Rehearing and Rehearing En Banc Denied March 13, 2000.
HEANEY, Circuit Judge.
Willa Jari Lovett sued DaimlerChrysler Corp. (Chrysler) and Union Pacific Railroad Company (Union Pacific) for injuries she sustained when the Chrysler Jeep Cherokee she was a passenger in collided with a Union Pacific locomotive. The jury returned a verdict in favor of both defendants. Lovett raises five issues on appeal. She contends that the district court erred by: (1) admitting evidence of her failure to wear her seat belt, (2) excluding evidence of other similar incidents involving a Jeep Cherokee, (3) excluding evidence that Chrysler changed its rear-liftgate design, (4) refusing to give a cautionary instruction in response to Union Pacific's closing argument, and (5) granting summary judgment on Union Pacific's duty to keep a lookout. We affirm.
On February 5, 1995, 16-year-old Lovett rode in Molena Richey's 1985 Chrysler Jeep Cherokee with Richey and Kari Currier. Richey drove the vehicle; Currier was seated in the front passenger seat; and Lovett was seated in back.
The Cherokee approached a railroad crossing marked with a crossbuck and stop sign near Alma, Arkansas. As Richey neared the stop sign, she looked in both directions, but she did not see or hear an approaching Union Pacific train. As she started past the stop sign, the train, moving at a speed of 47 miles per hour, struck the left front of the Cherokee. The initial impact caused the vehicle to rotate in a clockwise direction and hit the right side of the train. This second impact continued the Cherokee's rotation, ultimately causing a third impact between the left rear corner of the Cherokee and the train's fuel tank. The Cherokee then flung away from the train and rolled over.
During the collision, the Cherokee's rear liftgate broke from the vehicle, and Lovett was ejected through the open liftgate area. She sustained permanent brain damage. Neither Currier nor Richey were ejected in the accident, and both suffered only minor injuries.
On October 3, 1996, Lovett sued Chrysler and Union Pacific in the Eastern District of Arkansas
With regard to Chrysler, Lovett appeals the district court's evidentiary rulings to: (1) admit evidence of her failure to use her seat belt, (2) exclude evidence of other similar incidents involving a Jeep Cherokee, and (3) exclude evidence that Chrysler changed its rear-liftgate design.
A. Seat Belt Non-Use
Lovett first appeals the district court's denial of her motion in limine to exclude evidence of her seat belt non-use. In its pre-trial order denying Lovett's motion, the court stated:
See Lovett v. Union Pac. R.R. Co., Civ. File No. 97-2036 (W.D.Ark. Oct. 7, 1998) (order denying plaintiff's motion in limine to exclude seat-belt evidence, at 5) (emphasis added).
Seat-belt evidence was admitted at trial over Lovett's objection. In her case-in-chief, Lovett called Officer Steven Roberts, who took a statement on the day of the accident from Molena Richey, in which Richey stated that neither Currier nor Lovett were wearing seat belts.
During Union Pacific's cross-examination of Roberts, it sought to admit the written statement into evidence. Lovett objected on hearsay grounds and because the statement contained evidence that she had not been wearing her seat belt. The court then discussed, outside of the jury's presence, a proposed limiting instruction, which read:
(Tr. Vol. II at 282-83.)
In response to the proposed instruction, Lovett's attorney stated: "Certainly I don't agree with it. I understand that [the proposed instruction is] the Court Order and we would renew our objection which was made in our Motion in Limine." (Id. at 283 (emphasis added).) After admitting Roberts' written statement, the district court instructed the jury according to the limiting instruction.
At the close of trial, the court proposed the following jury instruction:
(Tr. Vol. X at 1995-96.)
Lovett objected to the district court's seat-belt instruction:
(Tr. Vol. X at 1926 (emphasis added).) The court responded, "I take it then it is in the nature of a derivative objection and it arised [sic] from the objection made at trial to receive that evidence at all. But that being understood, does the plaintiff have any objection to the form of the instruction if it were to otherwise be—" (Id. at 1926-27.) Lovett then replied, "No sir. Reserving and preserving our original objection, we do not object to 25 in its present state." (Id. at 1927.)
