Clemente v. Carnicon Management

• Court: Court of Appeals for the First Circuit
• Decided: April 14, 1995
• Docket: 94-1603
• Status: Published

Opinion

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).

                                          2



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.

3



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.
                      _____________    _______

4



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
                       ___ ___ __________________    _________________

                                          5



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").

                                          6



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

7



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
          ________

8



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
                                                                        ___

9



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.

                                          10



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.

                                          11



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

12



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

13



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.").  

                                          14



inexorably,  as  night  follows  day,  that  the  district  court

          appropriately  granted  judgment  as  a  matter  of  law  in  the

          defendants' favor.

Affirmed.
          Affirmed.
          ________

15