Gonzalez v. Volvo of America Corp.

• Decision Date: 08 March 1985
• Docket Number: No. 82-2786,U-H,82-2786
• Parties: Roger P. GONZALEZ, Sr., Individually and as Administrator of the Estate of Jennie Gonzalez, and Judith Gonzalez, Plaintiffs-Appellees, v. VOLVO OF AMERICA CORPORATION, Defendant-Appellant, andaul Company of Central Indiana, Inc., d/b/aaul Moving Center, Defendant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 295

752 F.2d 295

Roger P. GONZALEZ, Sr., Individually and as Administrator of the Estate of Jennie Gonzalez, and Judith Gonzalez, Plaintiffs-Appellees, v. VOLVO OF AMERICA CORPORATION, Defendant-Appellant and U-Haul Company of Central Indiana, Inc., d/b/a U-Haul Moving Center, Defendant.

No. 82-2786.

United States Court of Appeals Seventh Circuit.

Argued Sept. 26, 1983.

Decided Jan. 4, 1985.

As Amended on Denial of Rehearing and Rehearing En Banc March 8, 1985.

Mark C. Ladendorf, Yosha & Cline, Indianapolis, Ind., for plaintiffs-appellees.

William M. Osborn, Osborn & Hiner, Indianapolis, Ind., for defendant-appellant.

Before CUDAHY, Circuit Judge, PELL, Senior Circuit Judge, and WILKINS, Senior District Judge. ^*

PER CURIAM.

The controversy in this case has traveled a tortuous path. In March of 1978, plaintiff-appellee Roger Gonzalez, Sr. filed suit in the United States District Court for the Western District of Arkansas. Plaintiff-appellee sought damages for the wrongful death of his wife, Jennie Gonzalez, and also sought damages for personal injuries incurred by his minor daughter Judith, for whom he appeared as next friend. Plaintiff-appellee named U-Haul of Central Indiana Inc. as the sole defendant in that action.

Six months later, Roger Gonzalez, Sr. added defendant-appellant Volvo of America Corporation as a defendant in his Arkansas action. Approximately one year later, the court dismissed his complaint against U-Haul for lack of personal jurisdiction. Gonzalez subsequently filed a new action against U-Haul in the United States District Court for the Southern District of Indiana and then successfully moved to transfer his Arkansas action against Volvo to the same district.

The Indiana district court consolidated these actions against U-Haul and Volvo. At this time, three years after his wife's death, Roger Gonzalez, Sr. was appointed administrator of his wife's estate. One year later, Gonzalez filed an amended complaint to reflect this change of status. In addition, Judith Gonzalez filed suit in her own name against defendants U-Haul and Volvo, she having attained majority. The Indiana district court accepted these complaints as timely and held a jury trial in August, 1982.

The jury returned a verdict against defendants U-Haul and Volvo, and the court entered its judgment accordingly. Defendant U-Haul subsequently negotiated a loan-receipt agreement with plaintiffs Roger and Judith Gonzalez and has not appealed. Defendant Volvo appealed.

On May 16, 1984, 734 F.2d 1221, this court reversed the jury's verdict and remanded the case to the Southern District of Indiana for a new trial. This opinion supersedes that decision.

I. THE FACTS

This case arose from a one-car accident which took place in Arkansas on September 2, 1977, at approximately 4 a.m. The car involved in this accident was a 1974 Volvo station wagon. The Volvo was pulling a U-Haul trailer by means of a Croft PH 60 hitch installed by defendant U-Haul. Plaintiff Judith Gonzalez was driving the car at the time of the accident. Testimony presented at trial established that she lost control of the Volvo. The Volvo subsequently rolled over, still pulling the U-Haul trailer.

Judith Gonzalez and her mother, Jennie Gonzalez, were thrown from the car. Jennie Gonzalez died as a result of her injuries. Judith Gonzalez suffered severe back injuries, but regained her ability to walk after surgery and substantial physical therapy.

Plaintiffs Judith and Roger Gonzalez do not contend that Volvo manufactured their 1974 station wagon, or its bumper, defectively. Rather, plaintiffs maintain that their Volvo was "in a defective condition unreasonably dangerous" because defendant-appellant Volvo of America Corporation failed to warn them that certain trailer hitches should not be attached to Volvo's energy absorption bumpers. See RESTATEMENT (SECOND) OF TORTS Sec. 402A and comment j (1965). Volvo's owners manual warned Volvo owners that driving with a trailer involved no particular difficulties provided they followed the recommendations of the trailer manufacturer concerning equipment and loading. The owners manual additionally advised Volvo owners that Volvo dealers could recommend suitable hitches for Volvo vehicles. The plaintiffs concede that they never discussed the matter of a hitch with any representative of Volvo.

