Hauser v. Krupp Steel Producers, Inc.

• Decision Date: 23 May 1985
• Docket Number: No. 84-4127,84-4127
• Citation: 761 F.2d 204
• Parties: Mrs. Dennis HAUSER, Plaintiff/Appellant, v. KRUPP STEEL PRODUCERS, INC., D/B/A Universal Steel Company, Defendant/Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 204

761 F.2d 204

Mrs. Dennis HAUSER, Plaintiff/Appellant, v. KRUPP STEEL PRODUCERS, INC., D/B/A Universal Steel Company Defendant/Appellee.

No. 84-4127.

United States Court of Appeals Fifth Circuit.

May 23, 1985.

Paul Snow, P.A., Jim Brantley, Jackson, Miss., for plaintiff-appellant.

Michael W. Ulmer, Watkins & Eager, Heidelberg, Woodliff & Franks, John B. MacNeill, Jackson, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before RANDALL, JOHNSON and GARWOOD, Circuit Judges.

JOHNSON, Circuit Judge:

Anita Hauser, the plaintiff below, appeals from an adverse judgment in this Mississippi diversity case. At trial, Hauser sought damages from the defendant, Krupp Steel Producers, Inc., d/b/a Universal Steel Company (hereinafter Universal), for loss of consortium due to substantial injuries Hauser's husband sustained in a nighttime collision between two tractor-trailers on an interstate highway. Hauser asserted that the collision was caused by Universal's negligence. On appeal, Hauser asserts several grounds of error. This Court finds merit to one of those contentions and we hold that the district court incorrectly instructed the jury on Hauser's primary theory of recovery. For the reasons stated below, the judgment of the district court is reversed, and the case remanded for proceedings consistent with this opinion.

I. BACKGROUND

The collision giving rise to the instant action involved two tractor-trailer trucks. One of these trucks was operated by Universal's employee Larry Meadows, and the other truck was driven by Hauser's husband. About 2:30 a.m. on July 15, 1977, while driving on Interstate 20 in Mississippi, Meadows realized that his right wheel was on fire. Meadows stopped his truck and parked it some distance downhill from the crest of a hill. The parties hotly dispute whether Meadows parked the truck completely off the roadway on the right shoulder of the highway, or whether the truck remained partially in the right traffic lane of the highway. The evidence at trial conflicted on this point. In any event, Hauser's husband was travelling in the right lane of the highway and he crashed into the left rear of Meadows' truck. Hauser's husband suffered substantial physical injuries.

It is indisputable that flares were not placed around Meadows' disabled vehicle. Miss.Code Ann. Sec. 63-7-71 requires that flares or other signals be placed around a disabled vehicle if the vehicle extends into the traffic lane. Meadows, by way of explanation, testified that he did not have time to set out the flares before his truck was hit by Hauser's husband's vehicle. Meadows stated that immediately after extinguishing the fire in the right wheel, he returned to the cab of his truck to get the flares, but that Hauser's husband's truck struck Meadows' truck before Meadows could get the flares.

The facts at trial also demonstrated that earlier in the evening of the crash, Meadows discovered that the bearings in his right wheel were overheating. Meadows testified that he stopped at a truckstop in Jackson, Mississippi, and that he could smell grease "frying" in the wheel. Meadows telephoned his employer, Universal, with this information, and Universal told him to continue driving to his destination in Georgia. Later, Meadows again noticed overheating in the wheel. Meadows parked his truck on the shoulder of the road and went to a service station where Meadows again telephoned Universal. This time, Universal informed Meadows to pull off the road at the next exit. Meadows continued driving down the road toward the next exit. Shortly thereafter, Meadows noticed that fire was coming from his right wheel; he pulled over to the edge of the road and shortly thereafter the collision occurred.

In an earlier and separate action, Hauser's husband successfully sued Universal. In the instant case, asserting offensive collateral estoppel, Hauser contended that she was entitled to partial summary judgment on the issue of liability. The district court denied Hauser's motion for partial summary judgment, and Hauser appeals that ruling. As stated, the instant case was tried to a jury and the jury returned a verdict in favor of Universal. Hauser appeals, asserting on appeal (1) that the district court erred in not finding Universal negligent as a matter of law, and (2) that the district court erroneously instructed the jury on Hauser's theory of the case. ¹ This Court concludes that the district court erroneously instructed the jury on Hauser's theory of the case. For the reasons stated below, the judgment of the district court is reversed and the case remanded for proceedings consistent with this opinion.

