Rosa-Rojas v. Nogama Construction Corporation et al

Filing 123

ORDER denying 104 Motion for Judgment as a Matter of Law. Signed by Judge Jay A Garcia-Gregory on 7/6/2011. (LL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
SARA ROSA ROJAS,
Plaintiff(s)
CIVIL NO. 09-1149 (JAG)

v.
NOGAMA CONSTRUCTION CORP.,
Defendant(s)

OPINION AND ORDER
GARCIA-GREGORY, D.J.

Before

the

Court

are

Nogama

Construction

Corporation‟s

Motion for Judgment as a Matter of Law and Motion for New Trial
and/or Remittitur Pursuant to Rule 59 of the FRCP (Docket No.
104).
PROCEDURAL BACKGROUND
On

November

18,

2008

Roberto

Rosa

Rojas

(hereinafter

“Roberto”), an employee of the Puerto Rico Aqueduct and Sewer
Authority (hereinafter “PRASA”), was charged with transporting
several chlorine tanks to and from the storage and treatment
areas of one of PRASA‟s water treatment plants. He would use a
fingerlift to carry out this duty.

Civil No. 09-1149 (JAG)

2

In the chlorine room, where Roberto was to deposit some of
the chlorine canisters, there was a hole that had recently been
opened during construction work for the ongoing modernization of
the

plant.

The

3‟

x

3‟

hole

had

been

opened

by

Nogama

Construction Corporation (hereinafter “Nogama”) on October 10,
2008 at the request of PRASA. Nogama had been hired by PRASA for
the plant improvements, and the hole was part of the efforts
that were deemed necessary for the installation of a plug below
the chlorine room. The hole led to a 40 foot drop into a water
treatment tank. Nogama covered the hole with a piece of plywood
that had been spray painted red with the warning “Don‟t stand
here”. On top of the plywood lay a six foot ladder wrapped in
orange safety mesh.

These safety measures, or the like, are

referred to in the construction business as a “muñeco”.
On November 11, 2008, once Nogama finished its work in the
area, it surrendered control

of the chlorine room to PRASA.

Nogama left the muñeco in place.
One week after Nogama left the area, Roberto disappeared
after setting off to move the chlorine canisters on November 18,
2008. He was last seen that morning when he came into the office
and

was

charged

with

the

task.

Later

in

the

day,

a

PRASA

employee found Roberto‟s fingerlift, engine on, parked near the
hole in the chlorine room. The hole had been left uncovered, and

Civil No. 09-1149 (JAG)

3

Roberto was nowhere to be seen. A search for Roberto ensued, and
ended at approximately 10:00 PM, when his remains were found by
divers at the bottom of the water treatment tank below.
The
liable

jury

found

respectively

Plaintiffs

Sarah

Defendant
for

Rosa

Nogama

Roberto‟s

(hereinafter

and

death.

PRASA

%90

Roberto‟s

“Sarah”)

and

and

%10

siblings,

Rafael

Rosa

(hereinafter Rafael”) were each awarded $750,000 in damages. The
jury found that Nogama breached its duty of care towards Roberto
by not taking the proper safety precautions with the hole in the
chlorine

room.

The

jury

gave

greater

weight

to

Plaintiffs‟

evidence that the plywood covering the hole was not securely
fastened

to

the

chlorine

room

floor

and

that

as

a

result,

Roberto fell to his death after stepping into the forty foot
drop. The jury also credited Plaintiffs‟ evidence on damages,
consisting of the Plaintiffs‟ own testimony as well as that of
an expert witness, that Roberto‟s siblings suffered damages well
beyond the grief normally expected after the death of a loved
one.
Defendant Nogama now moves the Court

for

Judgment as

a

Matter of Law, or, in the alternative, for a new trial. If all
else fails, Defendant pleads for a remittitur. Plaintiffs have
opposed.
I.

MOTION FOR JUDGMENT AS A MATTER OF LAW

Civil No. 09-1149 (JAG)

4
STANDARD OF REVIEW

Rule 50 of the Fed.R.Civ.Proc. allows a party during a jury
trial to move the Court for entry of judgment as a matter of
law. Such a motion may be granted “[i]f a party has been fully
heard on an issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient evidentiary
basis

to

find

for

the

party

on

that

issue….”

