LeClaire v. Blackstone

Opinion

USCA1 Opinion

[Not for Publication]



                            United States Court of Appeals

                                For the First Circuit

                                 ____________________


No. 96-1166



                       WILLIAM LECLAIRE AND MICHELLE LECLAIRE,



                               Plaintiffs, Appellants,



                                          v.



                         BLACKSTONE VALLEY ELECTRIC COMPANY,



                                 Defendant, Appellee.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                     [Hon. Ernest C. Torres, U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                                 Selya, Circuit Judge,
                                        _____________

                            Aldrich, Senior Circuit Judge,
                                     ____________________

                              and Stahl, Circuit Judge.
                                         _____________



                                 ____________________


Mark L. Smith for appellants.
            _____________

            James A. Ruggieri with whom Higgins, Cavanagh & Cooney was on
            _________________           __________________________

        brief for appellee.



                                 ____________________



                                  December 18, 1996

                                 ____________________



STAHL, Circuit Judge.  Plaintiffs-appellants
                      STAHL, Circuit Judge.
                             _____________



            William and Michelle Leclaire commenced this diversity action



            against defendant-appellee Blackstone Valley Electric Company



            ("BVE") alleging negligence that led to injuries from



            electrocution.1  Leclaire appeals the district court's grant



            of BVE's motion for judgment as a matter of law and its



            denial of his motion for new trial.  Addressing each ruling



            in turn, we affirm.



                                          I.
                                          I.
                                          __



                             Judgment As a Matter of Law
                             Judgment As a Matter of Law
                             ___________________________



                      At the close of Leclaire's case in chief, the



            district court granted BVE's motion for judgment as a matter



            of law, pursuant to Fed. R. Civ. P. 50(a).  The court ruled



            that Leclaire failed to offer evidence from which a jury



            could reasonably find that BVE's alleged negligence caused



            Leclaire's injuries.  On appeal, Leclaire presses his



            contention that a jury could reasonably find that BVE


____________________



            1.  For  simplicity, and  because Michelle  Leclaire's claims

            are  derivative of those of William Leclaire, we refer to the

            appellants collectively as "Leclaire."

                      We note also  that Leclaire  initially joined  E.W.

            Audet & Sons, Inc.  ("Audet"), originally a  party-defendant,

            in this appeal.   Leclaire conceded  at oral argument  before

            this court,  however, that he  failed to produce  evidence to

            establish  any negligence on the part of Audet.  Accordingly,

            on November 8, 1996,  we ordered this appeal dismissed  as to

            Audet.   While the  case proceeds  as to  BVE only,  Audet is

            entitled to costs on appeal pursuant to Fed. R. App. P. 39.



negligently installed an electrical wire, leading to the



            accident which caused his injuries.



            A.  Standard of Review
            ______________________



                      We review de novo the grant of a motion for
                                __ ____



            judgment as a matter of law.  Andrade v. Jamestown Hous.
                                          _______    _______________



            Auth., 82 F.3d 1179, 1186 (1st Cir. 1996); Bates v. Shearson
            _____                                      _____    ________



            Lehman Bros., Inc., 42 F.3d 79, 81 (1st Cir. 1994).  The
            __________________



            motion is properly granted when the evidence and inferences



            reasonably drawn therefrom, viewed most favorably to the non-



            movant, permit only one reasonable conclusion.  Resare v.
                                                            ______



            Raytheon Co., 981 F.2d 32, 34 (1st Cir. 1992).  In this
            ____________



            analysis, "we may not consider the credibility of witnesses,



            resolve conflicts in testimony, or evaluate the weight of the



            evidence."  Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir.
                        _________    _____



            1987).



                      Nevertheless, the non-movant's evidence "must



            comprise more than fragmentary tendrils:  a mere scintilla of



            evidence is not enough to forestall a [judgment as a matter



            of law], especially on a claim or issue as to which the



            burden of proof belongs to the objecting party."  Fashion
                                                              _______



            House, Inc. v. K mart Corp., 892 F.2d 1076, 1088 (1st Cir.
            ___________    ____________



            1989).  The non-movant "may not rely on conjecture or



            speculation, rather the evidence offered must make the



            `existence of the fact to be inferred more probable than its



            nonexistence.'"  Richmond Steel, Inc. v. Puerto Rican Am.
                             ____________________    ________________


-3-
                                          3



Ins. Co., 954 F.2d 19, 22 (1st Cir. 1992) (quoting Carlson v.
            ________                                           _______



            American Safety Equip. Corp., 528 F.2d 384, 386 (1st Cir.
            ____________________________



            1976)).



