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USCA1 Opinion
[Not for Publication]
United States Court of Appeals
For the First Circuit
____________________
No. 96-1166
WILLIAM LECLAIRE AND MICHELLE LECLAIRE,
Plaintiffs, Appellants,
v.
BLACKSTONE VALLEY ELECTRIC COMPANY,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge] ___________________
____________________
Before
Selya, Circuit Judge, _____________
Aldrich, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
____________________
Mark L. Smith for appellants. _____________
James A. Ruggieri with whom Higgins, Cavanagh & Cooney was on _________________ __________________________
brief for appellee.
____________________
December 18, 1996
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STAHL, Circuit Judge. Plaintiffs-appellants STAHL, Circuit Judge. _____________
William and Michelle Leclaire commenced this diversity action
against defendant-appellee Blackstone Valley Electric Company
("BVE") alleging negligence that led to injuries from
electrocution.1 Leclaire appeals the district court's grant
of BVE's motion for judgment as a matter of law and its
denial of his motion for new trial. Addressing each ruling
in turn, we affirm.
I. I. __
Judgment As a Matter of Law Judgment As a Matter of Law ___________________________
At the close of Leclaire's case in chief, the
district court granted BVE's motion for judgment as a matter
of law, pursuant to Fed. R. Civ. P. 50(a). The court ruled
that Leclaire failed to offer evidence from which a jury
could reasonably find that BVE's alleged negligence caused
Leclaire's injuries. On appeal, Leclaire presses his
contention that a jury could reasonably find that BVE
____________________
1. For simplicity, and because Michelle Leclaire's claims
are derivative of those of William Leclaire, we refer to the
appellants collectively as "Leclaire."
We note also that Leclaire initially joined E.W.
Audet & Sons, Inc. ("Audet"), originally a party-defendant,
in this appeal. Leclaire conceded at oral argument before
this court, however, that he failed to produce evidence to
establish any negligence on the part of Audet. Accordingly,
on November 8, 1996, we ordered this appeal dismissed as to
Audet. While the case proceeds as to BVE only, Audet is
entitled to costs on appeal pursuant to Fed. R. App. P. 39.
negligently installed an electrical wire, leading to the
accident which caused his injuries.
A. Standard of Review ______________________
We review de novo the grant of a motion for __ ____
judgment as a matter of law. Andrade v. Jamestown Hous. _______ _______________
Auth., 82 F.3d 1179, 1186 (1st Cir. 1996); Bates v. Shearson _____ _____ ________
Lehman Bros., Inc., 42 F.3d 79, 81 (1st Cir. 1994). The __________________
motion is properly granted when the evidence and inferences
reasonably drawn therefrom, viewed most favorably to the non-
movant, permit only one reasonable conclusion. Resare v. ______
Raytheon Co., 981 F.2d 32, 34 (1st Cir. 1992). In this ____________
analysis, "we may not consider the credibility of witnesses,
resolve conflicts in testimony, or evaluate the weight of the
evidence." Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir. _________ _____
1987).
Nevertheless, the non-movant's evidence "must
comprise more than fragmentary tendrils: a mere scintilla of
evidence is not enough to forestall a [judgment as a matter
of law], especially on a claim or issue as to which the
burden of proof belongs to the objecting party." Fashion _______
House, Inc. v. K mart Corp., 892 F.2d 1076, 1088 (1st Cir. ___________ ____________
1989). The non-movant "may not rely on conjecture or
speculation, rather the evidence offered must make the
`existence of the fact to be inferred more probable than its
nonexistence.'" Richmond Steel, Inc. v. Puerto Rican Am. ____________________ ________________
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Ins. Co., 954 F.2d 19, 22 (1st Cir. 1992) (quoting Carlson v. ________ _______
American Safety Equip. Corp., 528 F.2d 384, 386 (1st Cir. ____________________________
1976)).
With these principles in mind, we review the trial
evidence in the light most favorable to Leclaire.
