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