Air Safety, Inc. v. Roman Catholic Archbishop of Boston, 95-1920

• Citation: 94 F.3d 1
• Decision Date: 06 May 1996
• Docket Number: No. 95-1920,95-1920
• Parties: 44 Fed. R. Evid. Serv. 1220 AIR SAFETY, INC., a/k/a Air Safety Engineering, Plaintiff, Appellant, v. ROMAN CATHOLIC ARCHBISHOP OF BOSTON, a corporation sole and Christian Brothers Institute of Massachusetts, Inc., Defendants, Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1

94 F.3d 1

44 Fed. R. Evid. Serv. 1220

AIR SAFETY, INC., a/k/a Air Safety Engineering, Plaintiff, Appellant, v. ROMAN CATHOLIC ARCHBISHOP OF BOSTON, a corporation sole and Christian Brothers Institute of Massachusetts, Inc., Defendants, Appellees.

No. 95-1920.

United States Court of Appeals, First Circuit.

Heard May 6, 1996.

Decided Aug. 21, 1996.

William M. Simmons with whom Nancy G. O'Donnell, Boston, MA, was on brief, for appellant.

Francis J. O'Connor with whom Wilson D. Rogers, Jr., Boston, MA, was on brief, for appellee Roman Catholic Archbishop of Boston.

Regina Williams Tate, Quincy, MA, with whom William J. Egan was on brief, for appellee Christian Brothers Institute of Massachusetts, Inc.

Before STAHL, Circuit Judge, COFFIN, Senior Circuit Judge, and CUMMINGS, ^* Circuit Judge.

COFFIN, Senior Circuit Judge.

Appellant Air Safety, Inc. filed this diversity suit seeking payments allegedly due for asbestos removal at six Boston area parochial schools. The defendants, the Roman Catholic Archbishop of Boston ("RCAB") and the Christian Brothers Institute of Massachusetts, Inc. ("the Institute"), filed counterclaims alleging damages arising from Air Safety's work. ¹ The bottom line after a series of rulings by the court and the jury was a net award in favor of each defendant. Air Safety asserts two claims on appeal: (1) the district court abused its discretion in refusing to hold a partial new trial on negligence damages, which Air Safety contends were excessive and unsupported by the record; and (2) the district court erred in excluding crucial exhibits showing Air Safety's overhead costs, requiring a partial new trial on its damages against the RCAB and the Institute. We find no reversible error in the court's evidentiary ruling, but vacate and remand for a new trial on the negligence damages unless defendants accept a proposed remittitur.

I. Factual Background

This case originated in Air Safety's successful bid to remove asbestos at six schools owned by the defendants. The work began in the summer of 1988. Conflicts arose over various aspects of the project, including the quality of Air Safety's performance and the defendants' obligations to pay for completed work. Air Safety filed suit to obtain payment, asserting claims for breach of contract, for payments on an "account stated," ² and, as alternative relief, for quantum meruit. The RCAB and the Institute filed counterclaims for breach of contract and negligence. ³

During the course of pre-trial proceedings, the district court allowed Air Safety's account stated claim in the amount of $328,738 for the five schools owned by the RCAB, but stayed enforcement of the judgment until all other claims were resolved. ⁴ Following a twelve-day trial, the jury found that neither the RCAB nor the Institute had breached their contracts, but that Air Safety had done so. It found, however, that no breach of contract damages had been suffered by either defendant. The jury also determined that Air Safety was responsible for negligence damages, but that it was entitled to quantum meruit relief. The net result was awards in favor of both defendants. ⁵

Air Safety filed a motion for new trial on the negligence damages, claiming that the amounts awarded were not supported by the evidence. After briefing and oral argument, the district court denied the motion in a margin order. This appeal followed.

II. Negligence Damages

Air Safety contends that the jury's negligence awards far exceed the record evidence of damage. It maintains that the RCAB established only $21,672 in damages, while the jury awarded $235,000. It further claims that the Institute's proven damages totaled only $85,894, compared with a jury award of $138,000. The district court rejected Air Safety's request through a motion for new trial to revisit the issue of negligence damages, and Air Safety now urges us to find that that ruling was erroneous.

