d 835, 842
(S.C. Ct. App. 1997); Bragg v. Hi-Ranger, Inc. , 462 S.E.2d 321, 325
(S.C. Ct. App. 1995); Dema v. Shore Enterprises, Ltd., 435 S.E.2d
875, 876 (S.C. Ct. App. 1993); Sunvillas Homeowners Ass'n, Inc. v.
Square D Co., 391 S.E.2d 868, 871 (S.C. Ct. App. 1990). Cricket
does not dispute this general proposition. Cricket further agrees that
under certain circumstances "a jury could legitimately find negligence
but no strict liability." (Appellant's Br. at 24.) According to Cricket,
however, this anomaly "applies only when an alternative to design
defect, such as failure to warn, exists as a theory of negligence." (Id.)
Our review of South Carolina case law reveals nothing to support
this proposition. To the contrary, the South Carolina Court of Appeals
recently rejected an argument by a manufacturer in a products liability
case virtually identical to the one espoused here by Cricket. In Bragg
v. Hi-Ranger, Inc., 462 S.E.2d 321 (S.C. Ct. App. 1995), the state
appellate court held that a directed verdict on the strict liability claim
was not logically inconsistent with allowing the negligence claim to
be submitted to the jury. See id. at 327. The court reasoned:
Although substantial similarities in analysis exist between
strict liability for the sale of defective products and negli-
gence principles of liability, especially in design and inade-
quate warning cases, differences do exist. . . . Strict liability
and negligence are not mutually exclusive theories of recov-
ery; that is, an injury may give rise to claims that can be
established either under principles of strict liability or negli-
gence, and failure to prove one theory does not preclude
proving the other.
Id. at 325-26 (emphasis added); cf. Gasque v. Heublein, Inc., 315
S.E.2d 556, 558 (S.C. Ct. App. 1984) (rejecting argument that negli-
gence and strict liability are so closely intertwined that it should
depart from "two issue rule" in products liability cases and concluding
that there are "obvious differences between the two theories, i.e., the
different quantum of proof required and the fact that one's origins are
statutory while the others are at common law"). In Bragg, the court
further elaborated that:
The distinction between strict liability and negligence in
design-defect and failure-to-warn cases is that in strict liabil-
9
ity, knowledge of the condition of the product and the risks
involved in that condition will be imputed to the manufac-
turer, whereas in negligence these elements must be proven.
Whether strict liability or negligence affords a plaintiff
the broader theory of recovery will depend largely on the
scope of evidence admitted by the trial court and on the jury
instructions given under each theory.
Bragg, 462 S.E.2d at 326 (quoting Bilotta v. Kelley Co., 346 N.W.2d
616, 622 (Minn. 1984)).
In formulating its conclusion that differences may exist between
the theories of negligence and strict liability in defect cases, the
Bragg court cited with approval the Third Circuit's decision in Griggs
v. BIC Corp., 981 F.2d 1429 (3rd Cir. 1992). The facts in Griggs are
remarkably similar to those in this case. In Griggs, an eleven-month-
old child suffered serious injuries in a fire at his Pennsylvania home
started by his three-year-old stepbrother with a disposable butane cig-
arette lighter. The plaintiffs brought suit against BIC, "alleging that
BIC's failure to manufacture a childproof lighter constituted both
defective and negligent design." Griggs, 981 F.2d at 1431. The dis-
trict court granted BIC summary judgment on plaintiff's strict liability
and negligence claims. On appeal, the Third Circuit affirmed sum-
mary judgment based upon strict liability, but reversed as to negli-
gence. Interpreting Pennsylvania law, the Third Circuit held that
while a product may not be defective because it failed to perform in
the manner for which it was intended, it could be found defective
because it did not contain protective mechanisms to guard against
harm caused by foreseeable misuses. See id. at 1438.
