Ward v. H. B. Zachry Const. Co., 76-1690

• Decision Date: 06 January 1978
• Docket Number: No. 76-1690,76-1690
• Citation: 570 F.2d 892
• Parties: Gayle WARD, Plaintiff-Appellee, v. H. B. ZACHRY CONST. COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 892

570 F.2d 892

Gayle WARD, Plaintiff-Appellee, v. H. B. ZACHRY CONST. COMPANY, Defendant-Appellant.

No. 76-1690.

United States Court of Appeals Tenth Circuit.

Submitted Nov. 17, 1977.

Decided Jan. 6, 1978.

Richard L. Carpenter, Jr., Tulsa, Okl., for plaintiff-appellee.

Bruce Green of Pearson & Green, Muskogee, Okl., for defendant-appellant.

Before McWILLIAMS and DOYLE, Circuit Judges, and ROGERS, District judge. ^*

ROGERS, District Judge.

This appeal arises from an action which plaintiff/appellee Gayle Ward brought for damages to her house allegedly caused by blasting done by defendant/appellant H. B. Zachry Construction Co. Defendant appeals from a jury verdict in favor of plaintiff in the amount of $8,000.

We affirm.

Defendant's brief raises the following five contentions which shall be addressed seriatim:

I. Inflammatory and prejudicial remarks made by the plaintiff's attorney during closing argument in order to mislead the jury entitles (sic) the defendant to a new trial.

II. The court erred in instructing the jury that defendant was strictly liable for any damage resulting to the plaintiff's home from its blasting operation, regardless of due care on the defendant's part, in view of the remote location of plaintiff's home from defendant's quarry site.

III. The trial court erred in failing to direct a verdict in favor of the defendant since even under a strict liability theory, the evidence fails to establish a causal connection between defendant's acts and the plaintiff's alleged damage.

IV. The court erred in allowing plaintiff to change her theory of liability during the course of the trial to strict liability after the pleadings, pretrial, and voir dire were couched in terms of negligence.

V. The plaintiff should not have been permitted to recover since her proof relating to damages was speculative.

I.

Defendant first argues that reversal is mandated by certain allegedly prejudicial remarks made during the closing argument of plaintiff's counsel.

Defendant construction company was conducting certain blasting operations during the summer and fall of 1974 at a distance of 4,250 feet from plaintiff's house. Plaintiff testified that as defendant blasted, she heard the explosions and felt the resulting concussion and vibrations. Plaintiff testified that as defendant blasted she often directly viewed mortar falling out of cracks in the wall or ceiling, or heard the mortar fall in another room and would later discover bits of mortar on the floor.

Defendant's witnesses testified that another construction company was also blasting in the area. Defendant's expert witness testified that he had measured the vibration sent out by a blast by defendant and had determined that there was no way such a blast could have caused damage to a house 4,250 feet away.

Cross examination of both plaintiff and the defense witnesses raised important challenges to credibility. In his closing argument, defense counsel, as he had every right to do, challenged the credibility of plaintiff as a witness by pointing to her interest and the considerable amount of testimony which contradicted her statements. In the rebuttal portion of his closing argument, plaintiff's counsel made the following statement which is challenged by defendant (and which is reprinted to include the response of both defense counsel and the court):

Plaintiff's counsel: They talked about all these tests being under point two, all official company records. When the government bulletin, I assume, says, I haven't looked at it, but I assume from what counsel says that counsel says it should not register over .2, according to the Federal Government, so I can see them now keeping in their official records all of the blasts that are reading over .2 when the Federal Government says they shouldn't. Can't you see that? Can't you see somebody who is keeping two sets of books and cheating on their income tax coming in here and saying, why, here's here's this set and this set over here too that's not right.

This shows that I may hope that I'm guilty of cheating on my income tax, yeah, all of their records did show their relation to .2, that doesn't surprise me a bit.

The Court: If you have an objection, speak up.

Defense counsel: If it please the Court, I think this is an improper argument on this business of cheating on things when there's not one iota of evidence at all to even even insinuate the matter of a double keeping two sets of books or records. That's not even an issue in this matter and it's improper comment for the closing argument.

The Court: I agree. Mr. Green, you should stay with the evidence in the case, under my instructions, on what they hear, not what they don't hear, not on irrelevant issues. Let's stay with the evidence in this case. That's what you should argue. I told the Jury you're to argue the case to help them decide from the evidence, not something else far afield. Stay with the case, now.

Plaintiff's counsel: I beg your pardon, Your Honor.

Defendant argues on appeal that the statement of plaintiff's counsel, which implied that defendant might be guilty of cheating on its income tax and keeping two sets of records as to its blasting activities, was so prejudicial that the Court's actions of sustaining the defense objection and admonishing plaintiff's counsel were an inadequate remedy.

