Testa v. Wal-Mart

• Court: Court of Appeals for the First Circuit
• Decided: May 21, 1998
• Docket: 97-2079
• Status: Published

Opinion

USCA1 Opinion

                  UNITED STATES COURT OF APPEALS

                      FOR THE FIRST CIRCUIT



                    _________________________


No. 97-2079


LOUIS R. TESTA,

                       Plaintiff, Appellee,



                                v.



                      WAL-MART STORES, INC.,

                      Defendant, Appellant.



                    _________________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF NEW HAMPSHIRE



         [Hon. Shane Devine, Senior U.S. District Judge]



                    _________________________



                              Before



                     Torruella, Chief Judge,



                 Selya and Lynch, Circuit Judges.



                    _________________________



     George R. Moore, with whom Bret D. Gifford and Devine,

Millimet & Branch, P.A. were on brief, for appellant.

     Stewart S. Richmond, Jr., with whom Scott H. Harris and

McLane, Graf, Raulerson & Middleton, P.A. were on brief, for

appellees.



                    _________________________



                          May 21, 1998



                    _________________________          SELYA, Circuit Judge.  Defendant-appellant Wal-Mart

Stores, Inc. (Wal-Mart) insists that the jury verdict in this

piscine personal injury case results from instructional error. 

After careful perlustration of the record, we conclude that Wal-

Mart is fishing in an empty stream.

I.  BACKGROUND

          Plaintiff-appellee Louis R. Testa worked as a truck

driver for Heavenly Fish, a wholesaler of tropical fish.  On

February 2, 1993, Testa arrived at a brand new Wal-Mart retail

outlet in Hinsdale, New Hampshire, with merchandise in tow.  He

parked his van on the delivery ramp behind the store and alerted

Wal-Mart to his arrival.  A Wal-Mart employee helped Testa unload

his ichthyic cargo.  In the process, Testa slipped on the snow-and-

ice-coated ramp, fell, and injured himself.

          Wal-Mart photographed the ramp that day and proceeded to

conduct a full investigation of the incident.  Before the month was

out, a Wal-Mart employee prepared an internal report noting, interalia, that Testa had threatened to sue.

          On April 24, 1995, Testa made good on his word.  Invoking

diversity jurisdiction, see 28 U.S.C.  1332(a), Testa sued Wal-

Mart in New Hampshire's federal district court.  Wal-Mart denied

that it had committed any actionable negligence.  It pointed out

that the mishap occurred on the day of the Hinsdale store's grand

opening and, anticipating a huge turnout, it wanted the staff's

attention focused exclusively on customer service.  To that end, it

asserted that Rachelle Manning, an invoice clerk, informed all

vendors on February 1 that Wal-Mart would not accept deliveries the

following day.  Thus, Wal-Mart explained, it did not bother to

clear the ramp on February 2 because it believed that no deliveries

would be forthcoming.  In addition to this defense, Wal-Mart also

suggested that Testa had assumed the risk of using the icy ramp and

that his negligence caused (or at least contributed to) the

occurrence of the accident.

          The trial itself was brief but jury deliberations were

protracted.  Eventually, the jury returned a verdict for the

plaintiff in the sum of $55,112.  This appeal ensued.

II.  THE JURY'S QUESTION

          After nearly five hours of deliberation, the jury sent a

note to the judge which read in pertinent part:  "Your Honor, can

we please have a review of the law 'negligence', and [its] relation

to proximate cause?"  The judge consulted with counsel and

responded to this query by re-reading his original charge on

negligence and proximate cause.  The judge asked the jury if the

supplemental instruction satisfied their request and the foreperson

responded affirmatively.

     The error that Wal-Mart perceives is less with what the

judge said than with what he did not say.  Over Wal-Mart's

objection, Judge Devine declined to re-read his charge on

comparative negligence as part and parcel of the supplemental

instruction.  In this vein, the judge noted that "you don't get to

comparative negligence until or unless [the jurors] establish that

there is negligence existing on the part of the defendant, and

their question specifically asks for negligence and proximate

cause."  Based on this scenario, Wal-Mart maintains that the trial

court erred by refusing to include language anent comparative

negligence in the supplemental instruction.

     We ordinarily review jury instructions to discern whether

they adequately illuminate the law applicable to the controverted

issues in the case without unduly complicating matters or

misleading the jury.  See Levinsky's, Inc. v. Wal-Mart Stores,

Inc., 127 F.3d 122, 135 (1st Cir. 1997).  In that process, we

examine the instructions as a whole rather than taking each

fragment in isolation.  See United States v. DeStefano, 59 F.3d 1,

3 (1st Cir. 1995).  Withal, a jury instruction given after

deliberations have begun comes at a particularly delicate juncture

and therefore evokes heightened scrutiny.  See Bollenbach v. United

States, 326 U.S. 607, 612 (1946); Tart v. McGann, 697 F.2d 75, 77

(2d Cir. 1982).