Like Cricket, the defendant in Griggs, the cigarette lighter manu-
facturer BIC, argued that when a plaintiff fails to meet the lower bur-
den for strict liability, she necessarily cannot meet the higher burden
for negligence in a design-defect case. The Third Circuit rejected this
reasoning. It held:
Viewing the negligence claim as merely one step beyond
strict liability, however, obscures the true difference
between negligence and strict liability under Pennsylvania
10
law. In strict liability, the focus is on a defect in the product,
regardless of fault, and that defect is determined in relation
to a particular subset of the general population: the intended
user who puts the product to its intended use. In negligence,
the focus is on the reasonableness of a defendant's conduct,
and this reasonableness is determined in relation to a differ-
ent subset of the general population, and one that is conceiv-
ably broader: anyone who foreseeably may be subject to an
unreasonable risk of foreseeable harm.
. . . . In strict liability, the plaintiff need not show fault, but
only prove a product defect. A product cannot be defective
when its design and performance meet all of the require-
ments of the intended user, regardless of the foreseeability
of misuse by unintended users. In negligence, the plaintiff
must prove fault of the manufacturer, which is an element
not required in strict liability law. The scope of inquiry,
however, expands because of the duty to unintended but
foreseeable users. Although the results may very well often
be the same in strict liability and negligence under a given
set of facts, the focus of each claim is different, and there-
fore proof of negligence may be possible without a finding
of strict liability.
Id. at 1438.
South Carolina, like Pennsylvania, links strict liability with "in-
tended use" while negligence encompasses all"foreseeable" uses. In
South Carolina, "to recover under a strict liability theory, the plaintiff
must establish that: (1) the defendant's product was in a defective
condition unreasonably dangerous for its intended use; (2) the defect
existed when the product left the defendant's control; and (3) the
defect was the proximate cause of the injury sustained." Bragg, 462
S.E.2d at 328 (emphasis added). In other words, the plaintiff must
show that "the product, as designed, is unreasonably dangerous in its
failure to conform to the ordinary user's expectations." Id. (emphasis
added).
Quite a different standard applies to negligence claims. To make
out a negligence claim in South Carolina, a plaintiff must prove three
11
elements: "(1) a duty of care owed by the defendant to the plaintiff;
(2) a breach of that duty by a negligent act or omission; and (3) dam-
age proximately resulting from the breach of duty." Rickborn v. Lib-
erty Life Ins. Co., 468 S.E.2d 292, 298 (S.C. 1996). "A breach of duty
exists when it is foreseeable that one's conduct may likely injure the
person to whom the duty is owed." Horne v. Beason, 331 S.E.2d 342,
344 (S.C. 1985) (emphasis added); see also Vinson v. Hartley, 477
S.E.2d 715, 720 (S.C. Ct. App. 1996).
In most design-defect cases, the proof under the two theories will
dovetail, or as is more often the case, strict liability will be easier to
prove because there is no required finding of fault. Recovery under
the principles of strict liability is limited, however. While the plaintiff
is relieved from proving fault by the manufacturer,"the manufacturer
is not held as an insurer against all losses caused by the product but
rather is to be held responsible only for damages attributable to some
failure of the product to perform with reasonable safety in its normal
environment." Bragg, 462 S.E.2d at 327 (emphasis added). As a
result, strict liability is not available to those plaintiffs who are injured
when a product is used in a way not intended by the manufacturer.
Recovery under the theory of negligence, however, is available to any
plaintiff who can establish that she falls into the category of individu-
als to whom the manufacturer owes a duty -- foreseeable, although
perhaps unintended users -- and that the manufacturer breached that
duty by failing to exercise due care.
As the Bragg court noted, "[w]hether strict liability or negligence
affords a plaintiff the broader theory of recovery will depend largely
on the scope of evidence admitted by the trial court and on the jury
instructions given under each theory."5 Bragg, 462 S.E.2d at 326. In
describing the elements of negligence, the district court charged the
jury that "[t]he duty to exercise reasonable care exists when it is fore-
seeable that one's conduct may likely injure a person to whom the
duty is owed. . . . All persons owe each other the duty to use reason-
able care." (J.A. at 781.) The district court further indicated that "the
plaintiffs allege that the defendants breached their duty of care by
failing to manufacture a lighter with a sufficient child-resistant fea-
_________________________________________________________________
5 In this case, Cricket does not challenge the district court's instructions
to the jury regarding the elements of strict liability and negligence.