B. Facts _________
On April 27, 1994, William Leclaire sustained
severe injuries when a piece of aluminum coil that he was
holding struck an aerial primary-distribution wire carrying
some 8000 volts of electricity. At the time of the accident,
Leclaire, an experienced vinyl and aluminum siding installer,
was applying aluminum trim to a three-story residential
building on Chester Street in Woonsocket, Rhode Island. He
was working on an aluminum staging unit that he had erected
in order to reach the top story. The staging unit, which
Leclaire had placed approximately one foot from the front of
the house, extended approximately fifty-six inches in the
direction of several wires attached to two utility poles.
Working from right to left along the front of the
house, Leclaire, without incident, installed beneath the roof
line two segments of aluminum trim, each approximately nine-
feet six-inches in length. He was situated near the left
side of the house when the accident occurred. As he turned
to install the third and last segment, the aluminum trim came
into contact with the primary-distribution electrical wire,
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the top wire running between the two poles. The ensuing
electrical shock threw Leclaire some twenty-five feet to the
ground, leaving him with a broken back and severe burns.
BVE had upgraded the electrical service in the
Chester Street area in late 1987 or early 1988. The upgrade
project included the installation of new utility poles and
hardware to which several electrical wires were to be
attached. BVE's engineering department provided the
specifications to its installation subcontractor for the
placement of the primary distribution wire. For the upgrade
project, BVE's design operated under the accepted standards
of the National Electrical Safety Code, which required that
wires such as the primary distribution wire be placed at
least five feet (sixty inches) from buildings.
At the time of the upgrade, a wooden device called
a "cross-arm," attached to the top of a utility pole, could
have provided extra clearance between the wires and the
adjacent structures. Although the upgrade specifications did
not call for the use of a cross-arm, BVE's engineering
department would, on occasion, authorize a deviation from its
usual specification to allow for a cross-arm in order to
satisfy the five-foot standard. The specifications did
authorize the use of a special "MIF" bracket, if necessary,
in order to meet the five-foot standard.
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Following the accident, Robert Mowry, a BVE crew
chief, located a burn mark on the wire, across from the left
side of the house, where the aluminum trim segment had come
into contact with it. Mowry found the distance from the burn
mark to the point of the house closest to the wire to be
sixty inches. At a later date, James O. Corriveau, a witness
for Leclaire, measured the distance from the wire to the
house at both the extreme right and left sides of the house
front. Corriveau found that the wire was "roughly around"
fifty-three to fifty-four inches from the right side, and
"around sixty-two inches, somewheres around there" from the
left.2
Leclaire's expert witness, Donald W. Zipse,
testified that because the wire failed to meet the five-foot
standard on the right side of the house, the wire was not
safely installed. Zipse conceded, however, that at each
point where the wire was five feet or more from the house, it
did satisfy the clearance standard. Zipse further testified
that, in 1987 or 1988, he had on one occasion installed an
insulated version of an aerial primary distribution wire
similar to the one on Chester Street. He did not testify
why, when or where he used the insulated wire, nor did he
____________________
2. Corriveau also testified that, at the extreme left-hand
side of the house, the wire was some forty inches below the
roof line.
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explain under what circumstances insulated wires would or
should be used.
C. Discussion ______________
At trial, Leclaire attempted to establish that
BVE's placement of the electrical wire violated the five-foot
clearance standard of the National Electrical Safety Code.
On the Rule 50(a) motion, the district court found that the
only evidence tending to show that BVE had failed to meet any
applicable standard of care was the clearance shortfall
located on the right side of the house, well away from the
contact point between the aluminum strip and the wire. The
uncontroverted evidence established, however, that the
distance between the house and the contact point was five
feet. Because Leclaire did not prove that the failure to
meet the clearance standard at a different point caused the
accident, the court granted BVE's motion for judgment as a
matter of law.
