USCA1 Opinion

November 10, 1994

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1521
BERNARD KULINGOSKI,
Plaintiff - Appellant,
v.
LIQUID TRANSPORTERS, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
Coffin, Senior Circuit Judge,
____________________
and Keeton,* District Judge.
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_____________________

Edward H. Moquin, with whom Moquin & Daley, P.A. was on

_________________
_____________________
brief for appellant.
Charles J. Dunn, with whom Wadleigh, Starr, Peters, Dunn &
_______________
________________________________
Chiesa was on brief for appellee.
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____________________
____________________
*

Of the District of Massachusetts, sitting by designation.

____________________

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Per Curiam.
Per Curiam
__________

Bernard

Kulingoski brought

a negligence

action

against

Liquid

Transporters,

Inc.,

commercial

transporter, after sustaining injuries from falling off of one of

its

"hopper" trailers.

He

alleges that Liquid Transporters was

negligent in failing to

provide a safe standing surface

from on

Liquid Transporters presented

its trailers.

that Kulingoski's employer, W.R.

to the action,
failure

to

its

for the accident,

employees

to

precautions while loading the trailer.

jury returned a verdict for
appeals,

claiming that

follow

a party

based on
proper

its

safety

A trial was held, and the

Liquid Transporters.

the

a defense

Grace Co., who was not

was responsible

require

to work

district court

Kulingoski now

erred by

admitting

evidence regarding Liquid Transporters' defense that W.R. Grace's

omissions constituted
then

a superseding

cause of the

accident, and

instructing the jury with respect to this defense.

For the

foregoing reasons, we affirm.

I.
I.
A.
A.

Facts
Facts

Liquid

Transporters

tankers in order to
different

locations

located

throughout

trucks,

the United

a contract with

in Nashua,

Liquid Transporters

furnishes

haul products on behalf of

Liquid Transporters had

company

BACKGROUND
BACKGROUND

New

and

manufacturers to

States

and Canada.

W.R. Grace, a

Hampshire,

would haul a dry,

trailers

chemical

pursuant to

which

powdered product produced

by W.R. Grace to a Proctor & Gamble plant in Ontario, Canada.

W.R.

Grace's

security

procedures

required

Liquid

-2-

Transporters

to

chemical powder.

use

the

following

system

to

transport

A Liquid Transporters' employee

the

would drive a

truck-tractor and trailer up to the gate of W.R. Grace, and leave

the trailer at the gate.

When W.R. Grace had completed producing

the chemical powder, one of its employees would take a W.R. Grace
truck-tractor,

hook

it up

trailer, and bring the

area.
W.R.

to

the

trailer to a W.R. Grace

W.R. Grace employees would

Grace employee would then

front gate area.

empty Liquid

Transporters'

loading platform

then load the trailer,

deliver the trailer

and a

back to the

A Liquid Transporters' driver would

then pick

up the trailer and deliver it to Canada.

Kulingoski worked
for loading the trailer

for W.R. Grace,

and was responsible

with the chemical powder.

ordinary

procedure for loading this

employee

to stand on the loading area platform and push a button

which
on

the

type of trailer

W.R. Grace's

was for an

lowers a chute down into each of several portholes located

top of

the trailer.

walkway along the side of the

The

trailer

is designed

with a

top which is used when an employee

loading the trailer needs to adjust

the chute.

On September 15,

1990, the night of the

previously
powder
the

been

accident, due to the way the

loaded, Kulingoski

had

into the trailer's portholes.

trailer's

front

edge

and

to

trailer had

rake the

chemical

While he was standing near

raking

the

chemical

powder,

Kulingoski fell off the trailer and was injured.

B.
B.

Proceedings Below
Proceedings Below

Kulingoski

originally

brought

this

action

in

New

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Hampshire state court, and Liquid Transporters removed the action

to
the

federal court on the basis of diversity jurisdiction.

course

of

the

Transporters was
pierced

trial,

negligent, based

steel leveled surface on

would prevent

W.R. Grace's

that

the top of

appropriate

safety procedures

superseding

cause

when

Kulingoski's

slipping while

its employees

loading the
accident.

the trailer, which

the hazard of

require

Liquid

failure to provide

Liquid Transporters asserted

failure to

of

contended

on its

skidding and reduce

working on the trailer.

that

Kulingoski

During

a defense

to follow

trailer was
Throughout

the

trial, Kulingoski
the

opposed this

facts of this case,

defense, claiming that

the defense was

based on

not legally cognizable

under New Hampshire law.

Specifically, Kulingoski filed a motion

in limine to exclude all

__ ______

evidence regarding W.R. Grace's

safety harness system.

