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03/04/88 Eugene A. Cotton, v. Buckeye Gas Products

March 4, 1988

EUGENE A. COTTON, APPELLANT

v.

BUCKEYE GAS PRODUCTS COMPANY 1988.CDC.90 DATE DECIDED: MARCH 4, 1988



Ruth B. Ginsburg, Bork*, and Williams, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal form the United States District Court for the District of Columbia, Civil Action No. 85-02228.

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WILLIAMS

Plaintiff Eugene A. Cotton seeks damages for injuries that he suffered when propane gas supplied by defendant Buckeye Gas Products Company burst into flames. He contends that Buckeye failed to warn him of the dangers of its product. The jury delivered a verdict for Cotton. The district court granted judgment notwithstanding the verdict on the ground that Cotton's injuries were not proximately caused by defendant's conduct. Having reviewed all the evidence in the light most favorable to Cotton, we uphold the district court's judgment n.o.v. In our view, reasonable jurors could find neither that Buckeye breached a duty to warn nor that Cotton's injuries were proximately caused by any inadequacy in defendant's warnings. I. BACKGROUND

On the night of January 27, 1985 Cotton, an employee of Miller & Long, a concrete construction company, was performing heater watch duty at a building under construction on Leesburg Pike in Tysons Corner, Virginia. This task consists of monitoring propane-fueled portable heaters used to cure concrete in frigid weather and changing propane-filled cylinders as they run low on gas. The propane cylinders used on the night of January 27 were supplied by Buckeye. The areas in which the heaters and cylinders were contained were wrapped, ceiling to floor, with heavy polyethylene curtains in order to contain the heat. When Cotton and his co-worker removed used cylinders from heaters they stored them on the same floor where they had been in use. This inside storage followed Miller & Long's established weekend practice (January 27 was a Sunday). The practice was in flat disregard of the instructions in a National LP Gas Association pamphlet ("NLPGA pamphlet") that Buckeye delivered to its customers as a routine matter, Tr. at 98-99, 101, specifying that cylinders not in use should be stored "outside at ground level." Appendix to Appellant's Brief ("App.") 7. (On weekdays Miller & Long followed the pamphlet's storage directions.)

Although Cotton's superiors at Miller & Long instructed him to close the valves on the cylinders when changing or moving them, he did not do so on the night involved. Fire investigators at the scene of the accident found the valves wide open on 35 used but not empty propane cylinders. Tr. at 670-71, 696; Appellee's Appendix at 3. Gas escaping from these cylinders ignited; the resulting flames severely burned Cotton. Tr. at 361-64. The Fairfax County Fire Marshall's Office investigated the fire and concluded that it would not have happened if the valves had been closed. Tr. at 684-85; see also Appellee's Appendix at 10. II. STANDARD OF REVIEW, SUFFICIENCY OF EVIDENCE AND CHOICE OF LAW

Just below the surface of this case are vexing problems of choice of law, none of which has been briefed by the parties. We believe that in practice similarity in law between the relevant jurisdictions makes it unnecessary to address them.

First is the relation between this court and the federal trial court whose judgment is under review. We recently stated that the question we must ask on appeal is "the same question that the district court asked initially in considering the motion [for judgment n.o.v.]." McNeal v. Hi-Lo Powered Scaffolding, Inc., 836 F.2d 637, 640 (D.C. Cir. 1988). Thus we make an independent review of the record, without deference to the trial court. Id. The assumption in McNeal, also a diversity case, was that our (federal) rule controlled, and, no claim to the contrary having been made, we follow that assumption.

The second issue is the standard to be applied by the trial court (and ourselves) in measuring the sufficiency of the evidence. It would appear that the "strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal courts," relied on in Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 538, 2 L. Ed. 2d 953, 78 S. Ct. 893 (1958), would militate strongly toward choice of the federal rule. Surprisingly, there is a sharp split in the circuits on the issue. Compare, e.g., Wratchford v. S.J. Groves & Sons Co., 405 F.2d 1061, 1065-66 (4th Cir. 1969) (federal), with Kuziw v. Lake Engineering Co., 586 F.2d 33 (7th Cir. 1978) (state); and see 19 C. Wright & A. Miller & E. Cooper, Federal Practice & Procedure § 2525 n.69 (1971 & Supp. 1987). Of course, if local law controlled here, the further issue would arise under Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941), whether the District of Columbia would apply its own standard or that of the source of substantive law, here assumed by all parties to be Virginia.

So far as we can determine, however, the choice is of no moment here: all three possible jurisdictions appear to apply the same standard. As we said in McNeal, the jury's verdict must stand unless "the evidence, together with all inferences that can reasonably be drawn therefrom is so one-sided that reasonable men could not disagree on the verdict." Slip Op. at 7 (quoting Carter v. Duncan-Huggins, Ltd., 234 U.S. App. D.C. 126, 727 F.2d 1225, 1227 (D.C. Cir. 1984) (other citations omitted)). To the same effect are District of Columbia v. Cassidy, 465 A.2d 395, 397 (D.C. 1983) (District of Columbia rule); Adams v. Allen, 202 Va. 941, 121 S.E.2d 364, 368 (Va. 1961) (Virginia rule).

Finally, of course, is the matter of substantive law. The parties agree that Virginia's controls. In the absence of any contest we have no reason -- if indeed we had the power -- to consider alternatives.

The sort of fact-specific inquiry on which we must embark takes place in a sort of twilight zone between the substantive rule and and sufficiency-of-the-evidence standard. It is virtually impossible for courts to state precisely where one leaves off and the other begins. As Virginia's substantive law controls and its sufficiency standard is the same as that of our circuit and the District of Columbia, clearly Virginia cases testing sufficiency in the failure-to-warn context are the best source of authority. III. DUTY TO WARN

Virginia has routinely applied the Restatement (Second) of Torts § 388 (1965) to govern a supplier's duty to warn about dangers associated with the use of its product. See Featherall v. Firestone Tire & Rubber Co., 219 Va. 949, 252 S.E.2d 358, 366 (Va. 1979). ...


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