630 F.2d 1202 (7th Cir. 1980), 79-2109, Platis v. Stockwell

Docket Nº:79-2109.
Citation:630 F.2d 1202
Party Name:Katherine PLATIS, Plaintiff-Appellant, v. David STOCKWELL, Defendant-Appellee.
Case Date:September 09, 1980
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1202

630 F.2d 1202 (7th Cir. 1980)

Katherine PLATIS, Plaintiff-Appellant,


David STOCKWELL, Defendant-Appellee.

No. 79-2109.

United States Court of Appeals, Seventh Circuit

September 9, 1980

Argued April 16, 1980.

Page 1203

Michael W. Rathsack, Chicago, Ill., for plaintiff-appellant.

Joseph McDonough, Chicago, Ill., for defendant-appellee.

Before PELL and SPRECHER, Circuit Judges, and JAMESON, Senior District Judge. [*]

PELL, Circuit Judge.

Rule 51 of the Federal Rules of Civil Procedure provides, insofar as it is relevant to this action, that "(n)o party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires . . . ." The principal issue in this appeal is whether the Supreme Court's opinion in Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), requires a federal court sitting in a diversity case to apply a seemingly contrary state statute.


This negligence action was brought by the plaintiff, Katherine Platis, to recover for injuries she sustained while skiing in Aspen, Colorado. Briefly, plaintiff and defendant collided with each other shortly after disembarking from a chairlift. At the time, both parties were bearing to the right toward an area where their ski class was assembling, and were skiing slowly. Plaintiff, who had been skiing slightly downhill of defendant contended at trial that custom required the uphill skier to yield to the downhill skier. The defendant, on the other hand, contended that the only ski custom applicable to the circumstances of the accident was that a skier be in control at all times.

The case was tried before a jury under Colorado's comparative negligence statute, Colo.Rev.Stat. § 13-21-111 (1973 & Supp.1976). That statute requires that the jury apportion negligence, that a plaintiff cannot recover unless the jury finds plaintiff's negligence to be not as great as the defendant's, that the jury make its findings in a particularized special verdict form set forth in the statute, and, of special relevance to this litigation, that the jury be instructed on the "effect of its finding as to the degree of negligence of each party." Id. at § 13-21-111(4).

The latter requirement was added to the statute by amendment in 1975, and the parties are in agreement that the failure of a trial judge in a Colorado state tribunal to inform the jury that the plaintiff will be unable to recover if he or she is found to be negligent in a degree of fifty percent or greater is reversible error, even in the absence of an objection by the parties. In the court below, the district judge held a meeting on instructions and emphasized his concern that the special verdict form be as clear as possible in order to avoid confusing the jury. During the course of the meeting, counsel for plaintiff mentioned at one point that the plaintiff could not recover if her negligence were found to be fifty percent or greater. The following day, the court distributed the special verdict forms which it had revised in order to make them more understandable to the jury. The special verdict forms were as follows:

We, the jury, present our Answers to Questions submitted by the Court, to which we have unanimously agreed:

Question No. 1: Was the defendant, David Stockwell, negligent? If your answer to this question is 'no', answer no further questions.

Answer No. 1: __________

Question No. 2: If your answer to the first question was 'yes', state the amount of damages, if any, you find were sustained by the plaintiff and proximately caused by the accident.

Answer No. 2: __________

Question No. 3: Was the plaintiff, Katherine Platis, also negligent?

Answer No. 3: __________

Question No. 4: If your answers to both the first and third questions are 'yes', then you are to answer this question:

Taking the combined negligence that proximately caused the injuries as 100 percent, what percent of that negligence was attributable to the defendant and what percent was attributable to the plaintiff?

Answer No. 4: __________

Percent attributable to defendant,

David C. Stockwell ___________%

Percent attributable to plaintiff,

Katherine Platis ___________%

Must Total 100%

Page 1204

The instructions given to the jury contained a lengthy explanation of the purpose of the special verdict, but did not inform the jury that plaintiff could not recover if her negligence were found to be in a degree of fifty percent or more. Plaintiff's trial counsel neither requested such an instruction nor objected to the failure of the court to give one. The jury found that both parties had been negligent, and that the negligence was attributable to the plaintiff in a degree of sixty-five percent, with thirty-five percent being attributable to the defendant. It also found that plaintiff's damages were in the amount of $52,500. Judgment was entered on the verdict, and the trial judge subsequently denied plaintiff's motion for a new trial, which again raised no issue regarding the correctness of the jury instructions.


Plaintiff, inter alia, argues on appeal that the fact that the $52,500 damages found by the jury is exactly thirty-five percent of the amount requested by plaintiff's trial counsel in his closing argument ($150,000) indicates that the jury was confused as to what the effect of their findings would be on plaintiff's right to recover, and that this confusion in itself is grounds for a mistrial. She theorizes that the jury first figured her damages at approximately $52,500, and then manipulated the apportionment of negligence percentage against the relief requested during argument to arrive at what they thought was a just recovery. Whether the jury in fact arrived at its answers to the special verdict in this manner is purely conjectural, a process in which we decline to participate, and the trial judge quite properly exercised his discretion in denying plaintiff's motion for a new trial on this ground.

Similarly, we reject plaintiff's contention that the trial judge abused his discretion in denying her motion for a new trial on the ground that the verdict was against the weight of the evidence. The jury might well have concluded from the evidence that plaintiff was simply not skiing under control and that her negligence in this regard constituted sixty-five percent of the cause of her injuries.


Plaintiff next contends that because the trial court's failure to give the "fifty percent" instruction would have been reversible error had the action been brought in the state courts of Colorado, the Supreme Court's "outcome determinative" holding in Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945) requires reversal here. Because plaintiff failed to comply with Federal Rule 51, we disagree.

The Erie doctrine 1 is not a monolithic legal principle to be employed in resolving all disputes as to the applicable law or procedure in diversity actions....

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