                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                         June 12, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
JEARLDINE LAY,

             Plaintiff-Appellant,

v.                                                         No. 12-6259
                                                   (D.C. No. 5:11-CV-00501-M)
STEPHEN L. HASKINS;                                       (W.D. Okla.)
LOGISTIC EXPRESS, INC.,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and HOLMES,
Circuit Judge.



      In this diversity action, Jearldine Lay appeals the judgment entered on a jury

verdict in favor of defendants on her claims for compensation due to a motor vehicle

collision. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.




*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
          I.    BACKGROUND

      We provide a brief recitation of the underlying facts to frame the issues on

appeal, viewing the evidence in the light most favorable to defendants as the

prevailing parties, see Therrien v. Target Corp., 617 F.3d 1242, 1249 (10th Cir.

2010). On January 9, 2011, Ms. Lay and three men set out in a Chevrolet Blazer

from Oklahoma City, Oklahoma, traveling east on Interstate 40 toward Lake Eufaula,

where Ms. Lay had recently sold a house. The Blazer was pulling a small trailer

containing a sofa, which they intended to deliver to the house. As the Blazer headed

east from Oklahoma City toward Lake Eufaula, light snow was falling, but the

temperature was relatively warm. After driving for about 80 miles, they stopped to

use the restroom. At that point, they discussed turning back, but decided that the

weather did not warrant it, so they proceeded east on Interstate 40, a divided

highway. A short time later, the weather suddenly worsened and the highway

became covered with ice and snow.

      The Blazer passed two vehicles and pulled into the right lane. As it did so, the

trailer fishtailed and Mr. Lovell lost control, swerving between the two lanes.

Mr. Lovell aimed for the center median area and crossed in front of a semi tractor

trailer rig (the semi) driven by defendant Haskins. The semi hit the Blazer.

Oklahoma Highway Patrolman Daniel Eaton responded to the scene of the accident.

He interviewed the occupants of the Blazer, except Ms. Lay because she was badly

injured. Mr. Lovell, whose driver’s license had been suspended, told Trooper Eaton


                                         -2-
that Ms. Lay had been driving. Trooper Eaton issued Ms. Lay a ticket for careless

driving.

      Ms. Lay sued Mr. Haskins and his employer for injuries she sustained in the

collision, claiming negligence. Following a three-day trial, a jury returned a verdict

in defendants’ favor, finding that the accident was unavoidable. Ms. Lay appeals,

asserting various trial errors, as discussed below.

           II.   DISCUSSION

   A. Trooper Eaton’s testimony

      Ms. Lay first argues that the district court erred in allowing Trooper Eaton to

testify from his accident report because it contained hearsay statements of third

parties and, as a lay witness, his opinion was inadmissible, as was the police report

itself. The challenged testimony was admitted as evidence of the prior inconsistent

statements of Mr. Lovell and Mr. Sallee. Mr. Lovell had testified that Trooper Eaton

had not asked who was driving the Blazer or how the accident occurred. Mr. Sallee

had testified that he did not speak to the trooper at the scene and that although the

Blazer had lost control, the driver had regained control before the collision. In

response to this testimony, Trooper Eaton testified that at the scene Mr. Lovell told

him that Ms. Lay was driving and that the accident was due to going too fast and

losing control. Similarly, Trooper Eaton testified that he had spoken with Mr. Sallee

who also said the Blazer was going too fast and lost control.




                                          -3-
      “We review for abuse of discretion a district court’s ruling regarding the

admissibility of evidence, including evidence intended to impeach a witness.” United

States v. Apperson, 441 F.3d 1162, 1194 (10th Cir. 2006). Trooper Eaton’s

testimony was not offered for the truth of the matter asserted (who was driving and

how the accident happened). Rather, the testimony was offered to show that

Mr. Lovell and Mr. Sallee had given prior inconsistent statements. “Evidence of a

prior inconsistent statement can be used to impeach [a] witness . . . .” United States

v. Caraway, 534 F.3d 1290, 1295 (10th Cir. 2008); cf. Fed. R. Evid. 613(b)

(“Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if

the witness is given an opportunity to explain or deny the statement and an adverse

party is given an opportunity to examine the witness about it, or if justice so

requires.”). In addition, although Trooper Eaton referred to his report to refresh his

recollection, he did not read from it, but testified from his “independent

recollection,” Aplt. App. Vol. II at 713. “[A]nything may be used to refresh a

witness’ recollection, even inadmissible evidence.” United States v. Weller, 238 F.3d

1215, 1221 (10th Cir. 2001). Therefore, we conclude that the district court did not

abuse its discretion in admitting Trooper Eaton’s impeachment testimony.

