
USCA1 Opinion

	




          June 1, 1992          [NOT FOR PUBLICATION]                              _________________________          No. 91-2318                        ALBERT M. CHURILLA, JR., ETC., ET AL.,                               Plaintiffs, Appellants,                                          v.                     WACHUSETT MOUNTAIN ASSOCIATES, INC., ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                         and Pettine,* Senior District Judge.                                       _____________________                              _________________________               William C. Flanagan, with whom Edward J. McDonough,  Jr. and               ___________________            _________________________          Egan, Flanagan and Cohen, P.C., were on brief, for appellants.          ______________________________               L. Jeffrey Meehan, with whom Claire L. Thompson and Doherty,               _________________            __________________     ________          Wallace, Pillsbury and Murphy, P.C.,  were on brief, for appellee          ___________________________________          R.H. White Construction Co., Inc.                              _________________________                              _________________________          _______________          *Of the District of Rhode Island, sitting by designation.                    Per Curiam.  This is a diversity suit brought by Albert                    __________          M.  Churilla, Jr.  and  Frances A.  Churilla,  parents of  Teresa          Churilla  and personal  representatives of  her estate.   Teresa,          then  age 19, was killed in a  skiing accident that took place on          January 31, 1986.  Her parents sued.  The defendants included the          owners and  operators of  the  ski facility  (Wachusett  Mountain          Associates, Inc. and  Joseph O'Brien);  the designer  of the  ski          slopes (Sno-Engineering, Inc.), and the construction company that          rehabilitated the  trail on  which  the accident  occurred  (R.H.          White Construction Company).                    The plaintiffs'  claims against all the defendants were          consolidated for trial.1  At  the close of all the  evidence, the          district  court granted  White's motion  for a  directed verdict.          See Fed. R. Civ. P. 50(a).  The court stated:           ___                    It's a matter of legal responsibility.  Legal                    responsibility   here    depends   upon   the                    relations of  the parties.   The relation  of                    White . . . was subordinate, subordinate in a                    way that was perfectly understandable on this                    evidence for a contractor to function.                    You're  dealing  with  a  particular  kind of                    construction    project   with    an   expert                    architect/designer  who is  largely directing                    the[] efforts.                    There's no showing that there  was brought to                    [White's]   attention   at   any   time   any                    reasonable suggestion of  danger by  creating                    this  particular  condition  even if  [White]                    could be charged with creating it.   So, as a                    matter of law .  . . I will grant  the motion                    for directed verdict for White.                    The plaintiffs appeal.  Their sole assignment of  error          questions the propriety of the directed verdict in White's favor.                                        ____________________               1The  plaintiffs  settled  with Sno-Engineering  during  the          trial.   Their  case  against Wachusett  Mountain Associates  and          O'Brien went to verdict.                                          2          The yardstick by which we  must gauge the assigned error  is well          hewn:                    When directed verdicts  have been granted, we                    must examine the evidence and  the inferences                    reasonably extractable therefrom in the light                    most hospitable to the nonmovant.   To affirm                    withdrawal  of any  claim from  the jury,  we                    must find that, so viewed, the evidence would                    permit  thoughtful  factfinders to  reach but                    one  reasoned conclusion.   See  Wagenmann v.                                                ___  _________                    Adams, 829 F.2d 196, 200 (1st Cir. 1987).  In                    _____                    performing this tamisage, an  appellate court                    "may   not   consider   the  credibility   of                    witnesses, resolve conflicts in testimony, or                    evaluate the weight of the evidence."  Id.                                                            ___          Fashion House,  Inc. v. K  Mart Corp.,  892 F.2d 1076,  1088 (1st          ____________________    _____________          Cir. 1989).                    In  this case,  we  have had  the benefit  of excellent          briefs on both sides.  We have also heard oral argument, read the          trial  transcript with  care, perused  the various  exhibits, and          screened the videotape that was shown  to the jury.  Based on our          review and study of these materials, we cannot fault the district          court's assessment.                      The uncontradicted evidence showed that White, although          retained  as the general contractor for the renovation of the ski          area,2 had never  before been involved in  ski area construction.          It had  no special  expertise in  the field.   Sno, on  the other          hand,  was described at trial as "the foremost design company for          ski  areas in  the world."   The  evidence  also showed  that Sno          prepared the overall  plan for  creating new ski  trails and  for          modifying  existing  trails  at Wachusett  Mountain;  devised the                                        ____________________               2The renovations  in question  were begun  in the  summer of          1982.   