Great West Casualty Company, et al v. P.A.M. Transport, Inc., et al

Filing

OPINION filed : The judgment of the district court is AFFIRMED, decision not for publication. Alice M. Batchelder (Authoring), Karen Nelson Moore (dissenting) and Jeffrey S. Sutton, Circuit Judges.

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NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0391n.06
No. 14-3477

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GREAT WEST CASUALTY COMPANY,
Plaintiff,
VIOREL VLAD,
Plaintiff-Appellant,
v.
P.A.M. TRANSPORT, INC.; KALVIN SCOTT,
JR.,
Defendants-Appellees.

BEFORE:

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FILED
Jun 01, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE
NORTHERN DISTRICT OF
OHIO

BATCHELDER, MOORE, and SUTTON, Circuit Judges

ALICE M. BATCHELDER, Circuit Judge. This diversity case arises from a crash
between two tractor-trailers on the Ohio Turnpike on May 4, 2011. After a trial, a federal jury
found plaintiff Viorel Vlad and defendants Kalvin Scott, Jr. and his employer, P.A.M. Transport
(“PAM”), equally liable. Vlad now contends that the district court erred by including a jury
instruction on the “duty to look.” Because, when viewing them as a whole, we do not find the
jury instructions to be confusing, misleading, and prejudicial, we AFFIRM the district court’s
judgment.

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I.
Shortly after midnight on May 4, 2011, Kalvin Scott, Jr., a truck driver for PAM, pulled
off onto the side of the Ohio Turnpike for a brief respite. After a short time, he started up his
truck and attempted to re-enter the highway. He checked his mirrors as he attempted to re-enter
but did not see any traffic in the right lane. He did, however, notice trucks moving over to the
left lane to let him merge. As he merged onto the highway, he was travelling at a speed of at
least thirty-five, but no more than forty-five, miles-per-hour.
Meanwhile, Viorel Vlad was driving his truck in the right lane of the Ohio Turnpike at
just under the posted speed limit of seventy miles-per-hour. Vlad gave two different accounts as
to what happened that night: one in a police report the day of the accident and one at trial. In the
police report, he stated that he was driving in the right lane when he noticed a truck on the right
shoulder. As the truck started to pull out into the right lane, Vlad began to brake. When he was
300 feet away from the truck, however, he noticed that it was going “really slow.” Because there
were trucks in the left lane, he could not move over to let the other truck into the right lane. Due
to his inability to move, he crashed into the merging truck.
At trial, however, Vlad testified that he noticed Scott’s truck on the side of the road
because he saw other cars’ headlights reflecting off of it. He believed the truck was “broken
down or something like that.” At that point, he checked his mirrors and attempted to move over
to the left lane to give this truck space, but there were trucks in the left lane that would not let
him over. He did not see Scott’s truck again until he ran into it, because Scott just drove out in
front of him.
Regardless of how it happened, Vlad’s truck rear-ended Scott’s truck. This collision
caused substantial damage to Vlad’s truck, and also caused Vlad significant injuries and loss of

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work. Invoking diversity jurisdiction, Vlad filed a complaint in federal district court against
Scott and PAM for medical expenses and pain-and-suffering damages. Vlad contended that
Scott negligently entered the highway into Vlad’s right-of-way. Scott, on the other hand, raised
the affirmative defense that Vlad was negligent in failing to maintain an assured clear distance
between the two trucks.
The district court instructed the jury on many points of law, including the definitions of
right-of-way and assured clear distance. It also included a jury instruction on the duty to look:
“Failure to see that which a reasonably careful person under like circumstances would have seen
is negligence.

A driver is negligent when he does not continue to look, if, under the

circumstances, a reasonably careful person would have continued to look.” After hearing the
jury instructions and considering the evidence, the jury returned a verdict finding Vlad and Scott
equally negligent. Because of this verdict, the district court entered a judgment awarding Vlad
half of the $256,000 in damages the jury had found.
Vlad timely appealed, challenging the “duty to look” instruction as erroneous.
II.
“Because the correctness of jury instructions is a question of law, we review de novo a
district court’s jury instructions.” Jones v. Federated Fin. Reserve Corp., 144 F.3d 961, 966 (6th
Cir. 1998). Although Vlad is challenging only one particular instruction, “[w]e cannot look at
only certain parts of the instructions ‘in isolation; we must consider the charge as a whole.’”
Miami Valley Fair Hous. Ctr., Inc. v. Connor Grp., 725 F.3d 571, 579 (6th Cir. 2013) (quoting
United States v. Prince, 214 F.3d 740, 760–61 (6th Cir. 2000)). “The standard on appeal for a
court’s charge to the jury is whether the charge, taken as a whole, fairly and adequately submits
the issues and applicable law to the jury.” Fisher v. Ford Motor Co., 224 F.3d 570, 575–76 (6th

