Garwood v. International Paper Co.
| Decision Date | 22 January 1982 |
| Docket Number | No. 80-5386,80-5386 |
| Citation | 666 F.2d 217 |
| Parties | 9 Fed. R. Evid. Serv. 1135 Michael M. GARWOOD, Plaintiff-Appellant, v. INTERNATIONAL PAPER COMPANY, et al., Defendants-Appellees. . Unit B * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Paul G. Komarek, Panama City, Fla., for plaintiff-appellant.
John Richard Smoak, Panama City, Fla., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Florida.
Before RONEY, KRAVITCH and ANDERSON, Circuit Judges.
In this diversity case, plaintiff-appellant Michael M. Garwood sued defendants-appellees International Paper Company ("International Paper"), the Gulf Coast Council, Boy Scouts of America ("Council"), and their respective insurers, American Motorists Insurance Company and The Hartford Insurance Company. On October 9, 1973, Garwood sustained severe injuries as a result of diving into and hitting the bottom of a pond located in Camp Blue Springs, Washington County, Florida. International Paper owns the land on which Camp Blue Springs is located and has leased the land, at disputed times, to the Millville Dad's Club of Millville, Florida ("Dad's Club"), and then to the Council. The Dad's Club has never been a party to this case. On July 30, 1976, Garwood filed his complaint, contending that International Paper and the Council were liable for his injuries. Garwood alleged that even though International Paper and the Council knew or should have known that swimming and diving in the pond was dangerous and hazardous, they had made no effort to supervise the pond, to restrict its use, to warn of its danger or to post signs indicating its danger or hazard. On July 6, 1977, after the district court denied their motions to dismiss the complaint, the defendants answered, in part admitting that the Council was the lessee of Camp Blue Springs at the time of Garwood's injuries.
After the applicable four-year statute of limitations on Garwood's claim apparently had passed, the Council moved for leave to amend its answer to deny that it was the lessee of Camp Blue Springs at the time of Garwood's injuries. The district court granted leave to amend. Subsequently, the Council and International Paper filed a joint amendment denying that the Council was the lessee at the crucial time. The district court granted summary judgment in the Council's favor, on the ground that the undisputed facts established that the Council did not occupy or possess Camp Blue Springs until after Garwood's injuries. After a trial on the merits, the jury returned a verdict in favor of International Paper. The court entered judgment against Garwood. We affirm.
This case presents five issues: (1) whether the district court properly denied Garwood's motion in limine, which sought to prevent International Paper from introducing into evidence either its lease to the Dad's Club or its lease to the Council, (2) whether the district court properly refused to give Garwood's requested jury instruction concerning the liability of those with joint control and possession of land, (3) whether the district court should have given any instruction to the jury concerning International Paper's liability to trespassers and to uninvited licensees, (4) whether the district court properly refused to give the jury Garwood's special verdict form, and (5) whether the district court properly excluded expert testimony concerning Garwood's contributory negligence.
In addition, it is important to note what is not at issue in this appeal. Except for a passing mention in his brief concerning the motion in limine question, Garwood does not contest the district court's grant of the Council's motion to amend or the district court's grant of summary judgment in the Council's favor. Moreover, at oral argument, Garwood's counsel specifically conceded that he was not appealing on these two issues. Thus, the district court's denial of Garwood's motion in limine is the only issue on appeal involving the defendants' original admission in their answer that the Council was the relevant lessee.
On the first day of trial, Garwood filed a motion in limine, seeking to prevent International Paper from introducing into evidence either its lease to the Dad's Club or its lease to the Council. The district court denied the motion, and permitted the introduction of the Dad's Club lease into evidence. On appeal, Garwood argues that the district court should have excluded the Dad's Club lease and should have stricken International Paper's defense to liability based on the lease. Garwood accuses International Paper of bad faith and of deliberate misrepresentation on the issue of the proper lessee. Although Garwood's argument lacks clarity, he seems to be arguing that International Paper should be estopped because of its alleged bad faith and misrepresentation.
