Lisa J. Girden v. Sandals International

Plaintiff Lisa J. Girden appeals from a judgment entered on February 22, 2000 in the United States District Court for the Southern District of New York (Knapp, J.), dismissing her complaint following an unfavorable jury verdict. In her complaint plaintiff alleged she was sexually assaulted by a hotel employee, defendant David Titus, while on vacation at a Caribbean resort owned and operated by defendants Sandals Resorts International, Sandals Group, Sandals Antigua, Andrew E. Holm, Ltd., and Dickenson Bay Hotel Management. On appeal she contends the district court's jury instruction improperly required that for the jury to impose liability on defendants it had to believe her trial testimony to the exclusion of her contemporaneous accounts of the assault, which described the events quite differently.

For purposes of admissibility it is not required that a witness's account of an event be consistent with the same witness's other accounts of the same event. A witness may say one thing on one occasion and because of human fallibility speak differently about the same event later. Which version is believed is for the jury, not the judge, to decide. The right of the jury to disbelieve an earlier version in favor of a later one, in whole or in part, does not by itself make the earlier version irrelevant. Because the trial court's instruction to the contrary was in error, we vacate the judgment and remand the case for a new trial.

BACKGROUND

Facts

In August 1996 plaintiff Girden went with her then fiancé, David Wittenberg (now her husband), to the island of Antigua in the Caribbean for a week's holiday. They stayed at a friend's condominium. Before going on this holiday plaintiff had read about defendant Sandals Resorts International, a hotel chain, in print advertisements in the New York Times and learned that Sandals offered its guests a wide variety of water sports. While in Antigua on August 28, Girden's 37th birthday, plaintiff and her fiancé went to spend the day at defendant's resort. They paid $150 for day passes entitling them to use all the resort's facilities from 10 a.m. to 6 p.m. This included water sports, lunch, use of the tennis courts, hot tubs, windsurfing, etc.

After lunch that day, while her fiancé was scuba diving, Girden went to take a windsurfing lesson. The resort staff directed her to defendant David Titus, a resort employee on the water staff, who told her the wind was too strong for windsurfing. He said he would teach her instead to sail a sunfish. During the lesson, Titus navigated the small nine-foot long, three-foot wide boat, built to hold two people, out into the open sea. They went far enough so they were out of sight of other people engaging in water sports. At that point, according to Girden, Titus sexually assaulted her.

During the assault Girden complained to Titus of severe cramps due to a pre-existing abdominal condition ­- known as ulcerated colitis ­- that, she asserted, was triggered by the assault. Girden finally convinced Titus to return the boat to shore by explaining her condition to him and by promising not to report the incident. Once back on shore, Girden waited for her fiancé to return from scuba diving, and then reported the incident to Ruth Horsford, a manager at the Sandals Antigua hotel. At management's request, she also faxed the hotel the next day a written account of the incident, just before she left Antigua. A week after the assault, in a letter dated September 5, 1996, Titus was fired by defendant Sandals Antigua for "immoral conduct."

In July 1997 Girden filed the instant lawsuit in New York State Supreme Court against Sandals Resorts International and Titus, seeking $10 million in damages resulting from the alleged sexual assault, citing her emotional trauma as well as the exacerbation of her abdominal condition. 1 Defendants removed the suit to federal court in the Southern District of New York based on diversity jurisdiction. Plaintiff subsequently filed an amended complaint to include all of the defendants involved in this appeal. Following discovery, the suit went to a jury trial before Judge Knapp from February 7 to February 15, 2000. Defendant Titus did not appear at trial. The sole evidence of his misconduct was Girden's accounts of the incident, as given verbally and by fax to the hotel management immediately after the incident, and in her trial testimony. These accounts are at the heart of plaintiff's appeal.

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"'The purpose of jury instructions is to give the jury a clear and concise statement of the law applicable to the facts of the case.'" Christopher v. Cutter Labs., 53 F.3d 1184, 1194 (11th Cir. 1995) (quoting Pesaplastic, C.A. v. Cincinnati Milacron Co., 750 F.2d 1516, 1525 (11th Cir. 1985)); accord Hanover Fire Ins. Co. v. Sides, 320 F.2d 437, 444 (5th Cir. 1963); 9 Moore et al., supra, §51.10[1], at 51-11. Thus, "[a] litigant is entitled to an instruction on a claim where that claim is supported by evidence of probative value." Anderson, 17 F.3d at 557; accord Kelber v. Joint Indus. Bd. of the Elec. Indus., 27 F.3d 42, 46-47 (2d Cir. 1994); Carvel Corp. v. Diversified Mgt. Group, Inc., 930 F.2d 228, 230 (2d Cir. 1991). And, when giving such an instruction, the trial court must enunciate the standard of liability in a fashion that adequately sets forth the essential elements of the cause of action. E.g., Hendricks v. Coughlin, 942 F.2d 109, 113-14 (2d Cir. 1991); Folger Adam Co. v. PMI Indus., Inc., 938 F.2d 1529, 1533-34 (2d Cir. 1991).

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Click the case caption above for the full text of the Court's opinion.

The judgment of the district court is vacated and the case is remanded for a new trial not inconsistent with this opinion.

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