
USCA1 Opinion

	




          April 28, 1994    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                _____________________          No. 93-1106                                    ERIC CLAUSEN,                                 Plaintiff, Appellee,                                          v.                                     SEA-3, INC.,                                 Defendant, Appellee.                                _____________________                                     ERRATA SHEET               The  opinion  of this  Court issued  on  April 19,  1994, is          amended as follows:               On page  14, line 3 of first paragraph of section II, add an          "ly" to "perpendicular".               On page 20, last line, replace "the" with "a."               On page 46, line 2 of part "2.", replace "motion to alter or          amend the judgment to "Motion to Alter or Amend a Judgment."                             UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1106                                    ERIC CLAUSEN,                                 Plaintiff, Appellee,                                          v.                                     SEA-3, INC.,                                 Defendant, Appellee.                                 ____________________                        STORAGE TANK DEVELOPMENT CORPORATION,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                [Hon. Howard C. Bratton,* U.S. Senior District Judge]                                          __________________________                                 ____________________                                        Before                                Boudin Circuit Judge,                                        _____________                     Coffin and Campbell, Senior Circuit Judges.                                          _____________________                                 ____________________            Robert  L. Elliott  with whom  Charla  Bizios  Labbe and  Kfoury &            __________________             _____________________      ________        Elliott, P.C. were on brief for Sea-3, Inc.        _____________            Thomas  E. Clinton  with whom  Robert J. Murphy  was on  brief for            __________________             ________________        Storage Tank Development Corporation.            Michael B. Latti with whom David  F. Anderson and Latti Associates            ________________           __________________     ________________        were on briefs for plaintiff.                                 ____________________                                    April 19, 1994                                 ____________________                                    ____________________        *Of the U.S. District Court for the District of New Mexico, sitting by        designation.                      CAMPBELL,  Senior  Circuit Judge.   On  February 6,                                 _____________________            1989, Eric Clausen ("Clausen"),  plaintiff-appellee, slipped,            fell, and injured his back while  working as a pile driver at            a  job site  at a  fuel terminal  facility on  the Piscataqua            River,  Portsmouth  Harbor,  Newington,  New  Hampshire.    A            Massachusetts  resident, Clausen  sued for  negligence, under            the  diversity jurisdiction,  in the  United States  District            Court for the District of New Hampshire.  Defendants were the            owner  of  the  facility,  Storage  Tank   Development  Corp.            ("Storage  Tank"),  a  New  Hampshire  corporation,  and  the            occupier  of the  facility,  Sea-3, Inc.  ("Sea-3"), a  Texas            corporation.  Defendants filed third-party complaints against            Clausen's employer, Goudreau Construction Corp. ("Goudreau").                      Clausen's claims went to trial beginning on October            5,  1992.   Storage  Tank's  and  Sea-3's third-party  claims            against  Goudreau were omitted from  that trial.1  On October            9,  1992, the jury  returned a  special verdict  in Clausen's            favor, pursuant to Fed. R. Civ. P. 49(a), finding him to have            been  damaged in the amount  of $1,426,000.2   On October 13,            1992, the district court  entered judgment in accordance with            the  special verdict.   On  December 31,  1992, the  district                                            ____________________            1.  The  district  court  ordered  a separate  trial  of  the            defendants' third-party  claims against Goudreau  pursuant to            Fed. R. Civ. P. 42(b).            2.  Responding  to special  questions,  the jury  apportioned            liability  against Storage Tank at 37.5%, Sea-3 at 37.5%, and            Goudreau at 25%.                                         -3-            court clarified its October 13, 1992,  judgment to hold Sea-3            and  Storage Tank jointly and severally liable to Clausen for            $1,426,000,  with prejudgment  interest  at the  rate of  ten            percent (10%)  from the date of the  complaint to the date of            the  verdict, plus  costs.   On January  22, 1993,  Sea-3 and            Storage  Tank  filed  separate  notices of  appeal  from  the            district court's  December 31,  1992, amended judgment.3   We            affirm.                                          I.                                APPELLATE JURISDICTION                      Clausen  argues  that  we  do  not  have  appellate            jurisdiction over  Storage Tank's appeal because the district            court's  December  31,  1992,  amended judgment  was  not  an            appealable "final decision" as that term is used in 28 U.S.C.              1291 (1988).4  We trace the procedural history.                      When  Storage Tank  filed its  notice of  appeal on            January  22, 1993,  from  the district  court's December  31,                                            ____________________            3.  On March  1, 1994, Sea-3 and Clausen reached a settlement            agreement  in  which Sea-3  agreed  to  withdraw its  appeal.            Accordingly, on March 7, 1994, we entered an order dismissing            Sea-3's appeal pursuant  to Fed.  R. App. P.  42(b).   Hence,            Storage Tank remains the sole appellant.             4.  28 U.S.C.   1291 (1988) states in pertinent part:                      The courts of  appeals (other than  the United                 States Court of  Appeals for  the Federal  Circuit)                 shall have jurisdiction of  appeals from all  final                 ___________________________________________________                 decisions of district courts of the United States .                 _________________________________________________                 . . .            (emphasis added).                                         -4-            1992,  amended  judgment,  its  own  unresolved,  third-party            claims were  still pending against Goudreau.   This situation            was problematic because a judgment                 that  completely  disposes  of  . . . any  separate                 claim  in  the  suit[,]  without disposing  of  the                 third-party  claim,  is  not  appealable  unless  a                 judgment is entered by the district court [pursuant                 to  Fed.   R.  Civ.  P.  54(b)5]   on  the  express                 determination  that there  is  no just  reason  for                 delay, and  an express  direction for the  entry of                 judgment.            6 James W. Moore et al., Moore's Federal Practice   54.36 (2d                                     ________________________            ed.  1993).   As the district  court had  not yet  entered an            appealable judgment within Fed. R. Civ. P. 54(b),  this court            advised Storage Tank, by order entered February 9, 1993, that            "[u]pon  review of the record  in this case,  it appears that            this court may not  have jurisdiction to consider the  appeal            because  a third  party complaint . . . may  be outstanding."            We  directed  Storage  Tank  "either to  move  for  voluntary            dismissal under  Fed. R. App. P.  42(b) or to show  cause why            [its] appeal should not be dismissed."                                              ____________________            5.  Fed. R. Civ. P. 54(b) states in pertinent part:                      When  more  than  one  claim  for  relief   is                 presented  in  an  action,   whether  as  a  claim,                 counterclaim, cross-claim, or third-party claim, or                 when multiple parties  are involved, the court  may                 direct the entry of  a final judgment as to  one or                 more but fewer  than all of  the claims or  parties                 only upon an express determination that there is no                 just reason for delay and upon an express direction                 for the entry of judgment.                                         -5-                      Following our February  9, 1993, show cause  order,            Clausen on February  19 moved the district court  to "certify            [pursuant to Fed. R. Civ. P. 54(b)] that the judgment entered            on October 13 and amended on December 31, 1992[,] is a `final            judgment'  and `that  there is  no just  reason for  delay.'"            Storage Tank  then moved this  court for  additional time  to            respond to our February 9, 1993, show cause order.  On  March            4, 1993,  we granted  appellant's motion, extending  the time            within which  Storage Tank could  respond to our  February 9,            1993,  order until  March 23,  1993.  In  our March  4, 1993,            order  we instructed  Storage Tank  that, "[i]f  the district            court  certifies its  [judgment]  as final  pursuant to  Rule            54(b),  then,  in  order  to  avoid  any  . . . doubts  [over            jurisdiction], appellant[]  should file  [a] new  notice[] of            appeal."                       On March 31, 1993,  over objection by the appellant            and after oral argument, the district court  entered an order            in which it  found, pursuant to Fed. R.  Civ. P. 54(b), "that            the judgment entered on  December 31, 1992, in favor  of Eric            Clausen and  against Storage  Tank . . . is a  final judgment            and  that there  is  no just  reason  for delaying  appellate            review."    Notwithstanding our  earlier  direction  that, to            avoid jurisdictional complications, Storage Tank submit a new            notice of appeal following the district court's Fed.  R. Civ.                                         -6-            P.  54(b)  certification,  Storage  Tank did  not  take  such            action.                       Clausen now contends that as Storage Tank's  notice            of appeal    filed on January 22, 1993, more than  two months            prior to the  district court's entry of  judgment pursuant to            Fed. R. Civ. P. 54(b)    was  premature, it should be treated            as  a nullity.6  Clausen  is undoubtedly correct that Storage            Tank's  notice of  appeal  filed after  the district  court's                                            ____________________            6.  Clausen cites Willhauck v. Halpin, 919 F.2d 788 (1st Cir.                              _________    ______            1990),  for the proposition that "a Notice of Appeal which is            premature ``simply self-destructs'' and  should be treated as            a nullity."  Id. at 792 (quoting Griggs v. Provident Consumer                         ___                 ______    __________________            Discount Co., 459 U.S. 56, 61, 103 S. Ct. 400, 403, 74 L. Ed.            ____________            2d 225, 229 (1982)  (quoting 9 James W. Moore et al., Moore's                                                                  _______            Federal  Practice     204.12[1]  (1982))).    This  "nullity"            _________________            principle,  however,  does  not  apply  to  this  case.    In            Willhauck, unlike here, we dismissed the  plaintiffs' initial            _________            appeal on the  merits of  the case for  want of  jurisdiction            because "the plaintiffs filed their Notice of Appeal from the            district  court's   denial  of  their  Motion   for  Judgment            Notwithstanding the Verdict, or in the Alternative, for a New            Trial, one day prior  to the lower court's entry  of judgment            on the Motion."  Id. at 790 n.2.  