Heatherly v. Alexander, 03-4013.

• Decision Date: 26 August 2005
• Docket Number: No. 03-4013.,03-4013.
• Citation: 421 F.3d 638
• Parties: Carroll E. HEATHERLY, as Independent Administrator of the Estate of Margaret M. Heatherly, deceased; Carroll E. Heatherly, individually, Plaintiffs—Appellants, Thomas C. Heatherly, individually; Margaret C. Heatherly, individually; Bridget C. Heatherly, individually; Patrick B. Heatherly, individually, Plaintiffs, v. Steven ALEXANDER; Black Creek Transport, Inc., Defendants, Midwest Specialized Transportation; David Gilbertson, Defendants—Appellees,
• Court: U.S. Court of Appeals — Eighth Circuit

421 F.3d 638

Carroll E. HEATHERLY, as Independent Administrator of the Estate of Margaret M. Heatherly, deceased; Carroll E. Heatherly, individually, Plaintiffs—Appellants Thomas C. Heatherly, individually; Margaret C. Heatherly, individually; Bridget C. Heatherly, individually; Patrick B. Heatherly, individually, Plaintiffs, v. Steven ALEXANDER; Black Creek Transport, Inc., Defendants Midwest Specialized Transportation; David Gilbertson, Defendants—Appellees,

No. 03-4013.

United States Court of Appeals, Eighth Circuit.

Submitted: November 17, 2004.

Filed: August 26, 2005.

COPYRIGHT MATERIAL OMITTED

Michael K. Demetrio, argued, Chicago, IL (Robert J. Bingle, Chicago, IL, Daniel B. Cullan and Paul Madgett, Omaha, NE, on the brief), for appellant.

Ted L. Perryman, argued, St. Louis, MO (Eugene P. Welch, Omaha, NE, on the brief), for appellee.

Before SMITH, BEAM, and BENTON, Circuit Judges.

BEAM, Circuit Judge.

On the afternoon of June 26, 1999, Carroll Heatherly, his wife Margaret Heatherly, and their four children Thomas, Brigid, Meg, and Patrick, embarked in a motor home on a vacation trip to Yellowstone National Park from their home in Lisle, Illinois. Tragically, the trip ended in Nebraska with the death of Margaret, and serious injury to Carroll. This personal injury and wrongful death litigation ensued.

Heatherly, individually and in his capacity as independent administrator of the estate of his deceased wife, appeals the district court's grant of judgment as a matter of law (JML) to defendants Midwest Specialized Transportation (MST) and its employee David Gilbertson. We reverse and remand for a new trial.

I. BACKGROUND

We recount the facts of this case in the light most favorable to Heatherly, the non-moving party. Sip-Top, Inc. v. Ekco Group, Inc., 86 F.3d 827, 830 (8th Cir.1996).

On June 26, 1999, David Gilbertson, a professional truck driver working for MST of Rochester, Minnesota, who had nine years of trucking experience, was hauling a load of paper from Minnesota to California in his tractor-trailer unit. Around 1:15 a.m. June 27, he became tired and decided to pull off Interstate 80 to sleep at the Phillips rest area located at mile marker 317. Gilbertson parked his truck on the shoulder (or emergency lane) of the deceleration portion of the exit ramp¹ leading into the rest area. He and his son Dennis, who was riding with him, went to sleep in the tractor's sleeper bunks. At around 2:30 a.m., the Heatherlys' motor home approached mile marker 317 from the east. They were towing a Ford Escort. Another tractor-trailer rig, stolen and being driven by Steven Alexander, was coming up behind the motor home at a speed of nearly ninety miles-per-hour. A series of four collisions ensued. First, Alexander's truck struck the back of the towed Escort. This propelled the Escort forward, striking the back of the motor home. The Escort rotated and was briefly sandwiched between the motor home and Alexander's truck before Alexander's truck ran over the top of the Escort. The third impact involved Alexander's truck striking the back of the motor home. This forced the motor home, still traveling at some sixty-seven miles-per-hour, head-long into the back of the parked MST truck, the fourth and final impact. Alexander's truck proceeded, unimpeded, across the deceleration lane, and across the shoulder of the lane. It came to rest in the grassy ditch next to the shoulder of the lane. The motor home and MST truck trailer were soon engulfed in flames. All four of the Heatherly children and Carroll Heatherly were rescued, though Carroll Heatherly was badly injured. Margaret Heatherly was killed in the collision. Doctors had to amputate Carroll Heatherly's right leg below the knee.

Heatherly commenced this diversity action in the United States District Court for the District of Nebraska. Before trial, Alexander and Black Creek Transport, Inc.² were dismissed as defendants, leaving defendants Gilbertson and MST. At the close of the evidence, defendants moved for JML pursuant to Rule 50 of the Federal Rules of Civil Procedure. Taking the motion under advisement, the district court submitted the case to the jury. After the jury deadlocked, the district court declared a mistrial, granted defendants' JML motion and then dismissed the case. The district court concluded, as a matter of law, that Gilbertson's conduct in parking the MST truck where he did on the exit ramp was not a proximate cause of the Heatherlys' injuries, but merely created a condition by which those injuries were made possible through the negligence of Alexander. Heatherly appeals.

