Brown v. McBro Planning and Development Co., Civ. No. 1984/347.

• Decision Date: 08 May 1987
• Docket Number: Civ. No. 1984/347.
• Citation: 660 F. Supp. 1333
• Parties: Thomas BROWN and Kathy Brown, Plaintiffs, v. McBRO PLANNING AND DEVELOPMENT COMPANY, McCarthy Brothers Construction Company, and Freeman-White Associates, Inc., Defendants.
• Court: U.S. District Court — Virgin Islands

660 F. Supp. 1333

Thomas BROWN and Kathy Brown, Plaintiffs, v. McBRO PLANNING AND DEVELOPMENT COMPANY, McCarthy Brothers Construction Company, and Freeman-White Associates, Inc., Defendants.

Civ. No. 1984/347.

United States District Court, D. Virgin Islands, St. Thomas and St. John Divisions.

May 5, 1987.

Order Amended May 8, 1987.

Robert L. King, St. Thomas, Virgin Islands, for plaintiffs.

James L. Hymes, III, St. Thomas, Virgin Islands, for defendants McBro Planning and Development Co. and McCarthy Brothers Const. Co.

George H. Hubschman, St. Thomas, Virgin Islands, for defendant Freeman-White Associates, Inc.

OPINION

BROTMAN, District Judge, Sitting by Designation:

On or about February 4, 1980, the Government of the Virgin Islands entered into contracts with McBro Planning and Development Company ("McBro") and Freeman-White Associates, Inc. ("Freeman") for the construction of the St. Thomas Hospital. Under the terms of the contracts, McBro, acting as construction manager, and Freeman, as architects, undertook to draw all plans and specifications for the hospital. Freeman was also required to periodically inspect the work. In May, 1980, defendant McCarthy Brothers Construction ("McCarthy"), of which McBro is a division, became the general contractor for construction. The Department of Health took possession and occupancy of the hospital in November, 1982.

On June 4, 1984, plaintiff Thomas Brown, an emergency room technician, slipped and fell in the emergency room area of the hospital. There had been a heavy rain and the emergency room and ramp areas became flooded. Mr. Brown fractured his right patella. The fracture was treated, but Brown was later diagnosed as having a tear of the medial meniscus, which was surgically removed. Brown has recently been diagnosed as having traumatic arthritis.

Plaintiff brought this personal injury action against defendants McBro, McCarthy, and Freeman alleging that his fall was caused by improper construction of the floor in the emergency room area. Brown claims that the floor to the emergency ramp area was improperly sloped inward, toward the interior of the building. The inward slope caused or at a minimum exacerbated the condition of flooding of the emergency room and inner areas of the hospital. Brown's wife, Kathy Brown, brought a claim for loss of consortium.

A trial took place in November, 1986. The defendant argued motions for directed verdict, both at the conclusion of plaintiffs' case and at the conclusion of the presentation of all evidence. The court granted defendants' motion for directed verdict regarding plaintiffs' claim for punitive damages but denied the remaining motions. (Opinion read into the record on November 7, 1986). The court reserved opinion on the motion for directed verdict made at the close of the case.

The jury made the following findings in the form of a special verdict. McBro, McCarthy and Freeman were all negligent and their negligence proximately caused plaintiff's injuries and damages. Thomas Brown, however, was not negligent. Regarding damages, the jury awarded Thomas Brown one million dollars ($1,000.000.00) and his wife, Kathy Brown, one hundred and fifty thousand dollars ($150,000.00). The jury found that McBro and McCarthy were each forty percent liable, and that Freeman was twenty percent liable.

Following the jury's verdict, defendants moved for judgment notwithstanding the verdict pursuant to Fed.R.Civ.P. 50(b). Presently before the court are motions by defendants McBro, McCarthy, and Freeman for judgment n.o.v., or in the alternative, for a new trial and/or a remittitur.

For the reasons set forth below, the court will deny defendants' motions for judgment n.o.v.. The court will grant defendants' motions for a remittitur. If the plaintiffs refuse to accept the proposed damages, the court will order a new trial solely on the issue of damages. The court will not disturb the jury's decision that all defendants were negligent.

DISCUSSION

I. Motion for Judgment N.O.V.

The Third Circuit has held that,

In considerating a motion for a judgment notwithstanding the verdict, a court uses the same standard applied in considering a motion for a directed verdict. See Neville Chem. Co. v. Union Carbide Corp., 422 F.2d 1205, 1210 n. 5 (3d Cir.), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55 (1970). The district court must determine whether, as a matter of law, the record contains the "minimum quantum of evidence from which a jury might reasonably afford relief." Denneny v. Siegel, 407 F.2d 433, 439 (3d Cir. 1969).