Defendant's brief refers to numerous state court decisions which are, of course, not controlling since this situation clearly raises a procedural question which must be controlled by federal law. McDonald v. United Airlines, Inc., 365 F.2d 593, 595 (10th Cir. 1966).

Under federal law, counsel has great latitude in arguments to the jury. Duncan v. St. Louis-San Francisco Ry. Co., 480 F.2d 79, 84-85 (8th Cir.), cert. denied 414 U.S. 859, 94 S.Ct. 69, 39 L.Ed.2d 109 (1973). Because the trial judge is in the best position to determine the effect that arguments of counsel have upon the jury, considerable discretion is given to the trial judge in exercising supervision over arguments of counsel. McDonald v. United Airlines, Inc., supra, 365 F.2d at 595; Ziegler v. Akin, 261 F.2d 88, 93 (10th Cir. 1958); Franklin v. Shelton, 250 F.2d 92, 99 (10th Cir. 1957), cert. denied 355 U.S. 959, 78 S.Ct. 544, 2 L.Ed.2d 533 (1958).

It is apparent that the trial judge acted within his discretion. It is unlikely that the challenged statement had a prejudicial impact upon the jury, for it is virtually incoherent. We do not read the statement as an allegation that defendant actually cheated on its income tax, but only as a poorly-worded warning to the jury not to rely too heavily upon the credibility of defendant's records.

The trial judge, after hearing the statement, felt that the appropriate response was to sustain the defense counsel's objection and admonish counsel in a manner that reminded the jurors that they were to decide the case upon the evidence and not upon "irrelevant issues."

Courts should exercise great caution in setting aside judgments because of the statements of counsel unless the verdict is influenced thereby. Julander v. Ford Motor Company, 488 F.2d 839, 842 (10th Cir. 1973); Thompson v. Boles, 123 F.2d 487, 495 (8th Cir. 1942), cert. denied 315 U.S. 804, 62 S.Ct. 632, 86 L.Ed. 1204 (1942). This is not an appropriate case for the setting aside of a judgment because of prejudicial remarks of counsel.

II.

Defendant's second argument on appeal is that the trial court erred in instructing the jury on strict liability in view of the distance between the site of defendant's blasting and plaintiff's house.

Defendant does not deny that Oklahoma law recognizes strict or absolute liability in the use of explosives, thus imposing liability without regard to negligence. States Exploration Company v. Reynolds, 344 P.2d 275, 278 (Okl.1959); Superior Oil Company v. King, 324 P.2d 847, 848 (Okl.1958); Smith v. Yoho, 324 P.2d 531, 533 (Okl.1958); Seismograph Service Corporation v. Buchanan, 316 P.2d 185, 186-187 (Okl.1957); Tibbets & Pleasant v. Benedict, 128 Okl. 106, 261 P. 551, 552 (1927); City of Muskogee v. Hancock, 58 Okl. 1, 158 P. 622 (1916); Garland Coal & Mining Company v. Few, 267 F.2d 785, 788 (10th Cir. 1959).

Rather, defendant argues that no Oklahoma case has applied strict liability in a factual situation in which the distance between the blasting site and the damaged property was over 600 feet. ¹ The other side of this coin, however, is that no Oklahoma case has held that strict liability was inapplicable to blasting more than 600 feet away from the damaged property. ²

The test which is to be applied in Oklahoma is set forth in Seismograph Service Corporation v. Buchanan, supra, 316 P.2d at 187, where the Supreme Court of Oklahoma noted:

We are aware that under all circumstances the use of explosives would not be considered as ultra-hazardous, but the facts of this action do not bring it within the exception provided for extremely remote localities.

There is no clear definition in Oklahoma case law of the phrase "extremely remote localities." The trial court in this action implicitly held that the blasting in this action was not in an "extremely remote locality." Upon the evidence we find this holding to be reasonable, and do not disturb it in light of the fact that great deference is given to the views of a resident federal district judge as to matters of state law in the absence of controlling state precedent. Adolph Coors Co. v. A & S Wholesalers, Inc., 561 F.2d 807, 816 (10th Cir. 1977); Mustang Fuel Corp. v. Youngstown Sheet & Tube, 561 F.2d 202, 204 (10th Cir. 1977).

III.

Defendant next argues that the trial court erred in failing to direct a verdict for defendant upon the grounds that plaintiff failed to establish a causal connection between defendant's blasting and plaintiff's alleged damages. Defendant advances three principal arguments in favor of this contention: (1) plaintiff's house had cracks in it before defendant...