            Case: 12-15739   Date Filed: 04/14/2014   Page: 1 of 18


                                                                      [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 12-15739
                        ________________________

                     D.C. Docket No. 1:09-cv-22423-UU

R. TRAVIS COLLINS, as Personal Representative of the Estate of DAVID
KNOWLTON, deceased,

                                                              Plaintiff-Appellant,

                                    versus

MARRIOTT INTERNATIONAL, INC., a Maryland corporation,

                                                                       Defendant,

THE RITZ-CARLTON MANAGEMENT COMPANY, LLC, a Maryland
corporation, RC ABACO HOLDING COMPANY, LTD., a foreign corporation, et
al.,

                                                           Defendants-Appellees,

THE RITZ-CARLTON HOTEL COMPANY, LTD, a foreign corporation, THE
ABACO CLUB ASSOCIATION, LTD., a foreign corporation, THE ABACO
CLUB RC, LTD., et al.,

                                     Defendants-Third Party Plaintiff-Appellees,

D.SCOTT LIBERTORE,

                                               Defendant-Third Party Defendant.
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                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________

                                       (April 14, 2014)

Before MARCUS, FAY, and WALKER, * Circuit Judges.

WALKER, Circuit Judge:

       Although there were no witnesses, David Knowlton, a property owner at the

Abaco Club, apparently fell to his death from a rocky cliff adjacent to the

defendants’ Abaco Club property on the island of Abaco in the Bahamas. R. Travis

Collins brought this action alleging that the defendants breached their duty to

exercise reasonable care to protect the safety of Knowlton as an invitee while on

defendants’ property. Following a trial in the District Court for the Southern

District of Florida, a jury found defendants one percent negligent and Knowlton

ninety-nine percent negligent, and awarded no damages. The district judge then

granted defendants’ motion for judgment as a matter of law and denied plaintiff’s

motion for a new trial. We REVERSE and REMAND for a new trial on all issues.

                                      BACKGROUND

       The Abaco Club is a private golf club located on the island of Abaco in the

Bahamas. Knowlton was a member of the Abaco Club and owned a cottage on the

       *
          Honorable John M. Walker, Jr., United States Court of Appeals for the Second Circuit,
sitting by designation.
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Club’s property. The Club is located on a peninsula ending at a rocky promontory

known as “the Point.” The Point is not owned by the Abaco Club but is only

accessible by land from Club property. Prior to the events of this case, there was no

fencing or signage demarcating the Point from the Club’s property.

      The Point is comprised of uneven volcanic rock formations, cliffs that drop

into the ocean, and a blowhole that waves crash through. A golf cart path on the

Club’s property intersects with a rough path that leads from the Club property to a

crest overlooking the Point. The crest is approximately 50 feet from the golf cart

path and 200 feet from the farthest tip of the Point.

      On the evening of August 19, 2007, Knowlton and three male friends who

were staying with Knowlton for a long weekend took a golf cart to the Point to take

pictures of the sunset. According to one friend, they had intended to take pictures

from the crest overlooking the Point but because the view of the sunset was good

from the golf cart path, they first stopped there. Knowlton then left the others and

walked up the path towards the crest. The other three decided to meet Knowlton on

the Point when they were finished taking pictures.

      Somewhere between two and ten minutes later, Knowlton’s friends walked

up to the crest to meet Knowlton but he was nowhere to be seen. One friend

testified that there was nobody on the Point and, had there been, he would have

seen him. The friends immediately went for help from Club staff and began


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searching, unsuccessfully, for Knowlton. The following day, Knowlton’s body was

found in the water in a cove two-and-a-half miles from the Club. The death

certificate listed the cause of death as “polytrauma with intracranial hemorrhage and

fracture of ribs/injury upper and lower extremities.” Collins v. Marriott Int’l Inc.,

No. 1:09-cv-22423, slip op. at 10 (S.D. Fla. Oct. 11, 2012).

       At the trial, plaintiff alleged that the defendants were negligent in (1) failing

to maintain the property on the Point; (2) failing to provide adequate warnings

about dangerous conditions on the Point; and (3) failing to prohibit residents and

guests at the Abaco Club from accessing the Point.

