Potts v. Benjamin

• Decision Date: 21 August 1989
• Docket Number: No. 88-1834,88-1834
• Citation: 882 F.2d 1320
• Parties: John POTTS, individually, as Administrator of the Estate of Brandon Potts, deceased, and as Father and Natural Guardian of Jeffery Potts and Kimberly Potts, minors, and Karen Potts, individually, Appellees, and v. Joe BENJAMIN and Ferrell Benjamin, individually and d/b/a Fleet Service, Appellants, Ramiro Murillo Inturralde.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1320

882 F.2d 1320

John POTTS, individually, as Administrator of the Estate of

Brandon Potts, deceased, and as Father and Natural Guardian

of Jeffery Potts and Kimberly Potts, minors, and Karen

Potts, individually, Appellees, and v. Joe BENJAMIN and Ferrell Benjamin, individually and d/b/a

Fleet Service, Appellants,

Ramiro Murillo Inturralde.

No. 88-1834.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 11, 1989.

Decided Aug. 21, 1989.

C. Tab Turner, Little Rock, Ark., for appellants.

R. David Lewis, Little Rock, Ark., for appellees.

Before LAY, Chief Judge, and ARNOLD and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

On Thanksgiving Eve 1985, Karen Potts and her three young children Brandon, Jeffery, and Kimberly were passengers in a station wagon driven by Mrs. Potts' sister Vickie Williams; Mrs. Williams, her children, and the Pottses were en route to the sisters' parents' home for the holiday. As they neared the intersection of Interstates 30 and 630 in Little Rock, heavy congestion brought traffic to a standstill. While they were waiting for the traffic to begin moving again, a tractor truck driven by Ramiro Murillo Inturralde, onto which two other tractor trucks had been decked or "piggybacked" earlier that day in Memphis by Joe and Ferrell Benjamin (doing business as Fleet Service), collided with the cars stopped on the roadway, setting off a chain reaction of collisions among a number of cars including Mrs. Williams' station wagon. Ultimately the station wagon was also struck by Inturralde's vehicle. In the collision Mrs. Potts, Jeffery, and Kimberly were injured. The force of the collision hurled Brandon, age two, onto the roadway, where he was run over by Inturralde's vehicle. Brandon died a few minutes later in his mother's arms.

John Potts (individually, as administrator of Brandon's estate, and as father of Jeffery and Kimberly) and Karen Potts (hereafter referred to collectively as "plaintiffs") brought suit against the Benjamins, individually and as Fleet Service, and Inturralde in the District Court ¹ pursuant to 28 U.S.C. Sec. 1332. The case was tried in July 1987 and ended in a hung jury. The case was retried the following May, the jury returning verdicts in favor of plaintiffs on the wrongful death claim and on their individual claims, and awarding punitive damages against each defendant. The District Court entered judgment on the jury verdicts and denied the Benjamins' motion for a new trial. The Benjamins (hereafter referred to as "defendants") appeal from this judgment, ² alleging a number of grounds for reversal and a new trial. We find no reversible error and accordingly affirm the final judgment of the District Court.

I.

Defendants challenge two rulings in which the District Court excluded from evidence testimony they claim was critical to their defense of the lawsuit. We treat these claims of error individually.

A.

Defendants first claim that the District Court committed reversible error in excluding from evidence testimony that Mrs. Potts was not wearing a seat belt at the time of the collision. According to defendants, an injured party's failure to wear an available seat belt may constitute comparative negligence or, alternatively, failure to mitigate damages in a collision case. ³ Defendants have not cited to us, nor have we been able to find, an Arkansas Supreme Court case squarely addressing this issue; our task, therefore, is to determine what the Arkansas Supreme Court probably would hold were it called upon to decide the question, see Hazen v. Pasley, 768 F.2d 226, 228 (8th Cir.1985), keeping in mind that the District Court's interpretation of Arkansas law is entitled to substantial deference. See Dabney v. Montgomery Ward & Co., 761 F.2d 494, 499 (8th Cir.), cert. denied, 474 U.S. 904, 106 S.Ct. 233, 88 L.Ed.2d 232 (1985).

We first consider whether Mrs. Potts' failure to wear an available seat belt may constitute comparative negligence under Arkansas law. We begin by noting, as did the District Court, that at the time of the collision neither the State of Arkansas nor the City of Little Rock had enacted a law requiring the use of seat belts. While in some jurisdictions the absence of such a law appears to be a significant consideration in resolving the issue, see, e.g., Schmitzer v. Misener-Bennett Ford, Inc., 135 Mich.App. 350, 354 N.W.2d 336 (1984); Taplin v. Clark, 6 Kan.App.2d 66, 626 P.2d 1198 (1981), we find some suggestion, in the only Arkansas case touching upon the question, that failure to wear an available seat belt may, in the absence of a statute requiring use, nevertheless constitute negligence under the general common-law standard of ordinary care. See Harlan v. Curbo, 250 Ark. 610, 466 S.W.2d 459, 460-61 (1971). Under the Arkansas comparative negligence statute, " 'fault' ... includes ... any ... omission ... which is a proximate cause of any damages sustained by any party." Ark.Code Ann. Sec. 16-64-122(c) (1987); see Kubik v. Igleheart, 280 Ark. 310, 657 S.W.2d 545, 546 (1983). Therefore, assuming that Mrs. Potts' nonuse of her seat belt constituted a failure to exercise ordinary care, such nonuse is not "fault" for purposes of comparative negligence unless it proximately caused Mrs. Potts damage. Under Arkansas law, "proximate cause" is "a cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred." AMI 501, Arkansas Model Jury Instructions (Civil) (3d ed. 1989); see also Collier v. Citizens Coach Co., 231 Ark. 489, 330 S.W.2d 74, 76 (1959). Thus, the nonuse of a seat belt may constitute a proximate cause of injury if some or all of the damage sustained by the nonuser would not have occurred had the seat belt been worn.

