
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1603                                   CARMEN CLEMENTE,                                Plaintiff, Appellant,                                          v.              CARNICON-PUERTO RICO MANAGEMENT ASSOCIATES, L.C., ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                              _________________________               Adrian Mercado for appellant.               ______________               Jose A. Fuentes Agostini, with  whom Totti, Rodriguez Diaz &               ________________________             _______________________          Fuentes and Carlos A. Ramos were on joint brief, for appellees.          _______     _______________                              _________________________                                    April 14, 1995                              _________________________                    SELYA,  Circuit  Judge.     Plaintiff-appellant  Carmen                    SELYA,  Circuit  Judge.                            ______________          Clemente brought an unsuccessful  negligence suit against several          defendants affiliated with La Concha, a resort hotel in San Juan,          Puerto  Rico.1  She now appeals.  After carefully considering her          plaints, we affirm.          I.  BACKGROUND          I.  BACKGROUND                    On August 11, 1992,  appellant, a citizen of  New York,          traveled to Puerto Rico.  She registered as a guest at La Concha.          At 10:30  that evening,  while exiting  the piano  bar, appellant          slipped on the second step of a small, carpeted stairway.  Having          neglected  to  use the  handrail,  she  plummeted to  the  floor,          posterior  first, sustaining  a fractured  right ankle  and other          injuries.                    Invoking  diversity  jurisdiction,  28  U.S.C.     1332          (1988),  appellant brought  suit  in the  United States  District          Court for  the District of  Puerto Rico.   In her  complaint, she          posited  two theories  of  tortious conduct  under Puerto  Rico's          general negligence  statute,2  alleging that  the defendants  not          only failed to  keep the  stairs free of  foreign substances  but          also inadequately illuminated them.  The first allegation stemmed                                        ____________________               1For  simplicity's sake,  we  do not  distinguish among  the          entities that have been  sued, but refer to them  collectively as          "the defendants."               2The statute provides in pertinent part:                         A person who by an  act or omission                         causes  damage  to another  through                         fault   or   negligence  shall   be                         obliged  to  repair  the damage  so                         done. . . .           P.R. Laws Ann. tit. 31,   5141 (1991).                                          2          from  appellant's claim  that  the stairs,  at  the time  of  her          tumble, were suffused with some sort of liquid (an inference that          she drew  from  the dampness  in  her  pants and  on  her  person          following her spill).                    Trial commenced on April 20, 1994.  At the close of the          plaintiff's case,  the judge remarked that  visiting the accident          scene  might assist the jury.   When neither  party objected, the          judge ordered a view to take place at approximately 7:00 p.m.  In          implementing the order, the judge provided very little structure.          He neglected to give  the jurors any detailed instructions  or to          enlist the  court reporter's  participation.  Once  the entourage          reached La  Concha, the jurors conversed  freely among themselves          and at least  one juror touched foot  to stair.  It  is alleged            though disputed   that the jurors also spoke with the judge.                    Despite these  informalities, appellant did  not object          at  any point before or during the  view, nor did she solicit any          jury  instructions concerning the  view, nor did  she request the          presence  of a  reporter.   It was  not until  the next  day that          appellant  for   the  first  time  objected  to   the  view  and,          concomitantly, moved  for a  mistrial.   The judge  overruled her          objection and  denied her motion.   Even then,  appellant neither          asked  to interview the jurors nor requested any sort of curative          instruction.                    At the  close of all  the evidence, the  district court          defenestrated the  claim  of careless  maintenance, granting  the          defendants'  motion for judgment as a matter of law under Fed. R.                                          3          Civ. P. 50(a), and sent the case to the jury only on the parallel          claim  of poor illumination.  Appellant did  not ask the court to          comment  on   the  evidentiary  status   of  the   view  in   its          instructions,  and the court did not do  so.  The jury returned a          defendants' verdict.                    