Fed.R.Civ.P.

50(a)(1). If the Court denies the motion, then “[n]o later than
28 days after the entry of judgment … the movant may file a
renewed motion for judgment as a matter of law and may include
an alternative or joint request for a new trial under Rule 59.”
Fed.R.Civ.P. 50(b). “[T]he party renewing a motion for judgment
as a matter of law pursuant to Rule 50(b) „is required to have
moved for judgment as a matter of law at the close of all the
evidence.‟” Taber Partners I v. Insurance Co. of North America,
Inc., 917 F.Supp. 112, 115 (D.P.R. 1996) (quoting Keisling v.
SER-Jobs for Progress, Inc., 19 F.3d 755, 758 (1st Cir.1994)).
It

has

long

been

established

that

whether

the

evidence

presented at trial is sufficient to permit a court to enter
judgment as a matter of law is solely a question of law to be
determined by the trial court. 9B Wright and Miller, Federal
Practice

and

Procedure

§

2523

(3d

ed.

2008).

Granting

such

motion deprives the party opposing it of a determination by a

Civil No. 09-1149 (JAG)
jury

and,

5

therefore,

it

sparingly. Id. at § 2524.

is

to

be

granted

cautiously

and

“Even in the best circumstance, the

standards for granting a motion for judgment as a matter of law
are stringent.” Rivera Castillo v. Autokey, Inc., 379 F.3d 4
(1st Cir. 2004). “The question is not whether there is literally
no evidence supporting the party against whom the motion

is

directed but whether there is evidence upon which the jury might
reasonably find a verdict for that party.” Id.
In reviewing a motion for judgment as a matter of law “the
court

must

draw

all

reasonable

inferences

in

favor

of

the

nonmoving party, and it may not make credibility determinations
or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., 530
U.S. 133 (2000). The court “should give credence to the evidence
favoring the nonmovant as well as that evidence supporting the
moving party that is uncontradicted and unimpeached, at least to
the

extent

that

the

evidence

comes

from

disinterested

witnesses.” Id. (citations omitted). A motion under Rule 50(b)
will not be granted unless “the evidence points so strongly and
overwhelmingly in favor of the moving party that no reasonable
jury

could

have

returned

a

verdict

adverse

to

that

party.”

Rivera Castillo, 379 F.3d at 10-11 (citing Keisling v. SER-Jobs
for

Progress,

Pursuant

to

Inc.,

19

Fed.R.Civ.P.

F.3d
50,

755,

759-60

Nogama‟s

(1st

“motion

Cir.
for

1994).

judgment

Civil No. 09-1149 (JAG)

6

cannot be granted unless, as a matter of law, [Plaintiff] failed
to make a case...” Montgomery Ward & Co. v. Duncan, 311 U.S.
243, 251 (1940).
ANALYSIS
Defendant Nogama argues that Plaintiffs have not proffered
sufficient evidence on any of the elements of this tort suit. In
Defendant‟s own words, it argues that all evidence demonstrates
that

Nogama

properly

secured

the

hole

before

relinquishing

control of the chlorine room to PRASA on November 11, 2008; that
it had no legal duty regarding the safety of the hole after it
left the chlorine room on November 11, 2008; that any alteration
to the safety precautions left in place by Nogama must have been
carried out by PRASA personnel after Nogama left the area, thus
constituting an intervening cause that relieves Nogama from any
liability; and that there was insufficient evidence to permit a
conclusion that Roberto fell through the opening made by Nogama,
and not through another among several holes in the area.
There is sufficient evidence for a reasonable jury to find
that Nogama did not properly secure the plywood covering the
hole in the chlorine room. Though Nogama claims that the plywood
was anchored to the floor with cement nails,
Roberto‟s

direct

supervisor

at

PRASA,

Javier Matías,

testified

otherwise.

