Understanding Strict Products Liability: Back To The Future
Written by Steven Silin, Retired
Products liability law has become increasingly complex and, in its evolution, the protections created for consumers of unsafe products are being eroded. The complexity in such cases is unnecessary and can be avoided. The issues involved may be clarified simply by having and maintaining a clear focus on first, the purposes for products liability, second, what type of product “defect” is involved and how that case fits into the products liability framework, and third, what issues are raised by the type of case and which, sometimes more importantly, are not. By better understanding the nature of the claim and the potential defenses that apply to it, a trial attorney can crystalize the relevant issues for a judge, simplify such a case for a jury, reconcile the claim with the purposes for the doctrine and, most importantly, better serve her client.
ORIGINS AND PURPOSE OF A PRODUCTS LIABILITY CLAIM
Tort law, as a general category covering liability imposed for non-contractual loss, damage or personal injury, did not exist prior to the nineteenth century.1
The development of modern tools and machines, and especially the building of the railroads in the early part of the nineteenth century, propelled the legal profession and the courts to find a cause of action to compensate for the physical, emotional and financial toll these innovations took on the lives of ordinary people.
Just as quickly as the negligence action evolved to provide recovery in “tort” for injuries caused by defects in modern technology, the doctrines of contributory negligence and proximate cause, and such barriers to recovery as the fellow-servant rule and assumption of the risk, were raised to limit the ability to obtain compensation for industrial accidents. The personal fault of the injured person became the barometer for, and usually the bar to, recovery. As the viability of the negligence action was increasingly restricted, other means for seeking equitable redress were sought. Courts began to impose liability without regard to fault in cases involving manufacturing defects in food and drugs, drawing upon the common law concept of warranty, in which fault had never been a prerequisite to liability. Since warranty was in essence a contract theory though, lack of privity remained a barrier to many of these claims.
Changes began when Justice Cardozo, in McPherson v. Buick Motor Co.,2 rationalized that when a manufacturer places a dangerous instrumentality into the stream of commerce it might be held liable for its negligence to the ultimate consumer, notwithstanding the lack of privity between them, where the damage and the user were both forseeable. And finally, in 1962 the California Supreme Court played a pioneering role, in Greenman v. Yuba Power Products, Inc.,3 when it decided to impose “strict liability”, or liability in tort without regard to fault or privity, on the manufacturer of a defective product. In less than ten years, the concept had been widely adopted around the country, either by courts, or by legislatures enacting versions of the rule codified by the American Law Institute at section 402A of the Restatement (Second) of Torts.4
Maine followed suit in 1973.5 Title 14, section 221, of the Maine Statutes codifies (with minor changes) section 402A of the Restatement (Second) of Torts, and provides in full:
One who sells any goods or products 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 a person whom the manufacturer, seller or supplier might reasonably have expected to use, consume or be affected by the goods, or to his property, if the seller is engaged in the business of selling such a product and it is expected to and does reach the user or consumer without significant change in the condition in which it is sold. This section applies although the seller has exercised all possible care in the preparation and sale of his product and the user or consumer has not bought the product from or entered into any contractual relation with the seller.
As the Law Court explained in Adams v. Buffalo Forge,6 the rationale for the doctrine of strict liability is that the defendant, as a business enterprise, is in a better position to shoulder the monetary loss resulting from its actions, and that “as a matter of social adjustment, the conclusion is that the responsibility should be so placed.”7 A corollary to the policy decision that business enterprises are better able to assume the risks and burdens of placing unreasonably dangerous products in commerce, is that strict products liability was developed to focus “on the product rather than the conduct of the manufacturer.” Thus, the manufacturer is supposed to be held to a standard of knowledge available to the entire business community, and therefore its own personal situation or fault is irrelevant in the calculus of liability.8
The concept of strict products liability borrows from both negligence and warranty law and is not fully in either camp.9 A product is deemed to be unreasonably dangerous if it contains any manufacturing defect, whereas whether its design or lack of warnings or instructions render a product “unreasonably dangerous”, and thus defective, involves a more fact-specific inquiry. Keeping the functional distinctions between this and the other forms of action and the purposes which gave rise to those distinctions in mind, however, helps not only in framing the issues that arise under the doctrine, but also in clarifying for judge and jury the distinctions between products liability claims and liability that might be imposed under other theories of law.
DISTINGUISHING AND UNDERSTANDING THE TYPES OF STRICT LIABILITY CLAIMS
1. THERE ARE SOME ELEMENTS COMMON TO ALL STRICT PRODUCTS LIABILITY CLAIMS.
First and foremost, a products liability claim must involve a product. The product may be tangible or intangible, personal or real, raw or processed, but in every instance it is for the court to decide, as a matter of law, whether a “product” is involved.10 For example, in Maine, the flow of electricity, at least prior to its entry into a consumer’s house, is not a “product”.11 The provision of insurance advice is a service, not a product.12 Just because services may be rendered in conjunction with the distribution of a product does not, however, without more, provide a manufacturer with absolute protection.13
Most real estate is not considered a “product”, but some courts have held the sale of prefabricated or mass-produced buildings or buildings containing a number of incorporated appliances or other manufactured equipment constitute the sale of products.14 Maine looks to what the consumer purchased, as opposed to what the defendant might have thought he was selling, in making this determination.15
Second, harm for personal injury or damage to property other than the defective product is a prerequisite to recovery. The statute provides for recovery “for physical harm thereby caused to a person whom the manufacturer, seller or supplier might reasonably have expected to use, consume or be affected by the goods, or to his property …”16 Most jurisdictions subscribe to the view that in tort generally, recovery is permitted for personal injuries and physical damage to property “other than the defective product.”17 Again, this follows from the underlying policy consideration that “manufacturers, sellers and suppliers have a duty not to place defective, unreasonably dangerous products into the stream of commerce and that those who do so should be held responsible for injuries which thereafter occur as a result.”18 But where only the product or good itself is damaged, the same rationale does not obtain and, therefore, the remedy is not available.19 In Oceanside at Pine Point v. Peachtree Doors, Inc., Maine adopted this rule, known as the economic loss doctrine.20 Economic loss has been defined as “‘damages for inadequate value, costs of repair and replacement of defective product, or consequent loss of profits–without any claim of personal injury or damage to other property.’”21 Where damage is suffered only to the unreasonably dangerous product itself, it is likely that the only remedy would lie in warranty.
