Anderson v. RECO Transportation ( 1996 )


Menu:
  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    JOHNNY EARL ANDERSON,
    Plaintiff-Appellant,
    v.                                                                   No. 95-1341
    RECO TRANSPORTATION, INC.,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Richmond.
    James R. Spencer, District Judge.
    (CA-94-472-R)
    Argued: March 6, 1996
    Decided: May 30, 1996
    Before HALL, HAMILTON, and LUTTIG, Circuit Judges.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    ARGUED: James Watson Morris, III, MORRIS & MORRIS, P.C.,
    Richmond, Virginia, for Appellant. Julia Bougie Judkins, TRICHILO,
    BANCROFT, MCGAVIN, HORVATH & JUDKINS, P.C., Fairfax,
    Virginia, for Appellee. ON BRIEF: James W. Walker, MORRIS &
    MORRIS, P.C., Richmond, Virginia, for Appellant.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Appellant Johnny Earl Anderson brought this diversity tort action
    against Reco Transportation, Inc., the employer of a fellow truck-
    driver with whom Anderson was involved in a traffic accident. The
    jury returned a verdict for the defendant, and this appeal followed.
    We affirm.
    I.
    On February 1, 1990, at 5:45 a.m., several vehicles were traveling
    south on Interstate 85 in Virginia. The night was clear. Trucker Billie
    Hendrix was having a conversation with trucker Bruce Guffey on CB
    Channel 19. She told him of serious fog at mile marker 43. Trucker
    Anderson also had his CB tuned to Channel 19, but it was turned low
    because a friend was sleeping in the truck; he did not hear anything
    about the fog. At mile marker 46, Guffey encountered an incredibly
    dense fog bank. Witnesses (including one state trooper) testified that
    it was unlike anything they had ever seen before, that visibility was
    reduced to only 5-6 feet.
    Guffey testified he could not see the fog bank until he was amidst
    it. He immediately slowed down, and then suddenly came upon the
    stopped or nearly stopped car of Kevin Richardson. Guffey stopped
    in time to avoid hitting Richardson, grabbed his CB, and yelled for
    other people to stop because of the dense fog and the stopped car in
    the road. Behind Guffey, Norman Hilliard, driving a small pick-up
    truck, passed Anderson at 65-67 mph. Then he hit the fog. Hilliard hit
    Guffey, and Anderson hit Hilliard. Anderson suffered severe injuries,
    and sued Reco Transportation, Inc., Guffey's employer. After trial,
    the jury returned a verdict for the defendant, and Anderson herein
    appeals.
    2
    II.
    Appellant Anderson challenges several of the district court's jury
    instructions.* First, the district court allowed the defendant to argue
    to the jury that Anderson violated his duty of ordinary care by not lis-
    tening to his CB. Anderson claims, that, because no statute or regula-
    tion required truckers to have a CB or to listen to one, it was
    reversible error to allow this to go to the jury (and possibly form a
    basis for contributory negligence). This argument is meritless. Vir-
    ginia law, which governs in this diversity action, provides that ordi-
    nary care is that care a reasonable person would exercise under the
    circumstances. See Moore v. Virginia Transit Co., 
    50 S.E.2d 268
    , 271
    (Va. 1948). Defendant argued that plaintiff's conduct fell below this
    standard, and this is properly an issue for the jury.
    Anderson next argues that the district court erred in instructing the
    jury on sudden emergency. See J.A. at 239-40. Under Virginia
    caselaw, sudden emergency requires (1) in fact a"sudden emer-
    gency," (2) that requires "immediate action, without giving time for
    the deliberate exercise of judgment," (3) without negligence on the
    part of the party claiming benefit of the doctrine, and (4) that such
    party acted with reasonable care in the emergency. Anderson's chal-
    lenge to the trial court's sudden emergency instruction is more than
    a little ironic, considering that he himself asked for the same instruc-
    tion on sudden emergency insofar as it related to his potential contrib-
    utory negligence. J.A. at 222-23. In making his challenge to the
    instruction for the defendant, Anderson principally relies on three Vir-
    ginia cases that, we believe, on closer examination actually support
    giving the instruction in this case.
    The first, Garnot v. Johnson, 
    387 S.E.2d 473
    , 476 (Va. 1990),
    reversed a jury verdict for the defendant where the plaintiff was
    struck in the rear by defendant, after she stopped in traffic while
    going though a traffic light. The trial judge had there instructed on
    _________________________________________________________________
    *Reco responds, inter alia, that Anderson did not properly object or
    submit alternative instructions as required by Fed. R. Civ. P. 51.
    Because, however, Rule 46 relaxes the requirements of Rule 51 signifi-
    cantly, and because the jury instructions were not erroneous in any event,
    we do not address this alleged waiver.
    3
    sudden emergency, but, because stopping was not unforeseeable,
    given that "a driver knows, or should know, that a car immediately
    in front of him may stop suddenly." The next sentence, however, con-
    tinues "[t]herefore, such a stopping, absent evidence of an unforeseen
    happening, does not constitute an emergency that would invoke the
    sudden emergency doctrine." 
    Id.
     (emphasis added). Here, however,
    there was other evidence -- testimony of an unusually dense fog
    (unlike one anyone had seen before) that the drivers entered suddenly
    (even though Guffey knew that there was supposed to be fog, it was
    not where he was told -- mile marker 46 rather than 43 -- and he
    arguably was not reasonably able to foresee how serious it was). The
    other two cases upon which Anderson relies are similarly limited in
    scope. See Bentley v. Felts, 
    445 S.E.2d 131
    , 134 (Va. 1994) (revers-
    ing because trial court gave sudden emergency instruction when driv-
    er's power brakes failed and he struck plaintiff from behind; because
    he was "faced only with a loss of power assistance," he should have
    been able to anticipate such failure, and he "could have stopped the
    car . . . had he ["simply"] used sufficient force"); Chodorov v. Eley,
    
