Voohries-Larson v. Cessna Aircraft Co.

REINHARDT, Circuit Judge,

dissenting:

I respectfully dissent. Arizona law explicitly forbids summary adjudication of contributory negligence. Ariz. Const, art. XVIII, § 5. Cessna attempted to sidestep this prohibition by characterizing decedents’ negligence as a superseding cause, in the instruction it submitted to the district court: “[i]f you find the actions of Plaintiffs’ decedents constituted a superseding cause, you must find for Defendant Cessna” (emphasis added). By giving this instruction, the district court *720 erroneously allowed the jury to disregard the issue of contributory negligence, over the plaintiffs’ objection, and in violation of Arizona law.

In Arizona, “[t]he defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.” Id. As the majority notes, the plaintiffs’ argument is that Cessna’s instruction erroneously equates superseding cause with contributory negligence in an attempt to remove the contributory negligence issue from the jury. Cf. Markowitz v. Arizona Parks Board, 146 Ariz. 352 , 706 P.2d 364, 371 (1985) (in bank) (“A contributory negligence issue cannot be taken from the jury by the simple expedient of calling it an issue of causation”). Recharacteriz-ing contributory negligence under a different legal heading in an attempt to remove the issue from the jury appears to be a tried and tested ploy in Arizona. See City of Phoenix v. Schroeder, 1 Ariz.App. 510 , 405 P.2d 301, 308 (1965) (“In this jurisdiction where, by constitutional provision, all question of contributory negligence must be submitted to the jury, it is not surprising that counsel will exert strong pressure upon the courts to recognize other doctrines and apply them in what are logically and legally contributory negligence questions.”).

There is no doubt that the district court committed serious prejudicial error in this case, and that as a result the mothers of the three deceased young men were deprived of a fair jury verdict. The majority, however, seizes on a self-created technicality to forfeit the plaintiffs’ right to a new trial. My colleagues contend that although the three mothers objected repeatedly and vehemently to the unlawful jury instructions, they failed to specify the applicable Arizona constitutional provision or to make their rationale sufficiently clear for the district judge. This elevates to even greater heights than in the past the concept of law as an intellectual chess game unrelated to the pursuit of truth or justice. Forgotten in this abstract and heartless form of jurisprudence are the litigants, and the tragedies that families have suffered. Although we-may be one of only two circuits that read Rule 51 literally, see maj. op. at 713, we need not read it so unreasonably. To hold that plaintiffs may not recover for the déath of their children because, although they correctly advised the court that a critical jury instruction was contrary to Arizona law, they failed to mention the specific provision, is not consistent with the language, purpose, or intent of Federal Rule of Civil Procedure 51.

This circuit’s “literal” reading of Rule 51, relied on by the majority, provides, at most, that we do not, with two exceptions, permit appellate review simply because of “plain error” in giving the jury instructions. Hammer v. Gross, 932 F.2d 842, 847 (9th Cir.1991). The two exceptions are the “pointless formality” exception, id., and the “interests of justice” exception; under those two exceptions, an issue raised for the first time on appeal must be central to the case. Pierce v. Southern Pac. Transp. Co., 823 F.2d 1366, 1371 (9th Cir.1987). The literal reading of the rule, with its exceptions, is applicable, however, only when the parties fail to object to the instruction before the trial court at all 1 — and that is not the circumstance here. In this case, the plaintiffs do not ask us to find “plain error” because they failed to raise an objection, nor do they argue that raising an objection would have been pointless; nor is their point that the issue is so central to the case that, notwithstanding their failure to object, the giving of the erroneous instruction resulted in a mani *721 fest injustice. To the contrary, the plaintiffs did object to the “superseding cause” jury instructions, and they did so at every opportunity: indeed, they could hardly have questioned the jury instruction more often than they did during the course of the trial. They objected in writing on May 19, 1998 and again on February 19, 1999. They objected orally during the hearing on the proposed jury instructions. To find that a properly made, although imprecise, objection does not comport with Rule 51 is not to apply that rule “literally:” it is to expand it substantially, with the result that even properly made objections are excluded from appellate review.