Upon careful review of the record, we agree that
there is no evidence from which a jury could rationally find,
by a preponderance of the evidence, that the failure to meet
the clearance standard at the right side of the house caused
or contributed to the accident at the left, where the
standard was shown to have been satisfied. The absence of
such evidence precludes Leclaire from prevailing on a
negligence claim based on a violation of the clearance
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standard. See Radcliffe v. Haun, 593 So. 2d 824, 826 (La. ___ _________ ____
Ct. App. 1992) (finding no evidence of causation where
electric company's power-line clearance infractions occurred
at points other than plaintiff's location when he was
injured), writ denied, 599 So. 2d 313 (La. 1992); see also ____ ______ ___ ____
Kennedy v. Tempest, 594 A.2d 385, 388 (R.I. 1991) (explaining _______ _______
that a plaintiff in a negligence action must establish not
only duty and breach, "but also that the defendant's
negligence was the proximate cause of the plaintiff's
injury"); Schenck v. Roger Williams Gen. Hosp., 382 A.2d 514, _______ _________________________
517 (R.I. 1977) (explaining that a verdict for plaintiff in
negligence action absent competent evidence establishing a
causal connection would only "be based on conjecture and
speculation").
Leclaire does not dispute this conclusion as a
matter of law or logic; he argues, instead, that the jury was
free to disregard Mowry's testimony that the clearance at the
point of contact was sixty inches. It is clear, however,
that in the context of a Rule 50(a) motion, "a bare assertion
that the opposing party's uncontroverted evidence might be
disbelieved is insufficient to resist judgment as a matter of
law on an issue as to which the party resisting judgment
bears the burden of proof." Favorito v. Pannell, 27 F.3d ________ _______
716, 721 (1st Cir. 1994) (upholding grant of Rule 50(a)
motion where non-movant "relied entirely on the totally
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unsupported speculation that a jury might disbelieve [a
witness's] uncontroverted testimony"). This rule has no less
application where, as here, the party resisting judgment
introduced the uncontroverted evidence.
In a related vein, Leclaire asserts that, on a
motion for judgment as a matter of law, the district court
must consider only evidence favorable to him, and thus, it
should have disregarded entirely Mowry's testimony
establishing the five-foot clearance at the point of the burn
mark. Leclaire's argument misconstrues the law. While the
district court (and this court on review) must view the
evidence in the light most favorable to the non-movant, the
analysis does not necessitate the complete disregard of
uncontroverted evidence that happens to be unfavorable to
that party. See Layne v. Vinzant, 657 F.2d 468, 472 (1st ___ _____ _______
Cir. 1981) ("[W]hile, on a defendant's motion [for judgment
as a matter of law], it is axiomatic that the evidence is to
be viewed in the light most favorable to the plaintiff, the
`field of vision' encompasses, to a degree, uncontradicted
evidence introduced by the defense.").3
____________________
3. Leclaire cites Samuels v. Hood Yacht Sys. Corp., 70 F.3d _______ ______________________
150, 152-53 (1st Cir. 1995), to support his claim that he
should not be bound by his witness's unfavorable testimony.
In Samuels, plaintiffs' witness testified ambivalently both _______
in favor of and adverse to the plaintiffs' case Id. at 152. ___
We reversed the district court's directed verdict, explaining
that the plaintiffs "were not bound by their expert's
reversal," but rather, "a witness may be believed in part and
disbelieved in part . . . [w]here [the witness] was self-
-9- 9
In the alternative to his argument that the jury
could disbelieve Mowry's testimony, Leclaire highlights
evidence that, he claims, reasonably conflicts with the five-
foot measurement. Specifically, Leclaire asserts that
because the wire was short of the standard on the right side,
but exceeded the standard on the left, the jury could have
found that the distance from the contact point was less than
five feet. We disagree. Leclaire presented only rough
measurements coupled with his approximate location (as he
held the nine-foot six-inch aluminum trim segment), some two-
thirds down towards the left side of the house, at the time
of the accident. He did not provide, with any specificity, a
measurement of the burn mark location as between the right
and left sides of the house. Finally, he introduced no
testimony to assist the jury in making any mathematical
calculation to support the asserted fact. A jury finding
cannot be based on this type of unguided reasoning, and on
this state of the evidence, a jury could not reasonably find
that the wire was less than five feet from the house at the
point of contact.
Leclaire finally argues that the jury could have
found that BVE breached a duty independent of the clearance
standard. To this end, he asserts that "common sense"
____________________
contradictory." Id. at 152, 153 (citation omitted). The ___
absence of such self-contradiction here renders Samuels _______
inapposite.
