UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINDA N. VOOHRIES-LARSON,
surviving mother of Torrence
Justin Voohries; BETSY KEILEN,
surviving mother of Brad Keilen;
CHARLENE TOWNSEND, surviving
mother of Ronald Sean Townsend,
No. 99-15916
Plaintiffs-Appellants,
D.C. No.
v. CV-95-02574-ROS
CESSNA AIRCRAFT CO.,
OPINION
Defendant-Appellee,
and
BLACK CORPORATIONS; JOHN DOES;
JANE DOES,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Court Judge Presiding
Argued and Submitted
October 4, 2000--San Francisco, California
Filed February 22, 2001
Before: Stephen Reinhardt, Melvin Brunetti, and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Brunetti;
Dissent by Judge Reinhardt
_________________________________________________________________
2345
COUNSEL
Bruce E. Meyerson, Sandra K. Sanders, and Anthony J.
Blackwell, Steptoe & Johnson, LLP, Phoenix, Arizona, for
the plaintiffs-appellants.
Ronald P. Williams and Lynn D. Preheim, Morrison &
Hecker, LLP, Wichita, Kansas, for the defendant-appellee.
_________________________________________________________________
OPINION
BRUNETTI, Circuit Judge:
Appellants Linda Voohries-Larson, Betsy Keilen, and
Charlene Townsend, the mothers of three individuals killed in
the crash of an airplane manufactured by the appellee Cessna
Aircraft Company, appeal the judgment entered following a
jury verdict for Cessna in their diversity action alleging
wrongful death and product liability. Appellants contend that
the district court erred in its instructions to the jury regarding
superseding cause and wilful and wanton conduct. We have
jurisdiction under 28 U.S.C. S 1291, and we dismiss in part
and affirm in part.
I.
On July 4, 1993, a twin-engine Cessna airplane crashed in
Prescott, Arizona, killing all five people on board. The three
2350
men who died in the crash were subsequently identified as
Brad Keilen, Torrence Voohries, and Ronald Townsend, chil-
dren of the three appellants. The two women on board, Megan
Campbell and Stacy Stephenson, met the men the night of the
crash and had accepted an offer to ride in the airplane.
Because there were no eyewitnesses to the crash, the wreck-
age and bodies were discovered after five hours had elapsed.
During the course of the sixteen-day trial, the parties pre-
sented starkly different theories as to the cause of the crash.
The appellants claimed that the crash was caused by a defect
or defects in the Cessna airplane, whereas Cessna claimed the
accident was solely due to pilot error and negligence. The jury
heard from twenty-six witnesses, including ten experts, and
had to analyze the relative merits of two competing accident
reconstruction theories.
The appellants presented evidence at trial to prove that the
type of airplane in which the decedents crashed, a Cessna
T-303, is defectively designed and unreasonably dangerous.
This evidence included expert testimony that the T-303's fuel
tank is constructed in a manner that permits air to enter the
fuel lines in some circumstances, causing an unexpected inter-
ruption in the flow of fuel to an engine despite the presence
of fuel in the tank. When the airplane's rate of turn and angle
of bank are not balanced (a condition called "uncoordinated
flight"), the construction of the T-303's fuel tank creates a
risk not present with other airplanes. If gravity pushed the fuel
outboard, as it would during uncoordinated flight, air would
be drawn into the fuel system and interrupt the flow of fuel
to the engine. According to the appellants' theory, the pilot
must have flown in uncoordinated flight for at least one min-
ute and forty seconds, the amount of time sufficient to inter-
rupt the flow of fuel. This interruption would then have
caused the pilot to shut down the left engine; this, in turn,
caused the plane to experience asymmetrical thrust which
eventually began a spin to the left from which the plane could
not recover.
2351
The appellants supported their theory with a demonstration
by an expert witness, in which he filled a T-303 wing tank
with 30 gallons of liquid, set the wing (no longer attached to
the aircraft) on two sawhorses, tilted it downward and timed
how long it would take for the inboard fuel inlets to unport as
the liquid ran downhill. The test was performed with 30 gal-
lons of fuel, although the National Transportation Safety
Board found the left wing tank of the accident aircraft con-
tained approximately 38 gallons of fuel at the time of the acci-
dent. The demonstration had a force of one G, or the force of
gravity, operating on the liquid. Cessna repeatedly challenged
the demonstration as not representative of what actually
occurred in flight.
On cross-examination, the appellants' expert acknowledged
that, not only was flying in uncoordinated flight for the length
of time suggested by their demonstration a violation of Fed-
eral Aviation Regulations and the Cessna Pilots' Operating
Handbook for the T-303, but also such uncoordinated flight
resulting in a 1 G force outboard would cause the passengers
and crew to be pressed toward the left side of the airplane
and, if seated on the left side, they would be forced against the
bulkhead.