Javier Matías, who observed the hole shortly after Roberto‟s

Civil No. 09-1149 (JAG)

7

disappearance, testified that there were no nail holes on the
cement floor surrounding the hole. (Tr. 8/10/2010, 46:13). Ángel
Olmo, another PRASA employee who later that day was able to
observe the area, also testified that there were no nail holes
on the floor surrounding the hole. (Tr. 8/10/2010 124:25, 127:7,
9).

The

testimony

of

either

one

of

these

men,

if

afforded

credibility, would have been legally sufficient to find for the
Plaintiffs on this point. Finally, the clearest picture of the
plywood covering the hole that was brought into evidence, shows
a nail hole in but one of the four corners of the plywood.
(Joint Exhibit I).
The duty to exercise due care comprises the obligation to
foresee and to prevent the occurrence of damages which may be
reasonably foreseen. Elba v. U.P.R., P.R. Offic. Trans. 1990. It
was reasonably foreseeable that in an area where PRASA employees
frequently carried out work tasks, a worker, unaware of the
danger below, might attempt to move the plywood in order to more
easily maneuver inside the chlorine room. Had it taken this into
account,

Nogama

would

have

taken

more

stringent

security

measures with the hole and perhaps, its duty of care would have
ended when its employees left the chlorine room. But this was
not the case. For this same reason, the proposition that PRASA
employees dismantling the muñeco once Nogama left the chlorine

Civil No. 09-1149 (JAG)

8

room constituted an intervening cause, is untenable as a matter
of

law.

There

can

be

no

intervening

cause,

where

the

event

alleged to break the chain of causation is foreseeable. Ginés v.
Autoridad de Acueductos y Alcantarillados, 86 D.P.R. 518, 523
(1962).
Finally, there is sufficient evidence for a reasonable jury
to conclude that it was the hole in the chlorine room, and not
any other opening in the treatment plant, that led Roberto to
his death. Ángel Olmo testified that when he arrived at the
chlorine room area in search of Roberto, he

found

Roberto‟s

fingerlift, loaded with a full chlorine cylinder, parked at the
chlorine

room

entrance,

(Tr.

8/10/2011,

100:10),

near

the

uncovered hole in the ground. (Tr. 8/10/2011, 113:21). Roberto
however,

was

nowhere

in

sight.

Ángel

Olmo

was

the

first

to

conjure the obvious inference; Robert had fallen through the
hole. (Tr. 8/10/2011, 114:10). The jury reasoned likewise, and
this Court will not disturb that conclusion.
For

the

aforementioned

reasons,

the

Court

denies

Defendant‟s Motion for Judgment as a Matter of Law.
II.

ALTERNATIVE MOTION FOR NEW TRIAL AND/OR REMITTITUR
PURSUANT TO RULE 59 OF THE FRCP
STANDARD OF REVIEW

Civil No. 09-1149 (JAG)

9

Rule 59 allows the Court on motion to order a new trial
after a jury trial, “for any reasons for which a new trial has
heretofore been granted in an action at law in federal court…”.
Fed.R.Civ.P. 59(a); See also Oriental Financial Group, Inc. v.
Federal Insurance Company, Inc., 598 F. Supp. 2d 199 (D.P.R.
2008).

The motion for a new trial may invoke the discretion

of the Court in so far as it is bottomed on the claim that the
verdict is against the weight of the evidence, that the damages
are excessive, or that, for other reasons, the trial was not
fair

to

the

party

moving;

and

may

raise

questions

of

law

stemming out of the alleged substantial errors in admission or
rejection of evidence or instructions to the jury. Montgomery
Ward & Co. V, Duncan, 311 U.S. 243, 251 (1940).
The Court may grant a new trial although it has denied the
entry of judgment as a matter of law under Fed.R.Civ.P. 50,
China Resource Products (U.S.A.) Ltd. v. Fayda Intern., Inc.,
856

F.Supp.

856,

862

(D.Del.1994),

or

even

when

substantial

evidence supports the jury‟s verdict, Lama v. Borras, 16 F.3d
473, 477 (1st Cir. 1994). “But this does not mean that the
district

court

should

grant

a

motion

for

new

trial

simply

because the court would have come to [a] different conclusion.”
11

James

Wm.

