Filed: Aug. 12, 2008
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-2254 DONALD H. HANSEN, Colonel, Individually and as personal representative of the Estate of Deborah F. Hansen, Decedent; Donald J. Hansen, Katherine M. Hansen, Plaintiff - Appellant, v. ISUZU MOTORS LIMITED; AMERICAN ISUZU MOTORS, INCORPORATED; ISUZU MOTORS AMERICA, INCORPORATED, Defendants – Appellees. No. 06-2255 DONALD H. HANSEN, Colonel, as Personal representative of the Estate of Deborah F. Hansen, Decedent, Plaintiff
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-2254 DONALD H. HANSEN, Colonel, Individually and as personal representative of the Estate of Deborah F. Hansen, Decedent; Donald J. Hansen, Katherine M. Hansen, Plaintiff - Appellant, v. ISUZU MOTORS LIMITED; AMERICAN ISUZU MOTORS, INCORPORATED; ISUZU MOTORS AMERICA, INCORPORATED, Defendants – Appellees. No. 06-2255 DONALD H. HANSEN, Colonel, as Personal representative of the Estate of Deborah F. Hansen, Decedent, Plaintiff ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-2254
DONALD H. HANSEN, Colonel, Individually and as personal
representative of the Estate of Deborah F. Hansen, Decedent;
Donald J. Hansen, Katherine M. Hansen,
Plaintiff - Appellant,
v.
ISUZU MOTORS LIMITED; AMERICAN ISUZU MOTORS, INCORPORATED;
ISUZU MOTORS AMERICA, INCORPORATED,
Defendants – Appellees.
No. 06-2255
DONALD H. HANSEN, Colonel, as Personal representative of the
Estate of Deborah F. Hansen, Decedent,
Plaintiff – Appellant,
v.
ISUZU MOTORS LIMITED; AMERICAN ISUZU MOTORS, INCORPORATED;
ISUZU MOTORS AMERICA, INCORPORATED,
Defendants – Appellees.
Appeals from the United States District Court for the District of
South Carolina, at Columbia. Matthew J. Perry, Jr., Senior
District Judge. (3:00-cv-03912-MJP; 3:00-cv-03913)
Argued: March 19, 2008 Decided: August 12, 2008
Before MICHAEL and GREGORY, Circuit Judges, and Jane R. ROTH,
Senior Circuit Judge of the United States Court of Appeals for the
Third Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Charles Elford Carpenter, Jr., CARPENTER APPEALS AND TRIAL
SUPPORT, L.L.C., Columbia, South Carolina, for Appellant. Julie A.
Childress, O’HAGAN & SPENCER, L.L.P., Richmond, Virginia, for
Appellees. ON BRIEF: Steven J. Pugh, RICHARDSON, PLOWDEN &
ROBINSON, P.A., Columbia, South Carolina; Eric G. Fosmire, COLLINS
& LACY, P.C., Columbia, South Carolina; John J. Johnson, Columbia,
South Carolina, for Appellant. Christopher C. Spencer, O’HAGAN &
SPENCER, L.L.P., Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Donald Hansen (AHansen@) filed a lawsuit against Isuzu Motors
Limited, American Isuzu Motors, and Isuzu Motors America (AIsuzu@)
on behalf of himself, his wife and children after Hansen=s vehicle
overturned while traveling on an interstate highway. The jury
ruled in favor of Isuzu on all claims. Subsequently, Hansen sought
a new trial which the district court denied. On appeal, Hansen
contends that the district court erred. After thoroughly reviewing
Hansen=s assignments of error, we find that the district court did
not commit error and we affirm the district court=s decisions.
I.
Hansen filed this action against Isuzu after the family=s 1994
Isuzu Trooper rolled over on an interstate highway in Laurens
County, South Carolina, killing his wife, Deborah, and seriously
injuring his children. Hansen asserted several causes of action
including breach of warranty, strict liability, negligent
misrepresentation and negligence. The jury ruled in favor of Isuzu
on all claims. Hansen filed several post-trial motions including a
Motion for New Trial, a Motion to Alter or Amend the Judgments, and
a Motion for Relief from Judgments, asserting, inter alia, that the
district court erred: (1) by instructing the jury that Hansen must
prove that Isuzu acted in a Areckless, willful, or wanton manner@ to
recover for simple negligence; (2) by failing to admit into
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evidence certain post-sale materials sent by Isuzu to Hansen
subsequent to his purchase of his 1994 Isuzu Trooper regarding the
purported safety, handling and stability of Isuzu Troopers; and (3)
by failing to either admit into evidence prior notifications to
Isuzu by Isuzu Trooper owners or operators of tip-ups or rollovers
of 1992, 1993, and 1994 Isuzu Troopers or instructing the jury that
Isuzu was on notice of such claims. The district court ultimately
denied Hansen=s three motions. Hansen timely appealed.
