Hiltgen v. Sumrall

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 93-7309

MAUREEN HILTGEN,
Plaintiff - Appellee - Cross-Appellant,
versus

DOUGLAS LEON SUMRALL, ET AL.,
Defendants - Appellants - Cross-Appellees.

Appeals from the United States District Court
for the Southern District of Mississippi

(Opinion October 27, 5th Cir., 1994, _____F.3d_____)

AS AMENDED ON DENIAL OF REHEARING
AND SUGGESTION FOR REHEARING EN BANC

(March 2, 1995)

Before REYNALDO G. GARZA, DeMOSS, and PARKER*, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Maureen Hiltgen filed this diversity wrongful death action

against Douglas Leon Sumrall ("Sumrall"), The Mason & Dixon Lines

("Mason"), and D. Larry Abston ("Abston"), asserting negligence and

vicarious liability for an automobile accident that caused the

death of her husband, Peter J. Hiltgen, on March 6, 1989. After a

trial by jury, the district judge entered judgment on the verdict

against all of the defendants, jointly and severally, in favor of

the plaintiff on March 5, 1992.

*
Judge Parker participated by designation in the oral
argument of this case as a United States District Judge for the
Eastern District of Texas. Since that time he has been appointed
as a Fifth Circuit Judge.
 The defendants' post-trial motions were ultimately denied, and

this appeal followed. The plaintiff filed a cross-appeal as well,

which was contingent only. Since we find no merit in the

defendants' appeals, we do not address the points of error raised

by the plaintiff.

FACTS

The accident from which this case arose occurred on March 6,

1989 at approximately 10:00 p.m. on Interstate 20 near Leeds,

Alabama. Peter Hiltgen was killed instantly when his van slammed

into the rear of a tractor-trailer rig driven by Sumrall. Sumrall

is a Mississippi resident who was employed by Abston. Abston, also

a Mississippi resident, owned the tractor-trailer, which had been

leased to Mason for the purpose of carrying a load of plastic pipe

from Quitman, Mississippi to Woodstock, Georgia. Mason is a

Delaware Corporation with its principal place of business in

Tennessee, and an agent in Meridian, Mississippi.

Prior to 10:00 p.m. on March 6, 1989, Sumrall pulled the

tractor-trailer into the emergency lane or shoulder on the right-

hand side of I-20 East, just outside Leeds, Alabama, near the 144

mile marker. Sumrall testified later that the purpose of this stop

was to check his load and urinate. The evidence shows that when

Sumrall was prepared to continue his haul to Woodstock, Georgia, he

started to accelerate in the emergency lane and slowly brought the

tractor-trailer back into the right-hand lane of traffic. The

evidence also shows that the tractor-trailer was travelling

approximately 20 - 30 miles per hour at the time of the collision.

2
 Approximately seven miles west of the collision, Franklin

Howard and Gordon Simpson, travelling in the same vehicle, had

entered traffic on I-20 right behind the van driven by Peter

Hiltgen. They testified that the van was not being driven in a

reckless manner when they were in a position to observe it prior to

the accident. Fifteen to twenty seconds before the collision, the

Hiltgen van completed a safe pass of a vehicle driven by Britt

Smith. Mr. Smith testified that the van was operating with only

one headlight, but that it was being operated in a safe manner in

all other respects. The evidence indicates that the Hiltgen van

was travelling approximately 65 - 68 miles per hour immediately

prior to the collision.

Shortly after the van passed Mr. Smith's vehicle, Smith,

Howard, and Franklin saw the rear of the van suddenly jump in the

air, and then saw the van veer off into the median. All three

witnesses testified that at the time of the collision they could

not tell what the van had run into. In addition, all three

testified that they did not see the tractor-trailer rig or its

lights prior to the accident even though, in their opinion, they

were in a position to have seen the tractor-trailer if it had had

its lights on. The evidence also shows that Hiltgen did not take

any action to avoid the collision, indicating that he did not see

the tractor-trailer in time to react.

Prior to trial, the district court ruled that Alabama law

would be applied to the negligence claim against Defendant Sumrall.

Thus, the defendants asserted the affirmative defense of

3
contributory negligence, which, if proven, provides a complete bar

to the plaintiff's recovery under Alabama law.1 The district court

also ruled that Mississippi law would apply to the vicarious

liability claim against Defendant Abston because the employment

relationship between Sumrall and Abston was entered into in the

State of Mississippi.

Also prior to trial, Defendant Abston moved for summary

judgment, arguing that he could not be held vicariously liable for

Sumrall's actions because the trip-lease and Federal Motor Carrier

Safety Regulation 49 C.F.R. § 1057.12 provided that during the term

of the lease, Mason was deemed to have exclusive possession,

control, and use of the equipment, and in addition that there was

no evidence that Abston retained sufficient control over Sumrall to

render Abston liable under the doctrine of respondeat superior.

The district court denied Abston's motion, holding that a genuine

issue of material fact existed with regard to Abston's control over

Sumrall.

The parties presented physical evidence, lay testimony, and

expert testimony. At the close of all the evidence, the defendants

moved for judgment as a matter of law under Rule 50(a) of the

Federal Rules of Civil Procedure. The district judge denied this

motion and submitted the matter to the jury by use of a special

verdict form. The jury found that Sumrall had been negligent and

that his negligence was a proximate cause of the collision. The

1
See, e.g., Alabama Power Co. v. Scholz, 215 So.2d 447, 452
(Ala. 1968).

4
jury also found that Peter Hiltgen had been negligent, but found

that Hiltgen's negligence was not a proximate cause of the

collision. In addition, the jury found that Abston was liable for

Sumrall's negligence.2 Having found against all of the defendants,

the jury then awarded the plaintiff $1,500,000.00.3 The district

court entered judgment on the jury verdict.

