Littleton v. McNeely, 07-3478.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtRiley
Citation562 F.3d 880
PartiesMichael LITTLETON; Gerri Littleton, Plaintiffs/Appellees, v. Brandon McNEELY, Defendant/Appellant, Brandon McNeely, Third Party Plaintiff/Appellant, v. Robert Smedley, Third Party Defendant/Appellee, Lisa A. Smedley, Third Party Defendant.
Docket NumberNo. 07-3478.,07-3478.
Decision Date09 April 2009

Paul P. Hasty, Jr., Schmitt Manz Swanson & Mulhern, P.C., Overland Park, KS, argued (Theresa Shean Hall, on the brief) for appellant Brandon McNeely.

David R. Adair, Haden, Cowherd & Bullock, L.L.C., Springfield, MO, argued, for appellee Robert Smedley.

Eric G. Jensen, O'Reilly & Jensen, L.L.C., Springfield, MO, argued, for appellees Michael Littleton and Gerri Littleton.

Before RILEY, BOWMAN, and COLLOTON, Circuit Judges.

RILEY, Circuit Judge.

This case arises from the collision of two boats on the Lake of the Ozarks on June 19, 2005. One boat was driven and occupied by Brandon McNeely (McNeely). The other boat was owned by Robert Smedley and occupied by Robert Smedley, Michael Littleton, and their wives, Lisa Smedley and Gerri Littleton.

A jury found McNeely 45% at fault for the collision and Michael Littleton, who had been driving Robert Smedley's boat moments before the collision, 55% at fault. McNeely appeals, arguing the district court erred by (1) denying his motion for judgment as a matter of law on his contribution claim against Robert Smedley, (2) limiting discovery and excluding photographs at trial, (3) allowing a false closing argument, (4) refusing a jury instruction, (5) barring evidence of violation of a statute, and (6) precluding expert testimony. We affirm in part and reverse in part.


The Smedleys and Littletons arrived at the Lake of the Ozarks on Friday, June 17, 2005, for a three-day weekend. Robert Smedley brought his 19-1/2 foot 1993 Crownline boat. On the afternoon of Sunday, June 19, 2005, the group shopped and ate lunch, then got on the boat around 3:00 or 4:00 p.m. They proceeded to a cove, where Robert Smedley drank beer. Michael Littleton also consumed three or four beers. At the cove, the Smedleys discussed their marriage. Lisa Smedley had filed for divorce before the trip, and Robert Smedley was hoping to reconcile. Meanwhile, the Littletons swam nearby. During their discussion, Lisa Smedley told Robert Smedley she intended to go through with the divorce. Robert Smedley became distraught and emotional.

The group went to the Salty Dog restaurant around 8:00 or 8:30 p.m. Michael Littleton drove the boat to the restaurant. Smedley drank another beer or two at the Salty Dog. The Littletons both testified Gerri Littleton did not consume any alcohol that day. Michael Littleton did not consume alcohol at dinner. Upon leaving the Salty Dog, Robert Smedley asked Michael Littleton to drive the boat because Robert Smedley was distraught and had consumed alcohol. Michael Littleton agreed to drive the boat. The group intended to return to the Tan-Tar-A Resort where they were staying. It was dark outside. As they left the restaurant, Robert Smedley testified he placed the pole light in the back of the boat and told Michael Littleton how to turn on the lights. Michael Littleton drove the boat, controlling the speed and route of the boat, and Robert Smedley did not provide any further direction or assistance in driving the boat after Michael Littleton backed the boat out of the slip. The Smedleys rode in the back seat, arguing.

About twenty minutes after leaving the Salty Dog, Michael Littleton stopped the boat because he was lost. As the Littletons and Smedleys were attempting to determine their location, the boat was struck by a 26 foot Formula Thunderbird boat operated by 20-year-old McNeely. The Littletons and Smedleys testified they did not see McNeely's boat before it struck them. McNeely told a water patrol officer on the scene he was driving his boat and suddenly heard a "huge thud." McNeely testified he did not see Robert Smedley's boat before he hit it, and he did not see any lights on Robert Smedley's boat. When McNeely turned around, he saw Robert Smedley's boat was capsizing and heard a woman screaming for help. McNeely called 911 and helped get the Littletons and Smedleys out of the water. At the time of the collision, McNeely testified he was going around 20 miles per hour. When the two boats collided, the Littletons and Smedleys claim no one was in the driver's seat of Robert Smedley's boat and no one was near the controls. The Littletons and Smedleys were injured.

