Opinion
No. 7:98CV5045
December 1999.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff's motion for a new trial (filing 51). Upon careful consideration of Plaintiff's motion and brief in support thereof, the defendant's opposition, and the trial record, I find that Plaintiff's motion should be denied.
I. BACKGROUND
Mr. Burry is a truck driver who was injured on March 1, 1995, when he delivered a load of PVC pipe to Eustis Plumbing Heating, Inc. Frank Strong, an employee of Eustis Plumbing Heating, used a small tractor fitted with a Farmhand loader to unload the bundles of pipe from the truck. To steady the load as Mr. Strong lowered it from the truck, Mr. Burry held onto one end of the pipe bundles. He was injured when the bundles shifted and slid off the tines of the loader, catching his hand and throwing him to the ground. Mr. Burry felt a stinging sensation in his arm, and alleges that his right biceps tendon was torn as a result of this accident. The injury ultimately required surgery and physical therapy.
Approximately one year later, on March 19, 1996, Mr. Burry suffered another injury which he claims is a result of the Eustis injury. He was loading vehicles onto a car-carrier trailer in California on that date. As he was atop the trailer securing one of the vehicles, holding on with his right hand, his grip gave way and he fell ten feet to the ground. He suffered a broken pelvis and hip, separated rib cartilage, and a chipped tooth.
Mr. Burry filed this lawsuit on November 25, 1998, alleging negligence on the part of Eustis Plumbing and its employees. The pretrial conference order reflects the same cause of action, alleging specific acts of negligence on the part of Eustis Plumbing's employees (and imputable to Eustis Plumbing), as well as contributory negligence on the part of the plaintiff. The case was tried in North Platte, Nebraska, on October 19, 20, and 21, 1999. The jury deliberated for 45 minutes and returned a verdict for the defendant, finding that Plaintiff had not met his burden of proof.
The plaintiff then filed the present motion for new trial, alleging a number of prejudicial errors by the trial court. For the reasons explained below, the motion will be denied.
II. RULE 59 MOTION FOR NEW TRIAL
A. Law
The authority to grant a new trial on a motion pursuant to Federal Rule of Civil Procedure 59 is within the discretion of the district court, based on its appraisal of the fairness of the trial and the reliability of the jury's verdict. Gray v. Bicknell, 86 F.3d 1472, 1480 (8th Cir. 1996). A new trial is appropriate when the first trial, through a verdict against the weight of the evidence, an excessive damage award, or legal errors at trial, resulted in a miscarriage of justice. Id.; White v. Pence, 961 F.2d 776, 780 (8th Cir. 1992); Fireman's Fund Ins. Co. v. Aalco Wrecking Co., Inc., 466 F.2d 179, 186-87 (8th Cir. 1972), cert. denied, 410 U.S. 930 (1973).
Not all errors require a new trial, however. The court should grant a new trial only if it finds that an error "misled the jury or had a probable effect on its verdict." Ramstad v. Lear Siegler Diversified Holdings Corp., 836 F. Supp. 1511, 1514 (D.Minn. 1993) (quoting E. I. du Pont de Nemours Co. v. Berkley Co., Inc., 620 F.2d 1247, 1257 (8th Cir. 1980)). The Federal Rules of Civil Procedure define "harmless error," in the context of granting a motion for a new trial, in Rule 61, which provides:
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
AIn general, the question of whether error is "harmless' or insubstantial is to be resolved in the context of the individual case. Where it appears that error in no way influenced the jurors, or had only a slight effect on them, the verdict and judgment are to be affirmed." International Merger Acquisition Consultants, Inc. v. Armac Enterprises, Inc., 531 F.2d 821, 823 (7th Cir. 1976) (citing Kotteakos v. United States, 328 U.S. 750 (1946)). See also Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 102 (1st Cir. 1997) ("In determining whether an error affected a party's substantial right[s], the central question is whether this court can say with fair assurance . . . that the judgment was not substantially swayed by the error.")
