Echeverry v. Jazz Casino Co.
| Decision Date | 11 January 2021 |
| Docket Number | No. 20-30038,20-30038 |
| Parties | Carla ECHEVERRY, Plaintiff—Appellee, v. JAZZ CASINO COMPANY, L.L.C., doing business as Harrah's New Orleans Casino, Defendant—Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
David Harmon Hanchey, Townsley Law Firm, L.L.P., Lake Charles, LA, for Plaintiff-Appellee.
Laurie J. McLeRoy, Matthew Jeffrey Thome, von Briesen & Roper, s.c., Milwaukee, WI, Amanda Collura-Day, Kean Miller, L.L.P., New Orleans, LA, for Defendant-Appellant.
Before Jolly, Southwick, and Wilson, Circuit Judges.
Carla Echeverry was injured when a manlift struck her outside Harrah's Casino in New Orleans. A jury found Jazz Casino Company negligent, assigning it 49% of the fault. Among the jury awards to Echeverry was $1,000,000 for future pain and suffering. The Casino appeals, seeking review of the district court's denials of the Casino's motion for judgment as a matter of law, motion for a new trial, and motion for remittitur or a new trial on damages. We hold that the evidence was sufficient to support the finding of negligence on each of the three theories presented to jurors. We also hold that none of the objected-to evidence was erroneously admitted at trial. Conversely, we hold that the jury's $1,000,000 award for future pain, suffering, mental anguish, disability, scarring, and disfigurement was excessive. We therefore AFFIRM the district court's denial of the Casino's motion for judgment as a matter of law and motion for a new trial, VACATE the $1,000,000 award for future pain and suffering, and REMAND for further proceedings.
Jazz Casino Company, doing business as Harrah's New Orleans Casino, hired Alabama Wildlife Removal ("AWR") as an independent contractor in January 2017 to remove birds from palm trees near the Casino. On February 16, 2017, during the second week of the project, Echeverry stood near the worksite in front of the Casino as she waited to cross an adjacent street. AWR was using a manlift to reach the treetops. As it was being moved from one group of trees to another, it struck Echeverry, running her over and causing a comminuted fracture in her lower right leg and ankle. The AWR employee serving as the flagman had not alerted Echeverry to the movement of the manlift as he passed her.
Echeverry filed a negligence lawsuit in state court against AWR, its owner Phillip Padgett, manlift operator Richard Tyler, and the Casino. The Casino removed to federal court. There, a jury trial was held from August 5–8, 2019. Echeverry presented three theories of negligence to the jury: negligence in hiring, in operational control, and in authorization of unsafe work practices.
The jury found the Casino negligent and assigned it 49% of the fault. Remaining fault was assigned to AWR (50%) and Echeverry herself (1%). The jury awarded damages for (1) past pain, suffering, and mental anguish; (2) past, present, and future loss of enjoyment of life; (3) past medical expenses; (4) past lost wages; (5) loss of college tuition; and, relevant to this appeal, (5) $1,000,000 for future pain, suffering, mental anguish, disability, scarring, and disfigurement.
Only the Casino appeals. It seeks review of the district court's denials of motions for judgment as a matter of law, for a new trial, and for remittitur or a new trial on damages.
On appeal, the Casino raises three issues. First, it argues that the evidence is insufficient to support one or more of Echeverry's theories of negligence and it is therefore entitled to a new trial or judgment as a matter of law. Second, it argues that four items of evidence — the Better Business Bureau ("BBB") rating, the certificate of insurance, the Casino's internal policies, and the construction-site photographs — were erroneously and harmfully admitted into evidence. Finally, it argues that the $1,000,000 award for future pain and suffering violates this court's maximum-recovery rule and entitles the Casino to remittitur or a new trial on damages.
We first discuss the sufficiency of the evidence.
We review the denial of a motion for judgment as a matter of law de novo , considering the facts in the light that most favors the jury verdict. Retractable Techs., Inc. v. Becton Dickinson & Co. , 842 F.3d 883, 891 (5th Cir. 2016). We cannot reverse a denial of a motion for judgment as a matter of law unless the "jury's factual findings are not supported by substantial evidence or [ ] the legal conclusions implied from the jury's verdict cannot in law be supported by those findings." American Home Assurance Co. v. United Space All., LLC , 378 F.3d 482, 486–87 (5th Cir. 2004). "Substantial evidence is that relevant evidence — more than a scintilla but less than a preponderance — that would cause a reasonable person to accept the fact finding." Coastal Prod. Servs., Inc. v. Hudson , 555 F.3d 426, 430 (5th Cir. 2009) (quoting Dir., OWCP v. Ingalls Shipbuilding, Inc ., 125 F.3d 303, 305 (5th Cir. 1997) ).
