Bauer v. J.B. Hunt Transport, Inc.

• Decision Date: 27 July 1998
• Docket Number: No. 97-2701,97-2701
• Parties: Patricia D. BAUER, Independent Administrator of the Estate of Susan M. Pointer, deceased, Plaintiff-Appellant, v. J.B. HUNT TRANSPORT, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 759

150 F.3d 759

Patricia D. BAUER, Independent Administrator of the Estate

of Susan M. Pointer, deceased, Plaintiff-Appellant, v. J.B. HUNT TRANSPORT, INC., Defendant-Appellee.

No. 97-2701.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 11, 1998.

Decided July 27, 1998.

Andrew Ward (argued), Berger & Berger, Evansville, IN, for Plaintiff-Appellant.

Joshua G. Vincent (argued), Hinshaw & Culbertson, Chicago, IL, Michael A. Lawder, Hinshaw & Culbertson, Belleville, IL, for Defendant-Appellee.

Before CUDAHY, EASTERBROOK, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Susan Pointer died on a stormy afternoon in May 1995, when a tractor-trailer driven by an employee of J.B. Hunt Transport veered from the right side of the road and rolled over on top of her vehicle. Patricia Bauer, the administrator of Pointer's estate, filed suit in diversity against J.B. Hunt, a Georgia corporation, charging it with negligence; a jury found in the defendant's favor. Bauer appeals, contending that the district court erroneously refused to instruct the jury that it was J.B. Hunt's burden to prove that the weather, as opposed to its own negligence, was the sole proximate cause of the collision and that the court improperly excluded expert testimony as to the factors that can cause a truck to roll over. We affirm.

I.

At approximately 3:00 p.m. on May 18, 1995, Susan Pointer was driving her Ford Ranger pick-up truck northbound on Illinois Route 130, a two-lane highway, toward Albion, Illinois. A J.B. Hunt tractor trailer driven by Tom Cope approached from the opposite direction, traveling between 50 and 58 miles per hour (and possibly more slowly) on a downgrade. The weather was deteriorating: as a threatening storm cloud approached the road from the west, rain was already falling and the winds were increasing. Witnesses who were driving southbound behind the J.B. Hunt vehicle noted a line of trees on the west or right side of the road. One of those witnesses surmised that those trees acted as a windbreak; thus, where the tree line ended, the winds on the roadway suddenly became much more severe. Northbound drivers reported a steady deterioration of the weather as they approached the point where the collision occurred, becoming particularly bad within one-half mile of the site. The driver of the car behind Pointer testified that she had reduced the speed of her vehicle substantially below the limit of 55 miles-per-hour as the weather worsened and that Pointer was driving at a comparable or slower speed.

As the tractor-trailer passed the trees and traveled around a broad curve in the roadway, it began to tip over. The truck crossed from the right, southbound lane of traffic into the northbound lane, where it rolled over on its side on top of Pointer's vehicle and then slid down the embankment on the side of the road with Pointer's truck beneath it. The left front tire of the tractor-trailer left a skid mark that began in the southbound lane and terminated in the northbound lane; lug nuts on the same wheel of the truck also left a number of gouge marks in the northbound lane. Pointer lived briefly after the collision but died before medical personnel arrived at the scene. Cope, the J.B. Hunt driver, also died as a result of the collision.

After she was appointed the independent administrator of Pointer's estate, Bauer filed an action against J.B. Hunt asserting claims under the Illinois wrongful death and survival statutes on behalf of Pointer's mother, brother, and sister. See 740 ILCS 180/1 et seq.; 755 ILCS 5/27-6. The complaint alleged that the negligence of J.B. Hunt's agent had proximately caused Pointer's death.

At trial, J.B. Hunt argued primarily that the foul weather was responsible for the collision as an intervening cause. That theory was reflected in a number of the affirmative defenses that J.B. Hunt had pleaded in its answer, among them the first: "Defendant states that the loss or injury to the plaintiff's decedent occurred as a result of an Act of God which could not have been prevented by human care, skill or foresight." R. 4 at 2. Another defense alternatively attributed Pointer's death to an "act of nature." R. 4 at 3. Consistent with these defenses, J.B. Hunt originally proposed an instruction which would have advised the jury, in relevant part, as follows:

In this lawsuit, defendant, J.B. Hunt Transport, Inc., claims that this incident was the result of an Act of nature or Act of God, and defendant has the burden of proving the following two propositions:

First, [t]hat there was an Act of God or Act of nature which occurred;

Second, that plaintiff, Susan Pointer's, death was proximately caused by said Act of God or Act of nature.

