Palmer v. Krueger

• Decision Date: 05 March 1990
• Docket Number: No. 88-1375,88-1375
• Parties: 30 Fed. R. Evid. Serv. 297 Debra Renee PALMER, Executrix of the Estate of Virginia Ruth Krueger, deceased, Plaintiff-Appellant, v. Richard R. KRUEGER, Executor of the Estate of William Ryan Krueger, deceased; and Beech Aircraft Corporation, a foreign corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1529

897 F.2d 1529

30 Fed. R. Evid. Serv. 297

Debra Renee PALMER, Executrix of the Estate of Virginia Ruth

Krueger, deceased, Plaintiff-Appellant, v. Richard R. KRUEGER, Executor of the Estate of William Ryan

Krueger, deceased; and Beech Aircraft

Corporation, a foreign corporation,

Defendants-Appellees.

No. 88-1375.

United States Court of Appeals, Tenth Circuit.

March 5, 1990.

Rehearing Denied April 3, 1990.

Howard K. Berry, Jr. of Berry & Berry, Oklahoma City, Okl., for plaintiff-appellant.

Burton J. Johnson (Rocklin D. Lyons with him on the brief) of Looney, Nichols, Johnson & Hayes, Oklahoma City, Okl., for defendant-appellee Richard R. Krueger.

B.J. Cooper (Gerard F. Pignato with him on the brief), Oklahoma City, Okl., for defendant-appellee Beech Aircraft Corp.

Before LOGAN, HENLEY ^* and ANDERSON, Circuit Judges.

HENLEY, Senior Circuit Judge.

Plaintiff-appellant, Debra Renee Palmer, executrix of the estate of Virginia Ruth Krueger, appeals from an order of the district court ¹ denying her motion for a new trial following a wrongful death action. The court entered judgment for defendants-appellees, Richard R. Krueger, executor of the estate of William Ryan Krueger, and Beech Aircraft Corporation (Beech), after a jury returned a verdict in their favor on December 14, 1987. We affirm.

Jurisdiction in this action is based on diversity of citizenship of the parties. See 28 U.S.C. Sec. 1332. Palmer--a Texas resident--first brought suit against Krueger--an Oklahoma resident--in an Oklahoma state court, at which time Krueger joined Beech--a Kansas corporation--by a third party petition. Palmer then dismissed her case in state court and refiled this action in federal court, naming both Beech and Krueger as defendants.

I. FACTS

On the evening of July 1, 1983, Virginia Krueger and her husband, Bill--a licensed pilot--took off from the Woodring Airport at Enid, Oklahoma, in their Beech Bonanza A-36 airplane. Mr. Krueger piloted the plane. The evening was clear, with winds gusting from twenty to twenty-seven knots from the south. Bill Krueger had originally purchased the airplane to fly for pleasure, but later made use of it in a business which he and Mrs. Krueger owned jointly.

Less than two minutes after takeoff, Mr. Krueger radioed that he would be returning for a landing. The air traffic controller, Aleta Kinsaul, asked if Krueger was experiencing trouble. Mr. Krueger answered "negative." Upon its re-approach, Kinsaul observed the plane turn and disappear behind a row of trees in an apparent nosedive. Immediately thereafter, the plane crashed and exploded into flames some one thousand feet from the runway. Both of the Kruegers were killed, and the airplane was destroyed.

Debra Renee Palmer, daughter of Virginia Krueger, was plaintiff below in this wrongful death action, which arose from her mother's death in the airplane crash. Palmer asserted claims for negligence against the pilot's estate, and negligence The executor of the pilot's estate--and son of Krueger, Richard R. Krueger--denied negligence and exclusive control of the airplane. He also asserted affirmative defenses of sudden emergency, assumption of the risk, unavoidable accident, and contributory negligence. Beech denied negligence and the presence of a defect at the time the airplane left its control. Beech also asserted the supervening negligence of the pilot and third parties over whom Beech had no control, as well as the defenses of misuse, assumption of the risk, and contributory negligence.

and products liability against the aircraft manufacturer, Beech.

Plaintiff's expert testified at trial that he believed the airplane door was open when the crash occurred. Other testimony indicated the possibility of other kinds of mechanical difficulties causing the plane crash. No conclusive evidence was introduced as to the cause of the accident.

This lawsuit in large part is the unfortunate product of a dispute involving siblings by marriage.

II. ISSUES

On appeal, Palmer contends that it was reversible error for the district court (1) to give instructions on unavoidable accident, assumption of risk, contributory negligence and sudden emergency; (2) to fail to give an instruction on res ipsa loquitur; (3) to refuse to allow plaintiff to cross-examine and introduce rebuttal evidence to counter defendant Krueger's testimony as to the source of tension between plaintiff and defendant families; and, finally, (4) to refuse to allow plaintiff to introduce evidence that defendant Beech had knowledge of other Beech aircraft door opening incidents.

