Alvira v. F. W. Woolworth

April 7, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2255
GLADYS ALVIRA, ET AL.,
Plaintiffs, Appellees,
v.
F. W. WOOLWORTH COMPANY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Roberto Schmidt-Monge, U.S. Magistrate Judge]
Before
Stahl, Circuit Judge,
Aldrich and Coffin, Senior Circuit Judges.
Amancio Arias Guardiola for appellant.
Victoria A. Ferrer for appellees.
COFFIN, Senior Circuit Judge. This is a diversity trip-and-
fall case in which a youth was injured in a Woolworth store in
San Juan, Puerto Rico. The youth, Wally Cora, and his mother,
Gladys Alvira, are co-plaintiffs. F.W. Woolworth Company is
defendant. A jury trial before a Magistrate Judge resulted in
verdicts awarding Wally $40,000 (minus 25% for his contributory
negligence) and Gladys Alvira $20,000 for her mental anguish.
Woolworth appeals the court's denial of its motions for
directed verdict and judgment notwithstanding the verdict,
alleging insufficient evidence of liability; in the alternative,
it seeks a new trial on mental anguish damages, alleging that
they are grossly excessive. It also challenges the court's
taxing of certain costs.
We affirm the judgments as to liability and costs. On the
issue of damages awarded to Gladys Alvira, we have determined
that, on this record, any award in excess of $5,000 would
constitute an abuse of discretion and therefore condition the
grant of a new trial on rejection of a remittitur.
I. Sufficiency
Our standard of review for sufficiency is clear. We view
the evidence in the light most favorable to the non-moving party,
as well as giving it the benefit of every legitimate inference.
We reverse a denial of a motion for directed verdict only if
there appears but one reasonable conclusion, in this case a
conclusion of nonliability. We reject reliance on a mere
scintilla or speculation. Tokio Marine & Fire Ins. Co. v. Grove
Mfg. Co., 958 F.2d 1169, 1171 (1st Cir. 1992).
These are the facts, so viewed, which are relevant to
liability. On the Saturday after Thanksgiving, November 26,
1988, Wally Cora, age 14, visited a Woolworth store with two
young friends, to purchase a cassette. There were many other
shoppers crowding the aisle where Wally and his friends were
walking. Wally followed one of his friends. At one point he
bumped into one person, then in trying to extricate himself
bumped into another, then moved to his left toward a counter. A
customer at the counter had just then moved away, revealing a
broom leaning against it. Wally saw it too late and his feet
became entangled with it, causing him to fall.
His left arm was bent and indeed had suffered a compound
fracture, a bone having punctured the skin. Blood was on the
floor. At this point a store employee took the broom and put it
in a closet. Another customer who happened to be a paramedic
attended Wally, who was taken to the office where a cardboard
splint immobilized his arm. The store manager appeared, yelling
at Wally that he had been running and that he had a videotape to
prove it. No such video was ever shown and the manager did not
testify at trial.
Appellant Woolworth first argues that plaintiff failed to
prove a dangerous condition as cause of his fall, citing Cotto v.
Consolidated Mutual Ins. Co., 116 D.P.R. 644 (1985). This case
involved a shopper falling on a slippery floor. We have read
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Cotto as requiring a plaintiff, in a case involving preexisting
conditions of the premises, to show actual or constructive
knowledge on the part of the defendant in order to make an
affirmative showing of negligence. Mas v. United States, No. 92-
1392, slip op. at 7-8 (1st Cir. Jan. 28, 1993).
Appellant misconceives the nature of this case. The cause
of the fall was not a condition that might have been brought
about innocently or by a third party, where a landlord's
negligence consists in knowing about the condition and doing
nothing to remedy it. Rather, the cause was the negligent act of
an employee, in the course of her work, in placing the broom
where, in a crowded store, a passerby might not see it in time to
avoid tripping over it. Moreover, appellant posits its position
on two facts that we cannot accept: that the broom was "easily
perceptible" (brief, p. 11) and that plaintiff was running at the
time (brief, p. 12). Taking facts favorable to plaintiffs, we
must assume that the broom was not visible to Wally and that he
was walking, not running.