Before  us,  appellant asserts  that  the jury  verdict          should  be set aside because the defects associated with the view          warranted a  mistrial.   Additionally, she assigns  error to  the          district court's handling of her negligent maintenance claim.  We          take these grievances one step at a time.          II.  THE VIEW          II.  THE VIEW                    Appellant's principal assignment  of error features the          district  court's denial  of  her motion  for  a mistrial.    The          asseveration rests  on the  premise that defects  associated with          the  view required a new beginning.  Thus, the question presented          reduces, in the first instance, to the status of the view itself.                    In  order to secure  our footing, we  begin with common          ground:   a federal  court, exercising  its inherent  powers, may          allow a  jury in either a civil or a criminal case to view places          or objects outside the  courtroom.  See United States  v. Passos-                                              ___ _____________     _______          Paternina, 918 F.2d 979,  986 (1st Cir. 1990), cert.  denied, 499          _________                                      _____  ______          U.S.  982 (1991), and cert.  denied, 501 U.S.  1209, 1210 (1991).                            ___ _____  ______          Whether to  permit  a jury  to  conduct a  view  in a  particular          situation is a question  committed to the trial court's  informed          discretion.  See United States v. Pettiford, 962 F.2d 74, 76 (1st                       ___ _____________    _________          Cir. 1992); United States v. Drougas, 748 F.2d 8, 30-31 (1st Cir.                      _____________    _______                                          4          1984);  see generally Hulen D. Wendorf, Some Views on Jury Views,                  ___ _________                   ________________________          15  Baylor  L.  Rev.  379,  390-92  (1963)  (cataloguing  several          considerations  that  may  enter  into  a  judge's  discretionary          decision to grant or deny a view).                    Though  discretionary  at  the  outset,  a  view,  once          authorized,   should   embody  certain   fundamental  safeguards.          Collectively, these  safeguards are  aimed at achieving  fairness          and maximizing  the trial's  truth-seeking function.   We limn  a          five-step protocol that a  court customarily should follow before          and during a view.                    First, counsel should be alerted to  a proposed view at          the  earliest practicable  time  and given  an opportunity  to be          heard concerning  it.    See John  R.  Allison,  Combinations  of                                   ___                     ________________          Decision-Making  Functions, Ex Parte  Communications, and Related          _________________________________________________________________          Biasing Influences:   A Process-Value Analysis, 1993 Utah L. Rev.          ______________________________________________          1135, 1218-19.                    Second, because the rule in this circuit is that a view          does not itself constitute or  generate evidence, the jury should          be instructed prior to embarking on the view that the view itself          is not evidence  as such, but,  rather, is simply a  mechanism to          facilitate  contextualization of the evidence.3   See 1 Edward J.                                                            ___                                        ____________________               3While  this position  represents the  majority view,  see 2                                                                      ___          John W.  Strong et al., McCormick  on Evidence   216,  at 27 (4th                                  ______________________          ed.  1992)  (noting  that  "[a] large  number  of  jurisdictions,          probably  a majority, holds that a view is not itself evidence"),          some  courts   have  ruled  to  the   contrary,  particularly  in          connection  with  bench  trials.   See,  e.g.,  Lillie v.  United                                             ___   ____   ______     ______          States, 953 F.2d 1188, 1190 (10th Cir. 1992) (stating that a view          ______          in a bench trial  is evidence, though acknowledging cases  to the          contrary).   But see Processteel,  Inc. v. Mosley  Mach. Co., 421                       ___ ___ __________________    _________________                                          5          Devitt  et al., Federal Jury Practice and Instructions   5.14, at                          ______________________________________          133 (1992) ("Ordinarily,  when the  jury takes a  view the  court          explicitly instructs them that they are not to consider what they          see as evidence in a case, but that  the view is merely to enable          them to apply  the evidence in the case.").   Upon timely request          of  either party, the court should include a similar statement in          its final charge.                    