                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-16-2008

Santillan v. Sharmouj
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5167




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"Santillan v. Sharmouj" (2008). 2008 Decisions. Paper 837.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/837


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                    NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT




             Nos. 06-5167/07-2952/07-2953/07-2954


                   ANTONIO SANTILLAN

                              v.

          NASSER SHARMOUJ and ZILA SHARMOUJ
          Individually and d/b/a Princesse Cash & Carry
and NASSAR SHARMOUJ, ZILA SHARMOUJ, SAMIRA SHARMOUJ,
           Individually and d/b/a Target Tire and Battery,

                                        Appellants No. 06-5167
                         __________

                   ANTONIO SANTILLAN,

                                        Appellant Nos. 07-2952/2954

                              v.

  NASSER SHARMOUJ; ZILA SHARMOUJ; SAMIRA SHARMOUJ
                      __________

                   ANTONIO SANTILLAN

                              v.

 NASSER SHARMOUJ; ZILA SHARMOUJ; SAMIRA SHARMOUJ,

                                        Appellants No. 07-2953
                        ____________

                         (continued)
                                    On Appeal From
                        The District Court of The Virgin Islands
                          (D.C. Civil Action No. 01-cv-00065)
                   District Judge: The Honorable Anne E. Thompson
                                     ____________

                                  Argued May 6, 2008
                                    ____________

           Before: RENDELL, FUENTES and CHAGARES, Circuit Judges.

                                 (Filed: July 16, 2008)
                                     ____________

Wilfredo A. Geigel         [ARGUED]
P.O. Box 25749, Gallows Bay
Christiansted, St. Croix
United States Virgin Islands, 00824
Counsel for Appellants
Nasser Sharmouj, Zila Sharmouj and Samira Sharmouj

K. Glenda Cameron          [ARGUED]
Law Office of Rohn & Cameron
1101 King Street, Suite 2
Christiansted, St. Croix
United States Virgin Islands, 00820
Counsel for Appellee
Antonio Santillan




                              OPINION OF THE COURT




FUENTES, Circuit Judge.

      This is an appeal from a jury verdict which determined that the negligent actions of

defendants Nasser Sharmouj ("Nasser") and Zila Sharmouj ("Zila") at a construction site

                                           2
resulted in serious and permanent injuries to plaintiff Antonio Santillan (“Santillan”).

The construction site was owned by Zila and overseen by Nasser. The principal issues on

appeal are: (1) whether the jury properly awarded punitive damages against Zila and

Nasser, and (2) whether the District Court properly denied certain of Santillan’s requests

for costs.1 For the reasons below, we conclude that the jury correctly awarded punitive

damages against both Zila and Nasser, and we remand the issue of costs to the District

Court for further consideration.

                                              I.

       As we write only for the parties, our recitation of the facts will be brief. Nasser

was hired by Zila, his mother, to construct a building for a new business, the Target Tire

& Battery (“Target”). The Target building was erected on land owned by Zila, who

provided the financing for the project. Zila paid Nasser a salary and authorized him to

oversee all aspects of the construction, including safety, permit application, employment

and purchasing; she paid for the supplies and equipment, as well as for the business

licenses and permits. Neither Zila nor Nasser paid for Workers' Compensation coverage



       1
         Zila and Nasser raise a host of issues on appeal, arguing that there was
insufficient evidence to support the jury verdict; that the District Court erred by allowing
the jury to award economic damages to Santillan; that Santillan’s economic and medical
experts should have been excluded; and that the District Court erred by allowing the jury
to award punitive damages against Nasser. Because we find all of these contentions to be
without merit, we need not address them. See, e.g., United States v. Salemo, 61 F.3d 214,
216 (3d Cir. 1995); United States v. McCrane, 575 F.2d 58, 59 n.2 (3d Cir. 1978). As we
uphold the jury’s verdict, we need not reach evidentiary issues raised by Santillan on
cross-appeal.

                                              3
for the workers hired to construct the Target building. Nasser was not licensed or

qualified as a contractor pursuant to Virgin Islands law.

       Zila was also the owner/operator of Princesse Cash & Carry (“Princesse”), a

grocery store on the same property as the new Target building. She worked there 14

hours a day, seven days a week, and was able to observe firsthand the construction of the

Target building.

       Santillan is an illegal alien from the Dominican Republic. On June 2, 1999,

Santillan fell and hit his head, resulting in serious injury. There are two versions of how

the accident occurred. Santillan states that he had been hired by Nasser to work at the

construction site several days prior to the accident. On the date in question, he had been

instructed to ride to the top of the building under construction in a forklift, without safety

equipment. While on the building, he was accidentally knocked off the roof by Nasser,

who was moving plywood with the forklift. Santillan fell two stories headfirst onto a

concrete floor.