Appellants' experts further acknowledged that a stall
caused by fuel interruption would only affect one engine and
that the T-303 was designed and certified by the Federal Avi-
ation Administration (FAA) as capable of being flown on one
engine. Voohries and Keilen were required to demonstrate
their ability to fly and land the aircraft on one engine in order
to obtain the pilot certificates they held. Appellants' experts
testified that they knew of no reason why the pilots could not
have completed the flight on one engine.
Cessna also presented expert testimony regarding the
design of the Cessna airplane. Cessna's expert conducted a
test to disprove the uncoordinated flight theory, in which he
actually flew the T-303 in uncoordinated flight for the length
2352
of time that the decedents were alleged to have flown it that
night, to mimic the forces of actual flight. Cameras were
mounted inside the fuel tank showing the fuel inlets and on
the cockpit instruments indicating the extent of uncoordinated
flight. He also used a force gauge to measure the amount of
pressure he placed on the right rubber pedal with his leg in
order to achieve and maintain uncoordinated flight. The gauge
measured approximately 100 pounds, demonstrating to the
jury the unreasonableness of flying the aircraft in this manner.
Cessna also presented the testimony of the primary test
pilot for the FAA certification of the T-303. The FAA
required certain test flights be performed on the T-303 to
demonstrate unusable fuel. During these tests, the FAA man-
dated that the pilot fly the plane in uncoordinated flight to
attempt to intentionally uncover the fuel ports in the wing of
the plane. In one demonstration, the aircraft was flown in
uncoordinated flight for one minute, then coordinated for one
minute, then uncoordinated for one minute, and so on until the
first sign of fuel interruption. When fuel interruption
occurred, the engine was shut down and the plane returned to
the ground on one engine. Then the fuel was measured to
determine how much remained. The fuel remaining in the
tank following these tests was .79 gallons, as compared to the
38 gallons in the tank of the airplane at the time of the crash.
This evidence demonstrated how extreme the uncoordinated
flight would have to have been to unport the fuel inlets with
38 gallons in the tank.
Cessna theorized that the stall was attributable solely to
pilot error, due to fatigue and sleep deprivation, alcohol, night
flying, the airport environment, failure to wear corrective
lenses, and the cockpit circumstances. First, Cessna presented
evidence that it could have been either Voohries or Keilen fly-
ing the plane, as both men were commercial multi-engine
pilots and both had licenses that would allow them to fly a
T-303. Although Keilen rented the aircraft and was pilot in
command for purposes of FAA regulations, this alone did not
2353
mean that Keilen actually piloted the aircraft. The T-303 had
dual controls and could be operated from either the left front
or right front seats, which were occupied by Keilen and
Voohries respectively. Evidence pointed to the possibility that
Voohries may have assumed some pilot responsibilities dur-
ing flight, as one of the horns was broken off on Voohries'
yoke, indicating his hand may have been on it at the time of
the crash.
Cessna introduced evidence that showed both Keilen and
Voohries had consumed alcohol during the evening prior to
the accident. One witness, an airport employee, testified that
one of the men had a beer in his hand when he deplaned in
Prescott that evening. Another witness, who drove the men to
the bar in the town of Prescott from the airport, testified that
they were drinking alcohol en route. Rosemary Guadiana, a
friend of the two women killed in the plane crash who was
with them that evening, testified that Keilen had joked about
violating the FAA regulation that prohibits consumption of
alcohol within eight hours before piloting an aircraft. Post-
mortem tests revealed traces of alcohol in Keilen's body flu-
ids. The plaintiffs disputed these findings, arguing that other
tests performed on other fluids from Mr. Keilen's body
yielded negative results for evidence of alcohol use and that
the positive results could have been caused by the creation of
alcohol by Keilen's body as it began to decompose.
Cessna also introduced evidence at trial to show that Keilen
and Voohries may have been suffering from fatigue at the
time of the accident, due to a lack of sleep in the days prior
to the crash. Two days before the accident, on July 2, 1993,
Keilen and Voohries flew to Laughlin, Nevada, and Keilen's
girlfriend testified that they did not return home until 2:00
a.m. on Saturday, July 3, 1993. Keilen went to work at 6:00
a.m. that Saturday morning, only four hours later, and worked
until 2:00 p.m. At 3:00 p.m., Keilen called a friend who
invited him to a party, and Keilen refused, saying he was tired
and going to get some sleep. His whereabouts for the remain-
2354
der of the day were unknown. Approximately eight hours
later, Keilen, Voohries, and Townsend left for Prescott and,
upon arrival, went immediately to a bar, in which they met the
two women who would later die in the plane crash with them.