2. CLARIFYING THE SPECIFIC TYPE OF CLAIM AT ISSUE IS IMPORTANT.
The original focus of products liability law was on manufacturing defects, or flaws in a single product that rendered it, in the open market, unreasonably dangerous to the expected user. The products were defective because they departed from the product’s intended design and that flaw had the potential for posing risk of harm to persons or property. Courts reasoned that liability should be imposed upon the seller or manufacturer of such products, notwithstanding the care taken in the manufacturing process, because, as in warranty law, fault was not an issue if the product was not merchantable or fit for the purpose for which it was marketed, and, given the extent of harm that could result, the risk of loss was better placed on the persons putting the defective product into commerce.22
Very soon after the adoption of the products liability doctrine, practitioners began to bring, and courts began to recognize, claims for strict liability based on design defects or on inadequate instructions or warnings. Such claims differed from traditional products liability actions in that unlike the traditional action where one product was defective because it did not conform to the manufacturer’s specifications, in a design defect or warnings case, every product manufactured in the line is potentially defective. The theory behind such a claim is that although the specific product may conform to the manufacturer’s specifications, the intended design itself, or the lack of instructions or warnings, renders the product not reasonably safe.
In contrast to manufacturing defects, then, claims alleging design defects and defects based on inadequate warnings or instructions are based on a different concept of responsibility than that involved in manufacturing defect cases. Individual products may be considered unreasonably dangerous without more when they contain an inherent structural defect with the potential to cause harm. In imposing strict liability on manufacturers and others in a product’s stream of commerce for design defects and for failures to provide adequate warnings or instructions, however, a different balancing is taking place, a balancing that necessarily involves consideration of the judgments made by both the commercial entity and the ultimate user. In other words, as the Law Court has recognized, cases involving design defects and defects based on inadequate warnings or instructions, seek to achieve some of the same general objectives as negligence liability. To that end, courts have decided judgment factors, such as the reasonableness of the designs or warnings proposed by the injured party, the forseeability of the use to which the product was to be put, and a defense of comparative fault, may be appropriate considerations before no-fault liability grounded in policy is imposed on manufacturers and suppliers in cases alleging design defects and inadequate warnings.
Maine has recognized all three types of products liability cases.23 Thus, design defect and warning and instructions claims may still be brought under the doctrinal heading of “strict products liability”. Certainly these claims have important features in common with traditional manufacturing defect cases, but they also have features distinct from such claims, including different standards of liability, and defenses not theoretically applicable to traditional manufacturing claims.24 Many of the evidentiary issues that arise under these different liability standards and many of the questions concerning what defenses are appropriate to the specific type of claim have not, however, been decided in Maine. Concise clarification of the type of claim, and following from that, identification of the appropriate evidence to prove liability and the defenses allowable to such proof, is important to the proper trial of a case and the preservation of the policy goals of the products liability doctrine.
a. Manufacturing defects.
As stated above, manufacturing defects form the most traditional type of products liability case. Ordinarily, such a defect constitutes a departure from the manufacturer’s own specifications so that once the plaintiff establishes that a defect existed, that it caused his injury, and that the defect substantially existed at the time the product left the hands of the manufacturer (or the given seller in the distributive chain), liability should be imposed without any need to prove more.25 This rule of liability satisfies the doctrine’s original purpose to create safety initiatives, by encouraging greater investment in product safety and discouraging the consumption of defective products.26
The defense of “comparative negligence” (in the form adopted for use in strict liability cases, see discussion below) and various other “risk/utility” arguments (such as whether the defect was “open and obvious”) have no bearing on liability for manufacturing defects, for which liability is imposed absolutely without regard to fault. A consumer has a right to expect a defect-free product, thus his failure to “discover” such defects is irrelevant.27
b. Design defects.
In contrast to products containing manufacturing defects, a product may conform fully to its specified design but the design itself may render the product not reasonably safe. Courts have developed two distinct tests for assessing design defect claims: the “consumer expectation test” and the “danger-utility” test. The Law Court has adopted the “danger-utility” test.28 In essence, this test directs the factfinder to weigh the danger-in-fact of a particular designed feature of a product against its utility. A product is said to be defective in the kind of way that makes it “unreasonably dangerous” if a reasonable person would conclude that the danger-in-fact, whether foreseeable or not, outweighs the utility of the product.29
Any one of three types of proof will support this conclusion: (1) the harmful consequences from intended and reasonably foreseeable uses resulting from the way the product was designed and marketed up to the time of plaintiff’s injury outweigh the benefits in terms of human wants and needs served by the product; (2) although the harmful consequences in fact do not exceed the benefits, alternative products are available to serve the same needs or desires with less risk of harm; or (3) although the harmful consequences do not outweigh the benefits, there was a feasible way to design the product with less harmful consequences.30
Although, as noted above, this test of liability reflects negligence concepts, one important distinction inherent in a strict liability action is that policy considerations compel review of a supplier’s alternative choices no matter what choices the plaintiff might have made in his use of the product. For example, the “obviousness” of the design defect may be relevant to the issue of product defectiveness, but that factor alone does not necessarily preclude a plaintiff from establishing that a reasonable alterative design should have been adopted. “An alternative design that was not utilized is to be considered as feasible when a reasonable person would conclude that the (1) magnitude of the danger-in-fact that could have been avoided by such alternative design and the (2) utilization of the scientific technological know-how reasonably available to the defendant outweighed the (1) financial costs of guarding against such avoidable danger, (2) the impairment of the benefits, and (3) any new danger-in-fact that would have been created by the alternative design,”31
c. Instructions and warnings.
A product may also be rendered not reasonably safe due to inadequate instructions and warnings. In Lorfano v. DuraStone Steps, Inc32, the Law Court specifically adopted comment j. to section 402A, entitled “Directions or Warning”, which states in relevant part: “In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use.”
