August 5, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1862
CHARLOTTE BEST,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
ERRATA SHEET
The opinion of this court issued on August 1, 1994, not for
publication, is amended as follows:
On the cover sheet the U.S. District Judge should be Samuel
B. King, Senior U.S. District Judge. A footnote should be added
which reads: "Of the District of Hawaii, sitting by
designation."
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1862
CHARLOTTE BEST,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Samuel P. King,* Senior U.S. District Judge]
Before
Torruella, Cyr and Boudin,
Circuit Judges.
Edward T. Troy, was on brief for appellant.
Mary Elizabeth Carmody, Assistant U.S. Attorney, Senior
Litigation Counsel, with with Donald K. Stern, United States
Attorney, was on brief for appellee.
August 1, 1994
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* Of the District of Hawaii, sitting by designation.
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* Of the District of Hawaii, sitting by designation.
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Per Curiam. This is an appeal from a judgment entered in
favor of defendant-appellee, United States, after a non-jury
trial in an action for alleged negligence pursuant to the Federal
Tort Claims Act ("FTCA"), 28 U.S.C.A. 1346(6), 2671, et seq.
At the conclusion of plaintiff's, Charlotte Best's, evidence the
court granted judgment as a matter of law for the United States.
Plaintiff-appellant Best raises four issues on appeal: (1)
the district court failed to comply with the provisions of Fed.
R. Civ. P. 52 by not stating its findings of fact and conclusions
of law with sufficient specificity to allow for effective
appellate review, (2) the district court committed error in
ruling that plaintiff failed to sustain her burden of proof on
the issue of negligence, (3) the district court erred in holding
that the doctrine of res ipsa loquitur did not apply to the facts
of this case, and (4) the district court abused its discretion in
its control of the examination of witnesses and in excluding the
testimony of plaintiff's expert. We affirm the judgment of the
district court.
Best rented skis from the recreational supply center at
Hanscom Air Force Base in Massachusetts. Thereafter, on March 2,
1988, she injured herself while skiing on Mount Snow, Vermont.
At a pre-trial conference, the parties narrowed the controvery to
the issue of whether United States' employees were negligent when
they adjusted Best's ski bindings, which in turn allegedly caused
the bindings to fail to release, thereby causing Best's injuries.
It is undisputed that Charlotte Best's son, Guy Best,
returned the skis to the United States in March of 1988, and that
United States' employees immediately put the skis back into its
inventory. At that time, Best's son did not make any complaint
to any person that any defect or negligence in adjustment of the
skis was the cause of Best's accident. The United States was
thus not alerted to the need to inspect, or preserve, the
allegedly defective equipment or to determine whether any failure
to properly adjust the skis was the cause of plaintiff's
accident. On May 2, 1989, more than a year after the accident
occurred, Best filed her administrative claim pursuant to the
FTCA, 28 U.S.C. 2675. And by that time the United States was
unable to identify the allegedly defective skis to determine the
validity of Best's claim.
The testimony at trial was equally unhelpful in filling this
gap, as Best could not remember the serial number or even recall
who manufactured the equipment she rented. Furthermore, even
though she observed defendant's employee adjusting the ski
bindings, she was unable to testify as to the setting used.
Moreover, Best's expert, Mr. Adam, testified that in order for
him to give an opinion as to the cause of Best's accident,
whether the bindings were properly set or whether they should
have released, he would have had to examine the actual ski
equipment used. The district court thus disallowed the expert's
testimony.
At the end of Best's case, the court ruled as follows in
granting the United States' motion for judgment as a matter of
law:
I'm going to grant the motion for judgment as
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a matter of law. And I will do so for the
following reasons:
First of all, I think Vermont law applies, to
tell you the truth, because it would be
almost impossible to poor old Vermont; it
would depend on where the person came from as
to what happened. This happens to be a
federal case but it could be a state case.
And [if] Vermont law didn't apply to Vermont
ski lodges, they would be in a terrible spot.
I also don't believe it makes much of a
difference whether it's Massachusetts or
Vermont law at this stage.
The reason I'm granting the motion is because
there is insufficient evidence to justify a
finding that proof by a preponderance of the
credible evidence that there is any
connection between what Mr. Adams
[plaintiff's expert] says should be done when
-- by the renters of the skis when they rent
them and what took place.
The only possible thing that could be pointed
to as a possible error would be the tension
on the back blade against the heel and there
is no evidence that that wasn't appropriate
or that that had anything to do with causing
the injury.
The only testimony we have regarding the
setting according to the chart was it was
three and a half. The boots were
comfortable. They fit. Mrs. Best cleaned
off the bottoms, didn't notice there was
anything wrong with them. Nobody complained
to the people when they sent them back that
there was anything wrong with them. So she
could look at them.