The accident occurred in the early hours of the morning of
July 4, as the plane was last located on radar at 3:20 a.m.
Therefore, by the time of the accident, both men had very lit-
tle and irregular sleep in a forty-eight hour period.
Furthermore, Cessna introduced evidence to show that the
decedents acted recklessly towards the safety of others,
because in spite of the fact that they were fatigued and had
consumed alcohol, they cajoled and finally convinced the two
women, who were initially reluctant, into going on the perim-
eter flight with them. After having met at the bar in Prescott
at 1 a.m., the men initially invited all three women, Campbell,
Stephenson, and Rosemary Guadiana. Guadiana would refuse
to go on the flight and later would be the only survivor and
witness to the events of the evening. Guadiana testified that
all the women refused the men's initial requests but they were
insistent. They made repeated requests that the women go on
an airplane ride with them, either to Phoenix or on a perimeter
flight around the City of Prescott. According to Guadiana, she
was called "Little Ms. Negative" by Voohries, and all the
women were referred to as "chicken" when they first refused.
Although Campbell and Stephenson eventually agreed to a
perimeter flight, Guadiana continued to refuse due to con-
cerns that Keilen was drunk and tired. Her concerns were
based on the conduct of Keilen that she observed. She testi-
fied that on the drive back to the airport from the bar in Pres-
cott, Keilen stated he was tired and closed his eyes in the
course of a conversation with fellow passengers.
Further proof showed that Keilen had difficulty activating
the runway lights while in the cabin of the aircraft, which
Guadiana noticed when she briefly sat in the airplane before
they left on the flight. Guadiana voiced these concerns to
Townsend, Keilen's friend, and in her statement written two
2355
days following the crash, Guadiana stated that Townsend said
in response, "no, he only had a few drinks, he's just really
tired." Guadiana attempted to warn her friends, by pulling
them aside and telling them it was not safe. She also told them
that they "were taking their life into their own hands" by get-
ting on the airplane.
Finally, Cessna introduced evidence that Keilen was not
wearing corrective lenses as he was required to do under FAA
regulations.
Following seven hours of deliberation, the jury returned a
verdict for Cessna. This appeal followed.
II.
The appellants contend that two of the instructions given to
the jury were erroneous. The standard of review on appeal for
an alleged error in jury instructions depends on the nature of
the claimed error. See Oglesby v. Southern Pac. Transp. Co.,
6 F.3d 603, 606 (9th Cir. 1993). If jury instructions are chal-
lenged as a misstatement of the law, they are reviewed de
novo. See Mockler v. Multnomah County, 140 F.3d 808, 812
(9th Cir. 1998). Otherwise, a district court is afforded "sub-
stantial latitude in tailoring jury instructions,[and] we review
the formulation of those instructions for abuse of discretion."
See Gilbrook v. City of Westminster, 177 F.3d 839, 860 (9th
Cir. 1999).
A.
First, the appellants assert that the superseding cause
instruction given by the district court was an incorrect state-
ment of law because a plaintiff's negligence can never be a
superseding cause under Arizona law, and therefore giving
the instruction violated Article 18, section 5 of the Arizona
Constitution. That section provides: "The defense of contribu-
tory negligence . . . shall, in all cases whatsoever, be a ques-
2356
tion of fact and shall, at all times, be left to the jury."
Furthermore, the appellants argue that the instruction deprived
them of their statutory right to have the jury allocate fault
between Cessna and the decedents, if appropriate, under the
doctrine of comparative fault as stated in section 12-2505(A)
of the Arizona Code.
The superseding cause instruction given provided:
Cessna claims that the actions of Plaintiffs' dece-
dents constituted a superseding cause. A superseding
cause is one which is unforeseeable and may be
described as abnormal or extraordinary. If you find
the actions of Plaintiffs' decedents constituted a
superseding cause, you must find for Defendant
Cessna. The intervening negligence of Plaintiffs'
decedents is not a superseding cause if the Defen-
dant's conduct was a substantial factor in bringing
about the result and if a reasonable person knowing
the situation existing when the act of the Plaintiffs'
decedents was done would not regard it as highly
extraordinary that the Plaintiffs' decedents had so
acted.
As a preliminary matter, Cessna argues that the appellants
are precluded from raising these issues on appeal because
they failed to object properly at trial. Cessna contends that the
appellants were given ample opportunity to object on these
statutory and constitutional grounds during trial but instead
only objected on the grounds that the instruction as given was
an incomplete statement of the law and that Cessna had pre-
sented insufficient evidence that the decedents' actions were
unforeseeable.