Following judgment, the defendants renewed their motions for

judgment as a matter of law under Rule 50(b), and moved

alternatively for a new trial under Rule 59 of the Federal Rules of

Civil Procedure. Initially, the district court decided to grant

the defendants' motion for a new trial on the grounds that the

verdict was based in part on the incompetent testimony of

plaintiff's expert witness. However, upon motion for

reconsideration by the plaintiff, the court held that any error in

admitting the testimony of the plaintiff's expert witness had been

waived by the defendant's when they failed to raise a

contemporaneous objection. Therefore, the court withdrew its order

granting the defendants' motion for new trial. In addition, the

district court was very clear that the defendants' renewed motions

for judgment as a matter of law were denied.

2
Defendant Mason conceded prior to trial that it was
responsible, by operation of the trip lease and federal
regulations, for Sumrall's actions. Therefore, there was no
separate instruction or finding of the jury regarding Mason's
liability.
3
Under Alabama law, the plaintiff in a wrongful death action
may only recover punitive damages. See, e.g., Tatum v. Schering
Corp., 523 So.2d 1042, 1052-57 (Ala. 1988). Having ruled that
Alabama law applied, the district court appropriately instructed
the jury on punitive damages.

5
 After the court withdrew its order granting a new trial on the

bases of erroneously admitted evidence, the court considered the

defendants' motion for new trial based on the excessiveness of the

jury's punitive damages award and request for remittitur. The

court held a hearing to review the propriety of the award, as

required by Alabama law,4 and held that the amount awarded by the

jury was not excessive.

On appeal, the defendants make the following arguments: 1)

that the evidence is not legally sufficient to support the jury

verdict and thus they are entitled to judgment as a matter of law;

2) that the jury's verdict is contrary to the great weight of the

evidence and thus they are entitled to a new trial; 3) that

improper jury instructions and reading of certain stipulations

misled the jury and thus they are entitled to a new trial; and 4)

that the jury's punitive damages award is excessive and thus they

are entitled to a new trial on the damages issue or a remittitur of

the jury's verdict. In addition, Defendant Abston argues that as

a matter of law he is not vicariously liable for Sumrall's actions.

SUFFICIENCY OF THE EVIDENCE

A motion for judgment as a matter of law (previously, motion

for directed verdict or J.N.O.V.) in an action tried by jury is a

challenge to the legal sufficiency of the evidence supporting the

jury's verdict. On review of the district court's denial of such

a motion, the appellate court uses the same standard to review the

4
Industrial Chem. & Fiberglass Corp. v. Chandler, 547 So.2d
812, 839 (Ala. 1988).

6
verdict that the district court used in first passing on the

motion. Bridges v. Groendyke Transp., Inc., 553 F.2d 877 (5th Cir.

1977). A jury verdict must be upheld unless "there is no legally

sufficient evidentiary basis for a reasonable jury to find" as the

jury did. Fed. R. Civ. P. 50 (a)(1).

This court has consistently applied this standard to show

appropriate deference for the jury's determination.

A jury may draw reasonable inferences from the evidence,
and those inferences may constitute sufficient proof to
support a verdict. On appeal we are bound to view the
evidence and all reasonable inferences in the light most
favorable to the jury's determination. Even though we
might have reached a different conclusion if we had been
the trier of fact, we are not free to reweigh the
evidence or to re-evaluate credibility of witnesses. We
must not substitute for the jury's reasonable factual
inferences other inferences that we may regard as more
reasonable.

Rideau v. Parkem Indus. Services, Inc., 917 F.2d 892, 897 (5th Cir.

1990) (citations omitted).

The defendants address two distinct points, arguing that the

evidence is insufficient to support the jury verdict. First, they

contend that the evidence does not support the jury's conclusion

that Sumrall was negligent. The district court specifically

rejected this contention.5 We agree with the district court's

determination.

Specifically, the defendants argue that there was no evidence

that the tractor-trailer's lights were off at the time of the

collision. However, in our opinion, the testimony of Franklin

Howard, Gordon Simpson, and Britt Smith provided ample evidence to

5
Federal District Court Record at Vol. 12, p. 1531 n.3.

7
support a finding that the tractor-trailer's lights were off, and

thus that Sumrall was negligent in his operation of the rig. The

defendants rely on Sumrall's testimony that he never turned the

lights off. However, the jury was free to consider Sumrall's

interest in the outcome of the litigation and his credibility

generally, and we will not replace the jury's evaluation of the

weight or credibility of witness testimony with our own.6

Second, the defendants argue that the evidence does not

support the jury's conclusion that Peter Hiltgen's negligence was

not a proximate cause of the collision. This issue was raised by

the defendants' assertion of the defense of contributory

negligence. Contributory negligence, under Alabama law, is a

defense that is a complete bar to the plaintiff's recovery if

proven. It is an affirmative defense on which the defendant bears

the burden of proof. Robertson v. Travelers Inn, 613 So.2d 376,

379 (Ala. 1993). In addition to the burden of showing that the

plaintiff failed to use due care for his own safety, the defendants

bore the burden of proving that such failure was a proximate cause

of the injury. American Furniture Galleries, Inc. v. McWane, Inc.,

477 So.2d 369, 372 (Ala. 1985).

The element of causation may be broken down into two parts:

6
The defendants also contend that the "negative" testimony
of the plaintiff's witnesses should not be allowed to outweigh
Sumrall's "positive" testimony to the contrary. Although the
defendants have made a valiant effort to phrase this argument in
the language of legal technicality, in essence it is no more than
a request that we take the questions of weight and credibility away
from the jury. We must deny this request for the reasons given
above.

