All Freight Systems v. James, et al

United States Court of Appeals
Fifth Circuit
F I L E D
August 4, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
___________________
m 03-40776
Summary Calendar
___________________
ALL FREIGHT SYSTEMS,
Plaintiff,
KEN POWERS,
Intervenor Plaintiff-Appellant,
VERSUS
CASSANDRA JAMES, ET AL.,
Defendants,
CHARLES JOHNSON; WILLAMETTE INDUSTRIES, INC.,
Defendants-
Intervenor Defendants-
Appellees.
___________________
Appeal from the United States District Court
for the Eastern District of Texas
m 4:00-CV-437
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Before SMITH, DEMOSS, and STEWART,
Circuit Judges.
JERRY E. SMITH, Circuit Judge.*
All Freight Systems, which was Ken Pow-
ers’s employer, sued Cassandra James, Charles
Johnson, and Willamette Industries (“Willam-
ette”); Powers intervened as plaintiff. The suit
resulted from a car accident in which James hit
a pool of standing water while driving under
drizzly and foggy conditions.
James’s van hydroplaned, slid into the me-
dian, and rolled over several times, eventually
resting on its side in the middle of northbound
traffic. James was assisted out of her car,
which was left with its black undercarriage
facing south. Troy Johnston, a witness, testi-
fied that there was a hill preceding the place
where the van had settled. Because of this,
Johnston ran to the south to attempt to
prevent oncoming traffic from running into the
van.
The area were the van lay was dark, so
approaching drivers could not see it. Johnson,
a driver for Willamette, approached the ob-
struction caused by the van and was unable to
avoid impact. Freddy Walden, another wit-
ness, testified that from his vantage point he
saw nothing that Johnson could have done to
avoid the wreck. After the collision, John-
son’s truck went across the median and came
to rest blocking southbound traffic. Immedi-
ately, Powers collided with Johnson’s trailer,
injuring Powers.
At the jury trial, Johnson’s vision was
brought into question by the plaintiffs. Rec-
ords from Johnson’s DOT examinations from
1980 through 1998 showed that his vision
was 20/20 throughout this period. Further-
more, six weeks after the accident, he received
another DOT physical examination that did not
show a need for corrective lenses. Dr.
Karanges, who performed a court-ordered in-
dependent DOT physical examination on John-
son, found that Johnson had 20/30 vision in his
left eye and 20/40 vision in his right eye.
Karanges also testified that Johnson had an
overall visual acuity of 20/25 using both eyes,
although this is not determinative of Johnson’s
ability to satisfy DOT requirement for
commercial drivers.
Plaintiffs requested, but did not receive, a
negligence per se jury instruction regarding
Johnson’s alleged failure to meet vision stan-
dards for commercial drivers. Plaintiffs did
not object to the refusal to instruct, nor did
they move for judgment as a matter of law
(“j.m.l.”) at the close of the evidence or before
submission of the case to the jury.
Plaintiffs state that the district court failed
in its gate-keeping function by allowing Kar-
anges to testify concerning Johnson’s vision.
Plaintiffs also contend that the failure to give
the negligence per se instruction is plain error.
Next, plaintiffs allege that trial counsel was ill,
and this was the reason for the failure to object
to the lack of an instruction. Furthermore,
plaintiffs believe that attorney misconduct
prejudiced the proceedings, so they are entitled
to a new trial. Finding no error, we affirm.
I.
Evidentiary questions are reviewed for
abuse of discretion. Graef v. Chem. Leaman
Corp., 106 F.3d 112, 116 (5th Cir. 1997).
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published and
is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.