[1] Federal Rule of Civil Procedure 51 provides that "[n]o
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
2357
objected to and the grounds of the objection." In Palmer v.
Hoffman, 318 U.S. 109, 119 (1943), the Supreme Court stated
that "objections to a charge must be sufficiently specific to
bring into focus the precise nature of the alleged error." The
purpose of Rule 51, and the requirement of specificity in the
objection, is to "bring possible errors to light while there is
still time to correct them without entailing the cost, delay and
expenditure of judicial resources occasioned by retrials." See
Betrand v. Southern Pac. Co., 282 F.2d 569, 572 (9th Cir.
1960).
This court has long enjoyed the "reputation as the strictest
enforcer of Rule 51," as we have consistently declared that
there is no "plain error" exception in civil cases in this circuit.
See Hammer v. Gross, 932 F.2d 842, 847 (9th Cir. 1991); see
also 9 Charles Alan Wright & Arthur R. Miller, Federal Prac-
tice and Procedure: Civil 2d S 2558, at 468 (1994) ("[T]he
Ninth and Seventh Circuits stand alone in reading Civil Rule
51 literally.")
[2] Therefore, to satisfy Rule 51, the appellants must have
objected at the time of trial on grounds that were sufficiently
precise to alert the district court not only that the instruction
was defective, but that it was defective based on the Arizona
Constitution and an Arizona statute. However, a review of the
record reveals that, despite repeated opportunities to develop
these specific grounds on which they now object, the objec-
tions presented by the appellants in both oral argument and
written memoranda related only to the sufficiency of the evi-
dence and its alleged incomplete statement of the law. These
objections do not satisfy Rule 51.
First, in two separate memoranda to the district court, the
appellants objected on the grounds that "there is no evidence
whatsoever to suggest the superseding cause which was
unforeseeable." During a hearing on jury instructions, they
noted their objection to the instruction in the following terms:
2358
Just so our objection's clear, Your Honor, in addition
to what we stated it's our position that it is a -- that
any statement given to this jury would be an incom-
plete statement and not comprehensible to a lay jury,
A. B, there is absolutely no evidence that whatever
happened here can be even remotely regarded as
abnormal or extraordinary. The defense is attempting
to take a fault issue and coin it in causation terms,
and there is absolutely no evidence that whatever
Hall described as the defect was somehow broken by
abnormal or extraordinary cause. . . . This-- there is
no evidence that the cause -- any evidence to sup-
port an unforeseeable, abnormal, or extraordinary
cause in this case. [ER W at 106-07]
The appellants rely heavily on the statement that"[t]he
defense is attempting to take a fault issue and coin it in causa-
tion terms" as an adequate expression of the constitutional
grounds they now argue on appeal. However, the appellants'
argument on appeal is that the instruction erroneously equates
superseding cause and contributory negligence, thereby
requiring the jury to bar the plaintiff's recovery if they con-
cluded that the plaintiff's negligence was a superseding cause.
They argue that this mandatory language deprived the jury of
their right under the Arizona Constitution to choose whether
or not to apply contributory negligence in any factual sce-
nario. Although the statement made by appellants' counsel
during the hearing on instructions does relate to the interac-
tion between fault and causation under Arizona law, it simply
does not "bring into focus the precise nature of the alleged
error" as being a violation of Article 18, section 5 of the Ari-
zona Constitution. Instead, if the appellants were actually ref-
erencing a constitutional objection with that single comment,
they spoke at a level of generality that Rule 51 does not allow.
Indeed, when placed in context, the statement merely echoed
their previously voiced concerns, that the evidence was insuf-
ficient to support a superseding cause instruction and that the
jury would be confused by this instruction in isolation.
2359
Finally, we consider whether the appellants' objections,
although deficient in terms of the plain language of Rule 51,
fall within the limited exception we have recognized for a
pointless formality. See, e.g., Gulliford v. Pierce County, 136
F.3d 1345, 1348-49 (9th Cir. 1998); McGonigle v. Combs,
968 F.2d 810, 823 (9th Cir. 1992). "Where the district court
is aware of the party's concerns with an instruction, and fur-
ther objection would be unavailing, we will not require a
futile formal objection." Gulliford, 136 F.3d at 1348 (citation
and internal quotation marks omitted). We have held that an
objection is a pointless formality " `when (1) throughout the
trial the party argued the disputed matter with the court, (2)
