Dupont v. Fred's Stores of Tenn. Inc.

• Decision Date: 06 October 2011
• Docket Number: No. 10–2977.,10–2977.
• Citation: 652 F.3d 878
• Parties: Paula DUPONT; James Dupont, Appellants,v.FRED'S STORES OF TENNESSEE, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

652 F.3d 878

Paula DUPONT; James Dupont, Appellants,
v.
FRED'S STORES OF TENNESSEE, INC., Appellee.

No. 10–2977.

United States Court of Appeals, Eighth Circuit.

Submitted: March 29, 2011.Filed: Aug. 30, 2011.Rehearing and Rehearing En Banc Denied Oct. 6, 2011.

[652 F.3d 880]

Breean Walas, argued, Little Rock, AR, for appellant.Richard Dennis Underwood, argued, Memphis, TN, for appellee.Before RILEY, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.RILEY, Chief Judge.

Paula Dupont was shopping at a Fred's Stores of Tennessee, Inc., when plastic bins fell from a display shelf and struck her on the head. Paula and her husband, James (collectively, Duponts), filed a negligence action seeking damages related to her injuries. The case proceeded to trial and a jury returned a verdict in Fred's Stores' favor. The district court ¹ dismissed the Duponts' complaint with prejudice. The Duponts appeal. We affirm.

I. BACKGROUNDA. Facts

On February 25, 2006, Paula was shopping at Fred's Stores in Holiday Island, Arkansas. Paula wanted to look at a plastic bin that was sitting on the top shelf of a display. The shelf itself was somewhere between five feet to five feet six inches high, and three bins were stacked on top of one another. Paula asked a store employee, Tyler Deatherage, to take the stack of bins down from the shelf. Deatherage took the bins down and showed them to Paula. Paula said she was not interested and left the aisle. Deatherage returned the bins to the top shelf.

After an undetermined amount of time, Paula returned to the same aisle, where the injury occurred. Asked to describe what happened, Paula responded, “I don't know. I just remember holding onto the cart. I was on my knees and my head was hurting, and then some elderly man was standing next to me.” Paula made her way to the pharmacy and reported the incident. There were no witnesses, but Paula surmised the same three bins she had inspected fell and struck her on the head.

Store employees gave Paula frozen peas as a compress for her head, contacted her family, and arranged for a friend to pick her up from the store. At the direction of store manager Cinda Clark, employees inspected the scene and found two bins sitting on the floor and one bin sitting in a shopping cart. Clark later faxed a “Customer Accident Reporting Form” to the corporate office. The report described the event as “tote hit head” and listed the cause as “plastic totes falling—3 only fell.”

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Later that night, Paula went to the emergency room, where she was diagnosed with a cervical strain and a concussion. Alleging the blow to her head caused continuing “problems with concentration, memory problems, problems staying on task,” and depression, the Duponts assert the incident “robbed” Paula of her personality.

B. Prior Proceedings

The Duponts sued Fred's Stores in the district court, invoking diversity jurisdiction. See 28 U.S.C. § 1332. The Duponts alleged the store was negligent in (1) “[f]ailing to provide a safe premises for [Paula] as a business invitee”; (2) “[f]ailing to properly train and supervise employees as to the proper stacking of merchandise; and” (3) “[o]therwise failing to exercise ordinary care under the circumstances for the safety of [Paula].” The Duponts alleged Fred's Stores' negligence caused Paula past and future “painful and permanent personal injuries,” “medical expenses,” “loss of wage and salary,” “pain, suffering and mental anguish,” and caused James loss of consortium.

Pursuant to Fed. R. of Evid. 401 and 403, the Duponts moved before trial to exclude “[a]ny testimony, evidence, comment, or argument, whether in voir dire or in trial, related to the possibility that [Paula] was contributorily negligent.” The Duponts argued such evidence was irrelevant, unfairly prejudicial, and would confuse and mislead the jury because (a) Fred's Stores did not plead contributory negligence as an affirmative defense in its answer as required by Arkansas law, and (b) pretrial discovery did not produce any evidence suggesting Paula's negligence caused the accident. The defendant responded in part by moving to amend its answer to allege contributory negligence.

On the eve of trial, the court held a pretrial conference. The district court ruled the defendant could not amend its answer so close to the trial, but allowed Fred's Stores to “ask [Paula] all the things she did wrong and why she did those wrong things.” In a written order, the district court denied the Duponts' motion in limine “to the extent that [Fred's Stores would] be permitted to cross-examine Paula Dupont regarding any potential negligence on her part.”

A two-day trial ensued. Before closing arguments, the parties argued over the jury instructions. As relevant to this appeal, the Duponts proffered a res ipsa loquitur instruction and objected to Instruction No. 16, which was inconsistent with res ipsa loquitur, and Instruction No. 14, which implicated contributory negligence. The district court rejected the res ipsa loquitur instruction and gave Instructions 14 and 16 over the Duponts' objections.

The jury returned a verdict in favor of Fred's Stores, finding the store's negligence, if any, was not the proximate cause of Paula Dupont's damages. The Duponts appeal.

II. DISCUSSIONA. Motion in Limine

The Duponts first contend “[t]he district court abused its discretion when it denied the Duponts' ... motion in limine and permitted [Fred's Stores] to elicit testimony regarding any potential negligence on the part of Paula Dupont.” Arguing the store “forfeited its contributory negligence defense by failing to plead” it as an affirmative defense, the Duponts maintain Arkansas law prohibits the introduction of evidence related to any negligence arguably attributable to Paula. See, e.g., Downing v. Lawrence Hall Nursing Ctr., 2010 Ark. 175, at 10, ––– S.W.3d ––––, –––– (2010) (explaining a defendant must

[652 F.3d 882]

plead and prove an affirmative defense in order for the court to consider it).

The Duponts' argument seeks too much. As a consequence of its pleading lapse, Fred's Stores did not have available the full benefit of a contributory negligence defense. See Ark.Code Ann. § 16–64–122(b) (providing a claimant's recovery for damages be “diminished in proportion to the degree of his or her own fault” unless that fault is “equal to or greater in degree” than the fault chargeable to the defendant, in which case recovery is barred). But the store's failure does not make all evidence relating to Paula's conduct excludable. Evidence of negligent conduct by Paula, had it been presented, would be probative in determining whether the store's conduct was the proximate cause of the injury, a central issue in the case.² We hold the denial of the Duponts' motion in limine was not “a clear and prejudicial abuse of discretion.” Quigley v. Winter, 598 F.3d 938, 946 (8th Cir.2010) (standard of review).

B. Jury Instructions

The Duponts challenge the jury instructions, claiming the district court abused its discretion by failing to instruct the jury on a res ipsa loquitur theory and by giving Instructions 14 and 16.

1. Standard of Review

We review a district court's jury instructions for an abuse of discretion.... Our review is limited to whether the jury instructions, taken as a whole, fairly and adequately represent the evidence and [Arkansas] law in light of the issues presented to the jury.... [E]ven if we find that a district court erroneously instructed the jury, we will reverse only where the error affects the substantial rights of the parties.Zebley v. Heartland Indus. of Dawson, Inc., 625 F.3d 449, 455 (8th Cir.2010) (quoting McCoy v. Augusta Fiberglass Coatings, Inc., 593 F.3d 737, 744 (8th Cir.2010) (internal quotation marks omitted)).

2. Res Ipsa Loquitur

The Duponts claim they were entitled...