(concurring in part, dissenting in part).
I concur in parts one, three and four of the majority opinion. I respectfully dissent from part two, granting a new trial based on error in the jury instructions, and would affirm.
This case arises out of a tragic accident that occurred on September 26, 2003. The ensuing litigation has been the subject of several years of discovery and a six-week jury trial. The parties were represented by experienced lawyers, the trial was presided over by a respected judge, and the jury reached its verdict. The essence of *785my disagreement with the majority is that I would evaluate the jury-instruction issue for plain error pursuant to Minnesota Rules of Civil Procedure 51.04(b) and 59.01(f).
Rule 51 was rewritten and the present language was adopted effective January 1, 2006. Minn. R. Civ. P. 51. It applied to the trial court proceedings in this case and applies to the appeal before this court. The rule gives parties the right to propose instructions (rule 51.01), requires that the district court provide parties with its proposed instructions and an opportunity to object (rule 51.02), establishes that objections must be timely and defines what is timely (rule 51.03), gives parties the right to assign error (rule 51.04), and in rule 51.04(b), gives the district court discretion to “consider a plain error in the instructions affecting substantial rights that has not been preserved as required by rule 51.04(a)(1) or (2).” Rule 59.01 recognizes the discretion of the district court to grant a new trial based on an error in instructions. Minn. R. Civ. P. 59.01(f).
To meet the plain-error standard of rule 51.04(b), the objecting partly must establish that four considerations are met: that there was error, that it was plain or obvious, that it substantially affected the verdict, and that corrective judicial action is required to ensure the fairness and integrity or public reputation of the judicial proceedings. State v. Reed, 737 N.W.2d 572, 583 (Minn.2007); see also BBSerCo, Inc. v. Metrix Co., 324 F.3d 955, 960 (8th Cir.2003) (adding that an error in instructions should only result in a reversal if the district court’s decision would be “a miscarriage of justice if left uncorrected”). Although this plain-error standard is used in both criminal and civil proceedings and the four prongs are the same in both areas, courts agree that a reversal is harder to obtain in civil appeals than criminal. Johnson v. Ashby, 808 F.2d 676, 679 n. 3 (8th Cir.1987); see Mjos v. Vill. of Howard Lake, 287 Minn. 427, 437, 178 N.W.2d 862 (1970) (deferring to district court discretion granting new trial). The plain-error standard is only designed to provide relief in the most egregious cases. Horstmyer v. Black & Decker, U.S., Inc., 151 F.3d 765, 771 (8th Cir.1998); Johnson, 808 F.2d at 679 n. 3. No reported Minnesota court decisions have reversed a district court determination in civil litigation that its use of unobjected-to jury instructions did or did not constitute error requiring a new trial.
Here, applying the plain-error standard, I agree with the majority that instructing the jury that appellant’s liability could be established on a common-law, state-negligence basis was plain error. The third and fourth prongs are more difficult to apply.
The third prong of the plain-error test requires that we determine whether the error substantially affected the verdict. Under the plain-error test, the challenging party generally has the burden of persuasion. Reed, 737 N.W.2d at 583-84. The plain-error test does not distinguish between more pedestrian errors and fundamental errors. Although I recognize that prior to the adoption of the plain-error language in rule 51.04, Minnesota caselaw placed the burden on the respondent to establish that a fundamental error did not affect the result, this caselaw is eclipsed by the adoption of the rule. See Hilligoss v. Cargill, Inc., 649 N.W.2d 142, 147 (Minn.2002) (examining prejudice in pre-2006 litigation).1 Because we have no reported *786Minnesota decision dealing with the application of rule 51.04 to fundamental error, we should look to federal caselaw under the federal rule 51.04 which has identical language. See 9C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, § 2558 (3d ed.2008) (summarizing federal treatment of plain error and a change in law in text and accompanying footnotes 16 to 23).
Here, I agree with the majority that the error is serious and may have affected the outcome of the jury’s liability determination. However, respondents introduced evidence that BNSF failed to comply with the federal standards of care established by regulation and with its own standards that were allegedly created pursuant to federal regulation. Respondents’ brief devotes multiple pages to detailing violations by BNSF of federal rules and of BNSF’s own standards. This may constitute a record adequate for a jury to determine that liability was established using the proper federal standard. 49 U.S.C. § 20106(b)(A), (B) (Supp. II 2008).
In considering the impact of the erroneous jury instruction, I note that the district court determined that the conduct of BNSF (that resulted in dramatic sanctions) complicated the proof of various violations. Given the significance of the evidence of violations, the misconduct of BNSF in creating a troubled record, the instructions provided the jury, and the deficiencies in the instructions; it is not self-evident that BNSF was substantially prejudiced by the complained-of common-law instruction. To the extent that there was ample evidence in the record to establish liability on the basis of violations of law, regulation, and BNSF’s own standards, the error in instructions was arguably harmless, even if it was fundamental.
