Clemente v. Carnicon Management

USCA1 Opinion









UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

_________________________

No. 94-1603

CARMEN CLEMENTE,

Plaintiff, Appellant,

v.

CARNICON-PUERTO RICO MANAGEMENT ASSOCIATES, L.C., ET AL.,

Defendants, Appellees.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge] ___________________

_________________________

Before

Selya, Circuit Judge, _____________

Coffin, Senior Circuit Judge, ____________________

and Cyr, Circuit Judge. _____________

_________________________

Adrian Mercado for appellant. ______________
Jose A. Fuentes Agostini, with whom Totti, Rodriguez Diaz & ________________________ _______________________
Fuentes and Carlos A. Ramos were on joint brief, for appellees. _______ _______________

_________________________
April 14, 1995
_________________________






















SELYA, Circuit Judge. Plaintiff-appellant Carmen SELYA, Circuit Judge. ______________

Clemente brought an unsuccessful negligence suit against several

defendants affiliated with La Concha, a resort hotel in San Juan,

Puerto Rico.1 She now appeals. After carefully considering her

plaints, we affirm.

I. BACKGROUND I. BACKGROUND

On August 11, 1992, appellant, a citizen of New York,

traveled to Puerto Rico. She registered as a guest at La Concha.

At 10:30 that evening, while exiting the piano bar, appellant

slipped on the second step of a small, carpeted stairway. Having

neglected to use the handrail, she plummeted to the floor,

posterior first, sustaining a fractured right ankle and other

injuries.

Invoking diversity jurisdiction, 28 U.S.C. 1332

(1988), appellant brought suit in the United States District

Court for the District of Puerto Rico. In her complaint, she

posited two theories of tortious conduct under Puerto Rico's

general negligence statute,2 alleging that the defendants not

only failed to keep the stairs free of foreign substances but

also inadequately illuminated them. The first allegation stemmed
____________________

1For simplicity's sake, we do not distinguish among the
entities that have been sued, but refer to them collectively as
"the defendants."

2The statute provides in pertinent part:
A person who by an act or omission
causes damage to another through
fault or negligence shall be
obliged to repair the damage so
done. . . .
P.R. Laws Ann. tit. 31, 5141 (1991).

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from appellant's claim that the stairs, at the time of her

tumble, were suffused with some sort of liquid (an inference that

she drew from the dampness in her pants and on her person

following her spill).

Trial commenced on April 20, 1994. At the close of the

plaintiff's case, the judge remarked that visiting the accident

scene might assist the jury. When neither party objected, the

judge ordered a view to take place at approximately 7:00 p.m. In

implementing the order, the judge provided very little structure.

He neglected to give the jurors any detailed instructions or to

enlist the court reporter's participation. Once the entourage

reached La Concha, the jurors conversed freely among themselves

and at least one juror touched foot to stair. It is alleged

though disputed that the jurors also spoke with the judge.

Despite these informalities, appellant did not object

at any point before or during the view, nor did she solicit any

jury instructions concerning the view, nor did she request the

presence of a reporter. It was not until the next day that

appellant for the first time objected to the view and,

concomitantly, moved for a mistrial. The judge overruled her

objection and denied her motion. Even then, appellant neither

asked to interview the jurors nor requested any sort of curative

instruction.

At the close of all the evidence, the district court

defenestrated the claim of careless maintenance, granting the

defendants' motion for judgment as a matter of law under Fed. R.


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Civ. P. 50(a), and sent the case to the jury only on the parallel

claim of poor illumination. Appellant did not ask the court to

comment on the evidentiary status of the view in its

instructions, and the court did not do so. The jury returned a

defendants' verdict.

Before us, appellant asserts that the jury verdict

should be set aside because the defects associated with the view

warranted a mistrial. Additionally, she assigns error to the

district court's handling of her negligent maintenance claim. We

take these grievances one step at a time.

II. THE VIEW II. THE VIEW

Appellant's principal assignment of error features the

district court's denial of her motion for a mistrial. The

asseveration rests on the premise that defects associated with

the view required a new beginning. Thus, the question presented

reduces, in the first instance, to the status of the view itself.

