                           UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                           No. 06-2254


DONALD H. HANSEN, Colonel, Individually and as personal
representative of the Estate of Deborah F. Hansen, Decedent;
Donald J. Hansen, Katherine M. Hansen,

               Plaintiff - Appellant,

          v.


ISUZU MOTORS LIMITED; AMERICAN ISUZU MOTORS, INCORPORATED;
ISUZU MOTORS AMERICA, INCORPORATED,

               Defendants – Appellees.



                           No. 06-2255


DONALD H. HANSEN, Colonel, as Personal representative of the
Estate of Deborah F. Hansen, Decedent,

               Plaintiff – Appellant,

          v.


ISUZU MOTORS LIMITED; AMERICAN ISUZU MOTORS, INCORPORATED;
ISUZU MOTORS AMERICA, INCORPORATED,

               Defendants – Appellees.



Appeals from the United States District Court for the District of
South Carolina, at Columbia.     Matthew J. Perry, Jr., Senior
District Judge. (3:00-cv-03912-MJP; 3:00-cv-03913)
Argued:   March 19, 2008                Decided:   August 12, 2008


Before MICHAEL and GREGORY, Circuit Judges, and Jane R. ROTH,
Senior Circuit Judge of the United States Court of Appeals for the
Third Circuit, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Charles Elford Carpenter, Jr., CARPENTER APPEALS AND TRIAL
SUPPORT, L.L.C., Columbia, South Carolina, for Appellant. Julie A.
Childress, O’HAGAN & SPENCER, L.L.P., Richmond, Virginia, for
Appellees.    ON BRIEF: Steven J. Pugh, RICHARDSON, PLOWDEN &
ROBINSON, P.A., Columbia, South Carolina; Eric G. Fosmire, COLLINS
& LACY, P.C., Columbia, South Carolina; John J. Johnson, Columbia,
South Carolina, for Appellant. Christopher C. Spencer, O’HAGAN &
SPENCER, L.L.P., Richmond, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
PER CURIAM:

     Donald Hansen (AHansen@) filed a lawsuit against Isuzu Motors

Limited, American Isuzu Motors, and Isuzu Motors America (AIsuzu@)

on behalf of himself, his wife and children after Hansen=s vehicle

overturned while traveling on an interstate highway.                    The jury

ruled in favor of Isuzu on all claims.            Subsequently, Hansen sought

a new trial which the district court denied.                On appeal, Hansen

contends that the district court erred.            After thoroughly reviewing

Hansen=s assignments of error, we find that the district court did

not commit error and we affirm the district court=s decisions.



                                       I.

     Hansen filed this action against Isuzu after the family=s 1994

Isuzu Trooper rolled over on an interstate highway in Laurens

County, South Carolina, killing his wife, Deborah, and seriously

injuring his children.          Hansen asserted several causes of action

including     breach     of    warranty,     strict     liability,     negligent

misrepresentation and negligence.           The jury ruled in favor of Isuzu

on all claims.    Hansen filed several post-trial motions including a

Motion for New Trial, a Motion to Alter or Amend the Judgments, and

a Motion for Relief from Judgments, asserting, inter alia, that the

district court erred:         (1) by instructing the jury that Hansen must

prove that Isuzu acted in a Areckless, willful, or wanton manner@ to

recover   for   simple    negligence;       (2)   by   failing   to   admit   into

                                     - 3 -
evidence certain post-sale materials sent by Isuzu to Hansen

subsequent to his purchase of his 1994 Isuzu Trooper regarding the

purported safety, handling and stability of Isuzu Troopers; and (3)

by failing to either admit into evidence prior notifications to

Isuzu by Isuzu Trooper owners or operators of tip-ups or rollovers

of 1992, 1993, and 1994 Isuzu Troopers or instructing the jury that

Isuzu was on notice of such claims.      The district court ultimately

denied Hansen=s three motions.    Hansen timely appealed.



                                  II.

     On appeal, Hansen contends that the district court erred:

(1) by instructing the jury that Hansen must prove that Isuzu acted

in a Areckless, willful, or wanton manner@ to recover for simple

negligence requiring that appellants prove a higher burden than

negligence; (2) by ruling that under South Carolina law, negligent

misrepresentation is only actionable where the representations

induced Hansen to enter into a contract or transaction; (3) by

failing to admit into evidence certain post-sale materials, which

discussed the safety, handling and stability of Isuzu Troopers,

sent by Isuzu to Hansen subsequent to his purchase of his 1994

Isuzu Trooper.   We address each of Hansen=s claims below seriatim.