After the district court instructed the jury as proposed, the case was submitted using a general verdict form to which Lovett did not object. The verdict form read, "Do you find from a preponderance of the evidence that there was fault on the part of Chrysler which was a proximate cause of the damages sustained by Willa Lovett?" The jury responded, "No."
Chrysler argues that we are precluded from reviewing the admissibility of the seat-belt evidence because Lovett failed to preserve her argument for appeal. We disagree. A motion in limine to exclude evidence is sufficiently preserved for appeal if the evidence is objected to at trial. See Aerotronics, Inc. v. Pneumo Abex Corp., 62 F.3d 1053, 1066 (8th Cir. 1995); see also United States v. Kandiel, 865 F.2d 967, 972 (8th Cir.1989) (holding that a motion in limine to exclude evidence is insufficient to preserve a claim of error where the evidence is admitted at trial without objection). In addition to making her motion in limine, Lovett specifically objected to the admissibility of the seat-belt evidence at trial as demonstrated above. Thus, her objection was preserved, and we review her claim on the merits.
At the time of the accident Arkansas law provided that:
Ark.Code Ann. § 27-37-703 (Michie 1994).
Lovett based her strict-liability claim against Chrysler on the "crashworthiness" theory. Under the theory, vehicle manufacturers have a duty to design their vehicles to be "crashworthy," meaning to prevent "enhanced injuries" resulting from an accident. See Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir.1968); R. Ben Hogan, III., The Crashworthiness Doctrine, 18 Am.J. Trial Advoc. 37 (1994). In a strict-liability crashworthiness case, the plaintiff claims that the manufacturer is liable only for that portion of the injury caused by the defective design. See Larsen, 391 F.2d at 502. In this case, Lovett
The district court noted that the law regarding the admissibility of seat-belt evidence in strict-liability crashworthiness cases is in a "state of flux."
We need not decide whether the district court correctly determined that the Arkansas Supreme Court would follow LaHue or the cases cited in footnote three of this opinion because Lovett has failed to prove that she was prejudiced by the admission of the seat-belt evidence. Where the district court errs in admitting evidence, we will only grant a new trial or set aside a verdict if there is clear and prejudicial abuse of discretion. See First Sec. Bank v. Union Pac. R.R. Co., 152 F.3d 877, 879 (8th Cir.1998) (citing Pittman v. Frazer, 129 F.3d 983, 989 (8th Cir.1997)); see also Fed.R.Civ.P. 61 (stating reversal based on an improper evidentiary ruling is allowed only if "substantial rights" were affected). An abuse of discretion occurs when the error prejudicially influences the outcome. See United States v. Beasley, 102 F.3d 1440, 1452 (8th Cir.1996).
To determine whether evidence of Lovett's seat belt non-use prejudicially influenced the outcome, we look to the jury's verdict. The unobjected-to verdict form submitted to the jury read: "Do you find from a preponderance of the evidence that there was fault on the part of Chrysler which was a proximate cause of the damages sustained by Willa Lovett?" The jury responded "No."
We have no way of determining from this general verdict why the jury found Chrysler not liable. In particular, we cannot tell whether the jury determined that the Cherokee was defectively designed, but that the design defect did not cause Lovett's injuries. If we could, there would be force to Lovett's argument that the jury improperly considered her seat belt non-use to conclude that her injuries were her fault, and not Chrysler's, and thus we would be required to determine whether the district court erred in admitting the challenged evidence. Nonetheless, the case was submitted on a general verdict form, so we can only speculate whether Lovett was prejudiced. Speculation, however, is not a sufficient basis for finding a plaintiff's substantial rights were affected, and we will not set aside the jury's verdict in this case.