Here, BNSF has the burden of establishing the requisite prejudice. Although BNSF addresses the topic of fundamental error, it does not discuss or apply the plain-error analysis. In reviewing the record, I conclude that BNSF does not establish that there was not an adequate independent basis for establishing liability. Conversely, because the district court denied the motion for a new trial without recognizing the plain error in its jury instructions, we do not have the benefit of its analysis of the prejudice. In this situation, we cannot determine whether the district court abused its discretion on the third prong. It never reached it. If this third prong of the plain-error test were the end of the analysis, I would remand to the district court for a determination whether BNSF met its burden of establishing the requisite prejudice.
Even if BNSF established that the error affected its substantial rights, the plain-error test requires a fourth and final step. We examine “whether the error should be addressed ‘to ensure fairness and the integrity of the judicial proceedings.’ ” Reed, 737 N.W.2d at 583 (quotation omitted). Here, prior to instructing the jury, the parties and the district court engaged in exhaustive consideration of the proposed jury instructions. BNSF had every opportunity to submit instructions and did so.’ Indeed, as the majority points out, BNSF even proposed one of the instructions that it now challenges on appeal. In addition, BNSF was fully aware of the instructions requested by respondents and of the instructions the district court proposed to give. The record does not disclose any objection. BNSF stood silent with respect to the instructions that apparently violate Railroad Law 101. When one of the largest railroads in our country and its legal counsel decline the opportunity to object or even comment on instructions that on *787appeal are characterized as a fundamental error of basic federal railroad law, this posture is fairly characterized as acquiescing in the instructions given.
I submit that acquiescence presents the question of invited error and is relevant to the fourth prong of the plain-error standard and to this appeal. Minnesota has recognized that litigants who actually participate in the development of instructions and who do not object to instructions will not be heard to complain on appeal that the instructions are improper. See Isler v. Burman, 305 Minn. 288, 232 N.W.2d 818 (1975) (“One who procures error may not assert such error as the basis for obtaining a new trial.”). No reported Minnesota case has been brought to this court’s attention reversing a decision of a trial judge denying a new trial in a civil case in the setting of invited error. The caselaw discussed by the majority addressing such instructional errors involved either appeals in which an objection was made prior to charging the jury or appellate affirmance of the decision by the district court granting a new trial. Federal caselaw dealing with this issue of invited error indicates an unwillingness to let culpable parties benefit from their conduct. See Beardshall v. Minuteman Press Int’l, Inc., 664 F.2d 23, 27 (3rd Cir.1981) (stating failure to object ordinarily bars consideration of the issue on appeal).
The question on appeal is whether fairness and integrity in judicial proceedings require that BNSF be given the opportunity to have a second trial after a six-week trial, and to demand the benefit of new witnesses identified after the completion of the first trial. We should not allow parties the opportunity to stand-by, not object to erroneous jury instructions, and see how the first trial will turn out, expecting that if the result is adverse the judge’s error will enable them to secure a new trial. Here, we must add to the mix the sanctioned misconduct of BNSF, the open question of whether there is any substantial prejudice, the substantial discretion granted to the district court to determine whether a new trial should be granted, and the significant deference Minnesota appellate courts have given to the district court’s exercise of this discretion.
In analyzing whether plain error so implicates the fairness and integrity of judicial proceedings that reversal is required, some courts have considered the precedent-setting nature of the litigation. The liability for a single accident does not present a far-reaching legal issue. See Nat’l Ass’n of Social Workers v. Harwood, 69 F.3d 622, 628 n. 5 (1st Cir.1995) (reverse if failure to do so would threaten frustration of some broadly important right). This resembles the historic attitude of many courts that failure to object to an instruction that misstates the law simply results in that instruction being the law of the case. See, e.g., Voohries-Larson v. Cessna Aircraft Co., 241 F.3d 707, 713, 716-18 (9th Cir.2001) (indicating strict compliance with former Fed.R.Civ.P. 51). The culpable party simply lives with its mistakes in the conduct of the litigation. Carter v. Chi. Police Officers, 165 F.3d 1071, 1077-78 (7th Cir.1998). Finality and careful use of judicial resources are important considerations that offset what may be an erroneous instruction and preclude a quick finding that the fairness and integrity of the legal system is at stake.
I conclude that under the circumstances of this case, the fourth prong of the plain-error standard, ensuring fairness and integrity in judicial proceedings, is not met and that this court should not reverse the district court’s denial of a new trial. I would affirm.
. I note that George v. Estate of Baker, 724 N.W.2d 1 (Minn.2006), which is relied on by the majority, not only is pre-2006 litigation *786but also was a situation where the appealing party objected to the instruction at trial.