F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 7 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
RACHEL ALLEN,
Plaintiff-Appellee,
No. 00-8004
v.
WAL-MART STORES, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 99-CV-1002)
Roger E. Shumate, of Murane & Bostwick, L.L.C., Casper, Wyoming, (Deborah
Ford Mincer of Murane & Bostwick, L.L.C., Cheyenne, Wyoming, with him on
the brief), for Appellant.
Donald A. Cole, of Cole & Cole Law Firm, Cheyenne, Wyoming, for Appellee.
Before TACHA, Chief Judge, McWILLIAMS, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
Appellee, Rachel Allen, was injured when she was struck by boxes of
merchandise while shopping at a store operated by Appellant, Wal-Mart Stores,
Inc. (“Wal-Mart”). Allen claimed her injuries were caused by Wal-Mart’s
negligence and she sought damages for medical expenses, pain and suffering, and
loss of enjoyment of life. A jury returned a general verdict awarding Allen
$40,000 and judgment was entered in that amount. Wal-Mart’s Motion for
Judgment as a Matter of Law, or in the Alternative, for a New Trial was denied
and Wal-Mart brought this appeal.
On appeal, Wal-Mart argues that (1) it is entitled to judgment as a matter of
law because Allen failed to produce evidence of causation; (2) it is entitled to a
new trial on the issue of damages because Allen failed to present evidence
supporting loss of enjoyment of life damages; and (3) it is entitled to a new trial
because the district court erred when it instructed the jury on the doctrine of res
ipsa loquitur. This court concludes that Allen presented sufficient evidence of
causation and, thus, Wal-Mart is not entitled to judgment as a matter of law.
Additionally, we decline to grant a new trial on damages because Allen presented
sufficient evidence to support her claim for loss of enjoyment of life damages.
We conclude, however, that the district court improperly instructed the jury on the
doctrine of res ipsa loquitur. Exercising jurisdiction pursuant to 28 U.S.C. §
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1291, we vacate the judgment entered on the jury’s verdict and remand for a new
trial consistent with this opinion.
I. FACTUAL BACKGROUND
Plaintiff-Appellee Rachel Allen was shopping in a Wal-Mart store on
December 16, 1994, when she was struck by boxes that fell from a top shelf (the
“riser”). In her Pre-Trial Memorandum, Allen alleged that “an employee of the
store pushed, knocked, or caused 20-25 boxes of merchandise to fall upon her as
she was standing in front of a counter.” Allen also alleged that the boxes were
negligently stacked.
At trial, Allen testified that shortly before the boxes fell, a Wal-Mart
employee was standing on a lower shelf attempting to reach something from the
riser. After the accident, a Report of Customer Incident was prepared by Wal-
Mart. This report contained the following statement describing Allen’s account
of the accident: “a female associate stood on shelf to get item from riser and [ ]
20-30 ‘pink boxes’ fell and hit [Allen] on the head and shoulders.” The Wal-Mart
employee, however, testified at trial that she observed Allen “reaching up to the
top shelf and trying to get some merchandise down.” The employee’s account
was not included in the Report of Customer Incident and was denied by Allen.
Allen also testified that after the accident she began experiencing neck and
back pain and headaches. Although Allen had surgery approximately two years
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after the accident, Allen testified that she still suffers from pain on cold days and
that she is afraid to engage in certain activities.
At the close of Allen’s case, Wal-Mart moved for judgment as a matter of
law. The motion was denied. At the close of evidence, the district court held a
jury instruction conference. At the conference, Wal-Mart objected to the giving
of a jury instruction regarding the doctrine of res ipsa loquitur. The district
court, however, gave the instruction over Wal-Mart’s objection. The jury
determined that Wal-Mart was 100% at fault and returned a general verdict for
Allen in the amount of $40,000.
After the jury verdict, Wal-Mart filed a timely Renewed Motion for
Judgment as a Matter of Law or, in the Alternative, for a New Trial. In support
of that motion, Wal-Mart first argued that it was entitled to judgment as a matter
of law because Allen had failed to produce any evidence that an employee of Wal-
Mart caused the merchandise to fall on her. In the alternative, Wal-Mart argued
that it was entitled to a new trial because the district court erred when it gave the
res ipsa loquitur instruction. Wal-Mart also argued that it was entitled to a new
trial because the award of damages was not supported by the evidence. The
district court denied Wal-Mart’s motion and Wal-Mart brought this appeal
challenging the judgment in favor of Allen.
