
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 93-2377                             CHRISTINE FAVORITO, ET AL.,                               Plaintiffs, Appellants,                                          v.                              NICHOLAS PANNELL, ET AL.,                                Defendants, Appellees.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                                                                      ____________________                                Breyer,* Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Barry I. Fredericks for appellants.             ___________________             James  T. Shirley, Jr., with whom Haight, Gardner, Poor & Havens,             ______________________            ______________________________        Francis X.  Byrn, Jeanne-Marie  Downey, Roberts, Carroll,  Feldstein &        ________________  ____________________  ______________________________        Peirce and Dennis Roberts were on brief for appellees.        ______     ______________                                                                                      ____________________                                    June 22, 1994                                                                                      ____________________                                    ____________________             *Chief Judge Stephen  Breyer heard oral argument in  this matter,        but  did not participate in the drafting  or the issuance of the panel        opinion.   The remaining  two panelists  therefore issue  this opinion        pursuant to 28 U.S.C.   46(d).                    CYR, Circuit Judge.  This admiralty action stems from a                    CYR, Circuit Judge.                         _____________          late evening boating accident  which resulted in serious injuries          to plaintiffs-appellants.   Although plaintiffs  obtained default          judgments against the  operator of  the boat in  which they  were          riding at the time  of the accident, the district  court directed          entry  of judgment  as a  matter of  law in  favor  of defendant-          appellee  Pendragon Marine Ltd., the  owner of the  boat, and the          plaintiffs appealed.  Finding no error, we affirm.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    The S/Y DOLPHIN, a 75-foot sailing sloop, was moored in          Newport  Harbor for the 1990  charter season.   She was crewed by          Captain Gordon  Percy, defendant Nicholas Pannell,  the engineer,          and Robert Sass,  deckhand.   On Friday, July  27, 1990,  Captain          Percy disembarked  for a weekend  in Cape Cod,  leaving defendant          Pannell  in  charge.   Prior  to  disembarking, Percy  instructed          Pannell that he  was not to  bring guests aboard  the yacht,  the          DOLPHIN's 12-foot inflatable tender  was to be left on  deck, and          the  public launch service (for which the DOLPHIN held a season's          pass) was to be used for conveyance between the yacht and  shore.                    Appellants Christine Favorito and Lenka Viducic arrived          in  Newport the same  day.  As  fate would have  it, come evening                                          2                                          2          Favorito and Viducic met defendant Pannell,  who invited them and          a  third woman  aboard the DOLPHIN  for a  party.   Shortly after          reaching the  DOLPHIN via  the public launch  service, appellants          asked  to  be returned  to  shore.   By  this time  it  was after          midnight and the  public launch service was  no longer operating.          Disregarding Captain  Percy's  orders, Pannell  offered to  ferry          appellants  to shore in the 12-foot inflatable tender.  En route,          the inflatable  collided  with two  other vessels  moored in  the          harbor.  Investigators opined that Pannell had been operating the          tender  at   an  excessive  speed.     Favorito  suffered  facial          lacerations and a broken jaw.  Viducic received back injuries and          a  laceration   to  the   forehead.    Both   required  extensive          reconstructive and cosmetic surgery.                    Appellants   instituted  the  present   action  in  the          District of  Rhode Island against Pannell  and appellee Pendragon          Marine Ltd.   In due course, the case came to  trial.1  On motion          by  Pendragon, the district court withdrew the case from the jury          at  the conclusion  of plaintiffs-appellants'  case and  directed          entry of judgment as  a matter of law pursuant to Fed. R. Civ. P.          50(a)(1) on the ground  that no rational jury could  find against          Pendragon on any of the three causes of action.                                         ____________________               1Although  duly served,  Pannell failed  to appear;  default          judgments  were  obtained  by  Favorito  ($250,000)  and  Viducic          ($100,000).                                          3                                          3                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    A  judgment entered as a matter of law pursuant to Fed.          R.  Civ. P. 50(a)(1) is subject  to plenary review under the same          stringent standard incumbent  upon the trial  court in the  first          instance:                    [W]e  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.          Fashion House, Inc.  v. K-Mart  Corp., 892 F.2d  1076, 1088  (1st          ___________________     _____________          Cir. 1989).2            A.   Negligent Retention          A.   Negligent Retention               ___________________                    The  first cause of action  we address is  a variant on          the traditional tort  of negligent  hiring:  "an  employer has  a          [continuing] duty  to retain in its service  only those employees                                ______          who are  fit and competent."  Welsh Manuf. v.  