                      With these principles in mind, we review the trial



            evidence in the light most favorable to Leclaire.



            B.  Facts
            _________



                      On April 27, 1994, William Leclaire sustained



            severe injuries when a piece of aluminum coil that he was



            holding struck an aerial primary-distribution wire carrying



            some 8000 volts of electricity.  At the time of the accident,



            Leclaire, an experienced vinyl and aluminum siding installer,



            was applying aluminum trim to a three-story residential



            building on Chester Street in Woonsocket, Rhode Island.  He



            was working on an aluminum staging unit that he had erected



            in order to reach the top story.  The staging unit, which



            Leclaire had placed approximately one foot from the front of



            the house, extended approximately fifty-six inches in the



            direction of several wires attached to two utility poles.



                      Working from right to left along the front of the



            house, Leclaire, without incident, installed beneath the roof



            line two segments of aluminum trim, each approximately nine-



            feet six-inches in length.  He was situated near the left



            side of the house when the accident occurred.  As he turned



            to install the third and last segment, the aluminum trim came



            into contact with the primary-distribution electrical wire,


-4-
                                          4



the top wire running between the two poles.  The ensuing



            electrical shock threw Leclaire some twenty-five feet to the



            ground, leaving him with a broken back and severe burns.



                      BVE had upgraded the electrical service in the



            Chester Street area in late 1987 or early 1988.  The upgrade



            project included the installation of new utility poles and



            hardware to which several electrical wires were to be



            attached.  BVE's engineering department provided the



            specifications to its installation subcontractor for the



            placement of the primary distribution wire.  For the upgrade



            project, BVE's design operated under the accepted standards



            of the National Electrical Safety Code, which required that



            wires such as the primary distribution wire be placed at



            least five feet (sixty inches) from buildings.



                      At the time of the upgrade, a wooden device called



            a "cross-arm," attached to the top of a utility pole, could



            have provided extra clearance between the wires and the



            adjacent structures.  Although the upgrade specifications did



            not call for the use of a cross-arm, BVE's engineering



            department would, on occasion, authorize a deviation from its



            usual specification to allow for a cross-arm in order to



            satisfy the five-foot standard.  The specifications did



            authorize the use of a special "MIF" bracket, if necessary,



            in order to meet the five-foot standard.


-5-
                                          5



Following the accident, Robert Mowry, a BVE crew



            chief, located a burn mark on the wire, across from the left



            side of the house, where the aluminum trim segment had come



            into contact with it.  Mowry found the distance from the burn



            mark to the point of the house closest to the wire to be



            sixty inches.  At a later date, James O. Corriveau, a witness



            for Leclaire, measured the distance from the wire to the



            house at both the extreme right and left sides of the house



            front.  Corriveau found that the wire was "roughly around"



            fifty-three to fifty-four inches from the right side, and



            "around sixty-two inches, somewheres around there" from the



            left.2



                      Leclaire's expert witness, Donald W. Zipse,



            testified that because the wire failed to meet the five-foot



            standard on the right side of the house, the wire was not



            safely installed.  Zipse conceded, however, that at each



            point where the wire was five feet or more from the house, it



            did satisfy the clearance standard.  Zipse further testified



            that, in 1987 or 1988, he had on one occasion installed an



            insulated version of an aerial primary distribution wire



            similar to the one on Chester Street.  He did not testify



            why, when or where he used the insulated wire, nor did he


____________________



            2.  Corriveau also  testified that, at the  extreme left-hand

            side of the house,  the wire was some forty  inches below the

            roof line.



                                         -6-
                                          6



explain under what circumstances insulated wires would or



            should be used.



            C.  Discussion
            ______________



                      At trial, Leclaire attempted to establish that



            BVE's placement of the electrical wire violated the five-foot



            clearance standard of the National Electrical Safety Code. 



            On the Rule 50(a) motion, the district court found that the



            only evidence tending to show that BVE had failed to meet any



            applicable standard of care was the clearance shortfall



            located on the right side of the house, well away from the



            contact point between the aluminum strip and the wire.  The



            uncontroverted evidence established, however, that the



            distance between the house and the contact point was five



            feet.  Because Leclaire did not prove that the failure to



            meet the clearance standard at a different point caused the



            accident, the court granted BVE's motion for judgment as a



            matter of law.