In Kotteakos, the United States Supreme Court explained the factors to be considered when deciding whether an error was prejudicial:
To weigh the error's effect against the entire setting of the record without relation to the verdict or judgment would be almost to work in a vacuum. Cf. United States v. Socony-Vacuum Oil Co.,supra, [310 U.S.] at 239, 242. . . . And the question is, not were [the jurors] right in their judgment, regardless of the error or its effect upon the verdict. It is rather what effect the error had or reasonably may be taken to have had upon the jury's decision. The crucial thing is the impact of the thing done wrong on the minds of other men, not on one's own, in the total setting.Cf. United States v. Socony-Vacuum Oil Co., supra, at 239, 242;Bollenbach v. United States, supra, [326 U.S.] 614.
This must take account of what the error meant to them, not singled out and standing alone, but in relation to all else that happened. And one must judge others' reactions not by his own, but with allowance for how others might react and not be regarded generally as acting without reason. This is the important difference, but one easy to ignore when the sense of guilt comes strongly from the record.
If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand. . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.
Kotteakos v. United States, 328 U.S. 750, 764-65 (1946).
Kotteakos was a criminal case, but the standard enunciated therein as to prejudicial error has been widely applied in civil cases as well.
Merits of the motion
1. Plaintiff's claims
In support of his motion, Plaintiff lists, in essence, five legal errors committed by the Court:
• wrongly and unilaterally changing the theory of the case from ordinary negligence to premises liability;
• erroneously instructing the jury on premises liability;
• failing to instruct on ordinary negligence;
• erroneously instructing the jury on concurring cause; and
• erroneously instructing the jury on superseding cause.
Plaintiff's assignments of error stem from his umbrage at the Court's characterization of this case as one of premises liability rather than ordinary negligence as the plaintiff had conceptualized it. The controverted and unresolved issues memorialized in the pretrial conference order include these:
1. Whether employees of defendant, Eustis Plumbing Heating, Inc., were negligent in the following particulars:
a. Failure to operate the loader with reasonable control;
b. Improper use of controls of the loader causing the load to be dumped on the plaintiff;
c. Lack of proper knowledge and skill in the operation of the front-end loader;
d. Failure to warn the plaintiff that the operator was about to dump the load;
e. Dumping the load of pipe when the operator knew or should have known that doing so placed the plaintiff in danger.
2. Whether the negligence of employees of the defendant, Eustis Plumbing Heating, Inc., if any, was committed in the course and scope of their employment and should be imputed to said defendant.
3. Whether the negligence of the defendant, Eustis Plumbing Heating, Inc., if any, was the proximate cause of the accident of March 1, 1995.
4. Whether the negligence of the defendant, Eustis Plumbing Heating, Inc., if any, was the proximate cause of the accident of March 19, 1996.
Pretrial Conference Order at 3-4 (filing 37).
Issues specified at a pretrial conference control the course of an action and, unless altered by the court, constitute the issues on which the case is tried. Bump v. Firemens Ins. Co. of Newark, N.J., 380 N.W.2d 268, 273 (Neb. 1986).
Despite the parties' characterization of the theory of recovery, the Court discussed with counsel the applicability of Nebraska law regarding the duty of care owed to business visitors. After researching the issue and hearing counsel's arguments, the Court informed the parties' attorneys on the morning of the second day of trial that the uncontroverted facts, as well as the controverted facts, were such that the case constituted a premises liability action under Nebraska law and that the Court would have to instruct the jury accordingly. The Court's decision rested on the Nebraska Supreme Court ruling in Haag v. Bongers, 589 N.W.2d 3187 (Neb. 1999), that "premises liability encompasses not only condition of land, but also activities conducted on the premises."Id. at 334. In Haag, the plaintiff suffered injuries while attending an auction when the hitch ball on the drawbar of a tractor being used to tow a vehicle through the crowd flew off and hit him in the head. He alleged premises liability claims against the owner of the location where the auction was held, and ordinary negligence against the auctioneers.
