144 F.3d 173 (1st Cir. 1998), 97-2079, Testa v. Wal-Mart Stores, Inc.

Docket Nº:97-2079.
Citation:144 F.3d 173
Party Name:Louis R. TESTA, Plaintiff, Appellee, v. WAL-MART STORES, INC., Defendant, Appellant.
Case Date:May 21, 1998
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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144 F.3d 173 (1st Cir. 1998)

Louis R. TESTA, Plaintiff, Appellee,


WAL-MART STORES, INC., Defendant, Appellant.

No. 97-2079.

United States Court of Appeals, First Circuit

May 21, 1998

Heard May 4, 1998.

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George R. Moore, with whom Bret D. Gifford and Devine, Millimet & Branch, P.A. were on brief, for Appellant.

Stewart S. Richmond, Jr., with whom Scott H. Harris and McLane, Graf, Raulerson & Middleton, P.A. were on brief, for Appellees.

Before TORRUELLA, Chief Judge, SELYA and LYNCH, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Wal-Mart Stores, Inc. (Wal-Mart) insists that the jury verdict in this piscine personal injury case results from instructional error. After careful perlustration of the record, we conclude that Wal-Mart is fishing in an empty stream.


Plaintiff-appellee Louis R. Testa worked as a truck driver for Heavenly Fish, a wholesaler of tropical fish. On February 2, 1993, Testa arrived at a brand new Wal-Mart retail outlet in Hinsdale, New Hampshire, with merchandise in tow. He parked his van on the delivery ramp behind the store and alerted Wal-Mart to his arrival. A Wal-Mart employee helped Testa unload his ichthyic cargo. In the process, Testa slipped on the snow-and-ice-coated ramp, fell, and injured himself.

Wal-Mart photographed the ramp that day and proceeded to conduct a full investigation of the incident. Before the month was out, a Wal-Mart employee prepared an internal report noting, inter alia, that Testa had threatened to sue.

On April 24, 1995, Testa made good on his word. Invoking diversity jurisdiction, see 28 U.S.C. § 1332(a), Testa sued Wal-Mart in New Hampshire's federal district court. Wal-Mart denied that it had committed any actionable negligence. It pointed out that the mishap occurred on the day of the Hinsdale store's grand opening and, anticipating a huge turnout, it wanted the staff's attention focused exclusively on customer service. To that end, it asserted that Rachelle Manning, an invoice clerk, informed all vendors on February 1 that Wal-Mart would not accept

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deliveries the following day. Thus, Wal-Mart explained, it did not bother to clear the ramp on February 2 because it believed that no deliveries would be forthcoming. In addition to this defense, Wal-Mart also suggested that Testa had assumed the risk of using the icy ramp and that his negligence caused (or at least contributed to) the occurrence of the accident.

The trial itself was brief but jury deliberations were protracted. Eventually, the jury returned a verdict for the plaintiff in the sum of $55,112. This appeal ensued.


After nearly five hours of deliberation, the jury sent a note to the judge which read in pertinent part: "Your Honor, can we please have a review of the law 'negligence', and [its] relation to proximate cause?" 1 The judge consulted with counsel and responded to this query by re-reading his original charge on negligence and proximate cause. The judge asked the jury if the supplemental instruction satisfied their request and the foreperson responded affirmatively.

The error that Wal-Mart perceives is less with what the judge said than with what he did not say. Over Wal-Mart's objection, Judge Devine declined to re-read his charge on comparative negligence as part and parcel of the supplemental instruction. In this vein, the judge noted that "you don't get to comparative negligence until or unless [the jurors] establish that there is negligence existing on the part of the defendant, and their question specifically asks for negligence and proximate cause." Based on this scenario, Wal-Mart maintains that the trial court erred by refusing to include language anent comparative negligence in the supplemental instruction.

We ordinarily review jury instructions to discern whether they adequately illuminate the law applicable to the controverted issues in the case without unduly complicating matters or misleading the jury. See Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 135 (1st Cir.1997). In that process, we examine the instructions as a whole rather than taking each fragment in isolation. See United States v. DeStefano, 59 F.3d 1, 3 (1st Cir.1995). Withal, a jury instruction given after deliberations have begun comes at a particularly delicate juncture and therefore evokes heightened scrutiny. See Bollenbach v. United States, 326 U.S. 607, 612, 66 S.Ct. 402, 90 L.Ed. 350 (1946); Tart v. McGann, 697 F.2d 75, 77 (2d Cir.1982).

Careful craftsmanship of a supplemental jury instruction requires the district court to walk a fine line--the court can err as easily by overinclusiveness as by underinclusiveness. See Tatro v. Kervin, 41 F.3d 9, 15 (1st Cir.1994) (warning that "extra language" may erroneously mislead a jury); United States v. Parent, 954 F.2d 23, 25 (1st Cir.1992) (cautioning against "gratuitous pererrations" in the course of supplemental jury instructions). Understandably concerned about this phenomenon, Judge Devine gave the jury accurate legal standards concerning the precise area of their inquiry--negligence and proximate cause--and eschewed a broader compass. He thus avoided the possible confusion that might have been engendered had he volunteered an instruction that the jury had not requested.

Wal-Mart contends that, even if the district court's supplemental instruction adequately responded to the letter of the jury's inquiry, it did not capture the spirit. In Wal-Mart's view, all negligence concepts are linked, more so in this case. Thus, the jury's query necessarily implied a curiosity about comparative negligence and suggested that the court, to be fair, should give an additional instruction that the jury lacked the sophistication to ask for specifically. We reject this conjectural construct. It amounts to nothing more than rank speculation--and we are unwilling to overturn a jury verdict on the basis of sheer surmise.

Here, moreover, the surrounding circumstances suggest that Wal-Mart's speculation likely is unfounded. For one thing, as Judge Devine remarked, comparative negligence

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is an affirmative defense under New Hampshire law, see Brann v. Exeter Clinic, Inc., 127 N.H. 155, 498 A.2d 334, 336-337 (1985), and a jury logically would not be expected to reach that issue until it first had resolved the question of negligence. For another thing, after Judge Devine gave the supplemental instruction, the jury foreperson responded that the...

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