Smollett v. Skayting Dev. Corp., 793 F.2d 547, 548 (3d Cir.1986). In applying this test, the trial judge in his review of the evidence, "must expose the evidence to the strongest light favorable to the party against whom the motion is made and give him the advantage of every fair and reasonable inference.... A trial judge ... must confine himself to ascertaining whether the party against whom the motion is made adduced sufficient evidence to create a jury issue." Fireman's Fund Ins. Co. v. Vide Freeze Corp., 540 F.2d 1171, 1178 (3d Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977). The court must decide whether, giving the plaintiff every fair and reasonable inference, there was sufficient evidence from which the jury could reasonably find for the plaintiff. Laskaris v. Thornburgh, 733 F.2d 260, 264 (3rd Cir.), cert. denied, 469 U.S. 886, 105 S.Ct. 260, 83 L.Ed.2d 196 (1984). "A court cannot weigh the evidence or judge its credibility. If there is conflicting evidence that could reasonably lead to inconsistent inferences, a verdict may not be directed." Id. The same applies to a judgment n.o.v.

McBro and McCarthy base their motion on four grounds: 1) that the court erred in not submitting to the jury their instructions numbered one and two; 2) that as a matter of law they were relieved of any liability as a result of the Government of the Virgin Islands assuming full responsibility and control of the hospital; 3) that as McBro is a division of McCarthy, they are in reality only one entity; and 4) that the damages awarded by the jury were so grossly excessive that they cannot be sustained. Defendant Freeman argues that a judgment n.o.v. is proper because it cannot be found negligent as a matter of law.

A. Motion of Defendants McBro and McCarthy for J.N.O.V.

The first issue the court must address is whether the failure of the Government of the Virgin Islands, through its Department of Health, to act to correct the construction problem from the time it took occupancy of the hospital for a period of almost twenty months, was a superseding cause that relieved the defendants of any liability. Defendants suggest that there are two possible errors on this point. First, the court erred in not holding as a matter of law that the Government, by accepting full responsibility and control of the hospital, was a superseding cause of the injury. Such a decision would mandate a judgment n.o.v. in favor of McBro and McCarthy. Alternatively, defendants argue, the court should have found that the question of superseding liability was a question of fact that should have been presented to the jury. McBro and McCarthy's proposed jury instructions numbers one and two would have presented those questions to the jury.

The court finds that it is not error for it to decide as a matter of law that the Government was not a superseding cause of the injury. The issue of superseding negligence and shifting responsibility, while often a question for the jury, may be decided as a matter of law "where the parties do not dispute the critical facts and only their legal effect remain in issue." Mueller v. Jeffrey Mfg. Co., 494 F.Supp. 275, 277 (E.D.Pa.1980); see Prince v. Leesona Corp., Inc., 720 F.2d 1166, 1169 (10th Cir.1983).

In this case, the facts as to the Government taking possession of the hospital and the conditions it imposed on defendants upon accepting possession (e.g., the punchlist of items that remained to be completed by defendants) are not in dispute.

Defendants, in their argument, rely primarily on the Restatement (Second) of Torts § 452, which states as follows:

§ 452. Third Person's Failure to Prevent Harm

(1) Except as stated in Subsection (2), the failure of a third person to act to prevent harm to another threatened by the actor's negligent conduct is not a superseding cause of such harm.

(2) Where, because of lapse of time or otherwise, the duty to prevent harm to another threatened by the actor's negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent such harm is a superseding cause.

In the ordinary case, "the failure of the third person to act to prevent harm to the other threatened by the original actor's negligent conduct, is not a superseding cause of such harm, and so does not relieve the actor of liability for the harm which he has in fact caused." Id. comment b. It is only "the exceptional cases in which all responsibility has been shifted to the third person." Id. The typical case in which the exception stated in section (2) applies to shift liability is when there is an express agreement (e.g., by contract, by gratuitous promise) between the actor and the third party that the latter will assume all liability. See id. comment e.

When, as in the case at bar, no express agreement exists transferring liability, the court may still find that all duty and responsibility for the prevention of the harm has passed to the third person. The Restatement lists some relevant factors a court might consider in making this determination. Among them are "the degree of danger and the magnitude of the risk of harm, the character and position of the third person who is to take the responsibility, his knowledge of the danger and the likelihood that he will or will not exercise proper care, his relation to the plaintiff or to the...