8
factual or "but-for" causation and legal or proximate causation.

Hilliard v. City of Huntsville Elec. Util. Bd., 599 So.2d 1108,

1111 (Ala. 1992). Factual causation, or "but for" causation, asks

whether the complained of injury or damage would have occurred but

for the act or omission of the party in question. Proximate or

legal causation asks whether the act or omission of that party is

of such a nature that a court of law will recognize it as the legal

cause of the injury.

There is no dispute that, as evidenced by his inaction prior

to the collision, Hiltgen did not see the tractor-trailer in time

to react to it. The central issue for the jury thus became "why?"

The defendants contended that Hiltgen did not see the truck in time

because of his contributory negligence. The plaintiff, on the

other hand, contended that the decedent simply did not have time to

react and that contributory negligence played no part in the

accident. This presented a question of factual causation.

The defendants presented evidence on three different theories

of contributory negligence: that Hiltgen was operating his vehicle

with only one working headlight, that he was driving too fast under

the circumstances, and that he was inattentive to the road ahead of

him. The court instructed the jury that Hiltgen's operation of a

vehicle at night with only one functioning headlight constituted

negligence per se under Alabama law. The court also instructed the

jury that it could find Hiltgen to have been negligent in operating

his vehicle at a greater rate of speed than was reasonable under

the circumstances and/or in failing to keep a reasonable and proper

9
lookout. By special verdict, the jury found that Hiltgen was

acting negligently at the time of the accident, but that his

negligence was not a proximate cause of the accident.

The uncontroverted evidence established that the Hiltgen van

was operating with only one headlight functioning at the time of

the accident, and the court appropriately instructed the jury that

this defect constituted negligence per se. Therefore, the jury was

obligated to find that Hiltgen was negligent in this respect, and

this finding alone is sufficient to support the jury's finding on

the first element of contributory negligence. This finding is also

consistent with the jury's finding that Hiltgen's negligence was

not a proximate cause of the accident because experts for the

plaintiff and the defendants testified that Hiltgen would not have

been able to see any farther ahead with two functioning headlights.

The defendants correctly assert that the evidence allowed the

jury to find that Hiltgen was driving unreasonably fast under the

circumstances and failed to keep a proper lookout. Indeed, if we

were reviewing, in isolation, the special verdict finding that

Peter Hiltgen was acting negligently, this court would not hesitate

to assume that the jury made such findings and conclude that those

findings were supported by substantial evidence. Such a conclusion

would follow naturally from our duty to view the evidence and all

reasonable inferences in favor of the jury's finding.

However, in the present case, we must also view the evidence

and all reasonable inferences in favor of the special verdict

finding that Hiltgen's negligence was not a proximate cause of the

10
accident. In fulfilling this obligation, we are constitutionally

required under the Seventh Amendment to adopt a view of the case

that makes the jury's answers consistent. Gallick v. Baltimore &

Ohio R.R. Co., 372 U.S. 108, 119 (1963); Atlantic & Gulf

Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962);

Bourque v. Diamond M. Drilling Co., 623 F.2d 351, 353 (5th Cir.

1980); Griffin v. Matherne, 471 F.2d 911, 915 (5th Cir. 1973).7

Findings that Hiltgen was negligently driving an unreasonable

speed or failing to keep a proper lookout would create a serious

conflict with the jury's finding that Hiltgen's negligence was not

a proximate cause of the accident. Therefore, we must view the

evidence of Hiltgen's speed and attentiveness accordingly, i.e., in

favor of the plaintiff.

Viewed in this light, the evidence allows a finding that

Hiltgen was driving 65 m.p.h., the legal speed limit on I-20. The

defendants contend that under the circumstances, including that the

decedent was driving with only one functioning headlight, this was

an unreasonable speed and should be deemed negligent. However, we

cannot conclude that this conduct constituted negligence as a

matter or law; nor can we assume that the jury found it to be

7
The proper standard of review, as the dissent acknowledges,
requires us to view the evidence in the light most favorable to the
jury's verdict. This standard necessarily applies to the verdict
as a whole. The dissent's approach would undermine the deferential
standard for reviewing jury verdicts by allowing the appellate
court to assume specific fact findings with regard to a particular
special verdict even if those findings cause a direct conflict with
another special verdict. Contrary to the dissent's allegation that
we offer no precedent in support of our methodology, the cases
cited above require the standard of review we apply.

11
negligent.

The defendants also contend that the evidence requires a

finding that Hiltgen was negligently inattentive to the road ahead

of him. We disagree. The parties presented evidence, including

expert testimony, regarding the relative speeds of the two

vehicles, the time Hiltgen had to react, and the time an average

person would have needed to react and avoid the collision. The

experts for both sides were cross-examined thoroughly. Both sides

presented ample evidence on this issue to present a question for

the jury.

The evidence shows, as discussed above, that the Hiltgen van

was travelling 65 m.p.h. Based on the estimated stopping distance

of the truck, the police report indicated that the truck could not

have been going more than 31-32 m.p.h. at the time of the accident.

Using this calculation, the plaintiff's expert witness, Thomas

Langley, estimated that the truck was travelling at approximately

30 m.p.h. at the time of the accident. However, the plaintiff also

presented the testimony of Howard Lucas who purchased the truck

from Abston following the accident. Lucas testified that

considering the gear Sumrall said he was in at the time of the

accident, he could not have been driving more than 20-25 m.p.h.

