All Freight Systems v. James , 115 F. App'x 182 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
In the August 4, 2004
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
___________________
m 03-40776
Summary Calendar
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ALL FREIGHT SYSTEMS,
Plaintiff,
KEN POWERS,
Intervenor Plaintiff-Appellant,
VERSUS
CASSANDRA JAMES, ET AL.,
Defendants,
CHARLES JOHNSON; WILLAMETTE INDUSTRIES, INC.,
Defendants-
Intervenor Defendants-
Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
m 4:00-CV-437
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Before SMITH, DEMOSS, and STEWART, At the jury trial, Johnson’s vision was
Circuit Judges. brought into question by the plaintiffs. Rec-
ords from Johnson’s DOT examinations from
JERRY E. SMITH, Circuit Judge.* 1980 through 1998 showed that his vision
was 20/20 throughout this period. Further-
All Freight Systems, which was Ken Pow- more, six weeks after the accident, he received
ers’s employer, sued Cassandra James, Charles another DOT physical examination that did not
Johnson, and Willamette Industries (“Willam- show a need for corrective lenses. Dr.
ette”); Powers intervened as plaintiff. The suit Karanges, who performed a court-ordered in-
resulted from a car accident in which James hit dependent DOT physical examination on John-
a pool of standing water while driving under son, found that Johnson had 20/30 vision in his
drizzly and foggy conditions. left eye and 20/40 vision in his right eye.
Karanges also testified that Johnson had an
James’s van hydroplaned, slid into the me- overall visual acuity of 20/25 using both eyes,
dian, and rolled over several times, eventually although this is not determinative of Johnson’s
resting on its side in the middle of northbound ability to satisfy DOT requirement for
traffic. James was assisted out of her car, commercial drivers.
which was left with its black undercarriage
facing south. Troy Johnston, a witness, testi- Plaintiffs requested, but did not receive, a
fied that there was a hill preceding the place negligence per se jury instruction regarding
where the van had settled. Because of this, Johnson’s alleged failure to meet vision stan-
Johnston ran to the south to attempt to dards for commercial drivers. Plaintiffs did
prevent oncoming traffic from running into the not object to the refusal to instruct, nor did
van. they move for judgment as a matter of law
(“j.m.l.”) at the close of the evidence or before
The area were the van lay was dark, so submission of the case to the jury.
approaching drivers could not see it. Johnson,
a driver for Willamette, approached the ob- Plaintiffs state that the district court failed
struction caused by the van and was unable to in its gate-keeping function by allowing Kar-
avoid impact. Freddy Walden, another wit- anges to testify concerning Johnson’s vision.
ness, testified that from his vantage point he Plaintiffs also contend that the failure to give
saw nothing that Johnson could have done to the negligence per se instruction is plain error.
avoid the wreck. After the collision, John- Next, plaintiffs allege that trial counsel was ill,
son’s truck went across the median and came and this was the reason for the failure to object
to rest blocking southbound traffic. Immedi- to the lack of an instruction. Furthermore,
ately, Powers collided with Johnson’s trailer, plaintiffs believe that attorney misconduct
injuring Powers. prejudiced the proceedings, so they are entitled
to a new trial. Finding no error, we affirm.
I.
*
Pursuant to 5TH CIR. R. 47.5, the court has de-
Evidentiary questions are reviewed for
termined that this opinion should not be published and abuse of discretion. Graef v. Chem. Leaman
is not precedent except under the limited circum- Corp., 106 F.3d 112, 116 (5th Cir. 1997).
stances set forth in 5TH CIR. R. 47.5.4.
2
Even if a court improperly admits evidence, record, it was reasonably calculated to and
the judgment must be affirmed unless the rul- probably did cause the rendition of an improp-
ing affects substantial rights of the complaining er verdict. Reinhart v. Young, 906 S.W.2d
party. Bocanegra v. Vicmar Servs., Inc., 320 471, 473 (Tex. 1995).
F.3d 581, 584 (5th Cir.), cert. denied, 124 S.
Ct. 180 (2003). Negligence per se is a concept whereby a
legislatively imposed standard of conduct is
Consequently, plaintiffs’ argument that adopted by the civil courts as defining the con-
Karanges was improperly allowed to provide duct of a reasonable and prudent person.
testimony regarding Johnson’s vision is with- Carter v. William Sommerville & Son, Inc.,
out merit. The district court was in a better 584 S.W.2d 274, 278 (Tex. 1979). For negli-
position to decide the admissibility of testi- gence per se, there must be (1) a violation of
mony concerning Johnson’s ability to meet the a legislative enactment, (2) that is unexcused.
requirements of a commercial driver. More- Parrott v. Garcia, 436 S.W.2d, 897 (Tex.
over, the ruling did not substantially affect 1969). Negligence per se provides only a way
plaintiffs’ rights. of proving duty and breach of duty, and causa-
tion and damages must still be established. Id.