Moore,

Moore‟s

59.13[2][a] at 59-44 (2003).

Federal

Practice

3D,

12

§

Instead, a new trial “should only

Civil No. 09-1149 (JAG)

10

be granted where a „miscarriage of justice would result if the
verdict

were

overturned,‟

to
or

stand,‟

where

the

the

verdict

verdict

„cries

„shocks

our

out

to

be

conscience.‟”

Smith v. Delaware Bay Launch Service, Inc., 842 F.Supp. 770, 778
(D.Del. 1994) (quoting Cudone v. Gehret, 828 F.Supp. 267, 269
(D.Del. 1993)). A trial court “may set aside a jury‟s verdict
and order a new trial only if the verdict is so clearly against
the weight of the evidence as to amount to manifest miscarriage
of justice.” Rivera Castillo, 379 F.3d at 23 (citing Federico v.
Order of Saint Benedict in Rhode Island, 64 F.3d 1, 5 (1st Cir.
1995). Courts are not allowed to substitute their view of the
evidence for the verdict reached by the jury. Id. at 24.
ANALYSIS
Defendant Nogama also argues that the Jury‟s apportionment
of liability of %90 against Nogama is clearly against the weight
of the evidence and that a new trial is thus required. We find
it is not.
Nogama avers that the evidence at trial established that
before Roberto‟s accident, Nogama left in place a five security
point muñeco covering the hole in the chlorine room; that PRASA
employees partially dismantled the muñeco by removing the mesh
and ladder; that PRASA supervisors allowed their employees to
remove some of the muñeco‟s safety measures; that Nogama was

Civil No. 09-1149 (JAG)

11

never notified that the muñeco

had been tampered with; that

after November 11, 2008 and on the day of the accident it was
PRASA who had control of the chlorine room, and; that it was
PRASA, Roberto‟s employer, who had the duty to provide Roberto
with a safe working environment.
The weight of the evidence supports a jury finding that the
safety measures left covering the hole by Nogama were, to say
the

least,

inadequate

given

the

danger

below.

The

mesh

and

ladder were not attached to the plywood covering the hole; these
two safety elements were more cosmetic than prophylactic. The
relevance

of

the

muñeco‟s

compliance

with

OSHA

regulations,

though a heated topic throughout the testimony of expert witness
Manuel

Ray,

is

largely

overstated.

Compliance

with

safety

regulations does not relieve a party of liability where a higher
standard of care is expected of the reasonable and prudent man.
López v. Porrata Doria, 169 D.P.R. 135, 159 (2006). What the
jury

probably

found

relevant,

and

had

good

reason

to,

was

Engineer Manuel Ray‟s expert testimony that given the extreme
danger involved, he would have covered the hole with a steel
plate secured to the floor with nuts and washers. (Tr. 8/11/2010
32:4-13).

Héctor

Vega,

project

manager

for

Nogama,

also

testified, though in more general terms, that a steel plate was
a safer choice of material. (Tr. 8/13/2010 39:7-13). But even

Civil No. 09-1149 (JAG)

12

beyond the less than best choice of material to cover the hole,
is the fact that the weight of the evidence clearly establishes
that the plywood was not attached to the floor. Not only did
Plaintiff‟s witnesses Javier Matías and Ángel Olmo testify to
this, but Héctor Vega himself saw a Nogama employee attempt to
hammer a cement nail through the chlorine room floor shortly
after

the

accident,

only

to

have

the

nail

bend

and

not

go

through. (Tr. 8/13/2010 49:4-13). Furthermore, Engineer Evelio
Agustín, project manager on behalf of PRASA and also a witness
for the Defendant, admitted that he could not say whether or not
the plywood placed over the hole was attached to the chlorine
room floor. (Tr. 8/13/2010 81:8). Finally, Samuel Jiménez, the
project

foreman

placing

the

for

safety

Nogama,
measures

who
in

was
the

personally
chlorine

involved

room,

in

initially

testified that he could not recall whether nails had been driven
through all four corners of the plywood. (Tr. 8/13/2010 11:18).
Then, while being confronted with a picture of the plywood used
to cover the hole which shows only one nail hole on the plywood
(Plaintiff‟s Exhibit 7), Jiménez was asked again whether the
plywood had been nailed to the cement. He answered and repeated
that the instructions were to fasten the plywood in the corners.
(Tr. 8/13/2010 12,13). The lack of a straight “yes” or “no”
answer, coupled with the other witnesses‟ testimony may have led