Third,  counsel  should  be given  the  opportunity  to          attend the view, although the judge may, in his discretion, place          limits on their interaction with the subject of the view and with          the jurors.  See 2 John W. Strong et al., McCormick on Evidence                         ___                          _____________________          216, at 26 (4th ed. 1992); Allison, supra, at 1218-19.                                              _____                    Fourth, because the  judge's oversight is  as necessary          at a  view  as in  the  course of  the  trial proper,  the  judge          ordinarily should attend the  view.  See 2 Strong  et al., supra,                                               ___                   _____          at 27; Allison, supra, at 1219; Wendorf, supra, at 393.                          _____                    _____                    Fifth, the court should employ some method of fully and          accurately recording  that which transpires at  the view, usually          by enlisting the  attendance of a court reporter.   See Lillie v.                                                              ___ ______          United  States, 953 F.2d 1188, 1191 (10th Cir. 1992) (noting that          ______________          where  "there is  no  record  of  the  view,  the  litigants  may          effectively  be  denied  any  means  of  challenge  on  appeal");          Allison, supra, at 1219-20.                     _____                    We add  a caveat:   the  list we  have compiled is  not                                        ____________________          F.2d 1074, 1076 (6th  Cir. 1970) (disapproving of "a  fact finder          using  visual inspection  .  . .  in  the place  of  testimony to          resolve factual issues").                                          6          intended to be exhaustive or inflexible.  There may very well  be          other   precautions,   not   recounted   above,    that   deserve          consideration in  the particular  circumstances of a  given case.          Similarly,  while the enumerated  procedures ordinarily should be          employed,  we are  reluctant to  impose a  rigid format  upon the          trial  bench.   Thus,  if circumstances  warrant,  the court  may          innovate  (even  if  innovation necessitates  departing  from the          list).                    Last  but not  least, we  emphasize that  the onus  for          implementing these safeguards does  not rest exclusively upon the          trial judge.   When a  judge orders  a view but  strays from  the          prophylaxis  that should  accompany  it, an  offended party  must          bring  the  omissions to  the  judge's  attention  in  a  timeous          fashion,  and, if necessary, lodge a formal objection.  A party's          failure to take appropriate action will, in most cases, foreclose          an appeal predicated on the omission of standard safeguards.                    The case  at bar  vividly illustrates this  last point.          Although  the  court ignored  some  of  the standard  safeguards,          appellant  did not preserve her right to contest the propriety of          what transpired.   Before the  fact, appellant acquiesced  in the          court's suggestion that the jury observe the accident scene.  She          failed  either to request that a court stenographer be present or          to  object when the judge  did not spontaneously  arrange for the          reporter's attendance.   And,  she compounded these  omissions by          not asking that the jurors be given explicative instructions.                    To make  a bad situation  worse, appellant's  lassitude                                          7          continued after the  view had  been completed.   Though she  made          speculative  allegations  of  misconduct  when she  moved  for  a          mistrial, she  neither sought an  opportunity to  conduct a  voir          dire  in  order  to  transform  conjecture  into  hard  fact  nor          requested  a curative  instruction  to alleviate  potential harm.          Given  this history  of inattention,  the record simply  will not          support appellant's assignment  of error.   See, e.g., Reilly  v.                                                      ___  ____  ______          United  States, 863 F.2d 149,  160 (1st Cir.  1988) (stating rule          ______________          that  "when a trial judge  announces a proposed  course of action          which   litigants   believe   to   be  erroneous,   the   parties          detrimentally affected  must act expeditiously to  call the error          to the judge's  attention or  to cure the  defect"); Merchant  v.                                                               ________          Ruhle,  740 F.2d 86, 92 (1st Cir. 1984) (warning against attempts          _____          to convert "agreeable acquiescence  to perceivable error [into] a          weapon of  appellate advocacy");  see generally United  States v.                                            ___ _________ ______________          Camporeale,  515  F.2d 184,  188 (2d  Cir. 1975)  (observing that          __________          "normally the failure  of counsel to register a  timely objection          to the submission of improper evidence to the jury will be deemed          a waiver").                    Appellant's   eleventh-hour   motion   to   abort   the          proceedings did not miraculously cure the sapping effects of this          string of waivers.  Parties cannot casually forgo contemporaneous          objections   and  then  make  up  lost  ground  by  means  of  an          afterthought  motion for mistrial.   Such a motion is not a ready          substitute for a timely  objection.  See, e.g., United  States v.                                               ___  ____  ______________          Tropeano,  476 F.2d 586,  587-88 (1st Cir.)  (upholding denial of          ________                                          8          motion  for   mistrial  where  movant  forwent   several  earlier          opportunities to  correct alleged error), cert.  denied, 414 U.S.                                                    _____  ______          839 (1973); Saville v. United States, 400 F.2d 397, 400 (1st Cir.                      _______    _____________          1968) (similar), cert. denied,  395 U.S. 980 (1969).   A contrary                           _____ ______          rule would  inject gross  unpredictability into trials,  would be          unfair to  diligent  litigants,  and  would  seriously  undermine          judicial  economy.  See Saville, 400 F.2d at 400 (explaining that                              ___ _______          "`the burden is  on the  [adversely affected party]  to take  his          objection at the earliest possible opportunity when, by so doing,          he  can enable  the  trial judge  to  take the  most  efficacious          action'") (quoting Holden v. United  States, 388 F.2d 240, 242-43                             ______    ______________          (1st Cir.), cert. denied, 393 U.S. 864 (1968)).                      _____ ______                    Although   appellant  waived   any  objection   to  the          implementation of the jury view, we note that, in all events, the          alleged errors  seem benign.  Appellant  describes four potential          sources  of prejudice:  (1) that  the judge  did not  utilize the          services  of a court reporter or some other means of recordation;          (2) that  the judge may have  conversed with the  jury during the          view;  (3) that one or  more jurors may  have "experimented" with          the stairway in an attempt to recreate the accident; and (4) that          the lighting and condition  of the stairway during the  view were          materially different than at  the time of the accident.   None of          these allegations succeeds.                     The absence of  a court reporter, though  ill-advised,          bears no obvious relationship  to the outcome of this  case, and,          hence, it  cannot,  without more,  be  deemed prejudicial.    See                                                                        ___                                          9          Northwestern Nat'l Casualty Co. v. Global Moving & Storage, Inc.,          _______________________________    _____________________________          533  F.2d  320, 323  (6th Cir.  1976).   Similarly,  there  is no          indication  that the judge's alleged interaction  with the jury            which,  if it  occurred at  all, evidently  consisted of  a juror          asking  the  judge  if  the  bar  lights  could  be  activated             prejudiced appellant's  substantial rights.    See, e.g.,  United                                                         ___  ____   ______          States  v. Taylor, 562 F.2d 1345, 1366 (2d Cir.) (finding private          ______     ______          communication between  judge and  juror harmless),  cert. denied,                                                              _____ ______          432  U.S.  909 (1977),  and cert.  denied,  434 U.S.  853 (1977).                                  ___ _____  ______          Next, while we do not condone freewheeling experimentation on the          jurors' part  during a  view, what  occurred here  was apparently          limited to a juror scuffing the stairway with the sole of a shoe.          Appellant  has not  suggested how  such conduct  might  have been          harmful  in fact, cf.  People v. Hardy, 825  P.2d 781, 835 (Cal.)                            ___  ______    _____          (en banc) (finding "no  reasonable probability . . .  [of] actual          prejudice" where the trial court permitted a juror, during a view          of a crime  scene, to examine  a door and to  have it opened  and          closed), cert. denied, 113  S. Ct. 498 (1992), and  cert. denied,                   _____ ______                          ___  _____ ______          113 S. Ct. 987 (1993), especially since the experiment  seemingly          had relevance only to  the negligent maintenance claim    a claim          that  in  the  long  run  never  reached  the  jury.4    Finally,                                        ____________________               4Another  problem with this claim of error is that the trial          court has discretion to permit some degree of experimentation  by          jurors in the course of a view.  