B. "Similar Incidents" Evidence
Lovett next contends that the district court erred by excluding evidence of four similar incidents involving Jeep Cherokees. The district court excluded the evidence because the incidents were not "substantially similar" to Lovett's accident, noting that none: (1) involved a 1985 Cherokee, (2) involved a collision with a locomotive, (3) occurred at a railroad crossing, (4) resulted in the Cherokee rolling over, (5) occurred in a similar topographical area, and (6) involved similar speeds. (Tr. Vol.
Evidence of similar incidents may be relevant to prove the defendant's notice of defects, the defendant's ability to correct known defects, the magnitude of the danger, the product's lack of safety for intended uses, or causation. See Drabik v. Stanley-Bostitch, Inc., 997 F.2d 496, 508 (8th Cir.1993). However, admitting similar-incident evidence also threatens to raise extraneous controversial issues, confuse the issues, and be more prejudicial than probative. See id. For these reasons, the facts and circumstances of the other incidents must be "substantially similar" to the case at bar to be admissible. See id. Based on our review of the record and the district court's reasoning, we are satisfied that the incidents were not "substantially similar" to Lovett's accident and that the district court correctly excluded them.
C. Design-Change Evidence
Lovett also appeals the district court's exclusion of evidence regarding Chrysler's 1994 decision to replace the fiberglass liftgate with one made from steel. The district court excluded the evidence after concluding that it was irrelevant under Ark.Code Ann. § 16-116-104 (Michie 1994), and that even if relevant, was barred by Federal Rule of Evidence 407. See Lovett, Civ. File No. 97-2036 (W.D.Ark. Oct. 14, 1998) (order denying Lovett's motion in limine to admit design-change evidence, at 1-2). Again, we review the district court's evidentiary ruling for a prejudicial abuse of discretion. See First Sec. Bank, 152 F.3d at 879.
We need not consider the grounds for the district court's decision because the design-change evidence is irrelevant and therefore was properly excluded. Evidence is relevant if it tends "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Lovett claims that the design-change evidence is relevant to prove that because the 1985 Jeep Cherokee's liftgate was manufactured from fiberglass, rather than steel, the vehicle was "supplied in a defective condition rendering it unreasonably dangerous" and "the defect caused Lovett's injuries." (Appellant's Br. at 35-36.) Chrysler contends, however, that the change is irrelevant because the decision was not made to improve the Cherokee's safety, but rather as a "quality upgrade" to make the liftgate less noisy and easier to operate. (Appellee's Br. at 23.)
A careful review of the record reveals that the change apparently was made to improve quality, not safety. Because the design change was not made to improve the vehicle's safety, it does not tend to prove that the fiberglass liftgate rendered the Cherokee defective. Thus, the evidence is irrelevant and was properly excluded.
The only evidence in the record that the design change may have been related to safety is a memorandum written by William Grabowski, Executive Engineer for Body Engineering in Chrysler's Large Car Division. In the memorandum, Grabowski notes two instances where the liftgate would "pop open during off-road driving." (Plaintiff's Ex. 5 at 5.) Assuming for the sake of argument that these instances motivated Chrysler's design change, evidence of the change is still irrelevant because Lovett alleges that she was injured when the Cherokee's liftgate completely detached from the vehicle, not when the liftgate opened inadvertently. Any change to prevent the liftgate from opening inadvertently does not tend to prove that the liftgate was defective because it was ripped off in a crash of the kind that occurred here. Because the design change does not tend to prove the Cherokee was defective or that the defect caused Lovett's injuries, evidence of the change is irrelevant
III. Union Pacific
With regard to Union Pacific, Lovett appeals the district court's: (1) refusal to give a cautionary instruction in response to Union Pacific's closing argument, and (2) summary judgment grant on Union Pacific's duty to keep a lookout.
A. Refusal to Give a Cautionary Instruction
Lovett first argues that the district court erred in overruling her objection to Union Pacific's closing argument and in denying her request for a cautionary instruction. Lovett claims that Union Pacific made an improper "Golden Rule" argument, which "turned a close case into a verdict for Union Pacific." (Appellant's Br. at 57.)
