Santoni Lorenzi v. Woolworth ( 1993 )


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  • June 11, 1993     UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    No. 92-2109
    MARIE LOUISE SANTONI-LORENZI,
    Plaintiff, Appellant,
    v.
    F.W. WOOLWORTH COMPANY,
    Defendant, Appellee,
    v.
    OTIS ELEVATOR COMPANY,
    Third Party Defendant.
    ERRATA SHEET
    The opinion  of this Court issued  on May 27,  1993 is amended  as
    follows:
    Page 11, line 6:  Change "days" to "hours."
    May 27, 1993            [NOT FOR PUBLICATION]
    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    No. 92-2109
    MARIE LOUISE SANTONI-LORENZI,
    Plaintiff, Appellant,
    v.
    F.W. WOOLWORTH COMPANY,
    Defendant, Appellee,
    v.
    OTIS ELEVATOR COMPANY,
    Third Party Defendant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Gilberto Gierbolini, U.S. District Judge]
    Before
    Breyer, Chief Judge,
    Torruella and Cyr, Circuit Judges.
    Marie Louise Santoni-Lorenzi on brief pro se.
    Amancio Arias Guardiola on brief for appellee.
    Per  Curiam.   This is a  pro se appeal from a jury
    verdict in  a personal injury case and from a district  court
    order dismissing plaintiff-appellant's motion for a new trial
    on the grounds of  jury misconduct.  After a  three-day trial
    at  which  appellant was  represented  by  counsel, the  jury
    determined that appellant was  comparatively negligent for 95
    percent of the  $5,000 awarded to her in  damages.  The award
    was therefore  reduced  to $250.00.   Appellant  moved for  a
    mistrial on the  grounds of  jury misconduct.   After a  full
    evidentiary hearing,  the district court  denied the  motion.
    We affirm both the judgment and  the denial of the motion for
    mistrial.
    Background
    Appellant filed this diversity action in the United
    States District Court for the District of Puerto Rico against
    defendant F.W. Woolworth  Co.1  The complaint alleged that on
    December 16, 1988, appellant  Mary Louise Santoni was injured
    while riding  on an escalator  in one of  defendant's stores.
    Appellant  alleged  that  the  escalator was  running  at  an
    excessive  speed, causing her  to lose her  balance and fall.
    Appellant further  claimed that the emergency  button to stop
    the  escalator   had  been  covered  with   tape,  making  it
    1.   Otis Elevator Co. was  brought into the case as a  third
    party  defendant,  but  the  court granted  Otis'  motion  to
    dismiss  the action against it  on the basis  of the evidence
    presented at trial.
    -4-
    inaccessible,  and that  Woolworth's employees  ignored calls
    for help.   Appellant, who was in her early eighties when the
    accident   occurred,  allegedly   suffered  great   pain  and
    continues  to suffer  from hearing  loss and  irregular heart
    rate,  dizziness,   fear  and  depression  as   a  result  of
    appellee's   negligence.      Appellant's  complaint   sought
    $500,000.00 in damages.
    A three-day  jury trial was held  from February 24,
    1992 through February 26,  1992.  After the jury  verdict was
    entered, appellant filed  a motion for  mistrial on March  2,
    1992.   The motion  alleged that relatives  of appellant  had
    reported seeing a juror talking with defendant's witnesses in
    the hallway of the  courthouse before the jury had  reached a
    verdict.   Attached to  the motion  were sworn  statements by
    three of appellant's  relatives indicating  that on  February
    26, 1992,  during  a  court recess,  they  observed  a  juror
    talking with  witnesses and counsel for the defendant.
    On May 1, 1992,  the district court held a  hearing
    on the motion for  mistrial.  Appellant, who  was represented
    by  counsel at the  hearing, called three  witnesses, a court
    security  officer and  two of  appellant's relatives  who had
    reported witnessing the alleged misconduct.   Appellee called
    four witnesses,  including the  juror accused of  the alleged
    misconduct, a  court security  officer and the  two witnesses
    with whom  the juror was alleged  to have conversed.   All of
    -5-
    appellee's  witnesses  denied   that  there   had  been   any
    communication  between  the  juror  and  the   witnesses  and
    attorney for  the appellee.   The  attorney for  the appellee
    also testified that he had not spoken to the juror.
    In an  opinion dated  August 4, 1992,  the district
    court found that the  jury "remained impartial throughout the
    trial  and  during the  crucial  deliberations."   The  court
    credited  appellee's witnesses  and concluded  that appellant
    had failed  to produce credible evidence  of jury misconduct.