II.
Plaintiffs allege that it was plain error not to Thus, the plaintiff must still prove proxi-
include a negligence per se instruction in the mate causation, El Chico Corp. v. Poole, 732
jury charge. There are three requirements to S.W.2d 306, 313 (Tex. 1987), which includes
challenge jury instructions. First, the appellant the elements of cause in fact and foreseeability,
must show that viewed as a whole, the charge Exxon v. Quinn, 726 S.W.2d 17, 21 (Tex.
creates “substantial and ineradicable doubt 1987). To be a cause-in-fact of the accident,
whether the jury has been properly guided in a potential tortfeasor’s acts or omissions must
its deliberations.” Taita Chem. Co. v. have been substantial factors in causing the ac-
Westlake Styrene, LP, 351 F.3d 663, 667 (5th cident. N. Am. Van Lines, Inc. v. Emmons, 50
Cir. 2003). Second, even if there is error, we S.W.3d 103, 114 (Tex. App.SSBeaumont
will not reverse if the error “could not have 2001, pet. denied). Specifically, the acts or
affected the outcome of the case.” Id. Third, omissions must be factors without which the
the appellant must show that the proffered accident would not have occurred. Id. The
instruction correctly stated the law. Id. Per- resolution of conflicting evidence as to proxi-
fection is not required if the instructions given mate cause and negligence is a matter for the
were generally correct and any error was jury. Meadows & Walker Drilling Co. v. Phil-
harmless. Id. lips, 417 F.2d 378, 383 (5th Cir. 1969).
This standard provides the district court The substantive law of Texas defines an
with great latitude. Id. In reviewing instruc- unavoidable accident as “an event not proxi-
tions, we consider whether the jury was misled mately caused by the negligence of any party
in any way and whether it understood the to it.” Reinhart, 906 S.W.2d at 472. Simi-
issues. Dixon v. Int’l Harvester Co., 754 F.2d larly, the purpose of the sudden emergency
573, 588 (5th Cir. 1985). Error in the charge doctrine instruction is to ensure that the jury
is reversible only if, in the light of the entire will understand that it does “not necessarily
3
have to find that one of the other parties to the impaired. The circumstances of the accident
suit was to blame for the occurrence com- illustrate that the road conditions, coupled
plained of.” Yarborough v. Berner, 467 with the position of James’s van following her
S.W.2d 188, 192 (Tex. 1971). initial accident with the median, rendered a sit-
uation that falls into the category of an un-
The instruction is most often used to in- avoidable accident or sudden emergency. This
quire about the causal effect of some physical situation demonstrates that Johnson’s allegedly
connection or circumstance such as fog, snow, impaired vision was not a substantial factor in
sleet, wet or slick pavement, or obstruction of the occurrences that caused Powers eventually
view. Reinhart, 906 S.W.2d at 472. Regard- to hit Johnson’s tractor-trailer.
ing the sudden emergency defense, “by the
term emergency as used in this charge, is The matter of Johnson’s vision was prop-
meant a condition arising suddenly and unex- erly decided by the jury in light of the conflict-
pectedly and not proximately caused by any ing evidence presented by each side. Specifi-
negligent act or omission of the person in cally, defendants presented evidence that the
question and which calls for immediate action causal effect of drizzle and fog, combined with
on his part and without time for deliberation.” the sudden emergency of James’s obstructing
Goolsbee v. Tex. & New Orleans R.R., 243 van, led to the accident, while the plaintiff’s
S.W.2d 386, 388 (Tex. 1951). argued that Johnson’s vision was the cause.
Accordingly, the jury was properly left to
The mere fact that the legislature adopts a determine the issue.
criminal statute does not mean that this court
must accept it as a standard for civil liability. III.
