Tokio Marine & Fire Ins. Co., Ltd. v. Grove Mfg. Co.

• Decision Date: 06 November 1991
• Docket Number: No. 91-1380,91-1380
• Citation: 958 F.2d 1169
• Parties: 35 Fed. R. Evid. Serv. 179 TOKIO MARINE & FIRE INSURANCE COMPANY, LTD., Plaintiff, Appellant, v. The GROVE MANUFACTURING COMPANY, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1169

958 F.2d 1169

35 Fed. R. Evid. Serv. 179

TOKIO MARINE & FIRE INSURANCE COMPANY, LTD., Plaintiff, Appellant, v. The GROVE MANUFACTURING COMPANY, et al., Defendants, Appellees.

No. 91-1380.

United States Court of Appeals, First Circuit.

Heard Nov. 6, 1991.

Decided March 19, 1992.

Timothy Wilton with whom Richard P. Campbell, Amy J. Davids and Campbell & Associates, P.C., Cambridge, Mass., were on brief, for plaintiff, appellant.

Amancio Arias Guardiola with whom Arias Cestero & Arias Guardiola, Hato Rey, P.R., was on brief, for defendant, appellee Shintron Co., Inc.

Dario Rivera-Carrasquillo with whom Cordero, Miranda & Pinto, Old San Juan, P.R., was on brief, for defendants, appellees Grove Mfg. Co., et al.

Before CAMPBELL and TORRUELLA, Circuit Judges, and BOWNES, Senior Circuit Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Plaintiff-appellant, Tokio Marine & Fire Insurance Co. ("Tokio"), appeals from a directed verdict in favor of defendants-appellees, Grove Manufacturing Co. ("Grove") and Shintron Company Inc. ("Shintron"). Tokio contends that the district court erred in: (1) directing a verdict in favor of Shintron; (2) excluding the testimony of one of its expert witnesses; and (3) limiting the testimony of a second expert. We affirm.

BACKGROUND

This appeal arises from the destruction of a giant video screen (known as the "Diamond Vision Ocean One") during its installation at Plaza Las Americas Mall in Puerto Rico. The screen is similar to those used in baseball stadiums to flash images of players, the game and advertisements. The screen was composed of two large units, each one the size of a sea cargo container. When assembled, the units were stacked on top of an empty cargo container that served as a base. Diamond Vision Inc. ("Diamond")--Tokio's insured--owned the screen and Grove manufactured the screen.

Beginning on April 3, 1985, Tamachi, Inc.--a Puerto Rican car dealer--leased the screen from Diamond for use in a promotion campaign. Pursuant to the lease agreement, Diamond was to provide a supervisor for the erection and installation of the screen and Tamachi was responsible for obtaining a crane and a crane operator to assemble the screen. For these purposes Diamond hired Shintron to supervise the installation (Shintron in turn sent two employees to Puerto Rico) and Tamachi hired the Milton Andrews Crane Company ("Milton") to supply a crane and operator.

A number of problems arose during the screen's assembly. First, the 30 ton crane originally brought by the Milton employees had to be exchanged for a 45 ton crane because of the screen's weight. Second, the cargo container which had been purchased to serve as the base for the screen had to be changed because it was not strong enough. After all the appropriate equipment was finally obtained, the lower unit of the screen was placed on top of the base without incident. When the crane attempted to lift the upper unit, however, the crane was straining and the boom was lowered. When the upper unit was lifted again, one of Shintron's men noticed that electronic cables were dangling from it. He entered the lower unit and reached through a hatch to try to catch the dangling cables. During this time he apparently made some hand signals to the crane operator. The crane subsequently tipped over destroying the screen.

Diamond submitted an insurance claim to Tokio for the screen's damages. Tokio paid its insured $1,800,000 on the claim and then brought suit against Milton, Grove and Shintron. The case against Milton was settled for $500,000. In the remaining claims, Tokio alleged that the accident was caused by a defect in the crane--for which Grove was strictly liable and by the negligence of the two employees of Shintron who were supposed to supervise the installation of the screen. Tokio sought to recover the full amount of the claim it paid to Diamond.

At trial, after Tokio presented its case to the jury, both Shintron and Grove moved for a directed verdict, arguing that there was no more than a "scintilla" of evidence on either the strict liability claim or the negligence claim. The district judge agreed and directed a verdict in favor of Grove and Shintron and against Tokio. This appeal followed.