Plaintiff argues that Ellis v. Far-Mar-Co, Inc., 340 N.W.2d 423 (Neb. 1983), is more factually congruent and therefore more relevant to the present case. Ellis involved a plaintiff grain inspector who was injured in a fall caused when personnel of the defendant moved the railroad car he was standing atop without warning him first. In Ellis, the defendant, citing premise liability jury instructions, asked that the jury be instructed on the plaintiff's duty to protect himself against known or obvious dangers. The court refused, noting that the case involved active negligence on the part of the defendant's employees, rather than simply premises liability. "This accident did not arise out of a defect or condition of the premises. Rather, as determined by the jury, it was due to a failure on the part of those employees charged with the responsibility for moving the grain cars to do so in a reasonable manner." Id. at 426.
Mr. Burry notes that in Haag the plaintiff pled the case as one of premises liability and the court was simply acknowledging that premises liability does include activities conducted there, as opposed to addressing the issue of whether a premises liability theory may supplant an ordinary negligence theory. In a case pre-dating Haag, the Nebraska Court of Appeals also commented on the distinction between the causes of action, noting that "[t]he wisdom of instructing on premises liability when the plaintiff's claim is based upon negligent activity is called into question inEllis v. Far-Mar-Co." Peters v. Wakefield, No. A-97-280, 1998 WL 904293, at *9 (Neb.Ct.App. Nov. 17, 1998). The state appellate court further opined that N.J.I2d Civ. 8.23 and Restatement (Second) of Torts § 341A "seem to support an instruction that the possessor of land is liable for invitees' activities only if the possessor should expect that the invitees will not discover or realize the danger, or will fail to protect themselves against the danger. However, the holding in Ellis makes the validity of such an instruction questionable." Id. at *10. But Haag has clearly overruled Ellis and clarified the Nebraska law on the subject.
The primary difference between the two theories is the additional burden placed on a plaintiff by the premises liability approach. Under the burden of proof assigned by the pattern instruction on damage to business visitors as a result of activities on the premises, in addition to negligence, proximate cause, and damage, a plaintiff is also required to establish that the defendant should have expected that the plaintiff either would not discover or realize the danger, or would fail to protect himself against the danger. N.J.I2d Civ. 8.23. Mr. Burry alleges this additional element prejudiced him in substantial ways.
Mr. Burry focuses most of his argument on the Court's instructions to the jury on the premises liability issue. He argues that the premises liability burden of proof instruction should not have been given at all, nor should the definitional instruction on the phrase "should have known" or the instructions on "concurring cause" and "intervening cause." He further argues that his proposed instructions on ordinary negligence should have been given instead.
2. Premises liability instructions
The Nebraska Supreme Court has often stated the rule that the trial judge must define the issues of the lawsuit. Presenting a case to the jury is properly done through a clear and concise statement of those issues that find support in the evidence. The trial court must instruct on the issue presented by the pleadings and the evidence, whether requested to do so or not, and failure to do so is prejudicial error.
Introductory Comment to N.J.I2d, at XL.
The trial court has the duty to instruct the jury on issues presented by the pleadings and evidence, whether requested to do so or not, and a failure so to do constitutes prejudicial error.McLaughlin v. Hellbusch, 557 N.W.2d 657, 660 (Neb. 1997) (quotingBarry v. Moore, 108 N.W.2d 401, 405 (Neb. 1961)); Heye Farms, Inc. v. State of Nebraska, 558 N.W.2d 306, 310 (Neb. 1997) (Trial court's duty is to instruct on proper law of case, and failure to do so is prejudicial error). In reviewing a claim of prejudice from instructions given or refused, the instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and evidence, there is no prejudicial error necessitating reversal. McLaughlin v. Hellbusch, 557 N.W.2d at 660 (citing Sedlak Aerial Spray, Ltd. v. Miller, 555 N.W.2d 32 (Neb. 1996)); Tapp v. Blackmore Ranch, Inc., 575 N.W.2d 341, 346-47 (Neb. 1998) (same).
As discussed above in section B.1., the Court believes that premises liability is the correct theory of recovery under the facts established by the evidence in this case. Therefore, it was appropriate to instruct the jury accordingly.
