*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

** The Honorable James H. Payne, Chief District Judge, Eastern District of

Oklahoma, sitting by designation.

F I L E D

United States Court of Appeals

Tenth Circuit

JAN 29 2004

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT MATTHEW VIALPANDO,

individually and as personal representative

of the estate of Leigh Anne Vialpando,

Plaintiff-Appellant,

v. No. 02-8029

COOPER CAMERON CORPORATION,

a Delaware corporation,

Defendant-Appellee.

(D.C. No. 00-CV-12-B)

(D. Wyoming)

ORDER AND JUDGMENT*

Before SEYMOUR, BRISCOE, Circuit Judges, and PAYNE, Chief District Judge.**

Plaintiff Robert Matthew Vialpando, appearing individually and as personal

representative for the estate of Leigh Anne Vialpando, appeals a jury verdict in favor of

defendant Cooper Cameron Corporation in this wrongful death action. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
1

 Cooper Cameron is a Delaware corporation with its principal place of business in

Houston, Texas.

2

I.

This case arises out of a fatal automobile accident that occurred on Wyoming

Highway 372 at approximately 12:50 p.m. on Saturday, February 21, 1998. Paul Kalivas,

an employee of defendant, was driving a full-sized Chevrolet pickup from the company

headquarters in Rock Springs, Wyoming, to a job site approximately 75 miles northwest

of Rock Springs. Kalivas approached a “T” intersection where County Road 6 intersected

with the eastern edge of the highway. He observed a Pontiac Grand Am traveling

westbound on County Road 6 toward the highway. According to Kalivas, the Grand Am

slowed as it approached the intersection, but did not stop at the stop sign before beginning

a left-hand turn onto the highway. Kalivas slammed on the brakes and swerved the

pickup to the left, but his pickup collided with the Grand Am in the southbound lane of

Highway 372 near the western fog line. The collision crushed the driver’s side of the

Grand Am and forced both vehicles off the edge of the highway. The driver of the Grand

Am, Leigh Anne Vialpando, was killed and her minor daughter, who was a passenger in

the Grand Am, was seriously injured. Kalivas sustained an injury to his neck, but was not

hospitalized.

Plaintiff filed this diversity action against defendant1 on behalf of himself and as

personal representative of the estate of his wife. The complaint alleged, in pertinent part,
3

that Kalivas was driving in excess of the posted speed limit and that the victim had

stopped her vehicle at the intersection before turning onto the highway. Based upon these

allegations, as well as upon allegations of negligence on the part of defendant directly

(i.e., failing to exercise reasonable care in the maintenance of the pickup and in hiring

Kalivas), the complaint asserted claims for wrongful death and negligent infliction of

emotional distress under Wyoming state law. The district court granted partial summary

judgment in favor of defendant on the negligent infliction of emotional distress claim. 

Plaintiff’s wrongful death claim proceeded to trial. The basic facts of the collision

and its aftermath were presented to the jury in the form of testimony from Kalivas, the

only surviving eyewitness to the collision, and Wyoming law enforcement officers who

responded to the accident scene. Kalivas testified that he was driving the pickup at a

speed of 70 miles per hour prior to the collision, and that Vialpando did not stop before

turning onto the highway. Both sides presented expert testimony by accident

reconstruction specialists. Plaintiff’s expert witness, Thomas Green, opined that Kalivas

was driving the pickup at a speed of 87-90 miles per hour, well in excess of the posted

speed limit of 65 miles per hour, prior to initiating his avoidance maneuvers. Green

further opined that, if Kalivas had been driving his pickup at a speed of 70 miles per hour

or less, he could have stopped the pickup short of the point of impact and avoided the

collision. Green opined that Vialpando stopped at the intersection prior to attempting to

turn onto the highway. In contrast, defendant’s expert, Richard Fay, opined that the
4

collision occurred because Vialpando did not stop at the intersection and inappropriately

entered the highway in the path of Kalivas’ pickup. Fay criticized Green’s analysis and

his estimates of the driving speed of the pickup. Fay opined that Kalivas was driving

approximately 70 miles per hour immediately prior to initiating his avoidance maneuvers. 