    The  court  noted  that appellee  had  failed  to report  the
    alleged  misconduct to the  court or to  their attorney until
    after the jury verdict was  entered, although more than eight
    hours  elapsed   between  the  alleged  misconduct   and  the
    announcement of  the jury's  verdict.   The court  also found
    that  "the verdict  rendered is  clearly consistent  with the
    weight  of  evidence  adduced  at  trial."    Therefore,  the
    district court denied appellant's motion for a new trial.
    Discussion
    On  appeal,  Mrs.  Santoni  argues  that  the  jury
    verdict  finding  her comparably  negligent  for  95% of  the
    damages caused  was contrary to  the weight of  the evidence.
    She also argues that the district court abused its discretion
    in  denying  her  motion  for  a  mistrial  based  upon  jury
    misconduct.   Finally, she finds fault  with the court's jury
    instructions.
    -6-
    Sufficiency of Evidence.
    Appellant  failed   to   preserve  the   issue   of
    sufficiency of  the evidence for  appeal.  She  neither moved
    for judgment as a matter of law at the close of evidence, nor
    renewed  her motion after entry of judgment. See Fed. R. Civ.
    P.  50.   Nonetheless,  even if  appellant had  preserved the
    issue  for appeal, she would  not prevail under the following
    applicable standard of review:
    To  determine  whether   sufficient  evidence   was
    offered  at trial  to  support  the jury's  factual
    findings, the  court must view the  evidence in the
    light most favorable to the nonmoving party, giving
    that   party  the  benefit  of  all  the  favorable
    inferences that may be drawn.
    Aggarwal  v. Ponce School of  Medicine, 
    837 F.2d 17
    , 19 (1st
    Cir. 1988).   On appeal,  the jury's verdict  must be  upheld
    unless "the court finds that the evidence points 'so strongly
    and overwhelmingly in  favor of the movant that  a reasonable
    jury could  not have  arrived at [the]  conclusion reached.'"
    
    Id.
     (quoting Chedd-Angier Production Co. v. Omni Publications
    Int'l, Ltd., 
    756 F.2d 930
    , 934 (1st Cir. 1985)).
    Appellant argues that "there can be no contributory
    negligence  on  the  part   of  Plaintiff  in  [the]  special
    circumstances [of  this  case]."    Those  circumstances  are
    "uncontroverted evidence describing the electric stairways as
    an unregulated and unsyncronized electric stairway"on   which
    the elderly plaintiff was  "violently thrown back . .  ., and
    then dragged up to the second floor . . . without any help or
    -7-
    assistance  of  the   store's  employees."     According   to
    appellant, "the uncontroverted evidence  as to the total lack
    of  adequate  control  by  the Store  of  the  high  velocity
    movement  of the  electric stairway  was responsible  for the
    unfortunate accident  amounting to 100% of  the negligence of
    the Store."
    Contrary to appellant's  allegations, however,  the
    evidence  was  far   from  uncontroverted.    The   following
    testimony was presented, from which the jury could have found
    that  appellant was negligent in her use of the escalator and
    that  appellee's negligence  was only  marginally responsible
    for the  accident.   Mr. Mendez,  a supervisor  at appellee's
    store  at the  time of  the accident,  testified that  he saw
    appellant  struggling with her  granddaughter before boarding
    the  escalator and advised them that  appellant should not be
    made  to ride the escalator  in her condition  and that there
    was an  alternative means of access to the second floor.   He
    further testified  that when he  later heard a  commotion and
    saw  that   appellant  had   fallen  on  the   escalator,  he
    immediately  shut it off,  using the emergency  button on the
    first  floor.  Mr. Mendez stated that after the accident, the
    escalator  was turned back on  and that it  continued to work
    "perfectly".  Finally,  he testified that he  did not observe
    that  the speed of the  escalator that day  differed from its
    speed on any other day before or since the accident.
    -8-
    Appellee's other witness,  Mr. Grimani, manager  of
    the  Woolworth store at  the time of  the accident, testified
    that in  his ten years of  working at the store  he never saw
    the  escalator accelerate  beyond its normal  operating speed
    nor received a complaint regarding its speed.  He stated that
    in  his 33 years of  employment with Woolworth,  he had never
    heard of an escalator accelerating.
    Third party defendant, Otis Elevator Co., put on an
    expert  witness in  electronics,  Mr. Abraham.   Mr.  Abraham
    testified that the type  of motor which drives  the escalator
    makes acceleration  impossible.   He explained that  the only
    way  that the  speed  of an  escalator can  be changed  is to
    replace the gear box  and motor.  Mr. Abraham  testified that
    the  escalator in  question ran  at 90  feet per  minute, the
    industry standard, on the day of the accident.