       Regarding damages, plaintiff submitted evidence that Knowlton, who was 53,

had two children at the time of his death: a ten-year-old daughter, Grace, and a two-

and-a-half-year-old son, Greyson. Grace lived with her mother, who had been

divorced from Knowlton since 2001, and her step-father. Greyson lived with

Knowlton and his mother, Knowlton’s wife. Knowlton saw his children regularly

and his death affected them. An expert for the plaintiff testified to $10.6 million in

economic damages: $6.2 million for Greyson’s loss of support; $59,294 for

Greyson’s loss of services; $169,171 for Grace’s loss of support; and $4.1 million

for the Estate’s net accumulations. 1 The defendants did not present any evidence on


1
  Plaintiff’s expert testified that “loss of services” relates to things done around the house by
family members for the benefit of a child such as cooking, cleaning, repairs, and maintenance.
Plaintiff’s expert also testified that there is a large disparity between Greyson’s and Grace’s loss
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damages.

       Three-and-a-half hours after the case was submitted to the jury, the jury sent

the following note to the judge: “We tried to settle (to agree) this case. We are

unable to come to a 100% agreement!” Exhibits & Jury Notes 3, July 25 2012,

ECF No. 415. The court responded that the jury should keep deliberating. Forty-

five minutes later, the jury asked the judge, “Can we find the defendants negligent

with an award to the plaintiff (estate) of $0?” Id. at 5. The court responded: “You

must find whatever is fair and reasonable in light of the evidence.” Id. Seventeen

minutes later, the jury returned a verdict finding defendants one percent liable and

Knowlton ninety-nine percent liable, and awarding the estate zero dollars in

damages.

       Following the jury verdict, both sides moved pursuant to Rule 50(b) for

judgment as a matter of law. In addition, the plaintiff moved for a new trial on the

basis that the verdict was an impermissible compromise, that toxicology evidence

was erroneously admitted, and that the district court erred in its jury instructions on

Knowlton’s status as an invitee. The district judge granted defendants’ motion for



of support because Greyson was living with Knowlton when he died while Grace was living with
her mother and step-father. Trial Tr. 452:19–453:14, July 18, 2012, ECF No. 421. Mr. Collins,
the personal representative of Knowlton’s estate, testified that Knowlton’s 49% interest in a
company called Stratix was sold for the benefit of the estate but its value was not provided. Id. at
579:5–581:4. Such value, however, would not detract from plaintiff’s expert’s loss calculation,
which was based on lost wages earned by Knowlton had he lived and worked until the age of 65,
not assets that he already owned.
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judgment as a matter of law, denied plaintiff’s motion for the same and denied

plaintiff’s motion for a new trial. Collins, No. 1:09-cv-22423, slip op. at 30. This

appeal followed.

                                   DISCUSSION

I.    Judgment as a Matter of Law for Defendants on Duty and Causation

      “We review de novo a district court’s grant of judgment as a matter of law,

applying the same standard as the district court.” Pickett v. Tyson Fresh Meats,

Inc., 420 F.3d 1272, 1278 (11th Cir. 2005). “A district court should grant judgment

as a matter of law when the plaintiff presents no legally sufficient evidentiary basis

for a reasonable jury to find for him on a material element of his cause of action.”

Id. “The question before the district court regarding a motion for judgment as a

matter of law remains whether the evidence is ‘legally sufficient to find for the

party on that issue.’” Chaney v. City of Orlando, 483 F.3d 1221, 1227 (11th Cir.

2007) (quoting Fed. R. Civ. P. 50(a)(1)). “[T]he court should review all of the

evidence in the record,” but in doing so, “the court must draw all reasonable

inferences in favor of the nonmoving party, and it may not make credibility

determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 150 (2000). The parties agreed at trial that Florida supplies the

substantive law in this diversity action notwithstanding that the claim arose in the

Bahamas.