Kulingoski also objected to the

decision to instruct the

The

jury on the superseding

unused

court's

cause defense.

court denied the motion in limine and overruled Kulingoski's

__ ______

objections

to its jury instructions.

Following a two day trial,

the jury returned a verdict for Liquid Transporters.

Kulingoski

now appeals.
II.
II.
A.
A.

The Jury Instructions

The Jury Instructions

A party
controlling

ANALYSIS
ANALYSIS

is

issues,

entitled to
which

have

its legal

are supported

evidence, presented to the jury.

Wayne B. Roman Yacht Brokerage,
________________________________
-4-

by

the

theories
law

on

and the

See Jerlyn Yacht Sales, Inc. v.

___ ________________________
950 F.2d

60, 68-69

(1st Cir.

1991).

When

reviewing the adequacy

of jury

instructions, the

question is whether the trial judge gave adequate instructions on

each element of the case to insure that the jury fully understood
the

issues, or

whether the

mislead the jury.

Cir. 1992);

See
___

instructions tended

891 F.2d 976, 987

see, e.g., Jerlyn Yacht Sales, 950 F.2d at 69.

___ ____ __________________

review of

will warrant reversal

the record as a

prejudicial.

confuse or

Davet v. Maccarone, 973 F.2d 22,

_____
_________

Shane v. Shane,
_____
_____

instructions

to

26 (1st

(1st Cir. 1989);

An error

of a judgment

whole, the error is

in jury

only if, upon

determined to be

Davet, 973 F.2d at 26; Transnational Corp. v. Rodio

_____
___________________
_____

& Ursillo, Ltd., 920 F.2d 1066, 1070 (1st Cir. 1990).
_______________
The
cause was

court's instruction

supported both

facts of the case.

a

by the

duty

(1st Cir.

no

Bellotte v.
________

1976) (citing

superseding

the

superseding cause of
be found to

have a

Zayre Corp., 531 F.2d 1100, 1102

___________

Morin v. Manchester Housing Authority,

_____
_____________________________

see Reid v. Spadone Machine Co.,

___ ____
___________________

1094, 1098-99 (N.H. 1979).

legal reason which prevents

third person's

on

New Hampshire and

not reasonably

195 A.2d 243, 245 (N.H. 1963));

404 A.2d

law of

liability by a

which he could

to foresee."

the jury

"New Hampshire law follows the principle that

defendant is relieved of

the accident

to

negligence was

In the usual case, there is

a defendant from
the sole

arguing that a

proximate cause of

the

plaintiff's injury.

See Reid, 404 A.2d at 1099 (citing Murray v.

___ ____
______

Bullard Co., 265 A.2d 309, 312 (N.H. 1970)).

___________

The availability of

the defense depends on the "reasonable" foreseeability of the act

of the

third party.

Reid, 404
____

A.2d at 1099.

Absent

special

-5-

circumstances,
wrongful

a defendant

conduct of

is

not expected

others.

See
___

to anticipate

Morin,
_____

195

A.2d

at

Additionally, where after a defendant commits a negligent

duty

failure

and

this

person

fails to

may be superseding cause

generally Restatement (Second)

_________
at 312

(finding

employer's failure
cause

245.

act, a

then devolves on another person in reference to such act or

condition,

A.2d

the

which

that

perform

of any resulting

of Torts
charge

to properly

his

to

injury.

See
___

452; cf. Murray,

__ ______

265

jury

with

adjust machine as

defendant manufacturer

could

duty, such

not

respect

to

a superseding

have reasonably

foreseen, was appropriate under New Hampshire law).

Liquid Transporters introduced

support

a superseding

cause

defense.

sufficient evidence

to

Evidence introduced

at

trial permitted the jury to reasonably conclude that Kulingoski's

employer,

W.R. Grace, failed to

safety harness while loading

this

accident.

James

require its employees

trailers, like the one

to use a

involved in

A "Health and Safety Coordinator" at W.R. Grace,

Todd, testified

that there

was safety

available

in the loading dock

accident,

but that W.R. Grace failed to require its employees to

use

this safety equipment.

that the accident was

observe

"safety

Kulingoski

W.R.

time of Kulingoski's

Grace's accident report stated

caused by Kulingoski's failure to

appliance

himself

area at the

harness equipment

or

testified that

regulation."
an improved

use and

Additionally,

harness system,

that W.R. Grace introduced after his accident, made it "safe" for
him to work on the trailer.
-6-

The
could

not

require its

evidence also

have

reasonably

indicated that
foreseen W.R.

employees to follow adequate

Liquid Transporters
Grace's

failure

to

safety procedures when

loading

trailers.