Evidence presented at trial suggested that the Croft PH 60 hitch, which defendant U-Haul attached to the Gonzalez station wagon, was unsuitable for use with that vehicle. The evidence indicated that the Croft PH 60 hitch was designed for use with outmoded C-shaped bumpers and not modern energy absorption bumpers. Roger Gonzalez testified that U-Haul selected the Croft PH 60 hitch after two other trailer hitches would not work.

II. DEFENDANT-APPELLANT'S CONTENTIONS

Volvo appeals from the district court's entry of judgment for plaintiffs-appellees on several grounds. Only three of these grounds merit discussion.

A. Closing Argument

First, Volvo maintains that this court must order a new trial to rectify the allegedly flagrant misconduct of plaintiffs' attorneys during closing argument. In particular, Volvo directs the court's attention to counsel's repeated references to defendant-appellant's corporate stature and wealth. Volvo argues that counsel for plaintiffs thereby appealed to the jurors' sympathy by contrasting its wealth with the relative poverty of plaintiffs. In addition, Volvo argues that counsel for plaintiffs suggested that its officers were guilty of criminal behavior. Finally, Volvo contends that counsel for plaintiffs urged the jurors to consider improper and extraneous matters in returning their verdict. Volvo cites as an example the following appeal by counsel for plaintiffs to the jury:

You will have a chance to do something about this all. You ladies and gentlemen, as jurors, are the representatives of our community. You, by your verdict today in this court, will be able to set safety standards that you want applicable for our country. You will be able to tell these defendants, 'We will not tolerate you putting a defective product out on the market which will cause the death of a loved one and break the back of another--because we don't want it to happen to our loved ones.'

Volvo does not explain, however, why it failed to object to these statements at the time they were made.

This court agrees that counsel's conduct was grossly immoderate. Indeed, we are not able to state affirmatively that this type of appeal to the jury might not have influenced the eventual verdict improperly. Nevertheless, we believe that defendant-appellant should have voiced its objection to the trial court at the time the immoderate comments were made. The Supreme Court, similarly, has held a civil defendant bound by its silence at trial. In U.S. v. Socony-Vacuum Oil Co., 310 U.S. 150, 238-39, 60 S.Ct. 811, 851-52, 84 L.Ed. 1129 (1940), for example, the Court observed: "[C]ounsel for the defense cannot as a rule remain silent, interpose no objections, and after a verdict has been returned seize for the first time on the point that the comments to the jury were prejudicial."

Like the defendant in Socony-Vacuum, defendant-appellant waited until the jury had returned an unfavorable verdict to complain to the trial court that plaintiffs' closing argument had been improper. Perhaps defendant-appellant feared that a contemporaneous objection would incur hostility from the jury. This court need not speculate as to the nature of defendant-appellant's motives. Suffice it to note, however, that risky gambling tactics such as this are usually binding on the gambler. This court has not hesitated in the past to bind a party to its strategic decision to sit silent in the face of claimed error by refusing relief when the party complains because the result is unfavorable. See Sadowski v. Bombardier Ltd., 539 F.2d 615, 618 (7th Cir.1976). See also Wichmann v. United Disposal, Inc., 553 F.2d 1104, 1106 (8th Cir.1977).

Some fundamental trial errors, of course, may mandate new trials despite the lack of contemporaneous objection. See Christian v. Hertz Corp., 313 F.2d 174, 175 (7th Cir.1963). Nonetheless, we decline to find that such fundamental error occurred here. In the absence of objection and the giving to the trial court an opportunity to attempt to ameliorate the situation by a curative instruction, we must assume that the jury had the ability to separate inflammatory and emotional rhetoric from the relevant facts in the case. We also observe that defendant-appellant did not appeal on the ground that the jury's verdict was excessive, and thus apparently implicitly conceded that the jury was uninfluenced by extraneous concerns. As a consequence, this court declines to reverse the jury's verdict on the basis of misconduct by appellees' counsel during closing argument.

B. Choice of Law

Appellant's next contention gives us more cause for concern. Appellant contends that these actions should never have advanced to trial at all because they were untimely. However, their untimeliness depends upon what law governs the various issues in the case.

The district court below applied federal procedural law to determine whether the actions filed by Roger Gonzalez, Sr. and Judith Gonzalez were timely. In particular, the district court applied Federal Rules of Civil Procedure 15(c) and 17(a) to relate plaintiffs' final amended complaints back to the date of their prior complaints against Volvo.

Volvo maintains that the relation-back issue was substantive and not procedural. As a result, Volvo contends that state substantive law should govern the relation-back issue in this diversity case. Volvo argues that timely substitution of Judith Gonzalez for her father as next friend was a substantive condition precedent to her ability to bring suit. Likewise, Volvo argues that timely appointment of Roger Gonzalez, Sr. as administrator of his wife's...