       At trial, Nasser disputed Santillan’s story. He stated that Santillan was a known

alcoholic who had shown up at the construction site the day of the incident looking for

work; Nasser refused to hire him because of his drinking problem, but allowed him to

hang around the site. Nasser claimed that Santillan wandered to the edge of the site and

was urinating in some bushes when he fell down a cliff, sustaining bruises and going into

a fit. Nasser further testified that he poured a bottle of rum on Santillan to try to revive



                                               4
him, then put Santillan in his car and drove him to the hospital.

       Nasser dropped Santillan off at a local hospital. He refused to identify himself,

and told the emergency workers that Santillan had been in a fistfight and had then fallen

down drunk in a ditch. It was determined that Santillan’s injuries included a fractured

skull, damage to his temporal and frontal lobes, a broken shoulder, and six broken ribs.

Police were told by Santillan’s cousin that Santillan had been working on the Target

building; discovered scattered tools and a bloody shirt at the construction site; and found

no evidence to substantiate Nasser’s story that Santillan had fallen down in a ditch.

       Santillan filed suit against Nasser and Zila in the District of the Virgin Islands. He

alleged that the accident “was directly caused by the negligence of the Defendants.”

(Joint Appendix (“J.A.”) 2.) He also alleged that Nasser poured alcohol on Santillan to

“make it appear that he was drunk;” fled the hospital after dropping Santillan at the

emergency room; “gave false testimony” to the police about what had occurred; and gave

false testimony to the doctors as to how the accident occurred despite the fact that he

“knew or should have know that since [Santillan] was unconscious, it was vital to the

treatment of [Santillan] that a true account be given.” (J.A. 3.) Santillan stated that he

suffered “physical damages, medical expenses, loss of income, loss of capacity to earn

income, mental anguish, pain and suffering, and loss of enjoyment of life” as a result of

the accident. Id. Finally, Santillan alleged that the “actions of the Defendants were and

are so outrageous and done with such callous disregard of the rights and interests of the



                                              5
Plaintiff as to entitle the Plaintiff to an award of punitive damages.” (J.A. 4.)

       The case proceeded to trial. A jury found in favor of Santillan and awarded

$528,823 in compensatory damages (for economic loss and medical expenses), as well as

$50,000 in punitive damages against Nasser, and $101,000 in punitive damages against

Zila. Following the verdict, Nasser and Zila filed a Motion for Judgment as a Matter of

Law or, in the alternative, for a new trial, pursuant to Federal Rules of Civil Procedure 50

and 59. The District Court denied the motions in large part, but did rule to set aside the

jury’s award of punitive damages award against Zila. In a separate opinion, the District

Court also determined that Santillan should not be granted many of the costs and fees he

requested.

       On appeal, Nasser argues that the District Court erred by not also striking the

punitive damages award against him; Santillan cross-appeals and contends that the

District Court erred by striking the punitive damages award against Zila. Santillan further

appeals the District Court’s decision to deny his request for certain costs and fees. We

will address each issue in turn.2

                                              II.

       Pursuant to Virgin Islands law, punitive damages are designed to “punish [a

person] for his outrageous conduct and to deter him and others like him from similar




       2
          The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have
jurisdiction pursuant to 28 U.S.C. § 1291.

                                              6
conduct in the future.” R ESTATEMENT (S ECOND) OF T ORTS § 908 (1).3 Punitive damages

may be awarded for:

       conduct that is outrageous, because of the defendant's evil motive or his reckless
       indifference to the rights of others. In assessing punitive damages, the trier of fact
       can properly consider the character of the defendant's act, the nature and extent of
       the harm to the plaintiff that the defendant caused or intended to cause and the
       wealth of the defendant.

R ESTATEMENT (S ECOND) OF T ORTS § 908(2). In “determining the amount of punitive

damages, as well as in deciding whether they should be given at all, the trier of fact can

properly consider not merely the act itself but all the circumstances including the motives

of the wrongdoer, the relations between the parties and the provocation or want of

provocation for the act.” Id. at cmt. e. As a result, such “awards are the product of

numerous, and sometimes intangible, factors; a jury imposing a punitive damages award

must make a qualitative assessment based on a host of facts and circumstances unique to

the particular case before it.” TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S.

443, 457 (1993).

       We review de novo the jury’s decision to grant a punitive damages award, as well

as the District Court’s decision to strike such an award. Cooper Indus., Inc. v.

