USCA1 Opinion

April 7, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2255
GLADYS ALVIRA, ET AL.,
Plaintiffs, Appellees,
v.
F. W. WOOLWORTH COMPANY,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Roberto Schmidt-Monge, U.S. Magistrate Judge]
_____________________
____________________
Before
Stahl, Circuit Judge,
_____________
Aldrich and Coffin, Senior Circuit Judges.
_____________________
____________________

Amancio Arias Guardiola for appellant.

_______________________
Victoria A. Ferrer for appellees.
__________________
____________________
____________________

COFFIN, Senior Circuit Judge.

____________________
fall case
San

in which a youth

Juan, Puerto Rico.

Gladys

Alvira, are

defendant.

was injured in a

The youth, Wally

co-plaintiffs.

A jury trial

verdicts awarding

This is a diversity trip-and-

Woolworth store in

Cora, and his mother,

F.W.

Woolworth Company

before a Magistrate

Wally $40,000 (minus 25%

is

Judge resulted in

for his contributory

negligence) and Gladys Alvira $20,000 for her mental anguish.

Woolworth
directed

appeals the

verdict

and

court's

judgment

denial of

notwithstanding

alleging insufficient evidence of liability;

it seeks a
they

new trial

are grossly

on mental anguish

excessive.

It

its motions

also

the

for

verdict,

in the alternative,

damages, alleging
challenges the

that

court's

taxing of certain costs.

We affirm the judgments as
issue

of damages

that,

on

constitute

this

awarded to
record, any

an abuse

to liability and costs.

Gladys Alvira, we

award

in

of discretion

excess

On

the

have determined
of $5,000

and therefore

would

condition the

grant of a new trial on rejection of a remittitur.

I.
Our

Sufficiency

standard of review for

sufficiency is clear.

We view

the evidence in the light most favorable to the non-moving party,

as well as giving
We reverse
there

it the benefit of every

a denial

appears but

conclusion

of

of a motion
one

legitimate inference.

for directed

reasonable conclusion,

nonliability.

scintilla or speculation.

We

verdict only
in

reject reliance

if

this case
on

Tokio Marine & Fire Ins. Co. v.

____________________________

mere

Grove
_____

Mfg. Co., 958 F.2d 1169, 1171 (1st Cir. 1992).

________
These are
liability.

On

the
the

facts,

so

viewed, which

Saturday after

are

relevant

Thanksgiving, November

to

26,

1988,

Wally Cora,

age 14,

young friends, to
shoppers

bumped

purchase a

crowding

walking.

There

where Wally

one of his

person,

Woolworth store

cassette.

the aisle

Wally followed
into one

visited a

then in

were many

and his

friends.

trying

broom leaning

counter had

At

one point he

to extricate

against it.

just then moved

Wally saw it

other

friends were

bumped into another, then moved to his left toward a

customer at the

with two

himself

counter.

away, revealing

too late and

his feet

became entangled with it, causing him to fall.

His left arm
fracture, a
floor.
in a

was bent

and indeed had

bone having punctured

the skin.

suffered a

Blood was on

At this point a store employee took the broom

closet.

Another

attended Wally, who

customer who happened

was taken

splint immobilized his arm.

to the office

No such video

the

and put it

to be

a paramedic

where a

The store manager appeared,

at Wally that he had been running and that he had a

prove it.

compound

cardboard

yelling

videotape to

was ever shown and the manager

did not

testify at trial.
Appellant Woolworth

first argues

that plaintiff

failed to

prove a dangerous condition as cause of his fall, citing Cotto v.

_____
Consolidated Mutual Ins. Co.,
____________________________
involved a

shopper falling on

116 D.P.R. 644 (1985).

a slippery floor.
-3-

This case

We have

read

Cotto as
_____

requiring a plaintiff, in a

conditions

of

knowledge on

the
the

premises,
part of

case involving preexisting

to show

the

actual

defendant in

affirmative showing of negligence.

or

constructive

order to

make

an

Mas v. United States, No. 92___

_____________

1392, slip op. at 7-8 (1st Cir. Jan. 28, 1993).

Appellant misconceives the nature
of the

fall was

not a

about

innocently

or

negligence

condition that might

by

consists in

nothing to remedy it.

an employee, in

of this case.

third

knowing

party,

have been
where

about the

The

cause

brought

landlord's

condition and

doing

Rather, the cause was the negligent act of

the course

of her

work, in

placing the

broom

where, in a crowded store, a passerby might not see it in time to

avoid tripping over
on

two facts that

it.

Moreover, appellant posits its position

we cannot accept: that

the broom was "easily

perceptible" (brief, p. 11) and that plaintiff was running at the

time

(brief, p. 12).