Much, if not most, of the caselaw on this third basis for imposing strict liability has arisen from claims that a lack of warnings caused a product to be “defective” and thus “unreasonably dangerous”, rather than that the product lacked directions. Many of the issues in the reported cases turn only on whether sufficient warnings about specific hazards were provided.33 However, warnings and instructions are not the same, and a seller may be required to provide them both.34 To be adequate, a warning must be understandable, provide instructions for safe use and describe the potential hazards that might occur if the instructions are not followed.35 Thus, when Maine cases speak about “warnings”, that term may encompass more than mere notice of potential hazards and also may cover “directions for use”.36
A manufacturer is required to warn of dangers about which it knew or should have known. The Law Court has stated that the analysis for purposes of negligence law and strict liability law are “basically the same…. [T]he supplier of a product is liable to expected users for harm that results from foreseeable uses of the product if the supplier has reason to know that the product is dangerous and fails to exercise reasonable care to so inform the user”.37
There is, however, a difference in focus between the two theories of liability: “Under negligence, one determines whether the manufacturer acted reasonably in selling the product with whatever warnings accompanied it; under strict liability, one determines whether the product was defective in light of the warnings that accompanied it.” 38
In a strict products liability case then, a manufacturer’s subjective knowledge ought to be irrelevant. “A manufacturer is held to the knowledge and skill of an expert, and is required to test his products and keep abreast of scientific discoveries related to his products….”. 39 In Bernier v. Raymark Industries, the Law Court specifically prescribed this duty, stating: “Given the scientific, technological, and other information available when the product was distributed, did the manufacturer know or should he have known of the danger”; that is, was the relevant information about the danger “knowable”?40 As part of the duty to “keep abreast of scientific discoveries” a manufacturer is therefore required to exercise reasonable care to discover dangers that are relevant to whether it should have known of the risk.41
When no warning, or when an inadequate warning, is given, the manufacturer or supplier may be regarded as having breached a duty by placing an unreasonably dangerous product into commerce. A plaintiff; however, must still establish causation. In failure to warn cases, in addition to showing the defective product caused the injury (was the “injury in fact”), a plaintiff must also prove a proper warning would have substantially prevented it (“proximate” cause). Given the difficulty of this latter burden, some courts have employed the so-called “heeding presumption”, which allows the factfinder to presume that the product user would have “heeded” or followed a warning, had the manufacturer given one.42 “This rebuttable presumption shifts the plaintiff’s burden on causation- which otherwise would involve proving the speculative- and allows the trial court to instruct the jury that, had an adequate warning been given, a reasonable consumer or user would have read and heeded the warning.” Further, in the absence of any countervailing evidence, “a trial judge need not submit the issue of proximate cause from the absence of a warning to the jury but may determine as a matter of law that the warning would have been heeded.”43 The presumption, although not yet adopted by the Maine courts, is grounded in the specific language of comment j of Section 402A of the Restatement (Second) of Torts and the policies underlying it, a comment which, as noted above, has been adopted in Maine.44
The temporal limits of the duty to warn have not been finally resolved in Maine. To date, the Law Court has not addressed the issue of liability for post-sale conduct (the so-called “post-sale duty to warn”) where unreasonably dangerous goods are involved. The federal district court in Maine has considered the issue and declined to find that such liability exists for claims arising under the statutory cause of action for strict products liability, although it did find such a duty exists in associated negligence claims_ In the case of Davies v. Datapoint,45 Magistrate fudge Cohen predicted that the Law Court would adopt only a negligence-based post-sale duty to warn, requiring a manufacturer to take reasonable steps to warn foreseeable users about dangers of which it learns, or of which it should learn in the exercise of reasonable care, associated with the foreseeable use of its products, after they are manufactured and sold.46 The majority of jurisdictions have imposed this post-sale duty in strict liability actions as well,47 and plaintiffs’ lawyers should continue to advocate this position in cases before Maine courts.
1. LIABLE PARTIES.
The rule of strict products liability applies not only to sales transactions but also to other forms of product distribution that are the functional equivalent of sales. Manufacturers, wholesalers, suppliers, retailers and any other entity in the commercial distribution chain are potentially liable parties.
In addition to doing away with the requirement of fault, the strict liability action makes proof of privity unnecessary. Thus, any participant in the process by which a product enters the commercial stream, who might have reasonably expected an injured user to use, consume or be affected by the goods sold, may be held responsible for an injury to a consumer caused by that product.48
The doctrine of strict liability does require that a modicum of commerciality be involved in the manner in which the product reached the consumers.49 Since no underlying policy concerns are implicated, neither products liability actions nor warranty suits are available against mere occasional sellers or distributors such as persons who hold yard sales or sell their cars privately; however, if seller or distributor appears to be a specialist in dealing with the product at issue, a question of fact may be generated on how “casual” a seller a person is.50
Promoters of product sales and “giveaways” are not removed from the rule merely because no money changes hands. Courts have held that when a businessperson provides a product for use or consumption or as a preliminary step leading to such use or consumption, the “functional equivalent” of a sale occurs. Thus, for example, lessors,51 bailors and promotors are all subject to liability for placing products into the market.
Where product components are integrated into one product which causes harm, one or more of the component manufacturers, together with the distributors, may be liable under differing theories of strict products liability and negligence. Component manufacturers, assemblers,52 distributors53, successors and all others in the distribution chain54 may be subject to strict products liability.
Courts have drawn distinctions between situations where one manufacturer produces a sound product which is compatible for use with a product of another manufacturer, whether that product is defective or not (such as tires for trucks), and situations where “the combination of” one sound product with another sound product creates a dangerous condition about which the manufacturer of each product has a duty to warn”.55
Where two or more parties collaborate and where each substantially contributes to the final design, each may be considered a designer of the final product and each can be liable for design defects or a failure to adequately warn of the potentially dangerous propensities of its products.56 Even where a component is not defective, if the component manufacturer did not provide adequate instructions or warnings for integration into the final product, that entity may be liable on a theory different from that pursued against others (for example, for a manufacturing defect in assembly) in the distributioin chain. Moreover, as discussed below, the fact that a product has been modified does not absolutely insulate sellers and distributors in the commercial chain.