it is clear from the record that the court knew the party's
grounds for disagreement with the instruction, and (3) the
party offered an alternative instruction." Glover v. BIC Corp.,
6 F.3d 1318, 1326 (9th Cir. 1993)(citation omitted).
Here, as stated above, the record reveals that the district
court did not know the specific constitutional and statutory
grounds on which the appellants now object. They did not put
the court on notice by offering alternative instructions that
were denied, unlike the parties in McGonigle, Gulliford, and
Glover. In fact, they never offered this argument to the court
in any form. The appellants argue that they did not and could
not offer alternative instructions because they simply wanted
no instruction on superseding cause at all. However, even if
this is true, it does not end our inquiry. The requirement of
alternative instructions recognized in our previous cases is
merely a means to an end, as a demonstration that the party
who opposed the jury instruction had argued this matter in
front of the court in some form other than a formal objection
and that any more objections on these grounds would be
futile. The appellants could have argued the grounds they now
offer on appeal in pretrial briefs, a motion for a directed ver-
dict or a witness examination; however, they did not.
The pointless formality exception exists to stop the mean-
ingless elevation of form over substance when applying Rule
2360
51. However, here, the substance of the objection never saw
the light of day. Since the district court was never alerted to
the exact nature of the disagreement, it certainly would not
have been futile for the appellants to bring the matter to its
attention.
[3] Because the appellants failed to preserve their objection
at the time of trial, we accordingly decline to entertain their
challenge to the district court's superseding cause instruction.
B.
The appellants also assert that the wilful and wanton con-
duct instruction given by the district court was erroneous. The
jury instruction provided:
I will now instruct you about wilful or wanton
conduct. This type of fault involves more than negli-
gence. Where wilful or wanton conduct causes an
injury, rules of law apply that are different from the
rules we have previously discussed.
Wilful and wanton conduct is action or inaction
with reckless indifference to the results, or to the
rights or safety of others. A person is recklessly
indifferent if he knows or a reasonable person in his
position ought to know:
(1) That his action or inaction creates an
unreasonable risk of harm; and
(2) The risk is so great that it is highly
probable that harm will result.
If you find that Plaintiffs' decedents, Brad Keilen
and/or Torrence Voohries, wilfully or wantonly
caused the accident and that defendant was at fault,
then you may, in your discretion, either find for the
2361
Plaintiffs and award full damages or find for the
Defendant and award no damages; you are not to
determine relative degrees of fault.
The appellants contend that the instruction deprived them
of their right to comparative fault allocation, because the
wording "and/or" indicated that a finding of wilful or wanton
conduct by one decedent barred recovery by all the others.
They argue that this mandatory charge to the jury is in con-
flict with two provisions of Arizona law. Section 12-2505 of
the Arizona Code states that "[t]here is no right to compara-
tive negligence in favor of any claimant who has intention-
ally, wilfully, or wantonly caused or contributed to the injury
or wrongful death" and that " `claimant's fault' includes the
fault imputed or attributed to a claimant by operation of law,
if any." Under section 12-2506, Arizona abolished joint liabil-
ity or imputed negligence for wilful and wanton conduct.
Therefore, because there is no imputed negligence for wilful
or wanton conduct by operation of law, the general provision
barring the application of comparative negligence to a claim-
ant who has acted wilfully or wantonly should apply only as
to that decedent who is actually found by the jury to have
engaged in wilful or wanton conduct.
[4] Again, as a preliminary matter, we must determine
whether the appellants satisfied Rule 51. Here, as the appel-
lants conceded, they did not object to the wilful and wanton
conduct instruction as a misstatement of law at any time dur-
ing trial. Nonetheless, they argue that this issue should be
heard on appeal, because this Court permits review when the
issue in question was "central to the trial [and] justice requires
review." See Murphy v. City of Long Beach, 914 F.2d 183,
187 n. 7 (9th Cir. 1990); Pierce v. Southern Pac. Transp. Co.,
823 F.2d 1366, 1371-72 (9th Cir. 1987); Brown v. Avemco
Inv. Corp., 603 F.2d 1367, 1374-75 (9th Cir. 1979).
A review of the cases on which the appellants rely reveals
the flimsy foundation for this purported exception. Not only
2362
does this language appear primarily in dicta, but the very case
from which it appears to be derived simply does not stand for
the proposition for which it has since been cited. See Brown,
603 F.2d at 1374-75. The growth of this exception is based
upon a misreading of Brown, resulting in a phrase taken com-
pletely out of context from that opinion. There, we held that
the appellant had actually complied with Rule 51 because
appellant's counsel had requested instructions, the district
court heard extensive arguments regarding those instructions,
viewed and rejected them, and "all parties knew from what
had proceeded that the court did not unknowingly or hastily"
give the instruction. Id. at 1373.
