USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1073

CURTIS CLEVELAND and JUDY CLEVELAND,

Plaintiffs, Appellants,

v.

HASBRO, INC.,
d/b/a MILTON BRADLEY TOY COMPANY,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker, Senior U.S. District Judge]

__________________________

____________________

Before

Selya and Boudin, Circuit Judges,

______________

and McAuliffe,* District Judge.

______________

____________________

Bruce A. Bierhans with

___________________

whom

Andrew D. Nebenzahl, Kenneth

_____________________ ________

Walton and Bierhans & Nebenzahl were on briefs for appellants.

______
____________________
John P. Graceffa with
__________________

whom Kathryn M. Anbinder and

_____________________

Mahoney & Miller were on brief for appellee.

________________

Morris
______

____________________

November 6, 1996
____________________

____________________

*Of the District of New Hampshire, sitting by designation.

BOUDIN, Circuit Judge.

______________

In this

diversity case, Curtis

and

Judy Cleveland appeal from the district court's grant of

summary judgment

in favor

of Hasbro,

Inc.

The Clevelands

sued Hasbro for negligence and loss of consortium based

an injury

that Curtis Cleveland suffered

onto

truck

his

Massachusetts.

that Hasbro had

Clevelands.

at

of

Clevelands.

See
___

plant

in

while loading toys

East

Longmeadow,

The district court ruled, as a matter of law,

never assumed

Our

allegations

Hasbro's

upon

review

facts in

is

the

a duty of

plenary,

light most

care owing to

the

and

the

we

take

favorable

Guzman-Rivera v. Rivera-Cruz, 29 F.3d

_____________
___________

to the

3, 4

(1st Cir. 1994).

In September 1991, Curtis was a truck driver employed by

V.K. Putnam

Trucking, Inc. ("Putnam") of

Belgrade, Montana.

All

of the loads that Putnam contracted to haul were "driver

assist" loads, meaning

shipper was

were

responsible for

provided

"lumpers"

that the truck driver rather than the

with

to assist

loading cargo.

a stipend

in this

for

the

process.

Putnam drivers

purpose

At his

of hiring

option, the

driver could load himself and pocket the stipend.

In early September, Curtis was offered the Hasbro job by

the

Putnam dispatcher

assist.

East

told

that

it would

be

driver

On September 6, Curtis and Judy arrived at Hasbro's

Longmeadow

delivery

and

plant to

pick up

to a purchaser in Oregon.

-2-2-

shipment of

toys for

Curtis claims that prior

to

arriving at Hasbro, he

employee

"lumpers"

truck.

who

assured him

or other

spoke by telephone

that

personnel

the

with a Hasbro

company would

to load

the

provide

cargo into

his

Curtis says that without this assurance he would not

have accepted the job.

When the

load, they were

Clevelands arrived at

Hasbro to

pick up

the

told that no Hasbro employees were available

to assist in loading

the truck.

Curtis then decided to load

the truck himself with help from his wife.

manual pallet jack to

cargo

Hasbro provided a

the Clevelands for use in

loading the

pallets onto the truck, but declined to make available

a more expensive electric jack that was also on the premises.

After several

moving an

his truck.

hours of

loading, Curtis

especially heavy pallet

had difficulty

up an inclined

ramp into

Starting with the pallet-laden jack at a distance

from the truck, Curtis gave the jack a long running push from

inside

the warehouse toward the

got the load into the truck;

jack, and

as it slid back

ultimately

thrown

between

injuries.

The Clevelands

interior of his

truck.

He

but he then lost control of the

out, he jumped aboard

two

other

pallets,

then completed loading

it and was

sustaining

the truck

and drove the truck back to Oregon.

The

August

failing

Clevelands brought

1994,

alleging that

suit in

Hasbro

to provide personnel to

-3-3-

the district

had

court in

been negligent

load the truck

in

and that it

was

also

negligent in

other respects,

such as

failing to

permit the Clevelands to use the electric jack and failing to

provide medical assistance to Cleveland following his injury.

After

discovery,

in

June

1995 Hasbro

judgment.

The district

denied the

Clevelands' cross-motion)

moved

for

court granted Hasbro's

summary

motion (and

on November

29, 1995.

The Clevelands now appeal.

On

appeal,

liability: first,

statement, assumed

second,

the Clevelands

that

advance

Hasbro, by

a duty to provide

its

three

theories of

employee's

alleged

assistance in loading;

that Hasbro had breached its general duty of care as

a landowner; and third, that the employee's alleged statement

constituted

law.

Hasbro

negligent misrepresentation

says that

this third

under Massachusetts

theory has

been waived

because not pressed in

the district court, but it

turns out

to make no difference.

The Clevelands'

premise

that

employee

gave rise to a duty of

then

argue

the

first negligence claim

that

statement

the

allegedly

failure

rests upon

made

by

the

Hasbro's

care on Hasbro's part; they

of

Hasbro

to

provide

the

assistance was a breach of this duty and a proximate cause of

Curtis'

statement

injuries.

by

insufficient

The

Hasbro's

to

give

district

agent,

rise

court

assuming it

to

Massachusetts law.

-4-4-

duty

found

that

the

was

made,

was

of

care

under

It is by

no means

clear that

Massachusetts law

would

impose on Hasbro a general duty of care based on the isolated

statement of the Hasbro employee.

cases,

some recognizing

Most of the Massachusetts

and others rejecting

a voluntarily

assumed duty of care, concern activities that the "volunteer"

undertook

and

then

manner.1 Here, when

performed

in

an

allegedly

negligent

Curtis arrived at the plant, Hasbro made

quite

clear that it was

all,

although it did

not going to

allow Curtis

provide assistance at

to make

use of

an idle

jack.