See Wendorf, supra, at 394  ("In                                           ___          _____          the exercise of sound judicial discretion, it may on occasion . .          . be useful to permit the conduct of  experiments at the view.").          On this sketchy  record, there is  no principled way that  we can          find an abuse of discretion in the court's implied consent to the          anonymous juror's modest experiment.                                          10          appellant's conclusory allegation that the conditions surrounding          the staircase  during the view were  "dramatically different than          those conditions at the time of the accident"  falls far short of          establishing that any prejudicial  error actually resulted.5  See                                                                        ___          Northwestern Nat'l Casualty, 533 F.2d at 323 (upholding jury view          ___________________________          even though "the  appearance of  the site had  changed since  the          relevant events"); Martin v. Gulf States Utils. Co., 344 F.2d 34,                             ______    ______________________          37 (5th Cir. 1965)  (upholding jury view even though  the scene's          "physical  appearance had  been substantially  altered since  the          accident").                    When all is said and done, we must affirm the denial of          appellant's  motion  for  a   mistrial  despite  the  absence  of          precautions  accompanying the  view's  implementation.    Because          appellant neither  preserved her  rights nor demonstrated  actual          prejudice, we are unable to say that the lower court, in refusing          a mistrial, abused its  discretion.  See, e.g., United  States v.                                               ___  ____  ______________          Sepulveda, 15  F.3d  1161, 1184  (1st  Cir. 1993)  ("Granting  or          _________          denying a  motion for  a mistrial  is a matter  committed to  the          trial  court's  discretion."),  cert.  denied, 114  S.  Ct.  2714                                          _____  ______          (1994); Real v. Hogan, 828 F.2d 58, 61 (1st Cir. 1987) ("A motion                  ____    _____          for mistrial is directed primarily to the sound discretion of the          trial court and its  ruling thereon will not be  disturbed unless          that discretion has been misused.").                                        ____________________               5In  any  event,  the  time to  complain  about  predictable          variations   resulting  from   changed  circumstances,   such  as          differences  in the  time  of  day,  is at  the  outset.    Here,          plaintiff did not make  a peep when the judge  scheduled the view          to take place in the early evening hours.                                          11          III.  THE DIRECTED VERDICT          III.  THE DIRECTED VERDICT                    Appellant also  contends that the trial  court erred in          granting judgment  as  a matter  of  law on  her claim  that  the          defendants negligently  tolerated  a hazardous  condition on  the          hotel's  premises.   Appellant concedes  that a  hotel is  not an          insurer  of a guest's safety.  Nonetheless, she argues that there          was  enough evidence  for  a  rational  jury  to  find  that  the          defendants knew or  should have known of the  foreign substance's          presence on the stairs in ample time to remove it.                    Appellant  adduced  no proof  that  the  defendants had          actual notice  of the danger.   Her claim  compresses, therefore,          into a claim premised  on constructive notice.  Her  basic theory          is that the jury  plausibly could have inferred that a liquid was          on  the stairs for  a period of  time sufficient  for the hotel's          staff to have discovered and removed it.  We do not agree.                    A district court may  grant a motion for judgment  as a          matter of law  "[i]f during a  trial by a jury  a party has  been          fully  heard on  an  issue and  there  is no  legally  sufficient          evidentiary basis for a reasonable jury to find for that party on          that  issue," and  the  party's entire  claim  "cannot under  the          controlling law be maintained  . . . without a  favorable finding          on that issue."   Fed. R.  Civ. P. 50(a)(1).   In executing  this          standard, the  trial  court "must  scrutinize the  proof and  the          inferences  reasonably to  be drawn  therefrom in the  light most          hospitable  to  the  nonmovant .  .  .  [and]  must refrain  from          differential factfinding;  that is  to say, the  court must  `not                                          12          consider  the  credibility  of witnesses,  resolve  conflicts  in          testimony,  or evaluate  the weight  of the  evidence.'"   