II. DISCUSSION

A. Offensive Collateral Estoppel

Hauser contends that she was entitled to partial summary judgment on the issue of liability on the ground that Universal was collaterally estopped from denying liability because the jury in Hauser's husband's earlier case found Universal liable for his injuries. The district court denied Hauser's motion for partial summary judgment, and Hauser appeals that ruling. In its ruling, the district court relied on Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). The district court found that Hauser was a "wait and see" plaintiff not entitled to offensive collateral estoppel because Hauser failed to present a valid reason for not joining her husband's earlier action. Thus the district court perceived that it would be unfair to allow offensive collateral estoppel in this case. ² This Court presently addresses this issue because the availability to Hauser of offensive collateral estoppel would decide the liability issue on remand. This Court affirms the order of the district court denying Hauser's motion for partial summary judgment.

First, although the district court may have relied in part on Mississippi law in denying offensive collateral estoppel, federal law governs the collateral estoppel effect of an earlier federal judgment, even in diversity cases. Wehling v. Columbia Broadcasting Co., 721 F.2d 506, 508 (5th Cir.1983). In Parklane Hosiery, supra, the United States Supreme Court approved the use of offensive collateral estoppel. The Supreme Court noted that the preferable approach to offensive collateral estoppel was not to preclude the doctrine, but to grant the district court broad discretion to determine when the doctrine should be available. The Supreme Court stated:

The general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where, either for the reasons discussed above or for other reasons, the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel.

439 U.S. at 331, 99 S.Ct. at 651-52 (emphasis added). This Court has recognized that district courts have broad discretion to determine the availability of offensive collateral estoppel. Nations v. Sun Oil Co., 705 F.2d 742, 744 (5th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 239, 78 L.Ed.2d 229 (1983).

In the instant case, the district court concluded that Hauser was a "wait and see" plaintiff. The district court found that there was no reason that Hauser could not have joined in her husband's earlier action. That finding is not clearly erroneous, and this Court concludes that the district court did not abuse its discretion in denying offensive collateral estoppel.

B. The Jury Instructions

The main thrust of Hauser's case is that Miss.Code Ann. Sec. 63-7-71 requires that flares or other warning devices be placed around a disabled vehicle that extends into the roadway, and that Universal's driver failed to place warning devices as required by the statute. Section 63-7-71(1) provides:

Whenever any motor truck or bus is stopped upon the highway except for the purpose of picking up or discharging passengers, or its lighting equipment is disabled during the period when lighted lamps must be displayed on vehicles and such motor truck or bus cannot immediately be removed from the main traveled portion of a highway outside of a business or residence district, the driver or other person in charge of such vehicle shall cause such flares, fusees [sic], reflectors, or other signals to be lighted or otherwise placed in an operating condition and placed upon the highway, one at a distance of approximately one hundred feet to the rear of the vehicle, one approximately one hundred feet in advance of the vehicle and the third up on the roadway side of the vehicle....

Violation of this statute constitutes negligence. See Powers v. Malley, 302 So.2d 262 (Miss.1974).

Hauser contends that the district court incorrectly instructed the jury regarding this statute because the district court instructed the jury that Meadows, Universal's driver, had a reasonable time in which to place the flares before violating the statute. The district court instructed the jury as follows:

The Court instructs the jury that if you believe from a preponderance of the evidence that Larry D. Meadows parked the truck of the defendant beside the eastbound lane of I-20, leaving a portion of the rear of said truck extending into the traveled portion of I-20, and failed to place flares, fuses or other signals to the rear of the truck within a reasonable time, then the Court instructs you that the defendant was negligent.

Record Vol. 3 at 359 (emphasis added). The Court also instructed the jury:

The Court instructs the jury that the driver of the defendant tractor-trailer rig had no obligation to place upon the highway flares, fuses, reflectors, or other signals, unless the defendant's truck was partly on the traveled portion of I-20. In the case at bar, if you believe from a preponderance of the evidence that the defendant's tractor-trailer rig was partly on the main traveled portion of I-20, then the Court instructs you that the...