dissenting:
I respectfully dissent because the district court’s refusal to instruct the jury on Hardin’s theory of recovery was prejudicial error.
Hardin proved Snowshoe’s snowmaking policies, which read in part: “When making snow on trails that are open, the following steps should be taken. 1. Make snow dry and skiable_ 3. Point gun, if possible, the same direction as skiers are skiing_ 5. Select snowmaking areas that are wide enough to allow good skier flow.” There is no suggestion that Snowshoe’s snowmaking policies did not conform to industry standards.
Both Hardin and Mrs. Cindy Jacob testified that the snow coming from the machine was wet and froze on their goggles. Hardin testified that the snow gun was pointed uphill. There is no claim that it was impossible to point the gun downhill. Mrs. Jacob testified that the snowmaking plume obscured the trail on which they were skiing.
The relevant portion of Hardin’s instruction, which the court refused, was as follows:
Specifically, the plaintiff claims that the defendant [Snowshoe], was negligent in the following ways:
1. The defendant did not follow its own snowmaking policies.
2. The defendant was making wet snow.
3. The snowmaking equipment was pointed uphill, rather than in the direction the skiers, including the plaintiff, were skiing.
4. The snowmaking area was too narrow to avoid; that is, it was not wide enough to allow good skier flow.
The court instructed the jury generally on the law of negligence. The court instructed that the defendant had a duty to maintain the ski area in a reasonably safe condition. It defined negligence as a failure to exercise ordinary care.
Snowshoe does not assert that Hardin’s instruction was incorrect. It argues that the district court’s instructions on negligence were accurate, fair, and complete. Snowshoe’s argument is just plain wrong.
Three cases, from among many of similar import, illustrate the district court’s error. A court must instruct the jury on the law with due regard to the specific facts of the case at hand. See Merchants National Bank of Mobile v. United States, 878 F.2d 1382, 1388 (11th Cir.1989). A failure to give proffered instructions is error when the proposed instructions are accurate and the instructions actually given to the jury fail to explain the law adequately or tend to confuse or mislead the jury. See Sullivan v. National Football League, 34 F.3d 1091, 1106-07 (1st Cir.1994).
In Baxter v. Ainsworth, 288 F.2d 557 (5th Cir.1961), the trial court instructed the jury on negligence in general terms but refused to instruct regarding specific acts by the defendant that could support a finding of negligence. The appellate court found the trial court’s general instruction on negligence insufficient because “in no part of the charge did the court present to the jury, as plaintiffs were entitled to have him do, plaintiffs’ theory of their right to recover as the facts presented it.” 288 F.2d at 559.
By refusing to give Hardin’s proffered instruction, the district court departed from a well-established principle of law governing the trial of cases in federal courts. While a court is not required to comment on the evidence, it must recognize that a litigant “is entitled to have its legal theories on controlling issues, which are supported by the law and the evidence, presented to the jury.” Sullivan, 34 F.3d at 1107. There can be no doubt that Hardin suffered prejudice, for it was on the basis of faulty instructions that the jury found Snowshoe was not negligent.