In order to secure our footing, we begin with common

ground: a federal court, exercising its inherent powers, may

allow a jury in either a civil or a criminal case to view places

or objects outside the courtroom. See United States v. Passos- ___ _____________ _______

Paternina, 918 F.2d 979, 986 (1st Cir. 1990), cert. denied, 499 _________ _____ ______

U.S. 982 (1991), and cert. denied, 501 U.S. 1209, 1210 (1991). ___ _____ ______

Whether to permit a jury to conduct a view in a particular

situation is a question committed to the trial court's informed

discretion. See United States v. Pettiford, 962 F.2d 74, 76 (1st ___ _____________ _________

Cir. 1992); United States v. Drougas, 748 F.2d 8, 30-31 (1st Cir. _____________ _______


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1984); see generally Hulen D. Wendorf, Some Views on Jury Views, ___ _________ ________________________

15 Baylor L. Rev. 379, 390-92 (1963) (cataloguing several

considerations that may enter into a judge's discretionary

decision to grant or deny a view).

Though discretionary at the outset, a view, once

authorized, should embody certain fundamental safeguards.

Collectively, these safeguards are aimed at achieving fairness

and maximizing the trial's truth-seeking function. We limn a

five-step protocol that a court customarily should follow before

and during a view.

First, counsel should be alerted to a proposed view at

the earliest practicable time and given an opportunity to be

heard concerning it. See John R. Allison, Combinations of ___ ________________

Decision-Making Functions, Ex Parte Communications, and Related _________________________________________________________________

Biasing Influences: A Process-Value Analysis, 1993 Utah L. Rev. ______________________________________________

1135, 1218-19.

Second, because the rule in this circuit is that a view

does not itself constitute or generate evidence, the jury should

be instructed prior to embarking on the view that the view itself

is not evidence as such, but, rather, is simply a mechanism to

facilitate contextualization of the evidence.3 See 1 Edward J. ___
____________________

3While this position represents the majority view, see 2 ___
John W. Strong et al., McCormick on Evidence 216, at 27 (4th ______________________
ed. 1992) (noting that "[a] large number of jurisdictions,
probably a majority, holds that a view is not itself evidence"),
some courts have ruled to the contrary, particularly in
connection with bench trials. See, e.g., Lillie v. United ___ ____ ______ ______
States, 953 F.2d 1188, 1190 (10th Cir. 1992) (stating that a view ______
in a bench trial is evidence, though acknowledging cases to the
contrary). But see Processteel, Inc. v. Mosley Mach. Co., 421 ___ ___ __________________ _________________

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Devitt et al., Federal Jury Practice and Instructions 5.14, at ______________________________________

133 (1992) ("Ordinarily, when the jury takes a view the court

explicitly instructs them that they are not to consider what they

see as evidence in a case, but that the view is merely to enable

them to apply the evidence in the case."). Upon timely request

of either party, the court should include a similar statement in

its final charge.

Third, counsel should be given the opportunity to

attend the view, although the judge may, in his discretion, place

limits on their interaction with the subject of the view and with

the jurors. See 2 John W. Strong et al., McCormick on Evidence ___ _____________________

216, at 26 (4th ed. 1992); Allison, supra, at 1218-19. _____

Fourth, because the judge's oversight is as necessary

at a view as in the course of the trial proper, the judge

ordinarily should attend the view. See 2 Strong et al., supra, ___ _____

at 27; Allison, supra, at 1219; Wendorf, supra, at 393. _____ _____

Fifth, the court should employ some method of fully and

accurately recording that which transpires at the view, usually

by enlisting the attendance of a court reporter. See Lillie v. ___ ______

United States, 953 F.2d 1188, 1191 (10th Cir. 1992) (noting that ______________

where "there is no record of the view, the litigants may

effectively be denied any means of challenge on appeal");

Allison, supra, at 1219-20. _____

We add a caveat: the list we have compiled is not
____________________

F.2d 1074, 1076 (6th Cir. 1970) (disapproving of "a fact finder
using visual inspection . . . in the place of testimony to
resolve factual issues").

