
USCA1 Opinion

	




          August 5, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1862                                   CHARLOTTE BEST,                                Plaintiff - Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Defendant - Appellee.                                 ____________________                                     ERRATA SHEET               The opinion of this court issued on August 1, 1994, not  for          publication, is amended as follows:               On  the cover sheet the U.S. District Judge should be Samuel          B. King, Senior U.S. District Judge.  A  footnote should be added          which   reads:     "Of  the  District   of  Hawaii,   sitting  by          designation."                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1862                                   CHARLOTTE BEST,                                Plaintiff - Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Defendant - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. Samuel P. King,* Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                _____________________               Edward T. Troy, was on brief for appellant.               ______________               Mary  Elizabeth Carmody,  Assistant  U.S.  Attorney,  Senior               _______________________          Litigation  Counsel, with  with  Donald K.  Stern, United  States                                           ________________          Attorney, was on brief for appellee.                                 ____________________                                    August 1, 1994                                 ____________________          ------------------                                        ____________________          *  Of the District of Hawaii, sitting by designation.                                         -2-          *  Of the District of Hawaii, sitting by designation.                                         -3-               Per Curiam.   This is an  appeal from a judgment  entered in               __________          favor  of  defendant-appellee,  United States,  after  a non-jury          trial in an action for alleged negligence pursuant to the Federal          Tort Claims Act ("FTCA"),  28 U.S.C.A.    1346(6), 2671,  et seq.                                                                    _______          At the conclusion of  plaintiff's, Charlotte Best's, evidence the          court granted judgment as  a matter of law for the United States.               Plaintiff-appellant Best raises four  issues on appeal:  (1)          the district court failed  to comply with the provisions  of Fed.          R. Civ. P. 52 by not stating its findings of fact and conclusions          of  law  with  sufficient  specificity  to  allow  for  effective          appellate  review,  (2) the  district  court  committed error  in          ruling that  plaintiff  failed to sustain her burden of  proof on          the  issue of negligence, (3) the district court erred in holding          that the doctrine of res ipsa loquitur did not apply to the facts                               ___ ____ ________          of this case, and (4) the district court abused its discretion in          its  control of the examination of witnesses and in excluding the          testimony of plaintiff's expert.   We affirm the judgment  of the          district court.               Best  rented skis  from  the recreational  supply center  at          Hanscom Air Force Base in Massachusetts.  Thereafter, on March 2,          1988, she injured  herself while skiing  on Mount Snow,  Vermont.          At a pre-trial conference, the parties narrowed the controvery to          the issue of whether United States' employees were negligent when          they adjusted Best's ski bindings, which in turn allegedly caused          the bindings to fail to release, thereby causing Best's injuries.               It  is  undisputed  that  Charlotte Best's  son,  Guy  Best,          returned the skis to the United States in March of 1988, and that          United States' employees  immediately put the skis  back into its          inventory.  At that time,  Best's son did not make any  complaint          to any person that any defect or negligence in adjustment  of the          skis was  the cause of  Best's accident.   The United States  was          thus  not  alerted  to the  need  to  inspect,  or preserve,  the          allegedly defective equipment or to determine whether any failure          to  properly  adjust  the  skis  was  the  cause  of  plaintiff's          accident.   On May 2, 1989,  more than a year  after the accident          occurred,  Best filed  her administrative  claim pursuant  to the          FTCA, 28 U.S.C.    2675.  And by that time  the United States was          unable to identify the allegedly defective skis  to determine the          validity of Best's claim.                 The testimony at trial was equally unhelpful in filling this          gap, as Best could not remember the serial number or  even recall          who  manufactured the  equipment she  rented.   Furthermore, even          though  she  observed  defendant's  employee  adjusting  the  ski          bindings,  she  was unable  to testify  as  to the  setting used.          Moreover, Best's expert,  Mr. Adam, testified  that in order  for          him  to give  an  opinion as  to  the cause  of Best's  accident,          whether  the bindings were  properly set  or whether  they should          have  released, he  would  have had  to  examine the  actual  ski          equipment used.   