Whether a practitioner should join all the parties conceivably liable is a different issue. Considerations based on the type(s) of product defects at issue, as well as non-case specific concerns must be evaluated. For example, a “non-manufacturing supplier” may be “nothing more than a conduit” between a manufacturer and customer, or it may do something more. As to the former, the “retailer ordinarily has no duty in negligence to discover the defects or damages of a particular product.”57 This situation is, for example, that normally raised by cases involving a “closed container”, as when a retailer buys from a wholesaler a product in a “closed container,” puts it on the shelf; and resells it. That retailer may be liable only in strict liability, since under a negligence theory it is excused from opening the container to inspect the product and discover the defects. The presence of the retailer may or may not add anything to the case, except more lawyers, especially where the retailer may evoke only jury sympathy, such as a “Mom and Pop” grocery. There may, of course, be situations where the economic situations of the respective defendants compel the joinder of as many as possible to secure an adequate recovery for your client. But when the seller undertakes to perform “functions other than the mere sale of the product — for example, preparation, installation, packaging, servicing, repair, etc. — he has a duty to test and inspect, and may be held liable for failure to do so ….”58 In such a case, grounds for a negligence claim may exist. “[T]hose additional acts may impose a higher standard of care upon the supplier [citations omitted]” and give rise to an additional, unique, claim for liability in negligence.59
2. PLEADING OTHER THEORIES FOR RELIEF.
Most practitioners reflexively join their statutory strict liability claim with common law counts of negligence and warranty. In some cases the grounds and theory for recovery under each claim is the same. But distinctions still exist between these bases for liability and knowing when and how to plead them most effectively can provide alternative, and in some cases, additional grounds for recovery. These different bases for liability may also potentially implicate different theories of defense and different parties. Thus, there may well be good reasons not to plead some claims. For example, having two versions of “comparative negligence” in a case may not be to your client’s advantage. Further, these distinctions can be difficult for a jury to follow, especially where both the courts and the lawyers themselves tend to blur the concepts.
a) Warranty claims.60
Around the same time the Maine Legislature adopted strict products liability, it also modernized the doctrine of warranty as it applied to the sale of consumer goods. In 1963, in its adoption of the U.C.C., the Legislature extended warranty protection not only to the buyer but also to his family, household and guests. In 1969, the Legislature did away with horizontal privity altogether and extended warranty protection for consumer goods to anyone that “the manufacturer, seller or supplier might reasonably have expected to use, consume or be affected by the goods.”61 Where no products liability claim can be brought, because, for example, only the product or good itself is damaged and therefore only economic loss is sustained, a warranty claim will be the primary theory for relief.62
Where the defect at issue arises after sale, as in cases involving expected life of the product or its compatibility with other uses over time, claims in warranty for breach of express promises or implied warranties of fitness or merchantability may also be (and until post-sale defects are recognized as supporting a strict liability claim in Maine, perhaps the only) alternate claims. Where a merchant has reason to know that a product is likely to be used in a manner which may be dangerous, a claim for breach of the implied warranty of fitness for a particular purpose may be joined with failure to warn claims.63
While it may be possible for manufacturers to disclaim strict products liability for used goods, implied warranties may not be disclaimed in the sale of consumer goods, new or used, 11 M.R.S.A. § 2-316(5). Violations of the U.C.C. provisions may also support a claim under the Unfair Trade Practices Act, 5 M.RS.A. § 206, which provides not only for restitution, but also for attorney fees.
Where a strict products claim based on a manufacturing defect at the time of sale is available, though, warranty claims duplicating the relief sought do not generally add anything to the case.64
b) Negligence claims.65
As noted above, strict products liability attaches even when manufacturers or distributors in the commercial chain do not themselves render the product defective and are in no position to prevent defects from occurring. However, where persons in the distributive chain actually raise the risk of harm, the facts may also support a negligence claim against such persons.66 Thus, for example, a suit for damages arising from a product defect caused by a manufacturing flaw may also support a separate negligence claim if evidence shows that there was oversight in the manufacturer’s quality control, since a jury might find both that a plaintiff was injured by the defect which existed at the time the product was placed into commerce, and that oversight in the manufacturer’s quality control, an issue not relevant to the strict products liability claim but conduct which would establish a negligence claim, might have avoided the injury.67
Even if facts support a claim of negligence, an attorney should make purposeful tactical decisions about asserting the claim before simply pleading it. There may be good reasons to plead or not to plead the claim. A theory of liability based on fault may support a claim for punitive damages, a type of recovery that may not otherwise be available in, for example, a manufacturing defect case where fault is not an issue. Persons who might not be subject to a strict products liability claim because they do not fall into the category of a commercial seller, or a commercial conduit for goods, may still be found liable in negligence. Sales personnel and auctioneers, who primarily provide services not “products”, are generally not subject to strict products liability actions, but they may be liable in negligence. Likewise, noncommercial sellers may be properly the subject of negligence claims.
Strict products liability generally applies only to defects existing at the time of sale or its functional equivalent. Product related claims not based on defects at the time of sale, such as negligent entrustment and misrepresentation, are not affected by strict liability statutes but may be grounds for negligence claims.68 Moreover, post-sale duties to warn, at present, have only been recognized in Maine as supporting negligence claims.
In a case involving just a manufacturing defect, however, where no separate facts support a negligence claim, a practitioner should consider the benefits of pleading one. For example, as further discussed below, the defense that a defect was “open and obvious”, or that the product was first dispensed to a “sophisticated user”, defenses available in a negligence suit, are concepts that really have no place in a manufacturing products liability case where balancing of fault plays no role. Likewise, since the strict liability form of “comparative negligence”, see below, is not even theoretically available in a manufacturing defect suit, leaving negligence questions out of such a case effectively insulates a plaintiff from any questions about his blame.
Where design defect or inadequate warnings are the basis for the strict liability claim, a practitioner should also consider carefully the benefit (or lack thereof) of a separate negligence count.69 Such a claim, if to be based on the same facts without any other distinguishing features, may only duplicate recovery available under strict liability, while raising other issues confusing and detrimental to a plaintiffs’ case. For example, as discussed in the next section, the defense of “comparative negligence” applicable to a design defect strict liability claim is different from that which would apply to the same claim brought under a negligence theory. If the facts on which the claims are based are the same, leaving the negligence theory out of the case will not affect the chance of recovery but may narrow the defenses available to a defendant.
Likewise, whereas “state of the art” evidence may be relevant to the question whether a manufacturer was “reasonable” in selecting the design of, or warnings to accompany, a product, evidence of “industry custom”, which is different, is not under any circumstances relevant to the strict liability inquiry. Thus, where it appears that a defendant may try to rely on such evidence to defend the “reasonableness” of its actions against a negligence claim premised on inadequate warnings or design, a practitioner should consider whether that claim really adds anything to his case.