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Even if a court improperly admits evidence,
the judgment must be affirmed unless the rul-
ing affects substantial rights of the complaining
party. Bocanegra v. Vicmar Servs., Inc., 320
F.3d 581, 584 (5th Cir.), cert. denied, 124 S.
Ct. 180 (2003).
Consequently, plaintiffs’ argument that
Karanges was improperly allowed to provide
testimony regarding Johnson’s vision is with-
out merit. The district court was in a better
position to decide the admissibility of testi-
mony concerning Johnson’s ability to meet the
requirements of a commercial driver. More-
over, the ruling did not substantially affect
plaintiffs’ rights.
II.
Plaintiffs allege that it was plain error not to
include a negligence per se instruction in the
jury charge. There are three requirements to
challenge jury instructions. First, the appellant
must show that viewed as a whole, the charge
creates “substantial and ineradicable doubt
whether the jury has been properly guided in
its deliberations.” Taita Chem. Co. v.
Westlake Styrene, LP, 351 F.3d 663, 667 (5th
Cir. 2003). Second, even if there is error, we
will not reverse if the error “could not have
affected the outcome of the case.” Id. Third,
the appellant must show that the proffered
instruction correctly stated the law. Id. Per-
fection is not required if the instructions given
were generally correct and any error was
harmless. Id.
This standard provides the district court
with great latitude. Id. In reviewing instruc-
tions, we consider whether the jury was misled
in any way and whether it understood the
issues. Dixon v. Int’l Harvester Co., 754 F.2d
573, 588 (5th Cir. 1985). Error in the charge
is reversible only if, in the light of the entire
record, it was reasonably calculated to and
probably did cause the rendition of an improp-
er verdict. Reinhart v. Young, 906 S.W.2d
471, 473 (Tex. 1995).
Negligence per se is a concept whereby a
legislatively imposed standard of conduct is
adopted by the civil courts as defining the con-
duct of a reasonable and prudent person.
Carter v. William Sommerville & Son, Inc.,
584 S.W.2d 274, 278 (Tex. 1979). For negli-
gence per se, there must be (1) a violation of
a legislative enactment, (2) that is unexcused.
Parrott v. Garcia, 436 S.W.2d, 897 (Tex.
1969). Negligence per se provides only a way
of proving duty and breach of duty, and causa-
tion and damages must still be established. Id.
Thus, the plaintiff must still prove proxi-
mate causation, El Chico Corp. v. Poole, 732
S.W.2d 306, 313 (Tex. 1987), which includes
the elements of cause in fact and foreseeability,
Exxon v. Quinn, 726 S.W.2d 17, 21 (Tex.
1987). To be a cause-in-fact of the accident,
a potential tortfeasor’s acts or omissions must
have been substantial factors in causing the ac-
cident. N. Am. Van Lines, Inc. v. Emmons, 50
S.W.3d 103, 114 (Tex. App.SSBeaumont
2001, pet. denied). Specifically, the acts or
omissions must be factors without which the
accident would not have occurred. Id. The
resolution of conflicting evidence as to proxi-
mate cause and negligence is a matter for the
jury. Meadows & Walker Drilling Co. v. Phil-
lips, 417 F.2d 378, 383 (5th Cir. 1969).
The substantive law of Texas defines an
unavoidable accident as “an event not proxi-
mately caused by the negligence of any party
to it.” Reinhart, 906 S.W.2d at 472. Simi-
larly, the purpose of the sudden emergency
doctrine instruction is to ensure that the jury
will understand that it does “not necessarily

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have to find that one of the other parties to the
suit was to blame for the occurrence com-
plained of.” Yarborough v. Berner, 467
S.W.2d 188, 192 (Tex. 1971).
The instruction is most often used to in-
quire about the causal effect of some physical
connection or circumstance such as fog, snow,
sleet, wet or slick pavement, or obstruction of
view. Reinhart, 906 S.W.2d at 472. Regard-
ing the sudden emergency defense, “by the
term emergency as used in this charge, is
meant a condition arising suddenly and unex-
pectedly and not proximately caused by any
negligent act or omission of the person in
question and which calls for immediate action
on his part and without time for deliberation.”
Goolsbee v. Tex. & New Orleans R.R., 243
S.W.2d 386, 388 (Tex. 1951).
The mere fact that the legislature adopts a
criminal statute does not mean that this court
must accept it as a standard for civil liability.
Carter v. William Sommerville & Son, Inc.,
584 S.W.2d 574, 278 (Tex. 1979). The
threshold questions in every negligence per se
case are whether the plaintiff belongs to the
class that the statute was intended to protect
and whether his injury is of a type that the
statute was designed to prevent. Perry v. S.N.,
973 S.W.2d 301, 305 (Tex. 1998). Then, the
court must determine whether it is appropriate
to impose tort liability for violation of the stat-
ute. Id. An indirect relationship between vio-
lation of a statute and the plaintiff’s ultimate
injury is a factor against imposing tort liability.
Id. at 309.
In light of the conflicting testimony, the
failure to include a negligence per se instruc-
tion did not ultimately affect the outcome of
the case. The jury was not misled in any way,
so its understanding of the issues was not
impaired. The circumstances of the accident
illustrate that the road conditions, coupled
with the position of James’s van following her
initial accident with the median, rendered a sit-
uation that falls into the category of an un-
avoidable accident or sudden emergency. This
situation demonstrates that Johnson’s allegedly
impaired vision was not a substantial factor in
the occurrences that caused Powers eventually
to hit Johnson’s tractor-trailer.
The matter of Johnson’s vision was prop-
erly decided by the jury in light of the conflict-
ing evidence presented by each side. Specifi-
cally, defendants presented evidence that the
causal effect of drizzle and fog, combined with
the sudden emergency of James’s obstructing
van, led to the accident, while the plaintiff’s
argued that Johnson’s vision was the cause.
Accordingly, the jury was properly left to
determine the issue.
III.
Plaintiffs contend they should not have to
suffer for their counsel’s error in failing to ob-
ject to the jury instruction. Where a party fails
to make timely objections to the proposed in-
structions and questions, the plain error stan-
dard of review applies. J.C. Motor Lines, Inc.
v. Trailways Bus Sys., Inc., 689 F.2d 599, 602
(5th Cir. 1982); Fredonia Broadcasting Corp.
v. RCA Corp., 481 S.W.2d 781, 796 (5th Cir.
1973); FED. R. CIV. P. 51.
One may not complain of a jury instruction
“unless that party objects thereto, stating dis-
tinctly the matter objected to and the grounds
of the objection.” Taita Chem. Co., 351 F.3d
at 667. Furthermore, submission of an alter-
native instruction does not necessarily preserve
error for appeal. Id. One may not sit by with-
out objection to rulings or instructions, and
then after verdict and judgment, and when it is

