Dopico-Fernandez v. Grand Union Supermarket

• Decision Date: 08 December 1987
• Docket Number: No. 87-1313,P,DOPICO-FERNANDE,87-1313
• Parties: Josefalaintiff, Appellant, v. GRAND UNION SUPERMARKET, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 11

841 F.2d 11

Josefa DOPICO-FERNANDEZ, Plaintiff, Appellant, v. GRAND UNION SUPERMARKET, et al., Defendants, Appellees.

No. 87-1313.

United States Court of Appeals, First Circuit.

Heard Dec. 8, 1987.

Decided March 2, 1988.

Gerardo Mariani, San Juan, P.R., with whom Woods & Woods, Hato Rey, P.R., was on brief, for plaintiff, appellant.

Ricardo L. Rodriguez Padilla, with whom C.A. Chavier Stevenson, San Juan, P.R., was on brief, for defendants, appellees.

Before BOWNES and BREYER, Circuit Judges, and LAFFITTE, ^* District Judge.

LAFFITTE, District Judge.

Plaintiff appellant Josefa Dopico Fernandez was knocked to the ground just outside defendant appellee's retail business establishment. The jury found appellee liable for $3,906 in medical expenses incurred by Ms. Dopico Fernandez and $144,740 in loss of income. The trial judge entered a judgment notwithstanding the verdict, finding as a matter of law that appellee had no duty to secure the safety of persons outside its store. Appellant challenges the district judge's order, as well as the jury's refusal to award her damages for past and future pain and suffering. Since we uphold the judgment n.o.v., we need not address the damages issue.

A judgment notwithstanding the verdict should be granted only when the evidence, and the inferences to be drawn therefrom, viewed in the light most favorable to the nonmovant (appellant), could lead reasonable persons to but one conclusion. Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir.1987). In applying this standard, we do not evaluate the credibility of witnesses or the weight of the evidence presented at trial. Joia v. Jo-Ja Service Corp., 817 F.2d 908, 910-11 (1st Cir.1987). Rather, "[w]e take the facts as shown by [appellant's] evidence and by at least such of [appellee's] uncontradicted and unimpeached evidence as, under all the circumstances, the jury virtually must have believed." Wagenmann, supra, at 200, quoting Karelitz v. Damson Oil Corp., 820 F.2d 529, 530 (1st Cir.1987).

Except in one or two minor areas, this appeal does not involve disputed facts or credibility determinations at all. In the few instances where disputed facts arise, they will be evaluated in accordance with the foregoing standards. The primary basis for the district judge's judgment n.o.v. was his determination that as a matter of law the facts presented at trial did not establish appellee's control over and, consequently, liability for accidents occurring on the sidewalk outside appellee's store. The facts are as follows.

On January 6, 1982 appellant took a taxi to the Bonneville Commercial Center in Caguas, Puerto Rico. This mini-mall consisted of seven or eight retail establishments including appellee Grand Union Supermarket ("the supermarket"), appellant's destination. The supermarket did not own the property on which it sat, but leased the premises from the owners of the mini-mall, not a party to this action. When appellant approached within several feet of the entrance to the supermarket, and while still on the sidewalk outside, several skateboarding youths suddenly careered across her path and knocked her to the ground causing the injuries which are the object of this suit. The youths continued on their merry way, have never been identified, and are not parties to this action. Appellant's allegation, disputed by appellee but accepted by the trial judge, that the youths were residents of a nearby 'caserio" (housing project) is accepted as fact for purposes of this appeal. Similarly accepted as fact is appellant's testimony that she was a long time customer of the supermarket.

On the other hand, not supported by the evidence presented at trial is appellant's allegation that youths often engaged in roughplay and dangerous sport on the sidewalk in front of the supermarket. To establish this as fact appellant relies on a reported statement relative to the accident made by the market's manager to the assistant manager to the effect that "you cannot deal with them [the housing project kids]. They would come down and they would go into the parking lot and damage the cars and do things like that and that it was uncontrollable." Even accepting this statement as an accurate description of the situation, in no way does it establish that the problem was a common one. The only evidence presented at trial concerning the frequency of free-wheeling activities at the mini-mall came from appellee's witness, a patron of the mini-mall for some eight years, who testified that he had seen youngsters so engaged on about twenty occasions during that stretch.

Finally, the relative placement of the sidewalk and its surroundings was not disputed. Large plate glass windows gave out on the sidewalk and allowed those inside the store to view that which transpired immediately outside. At the time of the accident all parts of the sidewalk were directly accessible from the parking lot as no guard rails or fence channelled ingress and egress. Subsequent lessees of the storefront have installed such structures. No security guard patrolled the mini-mall premises.

Whether one takes the evidence as presented above, in accordance with the given standard of review, or one takes as fact all of appellant's allegations concerning these matters, makes no difference in the outcome of our review of the judgment n.o.v. The dispositive issue in the judgment was not the severity and duration of the dangerous activity. The trial court found, rather, that the supermarket had no duty to insure the safety of persons located on the sidewalk outside the store, regardless of the level of skateboarding activity. The dispositive facts were the terms of the rental agreement between the supermarket lessee and the mini-mall lessor. Looking at this contract against the backdrop of relevant caselaw, the District Court determined that reasonable persons could not but conclude that the supermarket had no contractual or legal duty to ensure the safety of an individual approaching appellee's premises on the sidewalk used in common with other lessees.

Appellant brought this action under the general tort liability statute of Puerto Rico. ¹ Since appellant charges the supermarket with an ommission causing damages, she must prove as a threshold that the supermarket had a duty to act to avoid the harm. Sociedad de Gananciales v. Gonzalez Padin, 86 J.T.S. 23 (March 21, 1986). As the trial court correctly surmised, however, duties arising under tort law were not the only obligations operating in this case. Appellee supermarket was renting space from the owner of the mini-mall under the terms of a lease contract. Though the existence of a lease does not bar application of the general tort liability or other statute, it "may more or less affect the rights and obligations of the parties." Torres v. Fernandez, 56 P.R.R. 459, 470 (1940). See also, Fireman's Fund American Insurance Co. v. Almacenes Miramar, Inc., 649 F.2d 21, 25 (1st Cir.1981).

The lease contract covering appellee's rental of the store from the landlord states that the landlord has demised and leased the store premises,

TOGETHER with the appurtenances thereto and the use, in common with others, of the parking areas, roadways, means of ingress and egress and service areas shown on the annexed drawing, which use shall be for itself, its officers, employees, patrons and invitees, for the term of 15 years, etc.

Paragraph 2. Appellant argues that common sense and the common definition dictate that the term "appurtenances," which are apparently leased outright and exclusively to tenant by the contract, encompasses the sidewalk in front of the store. Because tenant appellee exclusively leased the sidewalk as an appurtenance, appellant reasons, it had exclusive control over and liability for activity occurring on the sidewalk.

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