The fact that the  district                             ___            court had not yet entered  judgment on motions filed pursuant            to Fed. R. Civ.  P. 50(b) and/or 59 when the Willhaucks filed            their notice of appeal was dispositive because, under Fed. R.            App. P.  4(a)(4) (pre  1993 amendment),  a  notice of  appeal                                                     ____________________            shall have no effect if it is filed before the disposition of            ____________________            a motion                 (i) for judgment under  Rule 50(b); (ii) under Rule                 52(b) to amend or make additional findings of fact,                 whether or not an  alteration of the judgment would                 be required  if the motion is  granted; (iii) under                 Rule  59 to  alter or amend  the judgment;  or (iv)                 under Rule 59 for a new trial.            Significantly,  Fed. R.  App. P.  4(a)(4) does  not expressly            nullify  a notice of appeal filed before the disposition of a            Fed. R. Civ. P. 54(b) motion.                                         -7-            entry of its amended judgment, but before its Fed. R. Civ. P.            54(b) certification, was premature.  See, e.g., Tidler v. Eli                                                 ___  ____  ______    ___            Lilly & Co.,  824 F.2d 84, 85 (D.C. Cir.  1987).  The amended            ___________            judgment   was  unappealable   until   the   district   court            "direct[ed] the  entry of  a final  judgment .  .  . upon  an            express determination that there is no just reason  for delay            and upon  an express  direction for  the entry of  judgment."            Fed. R.  Civ. P. 54(b).  This was eventually done, and we are            at a loss as to why Storage Tank's  attorney failed to follow            our  instruction to file a new notice of appeal following the            district  court's Fed. R.  Civ. P. 54(b)  certification.7  We            conclude, nonetheless, that the prematurity of Storage Tank's            notice of appeal does not deprive us of jurisdiction over the            current appeal.                      The  majority  of   circuits  that  have  addressed            jurisdictional quagmires similar to this one have held that a            belated  Fed.  R.  Civ.   P.  54(b)  certification  ripens  a            premature   notice  of   appeal  as   of  the  date   of  the            certification.  See, e.g., United States v. Hardage, 982 F.2d                            ___  ____  _____________    _______            1491,  1494-95 (10th  Cir.  1993); Harrison  v. Edison  Bros.                                               ________     _____________            Apparel Stores, Inc., 924  F.2d 530, 532 (4th Cir.  1991); In            ____________________                                       __            re Chateaugay Corp., 922 F.2d 86, 91 (2d Cir. 1990); Martinez            ___________________                                  ________                                            ____________________            7.  Had Storage Tank properly  followed our instructions,  it            would  have filed a  new notice of appeal  "with the clerk of            the district  court within 30  days of" the  district court's            entry of  judgment pursuant to  Fed. R. Civ.  P. 54(b).   See                                                                      ___            Fed. R. App. P. 4(a)(1).                                         -8-            v.  Arrow Truck Sales, Inc.,  865 F.2d 160,  161-62 (8th Cir.                _______________________            1988);  Crowley Maritime  Corp. v.  Panama Canal  Comm'n, 849                    _______________________     ____________________            F.2d 951, 954 (5th Cir. 1988); Tidler v. Eli Lilly & Co., 824                                           ______    _______________            F.2d  84, 85-86  (D.C.  Cir.  1987);  Aguirre v.  S.S.  Sohio                                                  _______     ___________            Intrepid, 801  F.2d 1185,  1189 (9th  Cir. 1986);  Lac Courte            ________                                           __________            Oreilles Band  v. Wisconsin, 760  F.2d 177, 180-81  (7th Cir.            _____________     _________            1985).  But see  Useden v. Acker,  947 F.2d 1563, 1570  (11th                    _______  ______    _____            Cir. 1991),  cert. denied, 113 S. Ct. 2927, 124 L. Ed. 2d 678                         ____________            (1993);  Haskell v.  Washington Township,  891 F.2d  132, 133                     _______     ___________________            (6th Cir. 1989).   In  reaching this  decision, the  circuits            "follow the same relation forward principle as is provided by            [Fed. R. App. P.] 4(a)(2),8  [although they] do not generally            refer to  that rule."  Allan Ides, The Authority of a Federal                                               __________________________            District Court to Proceed  After a Notice of Appeal  Has Been            _____________________________________________________________            Filed, 143 F.R.D. 307, 316 (1992) (footnote not in original).            _____                                            ____________________            8.  Fed.  R. App.  P.  4(a)(2) (pre  1993 amendment)  states:            "Except as provided  in (a)(4)  of this Rule  4, a notice  of            appeal filed after  the announcement of  a decision or  order            but  before the  entry  of the  judgment  or order  shall  be            treated  as filed after such  entry and on  the day thereof."            According to the United States Supreme Court:                 Rule  4(a)(2)  was  intended  to  codify a  general                 practice  in  the  courts  of  appeals  of  deeming                 certain premature notices of appeals effective. . .                 .  The Rule recognizes that, unlike  a tardy notice                 of  appeal,  certain   premature  notices  do   not                 prejudice  the  appellee  and  that  the  technical                 defect  of  prematurity  therefore  should  not  be                 allowed to extinguish an otherwise proper appeal.            FirsTier  Mortgage Co.  v. Investors  Mortgage Ins.  Co., 498            ______________________     _____________________________            U.S. 269, 273, 111 S. Ct. 648, 651, 112 L. Ed. 2d 743 (1991).                                         -9-            The Tenth Circuit, however,  specifically referred to Fed. R.            App. P.  4(a)(2) in  its holding that,  "[w]hen the  district            court  case is still ongoing  at the time  the appeal reaches            this  court's attention,  . . .  [and] a  belated Rule  54(b)            certification  has been  obtained . . .  after the  notice of            appeal was filed, we will deem the  notice of appeal to ripen            as  of  the   date  of  certification  and  will  accept  the            jurisdiction  pursuant to  the savings  provision of  Fed. R.            App. P. 4(a)(2)."  Lewis v. B.F. Goodrich  Co., 850 F.2d 641,                               _____    __________________            645  (10th Cir.  1988).   The Fifth  Circuit has  stated that            "giving effect  to the  premature notice of  appeal [after  a            belated  Fed.  R.  Civ.   P.  54(b)  certification  has  been            obtained]  is  in the  spirit of  Fed.  R. App.  P. 4(a)(2)."            Metallurgical Indus.,  Inc. v.  Fourtek, Inc., 771  F.2d 915,            ___________________________     _____________            916 (5th Cir. 1985).  Hence, while the problem might  also be            tackled from some  other direction, Fed.  R. App. P.  4(a)(2)            suggests that a premature notice of appeal relates forward to            the date of a subsequent Fed. R. Civ. P. 54(b) certification.                      Clausen  argues, however,  that,  by  virtue  of  a            recent  ruling by the United States Supreme Court in FirsTier                                                                 ________            Mortgage Co.  v. Investors  Mortgage Insurance Co.,  498 U.S.            ____________     _________________________________            269, 111  S. Ct. 648, 112 L. Ed. 2d  743 (1991), Fed. R. App.            P. 4(a)(2)  cannot  rescue Storage  Tank's prematurely  filed            appeal.  There, the Supreme Court decided that,  "under [Fed.            R. App.  P. 4(a)(2)],  a premature  notice of appeal  relates                                         -10-            forward to the date of entry of a final  `judgment' only when                                                                _________            the ruling  designated  in the  notice  is a  `decision'  for            _____________________________________________________________            purposes  of  the  Rule."   FirsTier,  498  U.S.  at 274  n.4            _______________________     ________            (emphasis added).   Although Clausen argues  to the contrary,            we  believe  that the  district  court's  December 31,  1992,            amended judgment  was sufficiently a "decision"  for purposes            of Fed. R. App. P. 4(a)(2).                       In  FirsTier,  the petitioner  filed its  notice of                          ________            appeal on  February 8,  1989, after  the  district court  had            announced  from  the  bench, on  January  26,  1989, that  it            intended  to grant summary  judgment for the  respondent.  On            March  3, 1989,  the district  court entered  judgment.   The            question  addressed by  the  Court was  whether the  district            court's bench ruling  was a "decision" under  Rule 4(a)(2) so            that the petitioner's premature notice of appeal would relate            forward  to  the date  of  the  judgment, thereby  conferring            jurisdiction  upon the court of appeals.  In finding that the            bench ruling  was a "decision"  under Rule 4(a)(2),  and that            the  court  of  appeals  had jurisdiction  to  entertain  the            appeal, the Court held that "Rule 4(a)(2) permits a notice of            appeal from a  nonfinal decision  to operate as  a notice  of            appeal  from the  final judgment only  when a  district court            announces a decision that  would be appealable if immediately                                       ________            followed by  the entry of judgment."  Id. at 276 (emphasis in                                                  ___            original).  The Court  qualified this principle by explaining                                         -11-            that Rule 4(a)(2) does not permit a "notice of  appeal from a            clearly interlocutory decision     such as a discovery ruling            or a  sanction order under  Rule 11  of the Federal  Rules of            Civil Procedure     to serve as  a notice of appeal  from the            final judgment."  Id.                              ___                      In  this case,  the district  court's December  31,            1992,  amended judgment  was  not literally  a decision  that            would be appealable if immediately  followed by the entry  of            judgment.   This is because,  with third-party claims  as yet            unresolved, the  December 31, 1992, amended  judgment did not            dispose of all the  claims in the case.   Therefore, judgment            could  not perfunctorily  be  entered  following  the  ruling            __________            absent the certification called for by Fed. R. Civ. P. 54(b).            To  certify,  the  district  court had  to  make  an  express            determination  of no just reason for delay.  Only having done            so was it  free to enter a  final judgment upon  its December            31,  1992, amended judgment.   Thus,  the December  31, 1992,            amended judgment here does  not, at first blush, seem  to fit            within  the  Court's language  in  FirsTier  and its  progeny                                               ________            indicating  that a  decision  that would  be appealable  when            immediately followed  by the  entry of  judgment is  one that            "form[s]  the basis  of a  final judgment  without subsequent            intervention by the district court."  