                                                                                        NOT PRECEDENTIAL

                                 UNITED STATES COURT OF APPEALS
                                      FOR THE THIRD CIRCUIT
                                           _____________

                                                    No. 13-4082
                                                   _____________

                                                 KEVIN SIMPSON

                                                             v.

                               BETTEROADS ASPHALT CORPORATION,

                                                                          Appellant
                                                   _____________

                                     On Appeal from the District Court
                                            of the Virgin Islands
                                         (D.C. No. 1-11-cv-00056)
                            District Judge: Hon. Wilma A. Lewis, Chief Judge

                             Submitted Pursuant to Third Circuit LAR 34.1(a)
                                           December 8, 2014
                                             ____________

                 Before: CHAGARES, JORDAN, and SHWARTZ, Circuit Judges.
                                     ____________

                                                      OPINION
                                                    ____________

CHAGARES, Circuit Judge.

           Betteroads Asphalt Corporation (“Betteroads”) appeals the judgment in favor of

plaintiff Kevin Simpson and the District Court’s denial of its motions for judgment as a

matter of law and for a new trial. For the reasons that follow, we will affirm.



    This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
                                              I.

       We write exclusively for the parties and therefore set forth only those facts that are

necessary to our disposition. On May 21, 2010, plaintiff Kevin Simpson was working as

a laborer for NR Electric on the Christiansted By-Pass Construction in St. Croix, United

States Virgin Islands, a Federal Highway Project. Defendant Betteroads was the general

contractor on the project and NR Electric was one of several sub-contractors working on

the project. NR Electric’s role on the project included installing conduits for electrical

wiring. This involved excavating a trench, setting the conduits in the trench on a soil

base, and covering the conduits with another layer of material. Then, the material

removed from the trench during excavation was placed back on the trench, raked, leveled,

and compacted.

       On the date in question, Simpson testified that he was operating a walk-behind

compactor in a partially refilled trench. He testified that during the process of

compacting, the machine struck a rock buried in the material, causing the handle of the

compactor to buck up and down. Joint Appendix (“J.A.”) 409–12. He alleges that this

caused him to move in a way that injured his back. Simpson eventually underwent back

surgery. He brought this negligence action to recover damages against Betteroads.

       At trial, Ashfield Skepple, Simpson’s supervisor at NR Electric, disputed

Simpson’s account of the day, but testified that he was not present at the work site when

Simpson’s accident allegedly occurred. Betteroads’s liability expert testified that it was

improbable that the accident occurred as described by Simpson. J.A. 718–21.

Additionally, an orthopedic surgeon retained by Betteroads’s counsel testified that he did

                                              2
not believe the alleged accident was the sole cause of Simpson’s back condition. J.A.

649.

        After trial, the jury returned a verdict in favor of Simpson, finding by a

preponderance of the evidence that Betteroads retained control over the manner in which

NR Electric’s work was performed, that Betteroads’s negligence was a cause of physical

harm to Simpson, and that Simpson was not negligent. J.A. 9–11. The jury awarded

Simpson $900,000 dollars. J.A. 11.

        Betteroads moved for judgment as a matter of law under Federal Rule of Civil

Procedure 50(b) and for a new trial under Rule 59. The District Court found that

evidence was presented at trial that gave the jury a legally sufficient basis for determining

that Simpson had proven the elements of his negligence claim, and thus denied the

motion under Rule 50(b). J.A. 76. As the jury’s verdict was not against the great weight

of the evidence, the District Court also denied the motion under Rule 59. Id. However,

the District Court determined that a portion of the jury’s award for pain, suffering, and

loss of enjoyment of life was unsupported by the evidence and thus ordered a new trial on

damages unless Simpson remitted $340,833.77 of the jury award, accepting a total

judgment in the amount of $559,166.23. Id. Simpson accepted the remittitur.

        Betteroads timely appealed.



                                                       II.1


1
 The District Court had jurisdiction pursuant to 48 U.S.C. § 1612 and 28 U.S.C. § 1332. We have jurisdiction
under 28 U.S.C. § 1291. We note the standards of review with regard to each claim below.


                                                        3
         Betteroads argues that (a) the judgment was not supported by the evidence; (b) it

could not be held liable; (c) the award of damages was improper; (d) the District Court

erred by denying its motion for judgment as a matter of law; and (e) that the District

Court should have declared a mistrial due to an inconsistent verdict.

                                                         A.

         Betteroads first attempts to set aside the jury’s verdict on the grounds that it was

not supported by the evidence, it could not be held liable, and the award of damages was

improper.2 “A reviewing court may set aside the jury’s verdict on the ground of

insufficient evidence only if no rational trier of fact could have agreed with the jury.”

Cavazos v. Smith, 132 S. Ct. 2, 4 (2011). Here, Simpson alleged that Betteroads’s

negligence led to the accident that caused his back injury. Under the Third Restatement

of Torts, there are five elements of a prima facie case for negligently caused physical

harm: (1) duty; (2) failure to exercise reasonable care; (3) factual cause; (4) physical

harm; and (5) harm within the scope of liability (sometimes called proximate cause).

Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 6 cmt. b.3

         Here, as the District Court outlined in its order denying Betteroads’s motions for

judgment as a matter of law and for a new trial, J.A. 55–65, Simpson presented evidence

on each of these elements, including on the extent to which Betteroads exercised control



2
  Nor did the District Court commit a “manifest abuse of discretion,” Evans v. Port Auth. of N.Y. & N.J., 273 F.3d
346, 354 (3d Cir. 2001), by remitting the jury’s initial damages award to $559,166.23 in light of the evidence
introduced at trial. See, e.g., Keenan v. City of Phila., 983 F.2d 459, 469 (3d Cir. 1992) (affirming compensatory
award because “[g]iven our standard of review and the evidence produced at trial, we cannot conclude that the
compensatory damages were so grossly excessive as to shock our judicial conscience.”)
3
  The parties do not dispute that the Restatement (Third) sets forth the elements of a negligence claim for purposes
of this case.

                                                          4
over some of the work it had delegated to NR Electric. While Betteroads presented

contrary evidence on each element, this evidence was not conclusive and thus Betteroads

has failed to meet the high standard required to set aside the jury’s verdict on any of the

grounds asserted.

                                              B.

       Betteroads next appeals the denial of its motion for judgment as a matter of law

under Federal Rule of Civil Procedure 50(b). “‘We exercise plenary review of an order

granting or denying a motion for judgment as a matter of law and apply the same

standard as the district court.’” Ambrose v. Twp. of Robinson, Pa., 303 F.3d 488, 492

(3d Cir. 2002) (quoting Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.

1993)). “In determining whether the evidence is sufficient to sustain liability, the court

may not weigh the evidence, determine the credibility of witnesses, or substitute its

version of the facts for the jury’s version.” Id.

       As above, Simpson presented evidence on each of the elements required to

establish his negligence claim. While Betteroads provided conflicting evidence, its

evidence did not conclusively rebut Simpson’s testimony and other evidence. It was the

role of the jury to determine the credibility of the witnesses presenting conflicting

testimony regarding Betteroads’s role at the work site, the alleged accident, and the

existence and cause of Simpson’s injury. We agree with the District Court’s

determination that Simpson presented sufficient evidence to sustain liability and will

affirm the District Court’s denial of Betteroads’s motion for judgment as a matter of law.

                                              C.

                                              5
       Finally, Betteroads asserts that the District Court should have declared a mistrial

and granted its motion for a new trial based on what it characterizes as an inconsistent

verdict. When the jury first returned its verdict, it determined in question 2 of the jury

verdict form that Betteroads had been negligent and did not answer question 4, which

asked the jury to determine the percentages of negligence attributable to Betteroads and

to Simpson if the jury found that both were liable. J.A. 10. The jury awarded $900,000

to Simpson in question 5 of the form, but then reduced that amount to $810,000 in

response to question 6, which asked the jury to reduce any amount of damages in

question 5 by any percentage of negligence attributed to Simpson. Betteroads requested a

mistrial at side-bar in light of these inconsistencies. The District Court denied this

request and instead asked the jury to resume deliberations to address the inconsistencies.

J.A. 929.

       The jury then returned a second time and an inconsistency remained between their

answer to question 3, asking the jury to determine whether Simpson was negligent, and

question 6. Betteroads again requested a mistrial, but the District Court denied this

request and asked the jury to return to deliberations. J.A. 934, 936. The jury returned a

third time with the form complete and consistent, having crossed out the reduced

damages award of $810,000 in response to question 6. J.A. 11, 938. This left the total

damages award at $900,000.

       Betteroads asserts that the verdict was inconsistent and that the District Court

erred by failing to order a new trial. While it is true that the jury failed to follow the

verdict form’s instructions until it returned from deliberations the third and final time, its

                                               6
final verdict form is consistent. The jury found that Betteroads was negligent, that

Simpson was not negligent, that 100% of negligence could be attributed to Betteroads,

and that Simpson was entitled to $900,000. J.A. 9–11.

         Further, Betteroads cites no authority that suggests the District Court erred by

sending the jury back to deliberate so that they could complete the form according to the

listed directions. Federal Rule of Civil Procedure 49(b)(4) provides that, “[w]hen the

answers [to written questions on a jury verdict form] are inconsistent with each other and

one or more is also inconsistent with the general verdict, judgment must not be entered;

instead, the court must direct the jury to further consider its answers and verdict, or must

order a new trial.” Here, the District Court opted to direct the jury to further consider its

answers instead of ordering a new trial.4 The jury was able to correct the inconsistencies

in its responses, leaving nothing for the District Court to resolve itself. This was not

error, and thus we will affirm the decision of the District Court to deny Betteroads’s

motion for a new trial.

                                                          III.

         For the foregoing reasons, we will affirm the judgment of the District Court.




4
 We need not reach the issue of whether the form was a special verdict under Federal Rule of Civil Procedure 49(a)
or a general verdict with special interrogatories under Rule 49(b) as, under either category, the District Court had the
discretion to send the inconsistent responses back to the jury for resolution.

                                                           7