Our review is narrow. A district court's denial of a motion for new trial may be reversed only for an abuse of discretion. Ahern v. Scholz, 85 F.3d 774, 780 (1st Cir.1996). " 'In a challenge to a jury award, [the appellate court] is limited to examining whether evidence in the record supports the verdict. If the jury award has a rational basis in evidence, we must affirm it.' " Nydam v. Lennerton, 948 F.2d 808, 810-11 (1st Cir.1991) (quoting O'Brien v. Papa Gino's of America, Inc., 780 F.2d 1067, 1076 (1st Cir.1986)). Under Massachusetts law, uncertainty as to the amount of damages does not bar their recovery, see Stuart v. Town of Brookline, 412 Mass. 251, 587 N.E.2d 1384, 1387 (1992), but a plaintiff " 'must establish [its] claim upon a solid foundation in fact, and cannot recover when any essential element is left to conjecture, surmise or hypothesis,' " Snelling & Snelling of Massachusetts, Inc. v. Wall, 345 Mass. 634, 189 N.E.2d 231, 232 (1963) (quoting John Hetherington & Sons, Ltd. v. William Firth Co., 210 Mass. 8, 95 N.E. 961, 964 (1911)). See also Hendricks & Assocs., Inc. v. Daewoo Corp., 923 F.2d 209, 217 (1st Cir.1991); Puritan Medical Ctr., Inc. v. Cashman, 413 Mass. 167, 596 N.E.2d 1004, 1013 (1992).

Despite the confines of our inquiry, our examination of the trial transcript requires us to conclude that the negligence awards cannot stand. The evidence in the record fails to substantiate the amounts imposed; even a generous reading of the testimony supports only a small portion of the damages beyond those conceded by Air Safety on appeal. We discuss separately the results of our study with respect to each defendant.

The RCAB. Air Safety contends that the record supports only $21,672 in damages for the cost of a temporary boiler at St. Theresa's school. The jury awarded $235,000. Our search revealed three additional items that the jury could have attributed to Air Safety's negligence: extra clean-up work by custodians at St. Theresa's for which Rev. Helmick testified that he "paid a lot;" damage to a clock and bell system; and $7,400 for painting at St. William's school. No amounts for either the custodial time or the clock repair were presented to the jury, although the district court reported in a June 20, 1990 Order on the parties' summary judgment motions that those items were alleged to cost $4,377 and $272.50, respectively.

We think it within reason for the jury to choose to compensate the RCAB for these asserted harms, despite the lack of testimony on specific dollar amounts. ⁶ This is not the sort of conjecture barred by Massachusetts law in calculating damages, but simply a matter of imprecision with respect to the amount for a specifically identified harm. The gap challenged by Air Safety, however, is far greater than any reasonable figure attributable to these additional harms. We think an appropriate recovery for them would be the amounts previously identified by the RCAB, totaling $12,049.50.

The RCAB points to one additional expense that the jury may have attributed to Air Safety: the $57,971.80 difference between the contract price for Mission High School and the combined amount of Air Safety's account stated claim for Mission and the amount paid to a new contractor to complete the work left unfinished by Air Safety. In other words, the RCAB contends that the record showed that it paid nearly $58,000 more for asbestos removal at Mission High School than the Air Safety contract price.

We have two problems with this contention. First, this differential amount between the original contract price and the amount actually expended to get the job done is classically breach of contract damages. The jury, however, awarded no damages for the breach. ⁷

Second, and more significantly, there was no testimony or argument at trial concerning the $58,000. In closing, the RCAB's attorney pointed out (consistent with Rev. Ryan's testimony) that it cost $105,000 to complete the contract work left unfinished by Air Safety; he did not assert, however, that that amount represented higher charges for work Air Safety had contracted to perform for less. Although the original contract amount and Air Safety's account stated claim both were contained in trial exhibits, there was no basis for the jurors to have made the calculation now offered by the RCAB to undergird its award without the crucial $58,000 figure having been explained to them.

We think it likely that the huge discrepancy between the damages actually proven and the amount awarded stems from the jury's effort to compensate the RCAB and the parents and students attending the five affected schools for the trouble caused by Air Safety's negligent work. Beyond the fact that the RCAB has no claim to damages for discomfort suffered by others is the fact that this case involves property damage, not personal injury. See generally Guaranty-First Trust Co. v. Textron, 416 Mass. 332, 622 N.E.2d 597, 599 (1993) (under common law, if injury to property is reasonably curable by repairs, the expense of repairs, if less than diminished market value, is the measure of recovery); Michael B. Bogdanow, Massachusetts Tort Damages § 9.03 (1995). It goes without saying that a breach of contract or the negligent performance of a contractual obligation will impose burdens on the wronged party, but compensation is limited to making that party whole. ⁸

Moreover, even if harm in the nature of pain and suffering were compensable in this context, such damages would be rank speculation here. No testimony was presented of specific intangible injuries to the RCAB or its officials as a result of Air Safety's conduct. The general reference in counsel's closing argument to "frustration," "aggravation," and "inconvenience"--by-products of any tort or breach of contract--is far from the "solid foundation in fact," Snelling & Snelling, 189 N.E.2d at 232, necessary to support an award of damages. ⁹

We therefore conclude that, unless the RCAB agrees to a remittitur of $201,278.50--reducing its negligence...