     Careful craftsmanship of a supplemental jury instruction

requires the district court to walk a fine line   the court can err

as easily by overinclusiveness as by underinclusiveness.  See Tatrov. Kervin, 41 F.3d 9, 15 (1st Cir. 1994) (warning that "extra

language" may erroneously mislead a jury); United States v. Parent,

954 F.2d 23, 25 (1st Cir. 1992) (cautioning against "gratuitous

pererrations" in the course of supplemental jury instructions). 

Understandably concerned about this phenomenon, Judge Devine gave

the jury accurate legal standards concerning the precise area of

their inquiry   negligence and proximate cause   and eschewed a

broader compass.  He thus avoided the possible confusion that might

have been engendered had he volunteered an instruction that the

jury had not requested.

     Wal-Mart contends that, even if the district court's

supplemental instruction adequately responded to the letter of the

jury's inquiry, it did not capture the spirit.  In Wal-Mart's view,

all negligence concepts are linked, more so in this case.  Thus,

the jury's query necessarily implied a curiosity about comparative

negligence and suggested that the court, to be fair, should give an

additional instruction that the jury lacked the sophistication to

ask for specifically.  We reject this conjectural construct.  It

amounts to nothing more than rank speculation   and we are

unwilling to overturn a jury verdict on the basis of sheer surmise.

     Here, moreover, the surrounding circumstances suggest

that Wal-Mart's speculation likely is unfounded.  For one thing, as

Judge Devine remarked, comparative negligence is an affirmative

defense under New Hampshire law, see Brann v. Exeter Clinic, Inc.,

498 A.2d 334, 336-337 (N.H. 1985), and a jury logically would not

be expected to reach that issue until it first had resolved the

question of negligence.  For another thing, after Judge Devine gave

the supplemental instruction, the jury foreperson responded that

the panel's question had been fully answered.  Although this

response, in itself, is not conclusive   as the appellant

ruminates, the forelady might have spoken only for herself or might

have grown bashful in an unaccustomed spotlight   it is at least

some evidence that the jury received exactly what had been

requested.

     We will not paint the lily.  The usual rule, to which we

subscribe, is that when a jury question is received during

deliberations, the judge must address only those matters fairly

encompassed within the question.  See Parent, 954 F.2d at 25;

Stathos v. Bowden, 728 F.2d 15, 19 (1st Cir. 1984); Jury v. R & G

Sloane Mfg. Co., 666 F.2d 1348, 1352-53 (10th Cir. 1981); see alsoUnited States v. Ladd, 885 F.2d 954, 961 (1st Cir. 1989) (stating

that a judge, in answering a question posed by a deliberating jury,

normally should "confine his response to the approximate boundaries

of the jury's inquiry").  It is a corollary of this rule that the

trial judge has discretion to embellish his answer as he reasonably

may deem advisable.  See United States v. Bayer, 331 U.S. 532, 536

(1947) (explaining that "once the judge has made an accurate and

correct charge [in response to a jury's question], the extent of

[any] amplification must rest largely on his discretion"); see alsoElliott v. S.D. Warren Co., 134 F.3d 1, 6 (1st Cir. 1998) (stating

that "within wide limits, the method and manner in which the judge

carries out this obligation [to inform the jury about the

applicable law] is left to his or her discretion").  The operative

word, however, is "discretion".  We do not doubt that Judge Devine

could have repeated his comparative negligence instruction as a

part of his answer to the jury's question if he believed that doing

so would help the jury to understand the concepts of negligence and

proximate cause.  But we see nothing in the circumstances of this

case that compelled the judge to add such an embellishment or that

otherwise required a deviation from the customary praxis. 

Consequently, the appellant's first assignment of error fails.

III.  DESTRUCTION OF BUSINESS RECORDS

     Wal-Mart contends that the trial court committed a second

instructional error.  Manning testified that she had put a hold on

the order previously placed with Heavenly Fish on February 1, 1993,

thus bolstering Wal-Mart's claim that it had no reason to clear the

delivery ramp on February 2.  At trial, however, Wal-Mart was

unable to produce either the purchase order addressed to Heavenly

Fish or the telephone records for February 1 (the date when Manning

claims to have called).  According to Wal-Mart, Manning discarded

these records in or around February 1995 (a few months before Testa

brought suit), pursuant to a standard record-retention policy. 

Manning stated that she did not know about the accident at the time

and no one instructed her to preserve either the purchase order or

the telephone records.