II. DISCUSSION
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A. Wal-Mart’s Entitlement to Judgment as a Matter of Law
1. Standard of Review
This court reviews the denial of judgment as a matter of law de novo,
applying the same standard applied by the district court. See Sheets v. Salt Lake
County, 45 F.3d 1383, 1387 (10th Cir. 1995). Under that standard, judgment as a
matter of law is only appropriate when a party has been fully heard on an issue
and “there is no legally sufficient evidentiary basis for a reasonable jury to find
for that party on that issue.” Fed. R. Civ. P. 50(a)(1). This court “may find error
in the denial of such a motion only if the evidence points but one way and is
susceptible to no reasonable inferences supporting the party opposing the motion;
we must construe the evidence and inferences most favorably to the nonmoving
party.” FDIC v. United Pac. Ins. Co., 20 F.3d 1070, 1079 (10th Cir. 1994)
(quotation omitted). This court, thus, must determine whether Allen presented
any evidence upon which the jury could reasonably infer that Wal-Mart’s
negligence caused her injuries.
2. Evidence of Causation
Relying on the Wyoming case of Anderson v. Duncan, Wal-Mart argues
that Allen failed to produce any evidence that the negligence of a Wal-Mart
employee caused the merchandise to fall and strike her. See 968 P.2d 440, 443
(Wyo. 1998). The plaintiff in Anderson fell while walking down a sidewalk in
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front of a home owned by the defendants. The plaintiff alleged that the
defendants negligently “failed to keep the trees trimmed so that they did not block
the light that might have illuminated the sidewalk and the stairs; failed to keep the
lamp on the post operable; and failed to replace the handrail next to the stairs.”
Id. at 441. At trial, the plaintiff speculated that poor lighting or fallen crab apples
from nearby trees may have caused her to fall but “testified that she did not know
what caused her to fall.” Id. at 442. The trial court concluded that the plaintiff
had failed to show a causal connection between the defendants’ allegedly
negligent acts and the fall, and granted judgment as a matter of law in favor of the
defendants. See id. at 443. This determination was based on the court’s
conclusion that the plaintiff had failed to produce any evidence, circumstantial or
otherwise, that the defendants’ negligent acts caused her to fall. See id. at 442-
43. Because of the lack of evidence of a causal connection, the court stated that it
would be “speculation . . . to say that she wouldn’t have tripped if that light had
been on, that she wouldn’t have tripped if the handrail had been there.” Id. at
443. The Wyoming Supreme Court upheld the grant of judgment as a matter of
law, holding that “[l]iability for a negligence claim cannot be established by
conjecture, speculation, or guess.” Id.
In arguing that the facts of this case are identical to those in Anderson,
Wal-Mart asserts that “[i]n the case at bar there is no circumstantial evidence of
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cause.” Allen, however, testified that she observed a Wal-Mart employee
reaching for merchandise from the riser shortly before the boxes fell and injured
her. Thus, in contrast to the plaintiff in Anderson, Allen produced some evidence
that Wal-Mart’s negligence caused her injuries. Although the Wal-Mart employee
disputed Allen’s account of the incident and testified that Allen herself was
reaching for merchandise from the riser, this court may not “weigh the evidence,
pass on the credibility of witnesses, or substitute our judgment for that of the
jury.” Kinser v. Gehl Co., 184 F.3d 1259, 1267 (10th Cir. 1999) (quotation
omitted). The weighing of evidence, the reconciliation of inconsistent testimony,
and the assessment of a witness’ credibility is solely within the province of the
jury.
Viewing all the evidence in the light most favorable to Allen, this court
concludes that a jury could reasonably infer from Allen’s testimony that the
negligence of the Wal-Mart employee caused the boxes of merchandise to fall on
Allen, striking and injuring her. While Allen has produced only circumstantial
evidence, it is nevertheless “evidence of probative force” and a reasonable jury
could reasonably infer causation based on that evidence. Hashimoto v. Marathon
Pipe Line Co., 767 P.2d 158, 161 (Wyo. 1989); see also Natural Gas Processing
Co. v. Hull, 886 P.2d 1181, 1186 (Wyo. 1994) (defining legal causation as “that
conduct which is a substantial factor in bringing about the plaintiff’s injuries”).
