USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2366
THOMAS KELLIHER,
Plaintiff, Appellant,
v.
GENERAL TRANSPORTATION SERVICES, INC.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Michael Avery with whom Jennifer Meyerhardt, Francis Marini and
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Marini & Turner were on brief for appellant.
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John D. Boyle, with whom Boyle & Morrissey was on brief for
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appellee.
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July 20, 1994
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CAMPBELL, Senior Circuit Judge. Thomas Kelliher,
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plaintiff-appellant, brought a diversity action in negligence
against General Transportation Services, Inc., defendant-
appellee, in the United States District Court for the
District of Massachusetts. A jury trial began on October 13,
1993. Two days later, answering special verdict questions,
the jury found for General Transportation. After having
moved unsuccessfully for a new trial, Kelliher appealed from
the judgment and from the denial of his motion for a new
trial. We affirm.
I.
On the afternoon of March 26, 1988, fifteen-
year-old Thomas Kelliher of Hanson, Massachusetts, borrowed
his older brother's "ten-speed" bicycle so that he could ride
to Del's High Street Salon to get a haircut. This journey
required Kelliher to ride in the streets of Hanson. Kelliher
testified that it was his usual practice when riding a
bicycle in the street to stay about a foot away from the
shoulder of the road.
On his way to Del's, Kelliher headed south down
High Street, which has two lanes, running northbound and
southbound, divided by a center line. In the area where the
accident occurred, High Street is approximately twenty-two
feet wide, with each lane measuring roughly eleven feet from
the edge of the pavement to the opposite edge of the center
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line. At trial, there was evidence that High Street has
"soft" shoulders, with broken pavement, and that sand runs
along the side of the street.
While riding on High Street, Kelliher looked back
over his left shoulder and saw a Mercedes-Benz truck, owned
by General Transportation, coming up in his lane from behind
him. He then turned back, looked forward, and proceeded down
High Street. The next thing Kelliher recalled was falling to
his left and feeling pain in his left elbow. Kelliher then
looked up and saw the Mercedes-Benz truck about ten feet away
continuing south on High Street in the same lane in which he
had been riding.
Robert O'Brien, along with his wife and children,
was driving in his pick-up truck about 150 feet behind the
Mercedes-Benz truck when the accident occurred. He observed
the truck pass near Kelliher but not touch him or his
bicycle traveling at a speed of about ten to fifteen miles
per hour. Then, as the truck was passing Kelliher, O'Brien
saw Kelliher fall back to his left towards the road. After
Kelliher fell, O'Brien pulled up to where Kelliher was lying,
and went to see how he was. He saw a pool of blood and a
bone coming through Kelliher's left arm. When O'Brien asked
whether the truck had hit him, Kelliher said, "No." O'Brien
observed the bicycle's tires in the sand that lined the
section of High Street where Kelliher fell.
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Jeffrey Baenziger, the driver of the Mercedes-Benz
truck, was an employee of General Transportation. At the
time of the accident, Baenziger was purportedly headed to a
house on High Street to deliver merchandise sold by Sears
Roebuck. As Baenziger approached his destination, he saw
Kelliher riding his bicycle near the edge of the road.
Baenziger testified that he knew there was sand just off the
shoulder of High Street and that a bicycle might fall if its
tires went into the sand. With this knowledge, Baenziger
told the jury that he gave Kelliher five to seven feet when
he passed him, putting the center of his truck in the middle
of High Street so that half of his truck was in the
southbound lane and half was in the northbound lane.
Baenziger further claimed that he kept his truck in the
center of High Street until he reached the house where he was
to make the delivery. Then, he stopped the truck, and backed
into the driveway. When Baenziger got out of his truck, he
saw a group of about five people gathered in the street. He
approached the gathering to find out what was happening.
Baenziger saw Kelliher lying on the ground, and observed that
his left arm was injured. He waited at the scene until the
police arrived.
Officer Eugene Andrews of the Hanson Police, who
arrived on the scene shortly after the accident, gave
testimony that differed from Baenziger's explanation as to
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why he stopped his truck. According to Andrews, Baenziger
told him that he stopped his truck when somebody flagged him
down. As to Baenziger's testimony that half of his truck was
in the northbound lane of High Street when he passed
Kelliher, Robert O'Brien testified that, after Kelliher fell,
he saw the truck continue in the southbound lane of High
Street. Mrs. O'Brien testified that she never saw the truck
drive into the other lane when it passed Kelliher.
Officer Andrews testified that, when he arrived at
the accident scene, he approached Kelliher and saw him lying
four or five feet from the paved edge of High Street. He
observed that Kelliher's left arm was "crushed" and
"essentially stuck to the road surface." His left elbow was
about five feet from the edge of the road.
After conducting an investigation, Officer Andrews
concluded that Kelliher had ridden his bicycle into the sand
that lined High Street, and that this had caused him to fall
over into the street, where he was run over by Baenziger's
truck approximately five feet from the edge of the roadway.
