18 F.3d 979 (1st Cir. 1994), 93-1803, Poulin v. Greer

Docket Nº:93-1803.
Citation:18 F.3d 979
Party Name:Gerald POULIN and Brenda Poulin, Plaintiffs, Appellants, v. Alexander MacDonald GREER, et al., Defendants, Appellees.
Case Date:March 24, 1994
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 979

18 F.3d 979 (1st Cir. 1994)

Gerald POULIN and Brenda Poulin, Plaintiffs, Appellants,


Alexander MacDonald GREER, et al., Defendants, Appellees.

No. 93-1803.

United States Court of Appeals, First Circuit

March 24, 1994

Heard Feb. 18, 1994.

Page 980

Paul W. Chaiken, with whom Robert C. Granger, Brent A. Singer, and Rudman & Winchell, were on brief, for plaintiffs, appellants.

Harrison L. Richardson, with whom John B. Lucy and Richardson, Troubh & Badger, were on brief, for defendants, appellees.

Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and SELYA, Circuit Judge.

BOWNES, Senior Circuit Judge.

This diversity action arises out of a motor vehicle accident. In the pre-dawn of a late summer day in Maine, plaintiff-appellant 1 Gerald Poulin sustained serious injuries after driving his truck into the flatbed of a tractor-trailer which was blocking the road. Subsequently, Poulin sued the tractor-trailer's driver, Alexander Greer, and its owner, McConnell Transport, Ltd. A jury found defendants not liable on the ground that Greer's negligence was not the proximate cause of Poulin's injuries. 2 We affirm.

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It was a clear, dry morning on September 11, 1990. Sometime before 5:00 a.m., while it was still dark, Greer was travelling south along Route 191 in Maine, hauling a load of baled straw. Having missed his turn-off, Greer attempted to turn around in the driveway of Ray's Country Store which was located off the west side of the road. While Greer was executing this maneuver, the rear wheels of his tractor became stuck in a drainage ditch off the east side of the road. The tractor of Greer's truck had turned around and faced north; the flatbed or trailer portion of the truck sat at a forty-five degree angle across the road, blocking both lanes of traffic.

Greer turned on the yellow revolving beacon atop the tractor, as well as its hazard lights. The truck's headlights were on low beam, facing oncoming, i.e., southbound, traffic. Although Greer testified that he had reflective triangles in the truck, he never placed them on the road as a warning to approaching traffic. The trailer had a reflector on both sides of its base and on each back corner.

At approximately 4:40 a.m., Horace "Denny" Lyon arrived at the scene. Lyon was travelling north on Route 191 when he saw the yellow revolving beacon of Greer's truck from about 200 yards away. Initially Lyon thought that a "wrecker" was towing a disabled car off the road. He slowed down as he approached. Once Lyon was within seventy-five feet of the truck, he realized that there was a flatbed trailer loaded with straw blocking the road. He pulled into the driveway at Ray's, stopped his vehicle, and spoke briefly with Greer. After promising to call the police, Lyon went on his way.

Shortly before 5:00 a.m., another driver encountered the jackknifed truck. Ricky Frye was travelling north on Route 191 when he saw a large black silhouette blocking the road about 100 yards in front of him. Before pulling into the driveway at Ray's, Frye noticed the rear reflectors on Greer's trailer. After getting out of his truck, Frye noticed that the yellow revolving beacon on Greer's truck and its headlights were both on.

The crash occurred only minutes after Frye arrived at the scene. Both he and Greer, who were talking to each other outside of Ray's at the time, saw Poulin's car approaching. Unlike Lyon and Frye, Poulin was headed south on Route 191. Although they expected Poulin to see the truck, he apparently did not. Poulin neither swerved nor braked as he plowed head on into the flatbed full of straw. He suffered serious injuries.

Plaintiffs commenced this diversity action in United States District Court for the District of Maine. After the jury returned a verdict in defendants' favor, plaintiffs appealed.



Plaintiffs seek a new trial on the grounds that: (1) the district court erroneously instructed the jury as to Greer's duties as a truck driver and erred by declining to give a missing witness instruction; (2) the district court abused its discretion by refusing to exclude the testimony of Carol Ricci as a sanction for defendants' alleged discovery violation; and (3) the district court abused its discretion in denying plaintiffs' motion to compel production of a photograph of the accident scene taken one year after the accident by a consultant retained by defendants.