DEFENSES TO BE AWARE OF AND HOW AND WHERE THEY APPLY
1. COMPARATIVE NEGLIGENCE.
A form of “comparative negligence” is an available defense in some strict products liability actions, although the elements of the defense are different from the standard applied in a negligence case.70 The defense should not be available at all, however, in manufacturing defect cases because, as explained above, there are no issues of fault or “risk” associated with the application of strict products liability in such a case.
In Austin v. Raybestos Manhattan, Inc., the Law Court said that the mere failure to discover or to guard against a defect is not a defense to a strict liability claim. The only instance where the plaintiff’s conduct gives rise to a potential defense is when the plaintiff “voluntarily and unreasonably proceeds to encounter a known danger”. This is the type of conduct that used to be designated as “assumption of the risk”. The Court relied expressly on Restatement (Second) of Torts § 402A comment n71 and on § 524772 in adopting this modified, and more limited, form of “comparative negligence” for use in design defect and warnings cases.73
Thus, mere lack of “due care” is not a defense to strict liability claims; the doctrine of “comparative negligence” available in these suits is totally unlike the defense available in a negligence action. Indeed, the label is unfortunate since using the same tag to describe two very different defenses only serves to confuse everyone, from readers of opinions to juries. The confusion is unnecessary and could be avoided if both judges and attorneys would refer to the defense available in a strict liability suit as “assumption of the risk”. Only individual awareness of the danger (it must be “known” to the person) and a deliberate, subjective decision to encounter it anyway is a viable defense to a design defect or failure to warn claim. Even then, if a plaintiff’s decision to encounter (or use or misuse) a product is a reasonable forseeable consequence of the use of the product, the Law Court has recognized the defendant may still be held liable. Marois v. Paper Converting Machine Co..74
2. “OBVIOUS AND APPARENT” RISKS
Early in the development of strict products liability based on design or warning defects, courts held that such claims could not be sustained when the dangers presented by the product were “open and obvious”.75 If the danger of use is “patently obvious and equally apparent to all”, a manufacturer will not be liable for failure to warn or design against the danger, because, in essence, the product would not be considered unreasonably dangerous and therefore the manufacturer would have no duty to do so. This rule evolved to keep manufacturers from becoming absolute insurers. Lotfano v. Duna Stone Steps, Inc.76 This same defense would be available, of course, in a negligence action, as part of the comparative negligence analysis. The availability of this defense is limited, however, and in no case should it be conceded as absolute.
The fact that a product is inherently dangerous does not necessarily make its risks obvious. The Restatement takes the position that in design cases, the “obviousness” of the defect may be relevant to the issue of defectiveness, but that factor alone does not necessarily preclude a plaintiff from establishing that a reasonable alternative design should have been adopted.77 Likewise, Maine law recognizes that there may be cases where a manufacturer has a duty to warn of even obvious dangers or hazards if it is “foreseeable that users of the product will proceed to encounter that hazard out of necessity, lack of a safe apparent alternative, or through momentary inadvertence.”78 In any event, most dangers are beyond the ability of the ordinary consumer to detect, and that is certainly true of the dangers associated with design flaws.79
3. “SOPHISTICATED USERS”
A “variation” on the “obvious and apparent” defense to design and warnings defect cases has been crafted by sellers and suppliers and used as a shield, and asserts that where the ultimate user possesses special knowledge or sophistication in relation to the product, there is no duty to warn of a product’s potential dangerous tendencies or provide instructions for its use.80 The “sophisticated user” defense originated in negligence cases.81 Under this defense, “when the supplier has reason to believe that the purchaser of the product will recognize the dangers associated with the product, no warnings are mandated.”82 Thus, “if a supplier is aware of its purchaser’s knowledge and sophistication with respect to the product, the supplier reasonably may choose not to issue warnings.”83
Courts have properly questioned, the applicability of the defense of the “sophisticated user” to strict liability claims.84 For example, reasonable reliance on the supposition that a user’s employer will give warnings may be a viable defense in a negligence action, but should be irrelevant in the strict liability calculus. Jurisdictions that have decided not to allow the defense have held that “a [product] seller is duty-bound to warn all foreseeable users and the risk of an employer’s failure to warn employees is one of the risks imputed to the seller as a matter of law.”85 The Maine Supreme Judicial Court has not yet decided whether the “sophisticated user” defense would be recognized in negligence actions in Maine, let alone whether it should be available against strict liability claims, Practitioners should advocate against wholesale adoption. While the doctrine may arguably make sense in the context of a negligence case, the very nature of it as a risk-shifting defense contradicts the policy considerations underlying strict products liability.
4. “STATE OF THE ART” DEFENSE
Defendants in products cases alleging design defects often seek to defend their product designs on the ground that the designs are in accord with the “state of the art”. In design defect (and in some cases, warning defect) products liability cases, “state-of-the-art” evidence may be admissible, and may be necessary, to show what a manufacturer reasonably could have known and therefore adopted as a alternative design. Such evidence has been variously, and confusingly, defined outside of Maine to mean that the product design conforms to “industry custom”, reflects the safest and most advanced technology developed and in commercial use, or reflects technology at the cutting edge.86 In Maine, a product related danger may be regarded as forseeable if the available scientific data at the time the product was distributed gave rise to a reasonable inference that a danger was likely to exist.87
The same evidence is irrelevant in manufacturing defect cases where quality control and design are not issues. Some courts have also found the evidence irrelevant in failure to warn cases because in strict liability the reason a warning is not given is irrelevant.88 Maine, to date, is not among them.89
Where the defense is allowed in Maine, expert testimony is usually required to establish (and rebut) it. But not all expert opinions are either relevant or admissible on what “state of the art” might be. In negligence cases, for example, it has been black letter law in Maine at least since 1895, that evidence of “industry custom” is not admissible: “[W]here a party is charged with negligence, he will not be allowed to show that the act complained of was customary among those engaged in a similar occupation or those placed in like circumstances, and owing the same duties.”90 It hardly seems likely that the Maine courts would adopt a lesser standard in assessing the admissibility of such evidence to show “state of the art” in a products liability suit. “An entire industry, by adopting such careless methods to save time, effort or money, cannot be permitted to set its own uncontrolled standard.”91 Since the Law Court has made clear that negligence principles form the rationale for the risk-benefit calculus associated with determining strict liability for design defects, when state of the art evidence is admissible in strict liability cases, it should not be satisfied by proof of industry custom.
