Unpublished Disposition, 927 F.2d 609 (9th Cir. 1980)

No. 88-15591.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Northern Mariana Islands, Appellate Division, No. DCA-84-9014; Duenas and Waters, District Judges, and Hefner, Designated Judge, Presiding.

AFFIRMED.

Before BEEZER and KOZINSKI, Circuit Judges, and KLEINFELD, District Judge.^* 

MEMORANDUM^** 

1. This appeal is properly before us. In Wabol v. Villacrusis, 908 F.2d 411 (9th Cir. 1990), we held that the Commonwealth of the Northern Mariana Islands had no power to "divest this court of jurisdiction over appeals properly filed from a final order of the appellate division of the district court entered before the passage of the [Commonwealth Judicial Reorganization Act of 1989]." Id. at 419. Because plaintiff's appeal was filed before passage of the Act, we retain jurisdiction.

2. Plaintiff, a security guard, was shot and injured by an unknown assailant. He argues that because his employer did not train him to use a gun or supply him with bullets, his employer is liable for the injuries. As a threshold matter, plaintiff must be able to show that he would not have been injured "but for" defendant's allegedly negligent conduct. Thus, plaintiff must show that had defendant supplied him with bullets and training, he would have avoided injury.

Plaintiff's own account of the matter makes it clear that he failed to establish "but for" causation:

The plaintiff look [ed] out the door of the guard shack to find an individual with a shirt or some other material over his head holding one hand behind him. The person demanded the plaintiff's gun twice and then a third time informed the plaintiff that he would shoot. The plaintiff then turned to reach into the desk drawer within the security shack to procure the pistol he was issued. He then turned to the entrance of the guard shack and was shot by a .410 gauge shotgun just as he returned to the door.

The plaintiff first saw the assailant's gun a brief moment before he was shot.

Brief of Appellant at 7 (citing Tr. 6, 7, 24, 25, 27, 59, 42, 43) (emphasis added). According to plaintiff's own testimony, he would have had no opportunity to draw a gun and shoot, even if he had been armed and trained. Defendant's failure to provide him with training and bullets therefore did not contribute to plaintiff's injury. There was no other evidence, as the assailant was never apprehended and no one else was present. Based on this record, the appellate division properly ordered entry of judgment for defendant.

AFFIRMED.

KLEINFELD, District Judge, concurring in part and dissenting in part.

I concur in section 1 of the majority opinion, regarding jurisdiction.

I respectfully dissent from section 2 of the majority opinion, regarding the merits.

It was a surprising verdict, at least so far as the cold record suggests, but it was a jury verdict, and we should give it more deference than we do. The crux of the opinion, lack of any evidence from which a jury could find proximate cause, was not the focus of the appeal. Saipan Stevedoring argued that the criminal conduct of a third party was a superseding intervening cause, a quite distinct theory. Saipan Stevedoring relied mainly on the argument that the trial court erroneously admitted certain testimony. The jury could have adopted the majority's theory on the evidence it had, but it could also reasonably conclude that Saipan Stevedoring should not have put a night watchman where Gioda was, alone, without a gun or bullets.

Gioda was a security guard employed by Saipan Stevedoring. He was shot and injured the night of June 19, 1980, just a few weeks after he was hired. Gioda sued his employer in the District Court for the Northern Mariana Islands, Trial Division, on the theory that, although Saipan Stevedoring armed him with a gun, it negligently failed to provide him with the bullets and the training he needed to protect himself.

The case went to trial, and the jury decided in favor of Gioda. The jury answered "no" to a special interrogatory, asking whether "Gioda had problems with unidentified third parties." This special interrogatory was provided in response to the defense theory, that Gioda was shot because of a personal dispute having nothing to do with Saipan Stevedoring.

We are not permitted to defer to the Appellate Division. Our review of its decision must be de novo, under People of the Terr. of Guam v. Yang, 850 F.2d 507, 511 (9th Cir. 1988).

The trial judge's decisions with regard to admission of lay opinion evidence cannot be disturbed absent clear abuse of discretion. United States v. Barrett, 703 F.2d 1076, 1086 (9th Cir. 1983). Likewise, the trial judge's decisions on relevancy of evidence are matters for his exercise of discretion, and cannot be reversed unless inconsistent with substantial justice. The trial judge and jurors in the Northern Mariana Islands plainly know much more than we do about those details of life and work there which make facts more or less probative of the propositions at issue in the trial.

Here are the questions and answers which the Saipan Stevedoring argues should not have been permitted. Mr. Cushnie was questioning his client Mr. Gioda:

"Q. Assuming that you had received the training in the use of the firearm as well as bullets for the firearm, what would you have done that evening?

A. I believe if I have bullet with me that night I could prevent myself also from difficulty.

Q. What would you have done?

A. Well, I could also use the pistol, the thing like what he did to me."

Saipan Stevedoring characterizes these questions as calling for an opinion, based on speculation, from a non-expert witness.

Federal Rule of Evidence 701 provides that lay testimony in the form of opinions and inferences is limited to those:

which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact and issue.

