                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        MAY 20 1997
                                 PUBLISH
                                                                   PATRICK FISHER
                                                                             Clerk
             UNITED STATES COURT OF APPEALS
                      TENTH CIRCUIT



BOBBY JOE BREEDEN and
DORIS BREEDEN,

      Plaintiffs-Appellants/
      Cross-Appellees,

v.
                                                     Nos. 95-6445
                                                      & 96-6103
ABF FREIGHT SYSTEM, INC.,
ST. PAUL FIRE AND MARINE
INSURANCE COMPANY, a
Minnesota Corporation,

      Defendants-Appellees/
      Cross-Appellants.


                  Appeal from the United States District Court
                     for the Western District of Oklahoma
                           (D.C. No. CIV-94-1825-L)


SUBMITTED ON THE BRIEFS:

Duke Halley and Jerry Dick, of Halley & Associates Law Office, Woodward,
Oklahoma, and David K. Petty, of David K. Petty, P.C., Guymon, Oklahoma, for
Plaintiffs-Appellants/Cross-Appellees.

Michael W. Brewer and Karen S. MacLeod, of Hiltgen & Brewer, P.C., Oklahoma
City, Oklahoma, for Defendants-Appellees/Cross-Appellants.
Before SEYMOUR, Chief Judge, ANDERSON and TACHA, Circuit Judges.


SEYMOUR, Chief Judge.




                                -2-
      Bobby Joe Breeden and his wife Doris sustained injuries when their vehicle

was struck from behind by a vehicle driven by Alfonso Gomez, Jr., as Mr.

Breeden was attempting a left turn. The Breedens sued ABF Freight System, Inc.

(ABF), claiming that negligence by the driver of an ABF tractor-trailer truck

contributed to the accident. The jury found that ABF was negligent, that Mr.

Breeden was not contributorily negligent, and that total damages were

$561,906.00. The trial court reduced the award by the degree of fault apportioned

to Mr. Gomez, and entered judgment in the amount of $56,190.60. Mr. Breeden

appeals the trial court’s reduction in damages, and the trial court’s failure to order

prejudgment interest for the period between the return of the jury verdict and the

date judgment was entered by the court. ABF cross-appeals from the trial court’s

rulings denying ABF’s motions for summary judgment and judgment as a matter

of law, and excluding certain evidence during the trial.



                                          I.



      Mr. Breeden slowed and signalled for a lefthand turn from a state highway

onto a secondary road. An ABF tractor-trailer truck was travelling several

hundred feet behind the Breedens’ vehicle. The truck passed on the shoulder to

avoid colliding with the Breedens’ vehicle, without signalling or braking. Mr.


                                          -3-
Gomez had been tailgating and attempting to pass the truck for several miles. By

the time he noticed the Breedens’ vehicle slowed to a near-stop, as the ABF truck

moved to the shoulder, he was unable to avoid impact. The Breedens settled with

Mr. Gomez for approximately $17,000, and sued ABF. Trial testimony focused

on reconstruction of the positions, speeds, and distances of the three vehicles

immediately prior to the accident, and on the extent of the injuries to the

Breedens. The accident reconstruction suggested that Mr. Gomez was negligent

in accelerating without checking the roadway when the ABF truck began to pull

to the shoulder.

      The jury found in favor of Doris Breeden and awarded her $5,000.00 in

damages. On the verdict form for Mr. Breeden, the jury apportioned the

negligence between the vehicles involved, finding Mr. Breeden was 0% negligent,

that ABF was responsible for 10% of the negligence, and the non-party Mr.

Gomez was to blame for 90% of the negligence. The verdict form used by the

jury is reproduced as an appendix, with the jury’s entries indicated in bold.

Despite finding no contributory negligence by Mr. Breeden, the jury did not fill

out Part A of the verdict form finding in favor of Mr. Breeden. Instead, it entered

its findings on Part C of the verdict form. 1 The jury awarded total damages of



      1
        We note that Part C was the only portion of the form which allowed the
jury to allocate responsibility to Mr. Gomez.

                                         -4-
$561,906.00, and did not award punitive damages. Part C of the verdict form

indicated to the jury that the damage award “will be reduced by the court by the

sum of the percentages” of negligence attributable to Mr. Breeden and Mr.

Gomez. Although Part C was plainly intended to be used to determine

comparative negligence, the jury was not given any comparative negligence

instruction. The jury also was not instructed that it should use Part C only if it

found Mr. Breeden’s share of the negligence to be a non-zero number.

      When the verdict was returned, the district court consulted with counsel

about the apparent inconsistency between the jury’s use of Part C, the

comparative negligence portion of the form, and the jury’s finding that Mr.

