BELLOTTE v. ZAYRE CORP., 531 F.2d 1100 (1st Cir. 1976)

JAMES HAROLD BELLOTTE, BY HIS FATHER AND NEXT FRIEND, JAMES G. BELLOTTE, AND JAMES G. BELLOTTE, PLAINTIFFS-APPELLANTS, v. ZAYRE CORP., DEFENDANT-APPELLEE.

No. 75-1183.United States Court of Appeals, First Circuit.Argued September 5, 1975.
Decided March 29, 1976.

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W. Wright Danenbarger, Manchester, N.H., with whom Dort S. Bigg and Wiggin Nourie, Manchester, N.H. were on brief, for appellants.

Andrew M. Scherffius, Atlanta, Ga., with whom Joe C. Freeman, Jr., Neely, Freeman Hawkins, Atlanta, Ga., Philip G. Peters, and Wadleigh, Starr, Peters, Dunn Kohls, Manchester, N.H. were on brief, for appellee.

Appeal from the District Court for the District of New Hampshire.

Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and THOMSEN, Senior District Judge.[*]

McENTEE, Circuit Judge.

[1] Plaintiffs in this diversity case appeal from a judgment entered after a jury verdict in favor of defendant, and from a denial of their motions for a new trial and a judgment notwithstanding the verdict. Most of the facts are undisputed and concern a single incident. On the evening of May 22, 1971, five-year old James Bellotte was left in the care of his twelve-year old step-brother Earl while their parents were out. In the course of the evening James put on a pair of cotton pajamas purchased by his parents from defendant Zayre Corporation’s department store in Manchester, New Hampshire. When alone in his bedroom he began playing with matches and a lighted match slipped from his fingers and ignited the pajama top which burned rapidly. Despite aid from his brother Earl, James suffered extensive burns on his upper body.

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[2] Plaintiffs raise three claims of error on this appeal and we deal with each in turn. First, plaintiffs assign as error the trial court’s instruction to the jury that a deliberate act by Earl was an absolute defense.[1] Plaintiffs allege that this instruction was wrong as a matter of substantive law. Plaintiffs’ claim is essentially that Zayre, as the supplier of a product is not relieved of liability by any use that can be reasonably anticipated, and that whether Zayre might have reasonably foreseen a deliberate ignition by children is a jury question. However, such is not the case. New Hampshire law follows the principle that a defendant is relieved of liability by a superseding cause of the accident which he could not reasonably be found to have a duty to foresee. Morin v. Manchester Housing Authority, 105 N.H. 138, 141, 195 A.2d 243, 245 (1963). As to the foreseeability of an intentional superseding act, New Hampshire has approved the formulation of the Restatement of Torts 2d § 448, comment b, which outlines the two basic situations where a negligent defendant ought to have reasonably anticipated an intentional tort or criminal act by a third person.[2] Morin v. Manchester Housing Authority, supra, at 246. Neither of these situations encompass the circumstances of this case, nor do we see any extraordinary circumstances in this case which ought to subject the manufacturer to liability despite the intervening intentional act of a third party. The deliberate setting afire of a child’s pajamas by another would not appear to fall within those acts that ought to be anticipated by a clothing supplier.[3] Hence we find no error in the trial court’s excluding from the jury’s consideration the foreseeability of such a deliberate act and instructing the jury that such an act constituted an absolute defense.[4]

[3] Plaintiffs’ second assignment of error is directed at the trial court’s instruction on the claim of strict liability in tort. Plaintiffs allege that the trial court improperly defined “unreasonably dangerous” by basing the standard on the viewpoint of the purchasing parent rather than on that of

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the consumer child.[5] Resolution of this issue turns on an interpretation of Restatement of Torts 2d, § 402A(1)[6] as adopted by New Hampshire. Buttrick v. Lessard, 110 N.H. 36, 260 A.2d 111 (1969). Plaintiffs contend that the injured five-year old child in this case is the ultimate “user” whom the principle embodied in § 402A(1) is designed to cover, and that the question of whether the pajamas were unreasonably dangerous ought to have been framed with reference to the child rather than the purchasing parent. We took advantage of the certification procedure provided by rule 20 of the Supreme Court of New Hampshire (N.H. Rev.Stat.Ann. 490: App.R. 20 (Supp. 1975)) and certified this question to that court. In a carefully reasoned and comprehensive opinion, Bellotte et al. v. Zayre Corp.,
N.H., 352 A.2d 723 issued on January 31, 1976, the court held that “the definition of `unreasonably dangerous’ should be framed in terms of the parent who purchases the pajamas for the five-year old child.” (At p. 725.) Accordingly, plaintiffs’ claim of error on this question cannot avail.

[4] Finally, plaintiffs contend that the trial court erred in not instructing the jury that the pajamas were unreasonably dangerous even for a purchasing parent as a matter of law. However, we find no merit to this claim. Sellers are not insurers and are not subject to absolute liability. Elliott v. LaChance, 109 N.H. 481, 484, 256 A.2d 153, 156 (1969). Under the doctrine of strict liability in New Hampshire, liability is imposed only when the danger is unreasonable. See Buttrick v. Lessard, supra. As evidence of unreasonable danger plaintiffs point to testimony at trial that an average adult consumer would not have known the rapid rate at which flames would spread on the pajamas once ignited. However, there was also evidence that the burning characteristics of the pajama fabric were completely normal and that under the federal Flammable Fabrics Act (15 U.S.C. § 1191 et seq., 67 Stat. 111), in force at the time of the accident, the fabric would be classed as normally flammable. In light of our examination of the record we cannot say it was improper for the trial court to let the jury resolve this question.

[5] Affirmed.

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