R. 79, Def. Instr. No. 18 (emphasis supplied).

Near the close of the trial, however, during the jury instruction conference, J.B. Hunt's counsel withdrew the act of God instruction, explaining that "[t]he whole question of the act of God really goes right at the heart of proximate cause in the case, and ... you know, that's the plaintiff's burden." Tr. 384. Bauer's attorneys objected, insisting that J.B. Hunt bore the burden of proving that an act of God or nature had caused Pointer's death. They subsequently offered an instruction similar to the one the defense had withdrawn (R. 78, Pl.Instr.No. 34), but the district court declined to give it. ¹ Instead, the court opted to deliver a slightly modified version of the pattern instruction for negligence actions in which the intervention of an "outside agency" may have been the sole or partial cause of the plaintiff's injuries:

If you decide that the defendant was at fault and that its fault was a proximate cause of the death of the plaintiff's decedent, it is not a defense that something else may also have been a cause of the death.

However, if you decide that the sole proximate cause of the death of the plaintiff's decedent was something other than the conduct of the defendant, then your verdict should be for the defendant.

R. 77, Def. Instr. No. 26D; Tr. 497-98; see ILLINOIS PATTERN JURY INSTRUCTIONS (CIVIL) § 12.05 (1995).

Neither the modified pattern instruction nor any other that the court gave suggested to the jury that J.B. Hunt bore the burden of proving that the weather was the sole proximate cause of Pointer's death; on the contrary, the instruction outlining the plaintiff's theory of the case indicated that it was her burden to prove that "defendant J.B. Hunt Transport Inc.'s failure to exercise ordinary care was a proximate cause of [Pointer's] death." R. 77, Pl. Instr. No. 12 (revised); Tr. 502. Not surprisingly, then, in closing defense counsel made the following argument in response to Bauer's contention that the J.B. Hunt truck was traveling at an excessive rate of speed for the weather and road conditions:

Well, I haven't heard any evidence to say that if the vehicle had been going any less than 55 miles an hour, if it had been slowed down going 40 miles an hour or 30 miles an hour, whether this truck wouldn't have gone over. There is no evidence of that. It's [the plaintiff's] burden to prove that. I don't have to disprove it. I don't have to prove that this wind at 10 miles an hour wouldn't have blown it over. At this point in time, you have no evidence to suggest otherwise. And quite frankly, given, you know, the testimony, I believe it's clear that that was an intense wind, and the fact that the truck was going 55 miles an hour versus 45 or 35 doesn't make any difference here. And certainly they haven't proved it.

Tr. 477.

The jury apparently agreed that the weather, rather than any negligence on J.B. Hunt's part, was responsible for the roll-over and Pointer's death. On the verdict form, the jury indicated that neither J.B. Hunt nor Pointer was at fault. R. 75.

II.

A. Jury Instruction

Bauer's first attack on the judgment centers on the district court's refusal to deliver a jury instruction on the act of God defense. Bauer argues that the withdrawal of the act of God instruction, coupled with the giving of the pattern instruction on proximate cause, left the jury with the purportedly mistaken impression that it was her burden to disprove the defendant's affirmative defense. Bauer emphasizes that once she succeeded in establishing a prima facie case of negligence, J.B. Hunt bore the burden of establishing that some circumstance other than the negligence of its driver was the sole cause of Pointer's injuries. Throughout the case, J.B. Hunt had posited, consistent with its act of God defense, that the weather was the real cause of the collision. But because J.B. Hunt was permitted to withdraw the act of God instruction, the jury was not instructed that the defendant bore the burden of proof on that defense. Thus, as Bauer sees things, J.B. Hunt had the benefit of the act of God defense but escaped the legal burden attending that defense.

Our review of the jury instructions is limited. E.g., DePaepe v. General Motors Corp., 33 F.3d 737, 743 (7th Cir.1994). In evaluating the district court's exercise of discretion in instructing the jury, see American Nat'l Bank & Trust Co. of Chicago v. Regional Transp. Auth., 125 F.3d 420, 434 (7th Cir.1997), we ask "whether the jury was misled in any way and whether it had understanding of the issues and its duty to determine those issues." Midcoast Aviation, Inc. v. General Elec. Credit Corp., 907 F.2d 732, 741 n. 7 (7th Cir.1990) (internal quotation marks and citations omitted); accord United States v. Vitek Supply Corp., 144 F.3d 476, 487-88 (7th Cir.1998); United States v. Dack, 987 F.2d 1282, 1284 (7th Cir.1993); Trustees of Indiana Univ. v. Aetna Cas. & Sur. Co., 920 F.2d 429, 437 (7th Cir.1990). "We reverse only if 'the jury's comprehension of the issues is so misguided that it prejudiced the complaining party.' " Vitek, 144 F.3d at 487-88, quoting Dack, 987 F.2d at 1284. Naturally, we look to Illinois law in this...