
USCA1 Opinion

	




                                [Not for Publication]                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1166                       WILLIAM LECLAIRE AND MICHELLE LECLAIRE,                               Plaintiffs, Appellants,                                          v.                         BLACKSTONE VALLEY ELECTRIC COMPANY,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Mark L. Smith for appellants.            _____________            James A. Ruggieri with whom Higgins, Cavanagh & Cooney was on            _________________           __________________________        brief for appellee.                                 ____________________                                  December 18, 1996                                 ____________________                      STAHL, Circuit Judge.  Plaintiffs-appellants                      STAHL, Circuit Judge.                             _____________            William and Michelle Leclaire commenced this diversity action            against defendant-appellee Blackstone Valley Electric Company            ("BVE") alleging negligence that led to injuries from            electrocution.1  Leclaire appeals the district court's grant            of BVE's motion for judgment as a matter of law and its            denial of his motion for new trial.  Addressing each ruling            in turn, we affirm.                                          I.                                          I.                                          __                             Judgment As a Matter of Law                             Judgment As a Matter of Law                             ___________________________                      At the close of Leclaire's case in chief, the            district court granted BVE's motion for judgment as a matter            of law, pursuant to Fed. R. Civ. P. 50(a).  The court ruled            that Leclaire failed to offer evidence from which a jury            could reasonably find that BVE's alleged negligence caused            Leclaire's injuries.  On appeal, Leclaire presses his            contention that a jury could reasonably find that BVE                                            ____________________            1.  For  simplicity, and  because Michelle  Leclaire's claims            are  derivative of those of William Leclaire, we refer to the            appellants collectively as "Leclaire."                      We note also  that Leclaire  initially joined  E.W.            Audet & Sons, Inc.  ("Audet"), originally a  party-defendant,            in this appeal.   Leclaire conceded  at oral argument  before            this court,  however, that he  failed to produce  evidence to            establish  any negligence on the part of Audet.  Accordingly,            on November 8, 1996,  we ordered this appeal dismissed  as to            Audet.   While the  case proceeds  as to  BVE only,  Audet is            entitled to costs on appeal pursuant to Fed. R. App. P. 39.            negligently installed an electrical wire, leading to the            accident which caused his injuries.            A.  Standard of Review            ______________________                      We review de novo the grant of a motion for                                __ ____            judgment as a matter of law.  Andrade v. Jamestown Hous.                                          _______    _______________            Auth., 82 F.3d 1179, 1186 (1st Cir. 1996); Bates v. Shearson            _____                                      _____    ________            Lehman Bros., Inc., 42 F.3d 79, 81 (1st Cir. 1994).  The            __________________            motion is properly granted when the evidence and inferences            reasonably drawn therefrom, viewed most favorably to the non-            movant, permit only one reasonable conclusion.  Resare v.                                                            ______            Raytheon Co., 981 F.2d 32, 34 (1st Cir. 1992).  In this            ____________            analysis, "we may not consider the credibility of witnesses,            resolve conflicts in testimony, or evaluate the weight of the            evidence."  Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir.                        _________    _____            1987).                      Nevertheless, the non-movant's evidence "must            comprise more than fragmentary tendrils:  a mere scintilla of            evidence is not enough to forestall a [judgment as a matter            of law], especially on a claim or issue as to which the            burden of proof belongs to the objecting party."  Fashion                                                              _______            House, Inc. v. K mart Corp., 892 F.2d 1076, 1088 (1st Cir.            ___________    ____________            1989).  The non-movant "may not rely on conjecture or            speculation, rather the evidence offered must make the            `existence of the fact to be inferred more probable than its            nonexistence.'"  Richmond Steel, Inc. v. Puerto Rican Am.                             ____________________    ________________                                         -3-                                          3            Ins. Co., 954 F.2d 19, 22 (1st Cir. 1992) (quoting Carlson v.            ________                                           _______            American Safety Equip. Corp., 528 F.2d 384, 386 (1st Cir.            ____________________________            1976)).                      With these principles in mind, we review the trial            evidence in the light most favorable to Leclaire.            B.  Facts            _________                      On April 27, 1994, William Leclaire sustained            severe injuries when a piece of aluminum coil that he was            holding struck an aerial primary-distribution wire carrying            some 8000 volts of electricity.  At the time of the accident,            Leclaire, an experienced vinyl and aluminum siding installer,            was applying aluminum trim to a three-story residential            building on Chester Street in Woonsocket, Rhode Island.  He            was working on an aluminum staging unit that he had erected            in order to reach the top story.  