5. COMPLIANCE WITH SAFETY STATUTES
In Maine evidence of compliance with product safety statutes and regulations is not conclusive proof of due care but merely evidence that goes to the weight of such proof.92 The very existence of regulations at the federal level may preempt product liability claims altogether, although recent Supreme Court decisions have rendered that result less likely.93 In all cases, practitioners should check federal statutes and regulations before suit to ascertain whether a preemption may be asserted as an affirmative defense.
6. LIABILITY OF VARIOUS MANUFACTURERS AND ASSEMBLERS OF COMPONENT PARTS.
Component manufacturers and distributors commonly assert that since they did not have responsibility for assembling the final product they cannot be found strictly liable for whatever harm that finished product causes. That is not necessarily true. As noted above, a component manufacturer may share liability for the finished product if its component was defective; the final assembler may have created a danger by the manner of its assembly of otherwise innocuous products. Moreover, both component manufacturers and final assemblers may be liable for failing to provide adequate instructions or warnings, either for assembly or use.
The argument raised by these entities essentially misses the point of strict products liability. The focus of such liability is on the fact that a defective dangerous product has been placed in the stream of commerce and has reached and injured a consumer. A policy judgment has been made that the commercial entities that benefit from sales of such products should also bear the burdens of risk and injury. Thus, component manufacturers, assemblers, distributors, successors and all others in the distribution chain may be subject to strict products liability. As noted above, where two or more parties collaborate and where each substantially contributes to the final design, each may be considered a designer of the final product and each can be liable for a failure to adequately warn of the potentially dangerous propensities of its product. The particular fault of a participant in the process is an argument better addressed and confined to negligence claims.
7. MODIFICATION, ALTERATION, SALE OF USED PRODUCTS AND MISUSE OF PRODUCTS
In any tort case, proximate causation must be demonstrated. Thus defendants will frequently argue that they are not the cause of the harm the plaintiff has suffered because the product at issue has been modified, altered, passed through several owners, or has been misused.
None of these defenses are conclusive.
The fact that a product has been modified does not absolutely insulate a seller from liability.94 In Marois v. Paper Converting Machine Co., the Maine Law Court cited with approval cases holding that even a subsequent significant alteration will not relieve a seller or distributor from liability unless the change itself constitutes the proximate cause of the injury.95 A modification is not significant unless the change relates to the products’ ”essential features” and affects its safety.96 Thus, a modification of a product is only relevant to the extent it affects the risk of harm.
In Austin v. Raybestos Manhattan,97 the Law Court did not consider or decide whether “misuse” by a claimant could defeat a strict liability claim. Because “assumption of the risk” is the only form of “comparative negligence” recognized in defense of design defect and warnings and instruction claims, however, it stands to reason that for such “misuse” to rise to the level of a valid defense, the defendant must prove that the “misuse” was a voluntary and unreasonable decision by the plaintiff to encounter a known risk. In Hatch v. Maine Tank Co.,98 the Law Court upheld a verdict against a plaintiff on exactly this basis: where the misuse was deliberate (“known”), there could be no recovery under a theory of failure to warn of apparent risks.
Maine has recognized all three types of products liability cases: manufacturing, design defect, and lack of warnings and instructions. The underlying rationale for all these claims remains consistent: Imposing liability for unsafe designs and for inadequate warnings, as well as for manufacturing defects, aims at achieving higher levels of safety in the use and consumption of products.
While noting the common purposes of the doctrine, courts elsewhere have not always paid sufficient attention to the distinctions between the types of products liability claims, especially when proclaiming the applicable test for liability or a defense. While design defect and warning and instructions claims certainly have some features in common with traditional manufacturing defect cases, these actions also have features distinct from such claims, including different standards of liability, and defenses not theoretically applicable to traditional manufacturing claims.
Many of the evidentiary issues that arise in proving these claims, and the questions concerning what defenses are appropriate to the specific type of claim plead, have not been decided in Maine. By paying proper attention to the type of claim, and the attendant requirements of proof and applicable defenses, practitioners will not only clarify the issues for a jury but also help courts avoid some of the errors of confusion propounded elsewhere. Further, focus on the nature of the product defect may also help a practitioner determine what, if any, other theories of recovery it best serves his client’s interest to pursue. Such regard will also help to preserve the consumer protections intended by the doctrine of strict products liability.
1 Grant Gilmore, The Ages of American Law (1977)[hereafter “Gilmore”] at 46; Friedman, History of American Law (2d ed. I985) [hereafter “Friedman”] at 300 et seq.
2 111 N.E. 1050 (1916)
3 377 P.2d 897 (Cal. 1962)
4 Gilmore at 142 & n.48.
5 Many courts had also recognized a common law basis for strict liability where, for example, ultrahazardous activities caused harm. The Maine Supreme Judicial Court has never recognized a common law cause of action in strict liability for ultrahazardous activities, although the federal district court in Maine has decided that, if faced with the question, the Law Court would do so today. See Reynolds v. W.H. Hinman Co., 145 Me. 343 (1950); Hanlin Corp. v. Intern. Minerals and Chem Corp., 759 F.Supp. 925, 933 (D.Me. 1990).
6 443 A.2d 932, 941 (Me. 1992).
7 Id. citing Prosser & Keeton, THE LAW OF TORTS, (5th ed. 1984).§ 75, at 537.
8 See generally Restatement of the Law of Torts (Third): Products Liability, Tentative Draft No. 2 [hereafter “Restatement (Third), Tent.Dft.”]at § 1, comment a at 4. The author has relied heavily on the excellent summary of the law contained in this Draft for his comments throughout this article. See also St. Germain v. Husqvarna Corp., 544 A.2d 1283, (Me. 1988)(Glassman, J. dissenting)
9 But see Adams v. Buffalo Forge Co., 443 A.2d 932, 941 (Me. 1982)(strict liability action grounded in tort not contractual warranty).
10 See, e.g., Johnson v. Murph Metals, Inc., 562 F.Supp. 246 (N.D.Tex. 1983)(applying Texas law). In some cases, legislatures have defined what a product is or is not, or have otherwise limited a supplier’s liability. Thus, for example, many states have laws limiting the liability of providers of human blood and tissue to negligence actions only, notwithstanding those articles meet the technical definition of a “product” for purposes of strict products liability. See Restatement (Second) of Torts, § 299A for the standards applicable to the rendition of professional services. Prescription drugs and medical devices have also generated their own set of nuanced rules under the general principles governing strict liability. Cases involved these products almost always also raise preemption issues. See note below.
