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February 17, 1995


The opinion of the court was delivered by: DENIS R. HURLEY

 HURLEY, District Judge

 Application by Westinghouse Electric Corporation ("Westinghouse") for judgment as a matter of law, pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, or alternatively, for a new trial, is denied. Moreover, the application of Abraham & Straus Corporation ("A & S"), the third-party defendant, for the same relief, is denied. However, A & S's application for a reduction in the amount awarded by the jury for future medical expenses is granted.


 The plaintiffs Grant and Hart, while in the employ of A & S, sustained injuries from an explosion of an electrical switchboard, manufactured by defendant Westinghouse, which powered the escalators within the store.

 The complaint contains causes of action sounding in both negligence and strict tort liability. Plaintiffs maintain Westinghouse was negligent in the manufacture of the product, as well as in failing to provide appropriate warnings concerning dangers associated with the use of the product. Three predicates for liability are embraced within the strict tort liability claims, to wit, defective manufacture, defective design and failure to provide appropriate warnings.

 After a two-week trial, Westinghouse was found liable solely under the plaintiffs' claim of negligent failure to warn. The jury rejected all other theories of liability advanced, including the strict liability claim of failure to warn.

 The jury found that the plaintiff William Grant sustained total *fn1" damages of $ 504,320, with the corresponding figure for plaintiff Thomas Hart being $ 33,248. Fault was apportioned as follows: 20% to Westinghouse, 40% to William Grant and 40% to A & S, the latter entity having been found responsible by the jury to the defendant and third-party plaintiff, Westinghouse, for its failure to properly inspect and maintain the subject equipment. Parenthetically, the claims alleged in the complaint on behalf of Margaret Grant and Margaret Hart were discontinued by their respective counsel at the commencement of trial.

 After the jury returned its verdict, the Court asked counsel to approach the bench. The sidebar colloquy proceeded as follows:

THE COURT: Is there any reason I shouldn't discharge the jury? It seems to me they've done the job and I think the verdict sheet does not suffer from inconsistency.
MR. HOFFMAN: Not any that they can resolve.
THE COURT: Agreed?

 Immediately following the above colloquy, the jury was discharged. Thereafter, the Court asked if any of the attorneys had any motions. In response, Mr. Hoffman made a motion for a judgment as a matter of law on three grounds:

 (1) since the jury found Grant partially at fault, they must have found that he inserted an object into the arc chute. That behavior was unforeseeable by Westinghouse and, accordingly, constituted a superseding cause of the accident;

 (2) the jury's finding of a negligent failure to warn, coupled with its conclusion that Westinghouse was not responsible under a corresponding strict tort liability claim, rendered their verdict inconsistent.

 3) There was no evidence, in any event, to find that Westinghouse was negligent in failing to provide instructions.

 Mr. Schepp, on behalf of the third-party defendant A & S, also moved orally immediately following the discharge of the jury for a judgment as a matter of law. The gravamen of his claim was that the record is devoid of evidence that would permit the jury to legitimately conclude that A & S's alleged failure to have a maintenance program for the equipment was a proximate cause of the occurrence. In that regard, Mr. Schepp noted that neither of the two testifying experts had opined that a proper maintenance program would have prevented the accident. Mr. Schepp also sought the requested relief on the ground that the jury, in having found Grant 40% at fault, necessarily concluded that he had endeavored to remove the arc chute, thereby creating an unforeseeable intervening act that alone caused plaintiffs' injuries.

 In response to the applications by Mr. Hoffman and Mr. Schepp, Ms. Resnick, on behalf of plaintiff Grant, stated: "I think the case law is clear that there can in fact be a negligent failure to warn without a finding of strict liability failure to warn." With respect to the issue of comparative fault, she advanced the view that the jury might have concluded that Grant either should have brought in an outside technician to check the switchbox, or that the problem with the switchbox might have been attributable to his failure, as the chief electrician at A & S, to properly maintain and inspect the equipment that ultimately caused his injury.

 The subsequent written submissions by counsel basically mirror the oral arguments made immediately after the jury was discharged. The only major addition to those arguments was the position urged by Mr. Hoffman in his post-trial memorandum that if, arguendo, Westinghouse was responsible to plaintiffs, then A & S was responsible to Westinghouse pursuant to the claims set forth in the third-party complaint. Moreover, Mr. Schepp, on behalf of A & S, sought a reduction in the amount awarded to plaintiff Grant for future medical expenses.


A. Claimed Inconsistency Between Jury's Verdict Finding a Negligent, but Not a Strict Tort Liability, Failure to Warn

 The standard for determining a motion for judgment as a matter of law is that:

The "evidence must be viewed in the light most favorable to the party against whom the motion was made, and that party must be given the benefit of all reasonable inferences that might have been drawn in his favor from the evidence . . . ."