                      Upon careful review of the record, we agree that



            there is no evidence from which a jury could rationally find,



            by a preponderance of the evidence, that the failure to meet



            the clearance standard at the right side of the house caused



            or contributed to the accident at the left, where the



            standard was shown to have been satisfied.  The absence of



            such evidence precludes Leclaire from prevailing on a



            negligence claim based on a violation of the clearance


-7-
                                          7



standard.  See Radcliffe v. Haun, 593 So. 2d 824, 826 (La.
                       ___ _________    ____



            Ct. App. 1992) (finding no evidence of causation where



            electric company's power-line clearance infractions occurred



            at points other than plaintiff's location when he was



            injured), writ denied, 599 So. 2d 313 (La. 1992); see also
                      ____ ______                             ___ ____



            Kennedy v. Tempest, 594 A.2d 385, 388 (R.I. 1991) (explaining
            _______    _______



            that a plaintiff in a negligence action must establish not



            only duty and breach, "but also that the defendant's



            negligence was the proximate cause of the plaintiff's



            injury"); Schenck v. Roger Williams Gen. Hosp., 382 A.2d 514,
                      _______    _________________________



            517 (R.I. 1977) (explaining that a verdict for plaintiff in



            negligence action absent competent evidence establishing a



            causal connection would only "be based on conjecture and



            speculation").



                      Leclaire does not dispute this conclusion as a



            matter of law or logic; he argues, instead, that the jury was



            free to disregard Mowry's testimony that the clearance at the



            point of contact was sixty inches.  It is clear, however,



            that in the context of a Rule 50(a) motion, "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."  Favorito v. Pannell, 27 F.3d
                                         ________    _______



            716, 721 (1st Cir. 1994) (upholding grant of Rule 50(a)



            motion where non-movant "relied entirely on the totally


-8-
                                          8



unsupported speculation that a jury might disbelieve [a



            witness's] uncontroverted testimony").  This rule has no less



            application where, as here, the party resisting judgment



            introduced the uncontroverted evidence.



                      In a related vein, Leclaire asserts that, on a



            motion for judgment as a matter of law, the district court



            must consider only evidence favorable to him, and thus, it



            should have disregarded entirely Mowry's testimony



            establishing the five-foot clearance at the point of the burn



            mark.  Leclaire's argument misconstrues the law.  While the



            district court (and this court on review) must view the



            evidence in the light most favorable to the non-movant, the



            analysis does not necessitate the complete disregard of



            uncontroverted evidence that happens to be unfavorable to



            that party.  See Layne v. Vinzant, 657 F.2d 468, 472 (1st
                         ___ _____    _______



            Cir. 1981) ("[W]hile, on a defendant's motion [for judgment



            as a matter of law], it is axiomatic that the evidence is to



            be viewed in the light most favorable to the plaintiff, the



            `field of vision' encompasses, to a degree, uncontradicted



            evidence introduced by the defense.").3



                                
            ____________________



            3.  Leclaire cites Samuels v. Hood  Yacht Sys. Corp., 70 F.3d
                               _______    ______________________

            150, 152-53 (1st  Cir. 1995),  to support his  claim that  he

            should not  be bound by his  witness's unfavorable testimony.

            In Samuels,  plaintiffs' witness testified  ambivalently both
               _______

            in favor  of and adverse to the plaintiffs' case  Id. at 152.
                                                              ___

            We reversed the district court's directed verdict, explaining

            that  the  plaintiffs  "were  not  bound  by  their  expert's

            reversal," but rather, "a witness may be believed in part and

            disbelieved in part  . .  . [w]here [the  witness] was  self-



                                         -9-
                                          9



In the alternative to his argument that the jury



            could disbelieve Mowry's testimony, Leclaire highlights



            evidence that, he claims, reasonably conflicts with the five-



            foot measurement.  Specifically, Leclaire asserts that



            because the wire was short of the standard on the right side,



            but exceeded the standard on the left, the jury could have



            found that the distance from the contact point was less than



            five feet.  We disagree.  Leclaire presented only rough



            measurements coupled with his approximate location (as he



            held the nine-foot six-inch aluminum trim segment), some two-



            thirds down towards the left side of the house, at the time



            of the accident.  He did not provide, with any specificity, a



            measurement of the burn mark location as between the right



            and left sides of the house.  Finally, he introduced no



            testimony to assist the jury in making any mathematical



            calculation to support the asserted fact.  A jury finding



            cannot be based on this type of unguided reasoning, and on



            this state of the evidence, a jury could not reasonably find



            that the wire was less than five feet from the house at the



            point of contact.



                      Leclaire finally argues that the jury could have



            found that BVE breached a duty independent of the clearance



            standard.  To this end, he asserts that "common sense"



                                
            ____________________



            contradictory."   Id. at 152,  153 (citation  omitted).   The
                              ___

            absence  of  such  self-contradiction  here  renders  Samuels
                                                                  _______

            inapposite.



