William A. Mehojah and Fredricka Lou Mehojah,plaintiffs-Appellants v. Charles R. Drummond as Representative of the R.C. Drummond West Ranch Trust
56 F.3d 1213
10th Cir.
1995
Check Treatment

*1 and Fredricka A. MEHOJAH William Mehojah,Plaintiffs-

Lou

Appellants, representative R. DRUMMOND

Charles Ranch Drummond West R.C.

Trust, Defendant-Appellee. 93-5111.

No. Appeals,

United Court States

Tenth Circuit.

May (Sam him, Rice Withiam with G. Willaim brief) Withiam, Rice, &

on the Parmer OK, plaintiffs-appellants. Bigler, Cushing, for (Galen Brittingham D. L. Jon Starr brief) him, Amy Rumbaugh L. Haskins, Thomas, Atkinson, Glass, Nellis & Boudreaux, Tulsa, OK, defendant-appel- lee. McKAY, KELLY,

Before REAVLEY,† Judges. Circuit Circuit, sitting by designation. Reavley, † Fifth ‍​​‌‌​​‌‌‌​‌‌​‌‌‌‌​​​​‌​​‌​‌‌‌​‌‌‌​‌​‌​​​​​​​​‌​​‍The Honorable Thomas M. United States Appeals- Judge, States Court United *2 Jr., 5, 1990, KELLY, approximately Judge. January On 1:00 PAUL J. p.m., in the pas- the Trust its cattle action, diversity and Fre- William In this so, employees doing ture. and Before Mehojah from appeal the district drieka fence, visually inspected the Mr. Fairweather certain in their court’s exclusion including gap fence and the the water sur- against Drum- negligence action Charles area, rounding which was visible mond, representative of the R.C. day, point At that road. some later Ranch Trust. Drummond West thrоugh gap cattle broke fence the water and up the high-

climbed the embankment onto way. approximately p.m., At 7:00 the Meho- Background

