Donald E. Powers v. Bethlehem Steel Corp. v. McKie Lighter Co., Inc., Donald E. Powers v. McKie Lighter Co., Inc., 483 F.2d 963 (1st Cir. 1973). · Go Syfert
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Donald E. Powers v. Bethlehem Steel Corp. v. McKie Lighter Co., Inc., Donald E. Powers v. McKie Lighter Co., Inc., 483 F.2d 963 (1st Cir. 1973). Cases Citing This Book View Copy Cite
“alleged erroneous rulings of law are generally not held to be sufficiently unconscionable to justify reopening a judgment not void when issued.”
32 citation events (7 in the last 25 years) across 12 distinct courts.
Strongest positive: United States v. Jesus Montalvo Davila (ca5, 2018-05-16)
Treatment trajectory · 1976 → 2026 · click a year to view as-of
1976 2001 2026
Top citers, strongest first. 14 distinct citers.
discussed Cited as authority (quoted) United States v. Jesus Montalvo Davila
5th Cir. · 2018 · quote attribution · 1 verbatim quote · confidence low
alleged erroneous rulings of law are generally not held to be sufficiently unconscionable to justify reopening a judgment not void when issued.
discussed Cited as authority (rule) Larone Elijah v. Richard Dunbar (2×) also: Cited "see"
4th Cir. · 2023 · confidence medium
While what may rise to a “grave, unforeseen contingency” has never been clearly outlined, “[a]lleged erroneous rulings of law are generally not held to be sufficiently unconscionable to justify reopening a judgment not void when issued.” Powers v. Bethlehem Steel Corp., 10 USCA4 Appeal: 21-7352 Doc: 39 Filed: 04/21/2023 Pg: 11 of 11 483 F.2d 963, 964 (1st Cir. 1973); accord Hines v. Royal Indem.
cited Cited as authority (rule) In Re MT
Iowa · 2006 · confidence medium
See Nelson, 722 F.2d at 208 ; Powers v. Bethlehem Steel Corp., 483 F.2d 963, 964 (1st Cir.1973); Greater Boston Television Corp., 463 F.2d at 277-78; 5 Am.Jur.2d Appellate Review § 798, at 463.
cited Cited as authority (rule) In the Interest of M.T., M.T., and T.B., Minor Children
Iowa · 2006 · confidence medium
See Nelson, 722 F.2d at 208 ; Powers v. Bethlehem Steel Corp., 483 F.2d 963, 964 (1st Cir.1973); Greater Boston Television Corp., 463 F.2d at 277-78; 5 Am.Jur.2d Appellate Review § 798, at 463.
discussed Cited as authority (rule) Bonnie Sargent v. Columbia Forest Products, Inc.
2d Cir. · 1996 · confidence medium
“Alleged erroneous rulings of law are generally not held to be sufficiently unconscionable to justify reopening a judgment not void when issued.” Powers v. Bethlehem Steel Corp., 483 F.2d 963, 964 (1st Cir.), cert. denied, 414 U.S. 856 , 94 S.Ct. 160 , 38 L.Ed.2d 106 (1973).
discussed Cited as authority (rule) Ida Nelson, Pearlie G. Faulkner and William Nelson v. Isaac James
5th Cir. · 1984 · confidence medium
WHDH, Inc. v. Federal Communications Commission, 406 U.S. 950 , 92 S.Ct. 2042 , 32 L.Ed.2d 338 (1972); Aerojet-General Corp. v. American Arbitration Association, 478 F.2d 248, 253-54 (9th Cir.1973); Powers v. Bethlehem Steel Corp., 483 F.2d 963, 964 (1st Cir.1973). 2 .
cited Cited as authority (rule) Ferris v. Monsanto Co.
Mass. · 1980 · confidence medium
See Mounsey v. Ellard, supra at 708 ; Powers v. Bethlehem Steel Corp., 483 F.2d 963, 964 (1st Cir. 1973) (interpreting Mounsey).
discussed Cited as authority (rule) Feeney v. Com. of Mass. (2×)
D. Mass. · 1979 · confidence medium