Langley's testimony indicates that the reflection of the

safety reflectors on the rear of the tractor-trailer would have

first become visible when the Hiltgen van was 125 feet from it.

However, Mr. Langley's testimony also indicates that this

reflection would not necessarily produce a sufficient stimulus at

12
125 feet to induce an instant reaction in a fully attentive

individual. In addition, he testified that the body of the truck

would not have become visible until the van was 100 feet from it.

There was also testimony that the average human reaction time is

1.5 seconds.

The defendants attempt to use mathematical calculations to

show that they have established negligence and proximate cause

conclusively. They argue that based on the estimates used by

plaintiff's expert, the truck was moving 30 m.p.h. and Hiltgen

should have seen a reflection 125 feet behind it. By the

defendants' calculations, this indicates that the Hiltgen van was

closing on the tractor-tailer at a speed of 35 m.p.h. and thus that

Hiltgen had 2.44 seconds8 to react and avoid the collision. They

then point to Langley's testimony that Hiltgen would have needed

2.43 seconds to complete a critical swerve to miss the tractor-

trailer.9 Therefore, they conclude, Hiltgen had more than enough

time to avoid the fatal crash had he been paying attention. Based

on this difference of one one-hundredth of a second,10 derived from

an expert's estimates, the Defendants contend that they have

conclusively shown negligent inattentiveness, by Hiltgen's failure

8
125 feet would be covered at a speed of 35 m.p.h. (51.33
feet per second) in 2.4352 seconds.
9
Langley testified that a driver would need 232 feet at 65
m.p.h. (95.33 feet per second) to complete a critical swerve. When
these figures are used to compute the time needed at a constant
speed, the result is 2.4347 seconds.
10
When the calculations are carried out two more decimal
places, it can be seen that the slim reed on which the defendants
rely is actually five ten-thousandths of a second.

13
to take any action, and proximate cause, by the fact that Hiltgen

could have avoided the accident in the time he had to react.

The flaw in defendants' argument is that the jury was not

required to rely on Mr. Langley's estimates. The testimony of

Howard Lucas was sufficient to allow the jury to find that the

Sumrall truck was moving as slow as 20 m.p.h. at the time of the

accident. The jury also could have found that a reasonably prudent

person might not have recognized the perilous situation until the

truck itself was visible at 100 feet. Considering these facts, the

jury could have concluded that Hiltgen had only 1.5 seconds11 from

the time he first saw the truck until he crashed into the rear of

it. Since, according to the testimony, 1.5. seconds is the average

human reaction time, the jury certainly could have concluded that

Hiltgen was not negligently inattentive, and thus that

inattentiveness was not a proximate cause of the accident.

In addition, the testimony of Franklin Howard, Gordon Simpson,

and Britt Smith that Hiltgen was not driving recklessly and

appeared to be in control of his van immediately prior to the

accident supports the conclusion that Hiltgen was not negligently

inattentive to the road ahead of him. Therefore, clearly the jury

was not obligated to find that the decedent was negligent on this

basis, and we cannot assume that it did so.

We must be especially careful when reviewing the sufficiency

of the evidence where the party seeking relief, the defendants in

11
If the truck were travelling 20 m.p.h., the closing speed
of the van would have been 45 m.p.h. or 66 feet per second. 100
feet can be covered at 66 feet per second in 1.515 seconds.

14
this case, had the burden of proof on the issue in question.12 We

reiterate that defendants had the burden of establishing that

Hiltgen's negligence was a proximate cause of the fatal accident.

Although we must uphold the jury's finding that Hiltgen acted

negligently, we cannot say that the defendants presented such proof

that a reasonable jury could only conclude that Peter Hiltgen's

negligence was a factual and legal cause of the accident.

Therefore, we hold that the jury's findings regarding negligence

and proximate causation are supported by legally sufficient

evidence.

MOTION FOR NEW TRIAL

Our review of the district court's denial of a motion for new

trial is more deferential than our review of a denial of a motion

for a judgment as a matter of law. "We will reverse the trial

court's denial of a motion for new trial only when there is a clear

showing of an abuse of discretion." Dawsey v. Olin Corp., 782 F.2d

1254, 1261 (5th Cir. 1986).

1. WEIGHT OF THE EVIDENCE

Defendants argue that they are entitled to a new trial because

the jury's verdict is contrary to the great weight of the evidence.

To show an abuse of discretion, the defendants would have to be

able to show "an absolute absence of evidence to support the jury's

verdict." Dawsey, 782 F.2d at 1262 (quoting Bailey v. Southern

12
See Allen v. Seacoast Products, Inc., 623 F.2d 355, 360 n.9
(5th Cir. 1980); Steven A. Childress & Martha S. Davis, Federal
Standards of Review § 3.06, at 3-65 (2d ed. 1992); 9 Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure § 2535,
at 592-93 (1971).

15
Pacific Transp. Co., 613 F.2d 1385, 1391 (5th Cir.) (per curiam)

(quoting Urti v. Transport Commercial Corp., 479 F.2d 766, 769 (5th

Cir. 1973)), cert. den., 449 U.S. 836 (1980)). Since we have

already held that the jury's verdict was supported by the evidence,

we do not find an abuse of discretion.

2. ERROR OF THE TRIAL COURT

Defendants also argue that they are entitled to a new trial

because certain instructions given to the jury and stipulated facts

read to the jury may have led the jury to believe that it could

find the Defendant Sumrall negligent on some unsupported general

theory of negligence. We have reviewed the district court's charge

to the jury and conclude that it accurately reflects applicable

law. In addition, we do not believe that the order of the

instructions created any risk of confusion. "Trial courts are

accorded great latitude in shaping instructions, and a verdict

based judgment will be reversed because of an erroneous instruction

only when the charge as a whole leaves us with substantial and

ineradicable doubt whether the jury has been properly guided in its

deliberations." Mayo v. Borden, Inc., 784 F.2d 671, 672 (5th Cir.