The Littletons sued McNeely in Missouri state court. McNeely removed the case to federal court based on diversity jurisdiction, asserting counterclaims for contribution against the Littletons and a third party complaint against Smedley for the imputed negligence of Michael Littleton.1 The jury determined Michael Littleton was 55% at fault, McNeely was 45% at fault, Gerri Littleton was 0% at fault, and Robert Smedley was 0% at fault. The district court did not instruct the jury to make a finding whether Michael Littleton's negligence should be imputed to Robert Smedley.

A. Imputed Negligence

The parties agree Missouri law governs this diversity action. See General Elec. Capital Corp. v. Union Planters Bank, N.A., 409 F.3d 1049, 1053 (8th Cir. 2005). We review de novo the district court's interpretation of Missouri law. Id. In resolving substantive issues of state law, we are bound by the decisions of the Missouri Supreme Court. See Bass v. Gen. Motors Corp., 150 F.3d 842, 846-47 (8th Cir.1998).

McNeely argues Michael Littleton's negligence should be imputed to Robert Smedley because Robert Smedley owned the boat, was a passenger at the time of the collision, and had a right to control the boat at the time of the collision. Robert Smedley claims there were factual disputes regarding whether Robert Smedley was in a joint venture with Michael Littleton at the time of the collision. Because McNeely failed to submit a jury instruction on joint venture, Robert Smedley argues McNeely waived the argument Michael Littleton's negligence should be imputed to Robert Smedley. McNeely asserts he was not required to submit a joint venture instruction, or any instruction at all, because Robert Smedley's ownership and presumed right to control the boat makes Robert Smedley liable for Michael Littleton's negligence as a matter of law.

In his third party complaint, McNeely asserted Robert Smedley was responsible for Michael Littleton's negligence under theories of joint venture and captain of the ship, and alleged Robert Smedley owned the boat and "the fault [of Michael Littleton] is imputed." McNeely submitted a jury instruction on the captain of the ship theory, but McNeely did not propose a joint venture instruction.2 Because McNeely did not propose a jury instruction on joint venture or any other theory of imputed liability, McNeely waived his right to submit the matter to the jury, unless we determine the district court's refusal to instruct the jury on imputed liability was plain error. See Slidell, Inc. v. Millennium Inorganic Chems., Inc., 460 F.3d 1047, 1056 (8th Cir.2006) (explaining failure to propose a jury instruction results in plain error review); see also Whitted v. Healthline Mgmt., Inc., 90 S.W.3d 470, 479 (Mo. Ct.App.2002) (declaring failure to submit an instruction waives any point of error a party may have regarding that claim). However, McNeely did move for judgment as a matter of law on the issue of imputed liability. The district court denied McNeely's motion. Thus, the question before this court is whether the district court erroneously denied McNeely's motion for judgment as a matter of law.

In ruling on a motion for judgment as a matter of law, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court should grant judgment as a matter of law "only when all of the evidence points one way and is `susceptible of no reasonable inference sustaining the position of the nonmoving party.'" Smith v. World Ins. Co., 38 F.3d 1456, 1460 (8th Cir.1994) (quoting White v. Pence, 961 F.2d 776, 779 (8th Cir.1992)).

The district court denied McNeely's motion for judgment as a matter of law because it determined there was a factual dispute as to whether Robert Smedley had equal control of the boat at the time of the collision. This determination was erroneous. Under Missouri law, the critical inquiry is not whether Robert Smedley actually had equal control of the boat at the time of the collision, but whether Robert Smedley had a right of control and whether an agency relationship existed between Robert Smedley and Michael Littleton. Recently, the Missouri Supreme Court addressed the circumstances under which a driver's negligence can be imputed to an owner-passenger of a vehicle. See Bach v. Winfield-Foley Fire Prot. Dist., 257 S.W.3d 605, 606 (Mo.2008) (en banc). In Bach, Nephew used Aunt's car to drive her to a widows' meeting. Id. at 607. Aunt asked Nephew to drive her car because Aunt did not know how to drive and had no license. Id. Nephew rear-ended a fire truck, which was parked partially in his lane attending to another accident, and Aunt was injured. Id.

Aunt sued Nephew and the Winfield-Foley Fire Protection District (Fire District), arguing the Fire District failed to exercise adequate care by parking the fire truck in a lane of traffic, and failed to warn of the blocked roadway. Id. The Fire District argued Aunt, as the owner of the car, was responsible for Nephew's contributory fault as if it were her own because Aunt and Nephew were engaged in a joint venture or joint journey at the time of the collision. Id. The jury instructions given by the district court did not ask the...

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