Fay also opined that Kalivas’ avoidance maneuvers were normal, reasonable, and

prudent, and that a collision would have occurred even if Kalivas had steered his pickup

to the right instead of to the left (an action plaintiff’s counsel suggested might have

avoided the accident).

The district court granted judgment as a matter of law in favor of defendant on

plaintiff’s allegations that defendant failed to exercise reasonable care in the maintenance

of the pickup and the hiring of Kalivas. As regards defendant, only the issue of its

vicarious liability for Kalivas' alleged negligent driving remained. The jury found that

defendant was negligent, but that its negligence was not a proximate cause of injury and

damage to plaintiff. The jury further found that Leigh Anne Vialpando was negligent and

that her negligence was a proximate cause of injury and damage to plaintiff. The jury

determined that defendant was 10% at fault and Leigh Anne Vialpando was 90% at fault. 

The district court entered judgment on the verdict and subsequently denied plaintiff's

motion for new trial.
5

II.

Choice of law

In a diversity case, we apply the substantive law of the forum state. E.g., Klaxon

Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 495-97 (1941). Thus, we agree with the

parties and the district court that Wyoming law governs this appeal.

Sudden emergency doctrine

Plaintiff contends the district court erred in instructing the jury regarding the

sudden emergency doctrine. We review for abuse of discretion a district court’s decision

to give a particular jury instruction. See Quigley v. Rosenthal, 327 F.3d 1044, 1062 (10th

Cir. 2003). In doing so, we also review de novo whether, as a whole, the instructions

correctly stated the governing law and provided the jury with an ample understanding of

the issues and applicable standards. See Reed v. Landstar Ligon, Inc., 314 F.3d 447, 450

(10th Cir. 2002).

Plaintiff’s primary claim at trial was that Kalivas acted negligently prior to the

accident by excessively exceeding the posted speed limit and steering his pickup to the

left into the southbound lane of the highway. In its instructions to the jury, the district

court included a series of instructions regarding generally applicable assumptions and

duties of drivers under Wyoming law. Instruction 24 stated that, “[i]n the absence of

reasonable cause to believe otherwise, every driver has a right to assume that other

persons will obey the law and exercise due care.” ROA at 114. Instruction 25 stated, in
6

part, that “[v]iolation of a statute is evidence of negligence.” Id. at 116. The instructions

then outlined various duties imposed on drivers under Wyoming’s Uniform Act

Regulating Traffic on Highways. In particular, Instruction 27 noted that, under Wyo.

Stat. Ann. § 31-5-209, a vehicle is required to “be driven as nearly as practicable entirely

within a single lane and shall not be moved from the lane until the driver has first

ascertained that the movement can be made with safety.” Id. at 117. Further, Instruction

30 noted that Wyo. Stat. Ann. § 31-5-301(a) provided that “[n]o person shall drive a

vehicle on a highway at a speed greater than is reasonable and prudent under the

conditions and having regard to the actual and potential hazards then existing.” Id. at

120. Instruction 31 stated that, under Wyo. Stat. Ann. § 31-5-301(b), it was

impermissible for a person to “drive a vehicle on a highway at a speed in excess of

maximum limits.” Id. at 121.

The district court also gave what the parties have characterized as a series of

instructions on the sudden emergency doctrine. The first such instruction was given by

the district court during plaintiff’s case-in-chief, after plaintiff’s counsel questioned

Kalivas regarding statements in a Wyoming state publication that allegedly advised

drivers’ license applicants to steer to the right in the event another vehicle appeared in

their lane. The district court stated to the jury:

Just a minute, [plaintiff’s counsel]. At this point so that there’s no

confusion, I will read the jury an instruction that I intend to give, and that is

this: Statutes and ordinances or other regulations or rules requiring motor

vehicles to be driven on the right-hand side of the highway or street are not
7

intended to and do not prohibit a motorist from driving to the left of the

center of the highway or street in trying in an emergency to avoid an

accident.

