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Werner Enterprises, Inc. v. Brophy

November 3, 2009

WERNER ENTERPRISES, INC., A NEBRASKA CORPORATION, AND CHERYL R. NEAL, APPELLANTS (DEFENDANTS),
v.
PETER D. BROPHY, BY HIS GUARDIAN AND CONSERVATOR, KATE BROPHY, AND KATE BROPHY, INDIVIDUALLY, APPELLEES (PLAINTIFFS).
PETER D. BROPHY, BY HIS GUARDIAN AND CONSERVATOR, KATE BROPHY, AND KATE BROPHY, INDIVIDUALLY, APPELLANTS (PLAINTIFFS),
v.
WERNER ENTERPRISES, INC., A NEBRASKA CORPORATION, AND CHERYL R. NEAL, APPELLEES (DEFENDANTS).



Appeal from the District Court of Laramie County, The Honorable Edward L. Grant, Judge.

The opinion of the court was delivered by: Kite, Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] A jury awarded Peter and Kate Brophy damages in the amount of $18,069,257 for injuries they sustained as a result of a collision between Mr. Brophy's vehicle and a semi-truck owned by Werner Enterprises, Inc. (Werner) and being driven by Werner employee, Cheryl R. Neal. The district court entered judgment on the verdict and Werner appealed. The Brophys filed a cross-appeal.

[¶2] In their appeal, Werner and Ms. Neal contend the district court erred in refusing to instruct the jury concerning the statutory presumption they claim is created by Wyo. Stat. Ann. § 31-5-222(c) (LexisNexis 2009); the Brophys' counsel violated a pretrial order by questioning Ms. Neal about falsification of drivers' logs; the district court erred in allowing a life-care planner to testify concerning the cost of Mr. Brophy's future care without supporting medical testimony; the Brophys' counsel improperly questioned Werner's accident re-constructionist about Werner's safety record and accident history; and the verdict was excessive and influenced by passion and prejudice. In their cross-appeal, the Brophys ask this Court to address two evidentiary rulings only in the event that we reverse the judgment and remand for a new trial on liability. We affirm the judgment.

STATEMENT OF THE ISSUES

[¶3] In their appeal, Werner and Ms. Neal state the issues for this Court's determination as follows:

A. Did the district court commit prejudicial error when it refused to instruct the jury on the existence and effect of the statutory presumption, in Wyo. Stat. § 31-5-222(c), that Peter Brophy failed to grant the right of way to Cheryl Neal?

1. After trial, did the district court correctly concede that it erred in refusing to instruct on the statutory presumption?

2. When the admitted error is evaluated with the five factors this Court considers to evaluate whether the instructional error is prejudicial, do those five factors compel the conclusion there was prejudicial error?

3. Is it prejudicial error to incorrectly instruct the jury on the parties' burdens of proof?

B. Did the Brophys' counsel commit prejudicial error when he violated the district court's in limine order by asking appellant Cheryl Neal if falsifying a driver's log is a very serious matter?

C. Without any claim for punitive damages or for Werner Trucking's independent negligence, did the Brophys' counsel commit further prejudicial error when he asked appellants' accident reconstruction expert about Werner Trucking's ―safety record‖ and ―history of accidents?‖

D. Did the district court commit prejudicial error when it allowed the Brophys' life-care planner and economist to testify to Mr. Brophy's $10.9 million to $11.9 million in future medical and attendant care expenses without any medical testimony of Mr. Brophy's (1) diagnosis, (2) prognosis, (3) necessity of future medical care, or (4) causal connection between such care and this accident?

E. Is this $18,069,257 verdict an excessive award appearing to have been given under the influence of passion, prejudice, and the prejudicial errors identified above?

In response, the Brophys rephrase the same issues.

[¶4] In their cross-appeal, the Brophys ask the Court to consider two evidentiary issues in the event we reverse the judgment and remand for a new trial on the liability issue: Whether the district court erred in admitting evidence of Mr. Brophy's speed before the accident and excluding evidence of changes the Wyoming Department of Transportation made to the site after the accident. Werner and Ms. Neal assert the district court properly exercised its discretion in both instances. Because we affirm the judgment, we do not address these issues.