Breeden was not negligent. The parties agreed to accept the verdict, and to

resolve thereafter the proper judgment to be entered on the verdict. The jury was

polled, but only with respect to its four specific findings entered on the verdict

form regarding the apportionment of negligence and total damages, and it

confirmed those findings. The jury was not polled about its understanding of any

reductions to be made from the total damages. After briefing by the parties, the

trial court entered a judgment which reduced the award by the combined

proportion of negligence attributable to Mr. Breeden and Mr. Gomez, 90 percent.




                                          -5-
                                          II.



A.    Notice of Appeal and Prejudgment Interest

      ABF contends that Mr. Breeden’s notice of appeal was untimely under Fed.

R. App. P. 4, and that we lack jurisdiction over his claims. Mr. Breeden filed his

notice of appeal while his Rule 59(e) motion to amend the judgment to include

interest was still pending. Under the post-1993 version of the rules, Mr.

Breeden’s premature notice of appeal ripened into an effective notice of appeal

once the district court ruled on the pending motion. Fed. R. App. P. 4(a)(4); see

also Hatfield v. Board of County Comm’rs, 52 F.3d 858, 861 n.2 (10th Cir.

1995). Without amendment, “a notice of appeal filed before the disposition of a

posttrial tolling motion is sufficient to bring the underlying case, as well as any

orders specified in the original notice, to the court of appeals.” Fed. R. App. P.

4(a)(4) advisory committee’s note to 1993 amendment. Consequently, we have

jurisdiction over the underlying case.

      In addition to errors in the underlying case, however, Mr. Breeden also

asserts that the district court erred in its disposition of his Rule 59(e) motion by

failing to award pre-judgment interest for the period between the jury’s verdict

and the court’s entry of judgment. “Appellate review of an order disposing of

[the Rule 59(e) motion] requires the party . . . to amend a previously filed notice


                                          -6-
of appeal. A party intending to challenge an alteration or amendment of the

judgment shall file a notice, or amended notice, of appeal within the time

prescribed.” Fed. R. App. P. 4(a)(4). Because Mr. Breeden did not amend his

notice of appeal, we lack jurisdiction to consider his appeal from the pre-

judgment interest matters disposed of in the ruling on his Rule 59(e) motion.



B.    Reduction of Damages

      Turning to the merits, we first consider whether the trial court erred in

reducing the damages awarded in proportion to the combined negligence

attributable to Mr. Breeden and Mr. Gomez. Under Oklahoma law, comparative

negligence principles do not apply to a non-negligent plaintiff. “‘The raison

d’etre and rationale of comparative negligence are tied, hand-and-foot, to the

narrow parameters of a blameworthy plaintiff’s claim.’” Berry v. Empire

Indemnity Ins. Co., 634 P.2d 718, 719 (Okla. 1981) (quoting Boyles v. Oklahoma

Natural Gas Co., 619 P.2d 613, 616 (Okla. 1980)). In Berry, an injured passenger

sued the driver of another vehicle involved in an accident. The trial court reduced

the damages by the percent of negligence attributed to the driver of the vehicle in

which the passenger was riding. The Oklahoma Supreme Court reversed, holding

such reduction in damages inappropriate where the plaintiff was faultless. A

plaintiff who is not contributorily negligent is entitled to recover in full from any


                                         -7-
of the joint tort-feasors.

       “The general issues of fact to be determined by the jury were whose

negligence caused the accident and what amount of damage did the plaintiff

suffer, if any from that negligence.” Vaught v. Holland, 554 P.2d 1174, 1177

(Okla. 1976). In this case, the jury made ultimate findings on the apportionment

of liability and the amount of total damages to Mr. Breeden. Those findings were

confirmed in the jury poll. There is absolutely no ambiguity in the findings made

by the jury. As grounds for reducing the verdict, the trial court apparently relied

solely on the fact that the section of the verdict form used by the jury to enter its

findings, Part C, informs the jury that damages “will be reduced by the court by

the sum of the percentages” of negligence apportioned to Mr. Breeden and the

non-party Mr. Gomez. See appendix. The district court concluded that the jury’s

use of the part of the form containing this language “is a clear and unequivocal

statement of the intent of the jury” to reduce Mr. Breeden’s damages by ninety

percent. Aplt.’s app., vol. I at 73.