Civil No. 09-1149 (JAG)

13

the jury to discredit Jiménez‟s testimony, for what little value
it may have had.
Defendant

Nogama‟s

arguments

that

PRASA

should

be

found

more at fault because it was PRASA employees that tampered with
the

muñeco,

entirely

and

Nogama

unreasonable.

was
They

not

notified

are

of

however

this,

are

not

It

was

unavailing.

Nogama who opened the hole in the chlorine room and failed to
take

the

reasonably

measures

foreseeable

inherent danger
Offic.

Trans.

Alcantarillados,
discussed,

necessary

it

to

damages

protect

that

might

presented by the hole.
1990.;
86
was

Ginés

D.P.R.
entirely

v.
518,

from

all

arise

from

the

Elba v. U.P.R., P.R.

Autoridad
524

others

de

(1962).

foreseeable

that

Acueductos
As

y

previously

workers

would

attempt to move the Muñeco in order to more easily maneuver
within the chlorine room. Furthermore, this legal premise takes
special relevance in the case before us, considering the fact
that Héctor Vega, Defendant‟s own witness, conceded that the
ladder and mesh placed on top of the plywood would have been
entirely unnecessary had they used a fixed metal plate to cover
the hole. (Tr. 8/13/2010 39:5-21). Engineer Manuel Ray was also
of the opinion that the appropriate choice of cover for the hole
was not plywood, but a fixed metal plate. (Tr. 8/11/2010 32:413).

Civil No. 09-1149 (JAG)

14

The Court concedes that PRASA also owed a duty of care to
Roberto to provide him with a safe working environment. The jury
apparently found that PRASA, a water treatment agent not learned
in construction work, discharged the greater part of that duty
by

employing

Nogama,

an

experienced

construction

company,

to

open the hole in the chlorine room, carry out the necessary
works, and afterwards, secure the aperture safely. If Nogama,
the expert in construction safety, thought the plywood to be
sufficient

a

safety

measure,

why

would

PRASA

second

guess?

Though the apportionment of liability of %90 percent against
Nogama and %10 to PRASA may seem misplaced to some, the jury
thought it appropriate. More importantly, it is not against the
weight of the evidence, Federico v. Saint Benedict, 64 F.3d at 5
(1st Cir. 1995).
Defendant

Nogama

also

argues

that

more

fault

should

be

attributed to Roberto because he assumed the risk of injury when
he moved the plywood panel. This argument is not implausible.
But

considering

the

fact

that

when

Roberto

arrived

at

the

chlorine room he may have only encountered a piece of plywood
with

a

faded

(Plaintiff‟s

warning

Exhibit

7;

that

what

testimony

was
of

not

Héctor

easily
Vega

readable
8/13/2010,

51:30), he had no reason to know that attempting to move the
panel

would

plunge

him

to

his

death.

The

Court

remains

Civil No. 09-1149 (JAG)

15

unpersuaded as to this proposition as well; the jury‟s finding
stands.
Finally, Defendant Nogama argues in the alternative that
the evidence on damages is insufficient to sustain the jury
award

of

$750,000

for

each

of

Roberto‟s

two

siblings.

We

disagree. An award of damages can only be remitted if found “so
grossly

disproportionate

to

any

injury

established

by

the

evidence as to be unconscionable as a matter of law.” Koster v.
Trans World Airlines, 181 F.3d 24, 34 (1st Cir. 1999). Plaintiff
Sarah testified of her close relationship with Roberto, (Tr.
8/11/2010, 93:1-10, 96:1-25, 97:1-11), and as to her damages
upon

learning

of

her

brother‟s

death

and

the

circumstances

surrounding it. Sarah testified that she and Roberto spoke of
upcoming joint travel plans the evening before Roberto‟s death,
and that Roberto‟s son was expected for dinner the following
evening

at

her

home.(Tr.

