12 V.I. 240 | 3rd Cir. | 1975
opinion of the court
This is an appeal from a judgment entered after a jury verdict. Plaintiffs below, six employees of contractors engaged by Hess Oil Virgin Islands Corp. (“Hess”), were severely burned when a large partially-filled oil storage tank owned by Hess exploded. The explosion occurred while workers from appellant Chicago Bridge & Iron Company, Ltd. (“CB & I”) were welding into place some horizontal foam piping, a safety system which, when installed, was designed to transmit into the storage tanks a
The trial court denied CB & I’s motions for judgment n.o.v. and for a new trial, on the condition that the personal injury plaintiffs file a remittitur of the punitive damages award in the amount of $4,000,000 within thirty days. On August 27, 1974, the plaintiffs filed such a remittitur. CB & I then appealed the judgment of the district court, but on August 6, 1975, subsequent to oral argument before this Court, CB & I reached a settlement with the personal injury plaintiffs in the amount of $6,000,000.00. Consequently, CB & I’s appeal is limited to two issues: (1) whether the judgment in favor of Hess and against CB & I on Hess’ property damage claim should be sustained, and (2) whether the jury verdict absolving Hess of liability in the personal injury plaintiffs’ suit against Hess (thereby making CB & I responsible for the entire recovery) should likewise be upheld.
With respect to both issues, CB & I first contends that the verdict was against the weight of the evidence. In short, it claims that the jury could not rationally have held it liable for Hess’ property damage or have absolved Hess of all liability toward the personal injury plaintiffs. We note at the outset that our standard of review is quite limited and that, as an appellate court, we must view the evidence in the light most favorable to the party which obtained the verdict below. Trent v. Atlantic City Electric
We have carefully considered all of the evidence in this case and, applying the above standard of review, we have concluded that the jury verdict must stand. The evidence is accurately summarized in the district court decision, 379 F.Supp. 1268, and we shall not repeat it here. We believe, however, that a few points deserve mention. First, we see no reversible error in the admission of the testimony of Franklin Bradfield, the Hess superintendent who examined the scene of explosion and who gave his opinion as to its causation.
We also reject CB & I’s contention that the verdict was tainted because of statements made by Hess’ counsel as to “facts” which defendant contends were not in evidence. In particular, CB & I claims that there was no evidence of combustible fumes in the “downcomer”
As a final point on the sufficiency of the evidence question, we must also reject CB & I’s contention that the verdict absolving Hess of liability should be set aside as against the weight of the evidence. CB & I points to evidence that Hess exercised some control over the welding work and thus should have been held liable under § 414 of the Restatement (Second) of Torts. However, we can hardly say that the evidence against Hess was so overwhelming that we must conclude, as a matter of law, that the jury was required to find Hess liable. Given our standard of review of jury verdicts and the right of a defendant to a jury trial, we should not lightly reverse a jury verdict which has absolved a defendant of liability.
CB & I next contends that reversal is required by prejudicial remarks made by counsel for Héss and the personal injury plaintiffs during closing argument. Looking at the closing as a whole (as we are required to do), we do not believe that these scattered remarks, to which CB & Fs trial counsel failed to object, were so prejudicial as to constitute “plain error.” Of the various remarks now claimed to be error, we believe that the only ones having any significant potential for prejudice were those made by counsel for the personal injury plaintiffs referring to CB & Fs size and wealth and to the jury’s role in doing “something for the community” by sending a “message” all the way to Chicago.
Finally, CB & I contends that the judgment should be reversed because the trial court committed plain and reversible error in leaving the disposition of complex factual and legal issues to the jury without full and complete instructions relating the relevant law to the disputed facts. Under Fed. R. Civ. P. 51, however, objections to jury instructions must be raised before the jury retires, and counsel for CB & I never made such an objection here. Although we have recognized that Rule 51 is not binding where a failure to consider the objection on appeal would lead to a “miscarriage of justice,”
The judgment of the district court will be affirmed.
In Bradfield’s opinion, the explosion was caused when a GB & I welder, Burton, struck an arc to begin some welding. He believed that sparks from the welding ignited fumes escaping from a gap in the blind fastened across the mouth of a nearby “downcomer” (a long pipe running from the top of the tank toward the ground, which was part of the foam piping system being installed). The blinding of the downcomers was indisputably CB & I’s responsibility, and Burton admitted having previously loosened one or two of the bolts which fastened that particular blind to the downcomer. Also, a gap in the blind was found after the explosion. Bradfield testified that, in his opinion, the gap could not have been caused by the explosion itself, because there was little evidence of fire damage in the vicinity of the blind.
