Santillan v. Sharmouj , 289 F. App'x 491 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-16-2008
Santillan v. Sharmouj
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-5167
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 06-5167/07-2952/07-2953/07-2954
ANTONIO SANTILLAN
v.
NASSER SHARMOUJ and ZILA SHARMOUJ
Individually and d/b/a Princesse Cash & Carry
and NASSAR SHARMOUJ, ZILA SHARMOUJ, SAMIRA SHARMOUJ,
Individually and d/b/a Target Tire and Battery,
Appellants No. 06-5167
__________
ANTONIO SANTILLAN,
Appellant Nos. 07-2952/2954
v.
NASSER SHARMOUJ; ZILA SHARMOUJ; SAMIRA SHARMOUJ
__________
ANTONIO SANTILLAN
v.
NASSER SHARMOUJ; ZILA SHARMOUJ; SAMIRA SHARMOUJ,
Appellants No. 07-2953
____________
(continued)
On Appeal From
The District Court of The Virgin Islands
(D.C. Civil Action No. 01-cv-00065)
District Judge: The Honorable Anne E. Thompson
____________
Argued May 6, 2008
____________
Before: RENDELL, FUENTES and CHAGARES, Circuit Judges.
(Filed: July 16, 2008)
____________
Wilfredo A. Geigel [ARGUED]
P.O. Box 25749, Gallows Bay
Christiansted, St. Croix
United States Virgin Islands, 00824
Counsel for Appellants
Nasser Sharmouj, Zila Sharmouj and Samira Sharmouj
K. Glenda Cameron [ARGUED]
Law Office of Rohn & Cameron
1101 King Street, Suite 2
Christiansted, St. Croix
United States Virgin Islands, 00820
Counsel for Appellee
Antonio Santillan
OPINION OF THE COURT
FUENTES, Circuit Judge.
This is an appeal from a jury verdict which determined that the negligent actions of
defendants Nasser Sharmouj ("Nasser") and Zila Sharmouj ("Zila") at a construction site
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resulted in serious and permanent injuries to plaintiff Antonio Santillan (“Santillan”).
The construction site was owned by Zila and overseen by Nasser. The principal issues on
appeal are: (1) whether the jury properly awarded punitive damages against Zila and
Nasser, and (2) whether the District Court properly denied certain of Santillan’s requests
for costs.1 For the reasons below, we conclude that the jury correctly awarded punitive
damages against both Zila and Nasser, and we remand the issue of costs to the District
Court for further consideration.
I.
As we write only for the parties, our recitation of the facts will be brief. Nasser
was hired by Zila, his mother, to construct a building for a new business, the Target Tire
& Battery (“Target”). The Target building was erected on land owned by Zila, who
provided the financing for the project. Zila paid Nasser a salary and authorized him to
oversee all aspects of the construction, including safety, permit application, employment
and purchasing; she paid for the supplies and equipment, as well as for the business
licenses and permits. Neither Zila nor Nasser paid for Workers' Compensation coverage
1
Zila and Nasser raise a host of issues on appeal, arguing that there was
insufficient evidence to support the jury verdict; that the District Court erred by allowing
the jury to award economic damages to Santillan; that Santillan’s economic and medical
experts should have been excluded; and that the District Court erred by allowing the jury
to award punitive damages against Nasser. Because we find all of these contentions to be
without merit, we need not address them. See, e.g., United States v. Salemo, 61 F.3d 214,
216 (3d Cir. 1995); United States v. McCrane, 575 F.2d 58, 59 n.2 (3d Cir. 1978). As we
uphold the jury’s verdict, we need not reach evidentiary issues raised by Santillan on
cross-appeal.
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for the workers hired to construct the Target building. Nasser was not licensed or
qualified as a contractor pursuant to Virgin Islands law.
Zila was also the owner/operator of Princesse Cash & Carry (“Princesse”), a
grocery store on the same property as the new Target building. She worked there 14
hours a day, seven days a week, and was able to observe firsthand the construction of the
Target building.
Santillan is an illegal alien from the Dominican Republic. On June 2, 1999,
Santillan fell and hit his head, resulting in serious injury. There are two versions of how
the accident occurred. Santillan states that he had been hired by Nasser to work at the
construction site several days prior to the accident. On the date in question, he had been
instructed to ride to the top of the building under construction in a forklift, without safety
equipment. While on the building, he was accidentally knocked off the roof by Nasser,
who was moving plywood with the forklift. Santillan fell two stories headfirst onto a
concrete floor.