The major problem with Garwood's position is that he made no showing of bad faith or deliberate misrepresentation either in the district court or on appeal. In connection with the Council's motion to amend its answer on the proper lessee issue, Garwood did argue bad faith, as well as prejudice to him because the statute of limitations apparently had barred any suit against the Dad's Club. However, the district court specifically found that there was no undue delay, bad faith or dilatory motive, at least as to the Council, and that there was no undue prejudice to Garwood. International Paper's brief states: "At no time, during the pendency of the motion or after entry of the order ... did (Garwood) produce any facts to substantiate his allegations of fraud and bad faith." (International Paper Brief at 9). We have searched the record in vain for some evidence of bad faith. We recognize that the district court's finding of no bad faith focused only on the Council, because only the Council had moved for leave to amend. 1 However we note that counsel for the Council, in his memorandum in support of the motion to amend, stated that the mistake with regard to the proper lessee was learned only within the last ten days before the motion. (R. 203). Since the same counsel represented both the Council and International Paper, there is a strong inference that both International Paper and the Council learned of the mistake at the same time. We need not rely on inferences, however. Garwood is the party asserting bad faith and the party asserting that the district court erred in denying his motion in limine; the absence of evidence in the record to show error is fatal. 2
The peculiar feature of this case is that Garwood is not appealing the district court's ruling granting the Council's motion to amend to correct the mistake concerning the proper lessee, nor is he appealing the district court's grant of summary judgment in favor of the Council. At first blush, the district court's finding of no undue prejudice to Garwood is somewhat surprising in view of the fact, well known to the district court at the time, that, by the time of the motion to amend, the statute of limitations had run so that Garwood was barred from suing the prior lessee, the Dad's Club. 3 Of course, it is possible that the Dad's Club was judgment-proof or uninsured or that Garwood did not wish to sue the Dad's Club for some other reason. In any event, there is no evidence in the record on appeal to show that the district court was erroneous in finding an absence of prejudice, and thus no basis for an appellate finding of abuse of discretion. 4
Garwood's other arguments in support of his effort to reverse the district court's denial of his motion in limine are also without merit.
Garwood challenged the district court's failure to give his requested jury instruction concerning the liability of those in joint control and possession of property. 5 He argues that the evidence shows only that International Paper and its lessee were in joint control and possession of at least the pond, if not of the entire Camp. On the control and possession issue, the district court instructed the jury that (1) when a property owner has surrendered entire possession and control to a tenant and has not engaged in fraud or concealment, the owner is not liable either to the tenant or to any person on the land in the right of the tenant, and (2) if the owner retains control of any portion of the leased premises, he is liable for defects existing on any such portion as to which he retains control. Garwood does not contest these instructions, just the failure to give one concerning joint possession and control. We uphold the district court's refusal to give Garwood's requested instruction.
Assuming, without deciding, that Garwood's instruction is a correct statement of Florida law, 6 Garwood suffered no prejudice by the district court's failure to give this instruction. Despite his contentions, the evidence simply does not establish that International Paper and the Dad's Club exercised joint control and possession over Camp Blue Springs in general or over the pond in particular. The Camp was leased to the Dad's Club and then to the Council for recreational purposes. An International Paper representative did appear at the Camp from time to time, but only to insure that the lessee and Camp visitors were not damaging the trees. Indeed, even though International Paper reserved timber rights in its leases, International Paper evinced a particular sensitivity to its lessees' recreational use of the Camp. Although International Paper logged land in the vicinity of the Camp, it evidently never removed any trees from the Camp itself, for at least 15 years. (Record, vol. 3, at 68-70). Moreover, no International Paper employees ever used the Camp for personal recreation, with the exception of those employees who were members of the Dad's Club. (Record, vol. 3, at 77-78). When the evidence is viewed as...
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