       We disagree with the district court’s interpretation of the verdict form. The

quoted language in the form merely attempted to describe to the jury the operation

of Oklahoma principles of comparative negligence. The jury was not asked to

make the reduction, and was given no opportunity to approve or reject the

reduction. The quoted language was not part of the jury’s findings, was not


                                          -8-
included when the jury was polled, and does not, in our view, support any

inference about the intent of the jury. There is no ambiguity in Oklahoma law.

As a matter of Oklahoma law, comparative negligence principles do not apply

where the plaintiff is blameless. The unqualified language in the verdict form is

correct only insofar as applied to a blameworthy plaintiff. The trial court may not

abdicate its obligation to enter judgment on the verdict according to the law

merely because the verdict form contains an erroneously overbroad description of

the law. The jury’s findings, together with Oklahoma law, and not the language

of the verdict form, control the judgment to be entered by the trial court. Cf.

Morgan v. Oklahoma Natural Gas Co., 561 P.2d 1363, 1364 (Okla. 1977). 2

      The district court relied on Smith v. Gizzi, 564 P.2d 1009 (Okla. 1977), for

the proposition that where the jury has made the required findings, and the

language of the verdict form is clear, “nothing is left for the judge to do except

the arithmetic.” Id. at 1013. In Smith, the plaintiff was contributorily negligent

and nothing was left but for the judge to do the arithmetic required under the law

of comparative negligence by reducing the damages in proportion to the



      2
       Each party devotes considerable argument to whether appropriate
exception was taken by the other party to the use of the verdict form. Here,
however, the jury simply filled in an appropriate part of the form. The issue is
not whether an error in the jury instructions resulted in an impermissible verdict,
but whether the trial court committed legal error in determining the judgment to
be entered on the verdict.

                                         -9-
plaintiff’s negligence. Smith does not suggest that a judge must do the arithmetic

described on a verdict form even where that arithmetic is contrary to the law.

Moreover, in Smith itself the reduction performed by the judge was not indicated

anywhere on the verdict form. Thus, in Smith the authority to do the appropriate

arithmetic derived not from the verdict form, but from state law. That case

simply does not stand for the broad proposition ABF advances.

      ABF speculates that the jury “backed into” the damages figure because the

jury intended that Mr. Breeden receive only $56,000. On this theory, the jury

chose the figure it did for total damages to ensure that, in light of the reduction to

be performed by the district court, Mr. Breeden would receive $56,000 and no

more. This speculation about the jury’s intent assumes that the jury ignored the

verdict form’s admonition to compute damages “without regard to the percentage

of contributory negligence of plaintiff Bobby Joe Breeden or to the percentage of

negligence of defendants ABF Freight System, Inc. and St. Paul Fire and Marine

Insurance Company and the non-party Alfonso Gomez, Jr.” This unsupported

speculation is insufficient to overcome our presumption that the jury follows the

instructions which it is given. United States v. Cardall, 885 F.2d 656, 668 (10th

Cir. 1989). We hold that the district court erred in reducing Mr. Breeden’s

damages.




                                          -10-
C.    Alleged Trial Errors

      ABF asserts on cross-appeal that the trial court erred in denying its motions

for summary judgment and for judgment as a matter of law. ABF contends that,

as a matter of law, Mr. Breeden failed to establish ABF was a proximate cause,

rather than a condition, of the accident. ABF also contends that Mr. Breeden

failed to establish ABF violated any duty of care because he did not prove ABF’s

truck was present at the scene of the accident.

      Under Oklahoma law, the questions of causation and reasonable

forseeability are generally for the jury to resolve. Dirickson v. Mings, 910 P.2d

1015, 1020 (Okla. 1996). The evidence was sufficient to create a question of fact

for the jury about whether ABF’s driver was negligent in pulling onto the

shoulder at high speed without signalling or braking, in order to avoid Mr.

Breeden’s vehicle, and whether a reasonably forseeable consequence of ABF’s

negligence was that a driver following behind the truck would not have time to

respond to hazards in the roadway. Although contrary inferences could have been

drawn, that was a question for the jury. The jury was instructed on negligence,

concurrent causes, intervening cause, and the right to assume other persons would

obey the law. In light of the record and the jury instructions taken as a whole, we

conclude the district court did not err in denying ABF’s motions.


                                        -11-
      With respect to the duty of care, Mr. Breeden was unable to identify the

truck as belonging to ABF. However, the eyewitness testimony of Mr. Gomez

identified the truck he was following as an ABF truck. ABF’s attack on Mr.

Gomez’s credibility created an issue of fact properly resolved by the jury.

      ABF also claims error in the trial court’s exclusion from evidence of

several items proffered by ABF. We review the trial court’s decision to admit or

exclude evidence for abuse of discretion. Cartier v. Jackson, 59 F.3d 1046, 1048

(10th Cir. 1995). First, ABF urges error in the exclusion of evidence of the

settlement entered into between the Breedens and Mr. Gomez. Initially, the trial

judge excluded evidence of the settlement because ABF intended to introduce the

settlement for purposes that are impermissible under Fed. R. Evid. 408. The trial

court reiterated this holding during the trial. Subsequently, the Breedens both

testified at trial that they did not seek additional medical treatment in part because

of financial inability. ABF proffered evidence of the settlement for the limited

purpose of proving failure to mitigate damages. The trial court recognized that

the plaintiffs had opened the door to the relevance of such evidence, but found

that the prejudicial effect of letting in evidence of the settlement “would far

outweigh the probative value,” rec., vol. IV at 529, and excluded the evidence

under Fed. R. Evid. 403. We have examined the record and we are not persuaded

the trial court abused its discretion in so concluding.


                                         -12-
      ABF also urges error in the exclusion of several of what it characterizes as

medical business records. ABF’s proffered exhibit 50C is a letter from a

chiropractor, Dr. Gibson, to an unknown party, which purportedly quotes Mrs.

Breeden’s statement that she and Mr. Breeden declined further treatment because

they were “feeling fine.” ABF’s proffered exhibit 50I was the record of a

physical examination of Mr. Breeden by a Dr. McMurray. Our review of the

record convinces us that the trial judge did not abuse his discretion in excluding

this evidence.

      The district court’s judgment reducing the award of damages to Mr.

Breeden is REVERSED and the case is REMANDED for further proceedings.




                                        -13-
                             Appendix

                  [jury’s answers indicated in bold]

               VERDICT - Plaintiff Bobby Joe Breeden

I.   Plaintiff Bobby Joe Breeden’s Claim of Negligence

     (Answer Part A or Part B or Part C)

          A.       We, the jury, being duly empaneled and upon our oaths,
                   having found Bobby Joe Breeden was not contributorily
                   negligent, find in favor of plaintiff Bobby Joe Breeden
                   and against the defendants ABF Freight System, Inc.
                   and St. Paul Fire and Marine Insurance Company and
                   award actual damages to plaintiff Bobby Joe Breeden in
                   the amount of $                . (Answer Part 1 or Part 2
                   below.)

                   1.     In addition to the actual damages awarded
                          above, we, the jury, award plaintiff Bobby
                          Joe Breeden punitive damages in the sum
                          of $              , against defendant ABF
                          Freight System, Inc. (This amount may not
                          exceed the amount in Part A above.)

                   2.     We, the jury, award no punitive damages to
                          plaintiff Bobby Joe Breeden.

          B.       We, the jury, being duly empaneled and sworn upon our
                   oaths, find in favor of the defendants ABF Freight
                   Systems, Inc. and St. Paul Fire and Marine Insurance
                   Company and against plaintiff Bobby Joe Breeden.

       X C.        We, the jury, being duly empaneled and sworn upon our
                   oaths, find as follows:

           1.      Contributory negligence of plaintiff Bobby Joe Breeden

                                                             0     %


                                 -14-
            2.        Negligence of defendants ABF Freight System, Inc. and
                      St. Paul Fire and Marine Insurance Company

                                                              10    %

            3.        Negligence of non-party Alfonso Gomez, Jr.

                                                              90    %


                      (1, 2 and 3 must equal 100%)            100   %

      If you have found in subpart 1 above that the contributory
negligence of plaintiff Bobby Joe Breeden [is] 50% or less than the
combined percentages of the defendants ABF Freight System, Inc. and St.
Paul Fire and Marine Insurance Company and the non-party Alfonso
Gomez, Jr., answer the following:

            We, the jury, without regard to the percentage of
      contributory negligence of plaintiff Bobby Joe Breeden or to
      the percentages of negligence of defendants ABF Freight
      System, Inc. and St. Paul Fire and Marine Insurance
      Company, and the non-party Alfonso Gomez, Jr., award
      damages to plaintiff Bobby Joe Breeden in the amount of
      $ 561,906.00 . This dollar amount will be reduced by the
      court by the sum of the percentages established in Items 1 and
      3 above. (Answer Part 1 or Part 2 below.)

                     1.     In addition to the actual damages awarded
                            above, we, the jury, award plaintiff Bobby
                            Joe Breeden punitive damages in the sum
                            of $           , against defendant ABF
                            Freight System, Inc. (This amount may not
                            exceed the amount in the section above.)

                 X    2.    We, the jury award no punitive damages to
                            plaintiff Bobby Joe Breeden.




                                  -15-