At trial, Nasser disputed Santillan’s story. He stated that Santillan was a known
alcoholic who had shown up at the construction site the day of the incident looking for
work; Nasser refused to hire him because of his drinking problem, but allowed him to
hang around the site. Nasser claimed that Santillan wandered to the edge of the site and
was urinating in some bushes when he fell down a cliff, sustaining bruises and going into
a fit. Nasser further testified that he poured a bottle of rum on Santillan to try to revive
4
him, then put Santillan in his car and drove him to the hospital.
Nasser dropped Santillan off at a local hospital. He refused to identify himself,
and told the emergency workers that Santillan had been in a fistfight and had then fallen
down drunk in a ditch. It was determined that Santillan’s injuries included a fractured
skull, damage to his temporal and frontal lobes, a broken shoulder, and six broken ribs.
Police were told by Santillan’s cousin that Santillan had been working on the Target
building; discovered scattered tools and a bloody shirt at the construction site; and found
no evidence to substantiate Nasser’s story that Santillan had fallen down in a ditch.
Santillan filed suit against Nasser and Zila in the District of the Virgin Islands. He
alleged that the accident “was directly caused by the negligence of the Defendants.”
(Joint Appendix (“J.A.”) 2.) He also alleged that Nasser poured alcohol on Santillan to
“make it appear that he was drunk;” fled the hospital after dropping Santillan at the
emergency room; “gave false testimony” to the police about what had occurred; and gave
false testimony to the doctors as to how the accident occurred despite the fact that he
“knew or should have know that since [Santillan] was unconscious, it was vital to the
treatment of [Santillan] that a true account be given.” (J.A. 3.) Santillan stated that he
suffered “physical damages, medical expenses, loss of income, loss of capacity to earn
income, mental anguish, pain and suffering, and loss of enjoyment of life” as a result of
the accident. Id. Finally, Santillan alleged that the “actions of the Defendants were and
are so outrageous and done with such callous disregard of the rights and interests of the
5
Plaintiff as to entitle the Plaintiff to an award of punitive damages.” (J.A. 4.)
The case proceeded to trial. A jury found in favor of Santillan and awarded
$528,823 in compensatory damages (for economic loss and medical expenses), as well as
$50,000 in punitive damages against Nasser, and $101,000 in punitive damages against
Zila. Following the verdict, Nasser and Zila filed a Motion for Judgment as a Matter of
Law or, in the alternative, for a new trial, pursuant to Federal Rules of Civil Procedure 50
and 59. The District Court denied the motions in large part, but did rule to set aside the
jury’s award of punitive damages award against Zila. In a separate opinion, the District
Court also determined that Santillan should not be granted many of the costs and fees he
requested.
On appeal, Nasser argues that the District Court erred by not also striking the
punitive damages award against him; Santillan cross-appeals and contends that the
District Court erred by striking the punitive damages award against Zila. Santillan further
appeals the District Court’s decision to deny his request for certain costs and fees. We
will address each issue in turn.2
II.
Pursuant to Virgin Islands law, punitive damages are designed to “punish [a
person] for his outrageous conduct and to deter him and others like him from similar
2
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
6
conduct in the future.” R ESTATEMENT (S ECOND) OF T ORTS § 908 (1).3 Punitive damages
may be awarded for:
conduct that is outrageous, because of the defendant's evil motive or his reckless
indifference to the rights of others. In assessing punitive damages, the trier of fact
can properly consider the character of the defendant's act, the nature and extent of
the harm to the plaintiff that the defendant caused or intended to cause and the
wealth of the defendant.
R ESTATEMENT (S ECOND) OF T ORTS § 908(2). In “determining the amount of punitive
damages, as well as in deciding whether they should be given at all, the trier of fact can
properly consider not merely the act itself but all the circumstances including the motives
of the wrongdoer, the relations between the parties and the provocation or want of
provocation for the act.” Id. at cmt. e. As a result, such “awards are the product of
numerous, and sometimes intangible, factors; a jury imposing a punitive damages award
must make a qualitative assessment based on a host of facts and circumstances unique to
the particular case before it.” TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S.
443, 457 (1993).
We review de novo the jury’s decision to grant a punitive damages award, as well
as the District Court’s decision to strike such an award. Cooper Indus., Inc. v.