Cf. United States v. Charest, 602 F.2d 1015 at 1018 (1st Cir. 1979) (government may not, on appeal, change focus of case and thereby seek to present an entirely different case); Rodriguez de Quinonez v. Perez, 596 F.2d 486, 492 (1st Cir. 1979), petition for cert. filed, 47 U.S.L.W. 3826 (U.S. June 26, 1979) (petition for rehearing will not be granted to hear new argument which could have been earlier raised); Troxel Manufacturing Co. v. Schwinn Bicycle Co., 489 F.2d 968, 970-71 (6th Cir. 1973), cert. denied, 416 U.S. 939 , 94 S.Ct. 1942 , 40 L.Ed.2d 290 (1974) (no abuse of discretion to deny m…
discussed Cited as authority (rule) United States v. Arthur Fred Barela (2×)
9th Cir. · 1978 · confidence medium
Verrilli v. City of Concord, 557 F.2d 664 (9th Cir. 1977); Aerojet-General Corp. v. American Arbitration Ass’n, 478 F.2d 248 (9th Cir. 1973); Powers v. Bethlehem Steel Corp., 483 F.2d 963, 964-5 (1st Cir. 1973); Gradsky v. United States, 376 F.2d 993, 995 (5th Cir. 1967).
examined Cited as authority (rule) American Iron And Steel Institute v. Environmental Protection Agency (3×) also: Cited "see, e.g."
3rd Cir. · 1977 · confidence medium
Cir. 1971) 21 See, e. g., Aerojet-General Corporation v. American Arbitration Ass'n, 478 F.2d 248 , 254 (9th Cir. 1973); Gradsky v. United States, 376 F.2d 993, 995 (5th Cir. 1967) 22 See, e. g., Powers v. Bethlehem Steel Corporation, 483 F.2d 963, 964 (1st Cir. 1973); Greater Boston Television Corporation v. F.C.C., 463 F.2d 268 , 280 (D.C.
examined Cited as authority (rule) American Iron & Steel Institute v. Environmental Protection Agency (3×) also: Cited "see, e.g."
3rd Cir. · 1977 · confidence medium
See Baldwin v. Iowa State Traveling Men’s Ass’n., 283 U.S. 522, 525 , 51 S.Ct. 517 , 75 L.Ed. 1244 (1931); Powers v. Bethlehem Steel Corp., 483 F.2d 963, 964 (1st Cir. 1973); Greater Boston Tel.
discussed Cited as authority (rule) United States v. Ostrer
S.D.N.Y. · 1976 · confidence medium
Perkins v. Standard Oil of California, 487 F.2d 672, 674 (9th Cir. 1973); Powers v. Bethlehem Steel Corp., 483 F.2d 963, 964 (1st Cir. 1973); cf. Parness, supra; Lovallo v. Froehlke, 468 F.2d 340, 344 (2d Cir. 1972), cert. denied 411 U.S. 918 , 93 S.Ct. 1555 , 36 L.Ed.2d 310 (1973).
discussed Cited "see, e.g." Boston & Maine Corp. v. Town of Hampton (2×)
1st Cir. · 1993 · signal: see also · confidence low
See Johnson, 801 F.2d at 416 ; Greater Boston Television Corp. v. FCC, 463 F.2d 268 (D.C.Cir.1971); see also Powers v. Bethlehem Steel Corp., 483 F.2d 963 (1st Cir.1973).
cited Cited "see, e.g." Maine Corporation v. Hampton
1st Cir. · 1993 · signal: see also · confidence low
Cir. 1971); see also _________________ ___ ___ ____ Powers v. Bethlehem Steel Corp., 483 F.2d 963 (1st Cir. 1973). ______ _____________________ 2 B & M has moved for a recall of mandate in this case.
Donald E. POWERS, Plaintiff, Appellant,
v.
BETHLEHEM STEEL CORPORATION, Defendant, Appellee, v. McKIE LIGHTER CO., INC., Defendant, Appellee; Donald E. POWERS, Plaintiff, Appellant, v. McKIE LIGHTER CO., INC., Defendant, Appellee
72-1197, 72-1198.
Court of Appeals for the First Circuit.
Aug 23, 1973.
483 F.2d 963
Michael B. Latti, Boston, Mass., with whom Robert S. Wolfe and Kaplan, Latti & Flannery, Boston, Mass., were on brief, for appellant., Leo F. Glynn, Boston, Mass., for ap-pellee, McKie Lighter Co., Inc., Charles E. Colson, Boston, Mass., with whom Cargill, Masterman & Cahill, Boston, Mass., was on brief, for appellee, Bethlehem Steel Corp.
Coffin, Ald-Rich, Campbell.
Cited by 22 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 60%
Citer courts: Fifth Circuit (1)
CAMPBELL, Circuit Judge.