Leatherman Tool Group, Inc., 532 U.S. 424, 431 (2001). The “touchstone of appellate

review of punitive damages awards is reasonableness, not exactitude.” Willow Inn, Inc. v.




       3
        The Virgin Islands have adopted the Restatements of Law as the “rules of
decision.” 1 V.I.C. § 4.

                                              7
Public Service Mut. Ins. Co., 399 F.3d 224, 231 (3d Cir. 2005); see also BMW of North

America, Inc. v. Gore, 517 U.S. 559, 622 (1996).

       For the reasons below, we conclude that the District Court was correct to uphold

the jury’s decision to award punitive damages against Nasser, but erred when it struck the

jury’s decision to award punitive damages against Zila.

                                               A.

       Nasser argues that the District Court erred when it failed to strike the punitive

damages award against him. Although he cites to a number of cases for the proposition

that “liability in this type of case is sharply limited to cases [of] particularly egregious

behavior,” Appellant’s Br. at 48, he provides no reason why this court should consider his

behavior anything less than “reckless[ly] indifferent to the rights of others,” if not

downright “evil.” R ESTATEMENT (S ECOND) OF T ORTS § 908(2). When the accident

occurred, Nasser – instead of calling an ambulance – placed Santillan in his car, poured

rum over him, left him at the emergency room door, and lied repeatedly about what had

occurred, both to the medical staff at the hospital (who needed the information in order to

treat Santillan) and to the police (in order to cover up the fact that the accident had

occurred at the construction site). As the District Court observed, “Nasser Sharmouj’s

attempts to cover-up the circumstances of the accident could reasonably be considered

outrageous enough to support a punitive damages award against him.” (J.A. 865.)

Consequently, we find that the District Court’s decision to uphold the jury’s award of



                                               8
punitive damages against Nasser was correct.

                                              B.

        On cross-appeal, Santillan argues that the District Court erred when it set aside the

punitive damages award against Zila. Punitive damages can properly be awarded against

an employer because of an act by an agent if:

        (a) the principal or a managerial agent authorized the doing and the manner of the
        act, or
        (b) the agent was unfit and the principal or a managerial agent was reckless in
        employing or retaining him, or
        (c) the agent was employed in a managerial capacity and was acting in the scope of
        employment, or
        (d) the principal or a managerial agent of the principal ratified or approved the act.

R ESTATEMENT (S ECOND) OF T ORTS § 909. The act committed by the agent must be

“clearly outrageous to justify the vicarious imposition” of punitive damages on the

principal or managerial agent. Chuy v. Phila. Eagles Football Club, 595 F.2d 1265, 1278

(3d Cir. 1979).

        In striking the punitive damages award against Zila, the District Court reasoned

that:

        First, there was no evidence to suggest that Defendant Zila Sharmouj authorized,
        approved or ratified her son’s outrageous conduct. Next, the Court finds no
        evidence that Defendant Zila Sharmouj was reckless in employing Defendant
        Nasser Sharmouj . . . Reckless conduct is ‘much more than mere negligence: it is
        gross deviation from what a reasonable person would do.’

(J.A. 865-66.) The District Court went on to state that because Nasser had successfully

supervised the construction of the Princesse Cash and Carry building, Zila had a good



                                              9
reason to believe that he was capable of taking on this similar task. The District Court

further determined that the acts that took place after the accident occurred – Nasser’s

decision to drive Santillan to the hospital, to pour rum on him, and to lie about the

circumstances of the accident – went beyond the scope of his employment and could not

be attributed to Zila or form the basis of a punitive damages award against her. Finally,

the District Court found that the fact that Zila and Nasser failed to follow safety

regulations at the site set by the Occupational Safety and Health Administration (OSHA)

was “not . . . a sufficient basis for a jury to award punitive damages” because “evidence

of OSHA violations is not negligence per se, but can be considered as evidence of

negligence” and “[n]egligence alone . . . is not a basis for punitive damages.” (J.A. 866.)

       On appeal, Santillan argues that it was reasonable for the jury to infer

that Zila had full knowledge that Nasser was constructing the Target building with

immigrant labor; that no safety equipment was being used; that Santillan was on the roof

without protection; and that a forklift was being used to push plywood toward Santillan

two stories up. Appellee’s Br. at 50-51. Santillan further argues that Zila repeatedly lied

on the stand at trial, stating that she had no knowledge of what was going on at the site,

did not know if anyone was in fact working on the site, and was unaware that anyone had

been injured there. Id. For these reasons, Santillan contends that punitive damages were

proper against Zila.