We believe it likely, then, that the Arkansas Supreme Court would hold that a jury may assess a percentage of fault against Mrs. Potts if defendants can demonstrate the degree to which her injuries would have been reduced by use of a seat belt. Cf. Shelter Mutual Insurance Co. v. Tucker, 295 Ark. 260, 748 S.W.2d 136, 137-38 (1988) (plaintiff's nonuse of seat belt may become an issue submissible to jury to extent nonuse can be "connect[ed] ... with the injuries she sustained"). Accord Franklin v. Gibson, 138 Cal.App.3d 340, 188 Cal.Rptr. 23, 25 (1982); Quinn v. Millard, 358 So.2d 1378, 1384-85 (Fla.Dist.Ct.App.1978); Lowe v. Estate Motors Ltd., 428 Mich. 439, 410 N.W.2d 706, 716 (1987); Dunn v. Durso, 219 N.J.Super. 383, 530 A.2d 387, 397 (1986); Woods v. City of Columbus, 23 Ohio App.3d 163, 492 N.E.2d 466, 470-71 (1985); Dahl v. Bayerische Motoren Werke, 304 Or. 558, 748 P.2d 77, 84 (1987); Grobe v. Valley Garbage Service, Inc., 87 Wash.2d 217, 551 P.2d 748, 756 (1976); Bentzler v. Braun, 34 Wis.2d 362, 149 N.W.2d 626, 640 (1967). Defendants, however, offered to prove at trial only that there was a seat belt available for Mrs. Potts' use and that at the time of the collision she was not wearing it; defendants proffered no evidence upon which the jury, if allowed to hear it, could have distinguished those injuries caused by defendants' own negligence from those caused by Mrs. Potts' failure to buckle up. If defendants had such evidence, it was incumbent upon them to place it into the trial record by offer of proof once the District Court made the evidentiary ruling now complained of. See Fed.R.Evid. 103(a)(2). In the absence of such evidence, we have no basis in the record from which to conclude that the ruling affected a substantial right of defendants. See, e.g., Johnson v. Hill, 274 F.2d 110, 115 (8th Cir.1960); Hawkins v. Missouri Pacific Railroad Co., 188 F.2d 348, 350 (8th Cir.1951); cf. Harris v. Smith, 372 F.2d 806, 815 (8th Cir.1967). There is, therefore, no warrant for reversal on this claim of error. See Fed.R.Civ.P. 61.

We also reject defendants' alternative argument that the District Court should have admitted the fact of Mrs. Potts' nonuse of her seat belt for the purpose of proving her failure to mitigate damages. ⁴ Under Arkansas law, the burden of proving that a plaintiff in a negligence case could have avoided some or all of his or her damages rests with the defendant, including the burden of proving the amount of damage that the plaintiff could have avoided. See Bill C. Harris Construction Co. v. Powers, 262 Ark. 96, 554 S.W.2d 332, 336 (1977). Thus, as we similarly concluded in our discussion of defendants' comparative negligence argument, defendants cannot, under the Arkansas doctrine of avoidable consequences, avail themselves of the fact that Mrs. Potts did not wear her seat belt unless they can show that some portion of her harm flowed from that nonuse. See also W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on The Law of Torts Sec. 65, at 458-59 (5th ed. 1984) (doctrine of avoidable consequences essentially a rule permitting apportionment or division of damages). Defendants' avoidable consequences argument, then, fails for the same reason their comparative negligence argument must--defendants did not make an offer of proof as to the harm Mrs. Potts could have avoided to herself by fastening her seat belt. The only evidence in the trial record is the simple fact of nonuse, and this fact alone is not sufficient under Arkansas law to warrant the submission of the issue to the jury. We therefore have no basis upon which to conclude that the District Court's ruling affected a substantial right of defendants, and accordingly reject defendants' avoidable consequences argument.

For the reasons expressed above, we find no reversible error in the District Court's exclusion of evidence that Mrs. Potts was not wearing an available seat belt at the time of the collision.

B.

The second evidentiary ruling defendants challenge concerns issues of Arkansas law closely related to the first. Defendants claim that the District Court committed reversible error in excluding from evidence testimony that Mrs. Potts had not...