jahs, travelling high- who west on the were A. way, a curve and collided with rounded sev- cattle, Mehojahs’ destroying eral of the Drummond West Ranch Trust The R.C. inflicting injuries car and serious Me- (the “Trust”) Osage pasture in leases land hojahs. Mehojahs brought against suit Oklаhoma, County, grazes on which it its Drummond, individually Mr. and aas cattle. In the winter Trust, representative alleging that the Fairweather, Mark pasture land from leased negligently cattle had been released into the Mr. Drummond. The fence cousin of inadequate. pasture when the fences pasture that crossed creek that ran around Mehojahs preju- later dismissed without adjacent through dice the suit Mr. Drummond in his permanent highway. fence Attached after the capacity. individual Not until stat- point the fence where crossed ute of run did the limitations had gap” a “water which is a creek was realize that Mr. Fairweather owned (here, temporary consisting of four structure result, question. the land in Mr. As wire) designed to break strands of barbed weather not a to the suit. was creek, by debris away if it is struck in the thereby leaving permanent intact. fence B. question, many years prior For date in trial, Before filed a the Trust motion “wing fence” on the east there had been seeking limine all evidence of exclude creek, extending point side of the night fact either on the the accident fence permanent where the attached after, or on the Mr. Fаirweather install- bridge rail gap fence to the water aed fence on the west side of the creek. highway crossed the where the creek. premised The motion in on limine was Rule permanent designed is a structure evidence, 407 of the Federal Rules of which escaping preven livestock onto the provides: gap the event the water When, event, an measurеs are after taken destroyed. There was fence is no such which, previously, if taken would have because, fence on the west side creek occur, likely made the event less July until was an there earthen berm dence of measures is not on sufficiently steep which was side culpable prove negligence admissible to or escape.' July cattle could not сonduct in the event. connection with highway department performed Oklahoma rule require the exclusion of evi- berm, bridge, work on removed dence of measures when of- graded so much the embankment that it was purpose, proving fered for such as another steep. No installed on less ownership, precau- despite fact west that the remov- side controverted, tionary measures, or im- might escape al of meant that cattle the berm peachment. gap that side the event water land, hearing destroyed. The owner Mr. Fed.R.Evid. 407. At the on the mo- Fairweather, limine, regularly inspected Mehojahs argued tion in the fence Rule prohibition that the berm re- 407’s on evidence of was aware had been inapplicable moved. measurеs jury. Mr. wing fence had been erected While we conclude that the court Fairweather, evidence, non-party. should not have excluded the who was a The dis- we do and, rejected find- not believe that the exclusion this constituted re- trict court error. granted versible applied, that Rule 407 the motion During the in limine. *3 request The mere for a much broader in- offer of to the court аs to Mr. made an given colloquy struction than or the between fence, Fairweather’s the court and counsel did not make control again disallowed the and the district feasibility primary issues in the case. ground. 407 Mr. evidence on the same Rule Despite language in- at trial that Fairweather also testified when struction, actually given the instruction embankment on the the state removed the merely prior approval indicated that creek, the nature of the west side of the required place State of Oklahoma was required installation of a fence business highway right-of-way. aon state 120). (Aplt.App. at on that side. specifically remainder of the instruction stat- Defendant, and the returned verdict legal duty ed that “an owner of cattle has the Mehojаhs appeal. reasonable exercise care its cattle pasture prevent within the enclosure and cat- Discussion highway.” Aplt. tle free on the App. at 50. Mehojahs appeal, argue that On in exclud the trial court abused its discretion Having reviewed the entire record includ- ing the evidence of the pleadings, we the view that the They measure. renew the mаde dispositive fact in this trial was apply not the trial court that Rule 407 should negligent placing whether the Trust was because Mr. Fair- under these circumstances cattle in a where one end was se- party. third weather was a non-defendant Indeed, only by gap cured water fence. only applies agree. 407 to a “[R]ule We trial, Mehojahs’ “neg- counsel stated that the actiоns;” voluntary it does not ‍​​‌‌​​‌‌‌​‌‌​‌‌‌‌​​​​‌​​‌​‌‌‌​‌‌‌​‌​‌​​​​​​​​‌​​‍ligence defendant’s ... is not so much the lack of Drum- by apply negligence mond non-defendants. Pau v. Yosemite Park and placing property the cattle on which was (9th Cir.1991). Co., 880, maintained_” Curry 928 F.2d 881 Aplee. improperly TLT-Babcock, v. Elec. See also Inc. Emerson Supp.App. at 70. Given the material issue at (4th Cir.1994) (“[E]vi Co., 397, 400 33 F.3d the evidence about construction subsequent reрairs be admitted (the by non- Mr. Fairweather by repairs performed those have been where owner) party following day property defendant.”); than Dixon someone other Mehojahs’ helped would not have case. Co., 573, v. International Harvester Indeed, is consistent Mr. such evidence Cir.1985) (“[Wjhere repairs were 583 testimony gap Fairweather’s that the water non-defendant, made Rule 407 does not barrier, although the fence was a reasonable evidence.”). reject bar the We the rule craft long-range problem solution to this was a dissent, unsupported ed gap fence. lieu of the water unworkable, applies 407 cases and that Rule requires “give § 2111 us to 28 U.S.C. defendants, not to actual but also to judgment after an examination of the record potential obvious defendants. See Dissent regard which do without to errors defects rights par not affect the substantial 61. The Evidence was adduced that a better ties.” See also Fed.R.CivJP. statute applies to both criminal and civil cases. fence should have been built. The — -, McAninch, -, argue by requesting jury instructions U.S. O’Neal (1995). 992, 997, statutory prohibition on 115 130 L.Ed.2d 947 about an Oklahoma S.Ct. Applying standard for right-of- construction of a fence on a state the nonconstitutional error, § way, tit. the Trust harmless we are satisfied Okla.Stat.Ann. evidence did not of build erroneous exclusion of the the issues verdict, over, influence on the ing, as well as control the fence before have a substantial 1216 (citing grave doubt as to whether it TLT-Babcock Fed.R.Evid. 407 adviso-

