UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30406
Summary Calendar
KATHERINE TOUSANT,
Plaintiff-Appellant,
VERSUS
WAL-MART STORES, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
(94-CV-2283)
December 23, 1998
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
PER CURIAM:*
Appellant Tousant seeks a new trial in her personal injury
lawsuit against appellee Wal-Mart based on alleged errors in the
jury instructions given in the jury charge. Specifically, Tousant
challenges the court's jury instruction that states: “The customer
assumes all normally observable ordinary risks that are entailed in
the use of a merchant's premises. A merchant is not liable in
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
negligence for an injury to a customer resulting from a dangerous
condition which is observable, or which should have been observable
in the exercise of reasonable care, or from a danger which the
customer should have reasonably appreciated before exposing herself
to it.” See Court's Instructions to the Jury at 7.
Because we are an Erie-bound federal court reviewing this
matter of Louisiana substantive law, we must look to the Louisiana
Supreme Court on this issue. See Erie R. Co. v. Thompkins, 304
U.S. 64, 78-80 (1938). The most recent case cited by Tousant in
which this issue is addressed is Pitre v. Louisiana Tech Univ., 673
So.2d 585 (La. 1996). In Pitre, the Louisiana Supreme Court upheld
the “obvious danger rule,” under which the obviousness and
apparentness of a potentially dangerous condition are relevant
factors to be considered in the duty-risk analysis. However,
according to Tousant, the court in this case should have limited
its language on the obvious danger rule as only “a relevant factor
to be considered.” Pitre, 673 So.2d at 591. Otherwise, Tousant
argues, the district court will have back-doored the “assumption of
risk” defense back into Louisiana tort law. See generally Murray
v. Ramada Inns, Inc., 521 So.2d 1123, 1125 (La. 1988) (holding that
the common law doctrine of assumption of risk no longer had a place
in Louisiana tort law). While we agree that the district court in
this case may not have used the precise language proffered by the
Pitre Court, we hold that any error by the court in this case was,
at best, harmless error.
In reviewing alleged errors in the charge, we have held:
On appeal, the charge must be considered as a whole, and
so long as the jury is not mislead,
prejudiced, or confused, and the charge is comprehensive and
fundamentally accurate, it will be deemed adequate and not
reversible error. We review jury instructions with deference and
will only reverse judgment when the charge as a whole leaves us
with substantial and ineradicable doubt whether the jury has been
properly guided in its deliberations. In instructing the jury,
district judges may select their own words and . . . charge in
their own styles. No harmful error is committed if the charge
viewed as a whole correctly instructs the jury on the law, even
though a portion is technically imperfect.
Concise Oil & Gas Partnership v. Louisiana Intrastate Gas Corp.,
986 F.2d 1463, 1474 (5th Cir. 1993) (citations and quotations
omitted). We are confronted by precisely such an instance in this
appeal. The district court correctly laid out the obvious danger
rule as a factor to be considered by the jury, even though it did
not use the precise “factor to be considered” language from Pitre.
The objectionable instruction is contained in only one paragraph in
a much larger list of factors to consider, and does not constitute
an absolute bar to a plaintiff's recovery. Additionally, the
district judge plainly instructed the jury that they are “not to
single out one instruction alone as stating the law, but must
consider the instructions as a whole.” See Court's Instructions to
the Jury at 1. When we view the charge as a whole, we are
satisfied that it correctly instructs the jury on the law. We are
not persuaded that this charge has reintroduced “assumption of
risk” back into Louisiana tort law. Although the charge may be
technically imperfect, when viewed as a whole, the error was
clearly harmless. See Concise Oil, 986 F.2d at 1474. Accordingly,
because Tousant has failed to present reversible error, the
judgment of the district court is AFFIRMED.
3