1986) (citations omitted). We have no such doubt in this case.

The defendants also cite the fact that the district court read

stipulated facts contained in the pre-trial order to the jury at

the beginning of the trial. To the extent that such stipulated

facts were not relevant to the issues to be tried, their submission

to the jury would seem to be contrary to Federal Rule of Evidence

16
402, which provides that "[e]vidence which is not relevant is not

admissible." However, we do not believe that any of the stipulated

facts created a substantial risk of confusion or prejudice.

Therefore, we find that the district judge did not abuse his

discretion in denying the defendants' motion for new trial on this

basis.

3. EXCESSIVE DAMAGES/REMITTITUR

The defendants also contend that the jury's award of punitive

damages is excessive and that they are entitled to a new trial on

damages or a remittitur of the jury verdict. The district court

properly instructed the jury on punitive damages, and the jury

awarded the plaintiff $1,500,000.00. On defendants' motion for new

trial or remittitur, the district court held a hearing to review

the award for excessiveness and applied the factors provided by

Alabama substantive law.13 The district court fully considered the

prescribed factors and held that the award was not excessive under

Alabama law. The district court's decision in this regard is

accorded considerable deference and should not be reversed absent

an abuse of discretion. Browning-Ferris Indus. of Vermont, Inc. v.

Kelco Disposal, Inc., 492 U.S. 257, 279-80, 109 S. Ct. 2909, 2922,

106 L.Ed.2d 219 (1989). Applying this standard of review, we find

no error.

ABSTON'S VICARIOUS LIABILITY

In addition to the arguments applicable to both defendants,

Defendant Abston contends that he cannot be held liable for

13
See Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala. 1989).

17
Defendant Sumrall's actions. This argument requires us to review

both questions of law and findings of fact.

First, Abston argues that, as a matter of law, he cannot be

held liable for Sumrall's actions under the doctrine of respondeat

superior because federal regulations required Defendant Mason, as

the lessee of the truck, to have "exclusive possession, control,

and use" of the tractor-trailer provided by Abston.14 Indeed, the

lease, and the controlling federal regulations, provide the basis

for Defendant Mason's liability in the present case. In Simmons

v. King, this court recognized that the lessee's liability under

such a lease15 is not governed by the common law doctrine of

respondeat superior. Simmons, 478 F.2d 857, 867 (5th Cir. 1973).

Instead, the assumption of responsibility required by the federal

14
The Federal Motor Carrier Leasing Regulations governed the
lease entered into by Abston and Mason. Section 1057.12 of those
regulations states, in relevant part:

(c) Exclusive possession and responsibilities --
(1) The lease shall provide that the authorized carrier
lessee shall have exclusive possession, control, and use
of the equipment for the duration of the lease. The
lease shall further provide that the authorized carrier
lessee shall assume complete responsibility for the
operation of the equipment for the duration of the lease.

49 C.F.R. § 1057.12.
15
In Simmons, as required by federal regulation, the lease
provided

It is understood that the leased equipment under this
agreement is in the exclusive possession, control and use
of the authorized carrier Lessee and that the Lessee
assumes full responsibility in respect to the equipment
it is operating, to the public, the shippers and the
Interstate Commerce Commission.

Simmons, 478 F.2d at 862 n.13.

18
regulations made the loaned driver the statutory employee of the

lessee, and rendered the lessee vicariously liable as a matter of

law. Id.

We also held in Simmons that the legal responsibility of the

lessee mandated by the federal regulations did not preclude the

lessor's liability under common law standards of control. Id.

This is not as incongruous as might be supposed. ICC can
mandate a positive legal responsibility which we uphold
in the only way it would be meaningful -- to give
protection to the injured member of the public[.] At the
same time [the lessor] has, or may have, a practical
control over [the driver] of a kind which would allow it
to obtain an automatic insulation from liability from the
mere terms of a lease between two parties.

Id. Therefore, to determine whether Defendant Abston may be held

vicariously liable under the circumstances presented, we must first

look to the applicable state law.

The district court held that Mississippi law would be applied

to the determination of this issue and this ruling has not been

appealed. Although the Mississippi courts have used multi-factored

tests to determine vicarious liability in different contexts, it

also has held that the core issue is whether the employer had

sufficient control that he ought to be held liable for the

negligent acts of the "employee". See Fruchter v. Lynch Oil Co.,

522 So.2d 195, 198 (Miss. 1988).

The Mississippi courts have not addressed the application of

the doctrine of respondeat superior to a situation like this one

where a trip-lease purports to vest exclusive control over the

equipment in a third-party lessee. However, we have no reason to

conclude that the Mississippi court would allow an employer to

19
avoid vicarious liability by operation of such a contract while

retaining de facto control of the employee. Therefore, we hold

that under Mississippi law, an employer can be subject to vicarious

liability based on a right or power to control an employee's

actions despite the intervention of a written equipment lease that

purports to vest exclusive control in a third-party lessee.

Since we find that the vicarious liability claim against

Defendant Abston is not precluded by federal law or Mississippi

state law, we must consider the relevant facts and review the

district court's rulings on this issue. Abston testified that

Sumrall was working for him and was loaned to Mason for the purpose

of delivering specific cargo. Sumrall testified that he considered

Abston his boss. After the accident, Sumrall telephoned Abston to

report the accident and to obtain permission to complete the

scheduled trip. In addition, it is clear that Sumrall's activity

was in furtherance of Abston's business.