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      A.    Defendant’s Duty and Breach

      The parties also do not dispute that Knowlton was an invitee on the Club’s

property. “[A] property owner owes two duties to an invitee, [(1)] to use reasonable

care in maintaining the premises in a reasonably safe condition and [(2)] to give the

invitee warning of concealed perils which are or should be known to the property

owner, and which are unknown to the invitee and cannot be discovered by him

through the exercise of due care.” Fieldhouse v. Tam Inv. Co., 959 So. 2d 1214,

1215 (Fla. 4th DCA 2007) (quoting Fenster v. Publix Supermarkets, Inc., 785 So.

2d 737, 739 (Fla. 4th DCA 2001)).

      As part of the duty to maintain the premises in a reasonably safe condition, a

property owner also has a duty to maintain the property to prevent foreseeable risks

that exist on adjacent property.      This is true because the “duty element of a

negligence action focuses on whether the defendant’s conduct foreseeably created a

broader ‘zone of risk’ that poses a general threat of harm to others.” Almarante v.

Art Inst. of Fort Lauderdale, Inc., 921 So. 2d 703, 705 (Fla. 4th DCA 2006)

(quoting Goldberg v. Fla. Power & Light Co., 899 So. 2d 1105, 1110 (Fla. 2005)).

Accordingly, a “landowner’s conduct can give rise to a zone of risk extending

beyond the physical boundaries of his property when harm reaching outside those

boundaries is foreseeable.” Id.

      In Almarante, the plaintiff was struck and injured by a motorcycle while


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crossing a highway that ran between two school dormitory buildings that she

frequented as a student. Id. at 704. The defendant moved to dismiss on the basis

that it had no legal duty to provide a reasonably safe passage across property that it

did not own. Id. The Almarante court held that plaintiff’s complaint stated a valid

cause of action because the school created a foreseeable zone of danger for its

students by building its dormitory on either side of a busy highway without taking

steps to ensure their safe passage. Id. at 705; see also Bailey Drainage Dist. v.

Stark, 526 So. 2d 678, 682 (Fla. 1988) (per curiam) (holding that even if overgrown

brush causing a dangerous condition for passing motorists was “located on privately

owned property so that removal is not an option, the [defendant] still has a duty to

warn of the danger”); Gunlock v. Gill Hotels Co., 622 So. 2d 163, 164 (Fla. 4th

DCA 1993) (holding that a hotel built adjacent to a highway “owed a duty to

exercise reasonable care for the safety of its invitees in passing over the highway to

and from appellee’s hotel facilities”).

      In this case, it is undisputed that the Point is only accessible from the Abaco

Club property that defendants purchased and developed for use by invitees such as

Knowlton. It is also undisputed that the Point presented foreseeable risks to those

who entered it. There was also evidence that Abaco Club employees knew that its

guests frequented the Point.     Because the Point is a foreseeable danger made

accessible by defendants in developing the adjacent Abaco Club, the defendants,


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while they had no duty to maintain the Point property that they did not own, had a

duty to maintain their own Club property in a reasonably safe manner to protect its

invitees against that danger. 2

       Defendants contend that they owed Knowlton no such duty because “the

risks associated with the Point are inherent in the natural landscape, open and

obvious and just as foreseeable to [Knowlton] as to Defendants.” Appellee Br. 26.

This argument, however, ignores the nature of the defendants’ duty here.

“[A]lthough the open and obvious nature of a hazard may discharge a landowner’s

duty to warn, it does not discharge the duty to maintain the property in a reasonably

safe condition. A plaintiff’s knowledge of a dangerous condition simply raises the

issue of comparative negligence and precludes summary judgment.” Fieldhouse,

959 So. 2d at 1216 (internal quotation marks and citations omitted).

       The district court, in granting defendants’ motion for judgment as a matter of

law, stated that “an owner has no duty to warn where the danger is obvious and

apparent, or the invitee otherwise has knowledge of the danger which is equal to or

superior to the owner’s knowledge.” Collins, No. 1:09-cv-22423, slip op at 13.