Leatherman Tool Group, Inc., 532 U.S. 424, 431 (2001). The “touchstone of appellate
review of punitive damages awards is reasonableness, not exactitude.” Willow Inn, Inc. v.
3
The Virgin Islands have adopted the Restatements of Law as the “rules of
decision.” 1 V.I.C. § 4.
7
Public Service Mut. Ins. Co., 399 F.3d 224, 231 (3d Cir. 2005); see also BMW of North
America, Inc. v. Gore, 517 U.S. 559, 622 (1996).
For the reasons below, we conclude that the District Court was correct to uphold
the jury’s decision to award punitive damages against Nasser, but erred when it struck the
jury’s decision to award punitive damages against Zila.
A.
Nasser argues that the District Court erred when it failed to strike the punitive
damages award against him. Although he cites to a number of cases for the proposition
that “liability in this type of case is sharply limited to cases [of] particularly egregious
behavior,” Appellant’s Br. at 48, he provides no reason why this court should consider his
behavior anything less than “reckless[ly] indifferent to the rights of others,” if not
downright “evil.” R ESTATEMENT (S ECOND) OF T ORTS § 908(2). When the accident
occurred, Nasser – instead of calling an ambulance – placed Santillan in his car, poured
rum over him, left him at the emergency room door, and lied repeatedly about what had
occurred, both to the medical staff at the hospital (who needed the information in order to
treat Santillan) and to the police (in order to cover up the fact that the accident had
occurred at the construction site). As the District Court observed, “Nasser Sharmouj’s
attempts to cover-up the circumstances of the accident could reasonably be considered
outrageous enough to support a punitive damages award against him.” (J.A. 865.)
Consequently, we find that the District Court’s decision to uphold the jury’s award of
8
punitive damages against Nasser was correct.
B.
On cross-appeal, Santillan argues that the District Court erred when it set aside the
punitive damages award against Zila. Punitive damages can properly be awarded against
an employer because of an act by an agent if:
(a) the principal or a managerial agent authorized the doing and the manner of the
act, or
(b) the agent was unfit and the principal or a managerial agent was reckless in
employing or retaining him, or
(c) the agent was employed in a managerial capacity and was acting in the scope of
employment, or
(d) the principal or a managerial agent of the principal ratified or approved the act.
R ESTATEMENT (S ECOND) OF T ORTS § 909. The act committed by the agent must be
“clearly outrageous to justify the vicarious imposition” of punitive damages on the
principal or managerial agent. Chuy v. Phila. Eagles Football Club, 595 F.2d 1265, 1278
(3d Cir. 1979).
In striking the punitive damages award against Zila, the District Court reasoned
that:
First, there was no evidence to suggest that Defendant Zila Sharmouj authorized,
approved or ratified her son’s outrageous conduct. Next, the Court finds no
evidence that Defendant Zila Sharmouj was reckless in employing Defendant
Nasser Sharmouj . . . Reckless conduct is ‘much more than mere negligence: it is
gross deviation from what a reasonable person would do.’
(J.A. 865-66.) The District Court went on to state that because Nasser had successfully
supervised the construction of the Princesse Cash and Carry building, Zila had a good
9
reason to believe that he was capable of taking on this similar task. The District Court
further determined that the acts that took place after the accident occurred – Nasser’s
decision to drive Santillan to the hospital, to pour rum on him, and to lie about the
circumstances of the accident – went beyond the scope of his employment and could not
be attributed to Zila or form the basis of a punitive damages award against her. Finally,
the District Court found that the fact that Zila and Nasser failed to follow safety
regulations at the site set by the Occupational Safety and Health Administration (OSHA)
was “not . . . a sufficient basis for a jury to award punitive damages” because “evidence
of OSHA violations is not negligence per se, but can be considered as evidence of
negligence” and “[n]egligence alone . . . is not a basis for punitive damages.” (J.A. 866.)
On appeal, Santillan argues that it was reasonable for the jury to infer
that Zila had full knowledge that Nasser was constructing the Target building with
immigrant labor; that no safety equipment was being used; that Santillan was on the roof
without protection; and that a forklift was being used to push plywood toward Santillan
two stories up. Appellee’s Br. at 50-51. Santillan further argues that Zila repeatedly lied
on the stand at trial, stating that she had no knowledge of what was going on at the site,
did not know if anyone was in fact working on the site, and was unaware that anyone had
been injured there. Id. For these reasons, Santillan contends that punitive damages were
proper against Zila.