The Brown opinion goes on to discuss the history of Ninth
Circuit cases involving the failure to give requested instruc-
tions. In that historical discussion, a crucial distinction is
drawn between cases in which the appellant does not object
but requests alternative instructions (where this court will
occasionally find compliance with Rule 51) and cases in
which "appellant failed to object at trial to allegedly errone-
ous or deficient instructions but there is no indication in the
appellate opinion that appellant had requested the trial court
to give any alternative instructions" (where this court will not
find compliance). Id. In pointing out this difference, the
Brown court's holding relies on the solid conceptual under-
pinnings of the pointless formality exception to Rule 51's
requirements: if counsel introduces an instruction and pre-
sents arguments to the district court concerning the merits of
that instruction, then there is often no need for a formal objec-
tion. However, the Brown court emphasized that there is
indeed a substantive difference between that situation and the
one presented here in which counsel presents no alternative
instructions and also makes no objection to the instruction
that opposing counsel introduces. In fact, the court relied
upon that very distinction in finding that the appellant had sat-
isfied Rule 51. Therefore, the holding of this case does not in
any way extend to an appellant who has made no objection at
trial and requested no alternative instruction.
2363
In dicta, the majority opinion of Brown does cite a line of
cases in the Ninth Circuit where "this court found technical
noncompliance with Rule 51 but proceeded to evaluate the
merits of the appeal." Id. at 1374-75. Again, a review of these
cases does not strengthen the proposition that a broad excep-
tion exists for issues "central to trial and where justice
requires review." Instead, the cases reveal two strands of
"technical noncompliance," both of which are limited in
scope and inapplicable here. See id. at 1374-5, 1375 n.4.
First, the opinion cites Richfield Oil Corp. v. Karseal
Corp., 271 F.2d 709 (9th Cir. 1959), as an example where
"this court found that appellant had no right to review of the
issue but justice required such review." Brown, 603 F.2d at
1375. It is true that we held in Richfield that appellant's "ob-
jection to the court's instructions is not available to it on this
appeal[, b]ut we have nevertheless considered the question as
to whether giving the instruction was error." 271 F.2d at 722.
However, there again, appellant previously had discussed the
alleged problem in the instructions with the district court, and
"Richfield knew the court's position and the court knew coun-
sel's position." Id. The Richfield court stated that "we might
hazard a guess that it would have been a difficult task, even
by stating distinctly the grounds of the objection, to have
caused the court to change its previously announced posi-
tion." Id. Even if we did find "technical noncompliance" in
Richfield, it seems that this decision was based upon the fact
that appellant had already made known his objection to the
court. This type of "technical noncompliance" is exactly what
we have previously recognized as the "pointless formality"
exception.
Second, the Brown court relies upon cases from this court
in which we found that the appellant did not satisfy the
requirements of Rule 51 and therefore waived his right to
appeal, but went on to "observe in passing" that there was no
error in the instructions anyway. Shevlin-Hixon Co. v. Smith,
165 F.2d 170 (9th Cir. 1947); see also Wellman v. Jellison,
2364
593 F.2d 876 (9th Cir. 1979)(reviewing the instructions as a
whole and finding no basis for reversal); Moore v. Teflon
Communications Corp., 589 F.2d 959, 966 (9th Cir. 1978);
Johnston v. Pierce Packing Co., 550 F.2d 474, 479 (9th Cir.
1977); Southern Pacific Co. v. Villarruel, 307 F.2d 414, 415
(9th Cir. 1962); Williams v. Union Pacific Railroad, 286 F.2d
50, 54 (9th Cir. 1960); Hargrave v. Wellman, 276 F.2d 948,
950-51 (9th Cir. 1960); Koch v. United States , 264 F.2d 334,
338 (9th Cir. 1958); Lloy v. Pacific Electric Co., 207 F.2d
662, 665 (9th Cir. 1953).1 These cases do not in any way
carve out an exception to the requirements of Rule 51, as they
all emphatically hold that the appellant waived his appeal by
right. Instead, they merely contain dicta in which we state
that, if the appellant had preserved his objection, it would not
have warranted reversal.
[5] After this historical summary of the Rule 51 cases in
this circuit, the Brown opinion uses the language now at issue
here, stating that "even if there were not compliance with
Rule 51 in this case, review would be appropriate[because]
[t]he issue was central to the trial and justice requires review
of the treatment of that issue in the instructions as a whole."