Taking facts favorable

must assume that the broom

to plaintiffs, we

was not visible to Wally and

that he

was walking, not running.

In

sum,

this

was, as

tried,

case

that was

properly

submitted to the jury.

II.
Our review of the

Damages

amount awarded to Gladys Alvira

for her

mental

damages is stringently

unless

we

injury.
196,

find

the

Moreover, as

restrained.

verdict grossly
we said in

We may

not intrude

disproportionate

Wagenmann v.
_________

to

the

Adams, 829 F.2d

_____

215 (1st Cir. 1987), "[t]ranslating legal damage into money

-4-

damages
items

-- especially
of measurable

in

cases which

economic

within a jury's ken."

involve few

loss --

is

We elaborated in

significant

a matter

peculiarly

Milone v. Moceri Family,

______
______________

Inc., 847 F.2d 35, 37 (1st Cir. 1988):

____
The jury, as we see it, is free to run the whole gamut
of euphonious notes -- to harmonize the verdict at the
highest or lowest points for which there is a sound
evidentiary predicate, or anywhere in between -- so
long as the end result does not violate the conscience
of the court or strike such a dissonant chord that
justice would be denied were the judgment permitted to
stand.
Our

analysis

under which the

experts testified

begins by

noting

the

issue of mental anguish

unusual circumstances
damages was tried.

for plaintiffs; reliance was

the medical reports.

Plaintiff Gladys

No

placed wholly on

Alvira did not

testify.

Instead, the parties agreed to the following stipulation:

We stipulate that plaintiff has not put to testify coplaintiff, Gladys Alvira.
And we stipulate that her
testimony was about her suffering of the mother. What
she saw and felt and looked at her boy suffering from
the injury.

Accordingly, the evidence relating to the possible suffering

of mental anguish by Wally's mother must rest on the testimony of

Wally, of defendant's medical expert, and on the medical records.

First

of all,

we

summarize the

history of

medical attention,

picking up the story where we left off.

From the manager's office at the store, Wally was taken to a

municipal
taken.
Puerto

diagnostic

center

or

dispensary where

From there he was admitted

X-rays

were

to the emergency room of the

Rico Medical Center at 9:45 p.m., almost five hours after

-5-

his fall.
mother.
accident.
admitted

He was

accompanied

Wally's own
Two

by a

mother at this

days later,

on

friend

point did not

November

to the San Juan City Hospital.

had no relatives,

and the

28,

know of the

Wally had

been

A record noted that he

that a neighbor referred to him

and that he had been living

friend's

as an orphan,

with a "tutor" who had disappeared a

few days previously.

it

In the absence of

parental authorization,

was determined, because the fracture (described as "left open

distal third forearm fracture")

was compound, to perform surgery

on an emergency basis.
Surgery

under

general anaesthesia

proceeded successfully,

aligning the bones and preventing infection.

the

hospital

social
was

was delayed,

discharged on

three

December

5.

Shortly

Wally went to New York to

On January 17, accompanied

removed at
the

efforts

discharge from

by the

hospital's

service department to arrange for placement of Wally.

January of 1989,
home.

pending

His

Lincoln Hospital.

or four

months

early

his brother Rafael's

by Rafael, Wally had his cast

We have no

whereabouts or condition of

thereafter, in

He

information regarding

Gladys Alvira until

later when,

in

April of

a year and

1990,

Rafael,

Gladys, and Wally returned to live in Puerto Rico.

Wally's

testimony as to his

arm still hurt when he

did any heavy lifting, that he

in his wrist and elbow during

not play baseball, and that
out

of apprehension

present condition was that his

of

felt pain

a change in weather, that he could

he did not play on basketball

having his
-6-

arm

struck.

Doctors

teams

who

examined

him,

one at

his

agreed that there was

from hand

request, the

range

impairment.
This

of

at defendant's,

no neurological damage, that the

to shoulder was

complete

other

"essentially normal," that

motion,

good

alignment,

and

left arm

there was

no

A small scar on the forearm remained.

is

the

record

on

which

we

must

assess

reasonableness of an award of $20,000 to Wally's mother.

point

we think that Woolworth

reasons to avoid

the risk

cannot complain.

of stimulating a

having Gladys Alvira testify.

and

residual

bland

stipulation

was

the

Up to a

Perhaps it had

jury's sympathy

by

It may have thought that a minimal

less likely

to

eventuate

into

sizeable verdict than more detailed testimony.

On

the

other hand,

we have

evidence

in the

arouses our skepticism that a jury reasonably

the

mother one

half

of the

amount

percent discount) to the son.

the period of agony
of the accident.
her

son during

As

record that

could have awarded

awarded (subject

to

a 25

The mother was not present during

and operation; indeed, she was

in ignorance

far as the record reveals, she was not with

his convalescence.