FACTS

[¶5] The accident giving rise to this case occurred at the I-25 interchange with I-80 in Cheyenne, Wyoming. At the point where Werner's semi-truck and Mr. Brophy's vehicle came into contact, there were three southbound lanes on I-25-a passing lane on the left, a through lane in the middle, and an acceleration/deceleration lane on the right for vehicles entering I-25 from I-80 or exiting I-25 onto I-80. At the time of the accident, there were two yield signs on the ramp for vehicles coming from I-80 onto southbound I-25.

[¶6] On July 25, 2006, Ms. Neal was driving Werner's semi-truck southbound in the through lane on I-25 approaching the I-25 interchange with I-80. At the same time Mr. Brophy was traveling westbound in his BMW on I-80. Mr. Brophy exited I-80 and proceeded around the ramp of the cloverleaf toward southbound I-25 and into the acceleration/deceleration lane to the right of the through lane in which Ms. Neal was traveling. The right front wheel of the semi-truck hit the left rear side of the BMW, causing the BMW to spin, skid backwards across the highway to the east and hit the guardrail before being broad-sided by another semi-truck traveling in the left passing lane. Mr. Brophy suffered catastrophic injuries in the accident.

[¶7] On March 8, 2007, Mrs. Brophy filed a complaint in which she alleged claims against Werner and Ms. Neal on behalf of her husband for negligence and on her own behalf for loss of consortium. She also alleged a claim for vicarious liability against Werner. Werner and Ms. Neal (hereafter referred to together as simply Werner) denied the claims and asserted that Mr. Brophy's negligence caused the accident.

[¶8] The case was tried to a jury for seven days in June of 2008. The parties presented conflicting evidence concerning the location of the vehicles at the time they came into contact. The Brophys presented evidence showing the semi-truck caused the accident by suddenly moving over into the acceleration/deceleration lane occupied by the BMW without signaling or keeping a proper lookout for other traffic, hitting the BMW and causing it to spin across the highway where it was hit by the other semi-truck. Werner presented evidence that Mr. Brophy caused the accident by speeding up the ramp, ignoring the yield signs, crossing over into the through lane occupied by the semi-truck, and hitting the right front of the truck. The jury returned a verdict for the Brophys and awarded damages in the amounts of $15,785,257 to Mr. Brophy and $2,284,000 to Mrs. Brophy. Werner filed post-trial motions, which the district court denied. The parties appealed to this Court.

DISCUSSION

1. Jury Instructions

[¶9] Werner contends the district court erred when it refused to give the following proposed instruction:

DEFENDANTS' PROPOSED JURY INSTRUCTION NO. C

You are instructed that at the time of the event in question, that Wyoming's Uniform Act Regulating Traffic on Highways, at W.S. § 31-5-222(c), provided that:

The driver of a vehicle approaching a yield sign shall in obedience to the sign slow down to a speed reasonable for the existing conditions and, if required for safety to stop, shall stop... at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it. After slowing or stopping, the driver shall yield the right-of-way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time the driver is moving across or within the intersection or junction of roadways.... If the driver is involved in a collision with... a vehicle in the intersection or junction of roadways, after driving past a yield sign without stopping, the collision shall be deemed prima facie evidence of his failure to yield the right-ofway. (emphasis added.)

[¶10] Werner contends the district court erred further when it gave the following instruction, which omitted the last part of § 31-5-222(c):

INSTRUCTION NO. 5

VIOLATION OF STATUTE AS EVIDENCE OF NEGLIGENCE

Violation of a statute is evidence of negligence. If you determine that a party violated a statute and that the violation played a substantial part in bringing about the injury or damage, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not the party was at fault at the time of the occurrence. The following statutes of the State of Wyoming were in effect at the time of this accident:....

3) The driver of a vehicle approaching a yield sign shall in obedience to the sign slow down to [a] speed reasonable for the existing conditions and, if required for safety to stop, shall stop at the point nearest the intersection roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it. After slowing or stopping, the driver shall yield the right-of-way to any vehicle in the intersection. Wyo. Stat. Ann § 31-5-222(c).

4) ―Intersection‖ means the area within which vehicles traveling upon different highways joining at any angle may come in conflict. Wyo. Stat. Ann. § 31-5-102(a)(xvii)(A).