Rolon-                                                                     ______          Alvarado v. Municipality of San Juan, 1 F.3d  74, 76-77 (1st Cir.          ________    ________________________          1993)  (quoting Wagenmann v. Adams,  829 F.2d 196,  200 (1st Cir.                          _________    _____          1987)).    Because  "the  court  of  appeals  is  constrained  in          precisely  the same  fashion  as the  district court  . .  ., and          because the key question revolves around the legal sufficiency of          the evidence, appellate review is plenary."  Id. at 77.                                                       ___                    In the  instant case,  appellant offered  some evidence          from which a  factfinder could  have concluded that  there was  a          foreign substance on the  staircase.  Yet, she failed  to produce          any  evidence sufficient to allow a  reasonable jury to determine          ___          that  the   hotel  had  constructive  notice   of  the  hazardous          condition.   The dampness  on her clothing may  tend to prove the          presence of a foreign substance on the stairs, but it does not in          any way demonstrate how  long the substance may have  been there.          The  personality  profile of  the  hotel  is  a two-edged  sword;          although  appellant says that the size of the complex, the number          of  waitpersons, and the scarcity of janitorial help show both an          enhanced  likelihood  of spillage  and  a  diminished ability  to          discover incipient  dangers, the same  facts also  show that  the          substance  could have emanated from  various sources at a variety          of times.    In short,  there  is nothing  at  all from  which  a          rational  juror could  do  more than  guess  about how  long  the          substance may have been in situ.                                  __ ____                    This deficiency causes appellant's claim to stumble  on                                          13          our decision  in Mas  v. United States,  984 F.2d  527 (1st  Cir.                           ___     _____________          1993).   In Mas, as  here, the  law of Puerto  Rico governed  the                      ___          issue.    There, we  affirmed the  lower  court's dismissal  of a          personal injury action    in that case, the plaintiff  claimed to          have slipped  on a small puddle of spilt  milk on the floor of an          army  commissary   on the ground that the proof failed adequately          to  demonstrate that the defendant  knew or should  have known of          the  supposedly dangerous condition.   In so doing,  we held that          the very same  statute upon which appellant's  suit depends, P.R.          Laws Ann. tit. 31,   5141, quoted supra note 2,  "requires, as an                                            _____          element,  an  affirmative  showing  by  the  plaintiff  that  the          defendant  . . . ha[d] either actual or constructive knowledge of          a dangerous condition."  Mas, 984 F.2d at 530.  So it is here.6                                   ___                    We need go no further.   In this instance, even if  the          jury believed that a  liquid saturated the stairway, there  is no          evidence from which it  sensibly could infer how long  the liquid          had been on the stairs.   Because that is so, the  jury could not          have drawn a reasonable inference  that defendants knew or should          have known of the  liquid's existence in sufficient time  to have          removed it before  Clemente appeared  on the scene.   It  follows                                        ____________________               6Appellant's   reliance  on  Colon   Miranda  v.  Plaza  Las                                            _______________      __________          Americas,  94 J.T.S. 84 (P.R.  1994), takes her  one step forward          ________          and two steps back.  Colon Miranda represents only a judgment and                               _____________          not  an opinion  of  the  Supreme  Court  of  Puerto  Rico,  and,          therefore, carries  no precedential value.   See Rivera Maldonado                                                       ___ ________________          v. Commonwealth of P.R.,  119 D.P.R. 74 (1987) (Official  English             ____________________          Translation:   No. R-85-117, slip op.  at 4-5) ("It shall  not be          appropriate to cite, as an authority or as a precedent, judgments          that are not Court opinions.  A judgment without a  Court opinion          .  . .  has  no precedential  value;  it only  has  the intrinsic          persuasive value of its rationale.").                                            14          inexorably,  as  night  follows  day,  that  the  district  court          appropriately  granted  judgment  as  a  matter  of  law  in  the          defendants' favor.          Affirmed.          Affirmed.          ________                                          15