III. JURY INSTRUCTIONS

In a diversity action, the substance of instructions to the jury is a matter of state law, while the trial court's determination on whether to grant or deny such instructions is procedural and is a matter of federal law. Farrell v. Klein Tools, Inc., 866 F.2d 1294, 1296 (10th Cir.1989). A jury instruction need not contain particular wording, but must only convey a correct statement of the applicable law. Furr v. AT & T Technologies, Inc., 824 F.2d 1537, 1549 (10th Cir.1987).

Unless the district court committed error in connection with a certain instruction, we need not look for prejudice. If an erroneous instruction was made, however, we review the entire record to determine if prejudice has resulted. See Wheeler v. John Deere Co., 862 F.2d 1404, 1411 (10th Cir.1988). When error occurs, we seek to determine if the jury was misled and whether it understood the issues placed before it for determination. See Patty Precision Prods. v. Brown & Sharpe Mfg., 846 F.2d 1247, 1252 (10th Cir.1988). Finally, we always keep in mind the admonition of Federal Rule of Civil Procedure 61: "The Court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." See also 28 U.S.C. Sec. 2111.

UNAVOIDABLE ACCIDENT

We turn first to Palmer's contention that the unavoidable accident instruction constitutes reversible error. The trial judge instructed: "An unavoidable accident is one which occurs without negligence on the part of any person. If you find from the evidence in this case that the accident was unavoidable, then your verdict should be for the defendants."

Palmer first asserts that this instruction was outside the scope of the pretrial order and was prejudicial since it was a source of surprise. We find no showing that appellant objected at trial on the grounds that this instruction was outside the scope of the pretrial order. In order to preserve an issue for appeal, a party must specifically object and state the grounds for such objection. Fed.R.Civ.P. 51. In her brief, Palmer cites us to "Transcript, Vol. V, pp. 890, 893-895" as the pertinent pages dealing with her objection to the unavoidable accident instruction. However, we find no objection plainly stating that Palmer objected on the ground that it was beyond the scope of the pretrial order. Although these pages do show Palmer objected to this instruction on the ground that it was not supported by the evidence, this is insufficient to preserve the pretrial order issue for appeal, unless plain error is involved. Big Horn Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259, 1274 (10th Cir.1988); C. Wright & A. Miller, Federal Practice and Procedure Sec. 2554, at 647 & n. 71 (1971).

The trial judge has a great deal of discretion in determining whether to give instructions on defense theories which are outside the scope of the pretrial order. See generally Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 455-58 (10th Cir.1982) (holding that district court did not abuse its discretion in giving instruction on issue that was not in pretrial order). In its order denying Palmer's motion for a new trial, the court stated that the issue of unavoidable accident was raised by the evidence, citing Federal Rule of Civil Procedure 15(b) ². If the judge determines that a particular instruction is warranted because it was tried by consent, it will not be deemed error later unless we determine that the trial judge committed an abuse of discretion. See Hardin, 691 F.2d at 458.

We find no such abuse here. There is no unfair surprise where a judge, after a jury trial involving negligence allegations against two defendants, allows the negligence question to go to the jury framed as an unavoidable accident instruction. On the contrary, where the ultimate issue is negligence, it is only going outside the pretrial order in a technical sense to raise the defense because this is only a different way of examining the negligence question. Since Palmer raised the issue of negligence, we see no plain error in the judge's determining that the issue was tried by consent.

Palmer next argues that under Oklahoma law there was no evidence to support an unavoidable accident instruction. The Oklahoma Supreme Court has recently elucidated the unavoidable accident instruction in Ankney v. Hall, 764 P.2d 153 (Okla.1988). In Ankney the court in cautionary language laid out several guidelines for the use of this instruction. Included among these is that an unavoidable accident instruction only be used where there is a "showing [of] some factor over which the parties had no control, or could not, except by the exercise of exceptional foresight, have predicted." Id. at 154 (quoting Hayward v. Ginn, 306 P.2d 320, 323-24 (Okla.1957)).

Palmer points out that in its order denying a new trial the district court relied on the state court of appeals' opinion in Ankney, which was subsequently reversed by the Oklahoma Supreme Court. However, we do not believe the Oklahoma Supreme Court holding in Ankney compels us to find that the unavoidable accident instruction in the case at bar was error, since the facts at bar and those in Ankney are distinguishable. In Ankney the Oklahoma Supreme Court held the unavoidable accident instruction was error because in that case there was a presumption of...