Clemente v. Carnicon-Puerto Rico Management Associates, L.C.

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR; SELYA
• Citation: Clemente v. Carnicon-Puerto Rico Management Associates, L.C., 52 F.3d 383 (1st Cir. 1995)
• Decision Date: 09 March 1995
• Docket Number: No. 94-1603,CARNICON-PUERTO,94-1603
• Parties: Carmen CLEMENTE, Plaintiff, Appellant, v.RICO MANAGEMENT ASSOCIATES, L.C., et al., Defendants, Appellees. . Heard

Page 383

52 F.3d 383

Carmen CLEMENTE, Plaintiff, Appellant, v. CARNICON-PUERTO RICO MANAGEMENT ASSOCIATES, L.C., et al Defendants, Appellees.

No. 94-1603.

United States Court of Appeals First Circuit.

Heard March 9, 1995.

Decided April 14, 1995.

Adrian Mercado, Santurcer, PR, for appellant.

Jose A. Fuentes Agostini, with whom Totti, Rodriguez Diaz & Fuentes, Hato Rey, PR and Carlos A. Ramos, Mayaguez, PR, were on joint brief, for appellees.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

SELYA, Circuit Judge.

Plaintiff-appellant Carmen Clemente brought an unsuccessful negligence suit against several defendants affiliated with La Concha, a resort hotel in San Juan, Puerto Rico. ¹ She now appeals. After carefully considering her plaints, we affirm.

I. BACKGROUND

On August 11, 1992, appellant, a citizen of New York, traveled to Puerto Rico. She registered as a guest at La Concha. At 10:30 that evening, while exiting the piano bar, appellant slipped on the second step of a small, carpeted stairway. Having neglected to use the handrail, she plummeted to the floor, posterior first, sustaining a fractured right ankle and other injuries.

Invoking diversity jurisdiction, 28 U.S.C. Sec. 1332 (1988), appellant brought suit in the United States District Court for the District of Puerto Rico. In her complaint, she posited two theories of tortious conduct under Puerto Rico's general negligence statute, ² alleging that the defendants not only failed to keep the stairs free of foreign substances but also inadequately illuminated them. The first allegation stemmed from appellant's claim that the stairs, at the time of her tumble, were suffused with some sort of liquid (an inference that she drew from the dampness in her pants and on her person following her spill).

Trial commenced on April 20, 1994. At the close of the plaintiff's case, the judge remarked that visiting the accident scene might assist the jury. When neither party objected, the judge ordered a view to take place at approximately 7:00 p.m. In implementing the order, the judge provided very little structure. He neglected to give the jurors any detailed instructions or to enlist the court reporter's participation. Once the entourage reached La Concha, the jurors conversed freely among themselves and at least one juror touched foot to stair. It is alleged--though disputed--that the jurors also spoke with the judge.

Despite these informalities, appellant did not object at any point before or during the view, nor did she solicit any jury instructions concerning the view, nor did she request the presence of a reporter. It was not until the next day that appellant for the first time objected to the view and, concomitantly, moved for a mistrial. The judge overruled her objection and denied her motion. Even then, appellant neither asked to interview the jurors nor requested any sort of curative instruction.

At the close of all the evidence, the district court defenestrated the claim of careless maintenance, granting the defendants' motion for judgment as a matter of law under Fed.R.Civ.P. 50(a), and sent the case to the jury only on the parallel claim of poor illumination. Appellant did not ask the court to comment on the evidentiary status of the view in its instructions, and the court did not do so. The jury returned a defendants' verdict.

Before us, appellant asserts that the jury verdict should be set aside because the defects associated with the view warranted a mistrial. Additionally, she assigns error to the district court's handling of her negligent maintenance claim. We take these grievances one step at a time.

II. THE VIEW

Appellant's principal assignment of error features the district court's denial of her motion for a mistrial. The asseveration rests on the premise that defects associated with the view required a new beginning. Thus, the question presented reduces, in the first instance, to the status of the view itself.

In order to secure our footing, we begin with common ground: a federal court, exercising its inherent powers, may allow a jury in either a civil or a criminal case to view places or objects outside the courtroom. See United States v. Passos-Paternina, 918 F.2d 979, 986 (1st Cir.1990), cert. denied, 499 U.S. 982, 111 S.Ct. 1637, 113 L.Ed.2d 732 (1991), and cert. denied, 501 U.S. 1209, 111 S.Ct. 2808, 115 L.Ed.2d 980, 501 U.S. 1210, 111 S.Ct. 2809, 115 L.Ed.2d 981 (1991). Whether to permit a jury to conduct a view in a particular situation is a question committed to the trial court's informed discretion. See United States v. Pettiford, 962 F.2d 74, 76 (1st Cir.1992); United States v. Drougas, 748 F.2d 8, 30-31 (1st Cir.1984); see generally Hulen D. Wendorf, Some Views on Jury Views, 15 Baylor L.Rev. 379, 390-92 (1963) (cataloguing several considerations that may enter into a judge's discretionary decision to grant or deny a view).