Serine v. Peterson, 989                                                  ______    ________            F.2d 371,  373 (9th Cir. 1993); see Strasburg v. State Bar, 1                                            ___ _________    _________            F.3d 468, 472 (7th Cir. 1993) ("Whereas the district court in                                         -12-            FirsTier  had  only ministerial  functions  left  to complete            ________            after announcing summary judgment, the district court's order            here  notified the  parties that  they should  expect further            dispositive rulings by the court.").                      On the other hand,  the nonfinal December 31, 1992,            amended   judgment  in   this  case   was  not   irremediably            interlocutory as were the examples the Court used in FirsTier                                                                 ________            to describe rulings the premature  appeal from which Fed.  R.            App.  P.  4(a)(2) cannot  cure.   The  examples given  were a            discovery ruling or  a sanction  order under Rule  11 of  the            Federal  Rules of Civil Procedure.  There is no commonly used            procedure  for transforming  such interlocutory  rulings into            appealable, final  dispositions, as Rule 54(b)  allows in the            instance of decisions that  dispose of some, but not  all, of            the claims in  a case.   Thus, the  district court's  amended            judgment  in this  case falls  somewhere along  the continuum            between an unalterably interlocutory decision, the notice  of            appeal from which can never serve as a notice of appeal  from            the final judgment, FirsTier, 498 U.S.  at 276, and decisions                                ________            that would be appealable  under Rule 4(a)(2) when immediately            followed  by  the entry  of  judgment.   We  ask,  therefore,            whether the district court's amended judgment is close enough            to  a  "decision  that  would be  appealable  if  immediately                                    _____ __            followed by the entry  of judgment," id., to be  a "decision"                                                 ___                                         -13-            for  purposes of  Fed.  R. App.  P. 4(a)(2).   Our  answer is            "Yes."9                      The  district court's  December  31, 1992,  amended            judgment bears  far more similarity to a  decision that would            be  appealable  if  immediately  followed  by  the  entry  of            judgment than  to the purely interlocutory  decrees described            in FirsTier.   Unlike these, the  December 31, 1992,  amended               ________            judgment was a decision that purported to  dispose finally of            all  of Clausen's claims against Storage Tank, if not all the            claims in the  lawsuit.   The decision  lacked finality  only            because the district court had to find that there was no just            reason  for delay  and certify  it as  appealable immediately            pursuant  to Fed. R. Civ.  P. 54(b).   Although this required            the district  court to make an  additional finding concerning            the appropriateness of an  immediate appeal, that finding did            not affect the substance or the scope of the amended judgment            from which  the  premature appeal  was taken.   Rather,  once            made,  the district  court's  Fed. R.  Civ.  P. 54(b)  ruling            instantly converted the substance of the former interlocutory            amended  judgment  into  a   wholly  appealable  one  without                                                                  _______            modifying or enlarging that decision in any way.              _______________________________________________                                            ____________________            9.  FirsTier,  of  course, did  not involve  Fed. R.  Civ. P.                ________            54(b); hence, the Court should not necessarily be expected to            have anticipated the niceties of the present situation, which            is sui generis.                 ___ _______                                         -14-                      The  primary  difference between  the  December 31,            1992,  decision in this case and the bench ruling in FirsTier                                                                 ________            was  that the  district  court here  could not  perfunctorily            enter  judgment under Fed. R. Civ. P.  58.  Rather, it had to            satisfy itself and certify that  the decision was, in effect,            appropriate for immediate appeal, pursuant to Fed. R. Civ. P.            54(b), notwithstanding its failure to resolve all claims made            in  the lawsuit.10   This difference, however,  does not make            the district  court's December 31, 1992,  amended judgment so            dissimilar from the district court's bench ruling in FirsTier                                                                 ________            that Storage Tank  should lose the protection of  the savings            clause of  Fed. R. App.  P. 4(a)(2).  In  both instances, the            prematurely-appealed decisions  remained absolutely unaltered            to and through entry of an appealable judgment.                          Consequently, we  hold that,  by virtue of  Fed. R.            App. P.  4(a)(2), Storage  Tank's premature notice  of appeal            ripened when  the district  court certified its  December 31,            1992, amended judgment pursuant to Fed. R. Civ. P. 54(b).  As            we  have appellate jurisdiction, we turn to the merits of the            appeal.                                         II.                                            ____________________            10.  It could be said  that, for the purposes of Fed. R. App.            P. 4(a)(2), a Fed.  R. Civ. P. 54(b) certification  plays the            same role as entry of judgment under Fed. R. Civ.  P. 58.  In            other  words, "entry of judgment," as  that phrase appears in            Fed.  R. App. P. 4(a)(2),  encompasses Fed. R.  Civ. P. 54(b)            certifications.                                         -15-                                     BACKGROUND                       Storage  Tank  owns  docking  facilities  along the            Piscataqua River in Newington,  New Hampshire.  These include            a  walkway-pier that  first extends perpendicularly  from the            shore line into the  water, and then turns ninety  degrees to            the  left and  extends  upstream.   A concrete  mooring cell,            referred to as Cell Three, is located in the water beyond the            end  of the  walkway-pier.11   Cell  Three,  at the  time  of            Clausen's injury,  was connected to  the end of  the walkway-            pier  by the ramp upon  which Clausen slipped  and fell.  The            ramp sloped downward to Cell Three from the walkway-pier.  In            April 1992, the ramp was replaced by Storage Tank, at Sea-3's            request,  with a set of  steps because the  concrete cell cap            had settled.                      Sea-3  imports  and distributes  petroleum products            throughout New England.   At all material times, Sea-3  had a            first-priority  contractual  right,  under  a  so-called Dock            Agreement with  Storage Tank, to  occupy and use  the docking            facilities.  In  1983, Sea-3  sought to  improve the  docking            facilities by making structural changes to Cell Three.  Sea-3            contracted with Goudreau  to perform the work.   Storage Tank            was not a party to that contract.                                            ____________________            11.  The  mooring cells  were filled  with gravel  and capped            with  concrete  to  provide  support  for  the  dolphins  and            bollards upon which vessels attached their mooring lines.                                         -16-                      On February 5, 1989, Goudreau hired Clausen to work            on Cell Three as a  pile driver.  Clausen's first day  on the            job was February  6, 1989,  the day he  suffered his  injury.            When  Clausen arrived  at the job  site at  7:00 a.m.  on the            morning of February 6, 1989, it was snowing.  Between one and            two inches of fresh  snow had accumulated on the dock.   Upon            receiving  permission   to  begin   work,  Clausen   and  his            coworkers,  Daniel  Woundy,  William  Burroughs,  and Kenneth            King,  the foreman, proceeded  down the  walkway-pier towards            Cell Three.  Prior to the group's arrival at Cell Three, King            instructed  Clausen to go back and retrieve an air compressor            hose  that was stored in a guardhouse.  Clausen retrieved the            air compressor hose  and then headed  back down the  walkway-            pier toward the ramp that  connected the walkway-pier to Cell            Three.  Somewhere along the ramp that connected  the walkway-            pier to Cell  Three, Clausen slipped,  fell, and injured  his            back.                         Immediately  after  the  fall, Clausen  experienced            pain  that radiated down his back to  his ankle.  Despite the            pain, Clausen continued to work until his lunch break.  After            lunch,  Clausen was in too much pain to continue working, and            he decided  to go home for  the day.  Upon  arriving at home,            Clausen  immediately made an  appointment with a chiropractor            for 3:00 p.m. that afternoon.                                         -17-                      For   approximately   eight  weeks   following  the            accident, Clausen  was treated  by his chiropractor.   A  CAT            scan taken two months after the accident revealed a herniated            disk at the L5-S1 level.  Consequently, Clausen was  referred            to  Dr. Gerwin  Neumann, a  neurosurgeon at  the New  England            Baptist  Hospital.  After confirming the  diagnosis of a disk            herniation in L5-S1,  Dr. Neumann, in May 1989, performed the            first of  what would eventually be  five operations performed            on various disks in Clausen's back.                      At  trial,   Clausen,  the  only   witness  to  the            accident,  testified  that the  ramp  on  which  he fell  was            constructed of  what looked  like two-inch thick  by ten-inch            wide "staging  planks" that were joined together  by a couple            of slats.  Clausen further testified that the ramp was ten to            twelve  feet  long and  was covered  by  snow.   According to            Clausen,  the ramp protruded up  over the walkway-pier by ten            to twelve inches so  that he had to step up onto  the ramp in            order  to proceed  down to  Cell Three.   Clausen's testimony            revealed  that he initially stepped up onto the ramp with his            left foot.  He did  not have his hand on the  railing because            it did  not come up high enough for him to reach it.  Clausen            then lifted  his right foot  off the  ground, and, as  he was            about to place it on  the ramp, his left foot slipped  and he            started  to fall.   Clausen  testified that,  as he  fell, he            twisted to the right and twisted back to the left and grabbed                                         -18-            onto  the railing with his right  hand as he was coming down.            Then  he hit  the ramp.   At that point,  Clausen was holding            onto  the railing and had one hand  on the ramp.  He then let            himself go and slid down the ramp the rest of the way to Cell            Three.  According  to Clausen's trial testimony,  once he got            to the bottom, he looked back up and saw a sheet of ice about            one-half inch thick covering the ramp from top to bottom.12                      Based on Clausen's testimony, the defendants argued            at trial  that Clausen had actually slipped on staging planks            that had been placed by Goudreau  employees over the existing            ramp that  connected  the walkway-pier  to  Cell Three.    No            witness testified  at trial, however, to  having seen staging            planks  placed over  the ramp.   To  the contrary,  there was                                            ____________________            12.  Clausen's  trial  testimony  did  not  comport  with his            earlier answers  to interrogatories  with regard to  where he            slipped and fell on the ramp.  