12
ture. When children are involved, as in this case, you should take
notice of the fact that more care must be exercised towards children
than towards persons of mature years." (J.A. at 781.) And finally,
with respect to proximate cause, the district court stated that Cricket
could be held liable only for events that were "the natural and proba-
ble consequences of the act or omissions alleged." (J.A. at 782.) On
the other hand, the district court charged the jury that to find Cricket
liable under the doctrine of strict liability, Plaintiffs had to show that
the product was "in a defective condition, unreasonably dangerous to
the user or consumer." (J.A. at 788.)
Based upon the foregoing instructions and the facts of this case, the
jury concluded that the Cricket lighter was not defective or unreason-
ably dangerous to the ordinary consumer (an adult) for its intended
use (lighting a cigarette) and, therefore, found that Cricket was not
strictly liable for Plaintiffs' injuries. Under South Carolina law, it is
not inconsistent with this finding for the jury nevertheless to impose
liability upon Cricket based upon a finding that Cricket negligently
failed to exercise due care towards the vulnerable child plaintiffs
when it was reasonably foreseeable that serious harm could result
from Cricket's failure to include child-resistant safety features on its
lighter. Accordingly, we reject Cricket's claim that it is entitled to
judgment as a matter of law, or in the alternative, a new trial, based
upon the alleged inconsistency of the jury's verdict.
B.
Cricket next argues that the district court erred when it did not
grant judgment as a matter of law because Plaintiffs failed to show
by a preponderance of the evidence that three-year-old Ashley's use
of a Cricket lighter proximately caused the fire. In a negligence
action, a plaintiff must demonstrate that the defendant's breach of
duty was the proximate cause of the plaintiff's damage. See Goode v.
St. Stephens United Methodist Church, 494 S.E.2d 827, 834 (S.C. Ct.
App. 1997). "Proof of proximate cause requires proof of both causa-
tion in fact and legal cause. Causation in fact is proved by establish-
ing the injury would not have occurred ``but for' the defendant's
negligence. Legal cause is proved by establishing foreseeability."
Vinson, 477 S.E.2d at 721 (citations omitted). Proximate cause is gen-
13
erally a question of fact to be decided by the jury. See id. It may be
proven by direct or circumstantial evidence. See id.
On appeal, Cricket does not contest the jury's finding of legal
cause, i.e., that the injuries sustained were reasonably foreseeable.6
Rather, Cricket asserts that the circumstantial evidence that Ashley's
use of the lighter was the cause-in-fact of the fire was logically and
legally insufficient. Cricket contends that Plaintiffs' proof of causa-
tion in fact depended solely on the expert testimony of Arthur Sulli-
van, Ted Kaplon, and Dr. Sandra Conradi. Cricket maintains,
however, that none of these witnesses was able to state to any degree
of probability that Ashley started the fire with a Cricket lighter. Also,
Cricket challenges the admissibility of Kaplon's testimony and a vid-
eotape of a "burn test" presented by Sullivan."When determining
whether the evidence is sufficient to support the jury's verdict, the
evidence must be reviewed in the light most favorable to plaintiffs,
giving them the benefit of all inferences." Duke v. Uniroyal, Inc., 928
F.2d 1413, 1417 (4th Cir. 1991). We must defer to the judgment of
the jury "[i]f, with that evidence, a reasonable jury could return a ver-
dict in favor of plaintiffs." Id. Because we hold that the testimony of
Sullivan and Kaplon provided sufficient evidence from which a rea-
sonable jury could conclude that the fire was proximately caused by
Ashley using a Cricket lighter, we refuse to disturb the jury's finding
of liability.
1.
To establish that Ashley started the fire with a Cricket lighter,
Plaintiffs relied primarily upon the testimony of two witnesses:
Arthur Sullivan and Ted Kaplon.7 Absent any objection by Cricket,
the district court qualified both Sullivan and Kaplon as experts in the
_________________________________________________________________
6 Cricket also does not contest that it was reasonably foreseeable that
unattended children would play with its lighter and that the existence of
child safety features would have prevented a child from igniting the
lighter.