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Cir. 2000) (internal quotation marks omitted). “We will reverse a jury’s verdict on the basis of
improper instructions only when the instructions, when viewed as a whole, are confusing,
misleading, and prejudicial.” Barnes v. Owens-Corning Fiberglass Corp., 201 F.3d 815, 822 (6th
Cir. 2000). We have interpreted this standard as requiring “both an error in jury instructions and
resulting prejudice before reversal is justified.” Roberts v. Galen of Va., Inc., 325 F.3d 776, 787
n.3 (6th Cir. 2003).
Because this is a diversity case, “federal law governs our standard of review for
determining whether a jury instruction is prejudicial.” Gafford v. Gen. Elec. Co., 997 F.2d 150,
166 (6th Cir. 1993) (internal quotation marks and citations omitted).

State law, however,

determines the substance of the jury instructions. Persian Galleries, Inc. v. Transcon. Ins. Co.,
38 F.3d 253, 257 (6th Cir. 1994). “In diversity cases such as this, we apply state law in
accordance with the controlling decisions of the state supreme court.” Allstate Ins. Co. v. Thrifty
Rent-A-Car Sys., Inc., 249 F.3d 450, 454 (6th Cir. 2001).
Turning first to the question of whether this jury instruction was erroneous, Vlad argues
that Ohio case law uniformly rejects the inclusion of a “duty to look” instruction applicable to
the right-of-way driver. Ohio law defines “right-of-way” as “[t]he right of a vehicle . . . to
proceed uninterruptedly in a lawful manner in the direction in which it . . . is moving in
preference to another vehicle . . . approaching from a different direction into its . . . path.” Ohio
Rev. Code Ann. § 4511.01(UU)(1). In Morris v. Bloomgren, the Ohio Supreme Court held that
this statute confers “an absolute right of way upon the motor vehicle approaching from the right,
qualified only by the requirement that, in proceeding uninterruptedly in the direction in which it
is moving, it must proceed in a lawful manner.” 187 N.E. 2, 5 (Ohio 1933) (emphasis omitted).

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To bolster his point, Vlad heavily relies on an application of Morris in the Ohio Supreme
Court case Deming v. Osinski, 265 N.E.2d 554 (Ohio 1970). In that case, a lower court had
given an instruction that a plaintiff with the right-of-way must “look, look effectively and
continue to look and otherwise remain alert.” Id. at 555. The court held that this instruction
“completely ignores our decision in Morris.” Id. Such an instruction, “by denying the vehicle
approaching from the right its statutory privilege of proceeding uninterruptedly if it proceeds in a
lawful manner, and by placing the drivers of both vehicles upon an equal plane in approaching
an intersection and relegating both to the rules of care existing at common law,” entirely ignores
“the preferential status of the vehicle approaching from the right and the servient status of the
other vehicle.” Id. at 556.
In Deming, however, there was “nothing in the record to indicate that . . . [plaintiff] acted
in an unlawful manner.” Id. This is significant because a driver can lose the right-of-way by
driving in an unlawful manner, such as by violating a traffic statute. One of these traffic statutes
is the assured-clear-distance law. That ordinance provides that “[n]o person shall drive any
motor vehicle . . . at a greater speed than will permit the person to bring it to a stop within the
assured clear distance ahead.” Ohio Rev. Code Ann. § 4511.21(A). In our case, then, as
opposed to Deming, there is evidence in the record indicating that Vlad may have been driving in
an unlawful manner. If the jury believed Vlad’s story given in the police report, then Vlad may
have violated the assured-clear-distance statute by failing to maintain enough distance to avoid a
collision between his truck and a truck he saw 300 feet away. This case, therefore, is not
Deming.
In fact, Deming specifically juxtaposes its situation with a situation in which a vehicle is
“proceeding in violation of a law or ordinance.” Deming, 265 N.E.2d at 556. In that context,

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“such vehicle loses its preferential status and the relative obligations of the drivers of the
converging vehicles are governed by the rule of the common law.”

Id.

Deming thus

differentiates between drivers with the right-of-way and drivers that have lost the right-of-way
because they violated a statute.
Under one of Vlad’s version of the facts, Vlad would have maintained the right-of-way
until the moment of the crash, and under the other version, Vlad would have lost the right-of-way
by violating the assured-clear-distance statute. Deming tells us that the “duty to look” instruction
would be improper in the former context, but says nothing about the latter context. Further, Vlad
has not pointed us to any Ohio case law holding that the “duty to look” instruction would be
erroneous in a situation where the evidence about the right-of-way driver’s lawfulness is mixed.
And the instruction is surely not per se erroneous, because it mirrors the Ohio pattern instruction
on the “duty to look” almost exactly. See 1 OJI-CV 401.05. Vlad has thus given us no reason to
believe that, apart from the situation described in Deming in which the right-of-way driver’s
conduct is unimpeachable, the Ohio Supreme Court would find erroneous an instruction that
comports with one of its pattern instructions.
Even if the instruction were erroneous, however, it is certainly not prejudicial when
considered in the context of the charge as a whole. The district court instructed the jury on the
elements of negligence, the assured-clear-distance statute, the right-of-way, and the duty of
ordinary care—all instructions that Vlad has not appealed. In this context, an error in one
provision of the jury instructions would not rise to a prejudicial level. See, e.g., Bach v. Oucho,
697 F.2d 741, 743 (6th Cir. 1985) (rejecting a challenge to jury instructions because the
instructions, when viewed as a whole, “fairly and accurately describe [state] tort law”).