                                         -10-
                                          10



dictates that BVE should have foreseen that the Chester



            Street residence would require periodic maintenance such as



            siding, and thus, BVE should have insulated the primary



            distribution wire, or placed the wire farther from the



            building.  The evidence presented, however, would not support



            a finding of negligence on this theory.



                      Under Rhode Island law, it is well-established that



            "a reasonable and legitimate inference that someone was



            negligent is not necessarily warranted by the mere happening



            of an accident."  Montouri v. Narragansett Elec. Co., 418
                              ________    ______________________



            A.2d 5, 9 (R.I. 1980).  Rather, the plaintiff must produce



            sufficient, competent evidence of the essential elements of a



            negligence claim, including the defendant's duty to the



            plaintiff and the breach of that duty.  See id. at 9-10;
                                                    ___ ___



            Radigan v. W.J. Halloran Co., 196 A.2d 160, 163 (R.I. 1963)
            _______    _________________



            ("In every instance before negligence can be predicated of a



            given act, back of the act must be sought and found a duty to



            the individual complaining, the observance of which duty



            would have averted or avoided the injury" (quotation and



            citation omitted)).  While Rhode Island courts recognize that



            companies distributing electricity must exercise great care



            in their operations, see Rott v. Blackstone Valley Gas &
                                 ___ ____    _______________________



            Elec. Co., 106 A.2d 251, 255 (1954), the evidence presented
            _________



            must be sufficient to allow a finding that BVE failed to



            exercise such a degree of caution in this case.


-11-
                                          11



Leclaire did not produce evidence sufficient to



            prove that BVE negligently failed to insulate the primary



            distribution wire.  In Rhode Island "there is no absolute



            duty to insulate wires carrying electricity."  Rott, 106 A.2d
                                                           ____



            at 254.  In Rott, the plaintiff claimed that he informed the
                        ____



            electric company that high tension wires were interfering



            with a construction project, but the company took no steps to



            diminish the danger.  Id. at 253.  The court held that, under
                                  ___



            the alleged facts, a duty to insulate high tension wires



            could arise "by reason of special circumstances" of which the



            defendant had knowledge.  Id. at 254.  Here, no such
                                      ___



            circumstances were shown.  Leclaire did not show that BVE had



            knowledge of his siding project on Chester Street; indeed,



            Leclaire admitted that, although he had previously informed



            electric companies when wires interfered with his work, he



            failed to do so here.  Moreover, as indicated above, the



            expert Zipse's unembellished testimony that he once used an



            insulated wire in 1987 or 1988 is utterly unhelpful in this



            regard.



                      Leclaire also failed to show that BVE violated some



            duty to place the wire farther away from the Chester Street



            residence.  The evidence that special brackets or cross-arms



            were available to satisfy the five-foot clearance standard



            does nothing to prove that BVE violated a duty to exceed that
                                                              ______



            standard through the use of those alternatives.  No witness


-12-
                                          12



opined that the five-foot standard was inadequate, nor was



            there evidence even hinting at what a specific "appropriate"



            distance from the house would have been.  On the contrary,



            abundantly clear from the record is Leclaire's attempt to



            establish negligence based on the violation of the five-foot



            standard.  We are unpersuaded by his endeavor to fashion a



            different theory of negligence from the evidence.



                                         II.
                                         II.
                                         ___



                                Motion For a New Trial
                                Motion For a New Trial
                                ______________________



                      Leclaire appeals the district court's denial of his



            motion for a new trial, purportedly sought under the



            authority of Fed. R. Civ. P. 50(c)(2).  He advances no



            arguments other than those which we have already found



            unavailing.  Thus, assuming but not deciding that a Rule



            50(c)(2) motion for new trial will lie where, as here, a case



            has not gone to the jury,4 we find no abuse of discretion in



            the district court's denial of the motion.



                                         III.
                                         III.
                                         ____



                                      Conclusion
                                      Conclusion
                                      __________



                      For the foregoing reasons, the judgment of the



            district court is affirmed.



                      Costs to appellees.
                      Costs to appellees.
                      ___________________



                                
            ____________________



            4.  The advisory  committee's note  to the 1963  amendment of

            Rule  50  suggests that  relief  under  subsection (c)(2)  is

            limited to a verdict-winner who loses on a renewed motion for
                         ______________

            judgment  as a matter  of law.   Fed. R. Civ.  P. 50 advisory

            committee's note.



                                         -13-
                                          13