    391 S.E.2d 68
    , 69 (Va. 1990) (relying heavily on Garnot and revers-
    ing because trial court gave sudden emergency instruction where
    defendant was "following too closely" and struck the car in front of
    him when he was "blinded momentarily" by the sun).
    Central to this and most of the other issues in this case is foreseea-
    bility, and, presumably, the jury determined that the stopped car in the
    sudden blinding fog was not reasonably foreseeable. Compare
    Hammett v. Seastrunk, 
    365 F.2d 232
     (4th Cir. 1966), where the court,
    applying North Carolina law, upheld the trial judge's dismissal of a
    very similar case, without even allowing the case to be submitted to
    the jury. There, a number of drivers suddenly encountered an "unusu-
    ally dense bank of fog," limiting visibility to 10 feet. A multiple-car
    accident ensued. The trial judge concluded, and the Fourth Circuit
    affirmed, that
    the collisions were unavoidably accidental and that there
    was no liability on the defendants or the plaintiff. The judge
    [found the parties] all equally negligent in failing to see the
    fog until they were virtually upon it or in it since, in the
    exercise of due care, the fog could have been seen from
    some distance away; however, he held that this negligence
    4
    was not the proximate cause of the collisions since, even if
    the parties had observed the fog before encountering, they
    could not reasonably have been expected to foresee or
    anticipate the danger which it presented.
    
    Id. at 234
     (emphasis added). We therefore conclude that the district
    court did not abuse its discretion in giving the instruction that it did.
    In a related argument, Anderson challenges the following jury
    instruction:
    The driver of a vehicle ordinarily has a duty not to stop his
    vehicle in such a manner as to impede or render dangerous
    the use of the highway by others who are using it. This duty
    does not apply if the driver of a vehicle stops momentarily
    on the highway in an emergency or in order to avoid a colli-
    sion.
    J.A. at 238. This instruction, however, was a perfectly reasonable
    paraphrase of the following statute:
    No person shall stop a vehicle in such manner as to impede
    or render dangerous the use of the highway by others, except
    in the case of an emergency, an accident, or a mechanical
    breakdown.
    Va. Code. § 46.2-888 (emphasis added).
    Finally, Anderson challenges the court's instructions on supersed-
    ing cause:
    What is a proximate cause? A proximate cause of an acci-
    dent, injury or damage is a cause which in a natural and con-
    tinuous sequence produces the accident, injury or damage.
    It is a cause without which the accident, injury or damage
    would not have occurred.
    A superseding cause is an independent event not reasonably
    foreseeable that completely breaks the connection between
    5
    the defendant's negligent act and the plaintiff's injury. A
    superseding cause breaks the chain of events so that the
    defendant's original negligent act is not a proximate cause
    of the plaintiff's injury in the slightest degree.
    J.A. at 236-37 (emphasis added).
    This instruction tracks the Virginia caselaw essentially verbatim.
    See, e.g., Panousos v. Allen , 
    425 S.E.2d 496
    , 499 (Va. 1993);
    Coleman v. Blankenship Oil Corp., 
    267 S.E.2d 143
    , 147 (Va. 1980).
    Anderson argues that the fog and Richardson's stopped car could not
    have been superseding causes (as Reco argued) because they pre-
    ceded Reco's alleged negligence and because they were reasonably
    foreseeable. Although his argument has some plausibility, we con-
    clude that the jury instructions, when taken as a whole, were not an
    abuse of discretion.
    CONCLUSION
    For the reasons stated herein, we affirm the judgment of the district
    court.
    AFFIRMED
    6
    

Document Info

Docket Number: 95-1341

Filed Date: 5/30/1996

Precedential Status: Non-Precedential

Modified Date: 4/18/2021