Higgins v. Hicks Co.

756 F.2d 681
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 12, 1985
DocketNos. 83-2104, 83-2105
StatusPublished
Cited by15 cases

This text of 756 F.2d 681 (Higgins v. Hicks Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Higgins v. Hicks Co., 756 F.2d 681 (8th Cir. 1985).

Opinion

FAGG, Circuit Judge.

Linda Higgins, trustee of the heirs and personal representative of the estate of Steven Martinez, and Mallard Teal (plaintiffs) appeal from a jury verdict in favor of The Hicks Company and the State of South Dakota (defendants). Higgins and Teal raise numerous grounds of error on appeal. Our primary concern is with the contention that they did not receive a fair trial due to certain closing argument comments made by The Hicks Company’s counsel. Although we agree that certain of the remarks made by counsel for the Hicks Company were improper, we do not believe they rise to the level of reversible error. Accordingly, we affirm.

This lawsuit is the result of two separate motorcycle accidents that occurred on a four-lane divided highway in South Dakota. The accidents occurred after sunset on a stretch of Interstate 90 that was under construction. The Hicks Company, under contract with the State of South Dakota, was resurfacing the interstate with asphalt. On the day of the accident, there was a 5.4 mile stretch of highway that had been resurfaced on the passing lane of eastbound 1-90 but not on the driving lane. This left a 3-4 inch ridge over which a driver had to maneuver to move from the driving lane to the passing lane. Steven Martinez lost control of his motorcycle when moving from the driving lane to the passing lane and was fatally injured. Mallard Teal also lost control of his vehicle when changing lanes on this 5.4 mile stretch and claims damages as a result of the injuries he sustained.

Plaintiffs claim that The Hicks Company and the State of South Dakota were negligent in opening both eastbound lanes on 1-90 at this 5.4 mile stretch without adequate warning signs. Defendants deny any negligence and claim Martinez and Teal were contributorially negligent in operating their motorcycles at a speed greater than was reasonable under the circumstances and in failing to keep a proper lookout. The jury returned a verdict favorable to The Hicks Company and the State of South Dakota. We address the contentions raised on appeal in turn.

First, plaintiffs claim that they are entitled to a new trial because of certain comments made by counsel for The Hicks Company during closing arguments. The comments that primarily concern us are Mr. Wallahan’s statements that:

I’m not telling you that there is evidence that they were drinking, that they were drunk or they were on drugs because there is no evidence to that effect. I’m telling you consider using your common sense. Could they have been using any one or more of those substances? Just — I’m not saying they were. Just use your own common sense. What would possess them to pull out and to pass all of these slower-moving vehicles?

With respect to wrongful death damages, Mr. Wallahan argued:

In looking over these prior years, remember some of those prior years went back before he quit smoking marihuana and using cocaine and LSD. There was no evaluation made to see how much of his personal income he consumed on his own — and I don’t mean to speak disrespectfully — but, the selfish abusive habits, when maybe his children, in fact, could have used new shoes or whatever.

Although plaintiffs’ counsel did not articulate the specific grounds upon which he objected to these remarks, we believe that the grounds were more than clear to the district court. We thus review the district court’s denial of plaintiffs’ new trial motion under an abuse of discretion standard. See [684]*684Wilfing v. General Motors Corp., 685 F.2d 1049, 1053 (8th Cir.1982).

There is no record evidence showing or even suggesting that either Martinez or Teal was drinking or taking drugs at the time of their accidents. In fact, the evidence was to the contrary. Gayle Martinez, the widow of Steven, testified that her husband was a reformed alcoholic who had not consumed any alcohol or drugs for the past three years. Teal testified that he had not been drinking prior to his accident. Further, there is no evidence that during the period of time Martinez did have a drug and alcohol problem that his children were hurting for “new shoes or whatever.”

We do not condone the offhand remarks of Mr. Wallahan. “[I]n federal jury trials, counsel’s argument must be limited by the evidence and law pertinent to the issues in the case.” Id. at 1052. We note that “when a lawyer departs from the path of legitimate argument, he does so at his own peril and that of his client, and if his argument is both improper and prejudicial, then he [may destroy] any favorable verdict that his client may obtain.” Id. (quoting London Guarantee & Accident Co. v. Woelfle, 83 F.2d 325, 342 (8th Cir.1936)). The district court overruled plaintiffs’ objections to Mr. Wallahan’s remarks, but the court instructed the jury on at least two occasions that closing argument comments of counsel are not evidence. Although it is a close question, a careful review of the record leads us to conclude that a reversal is not in order.

Plaintiffs raise numerous other contentions respecting closing argument comments of The Hicks Company’s counsel. At trial the parties agreed that objections to the closing argument of opposing counsel would be short and concise and that counsel could elaborate on the specific grounds for any objection following closing arguments. Plaintiffs’ counsel either failed to object or simply objected without further elaboration to the numerous contentions he now raises on appeal. In the absence of an adequate objection, we review for plain error. See Rogers v. Rulo, 712 F.2d 363, 367 (8th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 719, 79 L.Ed.2d 181 (1984). We do not believe that the other comments complained of result in a plain miscarriage of justice. See id.

Second, plaintiffs claim that they are entitled to a new trial because the district court erroneously instructed the jury on the definition of proximate cause (Instruction 12) and on a motorist’s duty of care (Instruction 15). We believe Instruction 12 is a proper statement of the law. See Carlsen v. Javurek, 526 F.2d 202, 209 (8th Cir.1975) (finding an instruction identical to Instruction 12 to be proper). The last sentence of Instruction 15 informed the jury that “a motorist traveling on a highway under construction is required to exercise a greater degree of caution than is required on a highway not under construction.” (Emphasis added.) The plaintiffs contend that this sentence is an improper statement of the law and is misleading and indefinite because of inclusion of the word “greater.” When a portion of a jury instruction is assigned as error, we are bound to consider the instruction as a whole. Vanskike v. ACF Industries, Inc., 665 F.2d 188, 206 (8th Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982).

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