II.
On appeal, Hansen contends that the district court erred:
(1) by instructing the jury that Hansen must prove that Isuzu acted
in a Areckless, willful, or wanton manner@ to recover for simple
negligence requiring that appellants prove a higher burden than
negligence; (2) by ruling that under South Carolina law, negligent
misrepresentation is only actionable where the representations
induced Hansen to enter into a contract or transaction; (3) by
failing to admit into evidence certain post-sale materials, which
discussed the safety, handling and stability of Isuzu Troopers,
sent by Isuzu to Hansen subsequent to his purchase of his 1994
Isuzu Trooper. We address each of Hansen=s claims below seriatim.
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A.
Hansen argues that he is entitled to a new trial because the
district court erroneously instructed the jury to consider whether
Hansen had proved Isuzu designed, manufactured, or marketed the
Isuzu Trooper in a Areckless, willful, or wanton manner,@
consequently holding Hansen to a higher burden of proof than
required under South Carolina law for proving simple negligence.
In response, Isuzu argues that Hansen failed to timely object to
the jury charge as required by Federal Rules of Civil Procedure
Rule 51. Furthermore, Isuzu contends that any error did not affect
Hansen=s substantial rights or the fairness, integrity or public
reputation of the judicial proceeding. Finally, Isuzu requests
that we not exercise our discretion under Rule 51 to correct any
error not timely objected to by Hansen. In the alternative, Isuzu
argues that if the district court erred in using the words
Areckless, willful or wanton@ during the jury charge, the error was
harmless and did not prejudice Hansen=s case.
We apply an abuse of discretion standard when reviewing jury
instructions that have been properly and contemporaneously objected
to at the trial court level. See Johnson v. MBNA America Bank, NA,
357 F.3d 426, 432 (4th Cir. 2004). The test of adequacy of
instructions properly challenged on appeal is not one of technical
accuracy in every detail. See Spell v. McDaniel,
824 F.2d 1380,
1395 (4th Cir. 1987). Rather, Ait is simply the practical one of
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whether the instructions construed as a whole, and in light of the
whole record, adequately informed the jury of the controlling legal
principles without misleading or confusing the jury to the
prejudice of the objecting party.@
Id. AEven when jury
instructions are flawed, there can be no reversal unless the error
seriously prejudiced the plaintiff=s case.@ Hardin v. Ski Venture,
Inc.,
50 F.3d 1291, 1296 (4th Cir. 1987).
If we determine, as Isuzu contends, that Hansen did not make a
proper contemporaneous objection, as required by Rule 51, then the
applicable standard of review is plain error. See Fed. R. Civ. P.
51(d)(2);
Spell, 824 F.2d at 1398-99. AA court may consider a
plain error in the instructions affecting substantial rights that
has not been preserved as required by Rule 51(d)(1)(A) or (b).@
Fed. R. Civ. P. 51(d)(2). Under the plain error standard of
review, we may only exercise our discretion to correct an error, if
we: (1) find error; (2) find the error was plain; (3) find the
error affected the substantial rights of the parties alleging the
error; and (4) after examining the particulars of the case, find
the error seriously affected the fairness, integrity or public
reputation of judicial proceedings. In re Celotex Corp.,
124 F.3d
613, 630-31 (4th Cir. 1997) (citing United States v. Olano,
507
U.S. 725, 730 (1993)).
After reviewing the record, we find that the district court
did not err. In a lengthy explanation, the district court defined
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negligence as the failure to exercise ordinary care. AOrdinary
care is that care which reasonably prudent persons exercise in the
management of their own affairs in order to avoid injury to
themselves, their property or to the persons or property of
others.@ The district court made clear that in order to prove the
essential elements of Hansen=s claim that Isuzu was negligent,
Hansen must establish by a preponderance of the evidence the
following:
First, that the defendants were negligent in one or more
of the particulars alleged;
Second, and not necessarily in the order in which I am
setting them forth, that plaintiff suffered some injury
or damage;
Third, that there is a connection between the two...
That the plaintiff=s injury or damage was proximately
caused by the defendant=s negligent act.