7 Plaintiffs also presented the testimony of Dr. Sandra Conradi via
deposition. Because we agree with Cricket that Dr. Conradi's testimony
did not add significant support to Plaintiffs' theory of negligence, we
focus only upon the testimony of Sullivan and Kaplon.
14
area of fire cause and origin. On direct examination, Sullivan opined,
without objection, that "[t]he most probable cause of this fire, based
on our tests and our witness testimony and putting everything
together, most likely this fire was started by placing an open flame to
the couch. In this instance, most likely a child." (J.A. at 254.) Sullivan
further testified that he had considered the alternative scenarios for
the fire's origin proposed by Cricket, but that he had ruled out gas,
kerosene heaters, a smoldering cigarette that had been dropped by
Allen Moore after he fell asleep on the couch, and arson as likely
causes of the fire. Cricket did not object to Sullivan's testimony or,
in particular, his final opinion of the fire's cause. Rather, Cricket thor-
oughly cross-examined Sullivan, questioning his reasoning and the
bases for his conclusions and pointing out perceived inconsistencies.
During his testimony, Sullivan revealed that he based his conclusion,
in part, upon a "burn test" conducted by fire officials in which the
effects of a smoldering cigarette and an open flame upon a sofa were
compared. The test was videotaped and presented to the jury without
objection.
Kaplon, an electrical engineer with 25 years of experience in fire
investigation, testified, without objection, that the cause of the fire
was "Ashley igniting the sofa with the cigarette lighter." (J.A. at 344.)
Upon extensive questioning by both counsel, Kaplon defended his
position and gave well-reasoned responses for rejecting Cricket's
alternative scenarios, including arson, a malfunctioning kerosene
heater, and a dropped smoldering cigarette. We conclude that a jury,
after hearing the testimony of these two experts, could reasonably
conclude that the fire was caused by Ashley igniting the sofa with a
Cricket cigarette lighter.
2.
Cricket asserts, however, that the entirety of Kaplon's testimony
and the burn test relied upon by Sullivan, along with his correspond-
ing opinion testimony, should have been excluded under Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). We review
a district court's evidentiary rulings, including the decision to admit
or exclude expert evidence under Daubert, for abuse of discretion.
See General Elec. Co. v. Joiner, 118 S. Ct. 512, 515 (1997). Finding
15
no reversible error, we affirm the district court's admission of the
challenged testimony.
a.
Turning to Cricket's claim regarding Kaplon's testimony, we hold
that Cricket fails to demonstrate that the admission of Kaplon's testi-
mony was error. Cricket's attempt to exclude Kaplon's testimony
under Daubert demonstrates a fundamental misunderstanding of the
Supreme Court's decision. "Daubert instructs district courts to make
a ``preliminary assessment of whether the reasoning or methodology'
underlying expert testimony ``is scientifically valid.'" Freeman v.
Case Corp., 118 F.3d 1011, 1016 n.6 (4th Cir. 1997) (quoting
Daubert, 509 U.S. at 590 n.8), cert. denied , 118 S. Ct. 739 (1998).
Cricket's criticism of Kaplon is not a challenge to his methodology
or technique. In fact, Cricket acknowledges that"Kaplon applied no
scientific methods in forming his opinion."8 (Appellant's Br. at 34.)
Rather, Kaplon based his conclusions upon his "experience and train-
ing" as an electrical engineer with approximately 25 years of experi-
ence investigating fires. Accordingly, the Daubert analysis is simply
inapplicable to a determination of the admissibility of Kaplon's testi-
mony. See Freeman, 118 F.3d at 1106 n.6. (noting that "where an
expert relies on his experience and training and not a particular meth-
odology to reach his conclusions, application of the Daubert analysis
is unwarranted" (internal quotation marks, alterations, and citations
omitted)).
Therefore, Kaplon need satisfy only the requirements of Rule 702
of the Federal Rules of Evidence for his testimony to be admissible.