Id. at 693. The district court included in its official set of jury instructions two additional

instructions which the parties allege touch upon the sudden emergency doctrine. 

Instruction 36 stated:

Where a person finds himself confronted with a sudden emergency

which was not brought about by his own negligence, such person has a legal

right to do what it appears that he should do, and that so long as he acts as a

reasonable and prudent person as others would have done under similar

circumstances to avoid injury, he will not be deemed negligent although it

might thereafter appear that some other course of action would have been

safer.

Id. at 126. Instruction 37 stated:

Statutes, ordinances, or other regulations or rules requiring motor

vehicles to be driven on the right hand side of the highway or street are not

intended to and do not, prohibit a motorist exercising reasonable care from

driving to the left of the center of the highway or street in trying, in an

emergency, to avoid an accident.

Id. at 127.

Plaintiff contends the sudden emergency doctrine has been abrogated by

Wyoming’s adoption of comparative fault principles and thus is no longer an accurate

statement of Wyoming law and, even assuming the doctrine remains viable under

Wyoming law, the district court’s instructions were not supported by the evidence at trial. 

Further, plaintiff contends Instruction 37 was an inaccurate statement of the law. Plaintiff

also contends he was unfairly prejudiced by the manner in which the district court
8

instructed the jury on the sudden emergency doctrine in the middle of plaintiff’s direct

examination of Kalivas. We address these arguments in order.

Validity of sudden emergency doctrine under Wyoming law

Plaintiff contends that Wyoming’s adoption of comparative fault principles

effectively resulted in abrogation of the sudden emergency doctrine. He argues that the

sudden emergency doctrine is incompatible with comparative fault principles because the

doctrine impermissibly implies a different standard of care, unduly focuses on one aspect

of the case, and confuses the issues of comparative negligence.

Plaintiff’s overriding point, that the sudden emergency doctrine did not survive

Wyoming’s adoption of comparative fault principles, was recently rebutted in Roberts v.

Estate of Randall, 51 P.3d 204 (Wyo. 2002). In Roberts, the plaintiffs filed a negligence

action arising out of a collision between two snowmobiles on a national service forest

road. The trial court rejected plaintiffs’ request for an instruction on the sudden

emergency doctrine, concluding the doctrine did not survive Wyoming’s enactment of

comparative negligence principles. On appeal, the Wyoming Supreme Court rejected the

trial court’s conclusion and affirmed the continuing validity of the sudden emergency

doctrine:

[W]e have long considered an emergency as one of the circumstances to be

considered when determining whether a party used proper care. Both at

trial and on appeal, our courts have reviewed the sufficiency of the evidence

to determine if the [sudden emergency] instruction is warranted. Before
2

 Prior to the issuance of Roberts, plaintiff filed a motion asking us to certify the

issue of the viability of the sudden emergency doctrine to the Wyoming Supreme Court. 

In light of Roberts, plaintiff’s motion is now moot.

9

enactment of the comparative negligence statutes, we did not consider it a

form of contributory negligence the existence of which would bar recovery,

but rather a special circumstance relevant to determining negligence. Now

that comparative negligence standards apply, we continue to see that such

circumstances are relevant to a jury’s proper apportionment of fault and

hold that comparative negligence statutes have not eliminated the necessity

of the sudden emergency doctrine.

Id. at 213. In light of Roberts, we hold the district court did not err in concluding the

sudden emergency doctrine survived Wyoming’s adoption of comparative negligence

principles.2

Supporting evidence for sudden emergency instructions

Plaintiff contends the evidence presented at trial did not warrant an instruction on

the sudden emergency doctrine. In particular, plaintiff argues that Kalivas was not

confronted with a sudden unexpected emergency because the evidence at trial indicated

he was aware of Leigh Anne Vialpando’s vehicle well prior to it entering the highway. 

Further, plaintiff argues that Kalivas’ own negligence in excessively exceeding the speed

limit and steering his pickup into the southbound lane of the highway caused or

contributed to the claimed emergency.