5) ―Right-of-Way‖ means the right of one (1) vehicle to proceed in a lawful manner in preference to another vehicle approaching under such circumstances of direction, speed, and proximity as to give rise to danger of collision unless one grants precedence to the other. Wyo. Stat. Ann. § 31-5-102(a)(xxxix).

[¶11] Werner contends the last part of § 31-5-222(c) contained in its proposed instruction C was critical because it created a statutory presumption that Mr. Brophy failed to yield the right of way which shifted the burden to the Brophys to prove that he did not fail to yield. The consequence of the district court's failure to give the instruction, Werner asserts, was that the jury was incorrectly instructed on the law and the burden of proof. The Brophys respond that Werner failed to object to the district court's ruling on the proposed instructions as required by W.R.C.P. 51(b); therefore, Werner waived the claim concerning instructional error absent plain error. Specifically, they assert Werner did not object to the district court's proposed instruction on the ground that the statute created a presumption which shifted the burden of proof nor did Werner offer an instruction to that effect.

[¶12] The record reflects the following events concerning the jury instructions. Werner offered instruction C along with its other proposed instructions prior to trial. Werner also offered instructions reciting the statutory definitions of ―intersection‖ and ―right-ofway.‖ In addition, Werner offered an instruction defining ―prima facie evidence‖ to mean ―evidence that, unless rebutted, is sufficient on its face to establish a given fact relating to a party's claim or defense.‖ Werner did not offer an instruction concerning statutory presumptions or the burden of proof.

[¶13] At the instruction conference, after hearing objections from the Brophys' counsel, the district court asked Werner's counsel if he objected to any of the court's proposed instructions. Counsel responded affirmatively and objected to the court's instructions on comparative fault, causation and the burden of proof on the grounds that they did not make it clear that, in addition to proving that Werner's negligence caused the collision, the Brophys also had to prove the amount of their damages. Counsel made no other objection to the district court's burden of proof instruction. Counsel then stated as follows:

Instruction No. 5, which is the instruction dealing with violations of the statutes, in particular, Subparagraph 3, deals with the issue of yielding, and I had tendered to the court Defendant's Proposed Jury Instruction C, which was an excerpt of the applicable statute, 31-5-222, that contained information which the legislature advised if there is a collision and a yield sign, prima facie evidence is that the person with the yield sign is the one that essentially was at fault. I think that needs to be inserted back in here so that the legislature's full intent is provided to the jury.

Again, I would tender... Defendant's Proposed Instruction C.

* * * I think the jury is adequately instructed on the duties to yield from Paragraph 3 if the rest of that statute were contained in there.

Counsel for Werner objected to some additional proposed instructions not at issue here and then stated: ―[T]hat takes care of the objections that I have.‖

[¶14] The district court ruled that the instructions would be given as the court proposed them with the exception of one instruction not at issue on appeal. The district court then asked Werner's counsel if he wanted to offer any additional instructions. Counsel responded, ―Only what I had submitted, Your Honor, five days before trial, and... the one I'm primarily interested in is one of my proposed, C, which was the failure to yield statute that contained that last provision.‖ The district court reiterated its ruling that the instruction would be read to the jury as proposed.

[¶15] It is clear from the record that Werner objected to the omission from Instruction 5 of the last part of § 31-5-222 and offered an instruction in its place containing the omitted language. In its objection, Werner stated the omitted language was necessary to inform the jury the legislature intended that when a collision occurs after a yield sign the collision is prima facie evidence that the person with the yield sign was ―essentially at fault.‖ Werner did not argue, however, that the omitted language created a statutory presumption or changed the burden of proof. The question we must decide is whether Werner's objection was sufficient to preserve the issue it now raises on appeal, i.e., the district court erred in not instructing the jury that the last sentence of the statute created a presumption and changed the burden of proof on whether Mr. Brophy had failed to yield.

[¶16] In deciding whether the objection was sufficient, we look first to the language of Rule 51(b), which provides as follows:

(b) Further instructions; objections.-At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury. Before the argument of the case to the jury has begun, the court shall give to the jury such instructions on the law as may be necessary.... No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.

(emphasis added)

[¶17] Considering claimed error in instructing the jury, we have consistently held:

We consider only those claims of error relating to jury instructions in those cases where proper objections were raised. Unless the circumstances justify a finding of plain error, we do not consider claims of error ...


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