W.R. Grace

required Liquid

leave its trailers outside of its plant,

Transporters to

and Liquid Transporters

had no opportunity to witness W.R. Grace employees loading Liquid

Transporters' trailers.
On
challenging

appeal,
Liquid

First,

he argues

system

was not

harness

makes

Transporters'
that the

cause of

the

specific arguments
cause

an adequate

incident, and

defense.

safety harness
therefore

intervening cause if

"the

it is not

Kulingoski's contention misconstrues the nature

Liquid Transporters' defense,

superseding

two

superseding

lack of

cannot be a superseding

first a cause."
of

Kulingoski

cause.

as well

First, Liquid

as the

law regarding

Transporters does

not argue

that the absence of the harness itself was a superseding cause of

the accident.

Rather, it

argues that W.R.

Grace's failure

to

require that Kulingoski wear a safety harness was the superseding

cause of

Kulingoski's accident.

Second, the

superseding cause

defense presumes that the defendant was originally negligent, but

that

some

unforeseeable

supersede the
then

deemed

injury.

defendant's negligence.
to

be

the superceding

act

later

operates

This intervening
cause

of

to

act is

the plaintiff's

See, e.g., Bellotte, 531 F.2d at 1102; Reid, 404 A.2d at

___ ____ ________
____

1098-99; Morin, 195 A.2d

_____
of Torts

intervening

at 245.

440.
-7-

See also
________

Restatement (Second)

Kulingoski

also claims

regarding superseding cause

understand

them.

statements

in

confusing.
because

Rather,

the

jury

court's instructions

were confusing and the

Kulingoski

the jury

that the

does

instructions

he bases
returned

not

point

which

this assertion
a

verdict

jury did not

in

to

specific

were erroneous
on the
favor

or

fact that
of

Liquid

Transporters very quickly, this indicates that the jury must have

been confused about the issue of superseding cause, and therefore

the court's instructions were erroneous.

We find this contention

entirely

the actual

meritless.

We

have reviewed

given to the jury, and believe that

of

New Hampshire

simply

no

law

basis for

confused.1

it was an accurate statement

regarding superseding
Kulingoski's

Rather, Kulingoski's

instruction

cause.

argument that

the

There

is

jury was

contention appears to simply be

a reflection of his disbelief that the jury found against him.

B.
B.

The Admission of Evidence

The Admission of Evidence

Kulingoski
admitting
rests
provide

also

evidence regarding

claims
the

that

the

court

safety harness.

erred

by

Kulingoski

this contention on his belief that W.R. Grace's failure to

a safety harness could not have been a superseding cause

of the accident based on the law of New Hampshire.

The admission

and exclusion

of evidence

is primarily

____________________

1
We also believe that the jury was perfectly capable of
understanding
that New Hampshire
has a no-fault workers'
compensation system, and that because W.R. Grace had paid
Kulingoski workers' compensation benefits, it was not admitting
fault which then relieved Liquid Transporters of liability.
-8-

committed

to

the

determination
of

the

of

Doty
____

v. Sewall, 908
______

Evidence is "relevant"

existence

of

any

fact

determination of the action

probative

trial

court,

admissible,
value is

F.2d 1053,

if it has
that

and

this

is

of

1058 (1st Cir.

"any tendency to make

consequence

to

more probable or less probable

it would be without the evidence."

evidence is

the

will not be disturbed absent a showing of an abuse

discretion.

1990).

discretion

Fed. R. Evid.

although it

substantially

"may

401.

be excluded

outweighed by

the

than

Relevant
if

the danger

its

of

unfair prejudice, confusion of the issues, or misleading the jury

. . . ."

Fed. R. Evid. 403.

As

noted

above,

Liquid

Transporters'

defense

of

superseding
Given

cause was

that

this

Transporters was
this

defense.

supported by

defense

was

the law
legally

of

cognizable,

entitled to introduce evidence

Evidence

regarding the

equipment and the effectiveness

New Hampshire.

Liquid

which supported

availability of

safety

of such safety equipment, tended

to show that W.R. Grace's failure to require its employees to use

such safety equipment was
constituted

negligence, which therefore could have

superseding

cause

of

Kulingoski's

accident.

Kulingoski has failed to point to any reasonable danger of unfair

prejudice

or

evidence, and
Fed.

R. Evid.

excluding the

confusion, which
which would
403.

was

by admitting

justify excluding the

Moreover, we

evidence.

produced

fail to

Therefore, the

the

evidence under

see any

reason for

court properly admitted

the evidence.
-9-

For the foregoing reasons, we affirm.

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