There was no evidence, according to Officer Andrews, that
Kelliher had been forced off the road by the truck or that
the truck had hit him prior to running over his arm. It was
Officer Andrew's further conclusion that Baenziger had
committed no violation and that no citation should issue.
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II.
Kelliher maintains on appeal that the "essence" or
"theory" of his case was that, regardless of whether the
truck Baenziger was driving caused his fall, it passed too
closely to him, so as to run over his arm after he fell. He
assigns as error the court's failure to give his requested
jury instruction No. 9:
Plaintiff is not required to prove
that there was an actual collision
between the defendant's truck and the
bicycle or between the truck and the
plaintiff himself, in order to recover.
It is sufficient for plaintiff to prove
that his injuries resulted from an
accident that was caused by the
negligence of the defendant or its agent.
The district court declined to give this instruction,
although, as later discussed, its instruction on negligence
and causation was not inconsistent and did not in any way
limit plaintiff to recovering only if the truck collided with
him.
Kelliher further complains that the court unduly
limited the jury when, at the outset of its charge, it
described the plaintiff's contentions as follows:
In this case, the plaintiff contends
that he was injured when a truck owned by
the defendant, and driven by the
defendant's employee, Jeffrey Baenziger,
either knocked or forced the plaintiff
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off of his bicycle. The plaintiff
contends that Mr. Baenziger was negligent
in driving the truck and that his
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negligence caused the plaintiff's
injuries. [Emphasis supplied.]
Kelliher maintains that by so describing his claim the court
led the jury to think he could not recover unless he proved
that the truck knocked or forced him off of his bicycle. We
disagree.
In reviewing jury instructions, our principal focus
"`is to determine whether they tended to confuse or mislead
the jury on the controlling issues.'" Brown v. Trustees of
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Boston Univ., 891 F.2d 337, 353 (1st Cir. 1989) (quoting
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Service Merchandise Co. v. Boyd Corp., 722 F.2d 945, 950 (1st
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Cir. 1983)), cert. denied, 496 U.S. 937, 110 S. Ct. 3217, 110
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L. Ed. 2d 664 (1990); e.g., Davet v. Maccarone, 973 F.2d 22,
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26 (1st Cir. 1992). "`[T]he charge must be examined as a
whole; portions of it are not to be treated in isolation.'"
Brown, 891 F.2d at 353 (quoting Service Merchandise, 722 F.2d
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at 950). "An error in jury instructions will warrant
reversal of a judgment only if the error is determined to
have been prejudicial, based on a review of the record [in
its entirety]." Davet, 973 F.2d at 26 (citing Connors v.
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McNulty, 697 F.2d 18, 21 (1st Cir. 1983)).
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To begin, we are not convinced that plaintiff
indicated as he now contends that the "essence" of his
case was that Baenziger was negligent simply because he drove
his truck so closely to Kelliher that if the latter fell for
some unrelated reason, his arm could be injured by the truck.
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This was definitely not the theory of negligence asserted in
Kelliher's complaint and no amendment was ever proposed.
Rather the complaint alleged that "defendant's employee
Baenziger [negligently] struck the plaintiff with the truck
he was driving . . . ." Nor was it the theory Kelliher's
attorney stated to the jury at opening argument. Counsel
asserted then that even if Baenziger's truck had not hit
Kelliher, Baenziger was driving so perilously close to him
"that he caused the accident, caused [him] to fall from his
bicycle and caused him to be injured."
At closing argument Kelliher reiterated the
foregoing theme, contending that "what we know for sure is
that [Baenziger] was not driving in the middle of that road
and that he gave [Kelliher] only about this much clearance of
that side of the road, and that as a result, as a result,
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[Kelliher] fell and the truck drove over his arm." [Emphasis
supplied.] To be sure, counsel also suggested in closing
argument, as another ground of negligence, that the truck
driver should have foreseen that plaintiff might fall off his
bicycle for reasons unrelated to operation of the truck, so
that his arm would go under the wheels. But this theory was
interwoven with the earlier ones, which were not abandoned.
In these circumstances, it is perhaps not
surprising that the district court should have characterized
the plaintiff's contentions as being that the truck "either
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knocked or forced the plaintiff off of his bicycle."
Plaintiff did not, thereafter, ask the court to rescind or
revise this description of what he contended. After the
charge, however, plaintiff did object to the court's failure
to give his proposed instruction No. 9, telling the court in
this connection that "[i]t is also a part of our theory of
the case" that plaintiff might recover "if [he] fell and then
the truck ran over him simply because [it] was too close to
him."
In deciding whether to amplify its instructions,
the court was entitled to take into account whether it had
already sufficiently covered the same ground. We think it
had. Apart from the criticized initial description of
plaintiff's contentions, the court had said nothing whatever
in its charge regarding any need to prove that defendant's
driver struck or forced Kelliher off the road. Special
verdict question No. 1(a) read simply:
Do you find that the defendant's
employee, Jeffrey Baenziger, was
negligent with respect to the accident
which occurred on March 26, 1988?
