Professional Documents
Culture Documents
SELYA,
SELYA,
Circuit Judge.
Circuit Judge.
______________
Plaintiff-appellant
Carmen
Rico.1
plaints, we affirm.
I.
I.
BACKGROUND
BACKGROUND
On August 11, 1992,
that evening,
appellant, a citizen of
New York,
the piano
bar, appellant
Having
neglected
to
floor,
posterior
first, sustaining
use the
handrail,
she
plummeted to
a fractured
the
right ankle
and other
injuries.
Invoking
(1988),
Court for
posited
diversity
appellant brought
the District of
two theories
general negligence
only failed to
of
suit
in the
In her
tortious conduct
alleging that
stairs free of
28
U.S.C.
United States
Puerto Rico.
statute,2
keep the
jurisdiction,
1332
District
complaint, she
under Puerto
Rico's
the defendants
not
foreign substances
but
____________________
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
When neither
In
enlist the
court reporter's
reached La
and at least
though disputed
presence
of a
appellant
for
It
is alleged
reporter.
It was
time
concomitantly, moved
for a
mistrial.
not object
first
asked
to stair.
the
objection and
the entourage
jury
Once
Despite these
at
participation.
or to
objected
the next
to
the
The judge
Even then,
day that
view
and,
overruled her
appellant neither
instruction.
At the
defenestrated the
defendants'
close of all
claim
of careless
district court
maintenance, granting
the
Civ. P. 50(a), and sent the case to the jury only on the parallel
claim
of poor illumination.
comment
on
instructions,
the
Appellant did
evidentiary
status
of
the
so.
view
in
its
defendants' verdict.
Before
should
us,
appellant asserts
that
the jury
verdict
warranted a
mistrial.
error to
the
We
THE VIEW
THE VIEW
Appellant's principal assignment
district
court's denial
asseveration rests
the
on the
of
her motion
a mistrial.
The
associated with
order to secure
a federal
our footing, we
court, exercising
its inherent
powers, may
courtroom.
Whether to
permit
a jury
situation is a question
discretion.
conduct a
v. Passos_______
denied, 499
______
view
in a
particular
informed
Cir. 1992); United States v. Drougas, 748 F.2d 8, 30-31 (1st Cir.
_____________
_______
4
1984);
15
Baylor
L.
Rev.
379,
considerations
that
may
390-92
enter
(1963)
into
(cataloguing
judge's
several
discretionary
discretionary
should
Collectively, these
and maximizing
embody
at
certain
safeguards are
the trial's
the
outset,
fundamental
view,
safeguards.
aimed at achieving
truth-seeking function.
once
fairness
We limn
earliest practicable
heard concerning
it.
time
and given
See John
___
R.
a proposed view at
an opportunity
Allison,
to be
Combinations of
________________
Biasing Influences:
A Process-Value Analysis, 1993 Utah L. Rev.
______________________________________________
1135, 1218-19.
as such, but,
rather, is simply a
mechanism to
See 1 Edward J.
___
____________________
3While
this position
represents the
John W.
majority view,
see 2
___
at 27 (4th
Devitt
when the
jury takes a
5.14, at
view the
court
explicitly instructs them that they are not to consider what they
see as evidence in a case, but that
them to apply
of
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.
view
as in
the
judge's oversight is
course of
view.
the
as necessary
trial proper,
See 2 Strong
___
the
judge
et al., supra,
_____
See Lillie v.
___ ______
United States, 953 F.2d 1188, 1191 (10th Cir. 1992) (noting that
______________
where
"there is
effectively
no
be
record
denied
any
of
the
means
view,
of
the
litigants
challenge
on
may
appeal");
a caveat:
the
list we
have compiled is
not
____________________
F.2d 1074, 1076 (6th Cir. 1970) (disapproving of "a fact finder
using visual inspection . . . in the place of testimony to
resolve factual issues").
6
precautions,
consideration in
Similarly,
employed,
trial
recounted
the particular
we are
(even
reluctant to
Thus,
if
above,
that
circumstances of a
bench.
innovate
not
be
deserve
given case.
if circumstances
rigid format
warrant,
innovation necessitates
upon the
the court
departing
may
from the
list).
Last
but not
least, we
emphasize that
the onus
for
When a
prophylaxis
that should
bring
the
fashion,
judge orders
accompany
omissions to
the
judge's
strays from
offended party
attention
in
the
must
timeous
A party's
the
appellant
at bar
court ignored
some
of
last point.
the standard
safeguards,
what transpired.
Before the
in the
She
reporter's attendance.
omissions by
a bad situation
worse, appellant's
lassitude
view had
been completed.
Though she
made
speculative
allegations
mistrial, she
dire
in
Given
misconduct
neither sought an
order
requested
of
to
transform
a curative
this history
conjecture
which
detrimentally affected
to the judge's
Ruhle,
_____
into
hard
to
be
course of action
erroneous,
to cure the
v.
the
attention or
nor
will not
voir
fact
of error.
for
potential harm.
announces a proposed
believe
moved
conduct a
to alleviate
of inattention,
that
opportunity to
instruction
when she
parties
defect"); Merchant
________
v.
appellate advocacy");
Camporeale,
__________
515
F.2d 184,
188 (2d
Cir. 1975)
of counsel to register a
(observing that
timely objection
eleventh-hour
motion
to
abort
the
and
make
up
lost
objection.
ground
by
means
of
an
Tropeano,
________
(upholding denial of
motion
for
mistrial
opportunities to
where
movant
forwent
several
earlier
839 (1973); Saville v. United States, 400 F.2d 397, 400 (1st Cir.