    Appellant introduced contrary  evidence in  support
    of her theory that the accident was caused by acceleration of
    the  escalator  and the  appellee's  employees' inability  to
    control it.   Mrs. Santoni  testified that  when she  stepped
    onto the escalator and  placed her hand on the  handrail, she
    felt a strong pull  which caused her to lose  her balance and
    fall backward.   Mrs. Monegro, another customer at appellee's
    store  on the day of the accident, testified that she noticed
    that the escalator going  from the first to the  second level
    was "going too  fast".   She further testified  that when she
    -9-
    learned that a lady  had fallen on the escalator,  she looked
    for the emergency button to stop the escalator but was unable
    to find it.
    Mr. Freyre, appellant's grandson, testified that he
    was at  the store  with his  grandmother on  the  day of  the
    accident and noticed that the escalator between the first and
    second  level was running "very  fast".  He further testified
    that  after his grandmother's  accident he tried  to stop the
    escalator  but could  not locate  the emergency button.   Mr.
    Freyre stated that he later saw an employee remove black tape
    covering the  emergency button, before pushing  the button to
    stop  the escalator.    Finally, he  testified  that when  he
    returned to  the store,  two  days later,  the escalator  was
    running  at  a normal  (slower) speed  and  that tape  was no
    longer covering the emergency buttons.
    Mrs.  Freyre, appellant's  granddaughter, testified
    that she was with appellant at the time of the accident.  She
    stated that  her grandmother was told by a Woolworth employee
    that the escalator was the only means of access to the second
    floor. Mrs. Freyre testified that the escalator "was going at
    a  high  rate  of  speed" when  appellant  stepped  onto  it.
    Finally, Mrs. Rivera,  another customer at appellant's  store
    on the day of the accident, testified that she  rode the same
    escalator as appellant,  shortly before appellant's accident,
    and  noticed that it was fast.   She stated that when she saw
    -10-
    appellant fall she tried to find the emergency button to stop
    the escalator, but was  unable to locate it.   Appellant also
    introduced into  evidence at the trial  five accident reports
    of other falls on the escalators in appellant's store  during
    1988.
    Based  upon  the  evidence   presented  (summarized
    above), the  jury concluded  that appellee was  negligent and
    that its negligence proximately caused some of  the injury or
    damage  suffered by  appellant.   It further  found, however,
    that  appellant  was  comparatively  negligent  and  that her
    negligence was  responsible  for 95%  of  the damages.    The
    evidence,   although   conflicting,   does   not   point   so
    overwhelmingly in  favor of appellant that  a reasonable jury
    could  not have  arrived at  this conclusion.   "[I]t  is for
    jurors,  not judges, to weigh the  evidence and determine the
    credibility of witnesses." Insurance  Co. of North America v.
    Musa, 
    785 F.2d 370
    , 372  (1st Cir. 1986).  It was  the jury's
    right to credit appellee's witnesses and to conclude that the
    escalator  was  not running  at an  excessive speed  and that
    appellant's  own actions,  for  example  her unsteadiness  or
    misplacement  of  her cane,  caused her  to  fall.   The jury
    verdict is supported by sufficient evidence.
    Jury Misconduct
    A district  court's decision denying  a motion  for
    new   trial  will  not  be   reversed  except  for  abuse  of
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    discretion. Real v.  Hogan, 
    828 F.2d 58
    ,61 (1st Cir.  1987).
    The district court, following appellant's allegation of juror
    misconduct, properly  carried out its duty  to investigate to
    ascertain  whether the  misconduct actually occurred,  and if
    so, whether it was prejudicial.  See United States v. Boylan,
    
    898 F.2d 230
    ,  258 (1st  Cir.), cert.  denied, 
    498 U.S. 849
    (1990).    The district court held a full evidentiary hearing
    at which  witnesses for appellant and  appellee testified and
    were cross-examined under oath.
    Upon review of the record, including the transcript
    of  the evidentiary  hearing, we  conclude that  the district
    court did  not abuse its  discretion in determining  that the
    alleged  misconduct  did  not  occur.    At  the  evidentiary
    hearing,  appellant's principal  witnesses were  her son  and
    grandson who  testified  that  they  saw one  of  the  jurors
    converse with witnesses and counsel for the defendants in the
    hallway of the courthouse on the morning  of the final day of
    the  trial,  eight hours  before  the  verdict was  rendered.
    Appellee called the juror,  witnesses and attorney alleged to
    have  engaged  in the  misconduct to  testify.   All  of them
    denied that the conversation had ever occurred.