Rule 702 provides that:
_________________________________________________________________
8 To the extent that Cricket questions Kaplon's reliance upon the
reports and the depositions of other witnesses, and his failure to conduct
an "independent investigation," we note that the Federal Rules of Evi-
dence "expressly authorize that such expert opinions may be based, not
only on data and direct observations, but also on the opinions and obser-
vations of others." Westfield Ins. Co. v. Harris, 134 F.3d 608, 612 (4th
Cir. 1998).
16
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to deter-
mine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.
Fed. R. Evid. 702. Kaplon's credentials were unchallenged by
Cricket. Further, Kaplon's testimony did assist the jury in resolving
the key factual dispute in the case. We also note that Cricket does not
challenge the district court's instructions to the jury as to burden of
proof or as to how the jury should assess expert testimony. Cf.
Freeman, 118 F.3d at 1017. Accordingly, the admission of Kaplon's
testimony was not an abuse of discretion.
b.
As to the videotape of the burn test, assuming without deciding that
its admission was error, we readily conclude that the evidence did not
affect Cricket's substantial rights and, therefore, was harmless. See
Fed. R. Evid. 103(a) (An "[e]rror may not be predicated upon a ruling
which admits or excludes evidence unless a substantial right of the
party is affected."). Accordingly, the admission of the burn test and
Sullivan's testimony discussing the test was not reversible error.
The picture is poor in quality and does little, if anything, to support
Plaintiffs' theory of the case. Moreover, Sullivan's reliance upon the
test in formulating his opinion was very limited; Sullivan based his
elimination of Cricket's smoldering cigarette scenario on two much
more compelling factors. First, he reasoned that if Cricket's theory
that the fire originated from a lit cigarette dropped into the cushions
of the couch by Allen Moore when he fell asleep was correct, the
burns on Moore's back would have been much less extensive. Sec-
ond, and more fundamentally, Sullivan opined that Moore would
never have been able to get off the couch, but would have died there,
if he had been on it from the time that the fire began smoldering.
Therefore, we conclude that the burn test was, at most, only cumula-
tive evidence. Based upon the foregoing, we conclude that any error
did not affect Cricket's substantial rights. Absent reversible error, we
affirm the district court's admission of the challenged evidence.
17
3.
Cricket finally asserts that the weak circumstantial evidence that
Ashley started the fire was insufficient "[i]n view of more compelling
circumstantial and direct evidence that a smoker, kerosene stove or
arsonist caused the fire." (Appellant's Br. at 28-29.) We acknowledge
that there is evidence in this case that suggests alternative explana-
tions for the cause of the fire. Plaintiffs' burden of proof does not
require him to eliminate every possible cause of the fire, however.
Rather, he is merely required to demonstrate that it is reasonably
probable that Ashley ignited the lighter, causing the injuries to the
plaintiffs. We conclude that Plaintiffs presented sufficient evidence to
render it reasonably probable that negligence in the design of the
lighter was a proximate cause of the accident. The question of proxi-
mate cause, therefore, was properly submitted to the jury.
C.
Next, Cricket contends that the district court abused its discretion
when it failed to include an interrogatory on the verdict forms asking
whether the adult plaintiffs' negligent supervision of the child plain-
tiffs was a superseding, intervening act of negligence that relieved
Cricket of liability as to the claims of all plaintiffs. Cf. Grant v. Dis-
trict of Columbia, 597 A.2d 366, 369 (D.C. Ct. App. 1991) (holding
that while the "contributory negligence of a parent may not normally
be imputed to a minor, it is nonetheless possible for a parent's inter-
vening negligence to be the proximate cause of a child's injury"
(internal citations omitted)). "The use of special verdicts rests with the
discretion of the district court." Bristol Steel & Iron Works, Inc. v.
Bethlehem Steel Corp., 41 F.3d 182, 190 (4th Cir. 1994); see also 9
Moore's Federal Practice § 49.11[2][a], at 49-16 (1997) ("Rule 49 is
a rule of discretionary implementation, solely in the control of the
trial judge. No party has a right to the use of a special verdict.").