This statement of the law, however, focuses only on the duty to warn. It fails to


2
  Indeed, this was precisely plaintiff’s theory of the case at trial. Following the presentation of
evidence at trial, the court summarized the position of plaintiff’s counsel: “Mr. Parks does not
maintain that the Ritz should have done anything on the Point to fix the property. . . . Mr. Parks
contends that the Ritz should have put a fence or warning sign on the Ritz’s own property saying
[don’t] go out to the Point. Right, Mr. Parks?” Plaintiff’s counsel responded, “Correct.” Collins,
No. 1:09-cv-22423, slip op at 3 n.4 (alterations in original).
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consider the defendants’ separate duty to use ordinary care to maintain the Abaco

Club property in a reasonably safe manner to protect against foreseeable dangers on

the Point by means other than posting a warning. The district court thus erred in

granting judgment as a matter of law to the defendants on the duty owed to

Knowlton as an invitee.

      The district court’s instructions to the jury were also erroneous in a similar

respect. The district court instructed that the preliminary issue for the jury is

whether David Knowlton was defendants’ invitee when on the Point, and after

explaining the duties owed to invitees and non-invitees, instructed that it was

“undisputed that the [d]efendants did not own the Point.” Jury Instructions 8-9,

July 25, 2012, ECF No. 404. These instructions pointed the jury in the wrong

direction: the question was not whether defendants owed to Knowlton a duty as an

invitee while he was on the Point—plainly they did not—but whether the

defendants owed a duty to Knowlton as an invitee on Abaco Club property. The

instructions also failed to accurately explain defendants’ duty to use ordinary care

to maintain the Abaco Club property in a reasonably safe manner to protect its

invitees against foreseeable dangers on the Point.

      B.     Inferring Causation

      The district court also granted judgment as a matter of law to defendants

because plaintiff failed to establish that defendants’ negligence caused Knowlton’s


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death without relying on an “impermissible stacking of inferences” by the jury.

“Inferences may be pyramided only if the initial inference is established to the

exclusion of any other reasonable theory.” Hurst v. Astudillo, 631 So. 2d 380 (Fla.

3d DCA 1994). In the district court’s view, the initial inference for plaintiff’s

case—that Knowlton encountered a danger on the Point about which defendants

had superior knowledge—was not established to the exclusion of other theories.

      Impermissible inferences only exist, however, when no direct evidence is

presented on negligence or causation and a jury infers causation based on an

inference of negligence. See McCormick Shipping Corp. v. Warner, 129 So. 2d

448, 449 (Fla. 3d DCA 1961) (finding impermissible stacking of inferences where

the “jury was required under the circumstances to infer that there was negligence on

the part of the appellant in providing a defective or inadequate ladder and upon that

inference, to infer further that such negligence was the proximate cause of the fall”).

In another ladder case, Hurst v. Astudillo, the plaintiff was injured while climbing

defendant’s ladder. 631 So. 2d at 381. Although there was no evidence that the

ladder was defective, that its placement created a dangerous condition, or why the

ladder slipped, the trial judge found negligence and proximate cause. Id. This was

an impermissible pyramid of inferences because it required the trial court to infer

negligence and that such negligence was the proximate cause of plaintiff’s injury.

Id. (citing McCormick Shipping Corp., 129 So. 2d at 449-50). The Hurst court


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concluded: “Simply stated, [plaintiff’s] fall, standing alone, cannot support a

finding of [defendant’s] liability.” Id. at 381.

      This is not the case here. As discussed in the preceding section, defendants

owed Knowlton a duty of reasonable care to protect him against the foreseeable

zone of risk that the parties do not dispute existed on the Point. Once the jury finds

a breach of that duty, i.e., negligence, there is only one inference required of the

jury: that Knowlton was killed by conditions on the Point. Plaintiff submitted

evidence that allowed the jury to find that it was more likely than not that this was

the case: that Knowlton’s friends were unable to find him minutes after he walked

onto the Point and that the following day his damaged body was found in a cove

some distance away. Based on this evidence, the jury was free to infer a causal

nexus between the negligence and the harm. Thus, the district court erred in

granting to defendants judgment as a matter of law following the trial.

II.   Toxicology Evidence

      Evidentiary rulings are reviewed under an abuse-of-discretion standard.

Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512, 1515 (11th Cir. 1993). In order

to justify granting a new trial, an error must have affected “substantial rights”;

otherwise, the error is harmless. Id.