In Roberts, the court outlined the purpose of the sudden emergency doctrine:

[W]e have recognized that the existence of an emergency is not an
10

affirmative defense, but [rather] one of the circumstances to be considered

by the finder of fact in determining whether a party has acted negligently. 

When one must act suddenly in the face of imminent danger he is not

required to use the same degree of care as at other times, but this rule is

applicable only when the person claiming its advantage has been placed in a

position of sudden peril without his own fault. The emergency rule does

not mean that any different standard is to be applied: the conduct required is

still that of a reasonable person under the circumstances as they would

appear to one who was using proper care, and the emergency is only one of

the circumstances.

51 P.3d at 211 (internal quotations and citations omitted). The Roberts court also

outlined a four-part test “helpful to trial courts in determining whether the evidence

supports giving [a sudden emergency] instruction.” Id. at 213. Under that test, a sudden

emergency instruction will be warranted if there is sufficient evidence that: (1) “the

claimed emergency actually or apparently existed”; (2) “the perilous situation was not

created or contributed to by the person confronted”; (3) “alternative courses of action in

meeting the emergency were open to such person or there was an opportunity to take

some action to avert the threatened casualty”; and (4) “the action or course taken was

such as would or might have been taken by a person of reasonable prudence in the same

or similar situations.” Id. at 211-12. The Roberts court emphasized, however, that “trial

courts should be careful to leave to the jury those questions that juries must decide while

refusing to submit the instruction when doing so would result in an improper comment on

the evidence and confuse the jury.” Id. at 213.

Applying those principles, we conclude the evidence presented at trial was

sufficient to support giving the sudden emergency instructions. The first part of the four-
11

part test, the existence of an emergency situation, was sufficiently supported by Kalivas’

testimony that the Grand Am failed to stop at the intersection and entered his lane on the

highway as he was approaching the intersection, leaving him no time to deliberate about a

course of action to avoid a collision. See Roberts, 51 P.3d at 213 (suggesting the

presence of an oncoming snowmobile in plaintiff’s lane of travel “might be sufficient to

permit the instruction” as long as plaintiff did not create or contribute to the emergency);

Haderlie v. Sondgeroth, 866 P.2d 703, 718 (Wyo. 1993) (characterizing as “logical” trial

court’s reasoning that a sudden emergency would be applicable “to a driver[] finding

someone in his own lane”); see also Divilly v. Port Auth. of Allegheny Co., 810 A.2d

755, 759 (Pa. Commw. Ct. 2002) (concluding presence of oncoming car in bus driver’s

lane of travel would constitute sudden emergency); Piper v. McMillan, 730 N.E.2d 481,

489 (Ohio Ct. App. 1999) (indicating sudden emergency doctrine encompasses object,

such as oncoming vehicle, appearing immediately in front of another vehicle); cf.

Wilhelm v. Cukr, 230 P.2d 507, 509 (Wyo. 1951) (noting bus driver who regularly drove

on highway was familiar “with the fact that vehicles came out of the intersecting county

road upon [the] highway”). Although plaintiff argues this cannot be considered an

emergency because Kalivas admitted he visually tracked the Grand Am as it approached

the intersection, we disagree. Given the evidence at trial and the applicable traffic laws,

we conclude that a reasonable person in Kalivas’ situation would not have expected the

Grand Am to fail to stop at the stop sign and enter the highway in front of an oncoming
12

vehicle traveling at highway speed. See ROA at 344 (testimony of Trooper Barry Tippy

that Kalivas had the right to assume the way was clear to travel through the intersection);

see generally Gerdom v. Gerdom, 444 P.2d 34, 35-36 (Wyo. 1968) (defining

“emergency,” for purposes of applying doctrine, as “an unforeseen occurrence or

condition” or “a sudden or unexpected occasion for action”). 

