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