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intended to be exhaustive or inflexible. There may very well be

other precautions, not recounted above, that deserve

consideration in the particular circumstances of a given case.

Similarly, while the enumerated procedures ordinarily should be

employed, we are reluctant to impose a rigid format upon the

trial bench. Thus, if circumstances warrant, the court may

innovate (even if innovation necessitates departing from the

list).

Last but not least, we emphasize that the onus for

implementing these safeguards does not rest exclusively upon the

trial judge. When a judge orders a view but strays from the

prophylaxis that should accompany it, an offended party must

bring the omissions to the judge's attention in a timeous

fashion, and, if necessary, lodge a formal objection. A party's

failure to take appropriate action will, in most cases, foreclose

an appeal predicated on the omission of standard safeguards.

The case at bar vividly illustrates this last point.

Although the court ignored some of the standard safeguards,

appellant did not preserve her right to contest the propriety of

what transpired. Before the fact, appellant acquiesced in the

court's suggestion that the jury observe the accident scene. She

failed either to request that a court stenographer be present or

to object when the judge did not spontaneously arrange for the

reporter's attendance. And, she compounded these omissions by

not asking that the jurors be given explicative instructions.

To make a bad situation worse, appellant's lassitude


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continued after the view had been completed. Though she made

speculative allegations of misconduct when she moved for a

mistrial, she neither sought an opportunity to conduct a voir

dire in order to transform conjecture into hard fact nor

requested a curative instruction to alleviate potential harm.

Given this history of inattention, the record simply will not

support appellant's assignment of error. See, e.g., Reilly v. ___ ____ ______

United States, 863 F.2d 149, 160 (1st Cir. 1988) (stating rule ______________

that "when a trial judge announces a proposed course of action

which litigants believe to be erroneous, the parties

detrimentally affected must act expeditiously to call the error

to the judge's attention or to cure the defect"); Merchant v. ________

Ruhle, 740 F.2d 86, 92 (1st Cir. 1984) (warning against attempts _____

to convert "agreeable acquiescence to perceivable error [into] a

weapon of appellate advocacy"); see generally United States v. ___ _________ ______________

Camporeale, 515 F.2d 184, 188 (2d Cir. 1975) (observing that __________

"normally the failure of counsel to register a timely objection

to the submission of improper evidence to the jury will be deemed

a waiver").

Appellant's eleventh-hour motion to abort the

proceedings did not miraculously cure the sapping effects of this

string of waivers. Parties cannot casually forgo contemporaneous

objections and then make up lost ground by means of an

afterthought motion for mistrial. Such a motion is not a ready

substitute for a timely objection. See, e.g., United States v. ___ ____ ______________

Tropeano, 476 F.2d 586, 587-88 (1st Cir.) (upholding denial of ________


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motion for mistrial where movant forwent several earlier

opportunities to correct alleged error), cert. denied, 414 U.S. _____ ______

839 (1973); Saville v. United States, 400 F.2d 397, 400 (1st Cir. _______ _____________

1968) (similar), cert. denied, 395 U.S. 980 (1969). A contrary _____ ______

rule would inject gross unpredictability into trials, would be

unfair to diligent litigants, and would seriously undermine

judicial economy. See Saville, 400 F.2d at 400 (explaining that ___ _______

"`the burden is on the [adversely affected party] to take his

objection at the earliest possible opportunity when, by so doing,

he can enable the trial judge to take the most efficacious

action'") (quoting Holden v. United States, 388 F.2d 240, 242-43 ______ ______________

(1st Cir.), cert. denied, 393 U.S. 864 (1968)). _____ ______

Although appellant waived any objection to the

implementation of the jury view, we note that, in all events, the

alleged errors seem benign. Appellant describes four potential

sources of prejudice: (1) that the judge did not utilize the

services of a court reporter or some other means of recordation;

(2) that the judge may have conversed with the jury during the

view; (3) that one or more jurors may have "experimented" with

the stairway in an attempt to recreate the accident; and (4) that

the lighting and condition of the stairway during the view were

materially different than at the time of the accident. None of

these allegations succeeds.

