Anderson v. Griffin

• Decision Date: 07 February 2005
• Docket Number: No. 04-1748.,No. 04-2324.,04-1748.,04-2324.
• Parties: Jesse ANDERSON and Jestine Turnbough, Plaintiffs-Appellants, v. Roy GRIFFIN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

397 F.3d 515

Jesse ANDERSON and Jestine Turnbough, Plaintiffs-Appellants, v. Roy GRIFFIN, et al., Defendants-Appellees.

No. 04-1748.

No. 04-2324.

United States Court of Appeals, Seventh Circuit.

Argued November 2, 2004.

Decided February 7, 2005.

COPYRIGHT MATERIAL OMITTED

Kenneth J. Allen (Argued), Michael T. Terwilliger, Allen & Associates, Valparaiso, IN, for Plaintiffs-Appellants in 04-1748, 04-2324.

Keith A. Gatson, Stewart & Irwin, Indianapolis, IN, James P. Buchholz (Argued), Carson Boxberger, Fort Wayne, IN, Elizabeth A. Moore, Bruce P. Clark, Clark & Associates, Munster, IN, for Defendants-Appellees in 04-1748, 04-2324.

Before POSNER, MANION, and EVANS, Circuit Judges.

POSNER, Circuit Judge.

The jury in this diversity suit for damages arising out of a highway collision returned a verdict for the defendants. The appeal challenges the voir dire, an instruction, the judge's refusal to grant a new trial on the ground that the verdict was against the weight of the evidence, and the computation of court costs. The substantive issues are governed by the common law of Indiana; the others, of course, by federal law.

Roy Griffin was a truck driver employed by Active Transportation Company. One night, as he was driving a semi-tractor truck, manufactured by International Truck and Engine Corporation, on an interstate highway in Indiana, the driveline suddenly broke (the driveline, or drive shaft, transmits power from the engine to the rear axle), severing the connection between the truck's brake pedal and the brakes and extinguishing the brake lights. Debris kicked up from the surface of the highway struck a pick-up truck driven by Bane Elliott that was traveling behind the semi. Griffin tried to maneuver the semi off the road but was not completely successful and Elliott's pick-up truck crashed into the part that had not cleared the high-way. A car driven by plaintiff Anderson (in which her sister, the other plaintiff, was a passenger) was traveling on the highway behind Elliott and ploughed into the wreckage from the collision between the two trucks, injuring the plaintiffs.

Three weeks earlier, Active Transportation Company had taken the semi into Uhl Truck Sales, a dealer in International trucks, because of looseness in the driveline. Joints ("yokes") at various intervals along the driveline act as shock absorbers, and some of these were loose. Uhl's repairman tightened them. He did no work on the slip yoke, which is in the middle of the driveline and is the place at which the driveline broke.

The plaintiffs sued Active Transportation, Griffin, and Elliott, as well as Uhl Truck Sales, but settled during the trial with all but the last. (The other defendants continue to be involved in the litigation, however, because of the dispute over court costs discussed at the end of this opinion.) An expert witness testified for the plaintiffs that on the basis of his examination of the semi-tractor truck long after the accident he believed that Uhl had negligently failed to repair the driveline when the truck was brought into its shop before the accident. Uhl's expert riposted that there had been no negligence and speculated that the accident had been caused by debris on the highway ("road junk") that the semi might have struck or that might have been yanked up and against the driveline by chains hanging down from the truck's chassis (why the loose chains — whether to serve as a ground for a static-electricity buildup in the tractor, for example — is unexplained). The plaintiffs' expert rejoined that because of the speed at which the driveshaft rotates (27 times a second) and the fact that the slip yoke has a housing around it, a piece of road junk would be highly unlikely to strike the yoke with enough force to break the driveline at that point. But the jury sided with Uhl.