With respect to the second part of the test, we conclude there was sufficient

evidence to allow the jury to find that Kalivas did not create or contribute to the

emergency. Although plaintiff presented expert testimony suggesting that Kalivas was

traveling at an excessive rate of speed as he approached the intersection, defendant

countered that evidence. In particular, Kalivas testified he was driving no faster than 70

miles per hour as he approached the intersection, and defendant’s expert witness testified

that the physical evidence supported Kalivas’ testimony on this point. Further, there was

no evidence indicating that, if Kalivas was in fact driving 70 miles per hour, his conduct

would have caused or contributed to the driver of the Grand Am misjudging the time

available to cross the northbound lane of the highway and enter the southbound lane. As

for Kalivas’ action in steering his pickup into the southbound lane, that had nothing to do

with the Grand Am entering the highway; instead, that action was taken in direct response

to the Grand Am’s entry.

The third and fourth parts of the test were also satisfied. At trial, it was plaintiff’s

position that Kalivas could have steered the pickup to the right to avoid the collision. 
3

 Even assuming, arguendo, that the appearance of the Grand Am in the

northbound lane of the highway did not constitute a sudden emergency, we would be

reluctant to conclude that plaintiff was prejudiced by the instructions on the sudden

emergency doctrine. Those instructions would have come into play only when the jury

was considering whether Kalivas responded reasonably to the entry of the Grand Am onto

the highway. Notably, although plaintiff’s counsel suggested Kalivas could have steered

his pickup to the right rather than the left, there was no evidence indicating that another

more reasonable course of action was available to Kalivas. Indeed, Trooper Tippy, the

lead law enforcement investigator of the accident, testified that Kalivas’ response was

natural and that it would have been legal for Kalivas to cross the center line of the

highway in an attempt to avoid a collision. Further, the focus of plaintiff’s expert

13

Notwithstanding that position, two witnesses testified that Kalivas’ decision to steer his

pickup to the left was a “natural” or “reasonable” and “prudent” reaction in response to

the Grand Am appearing in Kalivas’ lane of travel. ROA at 339 (testimony of Trooper 

Tippy), 938 (testimony of defendant’s expert, Richard Fay). 

Finally, it is true, as noted by plaintiff in his supplemental pleadings, that the

Roberts court stated that the sudden emergency doctrine “is not relevant in ordinary motor

vehicle accident cases.” 51 P.3d at 213. However, the court further stated that “some

‘emergencies’ must be anticipated, and the actor must be prepared to meet them when he

engages in an activity in which they are likely to arise.” Id. (internal quotations omitted). 

Further, the question of whether the sudden emergency doctrine applies hinges on the

four-part test outlined above and not simply on the fact that an accident involved a motor

vehicle. Thus, for the reasons outlined above, we conclude the accident at issue in this

case cannot be characterized as an “ordinary motor vehicle accident” and the district court

did not err in concluding the evidence warranted a sudden emergency instruction.3
testimony was that Kalivas was excessively speeding prior to the accident and that he

could have avoided the collision if he had been driving 70 miles per hour or less. Thus, it

appears the sudden emergency instructions had little, if any, effect on the outcome of the

case.

14

Accuracy of Instruction 37

Plaintiff complains that, even if a sudden emergency instruction was warranted,

Instruction 37 was an inaccurate statement of the law. According to plaintiff, the

instruction “fail[ed] to inform or guide the jury as to its obligation to first determine

whether there [wa]s an emergency,” and also “fail[ed] to instruct on the concept that a

motorist’s negligent conduct is not forgiven if that motorist contributed to or caused the

emergency.” Aplt. Br. at 41.

As noted above, Instruction 37 stated:

Statutes, ordinances, or other regulations or rules requiring motor

vehicles to be driven on the right hand side of the highway or street are not

intended to and do not, prohibit a motorist exercising reasonable care from

driving to the left of the center of the highway or street in trying, in an

emergency, to avoid an accident.

Id. at 127. This language, taken directly from Dallason v. Buckmeier, 284 P.2d 386, 390

(Wyo. 1955), is a valid statement of Wyoming law. Indeed, in Roberts, the court cited

Dallason and quoted with approval the same language included in the instruction. 