11 Fuller v. CMP, 598 A.2d 457 (Me. 1991). In this case the deceased was electrocuted when the ladder he was carrying touched a power line. In other states, distinctions have been drawn between the character of the electricity prior to the time it passes through a consumer’s meter, and thereafter, when for all practical purposes the consumer has “bought” the electricity. The Law Court has not yet decided this issue.
12 Ghiz v Richard S.Bradforg Inc., 573 A.2d 379 (Me. 1990)
13 The question is whether the provision of goods or services predominates. This is the same question that governs some warranty determinations. “When as here the transaction involves provision of both goods and services, the question for application of the UCC becomes whether as a factual matter the transaction predominantly relates to goods.” Lucien Bourque, Inc. v. Cronkite, 557 A.2d 193, 195 (Me.1989). See also Lincoln Pulp & Paper Co., Inc. v. Dravo Corp., 436 F.Supp. 262, 275 (D.Me.1977) (“The contract is a typical engineering-construction contract involving predominantly the rendition of services, not the sale of goods. As such, it falls outside the scope of Article 2.”); City of Saco v. General Electric,779 F.Supp. 186,196-197 (D.Me. 1991).
14 See, e.g., Stanley v. Schiavi Mobile Homes, Inc., 462 A.2d 1144 (Me. 1983)(mobile home).
15 In Oceanside at Pine Point v. Peachtree Doors, Inc., 659 A.2d 267 (Me. 1995), the Law Court decided to
… follow the approach taken by those courts when considering facts analogous to those before us, and look to the product purchased by the plaintiff, as opposed to the product sold by the defendant, to determine whether a product has injured only itself .. .
Id. at 269, See also discussion at 271-72.
16 The tort accrues when the physical injury manifests itself Bernier v. Raymark Indus., Inc., 516 A.2d 534 (Me. 1986). Because the claim sounds in tort, the six year statute of limitations period applies to products claims. Id. See also Townsend v. Chute Chemical Co., 1997 ME 46 (when accrual occurs may be a question of fact precluding summary judgment on a statute of limitation issue).
17 Oceanside at Pine Point v. Peachtree Doors ,Inc., 659 A.2d 267, 269 (Me, 1995).
18 Id. at 270 quoting Adams v. Buffalo Forge Co., 443 A.2d 932, 941 (Me.1982).
19 The rationale underlying this rule is that damage to a product itself “means simply that the product has not met the customer’s expectations, or, in other words, that the customer has received ‘insufficient product value.’ The maintenance of product value and quality is precisely the purpose of express and implied warranties.” East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 872, 106 S.Ct. 2295, 2302-03, 90 L.Ed.2d 865 (1986) (citation omitted). Cf. Wimmer v. Down East Properties, Inc., 406 A.2d 88, 93 (1979)(in the sale of a new house by a builder-vendor the law implies warranties that the house is suitable for habitation and constructed in a reasonably skillful and workmanlike manner.) See also Sylvain v. Masonite Corp, 471 A.2d 1039 (Me. 1984)(fitness for particular purpose).
20 659 A.2d at 270. It then went on to note “[w]hether a product has injured only itself may, of course, be a difficult question to answer.” Id. at 271. See discussion at note 17 above.
21 Moorman Mfg. Co. v. National Tank Co. 435 N.E.2d 443, 449 (Ill.1982) (citation omitted).
22 See generally Restatement of the Law of Torts (Third): Products Liability, Tentative Draft No. 2 [hereafter “Restatement (Third), Tent.Dft.”]at § 1, comment a.
23 Bernier v. Raymark Indus, Inc., 516 A.2d 534, 537 &n.3 (Me. 1986).
24 Id. at 2-3. See also Comment, In Pursuit of the Appropriate Standard of Liability for Defective Product Designs, 42 Me.L.Rev. 453 (1990).
25 Restatement (Third), Tent. Dft. at § 2, comment a at 13, comment b, at 17.
26 Id. The Maine statute requires that a plaintiff prove such defects render the product unreasonably dangerous to the user. However, since the legislative history makes clear that the doctrine as codified by the Restatement was being adopted, any court in Maine faced with the issue should decide that risk-utility norms and the merits of a manufacturer’s quality control play no role in assessing liability for manufacturing defects. See Restatement (Third), Tent. Dft. at § 2, comment a at 13.
27 Restatement (Third), Tent. Dft. at § 13, comment d.
28 Stanley v. Schiavi Mobile Homes, Inc., 462 A.2d 1144, 1148 (Me. 1983); St. Germain v. Husqvarna Corp., 544 A.2d 1283 (Me. 1988). The Court has also noted the lack of distinction between this and the standard employed to test a negligence claim. St. Germain v. Husqvarna Corp, 615 A.2d 1169, 1172 (Me. 1992); but see Justice Glassman’s dissent in that case.
29 Prosser & Keeton, THE LAW OF TORTS, § 99 (5th ed. 1984) at 699-70 cited with approval in St. Germain, supra, 544 A.2d at 1285..
32 569 A.2d 195, 196 (Me. 1990)
33 See, e.g., McClanahan v. Califarnia Spray-Chem. Corp., 75 S.E.2d 712 (Va. 1953) (The directions for use of a chemical herbicide did not constitute sufficient warning that failure to follow the directions would cause the fruit to discolor); Tayam v. Executive Aero Inc., 166 N.W.2d 584 (Minn. 1969) (Directions for use of airplane to turn off power boost in icing conditions did not constitute sufficient warning that power loss could occur if power boost were left on); Kerns v. Engelke, 369 N.E.2d 1284 (Ill. App. 1977) (Directions that a machine attachment could be removed did not provide adequate warning that failure to remove it was dangerous); Alm v. Aluminum Co. of America, 785 S.W.2d 137 (Tex. 1990) (Owners manual for bottle capping machine — manual statement that leakage or closure blow-off could occur at lower pressures when closure application is improper was inadequate to fulfill seller’s duty to present “clear cautionary statement setting forth the exact nature of the danger involved”; namely that serious injuries could result from a bottle cap blow off); Krueger v. Gen. Motors Corp., 783 P.2d 1340 (Mont. 1989).