The district court thus disallowed the expert's          testimony.               At  the end of  Best's case, the  court ruled  as follows in          granting  the United States' motion  for judgment as  a matter of          law:                    I'm going to grant the motion for judgment as                                         -4-                    a matter  of law.  And  I will do so  for the                    following reasons:                    First of all, I think Vermont law applies, to                    tell  you  the  truth,  because  it  would be                    almost impossible  to  poor old  Vermont;  it                    would depend on where the person came from as                    to  what  happened.   This  happens  to be  a                    federal case  but it  could be a  state case.                    And [if] Vermont law didn't apply  to Vermont                    ski lodges, they would be in a terrible spot.                    I  also  don't believe  it  makes  much of  a                    difference  whether   it's  Massachusetts  or                    Vermont law at this stage.                    The reason I'm granting the motion is because                    there  is insufficient evidence  to justify a                    _____________________________________________                    finding that proof by a preponderance of  the                    _____________________________________________                    credible   evidence   that   there   is   any                    _____________________________________________                    connection    between    what    Mr.    Adams                    _____________________________________________                    [plaintiff's expert] says should be done when                    _____________________________________________                    -- by  the renters of the skis when they rent                    _____________________________________________                    them and what took place.                    ________________________                    The only possible thing that could be pointed                    to as  a possible error would  be the tension                    on the back blade  against the heel and there                    is no  evidence that that  wasn't appropriate                    or that that had  anything to do with causing                    the injury.                    The  only  testimony  we  have  regarding the                    setting  according to  the chart  was it  was                    three   and   a  half.      The  boots   were                    comfortable.  They  fit.   Mrs. Best  cleaned                    off  the bottoms,  didn't  notice  there  was                    anything wrong with  them.  Nobody complained                    to the  people when they sent  them back that                    there was  anything wrong with them.   So she                    could look at them.                    This  idea  that the  government has  to keep                    track of ski equipment  by serial number  and                    hang onto it for an indefinite period of time                    in  case somebody  comes in  and says  "I was                    damaged by  that particular set  of skis"  is                    just not  in the duties required  under these                    circumstances.                    If  there had  been a  complaint  about those                    particular skis  and  they had  not kept  it,                    that would  be another matter.   But it holds                    them  to a  higher level  of care  for having                    destroyed it and that does happen sometimes.                                         -5-                    So   in  my  opinion  there  is  insufficient                    evidence  of liability.    And  I  grant  the                    motion for judgment as a matter of law.          (Emphasis supplied).               Best's  brief  is  less  than  helpful  in  its  allegations          regarding the  district court's findings and conclusions pursuant          to Fed. R. Civ. P. 52(a).  As best we can glean, appellant claims          that the district court violated Rule 52(a),and deprived her of a          meaningful  appeal, because  it disregarded  plaintiff's expert's          opinion without explanation, and because it allegedly ignored the          testimony of Gary  Best, plaintiff's son, regarding the return of          the skis to the  defendant-appellee.  These allegations, however,          are not sufficient to sustain the challenge.**                                        ____________________          **  In its pertinent part Fed. R. Civ. P. 52 reads as follows:                    (a) Effect.   In  all actions tried  upon the                    (a) Effect.                    facts without  a jury .  . . the  court shall                    find the facts specially and state separately                    its  conclusions of law thereon, and judgment                    shall be entered pursuant  to Rule 58. . .  .                    Requests  for findings are  not necessary for                    purposes   of  review.    Findings  of  fact,                    whether   based   on   oral  or   documentary                    evidence,  shall  not  be  set  aside  unless                    clearly  erroneous, and  due regard  shall be                    given  to the opportunity  of the trial court                    to judge the credibility  of witnesses. . . .                    