3. "Should have expected" instruction
The "should have expected" instruction is verbatim from N.J.I2d Civ. 8.84. According to the Committee's Comment, the definitions "are particularly important in the premises liability cases." N.J.I2d Civ. at 8.84-1. The definitions are taken from Restatement (Second) of Torts §§ 12 and 334 comment c (1965). The Nebraska Supreme Court, in Krance v. Faeh, 338 N.W.2d 55 (Neb. 1983), explained the importance of using the correct definitions regarding a defendant's knowledge of a dangerous condition on his property. The issue in Krance was the liability of a lessor when the premises contained a latent, dangerous condition. The court discussed § 358 of the Restatement (Second) of Torts, which explains that a lessor who "knows or has reason to know" of the dangerous condition, and "realizes or should realize" the risk involved, and "has reason to expect" that the lessee will not discover the condition or realize the risk, is subject to liability for injuries incurred. The court noted this rule imposes upon a landlord liability for failure to disclose when the landlord "has knowledge of facts which would lead him to conclude that an unreasonably dangerous, latent defect exists on his property." Krance, 338 N.W.2d at 59.
In support of this, the court quoted § 358 comment b of the Restatement, which refers to § 12:
It is not, however, necessary that the vendor have actual knowledge of the condition, or that he be in fact aware that it involves an unreasonable risk of physical harm to persons on the land. It is enough that he has reason to know that the condition exists, as that phrase is defined in § 12(1) C that is, that he has information from which a person of reasonable intelligence, or of his own superior intelligence, would infer that the condition exists, or would govern his conduct on the assumption that it does exist, and in addition would realize that its existence will involve an unreasonable risk of physical harm to persons on the land.
Krance, 338 N.W.2d at 59.
The court then ruled, "The instruction holding the landlord to a "should have known' standard with regard to his duty to disclose was erroneous, and the instruction should have been phrased in accordance with the language of the Restatement." Id.
Clearly, the instruction given in the present case comports with the pattern instruction and the Nebraska Supreme Court's recommendation in Krance, so Plaintiff's motion for a new trial will be denied on this ground.
4. abIntervening or superseding cause instruction
Mr. Burry also complains about the Court's Instruction No. 12, on proximate cause.
Instruction No. 12, Court's Charge to the Jury (filing 48). His objection is to the portion of the instruction addressing intervening or superseding cause. The plaintiff is correct in noting that the Nebraska Supreme Court has disapproved the use of a separate instruction on superseding or intervening cause. See N.J.I2d Civ. 3.43 and Sacco v. Carothers, 567 N.W.2d 299, 305-06 (Neb. 1997). The concept, however, remains a viable one, and when appropriate is to be addressed as a part of proximate or concurring cause.
Plaintiff, however, misapprehends the source of the instruction used in this case. The language to which he objects goes to causation, and is found in the Authorities to N.J.I2d Civ. 3.41 at 3.41-6. The context in which it arises is as follows:
Where a person is stunned by the negligent act of the defendant and, while stunned, inflicts further injury on him or herself or injury on another, the negligent act of the defendant may be the proximate cause of both the original and the subsequent injury.Coyle v. Stopak, 165 Neb. at 608, 86 N.W. at 769. See also Kroeger v. Safranek, 161 Neb. at 187, 72 N.W.2d at 838 (jury question regarding proximate cause of wrongful death raised by following facts: after nighttime collision with defendant's truck, decedent walking from wreck toward highway was electrocuted by power lines knocked down by accident).
This aspect of causation is sometimes discussed by reference to "subsequent injury" or "reinjury."
A[A] tortfeasor whose negligence has caused injury to another is also liable for any subsequent injury or reinjury that is the proximate result of the original injury, except where the subsequent injury or reinjury was caused by either the negligence of the injured person, or by an independent or intervening act of [either] the injured person, or . . . a third person."