Pinkerton's, Inc.,                                        ____________     _________________                                        ____________________               2Absent   a   federal   liability   scheme,   the  governing          substantive law in an  admiralty action is drawn from  common law          tort principles  which comport with  the tenets of  maritime law.          Lyon  v. RANGER  III, 858  F.2d 22,  27 (1st  Cir. 1988).   Rhode          ____     ___________          Island provides the principal  source of tort law relating  to an          accident within its coastal  waters.  See id. (Massachusetts  law                                                ___ ___          applies  to  accident 1/4  mile off  Cape  Cod).   Ultimately, of          course,  federal common  law  supersedes a  particular state  law          formulation  with  which it  conflicts.   Puerto  Rico v.  SS ZOE                                                    ____________     ______          COLOCOTRONI, 628 F.2d 652, 672 (1st Cir. 1980), cert. denied, 450          ___________                                     _____ ______          U.S. 912 (1981).                                          4                                          4          474 A.2d 436,  441 (R.I.  1984) (emphasis  added) (citing,  e.g.,                                                                      ____          DiCosala v. Kay, 450 A.2d  508 (N.J. 1982)).  An employer  is not          ________    ___          responsible  for employee  torts committed  outside the  scope of          employment unless the  employer (1)  had "reason to  know of  the          particular unfitness, incompetence or dangerous attributes of the          __________          employee"  and  (2) "could  reasonably  have  foreseen that  such                                                                       ____          qualities  created a risk of  harm to other  persons."  DiCosala,          _________                                               ________          450 A.2d 516 (emphasis added); accord Johnson v. Usdin Louis Co.,                                         ______ _______    _______________          591 A.2d 959, 961 (N.J. 1991).                      One week  after joining  the DOLPHIN's  crew, defendant          Pannell was  stopped  by the  Harbormaster  for exceeding  the  5          m.p.h. speed limit in Newport Harbor, and received a warning.  On          June 27, Pannell  again was  stopped for exceeding  the 5  m.p.h.          limit, and  received a  ticket.  The  next day Captain  Percy was          summoned to the Harbormaster's office, where he was informed that          it  was his  responsibility to  ensure that  his crew  adhered to          harbor  rules, and that  further infractions could  result in the          DOLPHIN's exclusion from Newport  Harbor.  Captain Percy in  turn          delivered a stern lecture to Pannell and Sass.                      There  were  no  further  incidents,  and   the  record          contains no  evidence of  recklessness or other  unreliability on          the part of Pannell, until the date of the accident approximately          one  month later.    Indeed, Percy  testified  that he  had  been          pleased with Pannell's overall  performance and described Pannell                                          5                                          5          as  a  good  engineer  and  a responsible  crewman.    Appellants          presented no evidence to the contrary.                    Appellants contend  that a  jury could  reasonably have          found that Captain  Percy was negligent  to retain Pannell  after          learning  of the  two speeding  incidents, and  they insist  that          dismissal  from employment  was  Pendragon's only  recourse.   We          conclude,  however, that  the  district court  judgment is  amply          supported  by  the  record  evidence  viewed  in the  light  most          favorable to appellants.                    Appellants  do not  identify, let  alone consider,  the          particular employee  qualities most pertinent to  their negligent          retention claim.   This would be  a very different case  were the          appropriate inquiry (as appellants would have it) whether Captain          Percy  had  reason to  believe that  Pannell  might speed  in the          harbor.   However, the proper  threshold inquiry     the sine qua                                                                   ____ ___          non to appellants'  negligent retention claim    is whether there          ___                 _________ _________          is  any evidence  that Captain  Percy had  "reason to  know," see                                                                        ___          DiCosala,  450 A.2d  516, that  Pannell might  misappropriate the          ________          DOLPHIN's  tender  for personal  use in  direct violation  of the          Captain's order.3                                          ____________________               3Careful  scrutiny   exposes      as  pure   speculation              appellants'  allegations that Pannell violated other orders given          by  Captain Percy.  For  example, appellants point  out that both          times Pannell was stopped for speeding in the harbor it was after          6:00 p.m.   Consequently, they  speculate, Pannell's  use of  the          boat  on  both those  occasions must  have  been in  violation of          Captain Percy's orders  because Pannell was using the  boat after          hours.  However, Captain  Percy testified, without contradiction,                                          6                                          6                    It  would not be reasonable to infer    based solely on          the  two speeding  incidents     that  Captain Percy  should have          foreseen, see id., that  Pannell would disobey a direct  order by                    ___ ___          transporting personal  guests in the DOLPHIN's  tender during the          Captain's  absence.   