Lovett v. Union Pacific Railroad Co.

• Decision Date: 13 September 1999
• Docket Number: No. 98-3906,98-3906
• Citation: 201 F.3d 1074
• Parties: (8th Cir. 2000) WILLA JARI LOVETT, BY AND THROUGH WILLA JAUNICE LOVETT, HER NATURAL MOTHER, ACTING AS THE GUARDIAN OF THE PERSON AND THE ESTATE OF WILLA JARI LOVETT, BY NEXT FRIEND, WILLA JUANICE LOVETT; APPELLANT; v. UNION PACIFIC RAILROAD COMPANY; CHRYSLER CORPORATION, A DELAWARE CORPORATION; APPELLEES. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1074

201 F.3d 1074 (8th Cir. 2000)

WILLA JARI LOVETT, BY AND THROUGH WILLA JAUNICE LOVETT, HER NATURAL MOTHER, ACTING AS THE GUARDIAN OF THE PERSON AND THE ESTATE OF WILLA JARI LOVETT, BY NEXT FRIEND, WILLA JUANICE LOVETT; APPELLANT; v. UNION PACIFIC RAILROAD COMPANY; CHRYSLER CORPORATION, A DELAWARE CORPORATION; APPELLEES.

No. 98-3906

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: September 13, 1999

Decided: January 19, 2000

Rehearing and Rehearing En Banc

Denied March 13, 2000

Appeal from the United States District Court for the Western District of Arkansas. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Wollman, Chief Judge, and Heaney and Loken, Circuit Judges.

Heaney, Circuit Judge.

Willa Jari Lovett sued DaimlerChrysler Corp. (Chrysler) and Union Pacific Railroad Company (Union Pacific) for injuries she sustained when the Chrysler Jeep Cherokee she was a passenger in collided with a Union Pacific locomotive. The jury returned a verdict in favor of both defendants. Lovett raises five issues on appeal. She contends that the district court erred by: (1) admitting evidence of her failure to wear her seat belt, (2) excluding evidence of other similar incidents involving a Jeep Cherokee, (3) excluding evidence that Chrysler changed its rear-liftgate design, (4) refusing to give a cautionary instruction in response to Union Pacific's closing argument, and (5) granting summary judgment on Union Pacific's duty to keep a lookout. We affirm.

I. Background

On February 5, 1995, 16-year-old Lovett rode in Molena Richey's 1985 Chrysler Jeep Cherokee with Richey and Kari Currier. Richey drove the vehicle; Currier was seated in the front passenger seat; and Lovett was seated in back.

The Cherokee approached a railroad crossing marked with a crossbuck and stop sign near Alma, Arkansas. As Richey neared the stop sign, she looked in both directions, but she did not see or hear an approaching Union Pacific train. As she started past the stop sign, the train, moving at a speed of 47 miles per hour, struck the left front of the Cherokee. The initial impact caused the vehicle to rotate in a clockwise direction and hit the right side of the train. This second impact continued the Cherokee's rotation, ultimately causing a third impact between the left rear corner of the Cherokee and the train's fuel tank. The Cherokee then flung away from the train and rolled over.

During the collision, the Cherokee's rear liftgate broke from the vehicle, and Lovett was ejected through the open liftgate area. She sustained permanent brain damage. Neither Currier nor Richey were ejected in the accident, and both suffered only minor injuries.

On October 3, 1996, Lovett sued Chrysler and Union Pacific in the Eastern District of Arkansas¹ for personal injuries she suffered in the accident. She alleged negligence and strict liability against Chrysler, and negligence alone against Union Pacific. After an eighteen-day trial, the jury returned a verdict for Chrysler and Union Pacific.

II. Chrysler

With regard to Chrysler, Lovett appeals the district court's evidentiary rulings to: (1) admit evidence of her failure to use her seat belt, (2) exclude evidence of other similar incidents involving a Jeep Cherokee, and (3) exclude evidence that Chrysler changed its rear-liftgate design.

A. Seat Belt Non-Use

Lovett first appeals the district court's denial of her motion in limine to exclude evidence of her seat belt non-use. In its pre-trial order denying Lovett's motion, the court stated:

[T]he Court will permit Chrysler to attempt to prove its defense of failure to wear a seat belt on the limited issues of whether (1) its product is defectively designed and unreasonably dangerous or (2) whether Lovett's injuries are attributable to some cause other than the product design. Chrysler may not, however, attempt to prove that Lovett - arguably not even required by law to wear the seat belt - was negligent or at fault or contributed to or failed to mitigate her damages. Furthermore, Chrysler may not simply introduce evidence of Lovett's non-use of the seat belt in the absence of evidence tending to prove that Lovett's damages were caused by a source other than the alleged defective design. In other words, Chrysler may not just "throw" the seat belt evidence to the jury, leaving jurors to speculate as to the proximate cause of her alleged injuries.