In response to interrogatories            that  inquired about  how and  where  his fall  had occurred,            Clausen did not state that he slipped as he stepped onto  the            ramp, but  rather answered  that "[t]he incident  occurred at            the junction of the concrete cell and  a gangplank connecting            the cell to the pier" and that "[a]s [he] was moving from the            gangplank to the cell,  [he] was suddenly caused to  slip and            fall."                   Clausen's trial testimony  was consistent, however, with            previous deposition testimony in which he stated:                 So as I stepped up with  my left foot and I went to                 reach  for [the rail],  I brought my  right foot up                 and  that's when I slipped and fell.  And I twisted                 my  back and as I  came back around,  that's when I                 grabbed ahold of  the railing and I  just fell down                 on my backside.                                         -19-            testimony that the ramp  was "fixed" between the walkway-pier            and  Cell Three  and that  it did  not  protrude up  over the            walkway-pier, but was "flush" with it so that one had to step            down onto the  ramp when walking  to Cell Three.   There  was            further testimony  that the  ramp had  cleats or  treads, ten            inches  to one foot apart,  running crosswise all  the way up            the length of the ramp.  The ramp itself, according to  trial            witnesses,  was approximately  five  feet wide  by five  feet            long.                      Clausen also  testified at trial that  he still had            back  pain  that radiated  down his  left  leg.   Dr. Neumann            testified that there was a direct causal relationship between            the accident on the ramp and Clausen's herniated disks, which            required  five operations  to repair.   He  further testified            that Clausen can lift  no more than fifteen to  twenty pounds            and  is totally  disabled from  a strenuous  job.   He noted,            however,  that,  if  Clausen's  medical  condition  were   to            stabilize, he could engage in sedentary or clerical activity.                      To  establish  damages  at  trial,  Clausen  called            Robert  Doucette,  an  expert  economist,  to  testify  about            Clausen's loss  of earning  capacity.   Doucette said  he had            examined Clausen's tax  returns, copies  of union  contracts,            medical  records, and  statistical information  pertaining to            work-life expectancy.   He  testified that he  used Clausen's            union  contract to calculate Clausen's  base wage rate at the                                         -20-            time  of his injury.   In reliance on  the contract, Doucette            concluded that  Clausen was  earning a gross  hourly wage  of            $18.45 when  the accident  occurred.   He then  adjusted this            figure  upward to  $23.85 per hour  to account  for Clausen's            fringe benefits  under the union contract,  which included an            annuity fund,  a pension fund,  and health  insurance.   From            these  preliminary figures,  Doucette concluded  that it  was            reasonable  to  anticipate  that  Clausen would  have  earned            approximately  $875,000  in  gross  wages  and   $391,000  in            benefits from the  time he was  injured, at age  thirty-four,            through the age of his work-life expectancy.13                      Doucette   adjusted   these   gross    figures   by            subtracting  income  taxes,  adding   the  average  value  of            household  services at minimum wage, and adding a lump sum to            meet income tax liability on interest earnings.  After making            these adjustments, Doucette concluded that the  present value            of Clausen's  earning  capacity on  the  date of  his  injury            totaled approximately $1,250,000.  He explained that this sum            represents the  amount of  economic value that  Clausen could            have been expected to produce if he had not been injured, and            any pecuniary damages attributable  to the injury is measured                                            ____________________            13.  According to Doucette, work-life expectancy expresses an            average of  how long a  person may be  expected to be  in the            labor force earning income.   It is a function  of a person's            age, sex, level of education, and activity level.                                         -21-            by  the difference  between  $1,250,000 and  what Clausen  is            still able to earn in the future.                                          III.                      Storage  Tank contends that the district court made            errors  both during trial and after trial.  Among the former,            Storage Tank  alleges mistaken  evidentiary rulings  and jury            instructions.  It argues that the district court erred in (1)            allowing evidence of subsequent remedial  measures undertaken            on  the ramp  where  Clausen slipped  and  fell, (2)  denying            Storage  Tank's  counsel  the  opportunity  to  cross-examine            Clausen's  economist,  Doucette,  on  the  subject  of  union            benefits that  Clausen allegedly received after the accident,            and  (3)  instructing  the   jury  to  assess  fault  against            Goudreau, a non-party to the trial.  In the category of post-            trial error, Storage Tank objects to the district court's (1)            refusal to file its  Renewed Motion for Judgment as  a Matter            of Law,  (2) denial of its Motion for Judgment as a Matter of            Law,  and (3)  denial of  its  Motion to  Alter or  Amend the            Judgment.                      We find merit in none of these arguments.            A.   Alleged Trial Errors            A.   Alleged Trial Errors                 1.   Evidence of Subsequent Remedial Measures                      ________________________________________                      Storage Tank complains of the allowance of evidence            that,  in 1992, Storage Tank, at  Sea-3's request, replaced a            ramp on which  Clausen fell with  a set of  steps.  Prior  to                                         -22-            trial, Storage Tank had  filed a motion in limine  seeking to            exclude evidence  of the changes made to the ramp both on the            issues of negligence and control.  Storage Tank argued in its            motion that  evidence  of  subsequent  remedial  measures  is            inadmissible  under Fed.  R. Evid.  40714 to  prove negligent            or culpable conduct.  It also contended that,  although there            was  an unresolved issue in  the case about whether Goudreau,            Storage  Tank,  Sea-3,  or  some  combination  of  the  three            controlled the area where  Clausen fell, the evidence of  the            ramp's replacement  in this case carried  no probative weight            with  regard to the control issue.  The district court denied            Storage Tank's motion in limine, but limited the scope of the            evidence to  the issue of who had control over the area where            Clausen's  injury occurred.   At  the end  of the  trial, the            district  court gave the jury a  limiting instruction to this            effect.                                            ____________________            14.  Fed. R. Evid. 407 states:                      When,  after  an  event,  measures  are  taken                 which, if  taken  previously, would  have made  the                 event  less  likely  to   occur,  evidence  of  the                 subsequent  measures  is  not admissible  to  prove                 negligence  or culpable conduct  in connection with                 the  event.    This   rule  does  not  require  the                                ____________________________________                 exclusion of  evidence of subsequent  measures when                 ___________________________________________________                 offered  for  another  purpose,  such   as  proving                 ___________________________________________________                 ownership, control, or feasibility of precautionary                 ___________________________________________________                 measures, if controverted, or impeachment.                 __________________________________________            (emphasis added).                                         -23-                      On appeal, Storage  Tank insists that the  district            court  should not have allowed Clausen to introduce  evidence            of the replacement of the ramp under the control exception to            Fed. R.  Evid. 407.  It contends  that the probative value of            the evidence  was "substantially outweighed by  the danger of            unfair prejudice, confusion of  the issues, or misleading the            jury."    Fed. R.  Evid.  403.15   Clausen  asserts, however,            that  we need not reach the merits of Storage Tank's argument            because  it did not preserve  the issue for  appeal by timely            objecting  at trial to the  admission of the  evidence of the            ramp's replacement.  We agree.                      During  the  charging  conference,   the  following            exchange occurred:                 Mr. Clinton:   First  of  all,   your  Honor,   the                 remedial  instruction with  regard to the  issue of                 control  of the  stairs  in 1992  was only  for the                 purpose of control.                 The Court:     In other words, you admitted it only                 for the  purpose of control and  not for liability?                 When it came in, there was no objection.  I was                     Mr. Clinton:   Well, I objected.                                            ____________________            15.  Fed. R. Evid. 403, in full, states:                      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.                                         -24-                 The Court:     When?  Not when it  was offered, not                 when it came in.  I'll be glad to put in  something                 like that, but I was sitting here waiting                     Mr. Clinton:   I filed  a motion in  limine instead                 of repeating.  You denied the motion  in limine, so                 I figured you ruled.                 The Court:     But when no objection came, I didn't                 know  at that  point whether  you had  changed your                 position or what. . . .            From this colloquy,  it appears that  Storage Tank felt  that            the district court's earlier denial  of its motion in  limine            had relieved it of any need to object to the admission of the            evidence  of the subsequent repair at the time it was offered            at trial.                       In United  States v.  Reed, 977  F.2d 14  (1st Cir.                         ______________     ____            1992), we said that "[a] motion in limine without subsequent,                                            _________            contemporaneous  objection  at trial,  .  .  . is  ordinarily            insufficient to preserve  an evidentiary ruling for  appeal."            Id. at 17 (citing Fed. R.  Evid. 103(a)).  More recently,  we            ___            expanded upon this general proposition by holding:                      Where  an  objection   to  evidence  has  been                 overruled in limine, it makes sense to require that                 the  objection   be  renewed  at  trial.    However                 definite the denial of  the motion to exclude prior                 to  trial, it is  child's play for  the opponent of                 the  evidence  to  renew  the  objection  when  the                 evidence  is actually  offered; and  requiring this                 renewal   gives  the   trial  judge  a   chance  to                 reconsider  the ruling  with the  concrete evidence                 presented in the actual context of the trial.            Fusco v. General  Motors Corp.,  11 F.3d 259,  262 (1st  Cir.            _____    _____________________            1993);  see, e.g., United States v. York, 933 F.2d 1343, 1360                    ___  ____  _____________    ____            (7th Cir.) (holding  that "`[a] party whose  motion in limine                                         -25-            has  been  overruled must  object  when the  error  the party            sought to  prevent  is about  to  occur at  trial'"  (quoting            United  States  v.  