Churilla v. Wachusetts

• Court: Court of Appeals for the First Circuit
• Decided: June 1, 1992
• Docket: 91-2318
• Status: Published

Opinion

USCA1 Opinion

          June 1, 1992          [NOT FOR PUBLICATION]

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          No. 91-2318

                        ALBERT M. CHURILLA, JR., ETC., ET AL.,
                               Plaintiffs, Appellants,

                                          v.

                     WACHUSETT MOUNTAIN ASSOCIATES, INC., ET AL.,
                                Defendants, Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Douglas P. Woodlock, U.S. District Judge]
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                                        Before

                                Selya, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
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                         and Pettine,* Senior District Judge.
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                              _________________________

               William C. Flanagan, with whom Edward J. McDonough,  Jr. and
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          Egan, Flanagan and Cohen, P.C., were on brief, for appellants.
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               L. Jeffrey Meehan, with whom Claire L. Thompson and Doherty,
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          Wallace, Pillsbury and Murphy, P.C.,  were on brief, for appellee
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          R.H. White Construction Co., Inc.

                              _________________________

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          *Of the District of Rhode Island, sitting by designation.

Per Curiam.  This is a diversity suit brought by Albert
                    __________

          M.  Churilla, Jr.  and  Frances A.  Churilla,  parents of  Teresa

          Churilla  and personal  representatives of  her estate.   Teresa,

          then  age 19, was killed in a  skiing accident that took place on

          January 31, 1986.  Her parents sued.  The defendants included the

          owners and  operators of  the  ski facility  (Wachusett  Mountain

          Associates, Inc. and  Joseph O'Brien);  the designer  of the  ski

          slopes (Sno-Engineering, Inc.), and the construction company that

          rehabilitated the  trail on  which  the accident  occurred  (R.H.

          White Construction Company).

                    The plaintiffs'  claims against all the defendants were

          consolidated for trial.1  At  the close of all the  evidence, the

          district  court granted  White's motion  for a  directed verdict.

          See Fed. R. Civ. P. 50(a).  The court stated: 
          ___

                    It's a matter of legal responsibility.  Legal
                    responsibility   here    depends   upon   the
                    relations of  the parties.   The relation  of
                    White . . . was subordinate, subordinate in a
                    way that was perfectly understandable on this
                    evidence for a contractor to function.

                    You're  dealing  with  a  particular  kind of
                    construction    project   with    an   expert
                    architect/designer  who is  largely directing
                    the[] efforts.

                    There's no showing that there  was brought to
                    [White's]   attention   at   any   time   any
                    reasonable suggestion of  danger by  creating
                    this  particular  condition  even if  [White]
                    could be charged with creating it.   So, as a
                    matter of law .  . . I will grant  the motion
                    for directed verdict for White.

                    The plaintiffs appeal.  Their sole assignment of  error

          questions the propriety of the directed verdict in White's favor.

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               1The  plaintiffs  settled  with Sno-Engineering  during  the
          trial.   Their  case  against Wachusett  Mountain Associates  and
          O'Brien went to verdict.

                                          2

The yardstick by which we  must gauge the assigned error  is well

          hewn:

                    When directed verdicts  have been granted, we
                    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.   See  Wagenmann v.
                                                ___  _________
                    Adams, 829 F.2d 196, 200 (1st Cir. 1987).  In
                    _____
                    performing this tamisage, an  appellate court
                    "may   not   consider   the  credibility   of
                    witnesses, resolve conflicts in testimony, or
                    evaluate the weight of the evidence."  Id. 
                                                           ___

          Fashion House,  Inc. v. K  Mart Corp.,  892 F.2d 1076,  1088 (1st
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          Cir. 1989).

                    In  this case,  we  have had  the benefit  of excellent

          briefs on both sides.  We have also heard oral argument, read the

          trial  transcript with  care, perused  the various  exhibits, and

          screened the videotape that was shown  to the jury.  Based on our

          review and study of these materials, we cannot fault the district

          court's assessment.  

                    The uncontradicted evidence showed that White, although

          retained  as the general contractor for the renovation of the ski

          area,2 had never  before been involved in  ski area construction.

          It had  no special  expertise in  the field.   Sno, on  the other

          hand,  was described at trial as "the foremost design company for

          ski  areas in  the world."   The  evidence  also showed  that Sno

          prepared the overall  plan for  creating new ski  trails and  for

          modifying  existing  trails  at Wachusett  Mountain;  devised the

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               2The renovations  in question  were begun  in the  summer of
          1982.   While the  actual work on  the ski  trails themselves was
          done  by subcontractors,  we  assume, for  argument's sake,  that
          White's  duty of  care was  nondelegable  and we  therefore treat
          White as if it performed the work directly.