8/11/2010,

85:4-10,

97:17-22).

She

testified of how she fainted upon learning of Roberto‟s death,
(Tr. 8/11/2010, 89:9), and of several nervous reactions that
ensued afterwards. (Tr. 8/11/2010, 99:16-21). She spoke of the
devastation

felt

as

a

brother‟s

remains,

sustained

emotionally

reaction

(Tr.

to

the

8/11/2010,

depressed

macabre

91:7-12),

state

state
and

following

of
of

her
her

Roberto‟s

demise. (Tr. 8/11/2011, 100:5-12). Plaintiff Rafael testified of

Civil No. 09-1149 (JAG)

16

his close relationship to Roberto, (Tr. 8/12/2010, 6:17), how he
broke into tears upon learning of his brother‟s death, (Tr.
8/12/2010,

6:20),

aggravated

ever

suffers

from

and

how

since.

cerebral

his

(Tr.
palsy,

blood

pressure

8/12/2010,
also

problems

7:9-11).

testified

of

have

Rafael,
how

he

who
grew

particularly close to his brother and looked up to Roberto, who
throughout his youth looked to accommodate his incapacity. (Tr.
8/12/2010, 8, 9:8-11). Rafael also testified of his children‟s
close

relationship

with

Plaintiffs

also

Dr.García,

who

emotional

damages.

psychologist,

Roberto.

proffered
rendered

a

Dr.

testified

of

the

(Tr.

8/12/2010

testimony

report

on

García,

expert

Plaintiffs‟

an

Roberto‟s

of

9:15-23).

mental

experienced

close

witness

childhood

and

clinical
bond

to

Plaintiff Sarah, (Tr. 8/12/2010, 103:21-25, 104:1-23), and to
Plaintiff

Rafael.

(Tr.

8/12/2010,

106:1-15).

Dr.

García

also

testified of how Plaintiffs have been attempting to cope with
the traumatic grief that afflicts them as a result of Roberto‟s
mysterious, sudden and gruesome death. (Tr. 8/12/2010, 110:1922).

Dr.

García

spoke

specifically

of

Plaintiff

Sarah‟s

obsessive and haunting thoughts regarding the manner in which
Roberto died, (Tr. 8/12/2010, 112:14-20), and of how Plaintiff
Rafael also suffers from traumatic grief from the circumstances
surrounding the loss of his brother and childhood caretaker.

Civil No. 09-1149 (JAG)

17

(Tr. 8/12/2010, 117:8-25). Finally, Dr. García testified as to
the need of both Plaintiffs for psychiatric attention to treat
the depression and anxiety that they both suffer as a result of
their

brother

Roberto‟s

mysterious,

unexpected

and

ghastly

death. (Tr. 8/12/2010, 118).
The defense offered no evidence on damages, to rebut that of
Plaintiffs‟.

Plaintiffs

Sarah

and

Rafael

were

not

cross-

examined. Dr. García‟s cross-examination covered the methodology
of the Doctor‟s examination of the Plaintiffs, the dates of the
interviews and the compensation received by Dr. García, but did
not

go

to

the

substance

of

his

testimony.

The

evidence

of

damages is more than sufficient; it is abundant. This Court has
seen lower awards for damages in wrongful death suits, but the
amount here is far from what would be proper for us to remit.
Whitfield v. Melendez-Rivera, 431 F.3d 1, 15-16 (1st Cir. 2005).
We will not disturb the jury‟s conclusion here either.
CONCLUSION
For

the

reasons

stated

above,

the

Court

hereby

DENIES

Nogama‟s Renewed Motion for Judgment as a Matter of Law and
Motion for New Trial and/or Remittitur Pursuant to Rule 59 of
the FRCP.

IT IS SO ORDERED.

Civil No. 09-1149 (JAG)

18

In San Juan, Puerto Rico, this 6th of July, 2011.

S/ Jay A. García-Gregory
JAY A. GARCÍA-GREGORY
United States District Judge