## Facts

- Clifford R. Bannister, a Texas resident, was catastrophically injured in a one-car accident on an Oklahoma roadway whose centerline divided the Town of Noble and the City of Norman.
- Cleveland County performed all road maintenance on both sides of the road.
- Bannister drove on the Noble side, crested a hill, and encountered a dump truck parked in his lane with road workers filling potholes.
- Bannister crossed the centerline to avoid the truck; a worker then stepped over the centerline into Bannister’s path, and Bannister swerved off the road.
- Bannister suffered severe injuries resulting in paraplegia.
- Bannister sued Noble and Norman for negligence, alleging failure to maintain the road properly and/or to warn motorists of the obstruction and work activity.
- The jury found Bannister 35% comparatively negligent and found Noble and Norman (combined) 65% negligent, awarding damages accordingly.
- At trial, the court admitted videotapes depicting Bannister’s physical condition and daily functioning, including a “Day in the Life” film; an edited compilation using admitted segments was used in closing argument.
- Before the appeal was argued, Norman settled with Bannister; Noble remained the appellant.

## Issues

1. Whether proximate cause should have been decided as a matter of law because a road worker’s conduct was a superseding cause, rather than submitted to the jury.
2. Whether the jury instructions, read as a whole, were conflicting or misleading regarding municipal duty, negligence, and liability for acts of agents/servants.
3. Whether admitting the “Day in the Life” and other videotapes (and allowing an edited compilation in closing) was an abuse of discretion due to unfair prejudice.
4. Whether alleged attorney misconduct and admitted character-related testimony caused substantial prejudice requiring a new trial.

## Decision

- The Tenth Circuit affirmed the judgment for Bannister.
- The district court properly submitted proximate cause and any superseding-cause theory to the jury.
- The jury instructions, considered in their entirety, were not conflicting and adequately stated Oklahoma negligence law.
- The district court did not abuse its discretion in admitting the videotapes and permitting use of an edited compilation limited to admitted evidence.
- Alleged attorney misconduct and challenged testimony did not show substantial prejudice warranting reversal.

## Legal Principles

- Under Oklahoma law, proximate cause and intervening/superseding cause are ordinarily jury questions and are taken from the jury only when the evidence clearly shows no causal connection or permits only one reasonable conclusion.
- An intervening act does not relieve a defendant of liability as a superseding cause when the intervening conduct is reasonably foreseeable in light of the risk created by the defendant’s negligence.
- Jury instructions are reviewed as a whole; reversal is appropriate only if the instructions mislead the jury or inadequately state the governing law.
- Admission of demonstrative and audiovisual evidence is reviewed for abuse of discretion; relevant evidence may be excluded only if unfair prejudice substantially outweighs probative value.
- A “Day in the Life” video may be admitted to show the extent and practical effects of injuries and damages when properly limited and not unfairly inflammatory.
- Attorney misconduct warrants a new trial only upon a showing of substantial prejudice affecting the verdict.

## Conclusion

The Tenth Circuit upheld a comparative-negligence verdict arising from unsafe roadwork conditions, holding that causation and any superseding-cause theory were for the jury, the instructions were not misleading, and the trial court acted within its discretion in admitting injury-illustration videotapes and rejecting claims of prejudicial trial conduct.


Bannister v. Town of Noble, 812 F.2d 1265 (10th Cir. 1987)