      Dr. William Hearn of the Miami-Dade Medical Examiner’s Office testified at

trial that a sample of Knowlton’s urine received from authorities in the Bahamas


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contained 0.22% alcohol. The plaintiff contends that this evidence should have

been excluded because it was irrelevant and it incorrectly suggested that urine

alcohol levels are the same as blood alcohol levels, which would imply that

Knowlton was severely intoxicated when he died.

      This evidence was properly admitted because it had probative value and was

not unduly prejudicial. Evidence of plaintiff’s intoxication is normally relevant in

tort cases, particularly when the law uses a comparative negligence standard for

apportionment of liability. See Garay v. Carnival Cruise Line, Inc., 904 F.2d 1527,

1531 (11th Cir. 1990); see also Collins, No. 1:09-cv-22423, slip op at 25 (“Plaintiff

fails to recognize that Defendants used the measurement only to corroborate their

contention that Knowlton’s own negligence contributed to his death because he had

been drinking before his fall—not to prove any particular level of intoxication

associated with a legal standard.”).

      The urine alcohol level evidence was not unduly prejudicial because there

was little risk that it could be mistaken for evidence of the more familiar blood

alcohol level. The district court correctly found, and the plaintiff ignores on appeal,

that “neither Plaintiff’s expert . . . nor Dr. Hearn . . . testified that 0.22% urine

alcohol concentration rendered Knowlton intoxicated. And both of these witnesses

testified that urine alcohol content cannot be correlated to blood alcohol

concentrations.” Collins, No. 1:09-cv-22423, slip op at 25. Of course, the plaintiff


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could have requested an instruction to the jury on the difference between alcohol

levels in blood and urine, but he did not do so. Admitting the evidence was not

error.

III.     Compromise Verdict

         The plaintiff argues that the jury’s verdict in this case was a compromise

verdict that conflated liability and damages. We review for abuse of discretion a

district court’s denial of a motion for a new trial based on the verdict being an

improper compromise. Mekdeci ex rel. Mekdeci v. Merrell Nat’l Labs., 711 F.2d

1510, 1513 (11th Cir. 1983). Federal law governs the decision whether or not to

grant a new trial, but an issue of the sufficiency of damages awarded for a state

claim is decided under state law. Hattaway v. McMillian, 903 F.2d 1440, 1451

(11th Cir. 1990).

         A motion for a new trial under Fed. R. Civ. P. 59 must be granted “when the

issues of liability and damages were tried together and there are indications that the

jury may have rendered a compromise verdict.”            Mekdeci, 711 F.2d at 1513

(quoting Lucas v. Am. Mfg. Co., 630 F.2d 291, 294 (5th Cir. 1980)) (internal

quotation marks omitted). “A compromise verdict results when jurors resolve their

inability to make a determination with any certainty or unanimity on the issue of

liability by finding inadequate damages. However, an insufficient damages verdict,

standing alone, does not necessarily indicate a compromise. Ordinarily there must


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be other evidence demonstrating that the deficient monetary award resulted from an

impermissible compromise.” Id. at 1513-14 (internal citations omitted).

      The jury found zero dollars in damages despite being instructed by the

district court to determine the total amount of loss suffered by Knowlton’s estate

without adjusting for any percentages of comparative fault it may have found. The

plaintiff’s expert estimated a total loss to Knowlton’s estate of $10.6 million.

Further, there was significant evidence of Knowlton’s close relationship with

Grace, even though she lived with her mother, in support of non-economic

damages. Defendants submitted no evidence related to damages. It was the jury’s

job to find the total damages and the percentage of defendant’s contribution to the

loss. It was for the court to then apply that percentage to the total damages.

Plainly, the jury’s finding of zero dollars in damages resulting from Knowlton’s

death is drastically deficient. See Miami-Dade Cnty. v. Merker, 907 So. 2d 1213,

1215 (Fla. 3d DCA 2005) (noting that “where the evidence is undisputed or

substantially undisputed that a plaintiff has experienced and will experience pain

and suffering as a result of an accident, a zero award for pain and suffering is

inadequate as a matter of law”); see also Westminster Cmty. Care Servs., Inc. v.