Appellant has filed a motion for recall of mandate alleging that our decision of April, 1973, 477 F.2d 643 (1st Cir. 1973), denying relief for injuries incurred in the course of employment, should be reexamined in light of Moun-sey v. Ellard, 1973 Mass.Adv.Sh. 871 (Sup.Jud.Ct. June 6, 1973), 297 N.E.2d 43, decided two months later by the Supreme Judicial Court of Massachusetts. Study of the Mounsey decision reveals that the mandate should stand.

[*964] We affirmed judgment for defendants on the basis of a longstanding Massachusetts doctrine maintaining that a landowner’s duty to his employees or employees of an independent contractor is only to disclose hidden defects, not to repair obvious conditions in an unsafe work area. Burr v. Massachusetts Electric Co., 356 Mass. 144, 147, 248 N.E.2d 492, 495 (1969). Mounsey does not discuss employees or the duty owed to them.

The Supreme Judicial Court abolished the common law distinction between licensees and invitees, enlarging the class of persons toward whom the standard of reasonable care is owed. The plaintiff in Mounsey was an injured police officer denied recovery because public employees on private land have been considered licensees, and therefore, merely owed the duty to refrain from inflicting wanton and willful injury. The appellant in the instant case was, on the other hand, always regarded as an invitee.

Appellant relies on the Massachusetts court’s formulation of one standard for all but trespassers: “reasonable care in all the circumstances”, but this phrase according to the Mounsey court was not intended to change the traditional standards of negligence in the invitee area. 1973 Mass.Adv.Sh. at 886, 297 N.E.2d at 52. Furthermore, the court’s own description of the duty now owed to an invitee would not justify reconsidering our opinion: “. . . it could be found that the defendants were under an obligation to warn the policeman of the dangers known to the defendants. . . .” 1973 Mass.Adv. Sh. at 887, 297 N.E.2d at 53.

Even if Mounsey had made a relevant change the Supreme Judicial Court did not indicate that the new rule should be applied retroactively. Courts generally do not abolish clear precedent retroactively when the parties may have relied upon the prior formulation of obligations. See Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971); Trala v. Shea, 335 F.Supp. 81 (D.Mass.1971). The Massachusetts court rejected a rule dating back to English common law, and the interpretation advanced by appellant would force employers to compensate for obvious conditions, thereby imposing a radical change in their legal obligations —a change not explicitly discussed by the Supreme Judicial Court nor even implicit in its decision.

The Supreme Judicial Court’s decision in Colby v. Carney Hospital, 356 Mass. 527, 254 N.E.2d 407 (1969), to abolish charitable immunity in the next relevant case that came before it was applied only with respect to injuries occurring after the date of the Colby decision, and not with respect to injuries that may have occurred after the date of the accident in Colby. Traía, supra. Yet appellant would have us apply Mounsey to his case because his injury occurred after the injury in Mounsey.

Recall of mandate is an inherent power of the Court of Appeals reserved for special circumstances and “sparingly exercised.” See Greater Boston Television Corp. v. Federal Communication Comm., 149 U.S.App.D.C. 322, 463 F.2d 268, 276-277 (1971). Alleged erroneous rulings of law are generally not held to be sufficiently unconscionable to justify reopening a judgment not void when issued. Hines v. Royal Indemnity, 253 F.2d 111 (6th Cir. 1958) ; Iverson v. Commissioner of Internal Revenue, 257 F.2d 408 (8th Cir. 1958). The importance of bringing an orderly end to litigation demands that recall not be liberally allowed:

“If we were in error in this appraisal, of which we are not presently persuaded, we believe it would be far greater error to permit reconsideration now after denial of petition for rehearing and certiorari. There must be an end to dispute. If a situation arose, such as a subsequent decision by the Supreme Court, which showed that our original judgment was demonstrably wrong, a motion to recall[*965] mandate might be entertained. The present case is far from that.” Legate v. Maloney, 348 F.2d 164, 166 (1st Cir. 1965).

Appellant tells us that his petition for certiorari was docketed in the United States Supreme Court on July 9, 1973, and has not yet been acted upon. The latter fact may cut both ways; but in any event it does not lead us to see this case as being governed by considerations different from those cited above.

Motion for recall of mandate and petition for rehearing denied.