With these facts in mind, and in light of the law discussed

above, we do not hesitate to affirm the district court's rulings.

Clearly, these facts are sufficient to justify the district court's

denial of Abston's motion for summary judgment. In other words, we

agree that there existed a genuine issue of material fact with

regard to Abston's control of Sumrall. Likewise, we affirm the

district court's denial of Abston's motion for judgment as a matter

of law because the jury's finding with regard to Abston's liability

is more than sufficiently supported by the evidence.

20
 CONCLUSION

After carefully reviewing the alleged errors raised by the

defendants, we are of the opinion that all of them are without

merit. Accordingly, the judgment of the district court is

AFFIRMED.

DeMOSS, Circuit Judge, dissenting:

In response to special verdict questions, the jury answered

that Sumrall (the driver of the 18-wheel tractor-trailer) was

"negligent in connection with the occurrence of this accident" and

that Hiltgen (the driver of the van) was "negligent in connection

with the occurrence of this accident." In response to similar

special verdict questions, the jury found that Sumrall's negligence

was "a proximate contributing cause of the collision in question"

but that Hiltgen's negligence was not "a proximate contributing

cause of the collision in question." Therein lies the core

controversy in this case, i.e., in a two-vehicle collision, where

the jury has found both the drivers negligent "in connection with

the occurrence of such collision," what evidence is required to

form the basis of a "legally sufficient evidentiary basis for a

reasonable jury" to find that one party's negligence is a proximate

cause and the other party's negligence is not a proximate cause of

such collision?

The answer to that question must start with the definition of

what constitutes a "proximate cause" under the law of Alabama,

21
where this accident occurred.16 In the case of General Motors

Corporation v. Edwards, 482 So. 2d 1176 (Ala. 1985), the Supreme

Court of Alabama discussed at length the elements of "proximate

cause" under Alabama law, and the following excerpts from that

discussion indicate the portions relevant to our present

controversy:

In Alabama, as elsewhere, foreseeability
is the cornerstone of proximate cause, Alabama
Paper Company v. Taylor, 293 Ala. 484, 306 So.
2d 236 (1975). As a result, one is held
legally responsible for all consequences which
a prudent and experienced person, fully
acquainted with all the circumstances, at the
time of his negligent act, would have thought
reasonably possible to follow the act,
Prescott v. Martin, 331 So. 2d 240 (Ala.
1976), including the negligence of others,
Williams v. Woodman, 424 So. 2d 611 (Ala.
1982). In short, as this court has frequently
stated, and as the trial court in this case
correctly instructed the jury, a particular
cause is considered the proximate cause of an
injury if, in the natural and probable
sequence of events, and without intervention
of any new or independent cause, the injury
flows from the act. . . .

Loosely defined, an "intervening cause"
is one which occurs after an act committed by
a tortfeasor and which relieves him of his
liability by breaking the chain of causation
between his act and the resulting injury.
Vines v. Plantation Motor Lodge, 336 So. 2d
1338 (Ala. 1976) . . . .

An intervening cause may be an "act of
God," such as an extraordinary event of
nature, Bradford v. Stanley, 355 So. 2d 328
(Ala. 1978), or the actions of another,
usually, though not necessarily, another
tortfeasor; however, a cause is not an
intervening cause so as to relieve a
tortfeasor of his liability, unless it comes

16
I concur with the majority's decision -- under Mississippi choice-of-law
principles -- to apply the substantive law of Alabama, the state where the
accident and its legal consequences occurred.
into active operation after the tortfeasor has
acted. . . .

Not every cause which comes into
operation after a tortfeasor has acted will
relieve him of liability for his wrongful act.
More than the proper temporal relationship
between the tortfeasor's act and the
subsequent cause is required. In order to be
an intervening cause, a subsequent cause must
also have been unforeseeable and must have
been sufficient in and of itself to have been
the sole "cause in fact" of the injury.
Vines, supra at 339. If an intervening cause
could have reasonably been foreseen at the
time the tortfeasor acted, it does not break
the chain of causation between his act and the
injury. Vines, supra; Morgan, supra;
Louisville and N.R. Co. v. Courson, 234 Ala.
273, 174 So. 474 (1937). Conversely, if the
intervening cause was unforeseeable, the
causal chain is broken. Vines, supra.
. . . .

Where two or more tortfeasors may be
responsible for the same injury, the law of
proximate cause is overlapped by the law of
concurrent tortfeasor liability. The basic
premise of concurrent tortfeasor law is that,
as alluded to above, an injury may have
several concurrent proximate causes, Morgan
Hill Paving Co. v. Fonville, 218 Ala. 566, 119
So. 610 (1928), including the actions of two
or more tortfeasors, neither of whose action
was sufficient in and of itself to produce the
injury, who act, either together or
independently, to produce it. Butler v.
Olshan, 280 Ala. 181, 191 So. 2d 7 (1966).
Alabama law is clear that on such occasions,
where the actions of two or more tortfeasors
combine, concur or coalesce to produce an
injury, each tortfeasor's act is considered to
be the proximate cause of the injury, Williams
v. Woodman, 424 So. 2d 611 (Ala. 1982). . . .

. . .In other words, because the actions
of each tortfeasor contributed, as a "cause of
in fact," to produce the injury, no tortfeasor
may assert that the actions of another
tortfeasor, and not his own, caused the
injury. The single exception to this rule is,
as discussed above, where the unforeseen act

23
 of another tortfeasor, which was sufficient in
and of itself to produce the injury,
intervened between the time the first
tortfeasor acted and the injury. . . .

