Jenks et al v. New Hampshire Motor Speedway, Inc. et al
Filing
221
ORDER denying 210 Motion to Dismiss for Failure to State a Claim (Judgment on the Pleadings re Plaintiffs' Claim for Enhanced Compensatory Damages). Jenkses to file an amended complaint as outlined by 7/13/12. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Melissa Jenks, Individually,
and as Guardian and Next Friend
of Roderick Jenks
v.
Civil No. 09-cv-205-JD
Textron, Inc.
O R D E R
Melissa Jenks brings a product liability claim, as the
guardian and next friend of her husband, Roderick Jenks, and a
loss of consortium claim on her own behalf against Textron, Inc.
Textron moves for judgment on the pleadings to preclude the
Jenkses from seeking enhanced compensatory damages.
The Jenkses
object.
Discussion
At the final pretrial conference held on June 29, 2012, the
court inquired about whether the Jenkses were seeking enhanced
compensatory damages in this case.
The Jenkses asserted that
they were seeking such damages, based on the prayer for relief in
their amended complaint.
Textron objected, arguing that the
Jenkses had not properly pleaded a claim for enhanced
compensatory damages.
The court directed Textron to address the
issue in a motion to dismiss the claim.
“‘When an act is wanton, malicious, or oppressive, the
aggravating circumstances may be reflected in an award of
enhanced compensatory damages.’”
Stewart v. Bader, 154 N.H. 75,
87 (2006) (quoting Figoli v. R.J. Moreau Cos., Inc., 151 N.H.
618, 625 (2005)). “Wanton conduct means that the actor is aware
that his actions are causing a great risk of harm to others.”
Johnson v. The Capital Offset Co., Inc., 2012 WL 781000, at *1
(D.N.H. Mar. 6, 2012) (citing Thompson v. Forest, 136 N.H. 215,
220 (1992)).
Malicious or oppressive actions are those done with
“ill will, hatred, hostility, or evil motive.”
Stewart, 154 N.H.
at 87.
A.
Sufficiency of Pleading
Textron argues that the Jenkses failed to properly plead a
claim for enhanced compensatory damages because the request
appears only in the prayer for relief without factual allegations
to support a claim of wanton, malicious, or oppressive conduct.
Textron also notes that the Jenkses did not include enhanced
compensatory damages in their pretrial statement.
The Jenkses
argue that they adequately pleaded enhanced compensatory damages
by including it in their prayer for relief and that the evidence
at trial will support enhanced compensatory damages.
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Enhanced compensatory damages are a remedy not a substantive
claim.
Minion Inc. v. Burdin, 929 F. Supp. 521, 523 (D.N.H.
1996).
Parties seeking enhanced damages, however, are required
to allege and prove facts to support that relief.
See, e.g.,
Crowley v. Global Realty, Inc., 124 N.H. 814, 818-19 (1984).
In
the absence of supporting allegations, a request for enhanced
compensatory damages may be dismissed.
See, e.g., Johnson, 2012
WL 781000, at *2.
Textron is correct that the Jenkses’ request for enhanced
compensatory damages in the complaint lacks supporting factual
allegations.
Textron could have, but did not, challenge the
sufficiency of the Jenkses’ pleadings during the time allowed for
dispositive motions.
Further, Textron does not deny that it had
adequate notice of that remedy.
During the final pretrial conference, in an effort to
identify and resolve issues for trial, it was the court that
inquired whether the Jenkses were pursuing the remedy of enhanced
damages, noting the reference to enhanced damages in the prayer
for relief.
If the court had not raised the issue at the final
pretrial conference and the Jenkses had introduced evidence of
Textron’s alleged wanton and oppressive conduct at trial, as they
intended to do, an objection by Textron would likely have
resulted in an amendment of the complaint.
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Fed. R. Civ. P.
15(b)(1).
Under the circumstances presented here and in the
absence of prejudice due to inadequate notice, any insufficiency
in the pleading does not support dismissing the remedy requested.
B.
Legal Basis for Claim
Textron also contends that enhanced compensatory damages are
not available for a strict product liability claim.
In support,
Textron states that it did not find a strict product liability
case in which the New Hampshire Supreme Court allowed enhanced
compensatory damages.
Further, Textron notes that the New
Hampshire cases in which enhanced compensatory damages have been
awarded involved intentional torts or a breach of fiduciary duty.
Textron asks that the court avoid expanding New Hampshire law to
permit enhanced compensatory damages for strict product liability
claims.
As explained above, the New Hampshire Supreme Court allows
enhanced compensatory damages for conduct that is wanton,
malicious, or oppressive.
The New Hampshire Supreme Court has
not addressed the question of whether enhanced compensatory
damages are available for a product liability claim.
Although
Textron urges the court not to expand New Hampshire law in this
regard, the issue merely requires an application of a settled
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principle to a product liability claim.
See, e.g., Minion, 929
F. Supp. at 523.
Textron argues that because a strict product liability claim
focuses on the nature of the product rather than the conduct of
the seller or manufacturer, the conduct-based elements of
enhanced compensatory damages are inapposite to strict liability
claims.
See, e.g., Bartlett v. Mutual Pharm. Co., Inc., 2010 WL
3659789, at *12 (D.N.H. Sept. 14, 2010).
A failure-to-warn
claim, however, requires proof that the manufacturer or seller
failed to provide an adequate warning of a dangerous condition.
See, e.g., LeBlanc v. Am. Honda Motor Co., Inc., 141 N.H. 579,
586 (1997).
In that regard, a failure-to-warn claim focuses on
the conduct of the manufacturer or seller and is “a fundamentally
different theory of tort liability that does not implicate a
product’s physical composition at all.
A failure-to-warn claim
asks nothing of a product’s design, but requires instead that a
manufacturer caution of nonobvious dangers and provide
instructions for safe use.”
Kurns v. Railroad Friction Prods.
Corp., 132 S. Ct. 1261, 1272 (2012) (Sotomayor, J., concurring in
part and dissenting in part).
Further, a post-sale failure to
warn claim requires proof that a reasonable person in the
defendant’s position would have provided a post-sale warning.
Restatement (Third) of Torts: Products Liability § 10 (1998).
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The theory of product liability in this case is failure to
warn both before sale and post sale.
Because the Jenkses’
product liability claim is based on Textron’s conduct in not
providing a warning both before sale and post sale, enhanced
compensatory damages are not inconsistent with the claim.
The
evidence the Jenkses proffer to support enhanced compensatory
damages largely pertains to Textron’s failure to provide a postsale warning, which focuses on Textron’s conduct.
If the evidence presented at trial would support the remedy,
the jury will be permitted to consider whether to award enhanced
compensatory damages.
Conclusion
For the foregoing reasons, Textron’s motion for judgment on
the pleadings (document no. 210) is denied.
The Jenkses shall file an amended complaint that includes
factual allegations to support the remedy of enhanced
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compensatory damages.
No other additions, deletions, or changes
shall be made to the amended complaint.
The amended complaint
shall be filed on or before July 13, 2012.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
July 10, 2012
cc:
R. Matthew Cairns, Esquire
James M. Campbell, Esquire
R. Peter Decato, Esquire
Samantha Dowd Elliott, Esquire
Mark V. Franco, Esquire
Neil A. Goldberg, Esquire
Kathleen M. Guilfoyle, Esquire
Daniel R. Mawhinney, Esquire
David S. Osterman, Esquire
Christopher B. Parkerson, Esquire
Elizabeth K. Peck, Esquire
Michael D. Shalhoub, Esquire
William A. Whitten, Esquire
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