Roenigk,  810 F.2d  809,  815  (8th  Cir.            ______________      _______            1987))),  cert. denied,  112 S. Ct.  321, 116  L. Ed.  2d 262                      ____________            (1991); United States v. Khoury, 901 F.2d 948, 966 (11th Cir.                    _____________    ______            1990)  ("A defendant  must  object at  trial  to preserve  an            objection on  appeal; the  overruling of  a motion in  limine            does  not suffice."); Wilson  v. Waggener, 837  F.2d 220, 222                                  ______     ________            (5th Cir. 1988) ("A party whose motion in limine is overruled            must renew his  objection when  the evidence is  about to  be            introduced  at trial.").   As the Fifth  Circuit explained in            Collins v. Wayne Corp., 621 F.2d 777 (5th Cir. 1980):            _______    ___________                 Motions  in  limine  are  frequently  made  in  the                 abstract and  in anticipation of  some hypothetical                 circumstance that may not develop at trial.  When a                 party files numerous  motions in limine,  the trial                 court  may not  pay  close attention  to each  one,                 believing   that   many   of   them    are   purely                 hypothetical.  Thus, a party whose motion in limine                 has been  overruled must  object when the  error he                 sought to prevent with his motion is about to occur                 at  trial.   This  will  give  the trial  court  an                 opportunity to reconsider the grounds of the motion                 in    light    of     the    actual  instead     of                 hypothetical  circumstances at trial.            Id. at 784. This  rule "discourage[s] counsel from refraining            ___            from making an  objection at  trial in order  to reserve  the            opportunity to  assert reversible  error on appeal."   United                                                                   ______            States v. Roenigk, 810 F.2d 809, 815 (8th Cir. 1987).            ______    _______                      Because  Storage Tank  failed  timely to  object at            trial  to  the  admission   of  evidence  of  the  subsequent                                         -26-            alteration  to  the  ramp in  1992,  we  review the  district            court's decision to allow such evidence only for plain error.            Reed,  977 F.2d  at 17;  see Fed.  R. Evid.  103(d).   "Plain            ____                     ___            error, however,  is a rare species in  civil litigation . . .            ."  Gay v. P.K. Lindsay Co., 666 F.2d 710, 712  n.1 (1st Cir.                ___    ________________            1981), cert. denied, 456 U.S. 975, 102 S. Ct. 2240, 72 L. Ed.                   ____________            2d  849 (1982).   Even in criminal  cases, in the  absence of            proper   objection  we  will   "`correct  only  `particularly            egregious errors'  . . . that `seriously affect the fairness,            integrity  or public  reputation of  judicial proceedings,''"            United  States  v. Nason,  9 F.3d  155,  160 (1st  Cir. 1993)            ______________     _____            (quoting  United States v. Young, 470  U.S. 1, 15, 105 S. Ct.                      _____________    _____            1038, 1046, 84 L. Ed.  2d 1 (1985) (quoting United  States v.                                                        ______________            Frady, 456 U.S. 152, 163, 102 S. Ct. 1584, 1592, 71 L. Ed. 2d            _____            816  (1982))),  cert. denied,     S.  Ct.    , 1994  WL 69882                            ____________            (1994), and we  will reverse only  in "`exceptional cases  or            under peculiar  circumstances to prevent  a clear miscarriage            of justice,'" id. at  161 (quoting United States v.  Griffin,                          ___                  _____________     _______            818 F.2d 97, 100  (1st Cir.), cert. denied, 484 U.S. 844, 108                                          ____________            S. Ct. 137, 98 L.  Ed. 2d 94 (1987)); accord Gay, 666 F.2d at                                                  ______ ___            712  n.1.   It  is utterly  clear  that the  district court's            decision  to permit the evidence  of the changes  made to the            ramp in 1992, whether right or wrong, was not plain error.                      Although Fed. R. Evid. 407 proscribes the admission            of   evidence  of  subsequent  remedial  measures  to  "prove                                         -27-            negligence or culpable conduct,"  it allows such evidence, as            already  noted, "when  offered for  another purpose,  such as            proving .  . .  control."   Fed. R. Evid.  407.   The parties            agree that control  of the ramp  area where Clausen's  injury            occurred was a material issue in this case.  According to the            appellant, one aspect of the control issue arose because both            Storage Tank and  Sea-3 asserted that Goudreau was in control            of the work site and was, therefore, responsible for clearing            and  sanding the  area  where the  plaintiff  fell.   Clausen            points  out that a second aspect of the control issue in this            case,  not  alluded  to  by Storage  Tank,  involved  whether            Storage  Tank, Sea-3,  or both  jointly, controlled  the area            where Clausen fell if Goudreau, at that time, did not control            the ramp.16                      To be  sure, Storage Tank argues  that the evidence            that  it made  changes to  the ramp  at the request  of Sea-3            subsequent to  Clausen's accident was  inadmissible under the                                            ____________________            16.  The  trial judge's  summary of  the control  issue sheds            additional light on the parties' arguments:                 As  I understand  it,  and as  I'm putting  it, the                 defendants,  one, deny that  there was an accident,                 two, they say  if there was  an accident, each  one                 denies that  it was responsible  and maintains that                 any  fault  was that  either  of  the plaintiff  or                 Goudreau or both, and to each one there's an  issue                 as to who was  in control of the premises.   You're                                                              ______                 not  in agreement  on that,  although you  both say                 ___________________________________________________                 that Goudreau  was in control of  the premises, but                 ___________________________________________________                 if not, then who was?                 _____________________            (emphasis added).                                         -28-            control exception to Fed.  R. Evid. 407 because  the evidence            failed  to satisfy  the independent  requirements of  Fed. R.            Evid. 403.  Storage Tank maintains that, because the ramp was            replaced in 1992,  approximately three years  after Clausen's            fall, the evidence  is not probative of  whether Storage Tank            or Sea-3  controlled the ramp, either  separately or jointly,            in 1989,  particularly since, according to  Storage Tank, the            area had been exclusively occupied by Goudreau when Clausen's            injury occurred.  Whatever can be said for such arguments had            Storage Tank preserved its right to argue the merits, they do            not come close to  demonstrating that it was plain  error for            the district  court to believe  that the evidence  carried at            least  some probative weight as to who controlled the ramp in            1989.                      Storage  Tank  also suggests  that  it  was greatly            prejudiced because the jury may have used the evidence of the            ramp's  replacement  for an  improper  purpose.   The  judge,            however,  instructed  the   jury  that  "[e]vidence   of  the            subsequent  installation   of  stairs  in  1992  is  evidence            relevant  only on  the issue  of control.   It  is not  to be            considered evidence of liability or fault."  According to the            advisory  committee's  notes  to  Fed. R.  Evid.  403,  "[i]n            reaching a decision  whether to exclude on  grounds of unfair            prejudice,  consideration should  be  given to  the  probable            effectiveness  or  lack   of  effectiveness  of   a  limiting                                         -29-            instruction."  Although limiting instructions  may not always            be effective,  see, e.g.,  United States v.  Garcia-Rosa, 876                           ___  ____   _____________     ___________            F.2d  209, 221-22  (1st Cir.  1989), cert.  denied, 493  U.S.                                                 _____________            1030, 110 S. Ct. 742, 107 L. Ed. 2d 760 (1990), cert. granted                                                            _____________            & vacated on other grounds, 498 U.S. 954, 111 S. Ct. 377, 112            __________________________            L.  Ed.  2d 391  (1990), the  inadequacy of  the one  in this            situation  is scarcely so patent  as to support  a finding of            plain error.  We do not readily assume that a jury disregards            clear directions.  See Gutierrez-Rodriguez v.  Cartagena, 882                               ___ ___________________     _________            F.2d 553, 574 (1st Cir. 1989).                        We are satisfied that admission of the evidence was            not plain error.                 2.   Cross-Examination of Clausen's Expert, Doucette                      _______________________________________________                      At  trial,  Clausen  testified  that,  as  a  union            member,  he  had   enjoyed  certain  union  employee   fringe            benefits, including a  pension plan, an  annuity fund, and  a            "health and welfare dental plan."   Clausen did not  mention,            in  this   regard,  workers'  compensation   payments,  union            disability  benefits, or social security disability benefits.            Later  in the  trial, Clausen's  expert, Doucette,  estimated            Clausen's  pecuniary damages  (i.e.,  lost future  earnings),                                           ____            including  wages  and fringe  benefits  lost  because of  his            inability to  perform his former  job due to the  injury.  In            determining this figure, Doucette testified that Clausen,  at            the time  of his injury, had  earned "a gross hourly  wage of                                         -30-            $18.45  per hour."  He  also testified that  Clausen had then            enjoyed  fringe benefits    consisting of "an annuity fund, a            pension  fund,  and  health  and  welfare,  which  is  health            insurance"     the  gross future  value of  which, calculated            from  the time of Clausen's  injury through his  age of work-            life expectancy, totaled $391,000.   Doucette did not mention            workers' compensation payments, union disability benefits, or            social security disability benefits.                      Prior  to  cross-examining  Doucette,  counsel  for            Storage Tank requested                  a  ruling that [he] be allowed on cross-examination                 to go into the  union benefits, such as [Clausen's]                                                 ___________________                 disability benefits that  he's currently  receiving                 ___________________________________________________                 and  any Social Security  benefits, since they have                 ___________________________________________________                 opened it up by bringing it in as being factors.                 _______________________________________________            (emphasis added).  Counsel  for Clausen strenuously objected,            saying  the   mentioned  evidence   had  gone  "only   as  to            [Clausen's] earnings," there being "nothing said with respect            to [Clausen]  being economically  deprived now because  of no            money  or  anything  like that."    After  hearing  from both            parties,  the  court  denied  Storage  Tank's  request.    