The staging unit, which            Leclaire had placed approximately one foot from the front of            the house, extended approximately fifty-six inches in the            direction of several wires attached to two utility poles.                      Working from right to left along the front of the            house, Leclaire, without incident, installed beneath the roof            line two segments of aluminum trim, each approximately nine-            feet six-inches in length.  He was situated near the left            side of the house when the accident occurred.  As he turned            to install the third and last segment, the aluminum trim came            into contact with the primary-distribution electrical wire,                                         -4-                                          4            the top wire running between the two poles.  The ensuing            electrical shock threw Leclaire some twenty-five feet to the            ground, leaving him with a broken back and severe burns.                      BVE had upgraded the electrical service in the            Chester Street area in late 1987 or early 1988.  The upgrade            project included the installation of new utility poles and            hardware to which several electrical wires were to be            attached.  BVE's engineering department provided the            specifications to its installation subcontractor for the            placement of the primary distribution wire.  For the upgrade            project, BVE's design operated under the accepted standards            of the National Electrical Safety Code, which required that            wires such as the primary distribution wire be placed at            least five feet (sixty inches) from buildings.                      At the time of the upgrade, a wooden device called            a "cross-arm," attached to the top of a utility pole, could            have provided extra clearance between the wires and the            adjacent structures.  Although the upgrade specifications did            not call for the use of a cross-arm, BVE's engineering            department would, on occasion, authorize a deviation from its            usual specification to allow for a cross-arm in order to            satisfy the five-foot standard.  The specifications did            authorize the use of a special "MIF" bracket, if necessary,            in order to meet the five-foot standard.                                         -5-                                          5                      Following the accident, Robert Mowry, a BVE crew            chief, located a burn mark on the wire, across from the left            side of the house, where the aluminum trim segment had come            into contact with it.  Mowry found the distance from the burn            mark to the point of the house closest to the wire to be            sixty inches.  At a later date, James O. Corriveau, a witness            for Leclaire, measured the distance from the wire to the            house at both the extreme right and left sides of the house            front.  Corriveau found that the wire was "roughly around"            fifty-three to fifty-four inches from the right side, and            "around sixty-two inches, somewheres around there" from the            left.2                      Leclaire's expert witness, Donald W. Zipse,            testified that because the wire failed to meet the five-foot            standard on the right side of the house, the wire was not            safely installed.  Zipse conceded, however, that at each            point where the wire was five feet or more from the house, it            did satisfy the clearance standard.  Zipse further testified            that, in 1987 or 1988, he had on one occasion installed an            insulated version of an aerial primary distribution wire            similar to the one on Chester Street.  He did not testify            why, when or where he used the insulated wire, nor did he                                            ____________________            2.  Corriveau also  testified that, at the  extreme left-hand            side of the house,  the wire was some forty  inches below the            roof line.                                         -6-                                          6            explain under what circumstances insulated wires would or            should be used.            C.  Discussion            ______________                      At trial, Leclaire attempted to establish that            BVE's placement of the electrical wire violated the five-foot            clearance standard of the National Electrical Safety Code.             On the Rule 50(a) motion, the district court found that the            only evidence tending to show that BVE had failed to meet any            applicable standard of care was the clearance shortfall            located on the right side of the house, well away from the            contact point between the aluminum strip and the wire.  The            uncontroverted evidence established, however, that the            distance between the house and the contact point was five            feet.  Because Leclaire did not prove that the failure to            meet the clearance standard at a different point caused the            accident, the court granted BVE's motion for judgment as a            matter of law.                      Upon careful review of the record, we agree that            there is no evidence from which a jury could rationally find,            by a preponderance of the evidence, that the failure to meet            the clearance standard at the right side of the house caused            or contributed to the accident at the left, where the            standard was shown to have been satisfied.  The absence of            such evidence precludes Leclaire from prevailing on a            negligence claim based on a violation of the clearance                                         -7-                                          7            standard.  See Radcliffe v. Haun, 593 So. 2d 824, 826 (La.                       ___ _________    ____            Ct. App. 1992) (finding no evidence of causation where            electric company's power-line clearance infractions occurred            at points other than plaintiff's location when he was            injured), writ denied, 599 So. 2d 313 (La. 1992); see also                      ____ ______                             ___ ____            Kennedy v. Tempest, 594 A.2d 385, 388 (R.I. 1991) (explaining            _______    _______            that a plaintiff in a negligence action must establish not            only duty and breach, "but also that the defendant's            negligence was the proximate cause of the plaintiff's            injury"); Schenck v. Roger Williams Gen. Hosp., 382 A.2d 514,                      _______    _________________________            517 (R.I. 1977) (explaining that a verdict for plaintiff in            negligence action absent competent evidence establishing a            causal connection would only "be based on conjecture and            speculation").                      Leclaire does not dispute this conclusion as a            matter of law or logic; he argues, instead, that the jury was            free to disregard Mowry's testimony that the clearance at the            point of contact was sixty inches.  It is clear, however,            that in the context of a Rule 50(a) motion, "a bare assertion            that the opposing party's uncontroverted evidence might be            disbelieved is insufficient to resist judgment as a matter of            law on an issue as to which the party resisting judgment            bears the burden of proof."  Favorito v. Pannell, 27 F.3d                                         ________    _______            716, 721 (1st Cir. 1994) (upholding grant of Rule 50(a)            motion where non-movant "relied entirely on the totally                                         -8-                                          8            unsupported speculation that a jury might disbelieve [a            witness's] uncontroverted testimony").  This rule has no less            application where, as here, the party resisting judgment            introduced the uncontroverted evidence.                      In a related vein, Leclaire asserts that, on a            motion for judgment as a matter of law, the district court            must consider only evidence favorable to him, and thus, it            should have disregarded entirely Mowry's testimony            establishing the five-foot clearance at the point of the burn            mark.  Leclaire's argument misconstrues the law.  While the            district court (and this court on review) must view the            evidence in the light most favorable to the non-movant, the            analysis does not necessitate the complete disregard of            uncontroverted evidence that happens to be unfavorable to            that party.  See Layne v. Vinzant, 657 F.2d 468, 472 (1st                         ___ _____    _______            Cir. 1981) ("[W]hile, on a defendant's motion [for judgment            as a matter of law], it is axiomatic that the evidence is to            be viewed in the light most favorable to the plaintiff, the            `field of vision' encompasses, to a degree, uncontradicted            evidence introduced by the defense.").3                                            ____________________            3.  Leclaire cites Samuels v. Hood  Yacht Sys. Corp., 70 F.3d                               _______    ______________________            150, 152-53 (1st  Cir. 1995),  to support his  claim that  he            should not  be bound by his  witness's unfavorable testimony.            In Samuels,  plaintiffs' witness testified  ambivalently both               _______            in favor  of and adverse to the plaintiffs' case  Id. at 152.                                                              ___            We reversed the district court's directed verdict, explaining            that  the  plaintiffs  "were  not  bound  by  their  expert's            reversal," but rather, "a witness may be believed in part and            disbelieved in part  . .  . [w]here [the  witness] was  self-                                         -9-                                          9                      In the alternative to his argument that the jury            could disbelieve Mowry's testimony, Leclaire highlights            evidence that, he claims, reasonably conflicts with the five-            foot measurement.  Specifically, Leclaire asserts that            because the wire was short of the standard on the right side,            but exceeded the standard on the left, the jury could have            found that the distance from the contact point was less than            five feet.  We disagree.  Leclaire presented only rough            measurements coupled with his approximate location (as he            held the nine-foot six-inch aluminum trim segment), some two-            thirds down towards the left side of the house, at the time            of the accident.  He did not provide, with any specificity, a            measurement of the burn mark location as between the right            and left sides of the house.  Finally, he introduced no            testimony to assist the jury in making any mathematical            calculation to support the asserted fact.  A jury finding            cannot be based on this type of unguided reasoning, and on            this state of the evidence, a jury could not reasonably find            that the wire was less than five feet from the house at the            point of contact.                      Leclaire finally argues that the jury could have            found that BVE breached a duty independent of the clearance            standard.  To this end, he asserts that "common sense"                                            ____________________            contradictory."   Id. at 152,  153 (citation  omitted).   The                              ___            absence  of  such  self-contradiction  here  renders  Samuels                                                                  _______            inapposite.                                         -10-                                          10            dictates that BVE should have foreseen that the Chester            Street residence would require periodic maintenance such as            siding, and thus, BVE should have insulated the primary            distribution wire, or placed the wire farther from the            building.  