nor do we have note) added); ry effect. See United States v. (emphasis had such an committee’s see Cir.), Pau, (same). Jefferson, F.2d also 928 F.2d at 888 denied, cert. 502 U.S. S.Ct. majority, agree logic Like the with the (1991); Hinds v. Mo L.Ed.2d 194 General However, I our sister circuits. believe the (10th Cir.1993). tors, 1039, 1049 application facts this ease do not warrant AFFIRMED. of this from Rule 407. In the cases, leading the third that made the McKAY, Judge, dissenting: subsequent remedial measure was never a exаmple, defendant. For in TLT- appeal, On Babcock, (redesign the remedial measure of a excluding trial court abused its discretion *4 shaft) years fan was made several after the subsequent the evidence fence). (the gave by public events that wing rise to the suit a measure agency They that had no connection with argument made to the trial those renew the Pau, Similarly, events. apply the remedial mea- court that Rule 407 should not (erection sign) by sure of a road was made these circumstances because Mr. Fairweath- Service, the National Park party. er was a third As an which could not non-defendant alternative, underlying have been sued on the the that even if facts. 928 Dixon, In apply, plaintiff F.2d at 888. was Rule 407 does the evidence should injured through when a have tree branch came been admitted to demonstrate the feasi- bility building against cab of his tractor. prove of the fence and to his suit manufacturer, successfully he fact of control over the land introduced evi- because employer, Paper, Al- dence his International ‍​​‌‌​​‌‌‌​‌‌​‌‌‌‌​​​​‌​​‌​‌‌‌​‌‌‌​‌​‌​​​​​​​​‌​​‍Trust contested these issues at trial. had though only prevent modified the cab to such аcci- would reverse the alterna- ground, majority again, dents. 754 F.2d at tive I believe the has incor- 583. Once his employer rectly analyzed potential was not a defendant arguments, both of these be- protected by cause it comprehend reasoning. I am at the Worker’s a loss to its Com- pensation compound scheme. astonishing Its error has led to an and, my opinion, unjust result. The critical distinction in this ease is out, majority points strong As the there is sued, although subsequently never authority proposition that Rule 407 wing time Mr. Fairweather erected the apply subsequent to exclude remedi- (the accident) clearly after the he was by al measures made someone other than the potential defendant. I have found no cases TLT-Babcock, defеndant. Inc. v. Emerson where a remedial measure was Co., Cir.1994); Elec. 33 F.3d 397 Pau potential admitted when made an obvious Co., Curry Yosemite Park and 928 F.2d undisputed It defendant. that Mr. Fair- (9th Cir.1991); Hercules, Inc., 888 O’Dell v. weather, as the owner of the Cir.1990); 904 F.2d 1204 Dixon v. escaped, which the cattle could have been a Co., International Harvester 754 F.2d Thus, policy defendant in this suit. of (5th Cir.1985); Co., Lolie v. Ohio Brass (encouraging potеntial Rule 407 defendants (7th Cir.1974) curiam); (per remedy hazardous conditions without fear Co., Steele v. Wiedemann Machine their actions will be used as evidence (3d Cir.1960). 380, 382 The reason for the them) against applies to Mr. Fairweather. exception is that only The admit that the reason he policy

Rule 407 is based on the of encour- they was not to the suit was that aging potential remedy defеndants to haz- not discover he owned the land until after the applicable ardous conditions without fear that their statute of limita- against actions will be used as Although evidence tions. I do not doubt the Meho- nondefendant, however, jahs’ A good ease, them. will not application faith in this taking be inhibited from remedial mea- Rule 407 to these facts would cre- sures such actions are into allowed ate a for abuse in other cases. a defendant. Plaintiffs could po- choose to sue some right-of-way, squarely have a state con- in order to evidence defendants tential right- re- of its potential defendants’ tested issues control over the other of con- of-way feasibility This would erecting measures admitted. of medial in Rule policy embodied рublic fence. The second sentence of Rule 407 travene general excepts rule evidence is offered dis- Mehojahs also contend that the solely purpose establishing owner- by allowing the court erred defendant trict ship, feasibility. Accordingly, constructing contest Mehojahs argue that the trial erred allowing them rebut fence without excluding evidence that defеndant’s responds fence. built Mr. such fence properly evidence was nonetheless excluded day after accident. In the weather exceptions in Rule 407 still requested the defendant course subject imposed by Rules constraints jury instructions be that certain additional through and the evidence here was close of the evidence. given prejudicial proba- cumulаtive and more than noted that defendant tive. right-of-way, on the state built judicial notice of asked that the court take . The threshold raised the Me- *5 69, § 1211 of the Oklahoma tit. Okla.Stat. hojahs’ is the con- whether Statutes, provides that it is a misde- which feasibility the of and control. tested issues a a person for fence on meanor a construct It is clear that those issues contested right-of-way. The highway proposed state fully and that trial court of the aware as follows: instructions read requested that fact. After the filed its that It is the in the State of Oklahoma law jury concerning additional instructions person or a any who constructs maintains statutory prohibition building on on fences upon right-of-way any desig- or right-of-ways, hearing held state a highway guilty of nated state or federаl it had on the matter. The court noted that day such violation a misdemeanor and each previously ruled admission of the evi- separate be a offense. continues shall of based on are instructed that if the landowner You 407, aspect exclusionary of Rule and stat- case had constructed the Defendant this problem as ed the follows: west a fence on the side creek All I’m right. THE As far as COURT: permanent of fence to west side concerned, you’re asserting he [Mr. highway right- bridge across state right a no to do it and then weather] had committing of-way, been he would have it, it he after it occurred under law. misdemeanor Oklahoma it seems me Federal Rule 30-31). The in- (Appellant’s App. at actual it makes admissible. jury slightly given to the differed structions rule, subsequent mеa- stating in requested, pertinent from those rule, apply.... It shows sure part: it. He that he out there and made went authority to An of cattle has no owner it, of he? had control didn’t right of place highway on a state honor, I Your would MR. STARR: way of of prior approval without the State control. that it not show that he had does However, cattle an owner of Oklahoma. trying to exercise control It shows he duty legal has the to exercise reasonable right way. of But over state its cattle within the care he con- not under the law had whether or prevent cattle from enclosure and trol— highway. free 50). at (Appellant’s App. I’m far as concerned Mehojahs argue requesting THE COURT: So as taking contrary position. On you’re concerning the Oklahoma statu-