Though discretionary at the outset, a view, once authorized, should embody certain fundamental safeguards. Collectively, these safeguards are aimed at achieving fairness and maximizing the trial's truth-seeking function. We limn a five-step protocol that a court customarily should follow before and during a view.

First, counsel should be alerted to a proposed view at the earliest practicable time and given an opportunity to be heard concerning it. See John R. Allison, Combinations of Decision-Making Functions, Ex Parte Communications, and Related Biasing Influences: A Process-Value Analysis, 1993 Utah L.Rev. 1135, 1218-19.

Second, because the rule in this circuit is that a view does not itself constitute or generate evidence, the jury should be instructed prior to embarking on the view that the view itself is not evidence as such, but, rather, is simply a mechanism to facilitate contextualization of the evidence. ³ See 1 Edward J. Devitt et al., Federal Jury Practice and Instructions Sec. 5.14, at 133 (1992) ("Ordinarily, when the jury takes a view the court explicitly instructs them that they are not to consider what they see as evidence in a case, but that the view is merely to enable them to apply the evidence in the case."). Upon timely request of either party, the court should include a similar statement in its final charge.

Third, counsel should be given the opportunity to attend the view, although the judge may, in his discretion, place limits on their interaction with the subject of the view and with the jurors. See 2 John W. Strong et al., McCormick on Evidence Sec. 216, at 26 (4th ed. 1992); Allison, supra, at 1218-19.

Fourth, because the judge's oversight is as necessary at a view as in the course of the trial proper, the judge ordinarily should attend the view. See 2 Strong et al., supra, at 27; Allison, supra, at 1219; Wendorf, supra, at 393.

Fifth, the court should employ some method of fully and accurately recording that which transpires at the view, usually by enlisting the attendance of a court reporter. See Lillie v. United States, 953 F.2d 1188, 1191 (10th Cir.1992) (noting that where "there is no record of the view, the litigants may effectively be denied any means of challenge on appeal"); Allison, supra, at 1219-20.

We add a caveat: the list we have compiled is not intended to be exhaustive or inflexible. There may very well be other precautions, not recounted above, that deserve consideration in the particular circumstances of a given case. Similarly, while the enumerated procedures ordinarily should be employed, we are reluctant to impose a rigid format upon the trial bench. Thus, if circumstances warrant, the court may innovate (even if innovation necessitates departing from the list).

Last but not least, we emphasize that the onus for implementing these safeguards does not rest exclusively upon the trial judge. When a judge orders a view but strays from the prophylaxis that should accompany it, an offended party must bring the omissions to the judge's attention in a timeous fashion, and, if necessary, lodge a formal objection. A party's failure to take appropriate action will, in most cases, foreclose an appeal predicated on the omission of standard safeguards.

The case at bar vividly illustrates this last point. Although the court ignored some of the standard safeguards, appellant did not preserve her right to contest the propriety of what transpired. Before the fact, appellant acquiesced in the court's suggestion that the jury observe the accident scene. She failed either to request that a court stenographer be present or to object when the judge did not spontaneously arrange for the reporter's attendance. And, she compounded these omissions by not asking that the jurors be given explicative instructions.

To make a bad situation worse, appellant's lassitude continued after the view had been completed. Though she made speculative allegations of misconduct when she moved for a mistrial, she neither sought an opportunity to conduct a voir dire in order to transform conjecture into hard fact nor requested a curative instruction to alleviate potential harm. Given this history of inattention, the record simply will not support appellant's assignment of error. See, e.g., Reilly v. United States, 863 F.2d 149, 160 (1st Cir.1988) (stating rule that "when a trial judge announces a proposed course of action which litigants believe to be erroneous, the parties detrimentally affected must act expeditiously to call the error to the judge's attention or to cure the defect"); Merchant v. Ruhle, 740 F.2d 86, 92 (1st Cir.1984) (warning against attempts to convert "agreeable acquiescence to perceivable error [into] a weapon of appellate advocacy"); see generally United States v. Camporeale, 515 F.2d 184, 188 (2d Cir.1975) (observing that "normally the failure of counsel to register a timely objection to the submission of improper evidence to the jury will be deemed a waiver").

Appellant's eleventh-hour motion to abort the proceedings did...