It will be sufficient if the findings of fact                    and conclusions of law  are stated orally and                    recorded in open court following the close of                    the evidence.                    (c) Judgment  on Partial Findings.  If during                    (c) Judgment  on Partial Findings.                    a trial without a jury a party has been fully                    heard on an issue and the court finds against                    the party on that  issue, the court may enter                    judgment  as a  matter  of  law against  that                    party with respect to a claim or defense that                    cannot   under   the   controlling   law   be                    maintained  or  defeated without  a favorable                    finding  on that issue. . . . Such a judgment                    shall be  supported by  findings of  fact and                    conclusions of law as required by subdivision                    (a) of this rule.                                         -6-               In its  findings pursuant to Fed.  R. Civ. P. 52,  the court          did not  explicitly  state why  it disregarded  the testimony  of          Best's  expert, Mr.  Adams.   The court, however,  had previously          given an explanation, when it excluded Mr. Adam's testmony during          the trial as an evidentiary matter.  That ruling is  not appealed          from,  and  in any  event, it  appears  to be  eminently correct.          There is no need  or requirement that the trial judge  repeat his          evidentiary  ruling later  in the  proceedings when  ruling under          Rule 52.               As to  Guy Best's  testimony, Best basically  disagrees with          the  trial   court's  ultimate  conclusion  not   to  credit  his          testimony, a  position which must  be considered pursuant  to the          requirements of  the very rule  which is relied upon,  i.e., on a          clearly  erroneous standard.   Dedham  Water v.  Cumberland Farms                                         _____________     ________________          Dairy,  972 F.2d  453,  457 (1st  Cir.  1992).   Our  independent          _____          screening of the district court's ruling, reproduced ante at 4-5,                                                               ____          leads  us to conclude that  the court's findings  are not clearly          erroneous.               This  was a  simple negligence  case, the  key to  which was          proof  that the skis used by Best  were defective because of some          action or inaction by the United States' employees.  There was no          such  proof  and no  defect was  shown,  because no  evidence was          available  regarding the  condition of  the  skis when  they were          returned.   A brief review of the district court's ruling reveals          the following essential findings of fact:  (1) The ski boots when          received by Best were  in proper condition, (2) when  returned no          one complained that there  was anything wrong with them,  and (3)          the testimony  of Best's  expert could  not connect any  improper                                         -7-          action  by defendant's employees to the accident.  The court then          concluded that this evidence as a matter of law did not establish          liability on behalf of defendant.               The  court's  findings and  conclusions  sufficiently comply          with  Rule 52(a) and did not deprive appellant of the opportunity          to  intelligently frame  her appeal.   Thermo  Electron Corp.  v.                                                 ______________________          Schiavone  Construction Co.,  958  F.2d 1158,  1160-61 (1st  Cir.          ___________________________          1992).    "[W]hat is  adequate depends  on  the importance  of an          issue,  its complexity,  the  depth and  nature  of the  evidence          presented, and  similar elements  that vary  from case to  case."          Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1238          _________________    ________________________          (1st Cir. 1994).               Best's  allegation  regarding   the  applicability  of   the          doctrine of  res  ipsa  loquitur  is  equally  misplaced.    This                       ___  ____  ________          doctrine is inapplicable  where the  instrumentality causing  the          accident  is  without  the  control  of  the  defendant  upon the          occurrence of the accident.   See Coyne v. John S. Tilley  Co., 2                                        ___ _____    ___________________          Mass. App. Ct. 641, 644, 318 N.E.2d 623, 626 (1974); Cyr v. Green                                                               ___    _____          Mountain Power Corp., 145 Vt. 231, 235-36, 485 A.2d 1265 (1984).          ____________________               Lastly, Best complains of an alleged abuse  of discretion by          the  trial  judge regarding  curtailment  of  the questioning  of          witnesses and  exclusion of the testimony  of plaintiff's expert.          We find  no such error to have been committed.  Elgabri v. Lekas,                                                          _______    _____          964 F.2d 1255, 1260 (1st Cir. 1992).               Affirmed.               ________                                         -8-
