Hansen v. Isuzu Motors Limited

Filing 920080812

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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. ruled in favor of Isuzu on all claims. The jury

Subsequently, Hansen sought On appeal, Hansen

a new trial which the district court denied. 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. including breach of Hansen asserted several causes of action warranty, strict liability, negligent

misrepresentation and negligence. on all claims.

The jury ruled in favor of Isuzu

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. denied Hansen=s three motions. The district court ultimately

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. argues that if the district court In the alternative, Isuzu in using the words

erred

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, The test of adequacy of

357 F.3d 426, 432 (4th Cir. 2004).

instructions properly challenged on appeal is not one of technical accuracy in every detail. 1395 (4th Cir. 1987). See Spell v. McDaniel, 824 F.2d 1380,

Rather, Ait is simply the practical one of - 5 -

whether the instructions construed as a whole, and in light of the whole record, adequately informed the jury of the controlling legal principles prejudice without of the misleading objecting or confusing Id. the jury to the jury

party.@

AEven

when

instructions are flawed, there can be no reversal unless the error seriously prejudiced the plaintiff=s case.@ 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. 51(d)(2); Spell, 824 F.2d at 1398-99. See Fed. R. Civ. P. Hardin v. Ski Venture,

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 - 6 -

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, others.@ their property or to the persons or property of

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

The district court gave over 1800 lines of jury instructions with the concern portion of the jury instruction consisting of less - 7 -

1

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 convincing by the tortfeasor renders which, if proven a by clear and including

evidence,

appropriate

verdict

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 Upon completion of the

in Isuzu=s Request to Charge Number 4.

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. some objections but none pertaining to the Hansen made of the

inclusion

additional words.

Hansen never mentioned the words Areckless,@ After deliberating for several hours, the

Awillful@ or Awanton.@

than six lines. - 8 -

jury sent a note with questions about negligence. court met with the parties to discuss how to respond.

The district The district

court decided to recharge the jury with the same jury instructions the following morning. Hansen raised his After the jury began deliberating again, about the inclusion of the words

concern

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. that the plaintiff The only had The district court made very clear to meet also the burden an of proving

negligence.

district

court

provided

excellent The court

explanation of the relevant standard for negligence.

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.@ 1380, 1395 (4th Cir. 1987). Spell v. McDaniel, 824 F.2d

We believe the district court=s

instructions easily meet this standard. - 9 -

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
2

The burden of proof for

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). 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. 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. - 10 4 3

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. Carolina law, the essential Hansen argues that under South 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 - 12 -

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 including brochure Hansen. Isuzu This sent Court to numerous Isuzu

consumers,

reviews

evidentiary

rulings for abuse of discretion. 301, 304 (4th Cir. 2003). exclusion of evidence, a

United States v. Hill, 322 F.3d

In ruling on the admissibility or 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 - 13 because the brochure dealt

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. discretion. We conclude that the district court did not abuse its 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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