Although the district court did not submit a special interrogatory to
the jury regarding superseding, intervening acts, the district court
fully informed the jury of the applicable law. The court instructed the
jury as follows:
Now, the defendants also contend as a defense to the negli-
gence cause of action that even if they were negligent,
18
which of course they deny, they contend that the intervening
acts or omissions of the adult plaintiffs relieved them of lia-
bility. The test of whether the intervening acts or omissions
of the adult plaintiffs serve to break the chain of causation
is whether the intervening independent acts or omissions
were reasonably foreseeable by the defendants, or if not rea-
sonably foreseeable, whether the acts or omissions of the
defendants would have caused injury or loss even without
the intervening independent act or omissions over which it
had no control.
If the intervening cause was foreseeable, then the defendants
are not relieved from liability. If the intervening cause was
not foreseeable, then the chain of causation has been broken
and the defendants are relieved from liability for any wrong
which they may have had. Where, however, the concurrent
negligence of two or more persons combines to produce
injury or loss to a third party, the negligence of the one pro-
vides no excuse or defense for the negligence of the other.
The liability is not defeated by the mere fact that the negli-
gence of one preceded that of another in point of time.
(J.A. at 785-86.) Cricket does not challenge this instruction on appeal.
Rather, Cricket maintains only that an additional interrogatory was
necessary to inform the jury that the intervening negligence of the
adult plaintiffs could break the causal chain and relieve Cricket from
liability as to the claims of all plaintiffs, not just the adults. We dis-
agree.
The jury was charged that if it found that the adult plaintiffs' negli-
gence was not foreseeable, then the causal chain would be broken,
and Cricket would be "relieved from liability for any wrong which
they may have had." (J.A. at 786) (emphasis added). This is an accu-
rate and adequate instruction on superseding, intervening causes, see
Small v. Pioneer Machinery, Inc., 450 S.E.2d 609, 616 (S.C. Ct. App.
1994) (holding that a third party's intervening acts of negligence
break the causal chain only if the acts are not foreseeable), and we
must assume that the jury heeded it. It is not an abuse of discretion
not to require the jury to make express findings on every element and
every defense presented. In light of its unchallenged instruction on the
19
applicable law, the district court's decision not to submit an additional
interrogatory as to superseding cause to the jury was well within its
discretion.
D.
Cricket contends that the district court abused its discretion when
it failed to submit a single verdict form to the jury to apportion fault
among all three tortfeasors, i.e., Brock, Moore, and Cricket. Cricket
points to the jury's finding that Brock and Moore were 160% at fault
for the fire (80% each) to support its assertion that the jury may have
found Cricket 0% at fault if given a single verdict form. This argu-
ment is nothing short of absurd. Through some innovative mathemat-
ics, Cricket has attempted to create an "inconsistent result" where
there is none.
The claims of the adult plaintiffs and the claims of the child plain-
tiffs in this case, while consolidated for trial purposes, remained dis-
tinct causes of action. Put simply, the jury's determination of the
negligence of Brock and Moore vis-a-vis Cricket was irrelevant to its
determination of Cricket's negligence vis-a-vis the child plaintiffs. On
the child plaintiffs' verdict form, the jury expressly found that Cricket
was "negligent in the design of the lighter and that this negligence
was a proximate cause of the accident." (J.A. at 171.) As discussed,
supra, the jury obviously rejected Cricket's argument that the adult
plaintiffs' negligence was a superseding, intervening cause absolving
Cricket from liability. Rather, it is clear that the jury, heeding the dis-
trict court's instructions regarding the principles of negligence, super-
seding causes, and joint tortfeasors, concluded that (1) Cricket was at
least one percent at fault, and (2) the negligence of the adult plaintiffs
was foreseeable. We see nothing inconsistent in these conclusions and
the verdict forms as completed. Therefore, the district court did not
abuse its discretion in refusing to submit the requested interrogatory
to the jury.
IV.
Based upon the foregoing, we affirm the district court as to all lia-
bility issues.
AFFIRMED
20