The district court explained the meaning of Aproximate cause,@
stating Ait is the cause without which the injury or damage would
not have occurred.@ After stating the forgoing standard
instruction on Anegligence,@ the district court read to the jury
instructions on negligence as proposed by the parties which
included the terms Areckless,@ Awillful@ and Awanton.@1 Thus, in
reading from a proposed instruction submitted by the parties, the
district court stated that Ait=s incumbent upon the Plaintiff to
1
The district court gave over 1800 lines of jury instructions
with the concern portion of the jury instruction consisting of less
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prove that the Defendants were negligent or reckless, willful and
wanton in one or more of the particulars alleged in the complaint.@
Hansen argues that by including the terms Areckless,@ Awillful,@
and Awanton@ in the instructions when explaining the plaintiff=s
burden of proof with respect to the contention that the defendants
were Anegligent,@ the district court committed error because the
terms Areckless,@ Awillful@ and Awanton@ suggest a greater level of
culpability by the tortfeasor which, if proven by clear and
convincing evidence, renders appropriate a verdict including
punitive damages.
After initially reading its standard jury instructions on
Anegligence,@ the district court read Hansen=s Request to Charge
Number 3 regarding wrongful death which included the words
Areckless,@ Awillful@ and Awanton.@ These words were also included
in Isuzu=s Request to Charge Number 4. Upon completion of the
instructions, neither Hansen nor Isuzu objected to the inclusion of
those words in the charge. After the charge was delivered but
before the case was given to the jury, the district court twice
inquired as to whether the parties had any objections. Hansen made
some objections but none pertaining to the inclusion of the
additional words. Hansen never mentioned the words Areckless,@
Awillful@ or Awanton.@ After deliberating for several hours, the
than six lines.
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jury sent a note with questions about negligence. The district
court met with the parties to discuss how to respond. The district
court decided to recharge the jury with the same jury instructions
the following morning. After the jury began deliberating again,
Hansen raised his concern about the inclusion of the words
Areckless, willful or wanton.@ While the parties were discussing
the matter, the jury returned with a verdict for Isuzu on all
counts.
Based on a careful review of the jury instructions, we hold
the district court did not err. The district court made very clear
that the plaintiff only had to meet the burden of proving
negligence. The district court also provided an excellent
explanation of the relevant standard for negligence. The court
then instructed the jury that the plaintiff is entitled to recovery
if the plaintiff proved negligence or if the plaintiff showed that
the defendant was Areckless, willful or wanton.@ This merely meant
that the plaintiff recovers if he proves the negligence or the
higher standard. Furthermore, we have held that instructions are
sufficient if Aconstrued as a whole, and in light of the whole
record, [they] adequately informed the jury of the controlling
legal principles without misleading or confusing the jury to the
prejudice of the objecting party.@ Spell v. McDaniel,
824 F.2d
1380, 1395 (4th Cir. 1987). We believe the district court=s
instructions easily meet this standard.
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Even if the district court=s instructions were flawed, we would
review this issue under our plain error standard because Hansen
failed to make a timely objection.2 We do not believe the
inclusion of the alternative way in which the plaintiff may recover
prejudiced Hansen=s case.
Furthermore, the jury ruled in Isuzu=s favor on all claims,
including strict liability. Because the jury ruled in favor of
Isuzu for strict liability, and because the negligence claim was
essentially the same claim3, the error, if there was error, was
necessarily harmless because the jury had already decided that the
Hansen=s Trooper was not defective or unreasonably dangerous when it
was placed in the stream of commerce.4 The burden of proof for
2
If the plaintiff had asked the district court to eliminate
the additional alternatives before the jury retired to consider the
verdict, which should be noted gave the jury more ways, not fewer,
to find for the plaintiff, the plaintiff=s concerns over the use of
the terms Areckless,@ Awillful@ and Awanton,@ could have been
addressed. However, the plaintiff failed to do so. We have stated
that Ano party may assign as error the giving or failure to give an
instruction unless the party objects thereto before the jury
retires to consider the verdict.@ Federal Rule of Civil Procedure
51; City of Richmond v. Madison Management Group, et al,
918 F.2d
438, 453 (4th Cir. 1990).
3
In both his strict liability claim and simple negligence
claim, Hansen alleged that his 1994 Isuzu Trooper as designed,
manufactured, assembled and sold by Isuzu posed an unreasonable
risk of causing injury to the users of the vehicle when used for
its intended and foreseeable purposes.
4
Manufacturers are expected to design their vehicles to
account for accidents because accidents are frequent and a part of
regular use of a vehicle. As a result vehicles are expected to
perform reasonably under such conditions.