   B. Higher standard of care for commercial truck drivers

      Ms. Lay asserts that the district court erred in granting defendant’s motion

in limine excluding references to a higher standard of care for commercial truck

drivers, such as Mr. Haskins. She relies on 49 C.F.R. § 392.14, which states that


                                          -4-
“[e]xtreme caution in the operation of a commercial motor vehicle shall be exercised

when hazardous [driving] conditions . . . adversely affect visibility or traction.” The

regulation requires commercial truck drivers to reduce speed and, “[i]f conditions

become sufficiently dangerous,” to stop driving altogether. Id. Ms. Lay argues that

the district court excluded any reference during trial to this standard and rejected her

proposed jury instruction on a higher standard of care for the semi driver.

Consequently, she argues, the jury was prevented from evaluating the truck driver’s

negligence.

      As defendants point out, Ms. Lay’s counsel was not precluded from eliciting

testimony on the duty of extreme caution for commercial truck drivers. He asked

both his own and defendants’ expert witnesses about it. Ms. Lay does not suggest

what additional testimony she was not permitted to elicit and we decline to speculate.

In her reply brief, Ms. Lay contends that the district court did not allow her counsel

to discuss the pertinent federal regulation during closing argument. Again, this claim

is not supported by the record. Counsel argued that as a commercial truck driver,

defendant Haskins was under a duty of extreme caution, Aplt. App. Vol. III at 848,

and counsel did not attempt any further argument on this point that the district court

disallowed.

      Ms. Lay also contends that the district court erred in refusing her proposed

jury instruction on a higher standard of care. The court instructed the jury on the

various statutory and regulatory rules for drivers including the federal requirement


                                          -5-
that an operator of a commercial motor vehicle exercise “extreme caution” during

hazardous road conditions. See Aplt. App. Vol. III at 896 (quoting 49 C.F.R.

§ 392.14).

       “We review a district court’s decision to give a particular jury instruction for

abuse of discretion, but we review de novo legal objections to the jury instructions.”

Ryan Dev. Co., L.C. v. Indiana Lumbermens Mut. Ins. Co., 711 F.3d 1165, 1171

(10th Cir. 2013) (internal quotation marks omitted). “We read and evaluate the jury

instructions in light of the entire record to determine if they fairly, adequately and

correctly state the governing law and provide the jury with an ample understanding of

the applicable principles of law and factual issues confronting them.” Lederman v.

Frontier Fire Prot., Inc., 685 F.3d 1151, 1154-55 (10th Cir. 2012) (internal quotation

marks omitted).

       Ms. Lay did not object to the district court’s instruction, and, in fact, the

instruction given was very similar to the instruction she proposed. Compare Aplt.

App. Vol. III at 895-96 (negligence per se instruction given) with Aplee. Supp. App.

at 14-15 (plaintiff’s proposed negligence per se instruction). Based on our review of

the instructions as a whole in the context of the entire trial, we find no abuse of

discretion in the district court’s instruction on the duty of care for commercial truck

drivers.




                                           -6-
    C. Unavoidable accident verdict form and jury instruction

       Ms. Lay contends that the district court erred by including in the verdict form

an unavoidable-accident option. The verdict form approved by the district court and

submitted for the jury’s use included the following language: “Do you find that the

accident was unavoidable? __ Yes __ No.” Aplt. App. Vol. III at 912. The jury

checked the “yes” option. The district court also gave the following relevant jury

instruction: “An unavoidable accident is one which occurs without negligence on the

part of either party. If you find from the weight of the evidence that the accident was

unavoidable, then your verdict should be for defendants.” Id. at 901. Ms. Lay argues

that the evidence did not support a finding that the accident was unavoidable and that

offering this option is appropriate under Oklahoma law only where the accident was

caused by unforeseen circumstances, not by the negligence of any party.1

       The record reflects, however, that Ms. Lay did not object to the verdict form or

the jury instruction. Unless a party preserves her objection by interposing a timely

objection, we review only for plain error. United States ex rel. Bahrani v. ConAgra,

Inc., 624 F.3d 1275, 1286-87 (10th Cir. 2010). “To obtain reversal on plain-error

review, the appellant must . . . show (1) an error (2) that is plain, meaning clear or


1
       To the extent Ms. Lay argues that the district court erred by placing the
challenged question near the top of the verdict form, we reject this argument. The
remaining questions for the jury to answer concerned contributory negligence and
damages, matters the jury did not need to address if they found that the accident was
unavoidable. Thus, it was logical for the jury to decide first whether the accident was
unavoidable.


                                          -7-
obvious under current law, and (3) affecting substantial rights.” Id. at 1284 (internal

quotation marks omitted).