  1. The Jury Instructions

    Plaintiffs contend that the district court committed reversible error by failing to instruct the jury that, under Maine's comparative negligence statute, "[t]he factfinder must be told [that] ... it should give consideration to the relative blameworthiness of the causative fault of the claimant and the defendant," and that "[d]eliberate disregard of safety rules must be judged more severely than merely imperfect reaction to a crisis." Wing v. Morse, 300 A.2d 491, 500 (Me.1973). Because there was evidence that Greer had violated various state and federal safety regulations, plaintiffs claim that the jury could have found that Greer had deliberately disregarded

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    safety rules, and that, therefore, his conduct should have been judged more severely than Poulin's.

    Plaintiffs also maintain that the court's failure to instruct the jury as to two federal safety regulations was error. Specifically, plaintiffs maintain that the district court should have instructed the jury (1) that Greer could lawfully drive his tractor-trailer only if he was satisfied that he had three emergency reflective triangles with him ready for use, see 49 C.F.R. Secs. 392.8, 393.95(f)(2)(i) (1992); and (2) that if Greer's attempt to turn around had caused property damage of any kind, he had a duty to take all necessary precaution to prevent additional accidents at the scene. See 49 C.F.R. Sec. 392.40 (1992).

    Finally, plaintiffs argue that the court's failure to give a missing witness instruction constituted reversible error. The court declined to instruct the jury that it could draw an adverse inference from the fact that Greer did not testify at trial. Greer lived beyond the subpoena power of the court, and chose not to attend the trial. His deposition testimony was entered into evidence.

    In response, defendants contend that the failure to give plaintiffs' requested instructions was not erroneous, but, in any event, plaintiffs waived their challenges by failing to comply with Fed.R.Civ.P. 51.

    Before the district court charged the jury, it received proposed instructions from the parties and held a pre-charge conference. At the conference, the court informed the parties which portions of their proposed instructions it would read. Plaintiffs duly stated their objections to the court's omission of various portions of their proposed charge, including those portions at issue on this appeal. After the court instructed the jury, the judge called counsel over to the sidebar and asked: "Okay. First, in addition to any objections previously made, do you have an objection you wish to make as to the general content of the instructions at this time?" Plaintiffs' counsel replied, "No."

    Rule 51 of the Federal Rules of Civil Procedure provides that, "[n]o party may assign as error the giving or failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict...." "We have construed the Rule's requirement that a party must object 'before the jury retires to consider its verdict' to mean that the objection must be made after the instructions are given to the jury." Smith v. Massachusetts Inst. of Technology, 877 F.2d 1106 (1st Cir.), cert. denied, 493 U.S. 965, 110 S.Ct. 406, 107 L.Ed.2d 372 (1989); see Phav v. Trueblood, Inc., 915 F.2d 764, 769 (1st Cir.1990); McGrath v. Spirito, 733 F.2d 967, 968 (1st Cir.1984). Even if plaintiffs' requested instructions had been proper, counsel's failure to object to their omission after the charge constitutes waiver of the objection. See Smith, 877 F.2d at 1109; Wells Real Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 809 (1st Cir.) (collecting cases), cert. denied, 488 U.S. 955, 109 S.Ct. 392, 102 L.Ed.2d 381 (1988).

    The record here is clear: no objection was made by plaintiffs after the charge. The district court's post-charge indication that the parties' prior objections would be preserved is of no help to plaintiffs. "A trial court's statement after the charge that objections made prior to it will be saved does not absolve an attorney from following the strictures of the rule. Objections cannot be carried forward. The rule is binding on both the court and attorneys and neither can circumvent it." McGrath, 733 F.2d at 969; see Elgabri v. Lekas, 964 F.2d 1255, 1259 (1st Cir.1992) ("It is the obligation of trial counsel, as well as the trial court, to comply with the strict requirements of the Rule.").

    Because of plaintiffs' failure to comply with Rule 51, we review the trial court's instructions only for plain error. The "plain error" rule " 'should be applied sparingly and only in exceptional cases or under peculiar circumstances to prevent a clear miscarriage of justice.' " Wells Real Estate, 850 F.2d at 809 (quoting Nimrod v. Sylvester, 369 F.2d 870, 873 (1st Cir.1966)); see Elgabri, 964 F.2d at 1259. Under the "plain error" exception, an erroneous instruction warrants a new trial only where the error "seriously affected the fairness, integrity or public reputation of the judicial proceedings." See Lash v. Cutts, 943

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    F.2d 147, 152 (1st Cir.1991); Smith, 877 F.2d at 1110.

    Our review of the record reveals nothing exceptional about this case. It is evident that no "clear miscarriage of justice" has occurred, and...

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