Although plaintiff complains that the instruction failed to refer to certain elements of the

four-part test for determining the applicability of the sudden emergency doctrine, it is

clear those points were covered in Instruction 36. Thus, as noted in Instruction 36, the
15

jury first had to determine whether a sudden emergency existed and whether Kalivas

created or contributed to the emergency. The language of Instruction 37 would have

come into play only if the jury found the existence of an emergency, and only to the

extent the jury was considering whether Kalivas acted reasonably in response to that

emergency.

Timing of initial instruction on sudden emergency doctrine

Plaintiff contends the district court’s decision to read the language of Instruction

37 to the jury during Kalivas’ testimony was erroneous and prejudicial. In particular,

plaintiff asserts the district court’s prefacing remarks “implied, if not outright stated, that

plaintiff’s counsel’s line of questioning [of Kalivas regarding whether he should have

steered to the right] was improper based upon some ‘confusion’ as to the law or

alternatively that plaintiff’s counsel was somehow trying to ‘confuse’ the jury.” Aplt. Br.

at 44. Plaintiff further asserts that the giving of the instruction “tended to indicate a belief

by the Court that: (1) Kalivas was, in fact, confronted with an emergency; (2) it was

therefore proper to turn to the left in order to avoid a collision; and, (3) the jury should

not be confused about this issue.” Id. Finally, plaintiff asserts the district court’s actions

“unduly emphasized one instruction over all of the others.” Id.

In Hynes v. Energy West, Inc., 211 F.3d 1193 (10th Cir. 2000), we addressed a

similar issue in a case also arising out of the District of Wyoming. There, the appellant
16

claimed the district court “made a number of improper comments to the jury during the

course of the trial.” Id. at 1201. In particular, appellant took issue with the district

court’s decision, upon admitting a certain item of evidence, to give the jury a mid-trial

instruction regarding the duty of a gas company to maintain and supervise its facility. On

appeal, we found no error. In reaching this conclusion, we outlined the applicable

standard of review:

The trial court has wide discretion in stating facts and commenting

on the evidence. It is within the trial court’s power to direct the trial in a

manner reasonably thought to bring about a just result and in pursuit of that

goal nonprejudicial comments may be made from time to time. Conduct of

trial proceedings will not be disturbed unless it affirmatively appears from

the record that the trial court abused its discretion.

Id.

Applying that standard of review here, we conclude the district court’s decision to

give a mid-trial instruction on the sudden emergency doctrine did not rise to the level of

an abuse of discretion. As noted, the sudden emergency doctrine remains viable under

Wyoming law and the evidence presented in this case was sufficient to warrant giving an

instruction on the doctrine. Further, contrary to plaintiff’s assertion, merely giving the

mid-trial instruction did not indicate the trial court’s view of the evidence. Instead, it

appears the mid-trial instruction was intended to rebut plaintiff’s counsel’s attempts to

persuade the jury, through questioning of highway patrol officers, that it was necessarily

illegal for Kalivas to steer his vehicle into the southbound lane of the highway. 

Although we reject the plaintiff’s claim of error in this case, we caution the district
4

 The tendered instruction stated:

You are instructed that there is a presumption that Leigh Anne

Vialpando was exercising due and proper care for the protection of her

person and the preservation of her life at the time of the collision. This

presumption arises from the instinct of self-preservation and the disposition

of persons to avoid personal harm. This presumption is not conclusive, but

is a matter to be considered by the jury, in connection with all of the other

17

court regarding its practice of giving mid-trial instructions. At the time this case was

tried, Federal Rule of Civil Procedure 51, which addresses “Instructions to jury,” stated

only that a court, “at its election,” could “instruct the jury before or after argument, or

both.” Fed. R. Civ. P. 51 (2001). As recently amended (effective December 31, 2003),

Rule 51 is now more clear, granting a district court authority to “instruct the jury at any

time after the trial begins and before the jury is discharged.” See Fed. R. Civ. P. 51(b)(3). 