                                 - 4 -
                                            A.

     Hansen argues that he is entitled to a new trial because the

district court erroneously instructed the jury to consider whether

Hansen had proved Isuzu designed, manufactured, or marketed the

Isuzu     Trooper     in    a    Areckless,        willful,   or   wanton     manner,@

consequently holding Hansen to a higher burden of proof than

required under South Carolina law for proving simple negligence.

In response, Isuzu argues that Hansen failed to timely object to

the jury charge as required by Federal Rules of Civil Procedure

Rule 51.    Furthermore, Isuzu contends that any error did not affect

Hansen=s substantial rights or the fairness, integrity or public

reputation of the judicial proceeding.                   Finally, Isuzu requests

that we not exercise our discretion under Rule 51 to correct any

error not timely objected to by Hansen.                 In the alternative, Isuzu

argues    that   if   the       district    court     erred   in   using    the   words

Areckless, willful or wanton@ during the jury charge, the error was

harmless and did not prejudice Hansen=s case.

        We apply an abuse of discretion standard when reviewing jury

instructions that have been properly and contemporaneously objected

to at the trial court level.           See Johnson v. MBNA America Bank, NA,

357 F.3d 426, 432 (4th Cir. 2004).                     The test of adequacy of

instructions properly challenged on appeal is not one of technical

accuracy in every detail.            See Spell v. McDaniel, 824 F.2d 1380,

1395 (4th Cir. 1987).            Rather, Ait is simply the practical one of

                                           - 5 -
whether the instructions construed as a whole, and in light of the

whole record, adequately informed the jury of the controlling legal

principles     without   misleading    or    confusing    the   jury   to   the

prejudice    of    the   objecting    party.@     Id.      AEven   when     jury

instructions are flawed, there can be no reversal unless the error

seriously prejudiced the plaintiff=s case.@        Hardin v. Ski Venture,

Inc., 50 F.3d 1291, 1296 (4th Cir. 1987).

      If we determine, as Isuzu contends, that Hansen did not make a

proper contemporaneous objection, as required by Rule 51, then the

applicable standard of review is plain error.            See Fed. R. Civ. P.

51(d)(2); Spell, 824 F.2d at 1398-99.            AA court may consider a

plain error in the instructions affecting substantial rights that

has not been preserved as required by Rule 51(d)(1)(A) or (b).@

Fed. R. Civ. P. 51(d)(2).            Under the plain error standard of

review, we may only exercise our discretion to correct an error, if

we:   (1) find error; (2) find the error was plain; (3) find the

error affected the substantial rights of the parties alleging the

error; and (4) after examining the particulars of the case, find

the error seriously affected the fairness, integrity or public

reputation of judicial proceedings.          In re Celotex Corp., 124 F.3d

613, 630-31 (4th Cir. 1997) (citing United States v. Olano, 507

U.S. 725, 730 (1993)).

      After reviewing the record, we find that the district court

did not err.      In a lengthy explanation, the district court defined

                                     - 6 -
negligence as the failure to exercise ordinary care.                   AOrdinary

care is that care which reasonably prudent persons exercise in the

management of their own affairs in order to avoid injury to

themselves,     their   property   or   to   the   persons     or   property   of

others.@     The district court made clear that in order to prove the

essential elements of Hansen=s claim that Isuzu was negligent,

Hansen must establish by a preponderance of the evidence the

following:

      First, that the defendants were negligent in one or more
      of the particulars alleged;

      Second, and not necessarily in the order in which I am
      setting them forth, that plaintiff suffered some injury
      or damage;

      Third, that there is a connection between the two...
      That the plaintiff=s injury or damage was proximately
      caused by the defendant=s negligent act.

The district court explained the meaning of Aproximate cause,@

stating Ait is the cause without which the injury or damage would

not   have    occurred.@     After      stating    the   forgoing      standard

instruction on Anegligence,@ the district court read to the jury

instructions     on   negligence   as   proposed    by   the    parties   which

included the terms Areckless,@ Awillful@ and Awanton.@1                Thus, in

reading from a proposed instruction submitted by the parties, the

district court stated that Ait=s incumbent upon the Plaintiff to


      1
      The district court gave over 1800 lines of jury instructions
with the concern portion of the jury instruction consisting of less

                                    - 7 -
prove that the Defendants were negligent or reckless, willful and

wanton in one or more of the particulars alleged in the complaint.@

       Hansen argues that by including the terms Areckless,@ Awillful,@

and Awanton@ in the instructions when explaining the plaintiff=s

burden of proof with respect to the contention that the defendants

were Anegligent,@ the district court committed error because the

terms Areckless,@ Awillful@ and Awanton@ suggest a greater level of

culpability    by   the    tortfeasor    which,    if    proven   by     clear     and

convincing     evidence,    renders     appropriate      a    verdict    including

punitive damages.