34 “Warnings and instructions are not necessarily the same… A manufacturer might provide one and still be liable in failing to provide the other, as where instructions fail to alert the user to the danger they seek to avert, or where a warning alerts the user to a peril but does not enable him to avoid it.” Boyl v. California Chemical Co., 221 F. Supp. 669 (D. Or. 1963).
Warnings may be of two types: Some warnings are intended to avoid injuries by informing users of potential dangers and how to avoid them; other warnings, such as those accompanying socially beneficial by unavoidably unsafe products such as vaccines, serve an informed consent, rather than risk reduction function. Schafrick, “Products Liability Suits for Failure to Warn of the Hazards of Regulated Products”, 32 TORT AND INSURANCE LAW JOURNAL 833, 837 & n.20 (Spring 1997).
35 Schafrick, supra, 32 TORT AND INSURANCE LAW J. at 838 & n.26 (collecting cases).
36 “Strict products liability attaches to a manufacturer when by a defect in design or manufacture, or by the failure to provide adequate warnings about its hazards, a product is sold in a condition unreasonably dangerous to the users [citation omitted]…. When a duty to warn exists, the warning must advise the user of the risks associated with its product and offer the user specific directions for the product’s safe use”. Pottle v. Up-Right, Inc., 628 A.2d 672, 674-75 (Me. 1993) (emphasis supplied.) In Pottle, the plaintiff was injured when a scaffold which had been manufactured by the Defendant tipped over causing the plaintiff to fall to the floor and injure himself. The “failure to warn” at issue in that case concerned not just the warning that the product could be dangerous under some circumstances, but also directions for the proper and safe use of the scaffold. In other words, the court held that there were issues of material fact concerning the manufacturer’s failure to warn about the serious danger “attending the non-engagement of the scaffold leg-locks”, which warning should have included appropriate directions for engaging the scaffold leg-locks. See also Violate v. Smith and Nephew Dyonics, Inc., 62 F.3d 8 (1st Cir. 1995) (Under Maine law, a manufacturer must provide expected users of its product with warnings of the risks and “specific directions for the product’s safe use”, citing Pottle v. Up-Right).
37 Pottle v. Up-Right, Inc., 628 A.2d 672, 675 (Me. 1993); see also Lorfano v. Dura Stone Steps, 569 A.2d 195, 196 (Me. 1990)
38 Schafrick, supra, 32 TORT AND INS. LAW J. at 838 (emphasis added).
39 Bernier v. Raymark Indus., Inc., 516 A.2d 534 (Me. 1986).
40 516 A.2d at 538.
41 See, e.g., Willman Poultry Co. v. Caras Chem. Co., 378 N.W.2d 830 (Minn. App. 1985).
42 See Coffman v. Keene Corp., 133 N.J. 581, 628 A.2d 710, 716 (1993); House v. Armour of America, Inc., 886 P.2d 542, 552 (Utah App. 1994).
43 Coffman, 468 A.2d at 716 (quoting trial court’s instruction, later affirmed). As a corollary, many jurisdictions have also concluded that “because a manufacturer or seller would benefit when a warning was provided, … ‘a buyer or user should benefit where a warning is not given.’” Coffman, 133 N.J. 581, 628 A.2d at 717 (quoting Coffman v. Keene Corp., 257 N.J. Super. 279, 608 A.2d 416 (1992)); see Technical Chem. Co. v. Jacobs, 480 S.W.2d 602, 606 (Tex. 1972); Reyes v. Wyeth Lab., 498 F.2d 1264, 1281 (5th Cir.), cert. denied, 419 U.S. 1096, 95 S.Ct. 687, 42 L. Ed.2d 688 (1974); Dias v. Daisy Heddon, 180 Ind. App. 657, 390 N.E.2d 222, 225 (1979); Seley v. G.D. Searle & Co., 67 Ohio St. 2d 192, 423 N.E.2d 831, 838 (1981); Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038, 1057 (1984), cert. denied, 469 U.S. 965, 105 S.Ct. 365, 83 L. Ed.2d 301 (1984); Grady v. American Optical Corp., 702 S.W.2d 911, 918 (Mo. Ct. App. 1985); Magro v. Ragsdale Bros., Inc., 721 S.W.2d 832, 834 (Tex. 1986); Bloxom v. Bloxom, 512 So. 2d 839, 850 (La. 1987); Butz v. Werner, 438 N.W.2d 509, 517 (N.D. 1989); Knowlton v. Deseret Medical, Inc., 930 F.2d 116, 123 (1st Cir. 1991) (relying on Wolfe v. FordMotor Co., 6 Mass. App. Ct. 346, 376 N.E.2d 143, 147 (1978)); Eagle-Picher Industries, Inc. v. Balbos, 326 Md. 179, 604 A.2d 445, 468-69 (1992); Garside v. Osco Drug, Inc., 976 F.2d 77, 80-81 (1st Cir. 1992) (applying Mass law).
44 Bernier v. Raymark Indus., 516 Aid 534, 538 (Me. 1986). Cf. Thomas v. Hoffman-LaRoche, 949 F.2d 806, 813 (5th Cir. 1992) (drug case). “For example, a pressurized can may warn users of the dangers of puncturing the can or of exposing the can to extremes of temperature. By heeding the warning, the consumer may use the product safely and avoid the detailed risks.” Id.
This same court has suggested, however, that the presumption does not apply (because it is irrelevant) when an unavoidably unsafe product is at issue, since even an adequate warning would not alleviate the possibility of harm. An unavoidably unsafe product becomes safe when it comes with warnings; “[i]f an adequate warning is given, the product is not defective, and resolution of causation becomes irrelevant to liability.” Id. at 812 & n. 24.
45 No. 94-56-P-DMC (D. Me. Jan. 19, 1996), 1996 WL 521394, PROD.LIAB. REP. (CCH), ¶ 14, 745.
46 This position is also supported by the Restatement (Second) of Torts § 312, which states:
Duty to Act When Prior Conduct is Found to be Dangerous
(1) If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.
(2) The rule stated in Subsection (1) applies even though at the time of the act the actor has no reason to believe that it will involve such a risk.
47 Although Judge Cohen rejected the requirement of a post-sale duty to warn in the strict liability case, the majority of jurisdictions that have considered the issue have imposed the post-sale duty in strict liability as well. See, e.g., Kotler v. American Tobacco Co., 926 F.2d 1217, 1230, n. 13 (1st Cir, 1990) (interpreting Massachusetts law); LaBelle v. McCau