Explaining what the jury had to find in order to return a
verdict for plaintiff, the district court stated:
In order to find for the plaintiff,
Thomas Kelliher, on his negligence claim,
you must find, (1) facts indicating a
duty on the part of Mr. Baenziger to
exercise reasonable care for Mr.
Kelliher; (2) that Mr. Baenziger failed
to exercise reasonable care; and (3) that
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Mr. Baenziger's failure to exercise
reasonable care caused or contributed to
the injury and consequent damage
sustained by Mr. Kelliher.
Negligence is the failure of one
owing a duty of care to another to
exercise the duty of care which an
ordinarily prudent person would exercise
under similar circumstances. It is the
failure, by act or omission, to use
ordinary care under the circumstances.
Ordinary care is that care which
reasonably prudent persons exercise in
the management of their own affairs in
order to avoid injury to themselves or
their property or to the person or
property of others.
The court went on to say,
Massachusetts law requires that in
approaching or passing a person upon a
bicycle, the operator of a motor vehicle
shall slow down and pass at a safe
distance and with safe clearance and at a
reasonable and proper speed. Evidence of
compliance with or noncompliance with a
traffic law may be considered by you as
evidence bearing upon negligence, but
neither compliance nor noncompliance with
a traffic law is alone decisive of the
claim of negligence. Furthermore, apart
from traffic laws, a person has a duty of
reasonable care. Thus, if the evidence
supports a finding that reasonable care
requires something more than [what] was
required by a traffic law, you may find
negligence even in the face of evidence
of compliance with the traffic law.
Also, on the other hand, noncompliance
with the traffic law is not alone
decisive. It is only evidence of
negligence. You will bear in mind that
the standard you are to apply is the
standard of reasonable care as I have
defined it for you, and you are to reach
your finding in light of all the facts
and circumstances in evidence before you.
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Taken as a whole, these instructions particularly the
explanation of Massachusetts traffic law gave the jury
ample guidance and leeway to find for Kelliher had it
concluded that the distance between the moving truck and
Kelliher was so close as, for whatever reason, to reflect a
lack of care on Beanziger's part. What conduct and
considerations would add up to a lack of care were properly
left to the jury. We do not think the court's earlier
characterization of plaintiff's claim would have deflected a
reasonable jury from making up its own mind as to whether
Baenziger was or was not negligent. The jury had been fully
exposed to the parties' argument and to all the evidence, in
a claim based on a motor vehicle accident well within the
experience of the average juror to analyze.
Nowhere in the court's negligence instructions did
it limit recovery to just those circumstances mentioned in
describing plaintiff's claim. Had the jury concluded that
Baenziger acted without proper care and that his conduct was
causally related to the injury, it could and, we think would
have found for plaintiff. While one can argue about the
desirability of giving instruction No. 9, the court has
leeway to instruct in its own language provided its
description of the law was fair and accurate. We think these
instructions provided the jury with the necessary guidance.
III.
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Kelliher next argues that the district court
committed reversible error in refusing to deliver his
requested consciousness of liability instruction, which read:
If you find that the driver of the
defendant's vehicle knew that there had
been an accident, and attempted to leave
the scene of the accident without
identifying himself, you may consider
that fact as some proof of the
defendant's liability.
Kelliher says that such an instruction was warranted because
there was evidence at trial that, after Baenziger's truck ran
over Kelliher's arm, Baenziger did not stop his vehicle until
another motorist flagged him down. We are not persuaded.
"Although the determination of the substance of a
jury instruction in a diversity case is a matter of state
law, the grant or denial thereof is a matter of procedure
controlled by federal law." Farrell v. Klein Tools, Inc.,
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866 F.2d 1294, 1296 (10th Cir. 1989). In this context, under
Massachusetts law, "evidence that [a defendant] left the
scene of [an] accident without identifying himself [can]
properly be considered as some further proof of his
liability." Olofson v. Kilgallon, 362 Mass. 803, 806, 291
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N.E.2d 600, 602-03 (Mass. 1973). Under federal law, however,
even if a proffered jury instruction accurately describes the
law, the instruction "should not be given if there is not
sufficient evidence to support it." Prentiss & Carlisle Co.
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v. Koehring-Waterous Div. of Timberjack, Inc., 972 F.2d 6, 10
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(1st Cir. 1992); see Farrell, 866 F.2d at 1297 ("Under
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federal law it is error to give an instruction when there is
no evidence to support it."). Here, there was no evidence
whatsoever from which a reasonable juror could infer that
Baenziger left the scene knowing that he had been involved in
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an accident. Baenziger testified that he had no inkling that
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there had been an accident until well after it had occurred.
His testimony was corroborated by Officer Andrews, who
testified that Baenziger told him that he did not know that
he had run over Kelliher. There was no evidence to the
contrary. Accordingly, the district court did not err in
refusing to deliver Kelliher's proffered consciousness of
liability instruction.
The judgment below is affirmed. Costs to appellee.
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