                                          3

trail markings; approved the lighting system; and supervised  all

          construction.    Sno's  employee,  Ford  Hubbard,  "flagged"  and

          "center-lined" the  trails to be  cut; oversaw  the clearing  and

          grading activities; provided  daily on-site superintendence;  set

          the final  boundaries  of the  ski trails;  and determined  their

          characteristics.    In  a  nutshell,  the  evidence  demonstrated

          conclusively that, by contract and in fact, White danced to Sno's

          tune. 

                    Under  Massachusetts  law,   an  all-purpose   building

          contractor with no expertise in a particular type of construction

          is warranted, generally, "in relying on the advice of the various

          engineering  consultants  employed  on th[e]  project."    United
                                                                     ______

          States v. Boston Steel Erection, Inc.,  367 F. Supp. 699, 706 (D.
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          Mass. 1973).  Put more directly, such a

                    contractor is  justified in relying  upon the
                    plans   and   specifications  which   he  has
                    contracted  to follow,  unless  they  are  so
                    apparently defective that an ordinary builder
                    of ordinary prudence would be put upon notice
                    that  the  work was  dangerous and  likely to
                    cause injury.

          Romano v. Rossano Constr.  Co., 171 N.E.2d 853, 856  (Mass. 1961)
          ______    ____________________

          (quoting  Ryan v. Feeney &  Sheehan Bldg. Co.,  145 N.E. 321, 322
                    ____    ___________________________

          (N.Y. 1924)).  

                    Measured  against this standard,  we, like the district

          court, are unable to find any significantly probative evidence of

          actionable  negligence on  White's  part.   Even  if a  dangerous

          condition existed  on Trail No. 7 at  the time of Teresa's death,

          White could not  be held answerable for  it.  The  plaintiffs did

          not prove any special  standard of care in ski  area construction

          that reflected adversely upon White's performance.  They  offered

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no expert testimony implicating  White.  They did not  prove that

          White's  workmanship was defective.  They did not show that White

          deviated  from Sno's design or ignored  Sno's instructions.  They

          did not adduce any evidence that the average contractor, standing

          in  White's shoes, would  have had sufficient  knowhow to quarrel

          with  Sno's  directions  or to  conclude  that  Trail  No. 7  was

          dangerous enough to create a risk of injury above and beyond that

          ordinarily  inherent  in  downhill  skiing.    On  this   record,

          reasonable persons  could not have found  White negligent without

          resorting to arrant speculation and impermissible surmise.  

                    Given our evaluation  of the record, it  would serve no

          useful purpose to plough through the factual underpinnings of the

          case.  It suffices to say that when, as here, appellants have the

          burden  of  proving negligence,  "the  evidence  to which  the[y]

          point[] must  comprise more than fragmentary  tendrils."  Fashion
                                                                    _______

          House, 892 F.2d  at 1088.   See also  Anderson v. Liberty  Lobby,
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          Inc., 477  U.S. 242,  249 (1986) ("there  is no  issue for  trial
          ____

          unless there is sufficient evidence favoring the nonmoving  party

          for a jury to return a verdict for  that party"); Malave-Felix v.
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          Volvo  Car Corp., 946 F.2d 967, 970-71 (1st Cir. 1991) (similar).
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          In this instance, the plaintiffs' evidence, viewed most favorably

          to them, was at  most colorable, ergo, insufficient.   Hence, the

          district judge did not err in directing a verdict.

                    Notwithstanding  our  conclusion  that the  plaintiffs'

          appeal lacks  merit, our task is  not ended.  We  must go further

          and  consider  appellee's  motion  for  imposition  of  appellate

          sanctions.  The fact that an appeal  is unsuccessful does not, in

          itself, call for resort to Fed. R. App. P. 38, 28  U.S.C.   1927,

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or  any other  source of  sanctions.   Here, given  the factually

          complex nature of the  case and the stringencies that  Rule 50(a)

          imposes on  the district courts, we are  not prepared to say that

          plaintiffs or  their counsel acted unreasonably  in attempting to

          persuade an appellate tribunal that the judge had scrutinized the

          proof too grudgingly and  thereby overstepped his bounds.   Thus,

          we deny the motion.

The judgment below is affirmed.  The appellee's  motion
                    The judgment below is affirmed.  The appellee's  motion
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          for appellate sanctions is denied.  Ordinary costs shall be taxed
          for appellate sanctions is denied.  Ordinary costs shall be taxed
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          in appellee's favor.
          in appellee's favor.
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