UNPUBLISHED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) 
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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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit. 
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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 
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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. 
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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 
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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 
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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 
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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. 
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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. 
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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. 
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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 

 
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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 
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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 
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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