The notes of the advisory committee with regard to Federal Rule of Evidence 701 indicate that the advisory committee accepted the argument by Professor Wigmore, at 7 Wigmore on Evidence Sec. 1919, that the distinction between fact and opinion was illusory. The rule instead focuses upon whether the witness' testimony is rationally based on his perceptions, and is helpful.

Mr. Cushnie's first question to his client, Mr. Gioda, built in an assumption, that Mr. Gioda had received training, which was not the case, so Mr. Gioda could not say, based upon his own perceptions, how his conduct would have differed if he had training. The problem with the question was that it required Mr. Gioda to tell how training which he had not had would have changed his conduct. If Mr. Gioda had testified to the effect that, "Had I been trained, I would have shot my attacker," then admission of the question about how he would have behaved if he had had training might arguably have mattered.

Mr. Gioda's answer, however, made it clear that it was not absence of training, but absence of bullets, which limited his conduct. He said, somewhat euphemistically, that if he had had a bullet, he would have shot his attacker. Thus any error in permitting the portion of the question about training was harmless. For Gioda to say that if he had had bullets, he would have shot his attacker, he did not need to know anything about the training, and it would have been obvious to the jury that he was not talking knowledgeably about the training he had not had. The only perception he needed for his response was a perception of his own emotions, one which he was eminently qualified to make. Mr. Gioda was competent to give an opinion as to whether he was a sufficiently aggressive individual to shoot his attacker.

This set of questions and answers was reasonably found by the trial judge to be "helpful to ... the determination of a fact and issue." The "fact and issue" was whether it had made any difference that Mr. Gioda was stationed as an armed guard without any bullets for his gun. If the jury believed that Mr. Gioda was a gentle fellow, disinclined to shoot anybody even if threatened with a gun, then the jury might reasonably determine that placing him in the position without bullets made no difference to the outcome, which is to say, no proximate cause. Mr. Gioda was entitled to expose the aggressive side of his personality to the jury, so that it could evaluate his credibility in claiming that he would have shot his attacker, and determine whether Saipan Stevedoring's conduct in putting him out on the dock at night without bullets proximately caused his injury.

Saipan Stevedoring next argues that the attack on Gioda was, as a matter of law, a an unforeseeable intervening cause, so the trial judge should have directed a verdict for defendant. The test we must apply to this issue is quite deferential to the jury verdict, and requires us to uphold the verdict unless the evidence taken as a whole, viewed most favorably toward the prevailing party, could support only one reasonable conclusion, contrary to the verdict returned. William Inglis Etc. v. ITT Continental Baking Co., 668 F.2d 1014, 1026-1027 (9th Cir. 1982), cert. den. 459 U.S. 825. Foreseeability of the criminal conduct by a third person is the issue. Restatement 2d, Torts Secs. 435, 448, 449, 302B.

Foreseeability in this case is a question on which reasonable people could, and the jury did, take a view different from that of the defendant. True, the police chief testified that Charley Dock, where Gioda was shot, was regarded as safe by the police department, and no other similar incidents had happened there for many years. But the police chief also testified that a the villages of Tanapag, adjacent to Charley Dock, and Garapan, within which Charley Dock was located, are high crime areas. On this evidence, a jury could decide that the peacefulness of Charley Dock during previous years had been a matter of good luck, or guards with bullets. A jury might also infer from Saipan Stevedoring's decision to spend money on night watchmen that it thought crime was a substantial risk to its operations there.

Saipan Stevedoring next argues that, as a matter of law, failure to provide bullets and training to Gioda could not give rise to liability, because neither was available between the time of his hire and a time subsequent to the shooting. Commonwealth law restricted bullets to those who had training. Training was given at periodic intervals, and there were no available sessions between the date of Gioda's hire and the shooting. The jury, though, could have decided that until Gioda was trained and provided with ammunition, he should not have been put out on Charley Dock at night.

Saipan Stevedoring attacks a number of jury instructions, but the trial court has "broad discretion" in formulating instructions, and we think the instructions on each element of the case were sufficient to ensure that the jury fully understood the issues. Hasbrouck v. Texaco, Inc., 830 F.2d 1513, 1522-1523 (9th Cir. 1987), modified at 842 F.2d 1034. The defense theory was that Gioda had been shot because of some personal quarrel of his, having nothing to do with Saipan Stevedoring. The trial judge gave Saipan Stevedoring the instructions it needed to put this theory before the jury. The verdict form asked the jury, "Do you find that plaintiff Michael Gioda had problems with unidentified third parties?" The jury said no. They were told that if they said yes, then they should answer this question: "Which of the following was the proximate cause of plaintiff Michael Gioda's injuries? (1) Defendant's negligence; (2) third parties as intervening cause?" They did not reach this latter question, because they answered "no" to the question, whether Gioda had "problems with unidentified third parties." With this verdict form, Saipan Stevedoring had a fair opportunity to persuade the jury of its defense theory, but the jury was not persuaded.

The trial was fair enough, and the errors claimed were either harmless or actions within the discretion of the trial court. Though the jury verdict may be surprising on the evidence before them, I cannot say, after the case has gone through jury trial to verdict, that it was outside the bounds of what a reasonable jury could find.