Plaintiffs’ objection, that “[t]he defense is attempting to take a fault issue and coin it in causation terms,” is more than sufficient to satisfy the requirements of Federal Rule of Civil Procedure 51. Rule 51 requires that a party state the grounds of its objection to a proposed jury instruction. See Fed. R. Civ. Proc. 51. “When justice requires,” the court need not insist upon “technical,” Southern Pac. Tmnsp. Co., 828 F.2d at 1371, or “rote” compliance with Rule 51, but may instead require only “functional” compliance with the Rule. Biundo v. Old Equity Life Ins. Co., 662 F.2d 1297, 1300 (9th Cir.1981). Here, the plaintiffs actually complied; they alerted the court to Cessna’s erroneous conflation (in contravention of the Arizona constitution) of superseding cause with contributory negligence. The district court was therefore adequately appraised of the grounds of Cessna’s objection.

To conclude, as does the majority, that the plaintiffs failed to object properly because the district court was not told “the specific constitutional and statutory grounds on which the appellants now object,” and that it was not “alerted to the exact nature of the disagreement,” is, quite simply, to “exalt form over substance with injustice to plaintiffs.” Brown v. AVEMCO Inv. Corp., 603 F.2d 1367, 1371 (9th Cir.1979). This extreme literalism frustrates the purpose of the rule, which “is ‘to enable the trial judge to avoid error by affording him an opportunity to correct statements and avoid omissions in his charge before the cause has been decided by the jury.’ ” Biundo, 662 F.2d at 1300 (quoting Investment Service Co. v. Allied Equities Corp., 519 F.2d 508, 510 (9th Cir.1975)). Here, the plaintiffs did not attempt to “sandbag” the trial judge by failing to object to a bad instruction as insurance against an adverse verdict. See Elder v. Holloway, 984 F.2d 991, 998 (9th Cir.1993) (Kozinski, Circuit Judge, dissenting) (purpose of Rule 51 is to preclude parties “sandbagging” trial judge to get “two bites at the apple”), reversed by 510 U.S. 510 , 114 S.Ct. 1019 , 127 L.Ed.2d 344 (1994). Instead, counsel raised a valid objection that, “though not a model of clarity,” Biundo, 662 F.2d at 1300 , should have alerted the district court to the grounds for the objection.

Rule 51 does not require that plaintiffs’ rights be forfeited for a failure to cite the “exact,” “specific” constitutional provision, as the majority suggests. My colleagues cite no case imposing so harsh a requirement. In my view, the Rule’s purpose is not to deprive a party of its rights but to make sure that, before the jury retires, an objection is made and the trial judge has an opportunity to rule on it. Because I conclude that the plaintiffs properly and repeatedly raised their objection to Cessna’s superseding-cause instruction, I would reverse. I, therefore, need not reach any alternative ground for decision.

I note, however, that in its discussion of Cessna’s “wilful and wanton” instruction, the majority appears to attempt to overturn our rule establishing an exception to Rule 51, where the issue is central to the case and the interests of justice require review of the jury instruction. See Brown, 603 F.2d at 1374-75 . The majority’s suggested decision is unwise in this respect also. Brown and the cases that follow it cannot properly be dismissed as mere dicta. Ultimately, the majority is forced to recognize that the Brown exception has *722 been reiterated in at least one case that binds this court: Pierce . Thus the Brown exception survives, even if the majority might now rename it the Pierce exception. The standard articulated in Pierce, 823 F.2d at 1371 , does not, to employ the majority’s hoary cliche, “swallow the rule;” it undergirds it.

Because the majority’s opinion misper-ceives the purpose and function of Rule 51 and this circuit’s precedent regarding its implementation, I respectfully dissent.

. Under the pointless formality exception, the party alerts the court to the substance of the dispute and the party offers an alternative instruction but does not object. See, e.g. Glover v. BIC Corp., 6 F.3d 1318, 1326 (9th Cir.1993) (finding that the party “neither objected to the alleged insufficiency of the ... instruction during the court’s review of the instructions with counsel, nor raised an objection after the charge was read to the jury.”).