Number 4 requires action in the appellate court and is restricted by doctrines requiring preservation of error and harmless error. Judgment as a matter of law. All necessary prerequisites to the usual judgment as matter of law under Rule 50 were satisfied. And plaintiffs have the burden of proof.
Success here is highly unlikely.
The trial judge already denied a summary judgment motion based on much of the same evidence and using the same standard. The judge also entered findings rejecting plaintiffs' claim. To grant a judgment to plaintiffs, she would have to find the evidence supported their claim as a matter of law. In fact, the evidence is too slim for this. Butler's alleged admission of liability requires an inference, and a contrary inference is surely within reason.