DIRECTED VERDICT IN FAVOR OF SHINTRON

A directed verdict is appropriate if "viewing the evidence in the light most favorable to the non-moving party," and giving plaintiff "the benefit of every legitimate inference" the court determines that "reasonable jurors could come to but one conclusion." Goldstein v. Kelleher, 728 F.2d 32, 39 (1st Cir.), cert. denied, 469 U.S. 852, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984) (citations omitted); see also Richmond Steel Inc. v. Puerto Rican American Insurance Co., 954 F.2d 19, 22 (1st Cir.1992); Malave-Felix v. Volvo Car Corp., 946 F.2d 967, 970 (1st Cir.1991). A "mere scintilla" of evidence, however, is not enough to send the case to the jury. Richmond Steel Inc., 954 F.2d at 22; Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1088 (1st Cir.1989). Moreover, "plaintiff may not rely on conjecture or speculation, rather the evidence offered must make 'the existence of the fact to be inferred more probable than its nonexistence.' " Richmond Steel Inc., 954 F.2d at 22 (quoting Carlson v. American Safety Equip. Corp., 528 F.2d 384, 386 (1st Cir.1976)).

The United States District Court for the District of Puerto Rico directed a verdict in favor of Shintron finding that Tokio had failed to produce sufficient evidence that Shintron was negligent or that the alleged negligence was the proximate cause of Tokio's damages. Tokio Marine & Fire Ins. Co., Ltd. v. Grove Mfg. Co., et al., 762 F.Supp. 1012 (D.P.R.1991). The court also held that Tokio failed to provide sufficient evidence concerning the damages suffered. Id. at 1015. After a thorough review of the record, we hold that the directed verdict in favor of Shintron was appropriate.

Under Article 1802 of the Civil Code of Puerto Rico, 31 L.P.R.A. § 5141, "a person who by act or omission causes damages to another through fault or negligence shall be obliged to repair the damage so done." To state a claim for damages under this provision based on negligence, a plaintiff must prove that (1) defendant owed a duty to prevent the harm by conforming to a reasonable standard of conduct; (2) defendant breached that duty through a negligent act or omission; and (3) the negligent act or omission caused the plaintiff's harm. Ottimo v. Posadas de Puerto Rico Assoc. Inc., 721 F.Supp. 1499, 1500 (D.P.R.1989); see also W. Keeton, Prosser and Keeton on the Law of Torts, § 30 at 164-65 (1984); Hernandez v. Fournier, 80 P.R.R. 94, 96-97 (1957).

Tokio's claim of negligence depended essentially on the following evidence:

(1) A leasing contract between Diamond and Tamachi in which Diamond agrees "to provide a supervisor for the erection of Leased Equipment" and the undisputed fact that Diamond hired Shintron to act as supervisor;

(2) the testimony of several witnesses that the Shintron employees were in charge of directing the installation and stacking of the screen based on the observations that

--the Shintron employees made the initial determination that the first base container was inappropriate and needed to be replaced with a stronger base container --the Shintron employees told the crane operators which screen unit to place first,

--the Shintron employees made hand signals to the crane operator during the stacking of the screen's upper unit;

(3) testimony that the Shintron employees were responsible for making the electronic connections for the screen and for training others to use the screen once erected;

(4) testimony that the Shintron employees were present every time the screen was moved and erected at another location;

(5) testimony that prior to the accident electronic cables were observed hanging from the screen's upper unit while it was in the air and that one of the Shintron employees entered the lower unit, reached through a hatch and tried to catch the dangling cables;

(6) testimony that while trying to catch the dangling cables a Shintron employee made some hand signals to the crane operator;

(7) testimony that the accident occurred shortly after the hand signals were observed.

Tokio contends that based on this evidence, a reasonable jury could have found that Shintron's responsibility was to supervise the stacking of the screen units--including directing the operations of the crane; that they performed this obligation negligently by directing the crane operator to extend the load beyond the safe radius; and that this caused the accident and resulting destruction of the screen. Without considering the credibility of Tokio's witnesses, and making all fair inferences in Tokio's favor, we find this contention completely without merit.

First, the evidence did not demonstrate that the supervisory duties of Shintron extended to responsibility for the detailed operations of the crane. The lease contract between Tamachi and Diamond provided that Tamachi, not Diamond (who engaged Shintron), was responsible for supplying and paying the costs of crane services. Tamachi hired the Milton Andrews Crane Company, which supplied the crane and employed its operator. There was uncontroverted testimony that the crane operator placed the screen's lower unit on top of the base container without any direction from the Shintron employees except for the indication of which unit went first. Tokio presented no evidence suggesting that the Shintron employees knew, should have known or would have been expected to know how a crane operates so as to be able to direct the actual details of its operation from the ground.

Second, even assuming there was an issue of fact as to whether Shintron had a duty to oversee the details of the crane operation, evidence is lacking of any act or omission by the Shintron employees that could provide the basis of a finding of negligence. To prove that...