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We conclude that Allen produced sufficient evidence from which a reasonable
jury could conclude that Wal-Mart’s negligence caused the boxes of merchandise
to fall from the riser and injure her. Consequently, the district court properly
denied Wal-Mart’s motion for judgment as a matter of law based on its assertion
that the evidence was insufficient to establish causation.
B. Wal-Mart’s Entitlement to a New Trial
1. Loss of Enjoyment of Life Damages
In her complaint, Allen sought, inter alia, damages for loss of enjoyment of
life. At the close of the evidence, the jury was instructed that Allen was claiming
damages for pain and suffering, loss of enjoyment of life, and medical expenses.
The jury returned a general verdict in the amount of $40,000. Wal-Mart
concedes, as it must, that Allen presented evidence that she incurred medical
expenses of $21,236.66. Wal-Mart also concedes that Allen produced evidence
regarding the pain and suffering she has experienced and will probably experience
in the future.
Wal-Mart contends, however, that Allen failed to produce sufficient
evidence to support her claim for loss of enjoyment of life damages and,
therefore, the jury instruction on loss of enjoyment of life damages was improper.
Wal-Mart requests this court to set aside the jury’s award of $40,000 and remand
for a new trial on the issue of damages. Wal-Mart argues that a new trial on the
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question of damages must be granted because it is impossible to ascertain from
the general verdict whether the jury based its $40,000 verdict on the allegedly
improper jury instruction.
This court has previously stated that,
[i]n a diversity case, the substance of the jury instructions is
determined by state law, while the grant or denial of tendered
instructions is governed by federal law. A party is entitled to an
instruction on their theory of the case so long as the instruction is
supported by competent evidence on the issue or theory supporting
the instruction.
Perlmutter v. United States Gypsum Co., 4 F.3d 864, 871 (10th Cir. 1993)
(citation omitted). This court, thus, must first determine the basic elements of a
claim for loss of enjoyment of life damages under Wyoming law and then
determine whether the evidence presented in this case supported the granting of
an instruction on such damages.
The Wyoming Supreme Court has recognized that loss of enjoyment of life
is a compensable damage and can be taken into consideration by a jury when
arriving at the total general damages. See Mariner v. Marsden, 610 P.2d 6, 12
(Wyo. 1980). A plaintiff can support her claim for loss of enjoyment of life
damages by presenting evidence that she refrains from participating in activities
she previously enjoyed in order to avoid or minimize pain. See id. at 15.
At trial, Allen testified as follows:
Q: Do you have any fears about your neck?
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A: Yes.
Q: What kind of fears to you have?
A: Well, I stopped – well, I didn’t just stop. I don’t ride horses or
do a lot of that stuff anymore.
Q: Why?
A: Because I’m afraid if I get bucked off of getting hurt.
Wal-Mart argues that this testimony is insufficient to support any damages for
loss of enjoyment of life because on cross-examination Allen testified that she
had stopped riding horses before the accident. Wal-Mart reads too much into
Allen’s testimony. Allen testified that she refrains from horseback riding because
she is afraid of injury; Allen did not testify that at the time she stopped horseback
riding she never intended to start again. The jury was certainly allowed to infer
from Allen’s testimony that any plans she may have had to engage in horseback
riding in the future are now foreclosed because of the accident. The only thing
clear from Allen’s testimony is that as a result of the injury she sustained at the
Wal-Mart store, she is fearful of engaging in an activity she once enjoyed. We
conclude that the evidence supported an award of damages for loss of enjoyment
of life under Wyoming law and, thus, the jury was properly instructed on the
issue.
2. The Res Ipsa Loquitur Instruction
Wal-Mart also argues that it is entitled to a new trial because, under
Wyoming law, the jury should not have been instructed on the doctrine of res ipsa
loquitur. This court reviews de novo the legal question of whether the jury was
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properly instructed on the governing law. See Thompson v. United States, 223
F.3d 1206, 1210 (10th Cir. 2000). If this court concludes that the district court
erroneously instructed the jury on an improper theory and we are unable to
determine with “absolute certainty” whether the jury relied on the erroneous
instruction, a general verdict must be reversed. Farrell v. Klein Tools, Inc., 866
F.2d 1294, 1301 (10th Cir. 1989).