See 603 F.2d at 1375. However, all that can be extrapolated
from this dicta and the historical analysis that precedes it is
that we will occasionally look beyond the technical require-
ments of Rule 51 when appellant has actually presented the
precise argument being argued on appeal to the district court,
albeit in a different form. We cannot read into the holding (or
even the dicta) of Brown an exception which allows this court
to engage in a wide-ranging, subjective inquiry concerning
whether the issue contained in the instructions is "central to
_________________________________________________________________
1 The only case cited in footnote 4 of Brown which actually reviews and
finds error in a jury instruction did not hold that Rule 51 was not satisfied.
See Granite Music Corp. v. United Artists Corp., 532 F.2d 718, 721-22
(9th Cir. 1976). Instead, we merely stated that "we seriously question
whether plaintiff preserved his record by specifically objecting to the
instruction given and setting forth the terms of what he thought the
instruction should have been." Id.
2365
the trial" and whether "justice requires a review" every time
an appellant has not preserved his objection at trial.
After Brown, only our holding in Pierce has directly relied
on this exception.2 There, we did analyze the purported error
in the instructions despite the party's failure to object and in
the absence of any alternative instruction or other argument,
and the sole grounds for review was this exception. See
Pierce, 823 F.2d 1366, 1371-72. The error was a failure to
include an instruction, and we held that the jury essentially
analyzed the issue addressed by the instruction under another
theory and that "the result in [the] case would be the same"
anyway. See id. at 1372.
Even if our holding in Pierce can be read to endorse a gen-
eral exception to Rule 51 for issues central to trial where jus-
tice requires review, it does not apply here. In Pierce, the
court did not give any instruction at all on the issue of immu-
nity from liability, whereas here the district court gave multi-
ple instructions regarding causation and contributory
negligence. If Pierce is read broadly to apply this exception
whenever a jury instruction is given concerning an important
issue that allegedly misstates the law yet counsel fails to
object, the exception would begin to swallow Rule 51. There
would be no practical difference between this exception and
the plain error rule which we have consistently rejected. To
avoid this incongruous result, Pierce should be limited to
cases in which a court fails entirely to give an instruction on
an issue central to the trial and where it is possible that the
issue in question was not considered at all by the jury. In that
_________________________________________________________________
2 Again, in Murphy v. City of Long Beach, compliance with Rule 51 was
not at issue. Instead, we were considering whether a district court could
grant a new trial sua sponte on the grounds that errors in the instructions
resulted in a miscarriage of justice, despite the party's failure to object.
See 914 F.2d at 187. It is only in dicta that we commented that "even if
Rule 51 were applicable in this case, the . . . issues were `central to the
trial and justice requires review of the treatment of these issues in the
instructions as a whole." See id. at 187 n.7.
2366
way, Pierce would be faithful to the real, limited roots of this
purported exception. Here, the district court did give an
instruction on wilful and wanton conduct, and therefore the
exception in Pierce should not apply.
[6] We find that the appellants failed to preserve this objec-
tion regarding the wilful and wanton conduct instruction for
appeal.
C.
Finally, appellants object to the wilful and wanton conduct
instruction on the alternative grounds that the evidence pre-
sented was insufficient to support the instruction given. This
objection was preserved for appeal, as the appellants objected
on exactly these grounds on two separate occasions. First, in
a written memoranda, they objected to this instruction arguing
that "there is no factual basis for the allegation that wilful or
wanton conduct is appropriate in this case." Then, at a later
conference, they reiterated the objection that "there simply is
no evidence from which to support an instruction of wilful
and wanton." These assertions distinctly state the matter to
which they object, as well as the grounds for objection.
Appellants assert that the decedents' conduct as proven at
trial did not rise to the level that would warrant giving a wilful
and wanton conduct instruction. They argue that Arizona
courts will only give this instruction "where conduct meriting
such an instruction is shown. Slight and inconclusive evi-
dence is not enough." Williams v. Wise, 106 Ariz. 335, 340
(1970). In Williams, the Arizona Supreme Court equated wan-
ton negligence with criminal or quasi-criminal conduct. See
id. at 341.
[7] However, the focus on the standard under Arizona law
is misguided. In Seltzer v. Chesley, 512 F.2d 1030, 1035 (9th
Cir. 1975), we held that, under the Erie doctrine,"federal pro-
cedural rules and law control the manner and method of
2367
instructing the jury in federal courts." Therefore, the federal
standard, not the Arizona standard, should govern the issue of
whether sufficient evidence existed to warrant the wilful or
wanton conduct instruction: "A defendant is entitled to have
the judge instruct the jury on his theory of defense provided
that it is supported by the law and some evidence." United
States v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990)(empha-
sis added).
[8] Here, there is ample circumstantial evidence to warrant
the instruction. The combination of the consumption of alco-
hol, fatigue, the disregard of FAA regulations and the appar-
ent insistence that the women join them despite the risks
involved, support the conclusion that at least one of the dece-
dents acted with reckless indifference towards the safety of
others, including Megan Campbell and Stacy Stephenson.