While the  actual work on  the ski  trails themselves was          done  by subcontractors,  we  assume, for  argument's sake,  that          White's  duty of  care was  nondelegable  and we  therefore treat          White as if it performed the work directly.                                          3          trail markings; approved the lighting system; and supervised  all          construction.    Sno's  employee,  Ford  Hubbard,  "flagged"  and          "center-lined" the  trails to be  cut; oversaw  the clearing  and          grading activities; provided  daily on-site superintendence;  set          the final  boundaries  of the  ski trails;  and determined  their          characteristics.    In  a  nutshell,  the  evidence  demonstrated          conclusively that, by contract and in fact, White danced to Sno's          tune.                     Under  Massachusetts  law,   an  all-purpose   building          contractor with no expertise in a particular type of construction          is warranted, generally, "in relying on the advice of the various          engineering  consultants  employed  on th[e]  project."    United                                                                     ______          States v. Boston Steel Erection, Inc.,  367 F. Supp. 699, 706 (D.          ______    ___________________________          Mass. 1973).  Put more directly, such a                    contractor is  justified in relying  upon the                    plans   and   specifications  which   he  has                    contracted  to follow,  unless  they  are  so                    apparently defective that an ordinary builder                    of ordinary prudence would be put upon notice                    that  the  work was  dangerous and  likely to                    cause injury.          Romano v. Rossano Constr.  Co., 171 N.E.2d 853, 856  (Mass. 1961)          ______    ____________________          (quoting  Ryan v. Feeney &  Sheehan Bldg. Co.,  145 N.E. 321, 322                    ____    ___________________________          (N.Y. 1924)).                      Measured  against this standard,  we, like the district          court, are unable to find any significantly probative evidence of          actionable  negligence on  White's  part.   Even  if a  dangerous          condition existed  on Trail No. 7 at  the time of Teresa's death,          White could not  be held answerable for  it.  The  plaintiffs did          not prove any special  standard of care in ski  area construction          that reflected adversely upon White's performance.  They  offered                                          4          no expert testimony implicating  White.  They did not  prove that          White's  workmanship was defective.  They did not show that White          deviated  from Sno's design or ignored  Sno's instructions.  They          did not adduce any evidence that the average contractor, standing          in  White's shoes, would  have had sufficient  knowhow to quarrel          with  Sno's  directions  or to  conclude  that  Trail  No. 7  was          dangerous enough to create a risk of injury above and beyond that          ordinarily  inherent  in  downhill  skiing.    On  this   record,          reasonable persons  could not have found  White negligent without          resorting to arrant speculation and impermissible surmise.                      Given our evaluation  of the record, it  would serve no          useful purpose to plough through the factual underpinnings of the          case.  It suffices to say that when, as here, appellants have the          burden  of  proving negligence,  "the  evidence  to which  the[y]          point[] must  comprise more than fragmentary  tendrils."  Fashion                                                                    _______          House, 892 F.2d  at 1088.   See also  Anderson v. Liberty  Lobby,          _____                       ___ ____  ________    _______________          Inc., 477  U.S. 242,  249 (1986) ("there  is no  issue for  trial          ____          unless there is sufficient evidence favoring the nonmoving  party          for a jury to return a verdict for  that party"); Malave-Felix v.                                                            ____________          Volvo  Car Corp., 946 F.2d 967, 970-71 (1st Cir. 1991) (similar).          ________________          In this instance, the plaintiffs' evidence, viewed most favorably          to them, was at  most colorable, ergo, insufficient.   Hence, the          district judge did not err in directing a verdict.                    Notwithstanding  our  conclusion  that the  plaintiffs'          appeal lacks  merit, our task is  not ended.  We  must go further          and  consider  appellee's  motion  for  imposition  of  appellate          sanctions.  The fact that an appeal  is unsuccessful does not, in          itself, call for resort to Fed. R. App. P. 38, 28  U.S.C.   1927,                                          5          or  any other  source of  sanctions.   Here, given  the factually          complex nature of the  case and the stringencies that  Rule 50(a)          imposes on  the district courts, we are  not prepared to say that          plaintiffs or  their counsel acted unreasonably  in attempting to          persuade an appellate tribunal that the judge had scrutinized the          proof too grudgingly and  thereby overstepped his bounds.   Thus,          we deny the motion.                    The judgment below is affirmed.  The appellee's  motion                    The judgment below is affirmed.  The appellee's  motion                    ______________________________   ______________________          for appellate sanctions is denied.  Ordinary costs shall be taxed          for appellate sanctions is denied.  Ordinary costs shall be taxed          _________________________________   _____________________________          in appellee's favor.          in appellee's favor.          ___________________                                          6