       After initially reading its standard jury instructions on

Anegligence,@ the district court read Hansen=s Request to Charge

Number    3   regarding    wrongful     death   which     included      the    words

Areckless,@ Awillful@ and Awanton.@        These words were also included

in Isuzu=s Request to Charge Number 4.                 Upon completion of the

instructions, neither Hansen nor Isuzu objected to the inclusion of

those words in the charge.            After the charge was delivered but

before the case was given to the jury, the district court twice

inquired as to whether the parties had any objections.                  Hansen made

some   objections   but    none   pertaining      to    the   inclusion       of   the

additional words.         Hansen never mentioned the words Areckless,@

Awillful@ or Awanton.@       After deliberating for several hours, the


than six lines.


                                      - 8 -
jury sent a note with questions about negligence.                   The district

court met with the parties to discuss how to respond.               The district

court decided to recharge the jury with the same jury instructions

the following morning.         After the jury began deliberating again,

Hansen    raised   his     concern   about    the    inclusion   of    the   words

Areckless, willful or wanton.@           While the parties were discussing

the matter, the jury returned with a verdict for Isuzu on all

counts.

       Based on a careful review of the jury instructions, we hold

the district court did not err.          The district court made very clear

that   the   plaintiff      only   had   to   meet   the   burden     of   proving

negligence.        The    district   court    also    provided   an    excellent

explanation of the relevant standard for negligence.                   The court

then instructed the jury that the plaintiff is entitled to recovery

if the plaintiff proved negligence or if the plaintiff showed that

the defendant was Areckless, willful or wanton.@            This merely meant

that the plaintiff recovers if he proves the negligence or the

higher standard.         Furthermore, we have held that instructions are

sufficient if Aconstrued as a whole, and in light of the whole

record, [they] adequately informed the jury of the controlling

legal principles without misleading or confusing the jury to the

prejudice of the objecting party.@             Spell v. McDaniel, 824 F.2d

1380, 1395 (4th Cir. 1987).              We believe the district court=s

instructions easily meet this standard.

                                     - 9 -
     Even if the district court=s instructions were flawed, we would

review this issue under our plain error standard because Hansen

failed   to   make   a   timely   objection.2   We   do   not   believe   the

inclusion of the alternative way in which the plaintiff may recover

prejudiced Hansen=s case.

     Furthermore, the jury ruled in Isuzu=s favor on all claims,

including strict liability.         Because the jury ruled in favor of

Isuzu for strict liability, and because the negligence claim was

essentially the same claim3, the error, if there was error, was

necessarily harmless because the jury had already decided that the

Hansen=s Trooper was not defective or unreasonably dangerous when it

was placed in the stream of commerce.4          The burden of proof for

     2
      If the plaintiff had asked the district court to eliminate
the additional alternatives before the jury retired to consider the
verdict, which should be noted gave the jury more ways, not fewer,
to find for the plaintiff, the plaintiff=s concerns over the use of
the terms Areckless,@ Awillful@ and Awanton,@ could have been
addressed. However, the plaintiff failed to do so. We have stated
that Ano party may assign as error the giving or failure to give an
instruction unless the party objects thereto before the jury
retires to consider the verdict.@ Federal Rule of Civil Procedure
51; City of Richmond v. Madison Management Group, et al, 918 F.2d
438, 453 (4th Cir. 1990).
     3
      In both his strict liability claim and simple negligence
claim, Hansen alleged that his 1994 Isuzu Trooper as designed,
manufactured, assembled and sold by Isuzu posed an unreasonable
risk of causing injury to the users of the vehicle when used for
its intended and foreseeable purposes.
     4
      Manufacturers are expected to design their vehicles to
account for accidents because accidents are frequent and a part of
regular use of a vehicle. As a result vehicles are expected to
perform reasonably under such conditions.

                                    - 10 -
strict     liability    is   lower   than     the   burden    of     proof   under

negligence.     Thus if plaintiff could not meet the lower standard,

then it is clearly unreasonable to believe that he could have met

the burden for his negligence claim.           Thus, if the jury had ruled

in favor of Hansen on the negligence claim, their verdicts would

have been inconsistent.       Therefore, we conclude that any error with

the jury instructions was necessarily harmless as the jury had

already determined that the plaintiff could not meet his lower

burden under strict liability.

                                       B.

