29 F.3d 330 (7th Cir. 1994), 93-3636, Mayer v. Gary Partners and Co., Ltd.

Docket Nº:93-3636.
Citation:29 F.3d 330
Party Name:Jennie A. MAYER, Plaintiff-Appellee, v. GARY PARTNERS AND COMPANY, LIMITED, and K-Mart Corporation, Defendants-Appellants.
Case Date:July 13, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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29 F.3d 330 (7th Cir. 1994)

Jennie A. MAYER, Plaintiff-Appellee,

v.

GARY PARTNERS AND COMPANY, LIMITED, and K-Mart Corporation,

Defendants-Appellants.

No. 93-3636.

United States Court of Appeals, Seventh Circuit

July 13, 1994

Argued April 6, 1994.

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[Copyrighted Material Omitted]

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Gus J. Galanos, Merrillville, IN, Barry D. Sherman, Joseph P. Allegretti (argued), Sherman & Allegretti, Hammond, IN, for plaintiff-appellee.

Michael D. Sears (argued), Singleton, Crist, Patterson, Austgen & Lyman, Munster, IN, for defendants-appellants.

Before COFFEY, EASTERBROOK, and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

Jennie Mayer parked her car in the lot at the Miller Mall in Lake County, Indiana, and bought some articles at K-Mart, one of the mall's seven stores. Returning to the car, Mayer was the victim of a purse snatching, during which the three thieves hit her on the head. She fell to the ground and suffered a fractured pelvis and other injuries. A jury in this diversity suit ordered K-Mart and Gary Partners, the owners of the mall, to pay Mayer $260,000 on the theory that they negligently omitted precautions that would have protected their customers from crime.

Defendants contend that the evidence does not support the verdict, that the damages are excessive, and that errors in the jury instructions are not harmless. Although state law supplies the substantive rules that govern, Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), each question has a procedural dimension. Who decides whether the evidence is sufficient, the damages excessive, or the errors harmless? A judge, obviously, but under what standards? Once the judge decides, what is the standard of appellate review? We know from Donovan v. Penn Shipping Co., 429 U.S. 648, 649, 97 S.Ct. 835, 836, 51 L.Ed.2d 112 (1977), that because the seventh amendment and federal rules make the roles of judge and jury a subject of federal law, "[t]he proper role of the trial and appellate courts in the federal system in reviewing the size of jury verdicts [also] is ... a matter of federal law." Accord, Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 276-80, 109 S.Ct. 2909, 2920-22, 106 L.Ed.2d 219 (1989). Similarly, we know from cases such as Patel v. Gayes, 984 F.2d 214 (7th Cir.1993); Simmons, Inc. v. Pinkerton's, Inc., 762 F.2d 591, 595 (7th Cir.1985); and Platis v. Stockwell, 630 F.2d 1202, 1206 (7th Cir.1980), that federal law supplies the method of proposing, arguing about, objecting to, and evaluating the probable effect of errors in, jury instructions.

Yet cases in this circuit routinely announce that state law supplies the standard of appellate review of the sufficiency of the evidence if there has been a jury trial. E.g., Dolder v. Martinton, 998 F.2d 499, 501 (7th Cir.1993); Amplicon Leasing v. Coachmen Industries, Inc., 910 F.2d 468, 470 (7th Cir.1990). At the same time, federal law provides the standard of appellate review if there has been a bench trial. Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Fed.R.Civ.P. 52(a). Thirty years ago we were confident that federal law governed both questions. Gudgel v. Southern Shippers, Inc., 387 F.2d 723, 725 (7th Cir.1967); Reitan v. Travelers Indemnity Co., 267 F.2d 66, 69 (7th Cir.1959). Opinions that call for the application of state law do not cite the earlier cases specifying a federal standard--and neither set of cases gives reasons. Eleven years ago we noted the contradiction, see Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963, 970-71 (7th Cir.1983), but left matters as we found them. Recently a rumble of

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discontent with this state of affairs has been heard in our opinions. E.g., Jean v. Dugan, 20 F.3d 255, 263 (7th Cir.1994); Sokol Crystal Products, Inc. v. DSC Communications Corp., 15 F.3d 1427, 1431-32 (7th Cir.1994). The time has come, we believe, to put the matter to rest. Sometimes it is said that a particular state's law is the same as federal law, so that the choice is irrelevant. But Indiana's standard, whether the evidence "points unerringly" to one conclusion, see Huff v. Travelers' Indemnity Co., 266 Ind. 414, 363 N.E.2d 985, 990 (1977), may differ subtly from the federal reasonable-person standard that we discuss below. Ours is a close case, one in which the choice of standard potentially matters, and we therefore want to be sure to get the standard right.

Erie holds that under the Rules of Decision Act, 28 U.S.C. Sec. 1652, state law (including common law) governs the conduct of cases under the diversity jurisdiction unless federal law speaks to the question. The "unless" clause permits the federal forum to apply rules of procedure found in federal statutes (and, equivalently, rules promulgated under the Rules Enabling Act, 28 U.S.C. Secs. 2071-77), even though these procedures may affect the outcome. See Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988); Burlington Northern R.R. v. Woods, 480 U.S. 1, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987); Walker v. Armco Steel Corp., 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980); Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965); cf. Barron v. Ford Motor Co., 965 F.2d 195 (7th Cir.1992) (distinguishing between substance and procedure under the Federal Rules of Evidence). The burden of persuasion is tied to the definition of the right, so state law determines...

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