Importantly, however, Rule 51 also expressly now requires a district court to “inform the

parties of its proposed instructions . . . before instructing the jury,” id. at (b)(1), and to

“give the parties an opportunity to object on the record and out of the jury’s hearing to the

proposed instructions.” Id. at (b)(2). Thus, a district court can no longer give the jury a

mid-trial instruction without first advising the parties of its intent to do so and giving the

parties an opportunity to object to the proposed instruction. 

Refusal to instruct on presumption of due care in favor of decedent

Plaintiff contends the district court erred in refusing his tendered instruction

“informing the jury that Leigh Anne [Vialpando] was entitled to a rebuttable presumption

that she exercised due care.”4 Aplt. Br. at 48. Applying an abuse of discretion standard,
facts and circumstances of the case.

ROA at 67.

18

we find no error on the part of the district court in refusing the tendered instruction. See

Quigley, 327 F.3d at 1062.

The Wyoming Supreme Court “has recognized the validity of the presumption that

in the absence of eye witnesses to [an] accident or other evidence sufficient to dispel or

rebut the presumption, the decedent, acting on the instinct of self-preservation, was

exercising ordinary care.” DeJulio v. Foster, 715 P.2d 182, 187 (Wyo. 1986). Here, there

was an eyewitness to the accident (Kalivas), who repeatedly stated that Vialpando's

vehicle did not stop at the stop sign. In light of that testimony, the district court correctly

concluded the tendered instruction regarding a “presumption of due care” on the part of

Vialpando was not warranted under Wyoming law.

Plaintiff also complains the district court failed to instruct the jury “that the

defendant had the burden of proof to show that Leigh Anne was negligent.” Aplt. Br. at

51. However, plaintiff failed to raise this point during trial. Thus, the issue has been

waived, barring plain error. See Quigley, 327 F.3d at 1063. “The plain error exception in

civil cases has been limited to errors which seriously affect the fairness, integrity or

public reputation of judicial proceedings.” Id. (internal quotations omitted). “Indeed, we

have stated that it is an extraordinary, nearly insurmountable burden.” Id. (internal

quotations and modifications omitted).
19

After reviewing the record on appeal, we conclude plaintiff has failed to satisfy

this “extremely high burden.” Id. It is true, as noted by plaintiff, that Wyoming law

places the burden of proof on a defendant to prove the plaintiff was contributorily

negligent. See Elite Cleaners and Tailors, Inc. v. Gentry, 510 P.2d 784, 789 (Wyo. 1973). 

It is further true that the instructions did not contain an express statement to this effect. 

Importantly, however, the instructions “did not state that [plaintiff] had to prove the

absence of fault on the part of” Leigh Anne Vialpando. Aplee. Br. at 24. Further,

Instruction 9 informed the jury that the defendant had the burden of proof with respect to

affirmative defenses, although it failed to specify that Leigh Anne Vialpando’s alleged

contributory negligence was an affirmative defense. Finally, a review of the trial

transcript strongly suggests the issue of Leigh Anne Vialpando’s contributory negligence

turned on whether the jury found more credible the testimony of plaintiff’s expert witness

that her vehicle stopped at the intersection or that of Kalivas and the defendant’s expert

that her vehicle did not stop at the intersection. Clearly, the verdict indicates the jury

found the latter witnesses more credible, and we are doubtful that the absence of a

specific instruction on defendant’s burden of proof made a difference in the outcome of

the trial.

Admission of lay witness testimony regarding Wyoming law

Plaintiff contends the district court erred in allowing Trooper Tippy and Lieutenant

David Gray to testify in response to questioning from defense counsel regarding whether
20

Wyoming law imposed a duty on Leigh Anne Vialpando to yield the right-of-way to

oncoming traffic regardless of the speed or location of such oncoming traffic (both

officers opined that the duty to yield the right-of-way existed regardless of the speed of

oncoming traffic). According to plaintiff, this testimony was erroneous because “Kalivas

forfeited his right to rely on the right-of-way when he chose to exceed the speed limit.” 

