Adams v. Fred Weber, Inc.

Citation849 F.2d 1018
Decision Date31 August 1988
Docket NumberNos. 87-2420,87-2421,s. 87-2420
PartiesJonathan Kelly ADAMS, Plaintiff-Appellee, v. FRED WEBER, INC. and Pace Construction Company, Defendants-Appellants. FRED WEBER, INC., Third Party Plaintiff-Appellee, v. PACE CONSTRUCTION COMPANY, Third Party Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Thomas E. Jones, Walker & Williams P.C., Belleville, Ill., John W. Leskera, Dunham Boman & Leskera, East St. Louis, Ill., for appellants.

Amiel Cueto, Cueto, Daley, Williams, Moore & Cueto, Ltd., Belleville, Ill., for appellee.

Before BAUER, Chief Judge, MANION, and KANNE, Circuit Judges.

BAUER, Chief Judge.

This tort case, brought in diversity, 1 arises out of a motorcycle accident near St. Louis, Missouri. The central issue is causation. Did an unmarked dropoff on a cloverleaf ramp cause the plaintiff-appellee, Kelly Adams, to lose control of his motorcycle and sustain severe injuries? Related questions also arise concerning the defendants' duty to mark the dropoff, the size of the jury's damage award, the conduct of the trial judge and plaintiff's counsel during trial, and the relative liability of each defendant. We affirm the jury's verdict for Adams.

I. Facts

Kelly Adams worked as a forklift operator at the Anheuser-Busch Brewery in St. Louis, Missouri. On the night of July 13, 1983, he was traveling home to Columbia, Illinois, on his Yamaha motorcycle after completing a 4 p.m. to midnight shift at the Brewery. From work, Adams proceeded on a cloverleaf connector ramp leading from southbound Interstate 55 ("I-55") onto eastbound Interstate 270 ("I-270"). As he left the connector ramp and entered the collector lane merging onto eastbound I-270, he hit a bump and lost control of his motorcycle. Found in a ditch on the north side of the eastbound I-270 collector lane lying among several sections of disassembled guardrail, Adams suffered fractures of his shoulder, distal tibia, pelvis, and lumbar spine, as well as a deep gouge in his left buttock.

Fred Weber, Inc. was the general contractor hired by the State of Missouri to improve ramps at the intersection of I-270 and I-55. Pace Construction Company served as Weber's subcontractor. At the accident location, Pace had laid new asphalt over old asphalt creating a dropoff caused by the change in elevation between the two layers. No warning signs or cautionary devices marked the depression.

II. Discussion

Pace and Weber admit there was a dropoff but dispute its depth (more on that later). They also admit that no cautionary warning devices marked the dropoff, but contend that such devices were not required under Missouri law. They argue, moreover, that Adams never hit the dropoff at all, and therefore, whatever caused him to lose control of his motorcycle (the defendants charge that Adams was intoxicated 2) the accident cannot be attributed to any acts or omissions of either defendant. Accordingly, Pace and Weber assign error to the trial court's refusal to direct a verdict in their favor, to grant them a judgment non obstante veredicto (judgment n.o.v.), or, in the alternative, a new trial, and for failing to strike plaintiff's expert testimony that was premised on the assumption that Adams hit the dropoff.

A. Standard of Review

Because this is a diversity case, Illinois law is controlling, including its choice-of-law rules. Twohy v. First Nat. Bank of Chicago, 758 F.2d 1185, 1189 (7th Cir.1985) (citing Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941)). Under those rules, the law of Missouri, the state with the most significant contacts to this action, 3 controls the substantive issue of negligence. Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970). Further application of Illinois's choice-of-law rules, however, dictates that the procedural law of Illinois applies, including its standard of appellate review for both the motion for directed verdict, Lorance v. Marion Power Shovel Co., 520 F.2d 737, 738 (7th Cir.1975), and the motion for judgment n.o.v. See Crossman v. Trans World Airlines, 777 F.2d 1271, 1275 (7th Cir.1985) ("Under Illinois conflict of laws principles, the procedural law of the forum state is the proper law to apply.") (citation omitted). 4

Under Illinois law,

verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.