And  absent any  evidence  that it  was not          reasonable  for  Captain Percy  to rely  on  the adequacy  of the                                             ____          precautions  taken  before   disembarking,  the  prior   speeding          incidents  did not give rise to a reasonably foreseeable "risk of          harm to  other persons," id.,  and the negligent  retention claim                                   ___          fails as a matter of law.                      The district court correctly rejected the position that          an  employee  must be  dismissed  in  such circumstances  without          regard to the  adequacy of the  employer's precautions against  a          recurrence of  the relevant employee  conduct.  See  Usdin Louis,                                                          ___  ___________          591 A.2d at 961-62.  "Public policy dictates that there should be          no liability absent a showing that the employer reasonably should          have foreseen an unreasonably enhanced hazard." Id.  We hold that                                                          ___          a  negligent  retention  claim  does not  lie  absent  sufficient             _________  _________          evidence  to  enable  a rational  factfinder  to  infer that  the          employer reasonably  should  have foreseen  that its  precautions                                        ____________________          that the  crew was allowed to use the tender or dinghy (1) during          working hours; (2) on ship's  business; or (3) at any  other time          with  his express permission.  There is no evidence whatever that          Pannell  violated Percy's  orders  on either  occasion, nor  that          those  incidents took  place "outside  working hours,"  let alone          involved nonbusiness or unauthorized  purposes.  Thus, the record          is  devoid of evidence that Pannell ever disobeyed an order prior              ______          to the night of the accident.                                            7                                          7          were inadequate  to protect persons in  appellants' position from          an unreasonable risk of  harm resulting from a recurrence  of the          employee behavior of which the employer had prior notice.          B.   Negligent Entrustment          B.   Negligent Entrustment               _____________________                    The  second cause  of  action  asserts  that  Pendragon          negligently  entrusted  the  tender  to Pannell.    Rhode  Island          essentially hews to  the common  law rule, see  Sabourin v.  LBC,                                                     ___  ________     ____          Inc.,  731 F. Supp. 1145  (D. R.I. 1990)  (surveying Rhode Island          ____          law),  that "the owner  . . .  may be held  liable for entrusting          [its]  vehicle to an incompetent, reckless or unfit driver if the          owner knew  or should  have known  of the driver's  incompetence,          inexperience  or  recklessness."  Id.   at  1148.4    A  rational                                            ___          factfinder could find no entrustment on this evidence.                                        ____________________               4This articulation comports with the Restatement:                     It is negligence to  permit a third person to                    use a thing or to engage in an activity which                    is  under the  control of  the actor,  if the                    actor knows  or should know that  such person                    intends or is  likely to use the  thing or to                    conduct  himself  in the  activity in  such a                    manner as to create  an unreasonable risk  of                    harm to others.          Restatement (Second) of Torts   308 (1965).  See also Restatement          _____________________________                ___ ____ ___________          (Second) of Torts    390  (1965) ("One who  supplies directly  or          _________________          through a third person a chattel for the use of  another whom the          supplier knows to be  likely because of his youth,  inexperience,          or otherwise, to use  it in a manner involving  unreasonable risk          of physical harm to  himself and others whom the  supplier should                                                  ____ ___  ________ ______          expect to  share in or  be endangered by  its use, is  subject to          ______ __  _____ __ __  __ __________ __  ___ ___          liability  for  physical  harm  resulting  to  them.")  (emphasis          added).                                          8                                          8                    Appellants focus almost  exclusively on whether  it was          negligent for  Captain Percy  to entrust the  tender to  Pannell,          when in  fact there was  no entrustment, negligent  or otherwise.          There  is no evidence that Captain Percy permitted Pannell to use                    __                             _________          the tender in his absence.  Rather, the uncontroverted deposition                                                  ______________          testimony of Captain Percy established that he prohibited guests,          directed  Pannell  to  utilize  the public  launch  service,  and          forbade use of the DOLPHIN's tender or dinghy.5                      Were  it not  for the  unusual procedural  posture, our          discussion of the negligent entrustment claim would be at an end.          It was appellants who  introduced Captain Percy's deposition into          evidence, notwithstanding  the fact  that it cut  sharply against          their   negligent  entrustment  claim.     On   appeal,  however,          appellants urge us to vacate  the district court judgment because          the  jury  might  have  disbelieved  Captain  Percy's  deposition          testimony.    