June 11, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2109
MARIE LOUISE SANTONI-LORENZI,
Plaintiff, Appellant,
v.
F.W. WOOLWORTH COMPANY,
Defendant, Appellee,
v.
OTIS ELEVATOR COMPANY,
Third Party Defendant.
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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May 27, 1993 [NOT FOR PUBLICATION]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
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No. 92-2109
MARIE LOUISE SANTONI-LORENZI,
Plaintiff, Appellant,
v.
F.W. WOOLWORTH COMPANY,
Defendant, Appellee,
v.
OTIS ELEVATOR COMPANY,
Third Party Defendant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Cyr, Circuit Judges.
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Marie Louise Santoni-Lorenzi on brief pro se.
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Amancio Arias Guardiola on brief for appellee.
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Per Curiam. This is a pro se appeal from a jury
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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
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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
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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.
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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
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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
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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.
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Sufficiency of Evidence.
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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.
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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
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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
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Int'l, Ltd., 756 F.2d 930, 934 (1st Cir. 1985)).
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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
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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.
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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
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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
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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.
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Musa, 785 F.2d 370, 372 (1st Cir. 1986). It was the jury's
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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
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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).
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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,
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898 F.2d 230, 258 (1st Cir.), cert. denied, 498 U.S. 849
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(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,
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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
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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.
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1992), cert. denied, __ U.S. __, 113 S.Ct. 1588 (1993).
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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
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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:
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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,
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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
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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
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current Puerto Rico law with respect to negligence in the
context of this case. See Mas v. United States, No. 92-1392,
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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.
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O'Brien, 972 at 16 ("so long as the charge, taken as a whole,
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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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