The absence of a court reporter, though ill-advised,

bears no obvious relationship to the outcome of this case, and,

hence, it cannot, without more, be deemed prejudicial. See ___


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Northwestern Nat'l Casualty Co. v. Global Moving & Storage, Inc., _______________________________ _____________________________

533 F.2d 320, 323 (6th Cir. 1976). Similarly, there is no

indication that the judge's alleged interaction with the jury

which, if it occurred at all, evidently consisted of a juror

asking the judge if the bar lights could be activated

prejudiced appellant's substantial rights. See, e.g., United ___ ____ ______

States v. Taylor, 562 F.2d 1345, 1366 (2d Cir.) (finding private ______ ______

communication between judge and juror harmless), cert. denied, _____ ______

432 U.S. 909 (1977), and cert. denied, 434 U.S. 853 (1977). ___ _____ ______

Next, while we do not condone freewheeling experimentation on the

jurors' part during a view, what occurred here was apparently

limited to a juror scuffing the stairway with the sole of a shoe.

Appellant has not suggested how such conduct might have been

harmful in fact, cf. People v. Hardy, 825 P.2d 781, 835 (Cal.) ___ ______ _____

(en banc) (finding "no reasonable probability . . . [of] actual

prejudice" where the trial court permitted a juror, during a view

of a crime scene, to examine a door and to have it opened and

closed), cert. denied, 113 S. Ct. 498 (1992), and cert. denied, _____ ______ ___ _____ ______

113 S. Ct. 987 (1993), especially since the experiment seemingly

had relevance only to the negligent maintenance claim a claim

that in the long run never reached the jury.4 Finally,

____________________

4Another problem with this claim of error is that the trial
court has discretion to permit some degree of experimentation by
jurors in the course of a view. See Wendorf, supra, at 394 ("In ___ _____
the exercise of sound judicial discretion, it may on occasion . .
. be useful to permit the conduct of experiments at the view.").
On this sketchy record, there is no principled way that we can
find an abuse of discretion in the court's implied consent to the
anonymous juror's modest experiment.

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appellant's conclusory allegation that the conditions surrounding

the staircase during the view were "dramatically different than

those conditions at the time of the accident" falls far short of

establishing that any prejudicial error actually resulted.5 See ___

Northwestern Nat'l Casualty, 533 F.2d at 323 (upholding jury view ___________________________

even though "the appearance of the site had changed since the

relevant events"); Martin v. Gulf States Utils. Co., 344 F.2d 34, ______ ______________________

37 (5th Cir. 1965) (upholding jury view even though the scene's

"physical appearance had been substantially altered since the

accident").

When all is said and done, we must affirm the denial of

appellant's motion for a mistrial despite the absence of

precautions accompanying the view's implementation. Because

appellant neither preserved her rights nor demonstrated actual

prejudice, we are unable to say that the lower court, in refusing

a mistrial, abused its discretion. See, e.g., United States v. ___ ____ ______________

Sepulveda, 15 F.3d 1161, 1184 (1st Cir. 1993) ("Granting or _________

denying a motion for a mistrial is a matter committed to the

trial court's discretion."), cert. denied, 114 S. Ct. 2714 _____ ______

(1994); Real v. Hogan, 828 F.2d 58, 61 (1st Cir. 1987) ("A motion ____ _____

for mistrial is directed primarily to the sound discretion of the

trial court and its ruling thereon will not be disturbed unless

that discretion has been misused.").
____________________

5In any event, the time to complain about predictable
variations resulting from changed circumstances, such as
differences in the time of day, is at the outset. Here,
plaintiff did not make a peep when the judge scheduled the view
to take place in the early evening hours.

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III. THE DIRECTED VERDICT III. THE DIRECTED VERDICT

Appellant also contends that the trial court erred in

granting judgment as a matter of law on her claim that the

defendants negligently tolerated a hazardous condition on the

hotel's premises. Appellant concedes that a hotel is not an

insurer of a guest's safety. Nonetheless, she argues that there

was enough evidence for a rational jury to find that the

defendants knew or should have known of the foreign substance's

presence on the stairs in ample time to remove it.

