81 F.3d 1148 (1st Cir. 1996), 95-2108, Blinzler v. Marriott Intern., Inc.

Docket Nº:95-2108, 95-2199.
Citation:81 F.3d 1148
Party Name:Gloria BLINZLER, Individually and in her capacity as Wrongful Death Beneficiary of James A. Blinzler, Plaintiff, Appellant, v. MARRIOTT INTERNATIONAL, INC., Defendant, Appellee. Gloria BLINZLER, etc., Plaintiff, Appellee, v. MARRIOTT INTERNATIONAL, INC., Defendant, Appellant.
Case Date:April 12, 1996
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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81 F.3d 1148 (1st Cir. 1996)

Gloria BLINZLER, Individually and in her capacity as

Wrongful Death Beneficiary of James A. Blinzler,

Plaintiff, Appellant,



Gloria BLINZLER, etc., Plaintiff, Appellee,



Nos. 95-2108, 95-2199.

United States Court of Appeals, First Circuit

April 12, 1996

Heard Feb. 27, 1996.

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[Copyrighted Material Omitted]

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Appeals from the United States District Court for the District of Rhode Island; [Hon. Ronald R. Lagueux, U.S. District Judge].

John P. Barylick, Providence, RI, with whom Wistow & Barylick Inc. was on brief, for plaintiff.

Stephen B. Lang, Providence, RI, with whom Patrick B. Landers and Higgins, Cavanagh & Cooney were on brief, for defendant.

Before SELYA, CYR and BOUDIN, Circuit Judges.

SELYA, Circuit Judge.

These cross-appeals require us to wend our way through a maze of unusual facts and subtly nuanced legal issues. After exploring a little-charted frontier of tort law, we reverse the district court's direction of judgment notwithstanding the verdict and reinstate the jury's award on the plaintiff's claim for negligent infliction of emotional distress. In all other respects, we affirm the rulings of the lower court.


This litigation arises out of the tragic demise of James Blinzler, husband of the plaintiff Gloria Blinzler. The course of events leading to James Blinzler's death began on November 13, 1992, when the Blinzlers checked into a Somerset, New Jersey, hotel operated by the defendant Marriott International, Inc. (Marriott). Shortly after 8:30 p.m. the decedent, relaxing in his room, experienced difficulty in breathing. Sensing danger, he ingested nitroglycerin (he had suffered heart attacks before) while his wife called the hotel PBX operator and requested an ambulance. The operator received the SOS no later than 8:35 p.m. and agreed to honor it. She promptly told the hotel's security officer and the manager on duty about the medical emergency. Though the defendant steadfastly maintains that the operator also called an ambulance then and there, the record, read hospitably to the verdict, see Cumpiano v. Banco Santander P.R., 902 F.2d 148, 151 (1st Cir.1990), indicates that she did not place this critical call until some fourteen minutes after receiving the plaintiff's entreaty. The ambulance arrived at 9:02 p.m. In the meantime the plaintiff watched her husband's condition deteriorate: he collapsed on the bed, vomited while supine, and apparently stopped breathing. During this horrific hiatus, the plaintiff twice asked hotel personnel whether an ambulance had been summoned when the emergency first arose. She was twice falsely reassured (whether in honest error is not clear) that one had been called.

When the paramedics arrived on the scene, they could not locate a pulse and discovered that the decedent's airway was blocked. Resuscitative

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efforts restored the decedent's heart to a normal rhythm and he was transported celeritously to a nearby hospital. Doctors diagnosed the heart attack as a "very small myocardial infarction." Nevertheless, the brain damage resulting from a prolonged period of asystole without cardiopulmonary resuscitation led to James Blinzler's death three days later.


Invoking diversity jurisdiction, 28 U.S.C. § 1332 (1994), the plaintiff sued Marriott in Rhode Island's federal district court for wrongful death (count 1), loss of consortium (count 2), and negligent infliction of emotional distress (count 3). She alleged in substance that the hotel failed to summon an ambulance in a timely fashion and that this carelessness proximately caused both her own damages and her husband's death. The jury agreed, awarding $200,000 for wrongful death, $50,000 for loss of consortium, and $200,000 for emotional distress. Addressing a variety of post-trial motions, the district judge upheld the verdict on the first two counts, but granted judgment for the defendant on the third count. Both sides appeal.