Mikesell, 12 So. 3d 838, 842 (Fla. 5th DCA 2009) (holding “the damages award of

zero dollars was clearly inadequate in light of the substantial evidence at trial of

economic and noneconomic damages” resulting from husband’s wrongful death);


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Snoozy v. U.S. Gypsum Co., 695 So. 2d 767, 768 (Fla. 3d DCA 1997) (holding

zero-damages award inadequate because “substantial, undisputed, and unrebutted

testimony” showed that deceased father “had a close relationship with his children,

and that [the children] suffered a great loss as a result of their father’s death”).

      The district court stated that the jury’s award of damages was not inadequate

as a matter of law because the parties did not stipulate to a minimum amount of

damages and the evidence at trial did not indisputably set a range of monetary

recovery. But there need not be an agreed-upon damages range for an award to be

inadequate.    See Mekdeci, 711 F.2d at 1514 (finding that the zero dollars in

damages awarded by the jury to an injured child was inadequate because defendant

never disputed the child’s damages and the evidence was uncontroverted).

      The other required indicia of a compromise verdict are also present here. See

Westminster, 12 So. 3d at 842 (holding that there was an impermissible compromise

where the damages award was inadequate, liability was “hotly contested” at trial,

the jury was deadlocked, the court charged the jury to continue deliberating to reach

a decision, and less than one hour later the jury returned a verdict); Newalk v.

Florida Supermarkets, Inc., 610 So. 2d 528, 529 (Fla. 3d DCA 1992) (holding that

there was an impermissible compromise because the damages award was

inadequate and “liability was hotly disputed by the parties and struggled over by the

jury”); see also Burger King Corp. v. Mason, 710 F.2d 1480, 1488 (11th Cir. 1983)


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(finding no compromise verdict because the jury consistently rejected the

defendants’ affirmative defenses, was not deadlocked, and did not attempt to

qualify its verdict or request additional instructions). Liability was hotly contested

by the parties at trial. The jury, in a note to the district judge, stated that it was

unable to come to an agreement. After being told to keep deliberating, and only

forty five minutes later, the jury asked whether it could find defendants negligent

but award zero dollars to the plaintiff. Seventeen minutes after the judge responded

by telling it to find a verdict that is “fair and reasonable,” the jury rendered its

verdict.

      In Mekdeci, the Eleventh Circuit found the verdict to be an impermissible

compromise and remanded for a new trial because the jury’s award was inadequate,

liability was “strongly contested,” the jurors made clear that they could not reach

agreement on liability, and the jury attempted to qualify its verdict by asking to

explain its reasons to the parties. 711 F.2d at 1514-15. Most importantly, the jury

stated to the judge that it was “hopelessly deadlocked,” yet returned a verdict

shortly after receiving an Allen charge. Id. at 1515. As in Mekdeci, the jury here

professed to be deadlocked shortly before returning a verdict finding defendants

negligent and making a damages finding that was not supported by the evidence.

Moreover, liability was strongly contested at trial. Contrary to the district court’s

suggestion, the contest over liability need not be “exceptional” to support a finding


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that the jury reached an impermissible compromise, and the fact that the jury found

the defendants only 1% liable does not show that there was a lack of contest over

liability. Indeed, the jury’s question to the judge—asking whether it could find

liability but award zero damages—suggests that some members of the jury may

have gone along with a finding of liability only if accompanied by an award of zero

damages. The district court abused its discretion here in not finding that the verdict

was the result of an impermissible compromise.

      Defendants argue that if a compromise verdict is found, any new trial should

be limited to damages only.       Defendants, however, misread our case law on

compromise verdicts. “[A] jury verdict influenced by an improper compromise

cannot stand and a complete new trial is required because liability and damages are

inseparable. Hence, if there is a compromised finding on liability, a separate trial

on damages alone will not suffice—both liability and damages must be relitigated

in a new trial.” Burger King Corp., 710 F.2d at 1486 (internal citations omitted).

Accordingly, plaintiff is entitled to a new trial on both liability and damages.

                                   CONCLUSION

      For the reasons stated above, we REVERSE the district court’s grant of

judgment as a matter of law for defendants and, consistent with this opinion,

REMAND for a new trial on all issues.




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