This idea that the government has to keep
track of ski equipment by serial number and
hang onto it for an indefinite period of time
in case somebody comes in and says "I was
damaged by that particular set of skis" is
just not in the duties required under these
circumstances.
If there had been a complaint about those
particular skis and they had not kept it,
that would be another matter. But it holds
them to a higher level of care for having
destroyed it and that does happen sometimes.
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So in my opinion there is insufficient
evidence of liability. And I grant the
motion for judgment as a matter of law.
(Emphasis supplied).
Best's brief is less than helpful in its allegations
regarding the district court's findings and conclusions pursuant
to Fed. R. Civ. P. 52(a). As best we can glean, appellant claims
that the district court violated Rule 52(a),and deprived her of a
meaningful appeal, because it disregarded plaintiff's expert's
opinion without explanation, and because it allegedly ignored the
testimony of Gary Best, plaintiff's son, regarding the return of
the skis to the defendant-appellee. These allegations, however,
are not sufficient to sustain the challenge.**
** In its pertinent part Fed. R. Civ. P. 52 reads as follows:
(a) Effect. In all actions tried upon the
(a) Effect.
facts without a jury . . . the court shall
find the facts specially and state separately
its conclusions of law thereon, and judgment
shall be entered pursuant to Rule 58. . . .
Requests for findings are not necessary for
purposes of review. Findings of fact,
whether based on oral or documentary
evidence, shall not be set aside unless
clearly erroneous, and due regard shall be
given to the opportunity of the trial court
to judge the credibility of witnesses. . . .
It will be sufficient if the findings of fact
and conclusions of law are stated orally and
recorded in open court following the close of
the evidence.
(c) Judgment on Partial Findings. If during
(c) Judgment on Partial Findings.
a trial without a jury a party has been fully
heard on an issue and the court finds against
the party on that issue, the court may enter
judgment as a matter of law against that
party with respect to a claim or defense that
cannot under the controlling law be
maintained or defeated without a favorable
finding on that issue. . . . Such a judgment
shall be supported by findings of fact and
conclusions of law as required by subdivision
(a) of this rule.
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In its findings pursuant to Fed. R. Civ. P. 52, the court
did not explicitly state why it disregarded the testimony of
Best's expert, Mr. Adams. The court, however, had previously
given an explanation, when it excluded Mr. Adam's testmony during
the trial as an evidentiary matter. That ruling is not appealed
from, and in any event, it appears to be eminently correct.
There is no need or requirement that the trial judge repeat his
evidentiary ruling later in the proceedings when ruling under
Rule 52.
As to Guy Best's testimony, Best basically disagrees with
the trial court's ultimate conclusion not to credit his
testimony, a position which must be considered pursuant to the
requirements of the very rule which is relied upon, i.e., on a
clearly erroneous standard. Dedham Water v. Cumberland Farms
Dairy, 972 F.2d 453, 457 (1st Cir. 1992). Our independent
screening of the district court's ruling, reproduced ante at 4-5,
leads us to conclude that the court's findings are not clearly
erroneous.
This was a simple negligence case, the key to which was
proof that the skis used by Best were defective because of some
action or inaction by the United States' employees. There was no
such proof and no defect was shown, because no evidence was
available regarding the condition of the skis when they were
returned. A brief review of the district court's ruling reveals
the following essential findings of fact: (1) The ski boots when
received by Best were in proper condition, (2) when returned no
one complained that there was anything wrong with them, and (3)
the testimony of Best's expert could not connect any improper
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action by defendant's employees to the accident. The court then
concluded that this evidence as a matter of law did not establish
liability on behalf of defendant.
The court's findings and conclusions sufficiently comply
with Rule 52(a) and did not deprive appellant of the opportunity
to intelligently frame her appeal. Thermo Electron Corp. v.
Schiavone Construction Co., 958 F.2d 1158, 1160-61 (1st Cir.
1992). "[W]hat is adequate depends on the importance of an
issue, its complexity, the depth and nature of the evidence
presented, and similar elements that vary from case to case."
Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1238
(1st Cir. 1994).
Best's allegation regarding the applicability of the
doctrine of res ipsa loquitur is equally misplaced. This
doctrine is inapplicable where the instrumentality causing the
accident is without the control of the defendant upon the
occurrence of the accident. See Coyne v. John S. Tilley Co., 2
Mass. App. Ct. 641, 644, 318 N.E.2d 623, 626 (1974); Cyr v. Green
Mountain Power Corp., 145 Vt. 231, 235-36, 485 A.2d 1265 (1984).
Lastly, Best complains of an alleged abuse of discretion by
the trial judge regarding curtailment of the questioning of
witnesses and exclusion of the testimony of plaintiff's expert.
We find no such error to have been committed. Elgabri v. Lekas,
964 F.2d 1255, 1260 (1st Cir. 1992).
Affirmed.
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