See Lovett v. Union Pac. R.R. Co., Civ. File No. 97-2036 (W.D. Ark. Oct. 7, 1998) (order denying plaintiff's motion in limine to exclude seat-belt evidence, at 5) (emphasis added).

Seat-belt evidence was admitted at trial over Lovett's objection. In her case-in-chief, Lovett called Officer Steven Roberts, who took a statement on the day of the accident from Molena Richey, in which Richey stated that neither Currier nor Lovett were wearing seat belts.

During Union Pacific's cross-examination of Roberts, it sought to admit the written statement into evidence. Lovett objected on hearsay grounds and because the statement contained evidence that she had not been wearing her seat belt. The court then discussed, outside of the jury's presence, a proposed limiting instruction, which read:

Ladies and gentlemen of the jury, you are told that evidence concerning; one, whether seat belts were installed in the Jeep Cherokee at the time of the accident; and two whether, if installed, seat belts were in use by any of the occupants in the Jeep at the time of the accident may be considered by you only for the limited purposes of a) determining whether the Jeep is defectively designed and unreasonably dangerous, and/or b) determining whether plaintiff's injuries are attributable to some cause other than the design of the Jeep.

(Tr. Vol. II at 282-83.)

In response to the proposed instruction, Lovett's attorney stated: "Certainly I don't agree with it. I understand that [the proposed instruction is] the Court Order and we would renew our objection which was made in our Motion in Limine." (Id. at 283) (emphasis added).) After admitting Roberts' written statement, the district court instructed the jury according to the limiting instruction.

At the close of trial, the court proposed the following jury instruction:

If you find that there was a design defect in the Jeep Cherokee, you are instructed the design defect subjects Chrysler Corporation to liability for only that portion of Ms. Lovett's damages or injuries which were proximately caused by the defective design. That is, you are instructed that even if you find that there was a design defect in the Jeep Cherokee, Chrysler Corporation is not liable for any damage or injury which would have occurred as a result of the collision even in the absence of the defective design.

When I use the word "fault" in these instructions, I mean negligence and supplying a product in a defective condition.

. . . . .

On February 5, 1995, there was no law in the state of Arkansas requiring a passenger in the back seat of a motor vehicle to wear a seat belt. The failure to wear a seat belt may not be considered by you as evidence of fault -- on the part of the plaintiff with respect to her negligence claims.

The fact that the Jeep Cherokee was supplied with a seat belt may be considered solely in determining whether the vehicle was in a defective condition which rendered it unreasonably dangerous.

(Tr. Vol. X at 1995-96.)

Lovett objected to the district court's seat-belt instruction:

Your Honor, Instruction 25. We are making this objection in line with our objection to any evidence being admitted about seat belt[s] in the first place. And therefore to maintain consistency, we're renewing our objection that we first filed in limine and brought throughout the trial; that there should not have been any evidence of seat belts in this trial and thus instructing the jury on seat belts is error.

(Tr. Vol. X at 1926 (emphasis added).) The court responded, "I take it then it is in the nature of a derivative objection and it arised [sic] from the objection made at trial to receive that evidence at all. But that being understood, does the plaintiff have any objection to the form of the instruction if it were to otherwise be -" (Id. at 1926-27.) Lovett then replied, "No sir. Reserving and preserving our original objection, we do not object to 25 in its present state." (Id. at 1927.)

After the district court instructed the jury as proposed, the case was submitted using a general verdict form to which Lovett did not object. The verdict form read, "Do you find from a preponderance of the evidence that there was fault on the part of Chrysler which was a proximate cause of the damages sustained by Willa Lovett?" The jury responded, "No."

Chrysler argues that we are precluded from reviewing the admissibility of the seat-belt evidence because Lovett failed to preserve her argument for appeal. We disagree. A motion in limine to exclude evidence is sufficiently preserved for appeal if the evidence is objected to at trial. See Aerotronics, Inc. v. Pneumo Abex Corp., 62 F.3d 1053, 1066 (8th Cir. 1995); see also United States v. Kandiel, 865 F.2d 967, 972 (8th Cir. 1989) (holding that a motion in limine to exclude evidence is insufficient to preserve a claim of error where the evidence is admitted at trial without objection). In addition to making her motion in limine, Lovett specifically objected to the admissibility of the seat-belt evidence at trial as demonstrated above. Thus, her objection was preserved, and we review her claim on the merits.

At the time of the accident Arkansas law provided that:

The failure to provide or use a seat belt shall not be considered under any circumstances as evidence of comparative or contributory negligence or failure to mitigate damages, nor shall such failure be admissible as evidence in the trial of any civil action with regard to negligence. Neither shall the failure to provide or use seat belts be considered...