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too late for the court to change its rulings or
charge, come forward with objections on ap-
peal. Meadows & Walker Drilling Co. v.
Phillips Petroleum Co., 417 F.2d 378, 381
(5th Cir. 1969).
Even if the challenger proves the instruc-
tions misguided the jury, we reverse only if the
erroneous instruction affected the outcome of
the case. Thomas v. Tex. Dep’t of Crim.
Justice, 297 F.3d 361, 365 (5th Cir. 2002).
To meet this standard, a party must show “(1)
that an error occurred; (2) that the error was
plain, which means clear or obvious; (3) the
plain error must affect substantial rights; and
(4) not correcting the error would ‘seriously
affect the fairness, integrity, or public
reputation of judicial proceedings.” Taita
Chem. Co., 351 F.3d at 668. Litigants are
held to a difficult standard of error
preservation for good reason. Id. It requires
that objections be made for a possible remedy
at the trial court level, saving judicial
resources. Id.
Reversal based on plain error is “not a run
of the mill remedy.” Highlands Ins. Co. v.
Nat’l Union Fire Ins. Co., 27 F.3d 1027, 1032
(5th Cir. 1994). On plain error review, “the
question before this Court is there was any
evidence to support the jury verdict.” United
States ex rel. Wallace v. Flintco, Inc., 143
F.3d 955, 963 (5th Cir. 1998). If any evidence
supports the verdict, the verdict will be upheld.
Id. Therefore, so long as the court gives
counsel a fair opportunity to object, we will
listen to un-objected to rulings only in those
handful of cases that can meet the exacting
requirements of plain error. Highlands Ins.
Co., 27 F.3d at 1032.
Plaintiffs’ argument that trial counsel was ill
and that Powers should not be forced to pay
for counsel’s failure to object instruction is
unavailing. Therefore, we review for plain
error the refusal to include a negligence per se
instruction. As noted above, the lack of a jury
instruction regarding negligence per se did not
result in a miscarriage of justice.
A negligence per se jury instruction still
would have left the jury to determine whether
Johnson’s controversial vision or the emer-
gency situation in which he was presented on
the morning of the accident was the cause of
the collision. Accordingly, because plaintiffs’
counsel was given fair opportunity to object
and on plain error review there was evidence
to support the verdict, there is no reversible
error.
IV.
Plaintiffs admonish that, under the plain
error standard, they are entitled to a post-
verdict j.m.l. A claimant who bears the burden
of proof and believes he is entitled to j.m.l. is
required to move for j.m.l. before the case is
submitted to the jury. Flintco, 143 F.3d at
968; FED. R. CIV. P. 50(a). Failing to move
for j.m.l. at the close of the evidence and
before submission to the jury results in waiver
of the right to renew the motion under rule 50
(b). Id.; 9A CHARLES A. WRIGHT & ARTHUR
R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2536 (2d ed. 1995). If a party
fails to move for j.m.l. under rule 50(a) on an
issue at the conclusion of all the evidence, that
party waives its right to file a renewed post-
verdict rule 50(b) motion and its right to chal-
lenge the sufficiency of the evidence on that
issue on appeal. Flowers v. Regional Physi-
cian Sys., 247 F.3d 229, 238 (5th Cir. 2001).
A lawyer who never moves for j.m.l. must
realize that a subsequent motion for j.m.l. can
be granted only if plain error can be estab-