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strict liability is lower than the burden of proof under
negligence. Thus if plaintiff could not meet the lower standard,
then it is clearly unreasonable to believe that he could have met
the burden for his negligence claim. Thus, if the jury had ruled
in favor of Hansen on the negligence claim, their verdicts would
have been inconsistent. Therefore, we conclude that any error with
the jury instructions was necessarily harmless as the jury had
already determined that the plaintiff could not meet his lower
burden under strict liability.
B.
Hansen purchased his 1994 Isuzu Trooper prior to receiving
allegedly misleading material from Isuzu upon which he
detrimentally relied. Hansen contends the district court erred
when it concluded that South Carolina law requires that the false
or misleading representation induced the plaintiff to enter into a
contract or business transaction. Hansen argues that under South
Carolina law, the essential elements of a negligent
misrepresentation claim are: (1) the defendant made a false
representation to the plaintiff; (2) the defendant had a pecuniary
interest in making the statement; (3) the defendant owed a duty of
care to see that he communicated truthful information to the
plaintiff; (4) the defendant breached that duty by failing to
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exercise due care; (5) the plaintiff justifiably relied on the
representation; and (6) the plaintiff suffered a pecuniary loss as
the proximate result of his reliance upon the representation.
See, e.g., Redwend Ltd. P=ship v. Edwards,
581 S.E.2d 496, 504 (S.C.
Ct. App. 2003). Hansen further contends that recovery of damages
for the tort of negligent misrepresentation A>may be predicated upon
a negligently made false statement where a party suffers either
injury or loss as a consequence of relying upon the
misrepresentation.=@
Id. at 504.
However, this Court has previously concluded that to prove a
claim for negligent misrepresentation under South Carolina law, the
plaintiff must establish that A(1) the defendant negligently made a
false statement, (2) the plaintiff suffered an injury or loss as a
consequence of relying on the misrepresentation, and (3) the
misrepresentation induced the plaintiff to enter into a contract or
business transaction.@ Jiminez v. DaimlerChrysler Corp.,
269 F.3d
439, 447 (4th Cir. 2001) (citing Evans v. Rite Aid Corp.,
478
S.E.2d 846, 848 (S.C. 1996)) (emphasis added). In Armstrong v.
Collins,
621 S.E.2d 368, 376 (S.C. Ct. App. 2005), the South
Carolina Court of Appeals stated A[a] claim for negligent
misrepresentation may be made when the misrepresented facts induced
the plaintiff to enter a contract or business transaction.@ In
Jiminez, we interpreted South Carolina law to mean that a claim can
be made only if it induced the plaintiff into a contract or
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business
transaction. 269 F.3d at 439. Thus, the district court
did not misinterpret South Carolina law.
C.
Finally, Hansen contends the district court erred when it
excluded a post-sale brochure Isuzu sent to numerous Isuzu
consumers, including Hansen. This Court reviews evidentiary
rulings for abuse of discretion. United States v. Hill,
322 F.3d
301, 304 (4th Cir. 2003). In ruling on the admissibility or
exclusion of evidence, a district court has broad latitude.
See Bryte ex rel. Bryte v. Am. Household, Inc.,
429 F.3d 469, 475
(4th Cir. 2005). Therefore, we accord the district court=s
evidentiary rulings substantial deference. See United States v.
Moore,
27 F.3d 969, 974 (4th Cir. 1994), cert. denied,
513 U.S. 979
(1994); United States v. Simpson,
910 F.2d 154, 157 (4th Cir.
1990). A district court abuses its discretion if it acts
arbitrarily or irrationally, see
Hill, 322 F.3d at 304, or if its
conclusions are guided by Aerroneous legal principles@ or rest upon
a Aclearly erroneous factual finding.@ See Westberry v. Gislaved
Gummi AB,
178 F.3d 257, 261 (4th Cir. 1999).
The brochure entitled AThe Truth About Trooper@ responded to
Consumers Union=s critique of the 1995-1996 Isuzu Trooper=s safety.
Hansen wanted to include the evidence to support his claim for
negligent misrepresentation, but because the brochure dealt
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specifically with the 1995-1996 Isuzu Trooper and not the 1994
Isuzu Trooper, which Hansen owned and which had been previously
recommended by Consumers Union, the district court excluded the
evidence. We conclude that the district court did not abuse its
discretion. Moreover, the district court permitted the admission
of another brochure entitled AAn Overview of Isuzu Motors Limited=s
Handling & Stability Design Philosophy@ that Isuzu sent to Isuzu
customers, including Hansen. That brochure provided essentially
the same information as that contained in the excluded brochure.
Given the aforementioned, the district court=s decision was neither
arbitrary nor irrational.
III.
For the foregoing reasons, we affirm the district court=s
decisions.
AFFIRMED
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