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dictates that BVE should have foreseen that the Chester
Street residence would require periodic maintenance such as
siding, and thus, BVE should have insulated the primary
distribution wire, or placed the wire farther from the
building. The evidence presented, however, would not support
a finding of negligence on this theory.
Under Rhode Island law, it is well-established that
"a reasonable and legitimate inference that someone was
negligent is not necessarily warranted by the mere happening
of an accident." Montouri v. Narragansett Elec. Co., 418 ________ ______________________
A.2d 5, 9 (R.I. 1980). Rather, the plaintiff must produce
sufficient, competent evidence of the essential elements of a
negligence claim, including the defendant's duty to the
plaintiff and the breach of that duty. See id. at 9-10; ___ ___
Radigan v. W.J. Halloran Co., 196 A.2d 160, 163 (R.I. 1963) _______ _________________
("In every instance before negligence can be predicated of a
given act, back of the act must be sought and found a duty to
the individual complaining, the observance of which duty
would have averted or avoided the injury" (quotation and
citation omitted)). While Rhode Island courts recognize that
companies distributing electricity must exercise great care
in their operations, see Rott v. Blackstone Valley Gas & ___ ____ _______________________
Elec. Co., 106 A.2d 251, 255 (1954), the evidence presented _________
must be sufficient to allow a finding that BVE failed to
exercise such a degree of caution in this case.
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Leclaire did not produce evidence sufficient to
prove that BVE negligently failed to insulate the primary
distribution wire. In Rhode Island "there is no absolute
duty to insulate wires carrying electricity." Rott, 106 A.2d ____
at 254. In Rott, the plaintiff claimed that he informed the ____
electric company that high tension wires were interfering
with a construction project, but the company took no steps to
diminish the danger. Id. at 253. The court held that, under ___
the alleged facts, a duty to insulate high tension wires
could arise "by reason of special circumstances" of which the
defendant had knowledge. Id. at 254. Here, no such ___
circumstances were shown. Leclaire did not show that BVE had
knowledge of his siding project on Chester Street; indeed,
Leclaire admitted that, although he had previously informed
electric companies when wires interfered with his work, he
failed to do so here. Moreover, as indicated above, the
expert Zipse's unembellished testimony that he once used an
insulated wire in 1987 or 1988 is utterly unhelpful in this
regard.
Leclaire also failed to show that BVE violated some
duty to place the wire farther away from the Chester Street
residence. The evidence that special brackets or cross-arms
were available to satisfy the five-foot clearance standard
does nothing to prove that BVE violated a duty to exceed that ______
standard through the use of those alternatives. No witness
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opined that the five-foot standard was inadequate, nor was
there evidence even hinting at what a specific "appropriate"
distance from the house would have been. On the contrary,
abundantly clear from the record is Leclaire's attempt to
establish negligence based on the violation of the five-foot
standard. We are unpersuaded by his endeavor to fashion a
different theory of negligence from the evidence.
II. II. ___
Motion For a New Trial Motion For a New Trial ______________________
Leclaire appeals the district court's denial of his
motion for a new trial, purportedly sought under the
authority of Fed. R. Civ. P. 50(c)(2). He advances no
arguments other than those which we have already found
unavailing. Thus, assuming but not deciding that a Rule
50(c)(2) motion for new trial will lie where, as here, a case
has not gone to the jury,4 we find no abuse of discretion in
the district court's denial of the motion.
III. III. ____
Conclusion Conclusion __________
For the foregoing reasons, the judgment of the
district court is affirmed.
Costs to appellees. Costs to appellees. ___________________
____________________
4. The advisory committee's note to the 1963 amendment of
Rule 50 suggests that relief under subsection (c)(2) is
limited to a verdict-winner who loses on a renewed motion for ______________
judgment as a matter of law. Fed. R. Civ. P. 50 advisory
committee's note.
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Document Info
Docket Number： 96-1166
Filed Date： 12/19/1996
Precedential Status： Precedential
Modified Date： 9/21/2015