UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-60466
Summary Calendar
FRANK O’BRIEN,
Plaintiff-Appellee,
VERSUS
WAL-MART STORES INC.,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Mississippi
(5:95-CV-26-Br-S)
December 23, 1996
Before SMITH, DUHÉ and BARKSDALE, Circuit Judges.
PER CURIAM:1
Wal-Mart Inc. appeals the adverse judgment against it entered
by the district court pursuant to the jury’s verdict in this slip
and fall case. Wal-Mart assigns three errors: (1) Exclusion of
evidence that Plaintiff failed to disclose prior related litigation
in answers to interrogatories; (2) refusal to give part of a charge
requested by Wal-Mart; (3) insufficiency of the evidence to support
1
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
the amount of damages awarded by the jury. We affirm.
In answers to interrogatories Plaintiff failed to identify the
suit entitled State Life Insurance Co. v. O’Brien in which O’Brien
sought disability benefits resulting from injuries sustained in the
fall at Wal-Mart, and in which the court had found that O’Brien had
engaged in a scheme to defraud the insurance company by over
insuring himself to gain a profit. The parties do not make clear
whether Wal-Mart wished only to cross examine O’Brien about why he
had not declared this suit, or whether it also wanted to get before
the jury the court’s finding in that suit. The record indicates
both. Wal-Mart’s counsel admitted no prejudice from the failure to
disclose (because he became aware of the matter through other
means) and the district court ruled that the order and reasons in
that case were not material to the instant trial. We see no abuse
of discretion.
Wal-Mart argues that the court’s instruction to the jury did
not permit the jury to find that the accident may have been
entirely the fault of Plaintiff. Technically, the instruction can
be read that way. However, Appellant did not object to the
comparative negligence instruction given by the court (and indeed
it was a correct instruction) and, in the charge objected to, the
court was obviously trying to allow for the fact that Mississippi
has done away with the “open and obvious” defense. We also note
that the jury did not assign any negligence at all to the
Plaintiff. The error in the instruction, if any, was therefore
2
harmless.
Finally, Appellant’s contention that the damage award is
excessive is without merit. The record fully supports the amount
awarded. The fact that the verdict was general does not change
that result.
AFFIRMED.
3