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USCA1 Opinion
June 1, 1992 [NOT FOR PUBLICATION]
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No. 91-2318
ALBERT M. CHURILLA, JR., ETC., ET AL.,
Plaintiffs, Appellants,
v.
WACHUSETT MOUNTAIN ASSOCIATES, INC., ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Pettine,* Senior District Judge.
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William C. Flanagan, with whom Edward J. McDonough, Jr. and
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Egan, Flanagan and Cohen, P.C., were on brief, for appellants.
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L. Jeffrey Meehan, with whom Claire L. Thompson and Doherty,
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Wallace, Pillsbury and Murphy, P.C., were on brief, for appellee
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R.H. White Construction Co., Inc.
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*Of the District of Rhode Island, sitting by designation.
Per Curiam. This is a diversity suit brought by Albert
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M. Churilla, Jr. and Frances A. Churilla, parents of Teresa
Churilla and personal representatives of her estate. Teresa,
then age 19, was killed in a skiing accident that took place on
January 31, 1986. Her parents sued. The defendants included the
owners and operators of the ski facility (Wachusett Mountain
Associates, Inc. and Joseph O'Brien); the designer of the ski
slopes (Sno-Engineering, Inc.), and the construction company that
rehabilitated the trail on which the accident occurred (R.H.
White Construction Company).
The plaintiffs' claims against all the defendants were
consolidated for trial.1 At the close of all the evidence, the
district court granted White's motion for a directed verdict.
See Fed. R. Civ. P. 50(a). The court stated:
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It's a matter of legal responsibility. Legal
responsibility here depends upon the
relations of the parties. The relation of
White . . . was subordinate, subordinate in a
way that was perfectly understandable on this
evidence for a contractor to function.
You're dealing with a particular kind of
construction project with an expert
architect/designer who is largely directing
the[] efforts.
There's no showing that there was brought to
[White's] attention at any time any
reasonable suggestion of danger by creating
this particular condition even if [White]
could be charged with creating it. So, as a
matter of law . . . I will grant the motion
for directed verdict for White.
The plaintiffs appeal. Their sole assignment of error
questions the propriety of the directed verdict in White's favor.
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1The plaintiffs settled with Sno-Engineering during the
trial. Their case against Wachusett Mountain Associates and
O'Brien went to verdict.
2
The yardstick by which we must gauge the assigned error is well
hewn:
When directed verdicts have been granted, we
must examine the evidence and the inferences
reasonably extractable therefrom in the light
most hospitable to the nonmovant. To affirm
withdrawal of any claim from the jury, we
must find that, so viewed, the evidence would
permit thoughtful factfinders to reach but
one reasoned conclusion. See Wagenmann v.
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Adams, 829 F.2d 196, 200 (1st Cir. 1987). In
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performing this tamisage, an appellate court
"may not consider the credibility of
witnesses, resolve conflicts in testimony, or
evaluate the weight of the evidence." Id.
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Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1088 (1st
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Cir. 1989).
In this case, we have had the benefit of excellent
briefs on both sides. We have also heard oral argument, read the
trial transcript with care, perused the various exhibits, and
screened the videotape that was shown to the jury. Based on our
review and study of these materials, we cannot fault the district
court's assessment.
The uncontradicted evidence showed that White, although
retained as the general contractor for the renovation of the ski
area,2 had never before been involved in ski area construction.
It had no special expertise in the field. Sno, on the other
hand, was described at trial as "the foremost design company for
ski areas in the world." The evidence also showed that Sno
prepared the overall plan for creating new ski trails and for
modifying existing trails at Wachusett Mountain; devised the
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2The renovations in question were begun in the summer of
1982. While the actual work on the ski trails themselves was
done by subcontractors, we assume, for argument's sake, that
White's duty of care was nondelegable and we therefore treat
White as if it performed the work directly.
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trail markings; approved the lighting system; and supervised all
construction. Sno's employee, Ford Hubbard, "flagged" and
"center-lined" the trails to be cut; oversaw the clearing and
grading activities; provided daily on-site superintendence; set
the final boundaries of the ski trails; and determined their
characteristics. In a nutshell, the evidence demonstrated
conclusively that, by contract and in fact, White danced to Sno's
tune.
Under Massachusetts law, an all-purpose building
contractor with no expertise in a particular type of construction
is warranted, generally, "in relying on the advice of the various
engineering consultants employed on th[e] project." United
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States v. Boston Steel Erection, Inc., 367 F. Supp. 699, 706 (D.
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Mass. 1973). Put more directly, such a
contractor is justified in relying upon the
plans and specifications which he has
contracted to follow, unless they are so
apparently defective that an ordinary builder
of ordinary prudence would be put upon notice
that the work was dangerous and likely to
cause injury.
Romano v. Rossano Constr. Co., 171 N.E.2d 853, 856 (Mass. 1961)
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(quoting Ryan v. Feeney & Sheehan Bldg. Co., 145 N.E. 321, 322
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(N.Y. 1924)).
Measured against this standard, we, like the district
court, are unable to find any significantly probative evidence of
actionable negligence on White's part. Even if a dangerous
condition existed on Trail No. 7 at the time of Teresa's death,
White could not be held answerable for it. The plaintiffs did
not prove any special standard of care in ski area construction
that reflected adversely upon White's performance. They offered
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no expert testimony implicating White. They did not prove that
White's workmanship was defective. They did not show that White
deviated from Sno's design or ignored Sno's instructions. They
did not adduce any evidence that the average contractor, standing
in White's shoes, would have had sufficient knowhow to quarrel
with Sno's directions or to conclude that Trail No. 7 was
dangerous enough to create a risk of injury above and beyond that
ordinarily inherent in downhill skiing. On this record,
reasonable persons could not have found White negligent without
resorting to arrant speculation and impermissible surmise.
Given our evaluation of the record, it would serve no
useful purpose to plough through the factual underpinnings of the
case. It suffices to say that when, as here, appellants have the
burden of proving negligence, "the evidence to which the[y]
point[] must comprise more than fragmentary tendrils." Fashion
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House, 892 F.2d at 1088. See also Anderson v. Liberty Lobby,
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Inc., 477 U.S. 242, 249 (1986) ("there is no issue for trial
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unless there is sufficient evidence favoring the nonmoving party
for a jury to return a verdict for that party"); Malave-Felix v.
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Volvo Car Corp., 946 F.2d 967, 970-71 (1st Cir. 1991) (similar).
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In this instance, the plaintiffs' evidence, viewed most favorably
to them, was at most colorable, ergo, insufficient. Hence, the
district judge did not err in directing a verdict.
Notwithstanding our conclusion that the plaintiffs'
appeal lacks merit, our task is not ended. We must go further
and consider appellee's motion for imposition of appellate
sanctions. The fact that an appeal is unsuccessful does not, in
itself, call for resort to Fed. R. App. P. 38, 28 U.S.C. 1927,
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or any other source of sanctions. Here, given the factually
complex nature of the case and the stringencies that Rule 50(a)
imposes on the district courts, we are not prepared to say that
plaintiffs or their counsel acted unreasonably in attempting to
persuade an appellate tribunal that the judge had scrutinized the
proof too grudgingly and thereby overstepped his bounds. Thus,
we deny the motion.
The judgment below is affirmed. The appellee's motion
The judgment below is affirmed. The appellee's motion
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for appellate sanctions is denied. Ordinary costs shall be taxed
for appellate sanctions is denied. Ordinary costs shall be taxed
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in appellee's favor.
in appellee's favor.
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Document Info
Docket Number： 91-2318
Filed Date： 6/1/1992
Precedential Status： Precedential
Modified Date： 9/21/2015