Nor

are

promising.

invitees

the

Clevelands'

A landowner

(e.g.,
____

to

does have

furnish

Ellard, 363 Mass. 693, 707

______

to

other

a safe

theories

especially

duty of

care toward

premise),

Mounsey
_______

v.

(1973), but the Clevelands' claim

assistance in loading a truck,

customarily loaded by the

driver,

probably stretches this

bounds.

As for negligent misrepresentation, see, e.g., Danca

___ ____ _____

v.

Taunton Savings Bank, 385

_____________________

little

proof

mistaken.

that the

duty beyond

Mass. 1,

employee

its accustomed

8 (1982),

was negligent

as

there is

well as

But we

think that the

resolved in order to

duty of care

issue need not

affirm the district court.

be

Rather, we

____________________

1See, e.g., Somerset Savings Bank v. Chicago Title Ins.

_________ ______________________
__________________
Co., 420 Mass. 422 (1995) (alleged failure of title insurance
___
company to exercise due care in search of plaintiff's title);
Mullins v. Pine Manor College, 389 Mass. 47
_______
___________________

(1983) (failure

of college to provide adequate campus security).

-5-5-

will assume that on occasion a mere representation of intent-

-although

neither negligent nor

couched as a promise--might

lead

a victim to alter his position in reliance or otherwise

give

rise to duties that

exist

a brace

including,

in

of

would not otherwise

theories that

addition

to

respond

negligent

exist.

to such

There

problems

misrepresentation,

invoked by Cleveland, various forms of estoppel.

Nevertheless, we think that

because, in

jury

this case must be affirmed,

light of Curtis' own

could not

under

Massachusetts law

verdict for the Clevelands in this

affirm

on any

carelessness, a reasonable

dispositive ground,

case.

properly return

We are entitled to

Levy v.
____

Federal Deposit
_______________

Ins. Co., 7 F.3d 1054,

________

no

sense to

send a

1056 (1st Cir. 1993), since

case back

result is foreordained.

to district

it makes

court when

the

Two different doctrines converge on

our result.

Under Massachusetts

law, as elsewhere,

a defendant

is

liable only if the wrongdoing was the "proximate"--as well as

the "but

for" cause

of the

harm in

Continental Casualty Ins. Co.,

______________________________

1990) (applying

draw a legal

wrong

895 F.2d 830,

Massachusetts law).

line somewhere, along

between the more immediate

question.

Peckham
_______

v.

836 (1st Cir.

The rubric is

the chain of

used to

causation,

and foreseeable consequences of a

and those that are more remote, unlikely or partly the

product of

intervening forces.

Young
_____

v. Atlantic Richfield
__________________

-6-6-

Co.,
___

400

Torts,
_____

Mass. 837,

842

(1987);

Restatement (Second) of
________________________

440, 442 (1965).

Assuming that

a Hasbro

employee made the

statement to

Curtis,

it might

could find himself

be

reasonable to

at the

resulting in delay and

delayed

delivery,

anticipate that

plant unable to

Curtis

load the

truck,

additional expense (e.g., charges for

____

inability

to

carry

out

other

jobs).

Perhaps it might be reasonable to assume that, in the absence

of

expected help,

Curtis would

incur added expense

to get

labor or would even attempt to load the truck himself.

But to describe the

injury itself as proximately caused

by the

Hasbro statement or

more.

It

Curtis

would

requires that it

then attempt

resulting lack of

be reasonably

to load

negligent

manner.

By his

own

extremely

heavy load

resting on

the

help requires

foreseeable that

truck in

a highly

admission, Curtis

a jacked-up

pallet

ran an
___

up an

inclined ramp into

his truck.

He

knew that

the load

was

unusually heavy and difficult to maneuver slowly; that is why

he attempted the

running start.

It is

hard to explain

so

risky a course in the face of a known hazard.

But even if we

was

foreseeable

proximate cause,

assume dubitante that Curtis' negligence

_________

enough

to

satisfy

the

requirements

compare Restatement, supra,

_______ ___________ _____

the Clevelands are still barred from recovery.

has

eliminated

contributory negligence

-7-7-

as

of

443, cmt. c,

Massachusetts

a defense

but,

under

its

comparative

recovery where

wrongdoer.

negligence

the victim's

Mass. Gen.

doctrine,

it

does

negligence exceeds that

L. ch. 231,

85.

bar

of the

That is plainly so

in this case.

It is

doubtful that

the Clevelands have

substantial proof of negligence by Hasbro.

its employee, if made

indication of fault.

at all, was

The

proffered any

statement of

mistaken but there is

no

For all we know, Hasbro does often have

lumpers available and the employee's prediction may have been

perfectly

have

reasonable.

Plaintiffs,

although they

charged "negligent misrepresentation,"

claim to

have pointed to

no evidence at all of negligence on the part of the employee.

But assuming

be

arguendo that a rational

________

jury might still

entitled to infer some measure of fault, there is nothing

whatever

to suggest that Hasbro's fault

that of Curtis.

Curtis' negligence

is patent, serious

beyond reasonable dispute; Hasbro has

variety

administrative error,

(by any

test of

comes even close to

at most made a

weakly inferable at

foreseeability) only remotely

Curtis' own injury.

and

garden

best and

connected to

Bluntly put, Curtis injured himself.

Matters of proximate cause and comparative fault are, as

general rule, for the

jury; but the

settled exception to

the general rule

applies when a reasonable

only one result.

This is such a case and, without suggesting

that the

district

court

was wrong

in

its

jury could reach

broader

legal

-8-8-

holding,

we

think

that

our

own

ruling

on

comparative

negligence offers a firm and narrow basis for the result.

Affirmed.
_________

-9-9-