     Despite Wal-Mart's protest that it acted in good faith

and without notice of the destroyed records' relevance, the

district court instructed the jury that:

     A reasonable inference is a deduction which

     common sense and reason lead you to draw from

     the evidence.  An example is one inference

     that the plaintiff seeks to have you draw here

     is to the effect that the defendant, having

     known that a lawsuit was pending, destroyed

     certain records and did so because defendant

     knew the records to be harmful to its own

     case.  But the law holds that such an

     inference can be drawn only if the plaintiff

     proves by a preponderance of the evidence that

     [the defendant] not only knew of the potential

     claim of the plaintiff, but also knew of the

     potential relevance of the destroyed

     documents.  And even where plaintiff satisfies

     this burden of proof, any inference that may

     be drawn is permissive and not mandatory. 

     That is, such inference may or may not be

     drawn by the jury.



The appellant challenges the propriety of this instruction insofar

as it allowed the jury to draw a permissive negative inference from

the unavailability of the purchase order and the telephone records.

     We have held with some regularity that a trier of fact

may (but need not) infer from a party's obliteration of a document

relevant to a litigated issue that the contents of the document

were unfavorable to that party.  See, e.g., Blinzler v. Marriott

Int'l, Inc., 81 F.3d 1148, 1158 (1st Cir. 1996); Anderson v.

Cryovac, Inc., 862 F.2d 910, 925 (1st Cir. 1988); Nation-Wide Check

Corp. v. Forest Hills Distributors, Inc., 692 F.2d 214, 217-18 (1st

Cir. 1982).  This permissive negative inference springs from the

commonsense notion that a party who destroys a document (or permits

it to be destroyed) when facing litigation, knowing the document's

relevancy to issues in the case, may well do so out of a sense that

the document's contents hurt his position.  See Beil v. Lakewood

Eng'g & Mfg. Co., 15 F.3d 546, 552 (6th Cir. 1994).  Consistent

with this rationale, a suitable foundation must exist before such

an inference can materialize.  Thus, the sponsor of the inference

must proffer evidence sufficient to permit the trier to find that

the target knew of (a) the claim (that is, the litigation or the

potential for litigation), and (b) the document's potential

relevance to that claim.  See Blinzler, 81 F.3d at 1159.  

Moreover, even if these foundational requirements have been met,

the trier nonetheless may refuse to draw the negative inference. 

In other words, the inference is permissive, not mandatory.  Seeid.

     Wal-Mart acknowledges this doctrine, but labors to

convince us that Testa failed to lay an adequate foundation in this

instance.  We are not persuaded.

     We think it is obvious that a rational jury could

conclude that Wal-Mart was on notice of Testa's claim.  The

accident occurred on February 2, 1993.  Wal-Mart investigated

immediately and, as early as February 18, 1993, Wal-Mart completed

an internal accident report in which it acknowledged Testa's

inclination to sue.  There is nothing in the record that would have

dispelled this premonition.

     By like token, a rational jury also could conclude that

Wal-Mart was on notice of the records' relevance.  After all, Wal-

Mart's defense from the start was anchored on the premise that it

had no reason to anticipate any deliveries on the day in question. 

Surely, then, a reasonable factfinder could view Wal-Mart's placing

of a purchase order for delivery on February 2 to be antagonistic

to this defense.  The telephone records showing whether Manning in

fact called Heavenly Fish to abrogate the purchase order (and if

so, when) also would bear on this line of defense.  Accordingly,

a jury could find that Wal-Mart had ample notice of both the claim

and the relevance of the records.

     Wal-Mart offers two rejoinders.  First, it points to

evidence showing that it destroyed the documents not for a

nefarious purpose, but only in compliance with a corporate record-

retention policy.  We readily agree that evidence that documents

were destroyed in the ordinary course of business, pursuant to

routine practice, is material to the inquiry, but the mere

introduction of such evidence neither removes the question from the

jury's ken nor precludes the jury from drawing a negative

inference.  See Nation-Wide Check, 692 F.2d at 219.

     Second, Wal-Mart notes that there is no proof that

Manning (the Wal-Mart employee who actually discarded the records)

knew of either the claim or the records' relevance to it.  This is

true as far as it goes   but it does not go very far.  Whether the

particular person who spoils evidence has notice of the

relationship between that evidence and the underlying claim is

relevant to the factfinder's inquiry, but it does not necessarily

dictate the resolution of that inquiry.  The critical part of the

foundation that must be laid depends, rather, on institutional

notice   the aggregate knowledge possessed by a party and its

agents, servants, and employees.  See Blinzler, 81 F.3d at 1158-59;

Nation-Wide Check, 692 F.2d at 217-18.  Here, the preconditions for

jury submission of the permissive negative inference were fully

satisfied. 

     We need go no further.  We hold that, on these facts, the

district court properly told the jury that it could (but need not)

draw a negative inference if the plaintiff proved by a

preponderance of the evidence that, when Wal-Mart destroyed the

documents, it had notice both of a potential lawsuit and of the

documents' relevance to the claim that underlay such a suit.



     Affirmed.  Costs to appellee.