The evidence presented, however, would not support            a finding of negligence on this theory.                      Under Rhode Island law, it is well-established that            "a reasonable and legitimate inference that someone was            negligent is not necessarily warranted by the mere happening            of an accident."  Montouri v. Narragansett Elec. Co., 418                              ________    ______________________            A.2d 5, 9 (R.I. 1980).  Rather, the plaintiff must produce            sufficient, competent evidence of the essential elements of a            negligence claim, including the defendant's duty to the            plaintiff and the breach of that duty.  See id. at 9-10;                                                    ___ ___            Radigan v. W.J. Halloran Co., 196 A.2d 160, 163 (R.I. 1963)            _______    _________________            ("In every instance before negligence can be predicated of a            given act, back of the act must be sought and found a duty to            the individual complaining, the observance of which duty            would have averted or avoided the injury" (quotation and            citation omitted)).  While Rhode Island courts recognize that            companies distributing electricity must exercise great care            in their operations, see Rott v. Blackstone Valley Gas &                                 ___ ____    _______________________            Elec. Co., 106 A.2d 251, 255 (1954), the evidence presented            _________            must be sufficient to allow a finding that BVE failed to            exercise such a degree of caution in this case.                                         -11-                                          11                      Leclaire did not produce evidence sufficient to            prove that BVE negligently failed to insulate the primary            distribution wire.  In Rhode Island "there is no absolute            duty to insulate wires carrying electricity."  Rott, 106 A.2d                                                           ____            at 254.  In Rott, the plaintiff claimed that he informed the                        ____            electric company that high tension wires were interfering            with a construction project, but the company took no steps to            diminish the danger.  Id. at 253.  The court held that, under                                  ___            the alleged facts, a duty to insulate high tension wires            could arise "by reason of special circumstances" of which the            defendant had knowledge.  Id. at 254.  Here, no such                                      ___            circumstances were shown.  Leclaire did not show that BVE had            knowledge of his siding project on Chester Street; indeed,            Leclaire admitted that, although he had previously informed            electric companies when wires interfered with his work, he            failed to do so here.  Moreover, as indicated above, the            expert Zipse's unembellished testimony that he once used an            insulated wire in 1987 or 1988 is utterly unhelpful in this            regard.                      Leclaire also failed to show that BVE violated some            duty to place the wire farther away from the Chester Street            residence.  The evidence that special brackets or cross-arms            were available to satisfy the five-foot clearance standard            does nothing to prove that BVE violated a duty to exceed that                                                              ______            standard through the use of those alternatives.  No witness                                         -12-                                          12            opined that the five-foot standard was inadequate, nor was            there evidence even hinting at what a specific "appropriate"            distance from the house would have been.  On the contrary,            abundantly clear from the record is Leclaire's attempt to            establish negligence based on the violation of the five-foot            standard.  We are unpersuaded by his endeavor to fashion a            different theory of negligence from the evidence.                                         II.                                         II.                                         ___                                Motion For a New Trial                                Motion For a New Trial                                ______________________                      Leclaire appeals the district court's denial of his            motion for a new trial, purportedly sought under the            authority of Fed. R. Civ. P. 50(c)(2).  He advances no            arguments other than those which we have already found            unavailing.  Thus, assuming but not deciding that a Rule            50(c)(2) motion for new trial will lie where, as here, a case            has not gone to the jury,4 we find no abuse of discretion in            the district court's denial of the motion.                                         III.                                         III.                                         ____                                      Conclusion                                      Conclusion                                      __________                      For the foregoing reasons, the judgment of the            district court is affirmed.                      Costs to appellees.                      Costs to appellees.                      ___________________                                            ____________________            4.  The advisory  committee's note  to the 1963  amendment of            Rule  50  suggests that  relief  under  subsection (c)(2)  is            limited to a verdict-winner who loses on a renewed motion for                         ______________            judgment  as a matter  of law.   Fed. R. Civ.  P. 50 advisory            committee's note.                                         -13-                                          13