During its closing argument, Union Pacific stated:
(Tr. Vol. X at 2023-24.) Lovett objected to the hypothetical on the ground that it referred to the jurors as defendants, and she requested a cautionary instruction. The court overruled Lovett's objection and denied her request for a cautionary instruction, stating, "I think it's a fair comment. Objection overruled." (Id.)
The district court has broad discretion to rule on the propriety of closing arguments, see Vanskike v. Union Pac. R.R. Co., 725 F.2d 1146, 1149 (8th Cir.1984), and on how to instruct the jury, see Kostelec v. State Farm Fire & Cas. Co., 64 F.3d 1220, 1225 (8th Cir.1995); Joan W. v. City of Chicago, 771 F.2d 1020, 1022-23 (7th Cir.1985) (giving great deference to the trial judge's refusal to give a curative instruction after a Golden Rule argument because of the judge's superior vantage point). We will not disturb the district court's rulings absent an abuse of discretion. See Vanskike, 725 F.2d at 1149.
Although the Golden Rule argument may have been improper, Lovett has failed to demonstrate she was prejudiced. Following Lovett's objection to the argument, Union Pacific did not discuss the hypothetical. Furthermore, the court correctly instructed the jury on the claims against Union Pacific, on the burden of proof, and on what the jury could properly consider when rendering its verdict. The court instructed the jury that:
(Tr. Vol. X at 1955.) Because Union Pacific did not refer to the hypothetical after Lovett's objection and because the court properly instructed the jury, we conclude Lovett was not prejudiced. Thus, the district court did not abuse its discretion by overruling her objection and by denying her request for a cautionary instruction.
B. Summary Judgment on Union Pacific's Failure to Keep a Lookout
Lovett last appeals the district court's summary judgment grant on Union Pacific's duty to keep a proper lookout. We review a district court's summary judgment grant de novo to determine whether, viewing the evidence in a light most favorable to the non-moving party, a genuine issue of material fact exists. See Bryan v. Norfolk & Western Ry. Co., 154 F.3d 899, 901 (8th Cir.1998). In this diversity case, we apply Arkansas substantive law to make this determination. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
Lovett alleges that Union Pacific was negligent in failing to keep a proper lookout. Arkansas law provides:
Ark.Stat.Ann. § 23-12-907 (1994). To establish a prima facie case of negligence, the plaintiff must prove that: (1) the defendant owed a duty to the plaintiff, (2) the defendant breached that duty, and (3) the breach was the proximate cause of the plaintiff's injuries. See Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997).
A train crew does not owe a duty to keep a lookout and take precautions to avoid injury until it becomes apparent that the traveler or pedestrian approaching a railroad track will not stop before placing
The only issue before us is whether Union Pacific's breach proximately caused Lovett's injuries. Proximate cause is "that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred." Sharp, 952 S.W.2d at 662 (quoting Ouachita Wilderness Inst., Inc. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997)). Arkansas cases hold that unless at the moment the crew's duty arose the train could have been sufficiently slowed or stopped in time to avoid the collision, the failure to keep a lookout is not the proximate cause of the injury.
Lovett argues that although the train could not have been stopped or sufficiently slowed, the train's crew could have sounded the whistle earlier to alert Richey of the approaching train. We are foreclosed from considering this argument. In addition to alleging failure to keep a lookout, Lovett also claimed that Union Pacific was negligent in failing to sound the whistle as the train approached the crossing. The issue of failure to sound the whistle was tried before the jury, and the jury returned a verdict in favor of Union Pacific. Because Lovett tried this issue before the jury and lost, she cannot now attempt to attach the argument to her lookout claim to save it from summary judgment.
Lovett does not dispute that, once the train crew's duty to keep a lookout arose, the train could not have stopped or sufficiently slowed to avoid its collision with the Cherokee. Thus, Union Pacific's failure to keep a proper lookout did not proximately cause Lovett's injuries, and the district court correctly granted summary judgment.
For the reasons set forth above, we affirm.