FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DECEMBER 5, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-12454

________________________

D.C. Docket No. 99-06688-CV-SH

RYDER COMMUNICATIONS, INC.,

a Florida Corporation,

PlaintiffCounter-DefendantAppellant,

DAVID A. RYDER,

individually,

Plaintiff-Appellant,

versus

AMERICAN TELEPHONE AND

TELEGRAPH, INCORPORATED,

a Foreign Corporation,

DefendantCounter-ClaimantAppellee.

__________________________

Appeal from the United States District Court 

for the Southern District of Florida

_________________________

(December 5, 2005)
The Limitations of Liability provision in the agreement provides that: 1

14(C) EXCEPT TO THE EXTENT PROVIDED IN SUBSECTION 14(B)(1)

ABOVE AT&T SHALL NOT BE LIABLE FOR INCIDENTAL INDIRECT

SPECIAL OR CONSEQUENTIAL DAMAGE OR FOR LOST PROFITS

SAVINGS OR REVENUES OF ANY KIND, WHETHER OR NOT AT&T

HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

2

Before HULL, MARCUS and HILL, Circuit Judges.

PER CURIAM:

On appeal, Ryder Communications raises two issues: (1) whether the district

court erred in enforcing the Limitations of Liability provision contained in the 1

agreement between AT&T and Ryder Communications; and (2) whether the

district court erred in limiting David Ryder’s testimony at trial. After review and

oral argument, we affirm.

With regard to the Limitations of Liability provision, the parties agree that

New Jersey law applies. Under New Jersey law, the Limitations of Liability

provision is unenforceable only if AT&T’s conduct is “willful and wanton.”

Tessler & Son, Inc. v. Sonitrol Sec. Sys. of N. N.J., Inc., 497 A.2d 530, 533 (N.J.

Super. Ct. App. Div. 1985).

The New Jersey Supreme Court has defined “willful and wanton” as

follows:

[I]t must appear that the defendant with knowledge of existing

conditions, and conscious from such knowledge that injury will likely
3

or probably result fromhis conduct, and with reckless indifference to the

consequences, consciously and intentionally does some wrongful act or

omits to discharge some duty which produces the injurious result.

McLaughlin v. Rova Farms, Inc., 266 A.2d 284, 293 (N.J. 1970).

The district court determined that AT&T’s “errors may amount to negligent,

or even grossly negligent, performance of its duties under the [contract], but they

do not rise to the level of specific intent required, under New Jersey law, to vitiate

a valid limitation of liability clause.” We agree, and conclude that the district

court did not err in granting partial summary judgment on AT&T’s claim that the

Limitations of Liability provision was enforceable.

As to the issue of whether the district court erred in excluding some of

David Ryder’s testimony at trial, we conclude that the district court did not abuse

its discretion in excluding David Ryder’s proposed expert testimony. See United

States v. Frazier, 387 F.3d 1244, 1258 (11 Cir. 2004) (en banc) (stating that this

th

Court reviews a “district court’s decisions regarding the admissibility of expert

testimony and the reliability of an expert opinion” for an abuse of discretion, and

that “it is by now axiomatic that a district court enjoys ‘considerable leeway’ in

making these determinations”) (citation omitted). Furthermore, to the extent that

David Ryder’s proposed testimony was arguably lay in nature, we conclude that,
4

based on the record and the arguments presented by the parties in district court,

there is no reversible error in the district court’s rulings.

For all the above reasons, we affirm.

AFFIRMED.