In sum, this was, as tried, a case that was properly
submitted to the jury.
II. Damages
Our review of the amount awarded to Gladys Alvira for her
mental damages is stringently restrained. We may not intrude
unless we find the verdict grossly disproportionate to the
injury. Moreover, as we said in Wagenmann v. Adams, 829 F.2d
196, 215 (1st Cir. 1987), "[t]ranslating legal damage into money
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damages -- especially in cases which involve few significant
items of measurable economic loss -- is a matter peculiarly
within a jury's ken." We elaborated in Milone v. Moceri Family,
Inc., 847 F.2d 35, 37 (1st Cir. 1988):
The jury, as we see it, is free to run the whole gamut
of euphonious notes -- to harmonize the verdict at the
highest or lowest points for which there is a sound
evidentiary predicate, or anywhere in between -- so
long as the end result does not violate the conscience
of the court or strike such a dissonant chord that
justice would be denied were the judgment permitted to
stand.
Our analysis begins by noting the unusual circumstances
under which the issue of mental anguish damages was tried. No
experts testified for plaintiffs; reliance was placed wholly on
the medical reports. Plaintiff Gladys Alvira did not testify.
Instead, the parties agreed to the following stipulation:
We stipulate that plaintiff has not put to testify co-
plaintiff, Gladys Alvira. And we stipulate that her
testimony was about her suffering of the mother. What
she saw and felt and looked at her boy suffering from
the injury.
Accordingly, the evidence relating to the possible suffering
of mental anguish by Wally's mother must rest on the testimony of
Wally, of defendant's medical expert, and on the medical records.
First of all, we summarize the history of medical attention,
picking up the story where we left off.
From the manager's office at the store, Wally was taken to a
municipal diagnostic center or dispensary where X-rays were
taken. From there he was admitted to the emergency room of the
Puerto Rico Medical Center at 9:45 p.m., almost five hours after
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his fall. He was accompanied by a friend and the friend's
mother. Wally's own mother at this point did not know of the
accident. Two days later, on November 28, Wally had been
admitted to the San Juan City Hospital. A record noted that he
had no relatives, that a neighbor referred to him as an orphan,
and that he had been living with a "tutor" who had disappeared a
few days previously. In the absence of parental authorization,
it was determined, because the fracture (described as "left open
distal third forearm fracture") was compound, to perform surgery
on an emergency basis.
Surgery under general anaesthesia proceeded successfully,
aligning the bones and preventing infection. His discharge from
the hospital was delayed, pending efforts by the hospital's
social service department to arrange for placement of Wally. He
was discharged on December 5. Shortly thereafter, in early
January of 1989, Wally went to New York to his brother Rafael's
home. On January 17, accompanied by Rafael, Wally had his cast
removed at Lincoln Hospital. We have no information regarding
the whereabouts or condition of Gladys Alvira until a year and
three or four months later when, in April of 1990, Rafael,
Gladys, and Wally returned to live in Puerto Rico.
Wally's testimony as to his present condition was that his
arm still hurt when he did any heavy lifting, that he felt pain
in his wrist and elbow during a change in weather, that he could
not play baseball, and that he did not play on basketball teams
out of apprehension of having his arm struck. Doctors who
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examined him, one at his request, the other at defendant's,
agreed that there was no neurological damage, that the left arm
from hand to shoulder was "essentially normal," that there was
complete range of motion, good alignment, and no residual
impairment. A small scar on the forearm remained.
This is the record on which we must assess the
reasonableness of an award of $20,000 to Wally's mother. Up to a
point we think that Woolworth cannot complain. Perhaps it had
reasons to avoid the risk of stimulating a jury's sympathy by
having Gladys Alvira testify. It may have thought that a minimal
and bland stipulation was less likely to eventuate into a
sizeable verdict than more detailed testimony.