In            response, Storage Tank's counsel made an offer of proof:                  Note  my exception,  your Honor,  but on  the basis                 this is the collateral  [source rule].  He's raised                 the  issue.   This is  an offer.   He's  raised the                 [issue] of  fringe benefits  under unions and  he's                 currently receiving disability benefits.                      The  district court  denied Storage  Tank's request            undoubtedly  because of  New  Hampshire's  collateral  source                                         -31-            rule,17   which   provides  that   "a   plaintiff   [who]  is            compensated  in  whole or  in part  for  his damages  by some            source  independent  of  the  tort-feasor  .  .  .  is  still            permitted  to make  full recovery against  him."   Moulton v.                                                               _______            Groveton Papers Co.,  114 N.H.  505, 509, 323  A.2d 906,  909            ___________________            (1974).   According to the  Supreme Court  of New  Hampshire,            "[t]he rule that collateral  benefits are not subtracted from            the plaintiff's  recovery has  been applied to  benefits paid            under  an  insurance  policy  or  by  a  relief  association;            employment benefits; gratuitous payments;  social legislation            benefits  such  as social  security,  welfare, pensions;  and            benefits received under  certain retirement acts."   Id.  One                                                                 ___            commentator has  observed that "[t]he most  obvious effect of            the collateral source rule is that it `enables a plaintiff to            reap  a double recovery in certain  circumstances.'  In other            words,  `[t]he collateral source rule  is an exception to the            general  rule that  damages  in tort  should be  compensatory            only.'"  Joel K. Jacobsen, The Collateral Source Rule and the                                       __________________________________                                            ____________________            17.  "Properly  analyzed,  the  collateral source  rule  is a            substantive  rule of  damages and  not  a rule  of evidence."            Joel  K. Jacobsen, The Collateral Source Rule and the Role of                               __________________________________________            the Jury, 70 Or. L. Rev. 523, 526 (1991);  see, e.g., McInnis            ________                                   ___  ____  _______            v. A.M.F., Inc., 765 F.2d 240, 245 (1st Cir. 1985) ("[I]t  is               ____________            well  recognized that  Congress did  not intend  the [Federal            Rules of Evidence] to preempt . . . `substantive' state rules            . . . such as the . . . collateral source rule . . . .").  In            their Joint Pretrial Memorandum, the parties agreed that "New            Hampshire  tort law and contract law  govern the legal rights            and  duties of all parties at issue herein."  Accordingly, we            will abide by New Hampshire's collateral source rule.                                         -32-            Role of  the Jury, 70  Or. L. Rev.  523, 524  (1991) (quoting            _________________            Chenoweth  v. Schaaf, 576 F. Supp. 1556, 1558 (W.D. Pa. 1984)            _________     ______            and Overton v. United  States, 619 F.2d 1299, 1306  (8th Cir.                _______    ______________            1980) in that order).18                      Although  New  Hampshire's  collateral source  rule            serves  substantive  state  policies,  its  application  also            affects the  admissibility of certain evidence.   Courts have            held,  for  instance,  that,   under  the  Federal  Rules  of            Evidence, "evidence  of collateral benefits  [ordinarily] has                                            ____________________            18.  Courts have expressed various  policy rationales for the            collateral  source   rule.     "Most  fall  into   two  broad            categories.   The rule is  intended either (1)  to punish the            tortfeasor, or (2)  to ensure that the injured party receives            benefits for which he or she has contracted."   Jacobsen, The                                                                      ___            Collateral Source Rule and  the Role of the Jury,  supra note            ________________________________________________   _____            17,  at  528.    The  Supreme  Court  of  New  Hampshire  has            summarized these rationales as follows:                 The   basic  argument  advanced  for  [the  rule's]                 application is  that a  tort-feasor  should not  be                 allowed to escape the consequences  of his wrongful                 act  merely  because  his  victim  has  received  a                 benefit  from  a   collateral  source  which  would                 constitute  a windfall to  the defendant wrongdoer.                 It is  also pointed out that in  many instances the                 plaintiff has  paid for these benefits  in the form                 of insurance premiums  or concessions in  the wages                 he received  because of  such fringe benefits.   If                 such  considerations   are  not  present   and  the                 payments are gratuitous, it is maintained  that the                 maker of  these payments did not  intend to relieve                 the tort-feasor of any liability, but rather to aid                 the plaintiff  by doing him a  favor. . . .   It is                 also  argued  that the  collateral  source rule  is                 designed  to  offset   the  inability  of  ordinary                 damages   to   adequately  compensate   an  injured                 accident victim.            Moulton v.  Groveton Papers  Co., 114 N.H.  505, 509-10,  323            _______     ____________________            A.2d 906, 909 (1974).                                         -33-            no relevance in the lawsuit,"  Phillips v. Western  Co. of N.                                           ________    __________________            Am., 953 F.2d 923, 930 (5th Cir. 1992), because the existence            ___            of such benefits is of no  consequence to the trier of fact's            determination  of damages.  See Fed. R. Evid. 401.  "Evidence                                        ___            that is not  relevant, of course, is not admissible.  Fed. R.            Evid. 402."  Phillips, 953 F.2d at 930.                         ________                      In  some cases,  however, federal  courts, although            subject  to a  state's collateral  source rule,  have allowed            evidence of  collateral payments when relevant  to some other            issue.  Courts have  allowed defendants to introduce evidence            of  collateral  payments  to  show malingering  or  to  rebut            misleading testimony given on direct examination.  See, e.g.,                                                               ___  ____            DeMedeiros v.  Koehring Co.,  709  F.2d 734  (1st Cir.  1983)            __________     ____________            (affirming  the  district  court's   decision  to  allow  the            defendants  to  introduce  evidence  that the  plaintiff  was            receiving  $185 per week  in workers' compensation disability            benefits for  the limited purpose of  proving the plaintiff's            motivation  in declining an employment opportunity); Lange v.                                                                 _____            Missouri Pac. R.R.  Co., 703  F.2d 322, 324  (8th Cir.  1983)            _______________________            (finding that "evidence concerning [the  plaintiff's] receipt            of workers'  compensation benefits  was relevant to  test the            credibility of plaintiff's assertion that he had to return to            work  immediately  after  the   surgery  because  he  had  no            disability  income").   Evidence  of collateral  payments has            also  been allowed  on cross-examination after  the plaintiff                                         -34-            has  specifically  referred   to  such  payments  on   direct            examination.   Hannah v. Haskins, 612 F.2d 373, 375 (8th Cir.                           ______    _______            1980) (affirming  the district court's decision  to allow the            defendant  on cross-examination  to elicit  information about            collateral source  payments referred  to by the  plaintiff on            direct examination).                      Here, Storage Tank argues, citing Haskins, that the                                                        _______            district court erred in  denying its request to cross-examine            Doucette  on the  issue of  disability benefits  that Clausen            received after  the accident because Doucette  had raised the            issue  of employee benefits on direct examination.  We do not            agree.   Storage Tank's  counsel sought permission  to cross-            examine Doucette as to "disability benefits that [Clausen] is            currently receiving and any Social Security benefits."  These            were not the benefits Clausen and Doucette had testified were            lost  by reason  of  Clausen's injury     Doucette  mentioned            Clausen's loss  of  "an annuity  fund,  a pension  fund,  and            health and welfare, which is health insurance."  The district            court  had  good  reason  to  think  that  Storage  Tank  was            proposing to  delve into  different contemporary  benefits in                                      _________            order to persuade the jury to reduce its damages award by the            amount  of  collateral  payments  that were  currently  being            received  from  other  sources  by  the  disabled  plaintiff.            Preventing such  inquiry was consistent  with New Hampshire's            collateral source  rule.    If Storage  Tank  had  wished  to                                         -35-            examine  Doucette  on  the  accuracy of  his  projections  of            Clausen's economic loss relative to the annuity fund, pension            fund, and health insurance,  it needed to say so,  see infra,                                                               ___ _____            rather than  merely saying  it wanted to  cross-examine about            disability  and social  security benefits  now being  paid to            Clausen.                        Storage  Tank's reliance  on Haskins  is misplaced.                                                   _______            In  Haskins,  the  plaintiff,  on   direct  examination,  had                _______            testified  that  certain medical  bills  had  been paid  from            collateral  sources, namely,  Blue  Cross, Blue  Shield,  and            Medicaid.     The  district  court  allowed  the  defendant's            attorney to "elicit[] further information concerning the type            and scope  of the collateral source payments."   Haskins, 612                                                             _______            F.2d at 375.   Here, by contrast, Clausen and  Doucette never            testified  that  Clausen   was  receiving  collateral  source            payments  (e.g.,  workers'  compensation,   union  disability                       ____            benefits, or  social security disability  benefits).  Rather,            they  testified  that Clausen  had  permanently lost  certain            employee  benefits  by  reason  of his  accident  (i.e.,  "an                                                               ____            annuity  fund, a pension fund, and health and welfare").  The            district  court  could  reasonably  believe  that  Doucette's            testimony   concerning  the  purported  value  of  particular            benefits  that  Clausen had  allegedly  lost  because of  his            injury  did   not  "open  the   door"  to   cross-examination                                         -36-            concerning  the  receipt by  Clausen of  what appeared  to be            different benefits.19                         We recognize  that there  is some force  to Storage            Tank's  argument, relying on Lange, that, notwithstanding the                                         _____            collateral  source  rule,  it was  entitled  to cross-examine            Doucette regarding  Clausen's receipt of  disability benefits            to show that  Clausen had not actually lost employee benefits            as indicated by Doucette on direct examination.  