While we agree with the District Court that Nasser’s behavior in attempting to
10
cover up the accident could be considered outside the scope of his employment, we
ultimately conclude that the jury’s decision to award punitive damages against Zila should
be upheld because Zila was reckless in retaining Nasser to oversee the construction of the
Target building pursuant to Restatement (2d) of Torts § 909(b). We do not find
convincing the District Court’s conclusion that Zila could assume Nasser was a capable
foreman because he had built the Princesse Cash and Carry without incident. There is no
evidence on the record to indicate what the conditions were at the construction site for the
Princesse building; the absence of an accident alone is not sufficient proof that the
construction of the Princesse building was conducted in a proper manner.
What is clear from the evidence presented at trial is that conditions at the Target
building construction site were extremely poor: there was no safety equipment of any
kind provided to the workers, the relevant permits from local authorities had not been
secured and Worker’s Compensation coverage was not paid. There was also ample
evidence at trial (via the testimony of Zila’s daughter and other employees) for a
reasonable jury to conclude that Zila was aware of these conditions from the time that the
project commenced through the date of the accident, despite her testimony to the contrary.
This knowledge of the poor conditions, and the decision to continue to employ Nasser as
the manager of the construction site, form the basis of Zila’s liability.
III.
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Following the jury’s verdict, Santillan requested that the District Court award him
$50,418.25 for various costs. After oral argument on the claims, the District Court
awarded Santillan only $10,359.50 for the following items:
Subpoena, interpreter and transcript costs for discovery depositions were denied
regardless of whether the transcripts were used for impeachment purposes at trial.
The expenses of deposition transcripts used as trial testimony were allowed.
Standard subpoena and witness fees have been allowed for plaintiff’s witnesses
who testified at trial including experts.
Hotel and travel expenses for plaintiff’s forensic economist were allowed.
Other costs of photos, documents, photo enlargements, trial interpreters etc., have
been allowed.
(Supplemental Joint Appendix “S.J.A.” 2305.) The District Court denied Santillan’s
remaining requests – including reimbursement for costs associated with depositions,
copying, service of subpoenas and the retention of expert witnesses – finding that they
were“either insufficiently necessary or excessive.” (S.J.A. 2304.) The District Court
indicated that it had relied on both 28 U.S.C. § 1920 and V.I. Tit. 5, § 541 to reach its
decision.
On appeal, Santillan argues that the District Court erred by relying in part on 28
U.S.C. § 1920; he further contends that he is entitled to the remainder of the costs and
fees requested. Our review is for abuse of discretion. Dr. Bernard Heller Foundation v.
Lee, 847 F.2d 83, 88 (3d Cir. 1988).
Prevailing parties in the District of the Virgin Islands who incur certain costs in
12
connection with Virgin Islands territorial claims may be entitled, at the discretion of the
District Court, to reimbursement of those costs pursuant to V.I. Tit. 5, § 541. Figueroa v.
Buccaneer Hotel, Inc., 188 F.3d 172, 183 (3d Cir. 1999). Such parties cannot be awarded
costs pursuant to 28 U.S.C. § 1920 – the federal statute that authorizes reimbursement for
a similar set of expenses – because this statute does not apply in the District Court of the
Virgin Islands. Dr. Bernard Heller Foundation, 847 F.2d at 87. This is because the
District Court of the Virgin Islands does not fall within the definition of “court of the
United States” in title 28 of the United States Code; that definition encompasses only
those courts where judges are “entitled to hold office during good behavior,” 28 U.S.C. §
451, whereas the judges who sit on the District Court of the Virgin Islands have terms
that are capped at 10 years. 48 U.S.C. § 1614(a).
For this reason, it was improper for the District Court in this case to rely in part on
28 U.S.C. § 1920 in reaching its decision about which costs to grant Santillan. Moreover,
there is an insufficient record to determine whether or not the District Court’s decision to
deny Santillan’s additional requests for costs constituted an abuse of discretion. The
District Court stated only that those costs that were not granted were denied as “either
insufficiently necessary or excessive.” (S.J.A. 2304.) Without further explanation, it is
impossible to know whether the District Court was within its discretion to deny Santillan
the costs and fees he requested.
IV.
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For the reasons set forth above, we reverse the District Court’s decision to set
aside the punitive damages award against Zila. We also remand the question of whether
or not Santillan is entitled to the fees and costs requested that were initially denied so that
the District Court can provide a more complete explanation for its decision. On all other
issues, we affirm the District Court.
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