On the other hand, we have evidence in the record that
arouses our skepticism that a jury reasonably could have awarded
the mother one half of the amount awarded (subject to a 25
percent discount) to the son. The mother was not present during
the period of agony and operation; indeed, she was in ignorance
of the accident. As far as the record reveals, she was not with
her son during his convalescence. Indeed, the medical record
notes suggest that there was no close relationship between mother
and son prior to the accident. The jury had no opportunity to
view the mother and hear her describe such suffering as she may
have endured. Nor do we have any reason proffered, such as
illness, to explain why the jury was to be deprived of the
opportunity to assess her credibility.
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Appellee reminds us of De Leon Lopez v. Corporacion Insular
de Seguros, 931 F.2d 116, 125-26 (1st Cir. 1991), where we upheld
the action of the district court in reducing an $800,000 verdict
for emotional damages by ordering a remittitur to $110,000. In
that case plaintiff's daughter-in-law had given birth to twins.
One of them inadvertently was switched with a twin from another
pair and brought up as a natural child of the plaintiff's son and
daughter-in-law, and as his own granddaughter. The mix-up was
discovered nearly two years later. Plaintiff's distress over
losing the grandchild he thought his own and over the wrenching
experience of his son and daughter-in-law was described in
testimony by all three.
The district court carefully evaluated the evidence,
observing that the plaintiff had not lived in Puerto Rico during
the period of nondiscovery and had visited the twins no more than
twice a month, still had the opportunity to maintain contact with
his quondam granddaughter, and had produced no evidence of
economic loss or expert testimony as to psychological damage.
The court, in settling upon the figure of $110,000, left no doubt
that it was sounding the highest "euphonious note" consistent
with the evidence. de Leon Lopez v. Corporacion Insular de
Seguros, 742 F. Supp. 44, 47 n.7 (D.P.R. 1990).
Appellee argues that our affirmance of the $110,00 figure in
a case with such minimal evidence of psychic harm amply supports
affirming the $20,000 figure in this case. We disagree. In the
first place, Lopez involved "appellate review of post-remittitur
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damages for non-economic losses[, which] is extremely narrow. . .
." 931 F.2d at 125. We indeed are loath "to grade the teacher's
grading of the essay." Wagenmann, 829 F.2d at 215. In this case
the Magistrate Judge did not reveal to us any such grading
process; indeed, there was precious little essay to grade.
In the second place, in this case, unlike in Lopez, 931 F.2d
at 126, we cannot say that "the jury system, which depends
heavily on the common sense and collective human experience of
jurors for a fair resolution of such quandaries [involved in
translating distress into dollars], has rendered yeoman service."
Through no fault of its own, the jury lacked the ordinary basis
for applying its common sense; it had no testimony from or about
the sufferer. The slate was not quite blank. What factual
indications there were indicated that in the short run Gladys
Alvira did not know of Wally's accident and suffering and that in
the long run the residual effects of the accident were not
severe.
In sum, even crediting Gladys Alvira, as the stipulation
commands, with the normal concern and suffering over a son's
accident and resulting aches and pains, we feel that $5,000 is
the limit of an adequate award for mental anguish in this case.
III. Costs
Appellant challenges the allowance of the costs of
transcribing depositions of appellant's expert witness (who
testified) and of appellant's store manager (who did not). The
basis of the challenge was simply that neither deposition was
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introduced at trial. But it is obvious that plaintiffs were
prudent in deposing appellant's expert and in reducing his
comments to writing, whether or not any specific part was used in
cross examination. And it was essential that plaintiffs know
what the store manager was prepared to say; it was apparently
this deposition that informed the plaintiffs that no videotape of
Wally's running existed.
As we said in Templeman v. Chris Craft Corp., 770 F.2d 245,
249 (1st Cir. 1985), "[i]t is within the discretion of the
district court to tax deposition costs if special circumstances
warrant it, even though the depositions were not put in evidence
or used at trial." As for appellant's contentions that
plaintiffs' expert witness's fee for attendance at the trial
should be denied because he was not a treating physician and that
the cost of copying papers should be excluded, we see no merit in
them.
The judgments of liability and the taxing of costs are
affirmed. The denial of the motion for new trial as to damages
for the mental anguish of Gladys Alvira is reversed unless the
plaintiffs agree to accept a remittitur of $5,000. No costs.
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