instructions 407; asserting you’re tory prohibition of fence on one hand on construction you say any other hand he didn’t have protection fendant in effect has waived the right it at all. to do And as a matter Rule for it would be unfair not to allow fact, jury get would the idea plaintiff to meet the showing issue instruction, right since he had no he conflicting [the] defendant’s conduct—the couldn’t do it. The fact is he did it. remedial measures.” 2 Wein- stein’s Evidence ¶407[04] 407-30 to -31 131-82) (Appellant’s App. (emphasis add- (1993) (citations omitted). ed). Despite the court’s realization that the contesting bring- defendant was thus recognize misuse play, to Rule 407 into measures, evidence of even when court declined to allow the evidence in. That purpose acceptable offered for a under Rule appeared decision to be based on the court’s Clearly, question ‍​​‌‌​​‌‌‌​‌‌​‌‌‌‌​​​​‌​​‌​‌‌‌​‌‌‌​‌​‌​​​​​​​​‌​​‍initial determination that it would not incor- upon bear porate the defendant’s instruction negligence. However, this court jury into its final instructions: has held that Rule 407 narrowly should be Well, construed, undisputed THE COURT: and that evidence of is, though, dence here the fence on remedial measures should the east be admitted where apparently put up by any purpose side was there exists the owner of other than property, negligence. and the one that’s on the Rimkus Northwest Colorado now, Corp., west side Ski was determined should Cir. 1983); go up occurred, Serv., after this incident Herndon v. Flying of which Seven Bar Inc., anything hasn’t Cir.1983), heard about shows, you fence.... cert. denied Piper sub nom. Corp. v. Aircraft state, there, Serv., Inc., Flying that he Seven Bar 466 U.S. (1984). misdemeanor or no misdemeanor. 104 S.Ct. He had 80 L.Ed.2d 553 proper safeguard sufficient control that he did that. in such cases is to instruct *6 jury that its consideration of the evidence ISo think as as this lawsuit is far is to be limited to those purposes other and just things concerned we’ll exactly leave in is not to be negligence. considered as now, shape they and I doubt I’ll if Rimkus, 1064; Herndon, See 706 F.2d at get instructing into on this misdemeanor F.2d at 1330. has, business since the owner the evidence shows, placed in the other fence there that Incredibly, majority holds that the evi- there, and had that fence in been dence should have pur- been admitted for all there, cattle, obviously the it seems to poses, including proof negligence, but then show, gotten would not have high- onto the finds that the error was harmless. How the way. majority can plaintiffs conclude that the 135-36). (Appellant’s App. at deprived As set forth legal right of their graphi- show above, regardless of what the district cally court’s negligence and control the act initial determination as to the defendant’s of Mr. Fairweather and then conclude that been, instruction have both of deprivatiоns singly these and cumula- ultimately gave jury tively beyond modified are harmless is me. This con- so, version of that instruction. When it did particularly baffling clusion is since this case the defendant’s controversion of its control plaintiffs against involved innocent defen- over right-of-way and the of dants who had non-delegable duty pre- there, erecting the previous- which had vent escape of these cattle. Since the ly parties’ been evident in the non-delegable motions Trust had a duty to take rea- hearings chambers, suddenly care, sonable it was essential for jury placed directly jury. before Consequent- know it would have been feasible for the ly, clearly provided Rule 407 (i.e., the evi- Trust to do more than it inspect did fence) dence of the (and, view, fence was majority under the for the not barred. excep- The rationale behind jury they to be told that could consider the that, tion Rule 407 simply by raising actions in determining negli- questions of feasibility, control or gence). “[the] de- recognized As the trial court (Appel- 132), jury instruction con- App. lant’s

cerning right to on a state lack of a build jury only have left the

right-of-way could that the defendant was impression

with the

legally prior from barred accident, therefore ‍​​‌‌​​‌‌‌​‌‌​‌‌‌‌​​​​‌​​‌​‌‌‌​‌‌‌​‌​‌​​​​​​​​‌​​‍could not have failing to do so. negligent

been

impression not countered the testimo-

ny as to of Mr. Fairweather the need testimony not

such of control questions

address the and feasibili-

ty jury instruction. raised and the

Since the exclusion essentially impression

resulting removed negligence jury, right plain- a substantial

error affected

tiffs, thus, was far harmless.

fact, judge properly instructed the since the law,

jury the defen- under Oklahoma duty non-delegable

dants had a .escaping,

cattle I am unable to discern

any found for other basis have I would therefore vacate the defendants.

judgment for a new and remand trial. *7 America,

UNITED STATES

Plaintiff-Appellee,

Huey Grey, and Ann P. GREY P.

Defendants-Appellants. 94-3217, 94-3218.

Nos. of Appeals,

United States Court

Tenth Circuit.

May