Edwards, 482 So. 2d at 1194-95.

Applying these precepts to this case leads to the following

conclusions as a matter of law:

(1) There is no evidence of any kind whatsoever in this case

as to an "act of God" or "an extraordinary event of

nature" which could have constituted an intervening

cause.

(2) There is no testimony of any kind whatsoever in this case

regarding the actions of any third person or entity as

having any connection with this collision, and we are

left therefore with the conclusion that there are two,

and only two, possible tortfeasors involved.

(3) There is no evidence of any kind whatsoever in this case

of any time or distance gap separating the negligence of

Sumrall from the negligence of Hiltgen, and according to

the uncontradicted evidence, the negligence of Sumrall

and the negligence of Hiltgen were in fact occurring

right up to the moment of impact.

(4) Neither Sumrall nor Hiltgen can successfully contend that

the negligence of the other was not foreseeable. The

reason the law requires a commercial tractor-trailer to

have operable taillights and not just reflectors on the

rear of its vehicle is that the taillights increase the

distance at which the trailer can be seen at night, so

24
 that other drivers overtaking the trailer will be aware

of its presence sooner than they would relying on their

own headlights to activate the reflectors, particularly

if such headlights are defective or on low beam.

Conversely, the reason the law mandates that a vehicle

have two operable headlights with the capacity to switch

from low to high beam is to maximize the distance at

which other traffic may be identified, even in the

circumstance when other traffic may not be properly

lighted. In either case, the circumstance of the

occurrence of inoperable taillights or inoperable or

defective headlights is a circumstance which is readily

foreseeable. In a later case, the Supreme Court of

Alabama, in discussing the "foreseeability" aspect of

"proximate cause" stated: "Foreseeability does not

require that the particular consequence should have been

anticipated, but rather that some general harm or

consequence could have been anticipated." Thetford v.

City of Clanton, 605 So. 2d 835, at 840 (Ala. 1992).

(5) Consequently, there is no new or independent or

intervening cause; the individual negligent actions of

Sumrall and Hiltgen did "combine, concur or coalesce" to

produce the injuries involved. Accordingly, each of

those tortfeasor's acts "is considered to be the

proximate cause of the injury." Therefore, the jury

finding as to no proximate cause on the negligence of

25
 Hiltgen is not supported by substantial evidence in the

testimony and record and should have been disregarded

when tested by the defendant's motion for judgment as a

matter of law after the jury verdict.17

In the section of their opinion headed "Sufficiency of the

Evidence," the majority undertakes an elaborate explanation to

arrive at a conclusion to support the jury's finding of no

proximate cause as to the negligence of Hiltgen. I cannot agree

with either the methodology or the result of this analysis. Our

task in reviewing the jury's verdict is of course complicated by

the fact that the questions submitted to the jury on the special

verdict as to negligence were generic rather than specific.18 As

the majority recognizes in its opinion, the defendants contended

that Hiltgen was negligent in three respects: (1) operating his

vehicle with only one working headlight at night; (2) driving too

fast under the circumstances; and (3) being inattentive to the road

ahead of him. The jury found that "Hiltgen was negligent in

connection with the occurrence of this accident." This finding

leaves us with the question of what, if anything can we deduce from

17
Given that there was no testimony upon which either plaintiff or
defendants could expect to support a jury verdict of no proximate cause as to
their respective negligences, if any, the submission of the separate causation
special issues served only to create the very possibility of confusion and
conflict in the jury's answers which did in fact occur. Any negligence which the
jury found on the part of either party would, as a matter of law, be a proximate
cause of the resulting injuries.
18
The text of the questions submitted to the jury was:
1. Was Doug Sumrall negligent in connection with the occurrence of this
accident?
2. Was Peter Hiltgen negligent in connection with the occurrence of
this accident?

26
a general finding of "negligence on the occurrence of this

accident", as to what the jury determined as to any of the specific

grounds of negligence asserted by the defendants against Hiltgen.

As a matter of logic and legal requirements, it would seem to me

that the test should be that the jury found negligence as to each

of the grounds as to which the evidence would be sufficient to

support the jury's finding if the jury had been asked specifically

and separately as to each ground. Viewed from this perspective,

there is no doubt that the evidence presented to the jury was

sufficient to support a finding of negligence on the part of

Hiltgen as to each of the three alleged grounds: (1) The issue of

operating his vehicle with only one working headlight was

stipulated by the parties, and the trial judge instructed the jury

that such action constituted negligence per se under Alabama law;

(2) As to the issue of driving too fast under the circumstances,

there was clear evidence that shortly before the collision,

Hiltgen passed another vehicle that was travelling at 65 mph, and

that Hiltgen pulled away from this other vehicle 50 to 75 yards

before the collision, and there was clear evidence that the one

headlight working on Hiltgen's van was on the low beam setting;

and (3) On the issue of failure to keep a proper lookout, there

was clear and sufficient evidence that the brake lights on the

Hiltgen van never came on, that the Hiltgen van made no skid marks,

that the accelerator of the Hiltgen van was deformed by the impact

of the collision indicating that Hiltgen's foot was resting on the

accelerator at the moment of impact, and that the Hiltgen van never

27
swerved in either direction, but struck the rear end of the

tractor-trailer head-on. The majority expressly recognizes the

sufficiency of the evidence to support a jury finding on each of

these grounds.