      “An unavoidable accident is a casualty which occurs without negligence of

either party, and when all means which common prudence suggests have been used to

prevent it.” Athey v. Bingham, 823 P.2d 347, 348 (Okla. 1991) (internal quotation

marks omitted).2 The Oklahoma Supreme Court has recognized that “a sudden and

unexpected skidding may occur on an icy road even in the presence of prudent

driving.” Id. at 349. But “[u]se of [an unavoidable-accident] instruction should be

restricted to those circumstances where the evidence indicates the occurrence was

caused by unforeseen circumstances or conditions and not by the negligence of either

party.” Newport v. USAA, 11 P.3d 190, 199 (Okla. 2000) (internal quotation marks

omitted).

      The evidence supported a finding that the accident was unavoidable because

the slippery road conditions developed suddenly and unexpectedly just before the

collision. Shortly before the collision, Ms. Lay and her party noted the falling snow,

but decided that the weather was warm enough to prevent accumulation on the road

and decided to continue their trip. Then Ms. Lay observed that the weather was

getting worse and cautioned Mr. Lovell to slow down. Mr. Lovell and Mr. Worley
2
      In this diversity action, we apply the substantive law of Oklahoma.
See Eureka Water Co. v. Nestle Waters N. Am., Inc., 690 F.3d 1139, 1145 (10th Cir.
2012) (“In a diversity case such as this one, the substantive law of the forum state
governs the analysis of the underlying claims.” (internal quotation marks and ellipsis
omitted)).


                                         -8-
both testified that the weather got worse very quickly. Trooper Eaton testified that

numerous other accidents were caused by the icy road conditions in the area.

Accordingly, the jury could have found that “the parties had no control over, nor

could they have predicted” that the Blazer would skid and fishtail to cross in front of

the semi. Athey, 823 P.2d at 350. Thus, use of the unavoidable-accident jury

instruction and verdict form was not error, let alone plain error.

   D. Jury’s request to review Mr. Haskins’s deposition transcripts

      During deliberations the jury asked for the deposition transcripts of

Mr. Haskins, the semi driver. The district court denied the request, saying, “You

have all the law and evidence admitted in this case.” Aplt. App. Vol. III at 877.

Ms. Lay asserts that denying the request prejudiced her because the jury had the

deposition transcripts of the Blazer’s occupants, so denying them the truck driver’s

testimony allowed the jury to emphasize only one side of the evidence.

      Again, Ms. Lay did not object when the district court proposed to deny the

jury’s request. Id. at 860. Therefore, absent a showing of plain error, reversal is not

warranted. See United States v. Shaffer, 472 F.3d 1219, 1227 (10th Cir. 2007)

(holding alleged error in response to jury’s question warranted only plain-error

review where party failed to “enter a contemporaneous objection to the District

Court’s answer to the jury’s question, [and thus] failed to give the District Court an

opportunity to pass on [the] question”). We determine that Ms. Lay has not

demonstrated error by her general claim that not giving the jury all depositions


                                          -9-
prejudiced her. On the contrary, it would appear that any unfair emphasis was to

Ms. Lay’s benefit, since the jury had her deposition, as well as those of two of her

witnesses.

   E. Witness Donna Toomey stricken from plaintiff’s witness list

      Finally, Ms. Lay contends that the district court abused its discretion in

refusing to allow Donna Toomey to testify about the road conditions on the day of

the accident. She argues that the testimony was relevant to refute defendants’

position that the road conditions were not sufficiently hazardous to require

Mr. Haskins to slow or stop the semi (although there was evidence that Mr. Haskins

did slow the semi, see, e.g., Aplt. App. Vol. III at 773).

      Ms. Toomey would have testified that when she left Broken Arrow, Oklahoma,

north of the accident site, the weather conditions were terrible and got worse the

farther south she went. But this was two or three hours after the accident and she did

not visit the crash location. Therefore, her testimony was not relevant to the issue of

the sudden deterioration of road conditions at the accident site. General testimony

about a major snowstorm in Oklahoma would not have assisted the jury to resolve the

issue of the unexpected accumulation of ice and snow just before the accident.

Moreover, there was ample evidence, including testimony from Ms. Lay and her

witnesses, about the relevant road and weather conditions. “[T]he question of

whether certain testimony is relevant to an issue before the jury is within the sound




                                          - 10 -
discretion of the district court.” United States v. Neighbors, 23 F.3d 306, 310

(10th Cir. 1994). We find no abuse of that discretion here.

          III.   CONCLUSION

      Ms. Lay’s motion to strike the official traffic accident report and references

thereto in the briefs is denied. The judgment of the district court is affirmed.


                                                  Entered for the Court


                                                  John C. Porfilio
                                                  Senior Circuit Judge




                                         - 11 -