Borland v. Gillespie, 206 Neb. 191, 195-96, 292 N.W.2d 26, 29-30 (1980) (appellant and appellee's cars collided and appellee left scene; knowing her vehicle to be damaged, appellant gave pursuit, lost control of her car, and hit a tree; appellant's acts intervened and appellee was not liable for injuries sustained in appellant's second collision) (quoting Watkins v. Hand, 198 Neb. 451, 453, 253 N.W.2d 287, 289 (1977)) (10 months after automobile collision, while driving to therapy prescribed as a result of injuries suffered therein, plaintiff blacked out, her car hit a tree, and she suffered further injuries; evidence did not support claim that injuries from first collision caused blackout; cause of "subsequent injur[ies]" held to be independent act of plaintiff) (in turn, quoting Annot., 31 A.L.R.3d 1000, 1003 (1970), and citing Restatement (Second) of Torts § 460 (1965)).
N.J.I2d Civ. at 3.41-5 to -6.
The case at bar was an ideal case for instructing on an intervening act as proximate cause. Plaintiff alleged that two separate accidents resulted from the defendant's negligence: the accident and injuries in Nebraska in 1995, and the accident and injuries in California in 1996. Proximate cause is a straightforward concept for the jury to understand in relation to the 1995 incident, but it becomes slightly more complicated in relation to the 1996 accident. The defendant's negligence, if any, in the 1995 accident may have "set in motion a series of events" resulting in the 1996 accident. Then again, it may not have. The jury could have reached the conclusion that but for Defendant's negligence, the California accident would not have occurred, or the jury could have concluded that the plaintiff's own actions, such as climbing atop a truck and holding on with what he knew to be his weak arm, constituted an intervening act which broke the causal connection between Defendant's actions and the 1996 injuries. The instruction was correct as given, and Plaintiff's motion will be denied as to this assignment of error.
5. Concurring cause instruction
Finally, Mr. Burry argues that the Court should not have submitted a concurring cause instruction to the jury. That instruction comes from pattern instruction N.J.I2d Civ. 3.42. Plaintiff objected to this instruction when the Court proposed it at the instruction conference during trial, arguing that Mr. Burry's act of steadying the pipe was a "condition," not a "cause." On the topic of causes and conditions, the Committee noted:
On this subject of conditions versus causes, the court has stated:
[Where] we have made a distinction between condition and cause, there were two alleged negligent parties. The rule in such a case is: "[W]here the negligence charged furnishes only a condition by which the injury is made possible, and a subsequent independent act of a third party causes the injury, the two acts are not concurrent, and the existence of the condition is not the proximate cause of the injury. . . ." [, and without more "the plaintiff is not entitled to an instruction on concurring cause identical to that found in N.J.I 3.42 [(1969)]."]
[In the case at bar, the] defendant's reliance on this rule is misplaced. The distinction between condition and cause has no application where . . . there is no subsequent independent act of a third party which causes the injury.
Havlicek v. Desai, 225 Neb. 222, 226-27, 403 N.W.2d 386, 389-90 (1987) (citations omitted) (bracketed quotation from id. at 226, 403 N.W.2d at 389) (other quotation from Connolley v. Omaha Public Power Dist., 185 Neb. 501, 508, 177 N.W.2d 492, 496 (1970)).
To the extent that discussion of conditions versus causes is helpful, it should be continued. To the extent that it only confuses the real issues, it should be avoided. In any event, difficulties encountered with many of these cases can be minimized by recognizing that the real issue is either or both of proximate and superseding cause.
Comment to N.J.I2d Civ. 3.42, at 3.42-2.
What this instruction boils down to is an explanation to the jury that Defendant's negligence, if any, could be a proximate cause of Mr. Burry's injuries in both 1995 and 1996 regardless of Mr. Burry's negligence, if any, at the time of either accident. Again, the instruction as given was correct and the motion for new trial will be denied as to this claim.
III. CONCLUSION
Plaintiff raised the same objections to the instructions, and offered alternative instructions, at the time of the instruction conference. The objections were overruled and his requested instructions denied on the record. The Court stands by its reasons. In short, the Court believes that premises liability is the appropriate characterization of this case (regardless of how the parties may have conceptualized it), and properly instructed the jury accordingly. I find that no miscarriage of justice has occurred in this case, and a new trial would not be appropriate. Accordingly,
IT IS ORDERED Plaintiff's motion for new trial (filing 51) is denied.