Logically, then, the next test is to determine the legal

sufficiency of the jury's finding that none of the negligence of

Hiltgen was "a proximate contributing cause of the collision in

question." For the reasons described at the beginning of this

dissent, I submit there is no evidence whatsoever upon which a jury

could have relied to find either a time gap or a distance gap

between the negligences of the two tortfeasors, which the jury had

to have found to return a finding that Hiltgen's negligence was not

a proximate cause of the accident. Furthermore, the injury

resulting from this collision "flowed, in the natural and probable

sequence of events, and without intervention of any new or

independent cause," from the two acts of negligence which the jury

found. Where, as the undisputed facts in this case demonstrate,

the "actions of two or more tortfeasors combine, concur or coalesce

to produce an injury, each tortfeasor's act is considered to be the

proximate cause of the injury." Edwards, 482 So. 2d at 1195.

Amazingly, the majority opinion does not contain even a simple

definition of "proximate cause" under Alabama law, and there is no

attempt on the part of the majority to assess the evidentiary

factors that are clearly required in a determination of proximate

cause. The majority expressly recognizes that there is a "serious

conflict" between the jury's findings that Hiltgen was negligently

28
driving at an unreasonable speed or was failing to keep a proper

lookout with the jury's findings that Hiltgen's negligence was not

a proximate cause of the accident. Their solution to that

conflict, however, is to reassess "the evidence of Hiltgen's speed

and inattentiveness accordingly, i.e., in favor of the plaintiff"

(emphasis added). No statutory provision or case precedent is

cited by the majority to support their methodology of reassessing

evidence "in favor of the plaintiff", and that strikes me as a new

rule fraught with peril and full of potential abuse. We are bound

to view the evidence in the light most favorable to the jury's

verdict. The jury found against Hiltgen on the negligence issue.

We should, therefore, view the evidence in a light most favorable

to the negligence finding and not in a light most favorable to

Hiltgen, as the majority suggests. The majority then proceeds to

dispose of the unreasonable speed issue with the following

statement: "We cannot conclude that this constituted negligence as

a matter of law; nor can we assume that the jury found it to be

negligent." I would not argue that the speed was unreasonable "as

a matter of law," but I would strongly argue that the evidence on

unreasonable speed was clearly sufficient to support a jury finding

that it was unreasonable, and that when the jury finds that the

driver was "negligent" and the evidence would support a finding of

unreasonable speed, we should assume that the jury would have made

that finding if they had been specifically asked. Similarly, as to

the issue of "negligent inattentiveness," the majority goes through

a similar re-weighing and re-assessment of the evidence in order

29
to produce a result most favorable to the plaintiff, and it

concludes its analysis with the statement: "The jury certainly

could have concluded that Hiltgen was not negligently inattentive,

and thus that inattentiveness was not a proximate cause of the

accident." Later on, the majority further states on this issue

that: "Clearly the jury was not obligated to find that the

decedent was negligent on this basis, and we cannot assume that it

did so." As with the issue of unreasonable speed, however, when a

jury finds generally that a driver is "negligent," we can

logically, and should legally, assume that the jury would find that

such negligence existed in any respect as to which the evidence is

sufficient to support that aspect. On this inattentiveness issue,

I would also point out that the majority attempts to kill two birds

with one stone, i.e., not only could the jury conclude "that

Hiltgen was not negligently inattentive" but also that the

"inattentiveness," which was not negligent, was therefore "not a

proximate cause of the accident." The logic of this determination

escapes me.

In conclusion, there is nothing more "foreseeable" than the

fact that if you drive with only one, low beam headlight at night

(which is negligence per se under Alabama law), at an excessive

speed, and you are inattentive to the road in front of you, you may

run into the rear of a slower-moving vehicle whose taillights are

not operating properly. Every safe driving course taught in every

high school, and every defensive driving course given to adults,

instructs over and over again that the greatest danger in driving

30
at night is "over-driving your lights," i.e., driving at a speed

which prevents you from stopping or turning to avoid a hazard in

the visible distance ahead. Both of these curative actions are

achievable if you have response time. Response time is a function

of speed and visibility, visibility is a function of available

light, and at night, hazards may not always have lights on them.

Furthermore, on a divided interstate freeway with two lanes for

vehicles proceeding in the same direction, the ability to change

lanes quickly is a safety factor which permits faster moving

traffic to avoid and pass slower moving traffic. Consequently, if

one chooses to drive on our interstate freeways at or over the

speed limit, the safer place to be is in the left-hand lane,

because slower-moving, entering traffic must enter the right lane

from the right, and departing traffic must slow down in the right

lane to exit on the right. Highway signs generally instruct slow-

moving traffic to use the right lane. The collision in this case

occurred in the right-hand lane and at a point approaching a

freeway exit.

The only evidence upon which the jury could have rationally

based its decision that Hiltgen's contributory negligence was not

a proximate cause of the accident was the testimony of plaintiff's

expert "accident reconstructionist," Mr. Langley. Mr. Langley's

testimony did not address at all the factors required to determine

"proximate cause" under Edwards, supra. Furthermore, the trial

judge correctly characterized Langley's testimony as "unsupported

and incompetent" and sufficiently prejudicial to entitle defendants

31
to a new trial. Regrettably, the trial judge backed down on his

initial determination to grant a new trial; therein, I think the

trial judge erred. But whether the trial judge erred in this

regard is not the issue on appeal in this case. The critical issue

on appeal in this case is whether the jury's finding that Hiltgen's

negligence was not a proximate cause of the collision in question

was supported by legally sufficient evidence within the meaning of

Rule 50(a) and (b).

For the reasons set forth herein, I would conclude that such

finding is not supported by sufficient evidence and would reverse

and remand this case for new trial as initially decided by the

trial judge.

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