Carter v. William Sommerville & Son, Inc., Plaintiffs contend they should not have to
584 S.W.2d 574, 278 (Tex. 1979). The suffer for their counsel’s error in failing to ob-
threshold questions in every negligence per se ject to the jury instruction. Where a party fails
case are whether the plaintiff belongs to the to make timely objections to the proposed in-
class that the statute was intended to protect structions and questions, the plain error stan-
and whether his injury is of a type that the dard of review applies. J.C. Motor Lines, Inc.
statute was designed to prevent. Perry v. S.N., v. Trailways Bus Sys., Inc., 689 F.2d 599, 602
973 S.W.2d 301, 305 (Tex. 1998). Then, the (5th Cir. 1982); Fredonia Broadcasting Corp.
court must determine whether it is appropriate v. RCA Corp., 481 S.W.2d 781, 796 (5th Cir.
to impose tort liability for violation of the stat- 1973); FED. R. CIV. P. 51.
ute. Id. An indirect relationship between vio-
lation of a statute and the plaintiff’s ultimate One may not complain of a jury instruction
injury is a factor against imposing tort liability. “unless that party objects thereto, stating dis-
Id. at 309. tinctly the matter objected to and the grounds
of the objection.” Taita Chem. Co., 351 F.3d
In light of the conflicting testimony, the at 667. Furthermore, submission of an alter-
failure to include a negligence per se instruc- native instruction does not necessarily preserve
tion did not ultimately affect the outcome of error for appeal. Id. One may not sit by with-
the case. The jury was not misled in any way, out objection to rulings or instructions, and
so its understanding of the issues was not then after verdict and judgment, and when it is
4
too late for the court to change its rulings or for counsel’s failure to object instruction is
charge, come forward with objections on ap- unavailing. Therefore, we review for plain
peal. Meadows & Walker Drilling Co. v. error the refusal to include a negligence per se
Phillips Petroleum Co., 417 F.2d 378, 381 instruction. As noted above, the lack of a jury
(5th Cir. 1969). instruction regarding negligence per se did not
result in a miscarriage of justice.
Even if the challenger proves the instruc-
tions misguided the jury, we reverse only if the A negligence per se jury instruction still
erroneous instruction affected the outcome of would have left the jury to determine whether
the case. Thomas v. Tex. Dep’t of Crim. Johnson’s controversial vision or the emer-
Justice, 297 F.3d 361, 365 (5th Cir. 2002). gency situation in which he was presented on
To meet this standard, a party must show “(1) the morning of the accident was the cause of
that an error occurred; (2) that the error was the collision. Accordingly, because plaintiffs’
plain, which means clear or obvious; (3) the counsel was given fair opportunity to object
plain error must affect substantial rights; and and on plain error review there was evidence
(4) not correcting the error would ‘seriously to support the verdict, there is no reversible
affect the fairness, integrity, or public error.
reputation of judicial proceedings.” Taita
Chem. Co., 351 F.3d at 668. Litigants are IV.
held to a difficult standard of error Plaintiffs admonish that, under the plain
preservation for good reason. Id. It requires error standard, they are entitled to a post-
that objections be made for a possible remedy verdict j.m.l. A claimant who bears the burden
at the trial court level, saving judicial of proof and believes he is entitled to j.m.l. is
resources. Id. required to move for j.m.l. before the case is
submitted to the jury. Flintco, 143 F.3d at
Reversal based on plain error is “not a run 968; FED. R. CIV. P. 50(a). Failing to move
of the mill remedy.” Highlands Ins. Co. v. for j.m.l. at the close of the evidence and
Nat’l Union Fire Ins. Co., 27 F.3d 1027, 1032 before submission to the jury results in waiver
(5th Cir. 1994). On plain error review, “the of the right to renew the motion under rule 50
question before this Court is there was any (b). Id.; 9A CHARLES A. WRIGHT & ARTHUR
evidence to support the jury verdict.” United R. M ILLER , FEDERAL P RACTICE AND
States ex rel. Wallace v. Flintco, Inc., 143 PROCEDURE § 2536 (2d ed. 1995). If a party
F.3d 955, 963 (5th Cir. 1998). If any evidence fails to move for j.m.l. under rule 50(a) on an
supports the verdict, the verdict will be upheld. issue at the conclusion of all the evidence, that
Id. Therefore, so long as the court gives party waives its right to file a renewed post-
counsel a fair opportunity to object, we will verdict rule 50(b) motion and its right to chal-
listen to un-objected to rulings only in those lenge the sufficiency of the evidence on that
handful of cases that can meet the exacting issue on appeal. Flowers v. Regional Physi-
requirements of plain error. Highlands Ins. cian Sys., 247 F.3d 229, 238 (5th Cir. 2001).
Co., 27 F.3d at 1032.