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Vlad contends that the instruction was prejudicial because the defense presented no
evidence under which the jury could have found him liable, which must mean that the jury found
him liable because of his failure to look. If that were true, the instruction might have been
prejudicial. But that is not the case here. The jury was faced with two different accounts of what
happened during the crash—ironically, both accounts coming from Vlad himself—and had to
decide which one to believe. In one account, Vlad would be at least partially liable because he
failed to maintain an assured clear distance. The jury’s decision to split liability is likely an
indicator that it believed Vlad’s police report account over his story at trial. Because Vlad never
requested jury interrogatories, he can do no more than speculate as to the theory of the case the
jury believed. Without some actual indication that the jury found him negligent because of a
supposed “duty to look,” we hold that Vlad has not shown prejudice. Rather, the instructions as
a whole fairly and adequately submitted the relevant law to the jury. Therefore, he has not
shown that the instructions as a whole prejudiced him, and his claim must fail.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.

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KAREN NELSON MOORE, Circuit Judge, dissenting. There is no dispute that Vlad
had the right of way, or that he enjoyed a privileged status as the right-of-way driver; Ohio has
relieved right-of-way drivers of the common-law duty of care.

See Morris v. Bloomgren,

187 N.E. 2, 4 (Ohio 1933); see also Deming v. Osinski, 265 N.E.2d 554, 555–56 (Ohio 1970)
(reaffirming the holding in Morris). A right-of-way driver loses his privilege, however, if he
drives unlawfully. Morris, 187 N.E. at 5. Vlad concedes that had he violated the assured-cleardistance statute, Ohio Rev. Code § 4511.21, then he would not be entitled to his right-of-way
privilege. See Appellant Reply Br. at 5; Self v. Keeney Trucking, Inc., No. 95-L-027, 1995 WL
815361, at *3 (Ohio Ct. App. Dec. 29, 1995) (“For [the right-of-way driver] to have been
proceeding in a lawful manner, he must have been obeying the rules of the road, including the
assured-clear-distance statute.”). Vlad’s contention is that the district court permitted the jury to
consider two theories of how Vlad lost his privilege as a right-of-way driver: (1) that Scott’s
truck was “reasonably discernible,” and Vlad failed to maintain an assured clear distance; or (2)
that Vlad failed to look. Vlad challenges whether it was appropriate to submit the second theory
to the jury.
The Majority overlooks the confusing aspects of the district court’s instructions, which
leave room for the jury to find that Vlad was driving unlawfully because he violated the duty to
look—a duty he did not owe. This is not a case about whether a right-of-way driver who has lost
his privilege by speeding, for example, acquires a duty to look that he did not have before he
sped. He does. See Holding v. Chappel, 535 N.E.2d 350, 352 (Ohio Ct. App. 1987) (“Only after
it has been found that the vehicle is not proceeding in a lawful manner, by violating a law or
ordinance, does the consideration of the driver’s common-law duty to use ordinary care come

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into play.”). Rather, it is about whether a right-of-way driver loses his privilege by failing to
look. And the Ohio courts have been consistent and clear that he does not.
In Deming, the Ohio Supreme Court considered the propriety of a contributorynegligence instruction when the plaintiff had the right of way and had not violated any other
traffic law. 265 N.E.2d at 555. The plaintiff was traveling in the westbound lane at the speed
limit, approaching an intersection, and noticed the defendant approaching the intersection from
the west in the left-turn lane. Id. at 554. The plaintiff glanced away from the intersection
towards an acquaintance at a gas station, and, when he returned his gaze to the intersection, the
defendant’s car was twenty or thirty feet away and turning left. Id. at 554–55. The plaintiff did
not have enough time to adjust, and the cars collided. Id. at 555. The trial court instructed the
jury on contributory negligence and denied the plaintiff’s post-verdict motion for judgment or a
new trial. Id. The trial judge gave the following reason for denying the plaintiff’s motion:
Ordinarily one need not look for danger unless there is the reason to
expect it. Plaintiff was entering a large, moderately-heavy-traffic intersection.
Defendant had her signal lights on and was in the turning lane. Plaintiff is
required to look, look effectively and continue to look and otherwise remain alert.
This is particularly so when defendant’s intention to turn was unmistakable. If he
did not do so, he could be held contributorily negligent.
Id. The Ohio Supreme Court held that the trial court’s reasoning was erroneous because the
“requirement that [the] plaintiff ‘look, look effectively and continue to look and otherwise
remain alert’ completely ignore[d]” the holding of Morris because there was no other evidence
that the plaintiff was driving unlawfully. Id. (citing Morris, 187 N.E. at 2). Thus, under
Deming, it is error to instruct the jury that a person drives unlawfully if he fails to “look, look
effectively and continue to look and otherwise remain alert.”