The res ipsa loquitur instruction given by the district court allowed the jury
to infer Wal-Mart’s negligence. 1 Wal-Mart, however, contends that Wyoming law
precludes the giving of a res ipsa loquitur instruction when a party attempts to
prove specific acts of negligence. See Dellapenta v. Dellapenta, 838 P.2d 1153,
1164-65 (Wyo. 1992). Wal-Mart argues that under Wyoming law, the doctrine of
res ipsa loquitur does not apply to the facts of this case because Allen proceeded
on a negligence theory. We agree. 2
Under Wyoming law, the “doctrine of res ipsa loquitur is limited to those
situations where the thing which causes damage or injury, without the fault of the
1
We assume, without deciding, that the res ipsa loquitur instruction
properly set forth the applicable law.
2
Because we remand for a new trial on this basis, it is unnecessary for us to
address Wal-Mart’s alternative argument, premised on this court’s interpretation
of Oklahoma law, that the instruction should not have been given because Wal-
Mart was not in exclusive control of the merchandise that fell on Allen. See
Monahan v. Wal-Mart Stores, Inc., No. 97-6139, 1998 WL 60412, at *1 (10th Cir.
Feb. 13, 1998) (unpublished disposition); Farris v. Wal-Mart Stores, Inc., No. 96-
5162, 1997 WL 61519, at *2 (10th Cir. Feb. 14, 1997) (unpublished disposition).
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plaintiff, is shown to be under the exclusive control of the defendant, and the
injury is such as, in the ordinary course of things, does not occur if one having
such control uses proper care.” Wood v. Geis Trucking Co., 639 P.2d 903, 906
(Wyo. 1982). In Dellapenta, the Wyoming Supreme Court held that the doctrine
is inapplicable when a plaintiff presents “specific evidence of presumably
negligent acts” and the defendant presents an equally-plausible, alternative
explanation for the accident that is supported by some evidence. 838 P.2d at
1165. The court recently applied the Dellapenta holding in Reese v. Board of
Directors of Memorial Hospital, 955 P.2d 425, 427 (Wyo. 1998), stating: “the
doctrine cannot be applied when an inference that the injury was due to a cause
other than the defendant’s negligence could be drawn as reasonably as one that it
was due to his negligence.” Under such circumstances, the thing does not “speak
for itself” and the res ipsa loquitur doctrine is inapplicable. See id.
The record, including the trial transcript and Allen’s closing argument,
clearly indicates that Allen attempted to prove specific acts of Wal-Mart’s
negligence. Allen testified that she observed a Wal-Mart employee standing on a
bottom shelf and reaching for merchandise. A reasonable inference could be
drawn from this evidence that the accident occurred as a result of Wal-Mart’s
negligence. Additionally, during closing arguments Allen’s counsel stated, “I’m
going to tell you that I think the most important document that you may see in the
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jury room will be . . . the report of the customer incident that was taken within 24
hours, . . . and I think that explains the incident, or nearly explains the incident.”
The document to which Allen’s counsel referred during closing arguments
contained, inter alia, the following account of the accident given by Allen: “a
female associate stood on shelf to get item from riser and [ ] 20-30 ‘pink boxes’
fell and hit [Allen] on the head and shoulders.”
At trial, the Wal-Mart employee testified that she did not stand on the shelf.
Instead, the employee testified that she observed Allen attempting to retrieve
merchandise from the top shelf. This testimony is evidence from which a equally-
reasonable inference could be drawn that the accident was due to a cause other
than Wal-Mart’s negligence. Wyoming law clearly provides that a res ipsa
loquitur instruction is inappropriate under these circumstances. See Reese, 955
P.2d at 427; Dellapenta, 838 P.2d at 1164-65. The district court, therefore,
erroneously instructed the jury on an improper theory. Based on the record before
us, this court is unable to determine with “absolute certainty” whether the jury
relied on the erroneous instruction when it returned its general verdict.
Consequently, this court must reverse and remand for a new trial. See Farrell,
866 F.2d at 1301.
III. CONCLUSION
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This court concludes that Wal-Mart was not entitled to judgment as a
matter of law and that the district court properly instructed the jury on loss of
enjoyment of life damages. We hold, however, that the district court improperly
instructed the jury on the doctrine of res ipsa loquitur. We, therefore, vacate the
judgment entered on the jury’s verdict and remand for a new trial consistent with
this opinion.
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