
USCA1 Opinion

	




          April 7, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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                                         -3-          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                                         -4-          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                                         -5-          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                                         -6-          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.                                         -7-               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                       _____                                         -8-          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                                         -9-          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.                                         -10-