In this same            vein,  Storage  Tank asserts  that,  had  the district  court            permitted it to demonstrate on cross-examination that Clausen            had not  lost his  employee benefits, it  would have  thereby            impeached  Doucette's credibility.    We need  not reach  the            merits  of these  arguments,  however,  because Storage  Tank            raises them for the first time on appeal.                       We have held that "[a] party may not claim error on            appeal in the exclusion of evidence unless the district court            was told not only  what the party intended to prove  but also            for what purpose."   Tate v. Robbins &  Myers, Inc., 790 F.2d                                 ____    ______________________            10, 12 (1st Cir. 1986) (citing 1 Jack B. Weinstein & Margaret                                            ____________________            19.  We note that "[t]rial  judges retain broad discretion to            impose  reasonable   limitations  on  the  scope   of  cross-            examination,"  United States v. Alvarez, 987 F.2d 77, 82 (1st                           _____________    _______            Cir.) (citing Delaware v. Van Arsdall, 475 U.S. 673, 679, 106                          ________    ___________            S. Ct.  1431, 1435, 89 L.  Ed. 2d 674  (1986)), cert. denied,                                                            ____________            114  S.  Ct.  147 (1993),  and  "[w]e  review  district court            limitations on cross-examination for `abuse  of discretion,'"            United States v. Carty,  993 F.2d 1005, 1010 (1st  Cir. 1993)            _____________    _____            (quoting  United States  v.  Boylan, 898  F.2d 230,  254 (1st                      _____________      ______            Cir.), cert. denied, 498 U.S. 849, 111 S. Ct. 139, 112 L. Ed.                   ____________            2d 106 (1990)).                                          -37-            A. Berger,  Weinstein's Evidence    103[03], at  103-33 (1985                        ____________________            ed.) ("In making an offer of proof counsel must be careful to            articulate   every  purpose   for   which  the   evidence  is            admissible; a purpose not identified at the trial level  will            not provide a basis for reversal on appeal.")).  Accordingly,            "if  evidence is excluded because it  is inadmissible for its            only  articulated  purpose,  the proponent  of  the  evidence            cannot  challenge the ruling on appeal on the ground that the            evidence  `could  have  been  rightly  admitted  for  another            purpose.'"  Id. (quoting 1 Kenneth S. Broun et al., McCormick                        ___                                     _________            on Evidence   51, at [199 (1992)]).            ___________                      At  trial, Storage  Tank argued  that it  should be            allowed  to cross-examine  Doucette about  certain collateral            source payments received by Clausen because he (Doucette) had            referred during direct  examination to other employee  fringe            benefits  lost by  Clausen after  his injury.    The district            court  rejected  this  argument.    See  discussion,   supra.                                                ___                _____            Counsel for Storage Tank at no time stated that the proffered            evidence  (i.e., that  Clausen was  receiving  disability and                       ____            social security  benefits) should be admitted  either to show            that Clausen had  not, in fact, suffered  damages through the            loss of his annuity fund, pension plan, or health  insurance,            or  to  impeach  Doucette's  credibility.    These  arguments            cannot, therefore, be entertained.                                         -38-                 3.   Including   Goudreau  in  the  Proration  of  Fault                      ___________________________________________________                      Instruction to the Jury                      _______________________                      The parties  filed with the district  court a Joint            Request  for  Special Jury  Questions,  which  was signed  by            counsel  for  Clausen, Storage  Tank,  and  Sea-3, and  which            formed the  basis of the special  verdict questions submitted            to  the jury.   This  document  contained, among  others, the            following questions:                 3.(a)     Was Goudreau Corp. negligent?                                         ***                                 (b)     If  so, was  the  negligence of  Goudreau                           Corp.  a  proximate cause  of plaintiff's                           injury?                                         ***                 5.        State in what percentage  the plaintiff's                           negligence  and   defendants'  negligence                           caused  or  contributed  to the  injuries                           alleged.                           Eric Clausen's negligence:    ______%                           Storage Tank Development Corp.'s                           negligence:                                                    _____%                           Sea-3, Inc.'s negligence:     ______%                           Goudreau Corp.'s negligence:  ______%                                                           100 %                                                         ______            Although counsel for Storage Tank and Sea-3 had signed-off on            these  questions, during  a charging  conference held  on the            afternoon of  the  third  day  of trial,  counsel  for  Sea-3            objected to the  inclusion of Goudreau on the special verdict                                         -39-            form.  Specifically, counsel for Sea-3 argued to the district            court that "we should  not have Goudreau Corporation, because            they're  not a party to this case,  and . . . to include them            would  confuse the  jury  with respect  to finding  liability            against  a party that's not here."  Counsel for Sea-3 further            asserted that  "[m]y concern is  that we have  an [indemnity]            action against Goudreau . . . [a]nd I don't want this  jury's            finding to be on  that process [sic], and, hence, I object to            its presence  here."  Counsel for Storage Tank neither joined            in   Sea-3's  objection  nor  expressed  any  dissatisfaction            whatsoever  with the  inclusion  of Goudreau  in the  special            verdict questions.                      Counsel  for Sea-3  again raised  his objection  to            Goudreau's inclusion  in the  special verdict  questions just            prior  to  the  district court's  charge  to  the  jury.   He            maintained  that his  only problem  with the  special verdict            questions  was  "the inclusion  of  Goudreau."   Counsel  for            Storage  Tank,  on the  other hand,  stated  that he  had "no            problem" with the special  verdict questions and that  he had            "no objection" to the  instructions.  Notwithstanding Sea-3's            objection, the  district court did not  exclude Goudreau from            the special  verdict questions, which were given  to the jury            in nearly  identical form  to the  Joint Request  for Special            Jury Questions submitted previously by the parties.                                            -40-                      On appeal, Storage  Tank argues  that the  district            court  committed reversible  error  by allowing  the jury  to            assign liability to Goudreau because Goudreau was not a party            defendant  at trial.  It contends that the district court, by            allowing  the  jury  to  apportion  fault  against  Goudreau,            violated  N.H. Rev. Stat. Ann.    507:7-e, I(a) (1986), which            orders  the trial court to  "[i]nstruct the jury to determine            . . . the  amount of damages  to be awarded  to each claimant            and  against   each   defendant  in   accordance   with   the            proportionate fault of  each of the  parties."  Storage  Tank            interprets  this statute to mean that it is impermissible for            a  trial court to instruct  a jury to  find the proportionate            fault of a non-party.   In this context, Storage  Tank argues            that Goudreau was not a party in its trial with Clausen, and,            therefore, the district court, by virtue of    507:7-e, I(a),            erred  by instructing  the  jury to  apportion fault  against            Goudreau.                      Clausen   counters   Storage  Tank's   argument  by            asserting that Storage Tank failed to preserve for appeal the            issue that the district  court did not comply with  N.H. Rev.            Stat.  Ann.   507:7-e, I(a).  He points out that Storage Tank            not only  asked that Goudreau be included  in special verdict            questions  in the  parties'  Joint Request  for Special  Jury            Questions,  but also failed to object  to the special verdict            questions at any time during trial.  We agree with Clausen.                                         -41-                      Fed. R. Civ. P.  51 states, inter alia,  that "[n]o                                                  __________            party may assign as error  the giving or the failure  to give            an instruction  unless that party objects  thereto before the            jury retires to consider  its verdict, stating distinctly the                                                   ______________________            matter  objected  to  and  the  grounds  of  the  objection."            ___________________________________________________________            (emphasis   added).      "This  rule   applies   to   special            interrogatories  as well  as verbal  instructions."   Phav v.                                                                  ____            Trueblood, Inc., 915 F.2d  764, 769 (1st Cir. 1990).  We have            _______________            held that                 a litigant who  accedes to  the form  of a  special                 interrogatory will  not be heard to  complain after                 the  fact. .  . .   If  a slip  has been  made, the                 parties    detrimentally    affected    must    act                 expeditiously to cure  it, not lie in  wait and ask                 for  another trial  when  matters turn  out not  to                 their liking.            Anderson v. Cryovac, Inc., 862 F.2d 910, 918 (1st Cir. 1988).            ________    _____________            Here, Storage Tank acceded to the form of the special verdict            questions; it participated in  the parties' Joint Request for            Special Jury  Questions, and  then informed the  trial judge,            just  before he instructed the jury, that it had "no problem"            with the  special verdict questions.   "It follows inexorably            that  [Storage  Tank  has]  waived  the  right  to  press  an            objection on appeal."   La Amiga del Pueblo, Inc.  v. Robles,                                    _________________________     ______            937 F.2d 689, 692  (1st Cir. 1991); see Toscano  v. Chandris,                                                ___ _______     _________            S.A.,  934 F.2d  383,  384-85 (1st  Cir.  1991) ("[W]hen  the            ____            appellants sat  idly by and allowed  the court's instructions                                         -42-            to the jury to  stand unchallenged, they waived the  right to            press the objections which they now attempt to advance.").                      Nor  can we  say that  it was  plain error  for the            district court  to ask the jury in  special verdict questions            to assign fault  to Goudreau.  As we have noted, "[t]he plain            error standard, high  in any event, . . .  is near its zenith            in the Rule  51 milieu."   Toscano, 934 F.2d  at 385.   "[I]t                                       _______            applies only where the error results in  a `clear miscarriage            of justice' or seriously  affects `the fairness, integrity or            public reputation of judicial  proceedings.'"  