    The juror testified that  he had been approached by
    a  woman,   unconnected  with   the  case,  outside   of  the
    courthouse, who told him that one of appellee's witnesses was
    from the  same home  town as  the juror.   The  juror stated,
    -12-
    however, that he was not influenced  by this information. Our
    review of the record supports the district court's conclusion
    that  sufficient  evidence  was  produced to  show  that  the
    communication did  not have a prejudicial effect.   There was
    no  abuse of discretion.   See United States  v. O'Brien, 
    972 F.2d 12
    , 14 (1st Cir. 1992).
    Moreover, by  failing to inform the  district court
    about the alleged juror misconduct until five hours after the
    verdict was rendered, although she had allegedly become aware
    of  the  impropriety  eight  hours  before  the  verdict  was
    entered, appellant  waived the  right to complain  about such
    conduct.  See United States v. Morris, 
    977 F.2d 677
     (1st Cir.
    1992),  cert. denied,      U.S.    , 
    113 S.Ct. 1588
     (1993).
    Even absent  waiver, however, we  conclude that there  was no
    miscarriage  of  justice and  therefore  affirm  the district
    court's denial of appellant's motion for a new trial.
    Jury Instructions
    Appellant's  final argument  is  that the  district
    court erred in instructing the jury.  First, appellant argues
    that  the court in its opinion mischaracterized the case as a
    "slip and fall" case  and that its misconception of  the case
    was reflected  in the  jury instructions.   Second, appellant
    contends  that the  district court  erred in  instructing the
    jury  regarding dismissal  of  the third-party  defendant  as
    follows:
    -13-
    Otis Elevator Company  is no longer  with us.   The
    case  of Otis was disposed of in such a manner that
    you  don't need to  concern yourself  with anything
    pertaining to it.   Forget  about it.   Otis is  no
    longer  a part of this case and I repeat, you don't
    need to be concerned with it.
    Appellant argues  that this instruction sent a message to the
    jury  that   the  malfunction   of  the  escalator   was  not
    responsible for the accident.
    The  record  indicates  that  appellant  failed  to
    object to the  jury instructions before  the jury retired  to
    consider  the verdict,  as required  by Fed.  R. Civ.  P. 51.
    Rule 51 provides, in relevant part, as follows:
    No  party may  assign as  error the  giving  of the
    failure to  give an  instruction unless that  party
    objects thereto before the jury retires to consider
    its verdict, stating distinctly the matter objected
    to and the grounds of the objection.
    "In the absence of  compliance with the dictates of  Rule 51,
    we  review for plain error." Elgabri v. Lekas, 
    964 F.2d 1255
    ,
    1259 (1st Cir.  1992).   Our review of  the district  court's
    instructions to the jury does not reveal any "miscarriage  of
    justice." 
    Id. at 1259
    .  Therefore, we find no plain error in
    the jury instructions.
    Although the  district court referred  to this case
    as a "slip and fall" case in its opinion, it did not do so in
    its jury  instructions.  Moreover, such a reference would not
    have  constituted plain  error.    The detailed  instructions
    given  corrected any  misconception that  the term  "slip and
    fall"  might  have  conveyed.   The  court  correctly  stated
    -14-
    current Puerto Rico  law with  respect to  negligence in  the
    context of this case.  See Mas v. United States, No. 92-1392,
    slip op. at 7-8 (1st Cir. Jan. 28, 1993).  Moreover, the jury
    found  that appellee was negligent.  There was no plain error
    here.
    Appellant  fares   no  better  with   her  argument
    regarding  the court's  instructions about  the dismissal  of
    Otis  Elevator Co.   Even  assuming that  the portion  of the
    instructions relating  to  the third  party defendant,  taken
    alone, might  have improperly directed  the jury's  attention
    away  from the role of the escalator in causing the accident,
    when we consider  the instructions  as a whole,  it is  clear
    that no miscarriage of justice resulted. Cf. United States v.
    O'Brien, 972 at 16 ("so long as the charge, taken as a whole,
    correctly  conveys the  concept  of reasonable  doubt to  the
    jury,  no  reversible error  exists").    The district  court
    carefully  instructed the jury  that appellee  had a  duty to
    "maintain the  business place in  such a safe  condition that
    one  who is induced to  enter the premises,  would not suffer
    damage."    As  thus   described,  appellant's  duty  clearly
    extended to maintenance of the escalator.  The manufacturer's
    dismissal from the case  did not preclude a finding  that the
    escalator was not maintained in "a safe condition."
    For all of the  foregoing reasons, the judgment and
    the denial  of appellant's motion for  mistrial are affirmed.
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    Appellee's request for damages and costs  pursuant to Fed. R.
    Civ. P. 38 is denied.
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