In addition to this theory of causation, both Hess and the personal injury plaintiffs also offered testimony that the explosion could have been caused by the improper grounding of the welding, which sent an electrical current through the storage tank. We conclude that the evidence was sufficient to sustain the jury’s verdict as to CB & I’s liability under their theory.
At two points (272a and 288a), defense counsel objected that foundations with respect to particular areas of questioning had not been laid. In each case, plaintiffs’ counsel proceeded to lay the foundation, and the questioning continued without further objection. We do not read these objections as being directed toward Bradfield’s qualifications as an expert.
Straub v. Reading Co., 220 F.2d 177 (3d Cir. 1955), on which CB & I relies, is of no help to appellant, since counsel in that case had made timely objections to the repeated use of leading questions. Id. at 181.
See note 1, supra, for an explanation of this term.
While Buchanan’s testimony was both hearsay and was given in response to a leading question, no objection was made.
We also reject as frivolous CB & I’s contention that affirmance here would permit persons who engage in inherently dangerous activities to insulate themselves from liability simply by contracting with a third party and having that party perform the dangerous activities. We are_ not establishing any rule of law permitting Hess to absolve itself of liability. All we are doing is affirming a verdict in which a jury has absolved Hess.
The blinds were flat metal plates fastened across the mouths of the “down-comer” pipes to prevent the escape of combustible fumes. See note 1 supra.
To the extent that this evidence may appear contradicted by other evidence that Hess had the right to stop any work it considered unsafe, resolution of such a conflict was, of course, a matter for the jury.
The most troublesome statement, in our view, was the following:
. . . [B]ut I guarantee if you bring back $6,000,000 for punitive damages we sued for, they will hear the message, it will be heard all the way from Chicago and back and any other company that starts doing business on your island is going to have the message because it will travel like wildfire and when they come down to your island they will have a safe operation.
It is your chance, your opportunity to do something for the community. You owe it to the community and if you fail to do so then that is going to spread like wildfire. And the next one that are hurt, like these gentlemen, they will have to come all the way down here to get justice. (3893a)
CB & I cannot excuse its failure to object by pointing to the trial court’s admonition to counsel not to interrupt the summations of opposing counsel with objections “if it is at all possible.” After summation by plaintiffs’ attorney, and prior to any other summations, the trial court held a discussion in chambers in which CB & I’s trial counsel objected to several comments raised in summation. None of the objections made at that time were to statements pertaining to CB & I’s wealth or foreign status, and defense counsel agreed with the trial judge that none of the remarks he did object to were so prejudicial as to warrant a mistrial (3896a).
While several of the remarks now complained of were not made in connection with the claim for punitive damages, we conclude, after reading the full text of the summations, that those scattered and isolated comments did not constitute plain error.
See the district court decision denying the judgment n.o.v. and a new trial, 379 F.Supp. at 1275_, 1276. While CB & I points to several statements by the trial judge during argument on post-trial motions allegedly recognizing prejudice, those statements are ambiguous, since at least one of them seems to be referring to prejudice created by CB & I’s trial counsel (4233a-5234a). In any event, the district court’s written opinion, which specifically found no prejudice, takes precedence over any prior oral statements by the district judge that are arguably to the contrary.
Hoffman v. Sterling Drug, Inc., 485 F.2d 132, 139 (3d Cir. 1973); Trent v. Atlantic City Electric Co., 334 F.2d 847, 859 (3d Cir. 1964).
Choy v. Bouchelle, 436 F.2d 319, 325 (3d Cir. 1973); McNello v. John B. Kelly, Inc., 283 F.2d 96, 101-02 (3d Cir. 1960).
See, e.g., Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 606 (1894); The Schools v. Risley, 77 U.S. 91, 114 (1870); McVeigh v. McGurren, 117 F.2d 672, 680 (7th Cir. 1940), cert. denied, 313 U.S. 573 (1941); Gardner v. Darling Stores Corp., 138 F.Supp. 160, 162 (S.D.N.Y. 1956), aff’d, 242 F.2d 3 (2d Cir. 1957).
We note further that CB & I in its brief states that the charge entirely ignored whether the activity in which Hess engaged CB & I to perform was ultrahazardous within the meaning of § 520 of the Restatement of Torts. Since the personal injury plaintiffs did not pursue that theory
In particular, we reject CB & I’s contention that the judgment should be reversed because of a “plan” between Hess and the personal injury plaintiffs to place the entire blame on CB & I. There is nothing in the record indicating any impropriety on the part of counsel for the plaintiffs or Hess, and there is certainly nothing inherently improper in one defendant adopting the trial strategy that the other defendant was solely responsible for the accident.