Phav, 915 F.2d                                                           ____            at 769  (quoting Smith v. Massachusetts  Inst. of Technology,                             _____    __________________________________            877 F.2d 1106, 1110  (1st Cir.), cert. denied, 493  U.S. 965,                                             ____________            110 S. Ct. 406, 107 L. Ed. 2d 372 (1989)).  In this instance,            the district court's special  verdict questions, if erroneous            at all, did not reach the pinnacle of fault envisioned by the            plain error standard.20            B.   Alleged Post-Trial Errors            B.   Alleged Post-Trial Errors                 1.   Refusal to File  Storage Tank's Renewed  Motion for                      ___________________________________________________                      Judgment as a  Matter of Law and  Denial of Storage                      ___________________________________________________                      Tank's Motion for Judgment as a Matter of Law                      _____________________________________________                      At the end of evidence, Storage Tank filed a Motion            for Judgment as  a Matter  of Law, which  the district  court                                            ____________________            20.  The Supreme Court of New Hampshire has not addressed the            issue and it  is unclear,  insofar as we  are aware,  whether            third-party defendants, who are not involved in the immediate            trial involving  the plaintiff  and the defendant(s),  are or            are not "parties"  as that  term appears in  N.H. Rev.  Stat.            Ann.   507:7-e.                                             -43-            denied.  Within ten days after the entry of judgment, Storage            Tank  filed, pursuant  to Fed.  R. Civ.  P. 50(b),  a Renewed            Motion for Judgment  as a Matter of Law.   The district court            refused to file the later motion because it failed to include            a certificate  of compliance with  U.S. Dist. Ct.  R., D.N.H.            11(b).21   On appeal, Storage  Tank assigns error  to both of            these decisions.                       a.   Refusal to File Storage Tank's  Renewed Motion                           ______________________________________________                           for Judgment as a Matter of Law                           _______________________________                      Storage  Tank initially contends  that the district            court erred  in  refusing  to  file its  Renewed  Motion  for            Judgment as a Matter  of Law for failure to comply  with U.S.            Dist.  Ct. R., D.N.H 11(b).  According to Storage Tank, Local            Rule 11 does not apply to  a Renewed Motion for Judgment as a            Matter of Law.  We disagree.                      U.S.  Dist.  Ct.  R., D.N.H.  11(a)(1)  states that            "[m]otions other than during trial will be considered only if             _________________________________            submitted separately from other pleadings on a document using            the word `Motion' in the  title.  The Clerk shall  not accept                                            ____________________            21.  District of New Hampshire Local Rule 11(b) states:                 (b)  SEEKING CONCURRENCE IN MOTIONS                      The moving  party shall  certify to  the court                 that  he has  made a good  faith attempt  to obtain                 concurrence in  the relief  sought.  If  the moving                 party has obtained concurrence,  he shall so  state                 in the body of the motion so the court may consider                 it without delay.                                         -44-            any  motions not  in compliance  with procedures  outlined in            these Rules."   (emphasis  added).  Assuming,  arguendo, that                                                           ________            the phrase "any motions" in the second sentence of Local Rule            11(a)(1)  means "any  motions other  than during  trial," the            issue  becomes whether  a Renewed  Motion for  Judgment as  a            Matter of Law  is a  trial motion,  which is  not subject  to            Local Rule 11, or  a "motion other than during  trial," which            is subject to  Local Rule  11.  Like  the district court,  we            conclude  that a Renewed Motion  for Judgment as  a Matter of            Law,  which may be filed as many  as ten days after the entry            of  judgment, is a "motion other than during trial" that must            comply with the strictures of Local Rule 11(b).  Accordingly,            the  district court was entitled to enforce its local rule by            refusing to  file Storage Tank's Renewed  Motion for Judgment            as a Matter of  Law, and we cannot say that,  by doing so, it            engaged  in a clear injustice.  See Atlas Truck Leasing, Inc.                                            ___ _________________________            v. First NH  Banks, Inc., 808 F.2d  902, 903 (1st Cir.  1987)               _____________________            ("We will reverse  [the district court's]  determination only            if the ruling  results in  clear injustice.").   We note,  in            this regard, that Storage Tank's proffered Renewed Motion for            Judgment  as a Matter of  Law was virtually  identical to its            earlier Motion for  Judgment as  a Matter of  Law, denial  of            which is reviewable on appeal.                      b.   Denial of  Storage Tank's Motion  for Judgment                           ______________________________________________                           as a Matter of Law                           __________________                                         -45-                      Appellate  review of  the  denial of  a Motion  for            Judgment as  a Matter of Law  is limited.  As  has often been            said,  "we  must  examine  the evidence  in  the  light  most            favorable to  the plaintiff  and determine whether  there are            facts and inferences reasonably  drawn from those facts which            lead  to but one conclusion  that there is a total failure of            evidence to prove the plaintiff's case."  Fact Concerts, Inc.                                                      ___________________            v.  City of  Newport, 626  F.2d 1060,  1064 (1st  Cir. 1980),                ________________            vacated on other grounds, 453  U.S. 247, 101 S. Ct. 2748,  69            ________________________            L. Ed. 2d 616  (1981), quoted in Gonzalez-Marin  v. Equitable                                   _________ ______________     _________            Life Assurance  Soc'y of  the United States,  845 F.2d  1140,            ___________________________________________            1144 (1st  Cir. 1988);  Mayo v.  Schooner Capital  Corp., 825                                    ____     _______________________            F.2d  566, 568  (1st  Cir. 1987).    Moreover, "`we  may  not            consider the  credibility of witnesses, resolve  conflicts in            testimony, or evaluate the weight of the evidence.'"   Putnam                                                                   ______            Resources  v.  Pateman, 958  F.2d  448, 459  (1st  Cir. 1992)            _________      _______            (quoting Wagenmann  v.  Adams, 829  F.2d 196,  200 (1st  Cir.                     _________      _____            1987)).                      In  its  Motion for  Judgment as  a Matter  of Law,            Storage Tank argued that it could not be found liable because            (1) the danger to Clausen was obvious and he failed to ensure            his own  safety, and (2)  Storage Tank  had no notice  of the            dangerous  condition.   On  appeal, Storage  Tank raises  two            additional arguments not made in its Motion for Judgment as a            Matter  of  Law.   First,  it contends  that  Clausen's trial                                         -46-            testimony unequivocally established  that he fell on  staging            planks  that   had  been  placed  over   the  existing  ramp.            Consequently, Storage Tank maintains that, because it did not            either  own or  control staging planks     or  receive notice            that staging planks had been placed over the existing ramp               there was insufficient evidence  upon which a reasonable jury            could  have found  Storage Tank  negligent.   Second, Storage            Tank asserts that "Goudreau . . .  assumed responsibility for            the  safety   of  the  work  area  pursuant  to  the  written            contract."  We decline  to reach the merits of  these freshly            raised arguments, however, because "[a]ppellate review may be            obtained only on the specific ground stated in the motion for            directed verdict."  Wells Real Estate, Inc. v. Greater Lowell                                _______________________    ______________            Bd.  of  Realtors,  850  F.2d 803,  810  (1st  Cir.)  (citing            _________________            Pstragowski v. Metropolitan Life Ins. Co., 553 F.2d 1, 3 (1st            ___________    __________________________            Cir. 1977)), cert.  denied, 488 U.S. 955, 109 S. Ct. 392, 102                         _____________            L. Ed. 2d 381 (1988).                      With regard  to whether Clausen  was contributorily            negligent for failing to  observe an obvious danger,  we find            sufficient evidence  upon which a reasonable  jury could find            that he was not.  Clausen was injured on his first day on the            job and on his first trip down the ramp.   He, therefore, had            no prior  personal experience with the  slippery condition of            the ramp.  Moreover, Clausen testified that the one-half-inch            sheet of  ice that caked the  ramp was concealed by  snow and                                         -47-            that  nobody had  told him  prior to  the accident  about the            presence of ice on the ramp.  Similarly unavailing is Storage            Tank's contention that it is entitled to judgment as a matter            of  law because  it  did not  receive  notice of  the  ramp's            dangerous  condition  or  an  opportunity  to  take  remedial            action.  Because there  was evidence at trial from  which the            jury  could reasonably find that  Storage Tank knew or should            have known that ice and snow would accumulate on the ramp and            that Storage  Tank was responsible for taking action to clear            the ramp, the jury "could likewise  find that reasonable care            required that [Storage Tank]  should have taken such action."            Tremblay  v. Donnelly, 103 N.H.  498, 500, 175  A.2d 391, 393            ________     ________            (1961).     We  decline  to  disturb   the  district  court's            conclusion that  Clausen presented evidence sufficient  for a            reasonable jury to find Storage Tank negligent.                   2.   Denial of  Storage Tank's Motion to  Alter or Amend                      ___________________________________________________                      Judgment                      ________                      Storage  Tank maintains  that  the  district  court            erred in denying its  Motion to Alter or Amend  the Judgment,            which asserted that the jury's verdict was grossly excessive,            not  supported  by  the  facts, and  subject  to  remittitur.            Having  considered  Storage Tank's  argument  and the  record            before  us,   we  cannot  say  that  the  jury's  verdict  of            $1,426,000 was  so exorbitant that the  district court abused            its  discretion   by  denying  Storage  Tank's   request  for            remittitur.  See, e.g.,  American Business Interiors, Inc. v.                         ___  ____   _________________________________                                         -48-            Haworth, Inc., 798 F.2d  1135, 1146 (8th Cir.  1986) (holding            _____________            that, because  "the trial  court has heard  the evidence  and            knows the  community's standards,  [a court of  appeals] will            reverse   a  denial   of   remittitur  only   when  in   rare            circumstances [it  is] pressed  to conclude that  the verdict            represents a monstrous or shocking injustice").                      The  judgment of  the district  court is  affirmed.                      __________________________________________________            Costs to appellee.            _________________                                         -49-
