554 F.2d 1206 (1st Cir. 1977), 75-1448, Betancourt v. J. C. Penney Co., Inc.

Docket Nº:75-1448.
Citation:554 F.2d 1206
Party Name:Dora IRIS BETANCOURT et al., Plaintiffs, Appellees, v. J. C. PENNEY CO., INC., et al., Defendants, Appellants.
Case Date:May 18, 1977
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 1206

554 F.2d 1206 (1st Cir. 1977)

Dora IRIS BETANCOURT et al., Plaintiffs, Appellees,

v.

J. C. PENNEY CO., INC., et al., Defendants, Appellants.

No. 75-1448.

United States Court of Appeals, First Circuit

May 18, 1977

Argued Feb. 7, 1977.

Page 1207

Oronte Oliveras Sifre, San Juan, P.R., with whom Agrait, Otero, Oliveras & Collazo, San Juan, P.R., was on brief, for defendants, appellants.

Sigfredo A. Irizarry, San Juan, P.R., for plaintiffs, appellees.

Before COFFIN, Chief Judge, INGRAHAM, [*] and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

On November 3, 1973, the plaintiff-appellee, Mrs. Dora Betancourt, was struck on the right shoulder when an automobile tire fell from a rack in the automotive section of the J. C. Penney store in Hato Rey, San Juan, Puerto Rico. Personally and for her four minor children she brought this negligence action in the District Court for the District of Puerto Rico. A jury awarded Mrs. Betancourt $60,000 damages, and also awarded $15,000 each to her four children for damages sustained as a result of her incapacitation. After trial, the district court awarded $10,000 attorney's fees to plaintiffs on grounds that defendant's contesting the issue of liability was obstinate. See Pan American World Airways, Inc. v. Ramos, 357 F.2d 341, 342 (1st Cir. 1966).

On appeal J. C. Penney Co. does not contest liability or the district court's decision to award attorney's fees. Rather, it contends that both the amount of damages awarded and the amount of attorney's fees were excessive. We agree that the damages awarded were so excessive that the district court abused its discretion in denying Penney's motion for a new trial on the issue of damages. We also think that because there was no evidence in the record to support the award of $10,000 in attorney's fees that this amount cannot stand.

On whether a district court erroneously refused to order a new trial we recently said in LaForest v. Autoridad de las Fuentes Fluviales, 536 F.2d 443, 447 (1 Cir. 1976),

"(T)he rule of review commonly applied by federal appellate courts with respect to civil jury awards . . . is that the jury's otherwise supportable verdict stands unless 'grossly excessive' or 'shocking to the conscience.' "

And in reviewing a jury's award we are constrained to view the evidence in the light most favorable to the plaintiff. Rivera v. Rederi A/B Nordstjernan, 456 F.2d 970, 974 (1st Cir. 1972). With these principles in mind, we summarize the evidence.

Mrs. Betancourt, a divorced mother, has four children who, at the time of trial in 1975, were ages 9, 11, 14 and 16. On November 3, 1973, while on the business premises of defendant Penney where she was arranging to have her car repaired, she was struck by a tire which fell suddenly from a rack onto her right shoulder. She testified to experiencing terrible pain, fear and dizziness. After resting briefly at a store clinic, where she was administered smelling salts, she drove to her home, stopping from time to time because of the pain and dizziness. She took aspirin that night for the pain, and on the next day considered going to the hospital, but did not do so because of a commotion caused when her alcoholic ex-husband showed up at her house in a deranged condition and threatened her and the children before finally being removed by the police. 1 He continued to bother her...

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