       While we agree with the District Court that Nasser’s behavior in attempting to



                                             10
cover up the accident could be considered outside the scope of his employment, we

ultimately conclude that the jury’s decision to award punitive damages against Zila should

be upheld because Zila was reckless in retaining Nasser to oversee the construction of the

Target building pursuant to Restatement (2d) of Torts § 909(b). We do not find

convincing the District Court’s conclusion that Zila could assume Nasser was a capable

foreman because he had built the Princesse Cash and Carry without incident. There is no

evidence on the record to indicate what the conditions were at the construction site for the

Princesse building; the absence of an accident alone is not sufficient proof that the

construction of the Princesse building was conducted in a proper manner.

       What is clear from the evidence presented at trial is that conditions at the Target

building construction site were extremely poor: there was no safety equipment of any

kind provided to the workers, the relevant permits from local authorities had not been

secured and Worker’s Compensation coverage was not paid. There was also ample

evidence at trial (via the testimony of Zila’s daughter and other employees) for a

reasonable jury to conclude that Zila was aware of these conditions from the time that the

project commenced through the date of the accident, despite her testimony to the contrary.

This knowledge of the poor conditions, and the decision to continue to employ Nasser as

the manager of the construction site, form the basis of Zila’s liability.




                                             III.



                                              11
       Following the jury’s verdict, Santillan requested that the District Court award him

$50,418.25 for various costs. After oral argument on the claims, the District Court

awarded Santillan only $10,359.50 for the following items:

       Subpoena, interpreter and transcript costs for discovery depositions were denied
       regardless of whether the transcripts were used for impeachment purposes at trial.
       The expenses of deposition transcripts used as trial testimony were allowed.

       Standard subpoena and witness fees have been allowed for plaintiff’s witnesses
       who testified at trial including experts.

       Hotel and travel expenses for plaintiff’s forensic economist were allowed.

       Other costs of photos, documents, photo enlargements, trial interpreters etc., have
       been allowed.

(Supplemental Joint Appendix “S.J.A.” 2305.) The District Court denied Santillan’s

remaining requests – including reimbursement for costs associated with depositions,

copying, service of subpoenas and the retention of expert witnesses – finding that they

were“either insufficiently necessary or excessive.” (S.J.A. 2304.) The District Court

indicated that it had relied on both 28 U.S.C. § 1920 and V.I. Tit. 5, § 541 to reach its

decision.

       On appeal, Santillan argues that the District Court erred by relying in part on 28

U.S.C. § 1920; he further contends that he is entitled to the remainder of the costs and

fees requested. Our review is for abuse of discretion. Dr. Bernard Heller Foundation v.

Lee, 847 F.2d 83, 88 (3d Cir. 1988).

       Prevailing parties in the District of the Virgin Islands who incur certain costs in



                                             12
connection with Virgin Islands territorial claims may be entitled, at the discretion of the

District Court, to reimbursement of those costs pursuant to V.I. Tit. 5, § 541. Figueroa v.

Buccaneer Hotel, Inc., 188 F.3d 172, 183 (3d Cir. 1999). Such parties cannot be awarded

costs pursuant to 28 U.S.C. § 1920 – the federal statute that authorizes reimbursement for

a similar set of expenses – because this statute does not apply in the District Court of the

Virgin Islands. Dr. Bernard Heller Foundation, 847 F.2d at 87. This is because the

District Court of the Virgin Islands does not fall within the definition of “court of the

United States” in title 28 of the United States Code; that definition encompasses only

those courts where judges are “entitled to hold office during good behavior,” 28 U.S.C. §

451, whereas the judges who sit on the District Court of the Virgin Islands have terms

that are capped at 10 years. 48 U.S.C. § 1614(a).

       For this reason, it was improper for the District Court in this case to rely in part on

28 U.S.C. § 1920 in reaching its decision about which costs to grant Santillan. Moreover,

there is an insufficient record to determine whether or not the District Court’s decision to

deny Santillan’s additional requests for costs constituted an abuse of discretion. The

District Court stated only that those costs that were not granted were denied as “either

insufficiently necessary or excessive.” (S.J.A. 2304.) Without further explanation, it is

impossible to know whether the District Court was within its discretion to deny Santillan

the costs and fees he requested.

                                             IV.



                                             13
       For the reasons set forth above, we reverse the District Court’s decision to set

aside the punitive damages award against Zila. We also remand the question of whether

or not Santillan is entitled to the fees and costs requested that were initially denied so that

the District Court can provide a more complete explanation for its decision. On all other

issues, we affirm the District Court.




                                              14
