
USCA1 Opinion

	




          June 11, 1993     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2109                            MARIE LOUISE SANTONI-LORENZI,                                Plaintiff, Appellant,                                          v.                               F.W. WOOLWORTH COMPANY,                                 Defendant, Appellee,                                          v.                                OTIS ELEVATOR COMPANY,                                Third Party Defendant.                                 ____________________                                     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        May 27, 1993            [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________        No. 92-2109                                      MARIE LOUISE SANTONI-LORENZI,                                Plaintiff, Appellant,                                          v.                               F.W. WOOLWORTH COMPANY,                                 Defendant, Appellee,                                          v.                                OTIS ELEVATOR COMPANY,                                Third Party Defendant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Torruella and Cyr, Circuit Judges.                                             ______________                                 ___________________            Marie Louise Santoni-Lorenzi on brief pro se.            ____________________________            Amancio Arias Guardiola on brief for appellee.            _______________________                                  __________________                                  __________________                      Per  Curiam.   This is a  pro se appeal from a jury                      ___________            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                                      __________                      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                                            ____________________            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.                                         -4-            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                                         -5-            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                                      __________                      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.                                           -6-                 Sufficiency of Evidence.                 ________________________                      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.                                                         ___            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            ________     _________________________            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            ___          ___________________________    _________________            Int'l, Ltd., 756 F.2d 930, 934 (1st Cir. 1985)).            ___________                      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                                         -7-            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.                                         -8-                      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                                         -9-            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                                         -10-            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.                                       _______________________________            Musa, 785 F.2d 370, 372  (1st Cir. 1986).  It was  the jury's            ____            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            _______________                      A district  court's decision denying  a motion  for            new   trial  will  not  be   reversed  except  for  abuse  of                                         -11-            discretion. Real v.  Hogan, 828 F.2d  58,61 (1st Cir.  1987).                        ____     _____            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,                                             ___ _____________    ______            898  F.2d 230,  258 (1st  Cir.), cert.  denied, 498  U.S. 849                                             ____   ______            (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,                                         -12-            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                                       ___ _____________     _______            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.                      ___ _____________    ______            1992),  cert. denied,   __ U.S.  __, 113 S.Ct.  1588 (1993).                     ____  ______            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            _________________                      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:                                         -13-                 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,                                         _______    _____            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                      ___            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                                         -14-            current Puerto Rico  law with  respect to  negligence in  the            context of this case.  See Mas v. United States, No. 92-1392,                                   ___ ___    _____________            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.                                                     __  _____________            O'Brien, 972 at 16 ("so long as the charge, taken as a whole,            _______            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.                                                                ________                                         -15-            Appellee's request for damages and costs  pursuant to Fed. R.            Civ. P. 38 is denied.                                                        ______                                         -16-