Indeed, the

medical record

notes suggest that there was no close relationship between mother

and son

prior to the accident.

view the mother and

have

endured.

illness,

to

The jury had

no opportunity to

hear her describe such suffering as

Nor do
explain why

we

have any
the jury

reason proffered,
was

opportunity to assess her credibility.

to be

deprived

she may

such as

of the

-7-

Appellee reminds us of De Leon Lopez v. Corporacion Insular

_____________
____________________

de Seguros, 931 F.2d 116, 125-26 (1st Cir. 1991), where we upheld
__________
the

action of the district court in reducing an $800,000 verdict

for emotional damages by

that case

ordering a remittitur to $110,000.

plaintiff's daughter-in-law had given

One of them inadvertently

In

birth to twins.

was switched with a twin

from another

pair and brought up as a natural child of the plaintiff's son and

daughter-in-law,
discovered

and as his

nearly two

own granddaughter.
Plaintiff's

distress over

losing the grandchild he

thought his own and over

the wrenching

experience

and daughter-in-law

described

of

his

years later.

The mix-up was

son

was

in

testimony by all three.

The
observing

district

court

carefully

evaluated

the

evidence,

that the plaintiff had not lived in Puerto Rico during

the period of nondiscovery and had visited the twins no more than

twice a month, still had the opportunity to maintain contact with

his

quondam

economic

granddaughter,

loss or

and

expert testimony

had produced
as to

no

evidence

of

psychological damage.

The court, in settling upon the figure of $110,000, left no doubt

that

it was

with

the

sounding the

evidence.

highest "euphonious

de Leon Lopez
______________

note" consistent

v. Corporacion Insular de
_______________________

Seguros, 742 F. Supp. 44, 47 n.7 (D.P.R. 1990).

_______

Appellee argues that our affirmance of the $110,00 figure in

a

case with such minimal evidence of psychic harm amply supports

affirming the $20,000 figure in this case.

We disagree.

first place, Lopez involved "appellate review of

_____

In the

post-remittitur

-8-

damages for non-economic losses[, which] is extremely narrow. . .

."

931 F.2d at 125.

We indeed are loath "to grade the teacher's

grading of the essay."

the

Magistrate Judge

Wagenmann, 829 F.2d at 215.

_________
did

not reveal

to

us any

In this case
such

grading

process; indeed, there was precious little essay to grade.

In the second place, in this case, unlike in Lopez, 931 F.2d

_____
at

126, we

heavily
jurors

cannot

say that

on the common
for a

"the

jury system,

sense and collective

fair resolution

of such

which

depends

human experience of

quandaries [involved

in

translating distress into dollars], has rendered yeoman service."

Through no fault of

its own, the jury lacked the

ordinary basis

for applying its common sense; it had no testimony from or

the

sufferer.

indications

The slate

was not

there were indicated

quite blank.
that in

about

What factual

the short

run Gladys

Alvira did not know of Wally's accident and suffering and that in
the

long run

the

residual effects

of

the accident

sum, even

crediting Gladys

Alvira, as

were

not

severe.
In

commands, with
accident

the normal

concern

and resulting aches and

the stipulation

and suffering
pains, we feel

over a

son's

that $5,000 is

the limit of an adequate award for mental anguish in this case.

III.
Appellant
transcribing

challenges
depositions

the
of

testified) and of appellant's

basis of

the challenge

Costs
allowance

appellant's

of

the

of

witness

(who

store manager (who did not).

The

was simply that

expert

costs

neither deposition

was

-9-

introduced
prudent

in

at trial.
deposing

But

it is

appellant's

obvious that
expert and

plaintiffs were
in

reducing

his

comments to writing, whether or not any specific part was used in

cross examination.
what the store

And

it was

manager was

essential that plaintiffs

prepared to say;

it was

know

apparently

this deposition that informed the plaintiffs that no videotape of

Wally's running existed.
As we said in Templeman v.
_________
249

(1st Cir.

district court
warrant
or

used

1985),

Chris Craft Corp., 770 F.2d 245,

_________________

"[i]t is

within

to tax deposition costs

the discretion

of

the

if special circumstances

it, even though the depositions were not put in evidence

at

plaintiffs'

trial."

As

for

expert witness's

appellant's

fee

contentions

for attendance

at the

that

trial

should be denied because he was not a treating physician and that

the cost of copying papers should be excluded, we see no merit in

them.
The judgments
affirmed.
for

The

of

liability and

the

denial of the motion for new

the mental anguish of

Gladys Alvira is

taxing of

are

trial as to damages

reversed unless the

plaintiffs agree to accept a remittitur of $5,000.

-10-

costs

No costs.