 Auwood v. Harry Brandt Booking Office, Inc., 850 F.2d 884, 889 (2d Cir. 1988) (citations omitted).

 To find a jury's verdict inconsistent, there must be "no rational, non-speculative way to reconcile two essential jury findings." Witt v. Norfe, Inc., 725 F.2d 1277 (11th Cir. 1984). Accordingly, the Court should approach the record with the goal of trying to harmonize what is claimed to be an inconsistent verdict. Only if reconciliation is not possible should the jury's verdict be aborted and a new trial ordered. Auwood, 850 F.2d at 891.

 The question, of course, is not how the jury fashioned its decision, but rather how it might reasonably have made its decision. That inquiry must be made within the context of both the factual record and the Court's charge. So viewed, may the jury's finding in the present case that Westinghouse was liable for a failure to warn under plaintiffs' negligence theory, but not under their strict products liability claim, be reconciled?

 Initially it should be noted that, as a general proposition, a negligent failure to warn would subsume a strict products liability failure to warn so that the former could not exist without the latter. See, e.g., Fane v. Zimmer, Inc., 927 F.2d 124 (2d Cir. 1991); Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 62, 423 N.Y.S.2d 95, 97 (4th Dep't 1979), aff'd, 52 N.Y.2d 768, 436 N.Y.S.2d 614, 417 N.E.2d 1002 (1980). However, there are variables that may render that rule inapplicable. See. e.g., Randall v. Warnaco, Inc., 677 F.2d 1226, 1232 (8th Cir. 1982) ("We . . . note . . . that the cases discussing the relationship between strict liability and negligence for failure to provide adequate warnings are confusing . . . . In the present case, however, we need not confront the apparent inconsistencies in the application of the two theories of recovery. Here, the jury may have absolved Warnco of liability on the strict liability theory on the basis of product modification without precluding recovery under negligence"); Grzesiak v. General Elec. Co., 68 N.Y.2d 937, 510 N.Y.S.2d 79, 502 N.E.2d 994 (1986) ("Their . . . claim of inconsistency in that . . . failure to warn was an element of both causes of action [viz. negligence and strict products liability] is negated by the charge on strict liability which in its concluding portion stated four elements required to be found before the toaster could be found defective using letters (a), (b), (c) and (d) to separate them but used no disjunctive. Thus, defendants may have been found negligent for failure to warn as to foreseeable use, but not strictly liable because one of the other three elements was not proved."); Barry v. Manglass, 55 N.Y.2d 803, 447 N.Y.S.2d 423, 432 N.E.2d 125 (1981).

 In the present case, a review of the record and the Court's charge discloses the existence of two such variables, and, therefore, the jury's verdict was not inconsistent.

1. The Jury's Point of Reference in Considering the Respective Failure to Warn Claims May Have Been Temporally Different

 In assessing the strict liability claim, the jury was required to focus on the condition of the product at the time it left Westinghouse's hands. With respect to the negligence claim, however, the jury also could have considered evidence of Westinghouse's conduct at a point later in time. Mr. Williams testified that Westinghouse had received reports that some of its machines developed loose wiring. Other testimony indicated that such a condition would, over time, produce overheating and could cause the type of explosion described by the plaintiffs. One triggering factor for such a scenario would be the failure of a switchboard purchaser to maintain the equipment. *fn2" Should that failure be essentially absolute in the sense that the purchaser did not even perform rudimentary, and obviously necessary, maintenance tasks, it would be reasonable to find that the resulting danger could not be ascribed to an inherent defect in Westinghouse's switchboard or its accompanying warnings when it first entered the stream of commerce. *fn3"

 Given the above information, the jury may have concluded that adequate warnings were present when the machine left the Westinghouse factory in the late 1960's on route to A & S, *fn4" but that additional and more visible warnings *fn5" were thereafter required, as loose connections were reported over a period of years as occurring in the field. (See Tr. at 1230, 1231, 1298, 1302.)

 Before leaving the subject of a post-sale "duty to warn" as a possible predicate for the jury's verdict, mention should be made of the fact that the Court sustained an objection by Westinghouse to the following question asked by plaintiff Grant's counsel:

In the time period between 1968 and 1986, are you aware of whether or not Westinghouse sent any type of instructions or manuals to its prior customers, including A & S, to alert them to the fact that there may be loose connections in their systems?

 (Tr. at 1231.)

 Although that question regarding manuals and instructions was not answered, other evidence made the jury aware that: (a) Westinghouse received complaints of loose connections for years after the sale of the A & S unit; (b) at time of the accident, there was no sticker, or other readily visible warning on the exterior of the switchboard indicating the danger associated with improper maintenance, or parenthetically, unskilled efforts to repair the machine *fn6" (Tr. at 1234); and (c) notwithstanding Westinghouse's extensive examinations of the trial witnesses, including its own and those appearing on behalf of the ...

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