In other  words,  appellants argue,  judgment  as a          matter  of law  was  improper because  the  jury might  not  have          believed that Percy forbade Pannell to use the tender.                     The  Supreme  Court  has   pointed  out  that  Rule  50          (judgment  as a  matter of  law) and  Rule 56  (summary judgment)          "mirror"  one another.  Anderson v. Liberty Lobby, Inc., 477 U.S.                                  ________    ___________________                                        ____________________               5Asked why he  had not taken the key to  the tender's engine          when he left, Captain Percy  responded: "The answer is I left  it          for safety reasons as well as the fact that . . . if I  felt that          they  would have used the dinghy, I wouldn't have trusted them. I          wouldn't have left the boat [in the first place]."                                          9                                          9          242,  250  (1986).    See  also  Fed.  R.  Civ.  P.  50  advisory                                ___  ____          committee's  notes  accompanying  1991  amendment  (stating  that          incorporation  of the  Rule  56 "judgment  as  a matter  of  law"          standard into Rule 50  was intended to "link the[se]  two related          provisions").  It is  well established that "a mere  challenge to          the credibility  of a  movant's witnesses without  any supporting          evidence" does not raise a trialworthy issue of  fact.  Moreau v.                                                                  ______          Local  Union No. 247, 851  F.2d 516, 519  (1st Cir. 1988) (citing          ____________________          Anderson, 477 U.S. at  256); Blanchard v. Peerless Ins.  Co., 958          ________                     _________    __________________          F.2d  483,  490  (1st   Cir.  1992)  (noting:     nonmovant  must          demonstrate  "genuine  dispute" as  to  credibility  in order  to          resist summary judgment); 10A Charles  A. Wright, et al., Federal                                                                    _______          Practice  and  Procedure: Civil    2726,  at 119  (2nd  ed. 1983)          _______________________________          ("[S]pecific facts must  be produced in order  to put credibility          in  issue  .  .  .  [u]nsupported  allegations .  .  .  will  not          suffice.").   As  the  Supreme Court  explained  in  Anderson  v.                                                               ________          Liberty Lobby:            _____________                    Respondents argue,  however, that  . .  . the                    defendant  should seldom  if ever  be granted                    summary judgment  where . . .  the jury might                    disbelieve him or his witnesses . . . .  They                    rely on Poller v. Columbia  Broadcasting Co.,                            ______    __________________________                    368 U.S. 464, 82 S. Ct. 486,  7 L. Ed. 2d 458                    (1962),  for this  proposition.   We  do  not                    understand  Poller, however,  to hold  that a                                ______                    plaintiff may defeat  a defendant's  properly                    supported  motion for  summary judgment  in a                    conspiracy  or  libel   case,  for   example,                    without offering any  concrete evidence  from                    which  a  reasonable  juror  could  return  a                    verdict in his favor and by merely  asserting                    that  the  jury  might,  and  legally  could,                                          10                                          10                    disbelieve  the  defendant's   denial  of   a                    conspiracy or of  legal malice.   The  movant                    has the  burden of  showing that there  is no                    genuine  issue of fact,  but the plaintiff is                                                 ___ _________ __                    not  thereby relieved  of his  own burden  of                    ___  _______ ________  __ ___  ___ ______  __                    producing in turn evidence that would support                    _________ __ ____ ________ ____ _____ _______                    a jury  verdict.  Rule 56(e)  itself provides                    _ ____  _______                    that  a party  opposing a  properly supported                    motion for summary judgment may not rest upon                    mere allegation or  denials of his  pleading,                    but  must set  forth  specific facts  showing                    that there is a genuine issue for trial.          477 U.S. at 256 (emphasis added).                      Thus,  we think  it  clear under  Rule  50, as  in  the          summary judgment context, that 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.          See,  e.g., Niemann v. Rogers,  802 F. Supp.  1154, 1157 (D. Del.          ___   ____  _______    ______          1992) (noting that plaintiff  bears burden of proving entrustment          element  in negligent  entrustment  claim).   Were it  otherwise,          Rules  50 and 56 could  be rendered virtually  useless, merely on          the  strength  of a  nonmovant's  supposition  that the  movant's          uncontroverted evidence might be disbelieved.                      The authorities are in  substantial accord that  "where          the alleged entrustor has prohibited the entrustee from operating          the automobile or using the instrumentality in question, there is          no responsibility because there  has been no entrustment."   J.D.          Lee & Barry A. Lindahl, Modern Tort Law     33.01 (Rev. ed. 1988)                                  _______________          (citing   Farney v. Herr,  358 S.W.2d 758,  761 (Tex. 1962) ("The                    ______    ____                                          11                                          11          doctrine  of negligent entrustment may  not be so  extended as to          impose  liability upon  the alleged  'trustor' for  the negligent          operation  of a  vehicle  which he  had  expressly forbidden  the          alleged 'trustee' to  drive.")); Kimble v.  