The cross-appeals raise several issues. Two are in the forefront. The centerpiece of the defendant's appeal is the assertion that the evidence did not forge a causal link between the failure promptly to summon an ambulance and the ensuing death. In contrast, the plaintiff's appeal hinges on the district court's extirpation of the jury verdict on her claim for negligent infliction of emotional distress. Because the defendant's contention that the plaintiff failed as a matter of law to prove causation involves an across-the-board challenge to the jury verdict as a whole, we deal first with that issue. We then mull the plaintiff's contention that the lower court erroneously forecast emergent New Jersey law on bystander liability and therefore erred in setting aside the verdict on count 3. Finally, we address the defendant's remaining assignments of error.

Under the principles of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938), state law (here, the law of New Jersey) supplies the substantive rules of decision in this diversity case. Since New Jersey law is less than explicit on one key issue that concerns us, we pause to comment briefly on the role of a federal court in adjudicating controversies controlled by state law.

In its barest essence, borrowing state law demands nothing more than interpreting and applying the rules of substantive law enunciated by the state's highest judicial authority, or, on questions to which that tribunal has not responded, making an informed prophecy of what the court would do in the same situation. 1 See Moores v. Greenberg, 834 F.2d 1105, 1112 (1st Cir.1987). In the latter instance, we seek guidance in analogous state court decisions, persuasive adjudications by courts of sister states, learned treatises, and public policy considerations identified in state decisional law. See Ryan v. Royal Ins. Co., 916 F.2d 731, 734-35 (1st Cir.1990); Kathios v. General Motors Corp., 862 F.2d 944, 949 (1st Cir.1988). As long as these signposts are legible, our task is to ascertain the rule the state court would most likely follow under the circumstances, even if our independent judgment on the question might differ. See Moores, 834 F.2d at 1107 n. 3.


The defendant challenges the entire verdict on the basis that the plaintiff provided insufficient evidence from which a reasonable jury could conclude that the belated call constituted a proximate cause of the ensuing death. Under New Jersey law the plaintiff bears the burden of proving that the defendant's conduct comprised "a substantial factor in producing the harm" of which the plaintiff complains. Francis v. United Jersey Bank, 87 N.J. 15, 432 A.2d 814, 829 (1981). When the questioned conduct

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is an omission--the defendant's failure to act rather than the defendant's maladroit performance of an affirmative act--this rule is easier to state than to apply. In the last analysis, it can rarely (if ever) be said with absolute certainty that harm would not have befallen the victim if the omitted action had been taken.

One species of omission that occurs from time to time involves the generic charge that, had the defendant done some particular act, the plaintiff (or, as here, the plaintiff's decedent) would have had a better chance to ward off threatened harm. In these so-called "loss of chance" cases New Jersey law instructs that the plaintiff can carry her burden by showing a "substantial possibility" that the harm would have been averted had the defendant acted in a non-negligent manner. Hake v. Manchester Township, 98 N.J. 302, 486 A.2d 836, 839 (1985); see also Olah v. Slobodian, 119 N.J. 119, 574 A.2d 411, 417-19 (1990) (discussing Hake ). 2 Transposed to the rescue context, this rule renders a defendant's omission actionable if the plaintiff can show that the omission "negated a substantial possibility that prompt rescue efforts would have been successful." Hake, 486 A.2d at 839.

Under these authorities, the question here reduces to whether the evidence, viewed in the light most congenial to the plaintiff, supports a finding that the defendant's failure promptly to call an ambulance negated a substantial possibility that James Blinzler would have survived. We think that this question warrants an affirmative answer.

The plaintiff submitted evidence that she beseeched the defendant to summon help at 8:35 p.m.; that an ambulance crew was available and free to respond at that time; and that the defendant agreed to place the call but then neglected to do so. The defendant actually made the call at 8:49 p.m. (some fourteen minutes later) and the ambulance reached the scene at 9:02 p.m. (an elapsed time of thirteen minutes). The jury heard opinion evidence from a renowned cardiologist that serious brain damage (and, hence, death) would have been forestalled had the paramedics reached the premises ten minutes earlier. On this record, we believe that a reasonable jury could conclude that the defendant's omission negated a substantial possibility that the rescue efforts would have succeeded. Put another way, a reasonable jury could find (as this jury apparently did) that the ambulance likely would have arrived fourteen minutes earlier had it been summoned immediately; that the course of treatment would have been accelerated by a like amount of time; and that, but for Marriott's negligence James Blinzler would have survived.

The defendant tries to parry this thrust in two ways. One initiative involves assembling a string of cases (mostly of hoary origin) in which courts have rejected plaintiffs' claims of negligence for failure to rescue. See, e.g., Foss v. Pacific Tel. & Tel. Co., 26 Wash.2d 92, 173 P.2d 144, 149 (1946); Whitehead v....

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