243 F.3d 432 (8th Cir. 2001), 00-1253, Burry v Eustis Plumbing & Heating Inc.

Docket Nº:00-1253
Citation:243 F.3d 432
Party Name:ROGER L. BURRY, PLAINTIFF-APPELLANT, V. EUSTIS PLUMBING & HEATING, INC., A NEBRASKA CORPORATION; ALCAN ALUMINUM CORPORATION, DOING BUSINESS AS KROY TRANSPORTATION, INC., DEFENDANTS-APPELLEES.
Case Date:March 08, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 432

243 F.3d 432 (8th Cir. 2001)

ROGER L. BURRY, PLAINTIFF-APPELLANT,

V.

EUSTIS PLUMBING & HEATING, INC., A NEBRASKA CORPORATION; ALCAN ALUMINUM CORPORATION, DOING BUSINESS AS KROY TRANSPORTATION, INC., DEFENDANTS-APPELLEES.

No. 00-1253

United States Court of Appeals, Eighth Circuit

March 8, 2001

Submitted: October 16, 2000

Appeal from the United States District Court for the District of Nebraska

Page 433

Before Hansen, Murphy, and Bye, Circuit Judges.

Bye, Circuit Judge.

The plaintiff, Roger Burry, brings this appeal from a jury verdict for the defendant. On appeal, Mr. Burry argues the district court1 erred and should be reversed, based on its instructions to the jury. We disagree, and affirm.

Burry was a truck driver for Kroy Transportation of Nebraska. On a snowy day in March, 1995, Burry was injured while making a delivery of pipes to Eustis Plumbing, a Nebraska client. While the owner of Eustis Plumbing, Frank Strong, was unloading Burry's delivery in the company pipeyard, a bundle caught Burry's hand and yanked his arm. About a year later, while on a job in California, Burry lost his grip and fell from the top of his truck. In all, between March, 1995, and

Page 434

March, 1996, Burry's arm was hurt on at least two, and possibly upwards of four, occasions.2

Burry filed a civil action against Eustis Plumbing based on Nebraska law. Burry alleged that Strong was negligent in unloading the pipes in the Eustis Plumbing pipeyard, and that Strong's negligence-by weakening Burry's arm-was the cause of Burry's fall a year later in California. The case went to trial.

Before the second day of trial, the district judge met with the parties in chambers. The judge told them that he felt a negligence theory was insufficient, and that he'd issue a "premises liability" instruction. Burry's counsel objected, without success.

Since Strong had no memory of the Eustis Plumbing accident, Burry alone was able to testify on what he believed had happened. Nonetheless, the defense cross- examined Burry extensively, exposing flaws in Burry's testimony.3 After deliberating for less than an hour, the jury returned a verdict for the defendants. The district court considered and denied Burry's motion for a new trial. Burry appealed.

The appeal focuses mostly on the district court's instructions to the jury. We review a district court's decision...

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