Echeverry presented three theories of negligence to the jury. When, as here, it is unclear from the verdict which theory of negligence persuaded the jury, a new trial is necessary if the evidence is insufficient on at least one theory even if not on all. Muth v. Ford Motor Co. , 461 F.3d 557, 564 (5th Cir. 2006). This court employs a harmless-error "gloss," meaning that if we are "totally satisfied" or "reasonably certain" based on the focus of the evidence at trial that the jury's verdict was not based on the theory with insufficient evidence, a new trial is unnecessary. Id. at 564–65. If the evidence is insufficient as to each theory, then the defendant is entitled to judgment notwithstanding the verdict. King v. Ford Motor Co. , 597 F.2d 436, 439 (5th Cir. 1979).
Under Louisiana law, a principal is generally not liable for the acts of its independent contractor.
Graham v. Amoco Oil Co. , 21 F.3d 643, 645 (5th Cir. 1994). A principal may, however, be liable if it was independently negligent in its own actions, id. , or if it negligently hired the independent contractor, Hemphill v. State Farm Insurance Co. , 472 So. 2d 320, 324 (La. Ct. App. 1985). Moreover, exceptions to a principal's shield from liability exist if the principal "retains operational control over the contractor's acts or expressly or impliedly authorizes those acts." Coulter v. Texaco, Inc. , 117 F.3d 909, 912 (5th Cir. 1997).
Echeverry presented evidence of the Casino's negligence under theories of negligent hiring, operational control, and authorization of unsafe work practices. We analyze each theory.
Echeverry presented evidence at trial that the Casino was negligent for hiring an irresponsible independent contractor. As to negligent hiring, the jury was instructed:
The hiring party breaches its duty if it knew or should have known that the independent contractor was incompetent at the time of the hiring; meaning that the hiring party knew or should have known that the contractor could not perform the job safely or competently.1
The parties stipulated that the Casino hired AWR in January 2017, so the relevant question is whether the Casino knew or should have known in January 2017 that AWR was incompetent. The relevant evidence includes that a bird-control company named Bird-X recommended AWR to David Stuart, Director of Business and Process Improvement for the Casino. Stuart contacted some of AWR's references and received no negative information about AWR. The BBB, though, had given AWR an "F" rating. The Casino's internal policies required that before beginning work, an independent contractor had to provide a certificate of insurance with a minimum amount of coverage that identified the Casino as an additional insured. AWR provided a certificate of insurance to the Casino at about the time it began work on the project, February 6-7, 2017, but the identified policy had expired in October 2016.
The Casino argues that none of this evidence is relevant. The "F" rating from the BBB, the Casino points out, was not necessarily a result of safety concerns and could not have put the Casino on notice of safety risks in hiring AWR. At trial, the jury heard that a business's failure to respond to consumer complaints against that business was the most common reason for an "F" rating. There is no evidence that the Casino knew what earned a business an "F" rating when it hired AWR, and the Casino denied knowledge of the rating anyway. The jury, however, could have found that the Casino at least should have known about the rating when hiring AWR. We find that the rating itself is not strong evidence of AWR's ability to complete the project safely or competently, but it is some evidence to support that the Casino should have investigated further before contracting with the company. The BBB rating may reflect more on the Casino's failure to investigate adequately before hiring AWR than it reflects on the competency of AWR. The jury, however, is permitted to make inferences from the evidence. Regardless, the BBB rating is not the only evidence Echeverry presented for the negligent-hiring theory.
Other evidence was that AWR's certificate of insurance showed an expired insurance policy. The Casino's internal policies required that it hire only contractors who were insured. There was evidence at trial that the Casino hired AWR through a purchase request rather than a more formal contract in order to accelerate the process. Under usual circumstances, the Casino would delay issuing a purchase order until it had received a valid certificate of insurance from the vendor, but that did not occur here. The Casino argues that this evidence does not support negligent hiring because it did not know that AWR was uninsured until after it hired AWR and, regardless, insurance is not probative of safety. Even if the Casino did not learn of AWR's lack of insurance until after it hired AWR, we conclude that...
To continue reading
Request your trial