Isabelle v. Nissan

USCA1 Opinion [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 99-1337 STEPHEN ISABELLE, Plaintiff, Appellant, v. NISSAN NORTH AMERICA, INC., Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Joseph A. DiClerico, Jr., U.S. District Judge] Before Boudin, Circuit Judge, Bownes, Senior Circuit Judge, and Stahl, Circuit Judge. Brian C. Shaughnessy, with whom Normand & Shaughnessy, P.A. was on brief for appellant. Richard P. Campbell, with whom Lisa DeBrosse Johnson and Campbell Campbell & Edwards PC were on brief for appellee. October 15, 1999 PER CURIAM. This diversity jurisdiction case is on appeal from a grant of summary judgment for the defendants in a products liability case based on an alleged design defect. The district court ruled that under New Hampshire law the plaintiff in a strict liability defective design case must show that the defective product reached the plaintiff without substantial change in its condition. That ruling is the sole issue before us. I. We recite the undisputed facts as stated by the district court: On August 25, 1993, the plaintiff was working as a used car salesman for his employer, Auto City of Manchester, when he drove a 1985 King Cab Nissan pickup truck across a car lot for a customer. He proceeded at a low speed, approximately ten miles an hour. As he stepped on the brake, the seat slid forward freely, pushing the plaintiff forward as well. As a result, his foot pressed hard on the brake, stopping the truck abruptly. This caused him to be thrown forward and backward. He hit his head on a sun visor and suffered lacerations, bruising, and severe injuries to his back, head, neck, and arms, as well as other injuries. After the incident the plaintiff examined the seat. He found that the seat adjuster lever, which locked and released the seat on its track, was caught on a tool pack stored beneath the seat. The plaintiff asserts that the tool pack prevented the seat from locking into place and allowed the seat to slide forward and backward freely. The plaintiff does not know the present location or the present owner of the vehicle, and has not seen the vehicle since the date of the incident. The plaintiff's witnesses, including his expert witness, have not examined the vehicle or any of its component parts. At the time of the incident the vehicle was eight years old with 144,973 miles on its odometer, its exterior was heavily rusted, its interior was filthy, and the seats were in poor condition. The plaintiff does not know whether, as of the time of the incident, the strap that held the tool pack in place, the tool pack itself, the seat adjuster lever, or the seat track, were original parts or in the same or similar condition as when the truck was manufactured and originally sold, or, with the exception of the tool pack, even if they were manufactured or sold by the vehicle manufacturer or its distributor. Moreover, in February 1990, the truck had had an accident on Interstate 93, suffered extensive damage, and was declared "totaled" for insurance purposes. The plaintiff does not know whether the seat track, the seat adjuster lever, or any of the component parts for moving the seat were damaged in the accident or otherwise. We describe the alleged design defect as the plaintiff did in his brief at 6-7. The 1985 Nissan King Cab pickup truck was designed to hold a tool pack which contained the vehicle's tire iron and other accessories under the driver's seat of the vehicle. The tool pack was designed to be held in place by a rubber fastening strap which would hold the tool pack to the mounting frame of the front seat. The mounting frame and tool pack are stationary as are the seat rails which allow for the adjustment of the seat both forward and backward. The front seat, along with the adjustment lever which is attached to the front seat, move forward and backward on the seat rails and allow for adjustment to the desired position by the driver. When the seat is adjusted to its rear-most position, the seat adjustment lever is located directly above the storage area for the tool pack. Plaintiff offered to show, based on his examination of the seating mechanism of the truck, that on the date of the accident a tool pack was located directly under the driver's seat as intended by the manufacturer of the truck. Plaintiff contends that this was a design defect because it allowed the seat adjuster lever on the driver's seat to become stuck on the tool pack and thus prevented the seat from locking into place. The result was that when the plaintiff applied the brakes as the truck was moving forward, the seat suddenly slid forward injuring plaintiff's head and cervical spine. II. Both parties and the district court relied primarily on the New Hampshire case of Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 395 A.2d 843 (1978). In Thibault, the New Hampshire Supreme Court carefully explained the design defect theory of strict products liability. It held specifically: Accordingly, we hold that the trial court should not read RSA 507:7-a (Supp. 1977) in a jury charge on the strict liability count, . . . . The trial court should read or paraphrase Restatement (Second) of Torts 402A(1) and (2) to the jury; the jury should then usually be asked by special verdict if plaintiff's proof has met the requirements of the Restatement. If plaintiff's proof is sufficient, the jury must [then consider defenses]. (Emphasis added.) Id. 118 N.H. at 813, 395 A.2d at 850. The Restatement (Second) of Torts 402A provides in pertinent part: Special Liability of Seller of Product for Physical Harm to User or Consumer (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (Emphasis added.) We agree with the district court that subsection (1)(b) is a requirement of New Hampshire law. The plaintiff spins a complex and lengthy argument that Thibault did not adopt subsection (1)(b) and, if it did, subsequent cases make the holding dubious. We disagree. First of all, Thibault is clearly on point and we have been unable to find any New Hampshire case even arguably to the contrary. Secondly, our own circuit precedent squarely holds that Section 402A in its entirety has been adopted by the Supreme Court of New Hampshire. Raymond v. The Raymond Corp., 938 F.2d 1518, 1520-21 (1st Cir. 1991); Fortier v. Olin Corp., 840 F.2d 98, 99 (1st Cir. 1988). Finally, we consider plaintiff's alternative argument. Plaintiff says that even if subsection (1)(b) applies, a reasonable jury could find it to be satisfied in this case. He argues (based on his expert's proferred judgment) that the dangerous condition created by the manufacturer was to locate the kit under the seat; and he says that his own testimony, albeit based on only a brief look under the seat before the vehicle disappeared for good, would permit a jury to find that this condition pertained "without substantial change" at the time of the accident. Even if "change in condition" were read so narrowly, we do not see how a jury could find causation without more information as to the condition of the truck. There is nothing to show that the pack, strap, seat, track or adjuster lever were original equipment or properly operating or otherwise in good repair. Thus, given the age and prior damage to the truck, it would be sheer speculation for a jury to conclude that it was the alleged defect rather than some intervening change or damage to other parts that led to the accident in this case. Affirmed. Costs awarded to appellee.