UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 98-60237
Summary Calendar
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AUDREY AND KARL KERN,
Plaintiffs-Appellants,
versus
WAL-MART STORES, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
(1:96-CV-592-GR)
February 25, 1999
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Audrey and Karl Kern (“the Kerns”) filed a complaint in the district court against Wal-Mart
Stores, Inc. (“Wal-Mart”), alleging a cause of action based on negligence. The Kerns appeal from
a judgment in favor of Wal-Mart, arguing that the trial court (1) erred in denying their motion for
judgment as a matter of law; (2) erred in giving erroneous jury instructions; and (2) erred in denying
their motion for a new trial. We affirm.
While the Kerns shopped at the vacuum bag display at Wal-Mart, employee Eileen Pavolini
requested employee Ernest Wade to retrieve a twenty to thirty pound vacuum cleaner from the top
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
shelf. Wade carried an eight-foot ladder to the row, set it up adjacent to the Kerns, and climbed it
to retrieve the cleaner. Pavolini held the ladder. When Wade turned to hand the vacuum to Pavolini,
the cleaner slipped from his hands and struck Audrey’s left shoulder, arm and leg, and she fell to the
ground.
The Kerns filed suit, claiming an assortment of injuries, including carpal tunnel syndrome,
depression, and loss of consortium. Pursuant to the consent of the parties, a Magistrate Judge held
a jury trial. At the close of all of the evidence, the Kerns moved for judgment as a matter of law, and
the Magistrate Judge denied the motion. The jury returned a verdict for Wal-Mart, and the
Magistrate Judge signed a judgment in favor of Wal-Mart. The Kerns renewed their motion for
judgment as a matter of law, or alternatively, for a new trial. The Magistrate Judge denied the
motion, and the Kerns timely appealed.1
The Kerns argue the trial court erred in denying their motion for judgment as a matter of law.
We review a motion for judgment as a matter of law de novo, and apply the same legal standard as
the trial court. See Omnitech Int’l, Inc. v. Clorox Co., 11 F.3d 1316, 1322-23 (5th Cir. 1994). We
consider “all of the evidence--not just that evidence which supports the non-mover's case--but in the
light and with all reasonable inferences most favorable to the party opposed to the motion.” Boeing
Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc). Granting the motion is proper if we
believe that the facts and inferences point so strongly in favor of one side that reasonable men could
not arrive at a contrary verdict. See id. The Kerns argue that there is no factual basis in the record
to support the jury’s verdict for Wal-Mart.
Under Mississippi law, a store owner owes a duty to an invitee to exercise reasonable or
ordinary care to keep the premises in a reasonably safe condition or to warn of dangerous conditions
that are not readily apparent. See Fulton v. Robinson Indus., Inc., 664 So.2d 170, 175 (Miss. 1995).
1
The Kerns appeal to this court, and not to the district court, from a judgment entered by a
Magistrate Judge with the consent of the parties. “This Court applies the same standard of review
to the findings and conclusions of the magistrate that we would apply to a decision of the district
court.” Taylor v. Domestic Remodeling, Inc., 97 F.3d 96, 98 (5th Cir. 1996).
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A business operator is not an insurer against all injuries. See Lindsey v. Sears Roebuck & Co., 16
F.3d 616, 618 (5th Cir. 1994) (summarizing Mississippi law). Conduct is reasonable if it is fair,
proper, just, or suitable under the circumstances, and there is no liability for conduct from which no
unreasonable risk was to be anticipated. See Evans v. United States, 824 F. Supp. 93, 97 (S.D. Miss.
1993) (same). “The law still revolves around what the owner can ‘anticipate’ or ‘expect,’ or what
is ‘usual.’” Fulton, 664 So.2d at 175.
We consider whether evidence exists to support the jury’s verdict for Wal-Mart. Wal-Mart
had written safety procedures regarding the removal of merchandise from upper shelves. Wade
followed the procedure that required an employee to utilize a ladder to retrieve merchandise, as
opposed to standing on a lower shelf or reaching up from the aisle. He spent four to six minutes
setting up the ladder and climbed to the fourth or fifth step. He also followed the safety procedure
that required him to obtain the assistance of another employee to hold the ladder and accept the
merchandise when it was handed down. Wade testified that he had retrieved merchandise in this
manner hundreds of times without an accident. There is no dispute that Wal-Mart’s safety procedures
for retrieving merchandise are reasonable. The rectangular vacuum package was laying lengthwise
on the shelf, and it was stacked in a stable manner such that it would not have fallen from the shelf.
Audrey admitted she heard a noise behind her and noticed Wade pull up the ladder. Audrey
recognized that Wade would climb the ladder to retrieve merchandise, yet did not move. The Kerns
did not pay attention to the activity and did not believe they were in danger. Audrey testified she did
not consider the actions of the employee unreasonable. This evidence supports the conclusion that
Wal-Mart, through its employees, exercised reasonable care to protect its patrons under the
circumstances. Thus, evidence exists to suppo rt the jury’s verdict that Wal-Mart did not act
negligently.
The Kerns argue the trial court erred by giving erroneous jury instructions. The trial court
has broad discretion in formulating the jury charge, and so we review the instructions with deference.
See Deines v. Texas Dep’t of Protective & Regulatory Servs., No. 97-50481, 1999 WL 928, at *2
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(5th Cir. Jan 19, 1999). A challenge to jury instructions “must demonstrate that the charge as a whole
creates substantial and ineradicable doubt whether the jury has been properly guided in its
deliberations.” Id. (citation omitted). The Kerns contend that insufficient evidence existed to warrant
a comparative negligence instruction. Under Mississippi law, invitees are required to exercise
prudence under the circumstances. See Fulton, 664 So.2d at 175. The Kerns admitted they observed
Wade’s use of the ladder and did not make any effort to avoid the “dangerous condition.” We find
that the jury properly considered the conduct of the Kerns in assessing whether any fault was
attributable to them. The Kerns argue also that the court erred by refusing to give the requested res
ipsa loquitur instruction. This doctrine is inapplicable in this case. See Lindsey, 16 F.3d at 618
(citing Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916, 917 (Miss. 1966), for the proposition that
“the doctrine of res ipsa loquitur is inapplicable in premises liability cases”). Thus, we conclude that
the jury instructions given by the trial court properly guided the jury in its deliberations.
The Kerns also appeal the trial court’s denial of their motion for a new trial. The Kerns argue
the court erred because the jury verdict is unsupported by the evidence. We will reverse a denial of
a motion for a new trial only when there is a clear showing of an abuse of discretion. See Dawsey
v. Olin Corp., 782 F.2d 1254, 1261 (5th Cir. 1986). In order to establish an abuse of discretion, the
Kerns must show “an absolute absence of evidence to support the jury’s verdict.” Id. at 1262
(citation omitted). There is evidence to support the jury’s verdict, and so we conclude the court did
not abuse its discretion in denying the motion for a new trial.
For the foregoing reasons, we AFFIRM the ruling of the trial court.
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