A lawyer who never moves for j.m.l. must
Plaintiffs’ argument that trial counsel was ill realize that a subsequent motion for j.m.l. can
and that Powers should not be forced to pay be granted only if plain error can be estab-
5
lished. Flintco, 143 F.3d at 963. The purpose dence by a party in which an attorney is impli-
of rule 50(a)’s requirement that a motion for cated, will constitute a fraud on the court. Id.
j.m.l. specify the law and the facts on which Less serious conduct, such as non-disclosure
the moving party relies “is to assure the re- to the court of facts allegedly pertinent to the
sponding party an opportunity to cure any de- matter before it, will not ordinarily rise to the
ficiency in that party’s proof that may have level of fraud on the court. Id. at 154 (citing
been overlooked until called to the party’s at- First Nat’l Bank v. Lustig, 96 F.3d 1554, 1573
tention by a late motion for judgment. Id. (5th Cir. 1996)).
Therefore, we will reverse only if the judgment
complained of results in a manifest miscarriage The trial court is in a superior position to
of justice. Id. gauge the prejudicial impact of counsel’s con-
duct. Anheuser-Busch, Inc. v. Natural Bever-
Consequently, because plaintiffs failed to age Distribs., 69 F.3d 337, 346 (9th Cir.
move for j.m.l. at the close of the evidence, 1995). A new trial is warranted on the ground
our review of the denial of their subsequent of attorney misconduct during the trial where
motion for post-verdict j.m.l. is limited to plain the “flavor of misconduct sufficiently perme-
error. Counsel’s failure to seek j.m.l. limited ates an entire proceeding to provide conviction
defense counsel’s opportunity to become that the jury was influenced by passion and
aware of any possible shortcomings in the prejudice in reaching its verdict.” Id.
evidence they had presented. Furthermore, on
plain error review there was sufficient evi- Review of the denial of a new trial is more
dence to support the verdict. Therefore, j.m.l. limited than where one is granted. DP Solu-
after the case had been submitted to the jury tions, Inc. v. Rollins, Inc., 353 F.3d 421 431
was properly denied. (5th Cir. 2003). Our standard of review in this
situation is “more deferential than our review
V. of the denial of a motion for [j.m.l.].” Id. To
Plaintiffs requested a new trial by urging warrant a new trial, improper comments by
that opposing counsel’s alleged misconduct at counsel must impair substantial rights and cast
trial caused the jury to be influenced by pas- doubt on the verdict. Bufford v. Rowan Co.,
sion and prejudice. Courts possess the inher- 994 F.2d 155, 157 (5th Cir. 1993). The con-
ent power “to vacate their own judgments on duct must be such as gravely to impair the
proof that a fraud has been perpetrated upon jury’s calm and dispassionate consideration of
the court.” Fierro v. Johnson, 197 F.3d 147, the case. Dixon v. Int’l Harvester Co., 754
152 (5th Cir. 1999) (citing Chambers v. Nas- F.2d 573, 586 (5th Cir. 1985).
co, Inc., 501 U.S. 32, 44 (1991)). To establish
fraud on the court, it is necessary to show an Plaintiffs rely on Anheuser-Busch and Buf-
unconscionable plan or scheme designed to in- ford as illustrative of cases where attorney
fluence the court improperly in its discretion. misconduct resulted in the necessity for a new
Id. trial. These cases, however, are distinguish-
able from the case at bar. In Anheuser-Busch,
Generally speaking, only the most egre- 69 F.3d at 350, plaintiff repeatedly lied to de-
gious misconduct, such as bribery of a judge fendant and the court throughout discovery,
or members of a jury, or the fabrication of evi- opposition to discovery motions, the trial, and
6
evidentiary hearings concerning the existence
of documents. In addition, plaintiff’s counsel
repeatedly and impermissibly elicited testimony
regarding matters previously ruled inad-
missible. Id. at 346. This misconduct was
found to have sufficiently prejudiced the jury.
Id.
Next, in Bufford, 994 F.2d at 157, defense
counsel claimed that plaintiff’s counsel, in his
opening statement and consistently over the
course of the proceedings, had sought to pro-
secute fraudulent claims. In addition, the trial
judge, in the presence of the jury, had threat-
ened plaintiff’s counsel with jail. Id. This
combination led to an unacceptable risk of a
tainted verdict. Id. at 159.
In contrast, in this case, defendants’ coun-
sel’s actions did not rise to the level of egre-
gious conduct necessary to constitute fraud on
the court. Specifically, plaintiffs cite testimony
in which defendants’ counsel mentions a police
report, recounts the fact that plaintiffs’ experts
were being paid, notes that plaintiffs had also
brought suit against James, and states that
Powers had become unhappy with the doctors
whom his lawyer helped him to find. These
actions by counsel do not illustrate an
unconscionable plan or scheme. Defendants’
counsel’s actions can be seen as zealous advo-
cacy but did not rise to the level of impairing
the consideration of the case by the jury.
Therefore, a new trial was not warranted.
AFFIRMED.
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