Pedrick v. Peoria and Eastern Railroad Co., 37 Ill.2d 494, 229 N.E.2d 504, 513 (1967). Thus, where the substantive issue is negligence "[and] no facts are put forth by the plaintiff to show that the injuries sustained were caused or contributed to by an act or omission of the defendants, a judgment based on such evidence cannot be sustained." Morton v. F.B.D. Enterprises, 141 Ill.App.3d 553, 95 Ill.Dec. 903, 907, 490 N.E.2d 995, 999 (5th Dist.1986) (citations omitted). This standard, then, must be applied to the evidence in applying the relevant Missouri law of negligence. So framed, the question is whether the evidence of negligence, as defined by substantive Missouri law, viewed in a light most favorable to the plaintiff, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. 5

B. Causation

Under Missouri law, and most other states, a plaintiff pursuing a theory of negligence must show: (1) the existence of a duty owed by the defendant to the plaintiff; (2) the failure of the defendant to fulfill that duty; and (3) an injury to the plaintiff resulting from that failure (causation). Mac-Fab Products, Inc. v. Bi-State Dev. Agency, 726 S.W.2d 815, 820 (Mo.App.1987). To establish causation under Missouri law, the plaintiff need only show that the defendant's conduct was a substantial factor in producing his injuries and not the sole proximate cause. Morrow v. Greyhound Lines, Inc., 541 F.2d 713, 718 (8th Cir.1976). Causation may be established by circumstantial proof from which a reasonable inference of culpability may be drawn. Id.; but see Shelton v. Bruner, 449 S.W.2d 673, 679-80 (Mo.App.1969) ("Evidence that leaves the element of causation in the nebulous twilight of speculation, conjecture and surmise cannot establish negligence.")

There is no direct evidence that Adams traversed the dropoff. He did not see the depression either before or after losing control of his motorcycle, and no one else witnessed the accident. Instead, Adams presented circumstantial proof from which the jury could conclude that he did, in fact, cross over the unmarked dropoff, thereby losing control of his motorcycle. Pace and Weber unsuccessfully set about to persuade the jury that the facts just did not support the plaintiff's position, a contest largely duplicated on appeal.

Pace and Weber argue that Adams's theory of causation is contradicted both by his own testimony and the physical evidence found at the accident scene. The defendants contend that Adams's testimony as to the location of the "bump" cannot be reconciled with the location of the dropoff itself. Missouri State Trooper Layfette Lacey, who examined and constructed a diagram of the accident scene, established that the connector ramp was twenty-eight feet wide, twenty-one feet of which was covered with newly laid asphalt. The remaining seven feet was covered with old asphalt. This created a dropoff due to the disparate elevation of each layer of asphalt in the middle of the left side of the ramp.

At trial, Adams testified that he "assumed [h]e was near the center of the lane merging toward the left when [he] hit a severe bump." (R. 223.) Contrary to the defendants' characterization, Adams did not contend unequivocally that the "bump" he traversed was in the center of the ramp. Indeed, in response to the defendants' question, "Mr. Adams, as you sit here today, I take it you still believe you were in the middle of the pavement at the time you lost control of your motorcycle?" Adams replied, "I believe I was in a safe position. I was merging to the left, I probably started in the middle and merged to the left, yes, sir. That's the normal route." (R. 259.) Adams's testimony is, in fact, consistent with the actual location of the dropoff. He testified that the bump he struck was left of center, exactly where Officer Lacey placed the dropoff created by the defendants' repaving.

Next, the defendants argue that the location of a forty-six foot skid mark, presumably left by Adams's motorcycle, belies the fact that he traversed the dropoff. Adams and the defendants, however, do not agree on the location of the skid mark. Adams maintains that the skid mark originated at the dropoff where a "V" is formed by the merger of the connector ramp with the collector lane, thus providing circumstantial proof that he hit the dropoff. (Appellee's brief at 5.) The defendants, however, charge that Adams's brief mischaracterizes Officer Lacey's testimony as to the location of the skid mark which they argue was some distance from the dropoff itself. (Pace's reply brief at 4.) The record is muddled on this point at best.

Several references to a "V" depicted in a photograph of the scene are contained in the record. (Plaintiff's Exhibit 1B.) At one point, Officer Lacey indicates that the skid mark originated from an "area in between ... two white lines." (R. 91.) Plaintiff's counsel then asks, "Across this V here, is that correct?" Reply, "That's correct." (R. 91.) The "V" referred to by plaintiff's counsel appears to be the intersection of two white lines painted on the pavement after the accident but reflected in a photograph used at trial. Later plaintiff's counsel, again using the "V" as a reference point, asked Officer Lacey to identify a mark he had placed on the photograph asking, "Up...

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