_______
_____________
1968) (similar), cert. denied,
_____ ______
rule would
unfair to
judicial
inject gross
diligent
economy.
"`the burden is
A contrary
litigants,
and
would
seriously
would be
undermine
on the
to take
his
can enable
the
trial judge
to
take the
most
efficacious
appellant
waived
any
objection
to
the
seem benign.
of prejudice:
Appellant
(1) that
the judge
did not
utilize the
services
(2) that
view;
view were
None of
cannot,
without more,
be
ill-advised,
case, and,
deemed prejudicial.
See
___
F.2d
indication
which,
320, 323
(6th Cir.
1976).
Similarly,
if it
occurred at
all, evidently
there
is no
consisted of
a juror
asking
the
judge
if
the
prejudiced appellant's
States
______
lights
could
substantial rights.
be
activated
See, e.g.,
___ ____
United
______
communication between
432
bar
U.S.
judge and
909 (1977),
juror harmless),
and cert.
___ _____
denied,
______
cert. denied,
_____ ______
434 U.S.
853 (1977).
during a
view, what
occurred here
was apparently
has not
suggested how
in fact, cf.
___
such conduct
might
have been
reasonable probability . . .
[of] actual
scene, to examine
a door and to
have it opened
cert. denied,
_____ ______
in
the
long
never
reached
the
and
jury.4
seemingly
a claim
Finally,
____________________
See
___
appearance of
changed since
the
relevant events"); Martin v. Gulf States Utils. Co., 344 F.2d 34,
______
______________________
37 (5th Cir. 1965)
"physical
appearance had
been substantially
the scene's
altered since
the
accident").
motion
precautions
accompanying the
appellant neither
for
mistrial
view's
preserved her
despite
the
absence
implementation.
of
Because
actual
F.3d
discretion.
1161, 1184
(1st
("Granting
or
denying a
trial
motion for
court's
a mistrial
discretion."),
is a matter
cert.
_____
committed to
denied, 114
______
S.
Ct.
the
2714
(1994); Real v. Hogan, 828 F.2d 58, 61 (1st Cir. 1987) ("A motion
____
_____
disturbed unless
III.
III.
granting judgment
as
a matter
defendants negligently
tolerated
hotel's
premises.
insurer
of a guest's safety.
was
enough evidence
of
law on
for
her claim
a hazardous
Appellant concedes
court erred in
that a
that
the
condition on
the
hotel is
not an
jury
to
find
that
the
defendants knew or
foreign substance's
adduced
of the danger.
no proof
that
Her claim
compresses, therefore,
on constructive notice.
a period of
Her
time sufficient
fully
defendants had
basic theory
matter of law
the
"[i]f during a
heard on
an
We do not agree.
issue and
there
is no
a party has
legally
as a
been
sufficient
issue," and
the
party's entire
Fed. R.
trial
reasonably to
hospitable
to
the
. . . without a
Civ. P. 50(a)(1).
court "must
inferences
that is
12
"cannot under
In executing
proof and
therefrom in the
.
[and]
to say, the
the
favorable finding
scrutinize the
be drawn
nonmovant .
differential factfinding;
claim
this
the
light most
must refrain
from
court must
`not
consider
the
testimony,
credibility
or evaluate
of witnesses,
the weight
resolve
of the
evidence.'"
1987)).
Because
"the
precisely
the same
court
fashion
conflicts
appeals
as the
Rolon______
of
in
is
district court
. .
in
., and
instant case,
factfinder could
appellant offered
condition.
hotel
had
staircase.
there was
to produce
constructive
The dampness
some evidence
Id. at 77.
___
notice
of
the
hazardous
personality
although
of
profile of
the
hotel
is
been there.
a two-edged
sword;
enhanced
likelihood
discover incipient
substance
of times.
of spillage
and
there
diminished ability
facts also
show that
to
the
is nothing
at
all from
which
rational
juror could
do
more than
guess
about how
long
the
on
13
our decision
in Mas
___
1993).
In Mas, as
___
issue.
There, we
v. United States,
_____________
here, the
have slipped
army
to
the
law of Puerto
affirmed the
lower
defendant
an
court's dismissal
the
of a
claimed to
knew or should
element,
Rico governed
Cir.
In so doing,
527 (1st
commissary
984 F.2d
showing
by
the
we held that
affirmative
have known of
"requires, as an
plaintiff
that
the
a dangerous condition."
So it is here.6
We need go no further.
jury believed that a
the
is no
the liquid
to have
removed it before
Clemente appeared
follows
on the scene.
It
____________________
6Appellant's
reliance
on
Colon
Miranda v. Plaza Las
_______________
__________
1994), takes her one step forward
inexorably,
appropriately
as
night
granted
follows
day,
judgment
as
that
a
the
matter
district
of
law
court
in
the
defendants' favor.
Affirmed.
Affirmed.
________
15