II. DISCUSSION

The question before us is whether it was error to grant JML to defendants on this issue of proximate cause. "In a diversity action for negligence, we apply the law of the forum state," Jordan v. NUCOR Corp., 295 F.3d 828, 834 (8th Cir.2002), in this case, Nebraska. Heatherly contends that, in granting JML to defendants, the district court misapplied Nebraska law regarding proximate cause and failed to consider the evidence in the light most favorable to Heatherly, the non-moving party. We review a district court's grant of JML de novo and apply the same standards as the district court. Sip-Top, 86 F.3d at 830. A motion for JML is properly granted where "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party" on that issue. Id. (quotation omitted); Fed.R.Civ.P. 50. Judgment as a matter of law "is appropriate where the evidence is such that . . . there can be but one reasonable conclusion as to the verdict." Sip-Top, 86 F.3d at 830 (quotation omitted).

Thus, this case requires us to undertake a de novo review of the law of proximate cause in Nebraska and its application by the court in this particular case. Proximate cause analysis invariably involves complex issues of tort law in general, and this case is no exception.

A. Foreseeability: The Crux of Nebraska Proximate Cause Law

Under Nebraska negligence law, proximate cause consists of three elements: that (1) but for the negligence, the injury would not have occurred, (2) the injury is the natural and probable result of the negligence, and (3) there is no efficient intervening cause.³ Shelton v. Bd. of Regents of the Univ. of Neb., 211 Neb. 820, 320 N.W.2d 748, 752 (1982). The foreseeability of an injury that results from a negligent act determines whether that injury is the "natural and probable result" of the act. "To constitute proximate cause . . . the injury must be the natural and probable result of the negligence, and be of such a character as an ordinarily prudent person could have known, or would or ought to have foreseen might probably occur as the result." Steenbock v. Omaha Country Club, 110 Neb. 794, 195 N.W. 117, 118 (1923) (emphasis added). "The law does not require precision in foreseeing the exact hazard or consequence which happens. It is sufficient if what occurs is one of the kind of consequences which might reasonably be foreseen." Brown v. Neb. Pub. Power Dist., 209 Neb. 61, 306 N.W.2d 167, 171 (1981) (quotation omitted). Further, "[a] proximate cause is a cause that produces a result in a natural and continuous sequence, unaccompanied by an efficient intervening cause, and without which the result would not have occurred." Tapp v. Blackmore Ranch, Inc., 254 Neb. 40, 575 N.W.2d 341, 348 (Neb.1998). An efficient intervening cause

is a new and independent act, itself a proximate cause of a result, which breaks the causal connection between the original wrong and the result. A person is not legally responsible for a result if it would not have resulted but for the interposition of an efficient intervening cause, which he should not have reasonably anticipated or reasonably foreseen.

Id. (emphasis added).

Causation is "ordinarily a question for the trier of fact." Id. See King v. Crowell Mem'l Home, 261 Neb. 177, 622 N.W.2d 588, 594 (2001); Sharkey v. Bd. of Regents of the Univ. of Neb., 260 Neb. 166, 615 N.W.2d 889, 900 (2000) ("[I]n the proximate cause context . . . foreseeability is a question of fact for the finder of fact."); Knoll v. Bd. of Regents of the Univ. of Neb., 258 Neb. 1, 601 N.W.2d 757, 763 (1999) (same); Kozicki v. Dragon, 255 Neb. 248, 583 N.W.2d 336, 340 (1998) ("Determination of causation is ordinarily a matter for the trier of fact."). Only where the evidence is such that "only one inference can be drawn" is it "for the court to decide whether a given act or series of acts is the proximate cause of the injury." Tapp, 575 N.W.2d at 348. See Tess v. Lawyers Title Ins. Corp., 251 Neb. 501, 557 N.W.2d 696, 706 (1997) ("The issue of proximate cause, in the face of conflicting evidence, is ordinarily a question for the trier of fact."). The determination of causation is for the trier of fact because of the unique role foreseeability plays in causation. In Kozicki, the Nebraska Supreme Court cited Hill v. Yaskin, 75 N.J. 139, 380 A.2d 1107 (1977), in holding that the role of foreseeability as it applies to determinations of duty and causation presents "two separate issues," a point upon which we elaborate below. 583 N.W.2d at 339.

In the instant case, it is difficult to tell the extent to which the role of foreseeability was considered in the analysis of proximate cause. This leaves us with two concerns. First, the question of causation was decided as a matter of law, when it is generally a matter of fact under Nebraska law. Second, though the district court relied on relevant precedent, our analysis of Nebraska proximate cause law dictates a different outcome. As an initial matter, proximate cause appears to have been analyzed from the standpoint that "`X' is a condition, therefore `X' is not a cause." Instead, we think the question should have been "Is `X' a proximate cause?" and if it is not, then "X" may be merely a condition. This latter approach follows the weight of...