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lished. Flintco, 143 F.3d at 963. The purpose
of rule 50(a)’s requirement that a motion for
j.m.l. specify the law and the facts on which
the moving party relies “is to assure the re-
sponding party an opportunity to cure any de-
ficiency in that party’s proof that may have
been overlooked until called to the party’s at-
tention by a late motion for judgment. Id.
Therefore, we will reverse only if the judgment
complained of results in a manifest miscarriage
of justice. Id.
Consequently, because plaintiffs failed to
move for j.m.l. at the close of the evidence,
our review of the denial of their subsequent
motion for post-verdict j.m.l. is limited to plain
error. Counsel’s failure to seek j.m.l. limited
defense counsel’s opportunity to become
aware of any possible shortcomings in the
evidence they had presented. Furthermore, on
plain error review there was sufficient evi-
dence to support the verdict. Therefore, j.m.l.
after the case had been submitted to the jury
was properly denied.
V.
Plaintiffs requested a new trial by urging
that opposing counsel’s alleged misconduct at
trial caused the jury to be influenced by pas-
sion and prejudice. Courts possess the inher-
ent power “to vacate their own judgments on
proof that a fraud has been perpetrated upon
the court.” Fierro v. Johnson, 197 F.3d 147,
152 (5th Cir. 1999) (citing Chambers v. Nas-
co, Inc., 501 U.S. 32, 44 (1991)). To establish
fraud on the court, it is necessary to show an
unconscionable plan or scheme designed to in-
fluence the court improperly in its discretion.
Id.
Generally speaking, only the most egre-
gious misconduct, such as bribery of a judge
or members of a jury, or the fabrication of evi-
dence by a party in which an attorney is impli-
cated, will constitute a fraud on the court. Id.
Less serious conduct, such as non-disclosure
to the court of facts allegedly pertinent to the
matter before it, will not ordinarily rise to the
level of fraud on the court. Id. at 154 (citing
First Nat’l Bank v. Lustig, 96 F.3d 1554, 1573
(5th Cir. 1996)).
The trial court is in a superior position to
gauge the prejudicial impact of counsel’s con-
duct. Anheuser-Busch, Inc. v. Natural Bever-
age Distribs., 69 F.3d 337, 346 (9th Cir.
1995). A new trial is warranted on the ground
of attorney misconduct during the trial where
the “flavor of misconduct sufficiently perme-
ates an entire proceeding to provide conviction
that the jury was influenced by passion and
prejudice in reaching its verdict.” Id.
Review of the denial of a new trial is more
limited than where one is granted. DP Solu-
tions, Inc. v. Rollins, Inc., 353 F.3d 421 431
(5th Cir. 2003). Our standard of review in this
situation is “more deferential than our review
of the denial of a motion for [j.m.l.].” Id. To
warrant a new trial, improper comments by
counsel must impair substantial rights and cast
doubt on the verdict. Bufford v. Rowan Co.,
994 F.2d 155, 157 (5th Cir. 1993). The con-
duct must be such as gravely to impair the
jury’s calm and dispassionate consideration of
the case. Dixon v. Int’l Harvester Co., 754
F.2d 573, 586 (5th Cir. 1985).
Plaintiffs rely on Anheuser-Busch and Buf-
ford as illustrative of cases where attorney
misconduct resulted in the necessity for a new
trial. These cases, however, are distinguish-
able from the case at bar. In Anheuser-Busch,
69 F.3d at 350, plaintiff repeatedly lied to de-
fendant and the court throughout discovery,
opposition to discovery motions, the trial, and

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evidentiary hearings concerning the existence
of documents. In addition, plaintiff’s counsel
repeatedly and impermissibly elicited testimony
regarding matters previously ruled inad-
missible. Id. at 346. This misconduct was
found to have sufficiently prejudiced the jury.
Id.
Next, in Bufford, 994 F.2d at 157, defense
counsel claimed that plaintiff’s counsel, in his
opening statement and consistently over the
course of the proceedings, had sought to pro-
secute fraudulent claims. In addition, the trial
judge, in the presence of the jury, had threat-
ened plaintiff’s counsel with jail. Id. This
combination led to an unacceptable risk of a
tainted verdict. Id. at 159.
In contrast, in this case, defendants’ coun-
sel’s actions did not rise to the level of egre-
gious conduct necessary to constitute fraud on
the court. Specifically, plaintiffs cite testimony
in which defendants’ counsel mentions a police
report, recounts the fact that plaintiffs’ experts
were being paid, notes that plaintiffs had also
brought suit against James, and states that
Powers had become unhappy with the doctors
whom his lawyer helped him to find. These
actions by counsel do not illustrate an
unconscionable plan or scheme. Defendants’
counsel’s actions can be seen as zealous advo-
cacy but did not rise to the level of impairing
the consideration of the case by the jury.
Therefore, a new trial was not warranted.
AFFIRMED.

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