     Hansen purchased his 1994 Isuzu Trooper prior to receiving

allegedly     misleading      material      from    Isuzu     upon     which   he

detrimentally relied.        Hansen contends the district court erred

when it concluded that South Carolina law requires that the false

or misleading representation induced the plaintiff to enter into a

contract or business transaction.           Hansen argues that under South

Carolina      law,     the    essential       elements       of    a    negligent

misrepresentation claim are:             (1) the defendant made a false

representation to the plaintiff; (2) the defendant had a pecuniary

interest in making the statement; (3) the defendant owed a duty of

care to see that he communicated truthful information to the

plaintiff; (4) the defendant breached that duty by failing to




                                     - 11 -
exercise due care; (5) the plaintiff justifiably relied on the

representation; and (6) the plaintiff suffered a pecuniary loss as

the proximate result of his reliance upon the representation.

See, e.g., Redwend Ltd. P=ship v. Edwards, 581 S.E.2d 496, 504 (S.C.

Ct. App. 2003).     Hansen further contends that recovery of damages

for the tort of negligent misrepresentation A>may be predicated upon

a negligently made false statement where a party suffers either

injury     or   loss     as   a   consequence   of    relying       upon   the

misrepresentation.=@      Id. at 504.

     However, this Court has previously concluded that to prove a

claim for negligent misrepresentation under South Carolina law, the

plaintiff must establish that A(1) the defendant negligently made a

false statement, (2) the plaintiff suffered an injury or loss as a

consequence of relying on the misrepresentation, and (3) the

misrepresentation induced the plaintiff to enter into a contract or

business transaction.@        Jiminez v. DaimlerChrysler Corp., 269 F.3d

439, 447 (4th Cir. 2001) (citing Evans v. Rite Aid Corp., 478

S.E.2d 846, 848 (S.C. 1996)) (emphasis added).               In Armstrong v.

Collins, 621 S.E.2d 368, 376 (S.C. Ct. App. 2005), the South

Carolina    Court   of    Appeals   stated   A[a]    claim    for   negligent

misrepresentation may be made when the misrepresented facts induced

the plaintiff to enter a contract or business transaction.@                 In

Jiminez, we interpreted South Carolina law to mean that a claim can

be made only if it induced the plaintiff into a contract or

                                    - 12 -
business transaction.           269 F.3d at 439.        Thus, the district court

did not misinterpret South Carolina law.



                                           C.

       Finally, Hansen contends the district court erred when it

excluded      a    post-sale     brochure    Isuzu      sent    to    numerous       Isuzu

consumers,        including    Hansen.      This     Court     reviews    evidentiary

rulings for abuse of discretion.                United States v. Hill, 322 F.3d

301, 304 (4th Cir. 2003).                In ruling on the admissibility or

exclusion       of   evidence,    a    district    court       has   broad    latitude.

See Bryte ex rel. Bryte v. Am. Household, Inc., 429 F.3d 469, 475

(4th   Cir.       2005).      Therefore,    we    accord     the     district    court=s

evidentiary rulings substantial deference.                     See United States v.

Moore, 27 F.3d 969, 974 (4th Cir. 1994), cert. denied, 513 U.S. 979

(1994); United States v. Simpson, 910 F.2d 154, 157 (4th Cir.

1990).      A      district    court   abuses     its    discretion      if     it    acts

arbitrarily or irrationally, see Hill, 322 F.3d at 304, or if its

conclusions are guided by Aerroneous legal principles@ or rest upon

a Aclearly erroneous factual finding.@                See Westberry v. Gislaved

Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999).

       The brochure entitled AThe Truth About Trooper@ responded to

Consumers Union=s critique of the 1995-1996 Isuzu Trooper=s safety.

Hansen wanted to include the evidence to support his claim for

negligent         misrepresentation,       but    because      the    brochure       dealt

                                         - 13 -
specifically with the 1995-1996 Isuzu Trooper and not the 1994

Isuzu Trooper, which Hansen owned and which had been previously

recommended by Consumers Union, the district court excluded the

evidence.     We conclude that the district court did not abuse its

discretion.    Moreover, the district court permitted the admission

of another brochure entitled AAn Overview of Isuzu Motors Limited=s

Handling & Stability Design Philosophy@ that Isuzu sent to Isuzu

customers, including Hansen.     That brochure provided essentially

the same information as that contained in the excluded brochure.

Given the aforementioned, the district court=s decision was neither

arbitrary nor irrational.



                                 III.

     For the foregoing reasons, we affirm the district court=s

decisions.

                                                           AFFIRMED




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