The appellants concede that there was evidence presented
at trial that Keilen was seen shortly after arriving in the Pres-
cott airport holding a beverage can which could have con-
tained beer, that all three men were drinking beer on the drive
in to Prescott, and that they had spent the evening at a bar. In
addition, testimony revealed that Keilen was aware that he
would be breaking the "bottle to throttle" FAA regulation.
Although testimony also revealed that Keilen did not drink
any alcohol the two hours before the flight and that he never
appeared under the influence of alcohol, the mere fact that
Keilen had been drinking at all that evening and that he knew
his actions were in violation of FAA regulations demonstrates
a reckless indifference to his safety and the safety of others.
Moreover, evidence was also introduced at the trial show-
ing that Keilen and Voohries were suffering from fatigue at
the time of the accident, due to their schedule in the days prior
to the crash. Although it is conceivable that Keilen napped
during the eight hour time span before their departure for
Prescott in which his whereabouts are unknown, it is also pos-
sible that he did not nap during that time and therefore had
2368
only slept for a total of four hours in the forty-eight hour
period before the accident. Even if Keilen had napped during
the day, he had minimal sleep the night before the accident
and, by the time of the plane crash, had been awake for almost
the entire next night.
Rosemary Guadiana's testimony about her interactions with
the decedents is particularly significant, as she was the only
person to see the decedents in the hours preceding the acci-
dent. She testified that the men made repeated requests that
the women go on a flight with them and called them "chick-
en" for their initial refusal. When the other two women
decided to go, Guadiana continued to refuse and warned the
women not to fly with the men.
Viewed in total, this evidence shows that Keilen may have
knowingly taken the risk of flying a plane in an exhausted and
alcohol-influenced state, thereby putting the passengers' lives
in danger. Such conduct could qualify as "action with reckless
indifference to the rights and safety of [Megan Campbell and
Stacy Stephenson]," thus satisfying the definition of "wilful
and wanton" as provided in the jury instruction.
This evidence regarding the decedents is sufficient to war-
rant giving the instruction to the jury, so that they could at
least consider wilful or wanton conduct. The district court did
not abuse its discretion, and we affirm.
DISMISSED IN PART and AFFIRMED IN PART.
Costs in this appeal are awarded to appellee, Cessna Air-
craft.
_________________________________________________________________
REINHARDT, Circuit Judge, dissenting:
I respectfully dissent. Arizona law explicitly forbids sum-
mary adjudication of contributory negligence. Ariz. Const.
2369
art. XVIII, S 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
erroneously allowed the jury to disregard the issue of contrib-
utory negligence, over the plaintiffs' objection, and in viola-
tion 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 con-
tributory negligence in an attempt to remove the contributory
negligence issue from the jury. Cf. Markowitz v. Arizona
Parks Board, 706 P.2d 364, 371 (Ariz. 1985) (in bank) ("A
contributory negligence issue cannot be taken from the jury
by the simple expedient of calling it an issue of causation").
Recharacterizing 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, 405 P.2d 301, 308 (Ariz. Ct. App.
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 pres-
sure 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 tech-
nicality to forfeit the plaintiffs' right to a new trial. My col-
leagues contend that although the three mothers objected
repeatedly and vehemently to the unlawful jury instructions,
2370
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 trage-
dies that families have suffered. Although we may be one of
only two circuits that read Rule 51 literally, see maj. op. at
2358, we need not read it so unreasonably. To hold that plain-
tiffs may not recover for the death of their children because,
although they correctly advised the court that a critical jury
instruction was contrary to Arizona law, they failed to men-
tion 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 excep-
tions, 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 "point-
less 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 all1 -- 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
_________________________________________________________________
1 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.").
2371
case that, notwithstanding their failure to object, the giving of
the erroneous instruction resulted in a manifest 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 pro-
posed 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 substan-
tially, 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. Transp. Co., 823 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 Ari-
zona 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
2372
`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 Servs. Co. v.
Allied Servs. 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
(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 pro-
vision, as the majority suggests. My colleagues cite no case
imposing so harsh a requirement. In my view, the Rule's pur-
pose 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 prop-
erly be dismissed as mere dicta. Ultimately, the majority is
forced to recognize that the Brown exception has been reiter-
ated 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
2373
Pierce, 823 F.2d at 1371, does not, to employ the majority's
hoary clich), "swallow the rule;" it undergirds it.
Because the majority's opinion misperceives the purpose
and function of Rule 51 and this circuit's precedent regarding
its implementation, I respectfully dissent.
2374