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Ohio Courts of Appeals have consistently adhered to this holding. In Holding, the Ohio
Court of Appeals held that a right-of-way driver does not travel “unlawfully” by “failing to use
ordinary care.” 535 N.E.2d at 352. In Wallace v. Hipp, the Ohio Court of Appeals interpreted
Deming to mean that “a driver need not look for pedestrians or vehicles violating his right of
way.” No. L-11-1052, 2012 WL 525530, at *3 (Ohio Ct. App. Feb. 17, 2012). The court noted,
however, that “the operator of a motor vehicle must exercise due care to avoid colliding with a
pedestrian [or other vehicle] in his right of way only upon discovering a dangerous or perilous
situation,” and emphasized that “a driver has no duty to look for danger unless there is reason to
expect it.” Id. (emphasis in original).
In Anderson v. Schmidt, the Ohio Court of Appeals reiterated that “[w]hether or not the
individual with the right of way exercised his common-law duty of ordinary care is not a
consideration in determining whether that individual was proceeding in a lawful manner.” No.
99084, 2013 WL 4239308, at *6 (Ohio Ct. App. Aug. 15, 2013) (internal alterations omitted)
(quoting Holding, 252 N.E.2d at 352). The duty of ordinary care “only arises . . . after the other
driver or pedestrian has failed to yield and after the individual with the right of way has realized
that there is a clearly dangerous condition in the right of way.” Id. (internal brackets omitted).
The Anderson court concluded that the duty-to-look instruction was “err[or] as a matter of law”
because it “erroneously failed to convey to the jury that a pedestrian with the statutory right-ofway is not required to continuously look for drivers violating the right-of-way.” Id. at *8. It is
therefore abundantly clear that, under Ohio law, a right-of-way driver does not lose his
privileged status by failing to look and that the district court erroneously submitted the
instruction to the jury.

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Not only did the district court err by submitting the duty-to-look instruction, but also the
instruction was prejudicial. The duty-to-look instruction implied that Vlad had a duty to keep an
eye out for merging cars or trucks, in addition to his duty to maintain an assured clear distance.
Scott’s attorney used this instruction to argue that Vlad was negligent because he was not paying
attention:
He then goes on to say this very important thing, the instruction. To be entitled to
keep the right-of-way, a driver with the right-of-way, Mr. Vlad, must drive in a
lawful manner. And if he’s not watching what’s ahead of him, remember the duty
to look that The Judge talked about, he had a duty to look in front, you’ve got a
duty to look what’s ahead of you. I mean, you can’t assume that nothing’s going
to run across my lane, a deer or anything. You just can’t assume that that’s the
case. You’ve got a duty to look. If the driver does not do so, Mr. Vlad, the driver
may lose the right-of-way of the approaching vehicle, the vehicle he was actually
approaching.
R. 56 at 96–97 (Trial Tr. 4/9/13) (Page ID #566–67). Scott’s attorney continued, “But if you
follow the facts of this case that are more credible, there’s only one conclusion here. And that
conclusion is strictly that Mr. Vlad just wasn’t paying attention.” Id. at 97 (Page ID #567).
“Inattention” became a consistent theme in the closing argument: “Mr. Vlad’s inattention is
what caused the accident. Simple. Direct. 100 percent his fault.” Id. at 99 (Page ID #569).
Finally, Scott’s attorney concluded his arguments by emphasizing Vlad’s alleged failure to pay
attention: “I don’t see any evidence that tells me that Kalvin Scott is more negligent than Viorel
Vlad who had the whole thing laid out right in front of him and didn’t pay attention. I ask you to
return a verdict rightly for the defendants in the case.” Id. at 104 (Page ID #574).
To my mind, the duty-to-look instruction permitted this line of argument—that even
though Vlad enjoyed a privileged status, he could lose that status by failing to look out for trucks
merging into his lane from the berm. And that argument is improper under Ohio law. Although
I believe there was sufficient evidence to find that Vlad had violated the assured-clear-distance
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statute, the jury’s verdict may have been based simply on the jury’s conclusion that Vlad lost his
privileged status by failing to look. Thus, the instructional error was harmful, and therefore I
dissent.

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