210 F.3d 355 (2nd Cir. 2000), 99-7779, Ragona v. Wal-Mart Stores, Inc.

Docket Nº:99-7779.
Citation:210 F.3d 355
Party Name:Antoinette & Giacinto RAGONA, Plaintiff-Appellee, v. WAL-MART STORES, INC., Defendant-Appellant.
Case Date:April 20, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 355

210 F.3d 355 (2nd Cir. 2000)

Antoinette & Giacinto RAGONA, Plaintiff-Appellee,

v.

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

No. 99-7779.

United States Court of Appeals, Second Circuit

April 20, 2000

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA2 s 0.23 regarding use of unpublished opinions)

Appeal from the United States District Court for the Northern District of New York, Thomas J. McAvoy, Chief Judge.

Justin O'C. Corcoran, O'Connor, O'Connor, Mayberger & First, Albany, NY, for appellant.

David Pollock, Finkelstein, Levine, Gittelsohn & Partners, Newburgh, NY, for appellee.

Present Van GRAAFEILAND, PARKER, Circuit Judges, and UNDERHILL, [*] District Judge.

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the decision of said District Court be and it hereby is AFFIRMED.

Defendant-Appellant Wal-Mart Stores, Inc. ("Wal-Mart") appeals from the May 18, 1999, Judgment and the July 22, 1999, Memorandum Decision & Order of the United States District Court for the Northern District of New York, entering a remitted jury verdict against Wal-Mart for $100,000 for Plaintiff-Appellee's past pain and suffering and $100,000 for her future pain and suffering in connection with an accident that occurred at a Wal-Mart store in upstate New York. On appeal, Wal-Mart argues that: (1) the district court erred by instructing the jury on a res ipsa loquitur theory; (2) Ragona's counsel improperly mentioned a specific damage figure during summation that prejudiced the jury; and (3) the district court abused its discretion in failing to reduce the jury's verdict by a more substantial margin. We have reviewed Wal-Mart's arguments, and for the reasons discussed below we find them to be without merit. Accordingly, we affirm.

Wal-Mart first argues that the district court improperly instructed the jury on a res ipsa loquitur theory of negligence because Ragona offered evidence that provided a complete explanation for the accident. In the district court below, the jury was instructed:

If the instrumentality causing the injury was in the exclusive control of the defendant or its employee, that the plaintiff's conduct in no way contributed to the cause of the accident, and if the circumstances surrounding the happening of...

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