Appellant adduced no proof that the defendants had

actual notice of the danger. Her claim compresses, therefore,

into a claim premised on constructive notice. Her basic theory

is that the jury plausibly could have inferred that a liquid was

on the stairs for a period of time sufficient for the hotel's

staff to have discovered and removed it. We do not agree.

A district court may grant a motion for judgment as a

matter of law "[i]f during a trial by a jury a party has been

fully heard on an issue and there is no legally sufficient

evidentiary basis for a reasonable jury to find for that party on

that issue," and the party's entire claim "cannot under the

controlling law be maintained . . . without a favorable finding

on that issue." Fed. R. Civ. P. 50(a)(1). In executing this

standard, the trial court "must scrutinize the proof and the

inferences reasonably to be drawn therefrom in the light most

hospitable to the nonmovant . . . [and] must refrain from

differential factfinding; that is to say, the court must `not


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consider the credibility of witnesses, resolve conflicts in

testimony, or evaluate the weight of the evidence.'" Rolon- ______

Alvarado v. Municipality of San Juan, 1 F.3d 74, 76-77 (1st Cir. ________ ________________________

1993) (quoting Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir. _________ _____

1987)). Because "the court of appeals is constrained in

precisely the same fashion as the district court . . ., and

because the key question revolves around the legal sufficiency of

the evidence, appellate review is plenary." Id. at 77. ___

In the instant case, appellant offered some evidence

from which a factfinder could have concluded that there was a

foreign substance on the staircase. Yet, she failed to produce

any evidence sufficient to allow a reasonable jury to determine ___

that the hotel had constructive notice of the hazardous

condition. The dampness on her clothing may tend to prove the

presence of a foreign substance on the stairs, but it does not in

any way demonstrate how long the substance may have been there.

The personality profile of the hotel is a two-edged sword;

although appellant says that the size of the complex, the number

of waitpersons, and the scarcity of janitorial help show both an

enhanced likelihood of spillage and a diminished ability to

discover incipient dangers, the same facts also show that the

substance could have emanated from various sources at a variety

of times. In short, there is nothing at all from which a

rational juror could do more than guess about how long the

substance may have been in situ. __ ____

This deficiency causes appellant's claim to stumble on


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our decision in Mas v. United States, 984 F.2d 527 (1st Cir. ___ _____________

1993). In Mas, as here, the law of Puerto Rico governed the ___

issue. There, we affirmed the lower court's dismissal of a

personal injury action in that case, the plaintiff claimed to

have slipped on a small puddle of spilt milk on the floor of an

army commissary on the ground that the proof failed adequately

to demonstrate that the defendant knew or should have known of

the supposedly dangerous condition. In so doing, we held that

the very same statute upon which appellant's suit depends, P.R.

Laws Ann. tit. 31, 5141, quoted supra note 2, "requires, as an _____

element, an affirmative showing by the plaintiff that the

defendant . . . ha[d] either actual or constructive knowledge of

a dangerous condition." Mas, 984 F.2d at 530. So it is here.6 ___

We need go no further. In this instance, even if the

jury believed that a liquid saturated the stairway, there is no

evidence from which it sensibly could infer how long the liquid

had been on the stairs. Because that is so, the jury could not

have drawn a reasonable inference that defendants knew or should

have known of the liquid's existence in sufficient time to have

removed it before Clemente appeared on the scene. It follows
____________________

6Appellant's reliance on Colon Miranda v. Plaza Las _______________ __________
Americas, 94 J.T.S. 84 (P.R. 1994), takes her one step forward ________
and two steps back. Colon Miranda represents only a judgment and _____________
not an opinion of the Supreme Court of Puerto Rico, and,
therefore, carries no precedential value. See Rivera Maldonado ___ ________________
v. Commonwealth of P.R., 119 D.P.R. 74 (1987) (Official English ____________________
Translation: No. R-85-117, slip op. at 4-5) ("It shall not be
appropriate to cite, as an authority or as a precedent, judgments
that are not Court opinions. A judgment without a Court opinion
. . . has no precedential value; it only has the intrinsic
persuasive value of its rationale.").

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inexorably, as night follows day, that the district court

appropriately granted judgment as a matter of law in the

defendants' favor.



Affirmed. Affirmed. ________












































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