Muller, 417 P.2d  178                                           ______     ______          (Wyo. 1966) (upholding summary judgment  in favor of defendant on          negligent entrustment claim where defendant father had instructed          his reckless-driving son  not to use automobile except for travel          to and  from work and school,  but left the vehicle  at home with          the  son when  the  father  worked the  night  shift).   In  sum,          appellants'   negligent   entrustment  claim   founders   on  the          uncontroverted testimony that Captain Percy  specifically ordered          Pannell not to use the tender  during his absence.  As appellants          relied  entirely on  the totally  unsupported speculation  that a          jury  might disbelieve Captain  Percy's uncontroverted testimony,          the district court properly granted judgment as a matter of law.           C.   Respondeat Superior          C.   Respondeat Superior               ___________________                    The  third cause  of action  asserts that  Pendragon is          vicariously liable for appellants' injuries under the doctrine of          respondeat superior.  See  Sabourin, 731 F. Supp. at  1149 (under          __________ ________   ___  ________          Rhode Island law, a corporation is liable for "torts committed by          agents  acting  within the  scope of  their  authority or  in the          course of  their employment"); accord  Drake v. Star  Market Co.,                                         ______  _____    ________________          526 A.2d 517, 518 (R.I.  1987).  As the district court  correctly          ruled, there  is no conceivable evidentiary  basis for respondeat                                                                 __________                                          12                                          12          superior liability on the part of  Pendragon.  The uncontroverted          ________          trial evidence established beyond  peradventure that Pannell  was          on  a frolic  and banter  of  his own,  actuated  by no  employer          mission  whatever  and in  direct  violation  of Captain  Percy's          explicit  instructions not  to use  the tender  and not  to bring          guests aboard  the DOLPHIN.   See Restatement (Second)  of Agency                                        ___ _______________________________            228(1)(c)  (1958); see also, e.g.,  Gill Plumbing Co. v. Macon,                               ___ ____  ____   _________________    _____          370  S.E.2d 657 (Ga.  Ct. App. 1988)  (upholding summary judgment          disallowing respondeat  superior claim where employee was driving                      __________  ________          company  vehicle   on  a   "purely  personal   mission,"  without          authorization).          D.   Miscellaneous Orders          D.   Miscellaneous Orders               ____________________                    Appellants attempted at trial  to introduce portions of          Captain  Percy's  videotape   deposition  which  probed   various          hypothetical circumstances  in which he might  have considered it          appropriate  to discharge  a crew  member.   Appellants correctly          point out that we have said that relevant hypothetical  questions          may be put  to lay witnesses  subject to the  Rule 403  balancing          test.  See, e.g., United States v. Ranney, 719 F.2d 1183, 1187-89                 ___  ____  _____________    ______          (1st Cir. 1983).   Appellants, however,  would construe our  case          law as declaring "open season" for hypothetical questions without          regard  to  their overriding  prejudice,  cumulativeness  and the                                          13                                          13          like.6   A review of the  Percy deposition satisfies us  that the          district  court carefully  exercised its  Rule 403  discretion by          sustaining  most,  though  not   all,  objections  interposed  by          Pendragon.                    Lastly,  appellants  challenge  the  denial   of  their          belated  motion   to  amend   their  complaint  to   name  Parker          Montgomery, beneficial  owner of the DOLPHIN,  and the Montgomery          Group, as party defendants.  Appellants represent  that they were          unable  to comply with the  March 12, 1993  deadline for amending          the  complaint because they did not learn that Montgomery was the          beneficial owner  until after Captain Percy's  deposition in June          1993.  On the contrary, appellants acknowledged in their district          court  pleadings   that  they   first  became  aware   of  Parker          Montgomery's  role   in  October  1992.     Notwithstanding   the          admonition that leave to  amend is to be "freely given,"  Fed. R.          Civ. P. 15, the  district court did  not abuse its discretion  in          these circumstances, see Johnston v. Holiday Inns, Inc., 595 F.2d                               ___ ________    __________________          890,  896 (1st  Cir. 1979),  especially since  there has  been no          showing of prejudice.                     Affirmed.                    Affirmed.                    ________                                        ____________________               6But see Fed. R. Evid. 403 ("Although relevant, evidence may                ___ ___          be excluded if its probative value is substantially outweighed by          the  danger of  unfair  prejudice, confusion  of  the issues,  or          misleading the jury,  or by considerations of undue  delay, waste          of time, or needless presentation of cumulative evidence.").                                          14                                          14