The first trial error occurred, according to the plaintiffs, when the judge refused during the voir dire to propound questions to two of the prospective jurors whom the plaintiffs' lawyer suspected of being "skinheads." He feared that skinheads would be prejudiced against the plaintiffs, both of whom are black. The term "skinheads" generally refers to fierce racists, often neo-Nazi in ideology, who shave their heads, e.g., Walter M. Hudson, "Racial Extremism in the Army," 159 Military L.Rev. 1, 19-22 (1999), though there is also a group called "Skinheads Against Racial Prejudice," whose specialty is breaking up Ku Klux Klan rallies. Church of the American Knights of the Ku Klux Klan v. City of Gary, 334 F.3d 676, 680 (7th Cir.2003). The jurors in question, who had either shaven heads or very close-cropped hair, were a bearded tool-and-die maker and a young man who had recently spent four years in the army. Both lived in or near towns that had very few black residents. In common with the other prospective jurors the two had been asked about their background, education, and so forth, including what newspapers or magazines they read and what clubs or other organizations they belonged to, and nothing in their answers had suggested that they were skinheads. Nor did they have any visible tattoos that might have furnished a clue to membership in a racist organization. Nevertheless the plaintiffs' lawyer wanted the judge to ask the two whether they were racists or members of racist organizations. The judge refused. The lawyer then used one of his three peremptory challenges to remove the tool-and-die maker from the jury.

We asked at argument why he hadn't used another of his three peremptory challenges to remove the other suspected skinhead. He answered that he had to use both his remaining peremptory challenges to remove jurors who he believed disliked him. The implication is that it was his own ineptitude in managing to antagonize jurors during the voir dire, rather than the judge's refusing to allow him to pursue the skinhead issue, that resulted in the second suspected skinhead's remaining on the jury. What is more, if the judge had asked the two suspects whether they were racists and they had convinced the judge that they were not, the plaintiffs' lawyer would still have had to try to remove them from the jury, as they would know from the plaintiffs' race where the questions had come from and would probably be offended to have inferences of racism drawn from their personal appearance. And then the lawyer would have been in the same pickle, having three peremptory challenges but needing four — two for the suspected skinheads (exonerated and resentful) and two for the jurors whom he had antagonized on other grounds.

The judge committed no error in refusing to go down the path marked for him by the plaintiffs' lawyer. There was no racial issue in the case. Corporate defendants have no race; and in fact the representative of Active Transportation at the defendants' counsel table during the trial was a black person. Jurors — poorly paid conscripts who play an important role in the American system of justice — have a right not to be humiliated; questions about their personal appearance, a subject about which most people are sensitive — questions such as "Why is your hair so long?" "Why are you so fat (or so thin)?" "Why are your shirt tails hanging out?" "Are you making a political statement by wearing black lipstick and a ring through your nose?" — should therefore be avoided unless necessary to allay reasonable concerns about a juror's impartiality. See Tyus v. Urban Search Management, 102 F.3d 256, 262 (7th Cir.1996); United States v. Banks, 687 F.2d 967, 974-75 (7th Cir.1982); United States v. Barnes, 604 F.2d 121, 140 (2d Cir.1979); cf. Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510-12, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984).

Many men and even a few women shave their head as a fashion statement (Michael Jordan, the former basketball star, and Richard Grasso, the deposed chairman of the New York Stock Exchange, being conspicuous but not isolated examples); some of course lose all their hair because they are undergoing chemotherapy. Balding young men sometimes decide to go all the way. American soldiers often wear their hair cut so short that their heads look shaven, and that may well be the explanation for the "skinhead" appearance of the juror who had left the army recently. The presence of a shaved head is feeble grounds for suspecting that a person is a skinhead, even if he lives in, let alone merely near, an almost all-white community, as tens of millions of whites do. The questions about reading matter and organizations should have smoked out the presence of any skinheads, if they answered the questions truthfully; if they did not, neither would they answer the question "Are you a skinhead?" truthfully were it put to them by the judge.

Next the plaintiffs complain that the judge should not have instructed the jury that

with respect to the negligence claims of Plaintiffs, Defendants owed Plaintiffs only the duty to exercise reasonable care. The mere fact that an accident occurred, or that the Plaintiffs were injured or otherwise sustained damages, does not mean that either the Plaintiffs, or the Defendants, were negligent. Negligence can never be inferred solely, and without more, from the occurrence of an accident and resulting damage.

This is a correct, indeed fundamental, proposition of tort law. That an accident occurs and someone is injured does not establish liability under a negligence standard; the plaintiff has to show that the injury resulted from the defendant's failure to exercise due care. Nevertheless the plaintiffs insist that the instruction is improper under Indiana law. They point out that in Miller v. Alvey, 246 Ind. 560, 207 N.E.2d 633, 636-37 (1965), the Indiana Supreme Court said:

The expression "unavoidable accident" or "pure accident" is not an affirmative defense and has no particular connotation in modern pleading of negligence cases. Such terminology adds nothing to the issues...