Aplt. Br. at 53. Further, plaintiff asserts this testimony “effectively increased Leigh

Anne’s burden from reasonable care under the circumstance to strict liability for failing to

yield to traffic on the highway – wherever located.” Id. at 54. We review for abuse of

discretion the district court’s decision to admit or exclude evidence generally, including

testimony such as that given by Tippy and Gray. See Ralston v. Smith & Nephew

Richards, Inc., 275 F.3d 965, 968 (10th Cir. 2001).

At the outset, we take issue with plaintiff’s assertion that the testimony of these

two witnesses was erroneous. We are persuaded that Tippy and Gray accurately testified

regarding the duties of a driver in the position of Leigh Anne Vialpando under Wyoming

traffic laws. Under Wyoming law, the term “right-of-way,” as used in reference to

vehicular travel, “means the right of one (1) vehicle . . . to proceed in a lawful manner in

preference to another vehicle . . . approaching under such circumstances of direction,

speed and proximity as to give rise to danger of collision unless one grants precedence to

the other.” Wyo. Stat. Ann. § 31-5-102(xxxix). In turn, Wyoming law provides that

when a driver approaches a stop sign, he or she is required to stop “at the point nearest the
5

 The jury was specifically instructed regarding the language of this statute. App.

at 118 (Instruction 28).

21

intersecting roadway where the driver has a view of approaching traffic on the

intersecting roadway,” and must “yield the right-of-way to any vehicle in the intersection

or approaching on another roadway so closely as to constitute an immediate hazard.”5

Wyo. Stat. Ann. § 31-5-222(b). Notably, plaintiff points to no Wyoming cases or statutes,

and our research has failed to produce any, indicating that a driver’s duty to yield the

right-of-way is somehow alleviated if an oncoming driver is exceeding the posted speed

limit. 

We also reject plaintiff’s assertion that the testimony of the two officers effectively

imposed strict liability on Leigh Anne Vialpando for failing to yield the right-of-way at

the intersection, or otherwise increased her burden of care. Plaintiff’s argument appears

to hinge on the assumption that the jury, based on the officers’ testimony, would have felt

bound to find Leigh Anne Vialpando negligent for entering the southbound lane of the

highway even if it also found that Kalivas was excessively speeding prior to the accident,

that Vialpando stopped at the stop sign and initially yielded the right-of-way to Kalivas,

and that Vialpando, due to Kalivas’ excessive speed, misjudged the necessary amount of

time to safely cross into the southbound lane of the highway. This assumption, however,

is inconsistent with the district court’s jury instructions. The district court specifically

instructed the jury that it was not required to accept opinions expressed by lay witnesses
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such as Tippy and Gray. App. at 102 (Instruction 14). Further, the district court

instructed the jury that the “word negligence . . . mean[t] the failure to use ordinary care,”

and that “[o]rdinary care mean[t] the degree of care which might reasonably be expected

of the ordinary careful person under the same or similar circumstances.” App. at 110. 

Because juries are presumed to follow the court’s instructions, see Questar Pipeline Co. v.

Grynberg, 201 F.3d 1277, 1287 (10th Cir. 2000), the jury in this case would have been

free to take into account whether Kalivas' pickup was excessively speeding prior to the

accident and whether that excessive speed reasonably affected Vialpando’s perception at

the time she decided to cross the northbound lane of the highway. In other words, the

jury in this case presumably would not have felt bound to impose strict liability on

Vialpando for crossing the northbound lane of the highway.

Even assuming for purposes of argument that it was error for the district court to

allow the officers to testify in this regard, it is obvious that any such error was harmless. 

As noted, the outcome of this case hinged in large part on the question of whether Kalivas

was excessively speeding prior to the accident. The jury verdict strongly indicates that it

found against plaintiff on this issue. In light of that presumptive finding, plaintiff’s “strict

liability” theory is not compelling.

The judgment of the district court is AFFIRMED. Plaintiff’s motion to certify a 
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question of law to the Wyoming Supreme Court is DENIED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge