Brown v. Sandals Resorts Intern., 01-1218.

• Decision Date: 28 March 2002
• Docket Number: No. 01-1218.,01-1218.
• Citation: 284 F.3d 949
• Parties: Bill BROWN; Lynette Brown; Jan Anderson; Dorothy Anderson, Plaintiffs-Appellants, v. SANDALS RESORTS INTERNATIONAL; Sandals Negril, Ltd., Defendants-Appellees. Unique Vacations, Inc., Defendant. Gorstew, Ltd., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

284 F.3d 949

Bill BROWN; Lynette Brown; Jan Anderson; Dorothy Anderson, Plaintiffs-Appellants, v. SANDALS RESORTS INTERNATIONAL; Sandals Negril, Ltd., Defendants-Appellees Unique Vacations, Inc., Defendant Gorstew, Ltd., Defendant-Appellee.

No. 01-1218.

United States Court of Appeals, Eighth Circuit.

Submitted: October 19, 2001.

Filed: March 28, 2002.

Rehearing and Rehearing En Banc Denied: May 22, 2002.^*

James Ellis Moore, Sioux Falls, SD, argued (William G. Beck, on the brief), for Plaintiffs-Appellants.

David B. Newman, New York City, argued (Stephen L. Brodsky, on the brief), for Defendants-Appellees.

Before McMILLIAN, BEAM and MURPHY, Circuit Judges.

McMILLIAN, Circuit Judge.

Bill and Lynette Brown and Jan and Dorothy Anderson ("appellants") appeal from a final judgment entered in the United States District Court¹ for the District of South Dakota upon a jury verdict in favor of Sandals Resorts International, Sandals Negril, Ltd., Unique Vacations, Inc., and Gorstew, Ltd. ("appellees") on appellants' claim of negligence. See Brown v. Sandals Resorts International, No. 99-4026-KES (D.S.D. Dec. 21, 2000) (denying appellants' motion for judgment as a matter of law or for a new trial) (hereinafter "slip op."). For reversal, appellants argue that the district court erred in submitting to the jury an instruction on appellees' act of God defense, and in refusing to instruct the jury about the adverse inference that could be drawn from appellees' alleged destruction of evidence. For the reasons discussed below, we affirm the judgment of the district court.

Jurisdiction

Jurisdiction in the district court was proper based on 28 U.S.C. § 1332. Jurisdiction is proper in this Court based upon 28 U.S.C. § 1291. Appellants filed a timely notice of appeal under Fed.R.App.P. 4(a)(1)(A).

I. Background

On February 3, 1998, appellants were vacationing at a Jamaican resort owned and operated by appellees. Bill Brown and Jan Anderson were sitting in lounge chairs on the beach when a palm tree fell and struck them. As a result of the palm tree falling on them, Anderson suffered a disabling tibial plateau fracture, and Brown suffered at least four broken vertebrae, a broken rib, renal contusion, and deep bruising and a large hematoma on his back. Appellants subsequently brought this negligence action against appellees, alleging that appellees were negligent in failing to care for and inspect the tree, that the tree fell because its root system and base were rotten and inadequate to support its weight, and that appellees failed to warn of the tree's hazardous condition.

On several occasions during the pre-trial discovery phase, the district court sanctioned appellees for violations of the discovery rules. On July 21, 2000, appellants moved for Rule 37 sanctions against appellees because appellees failed to disclose photographs taken of the fallen tree and an incident report prepared immediately after the accident. On August 11, 2000, the district court granted in part appellants' motion for sanctions, finding that appellees had "engaged in a pattern of discovery abuse, such as failures to meet deadlines regarding discovery, evasive or nonresponsive answers to interrogatories, failure to answer interrogatories, and refusal to produce documents." The district court then prohibited appellees from introducing at trial any testimony or evidence that had not been previously disclosed.

The trial was conducted during the week of August 14, 2000. At trial, appellants introduced weather reports suggesting that the wind was not particularly forceful on the day the tree fell, and Brown, Anderson, and their spouses testified that it was not unusually windy. Appellants presented expert testimony from arborist Walter Barrows, who opined that the tree fell because its vascular system was damaged, as evidenced by a large scar on its trunk, and because its root system was inadequate to bear its weight. Barrows concluded that any person using generally accepted inspection principles would have discovered the hazard posed by the tree. Barrows also testified that he was unable to inspect the actual tree because appellees removed and disposed of the tree shortly after it fell, so he relied instead on photographs of the tree taken immediately after it had fallen. Barrows admitted, however, that he did not believe it would have done "any good" for him to conduct an onsite inspection because he was not retained until more than six months after the incident.

Appellees presented evidence to support their defense that the tree fell as the result of an act of God, and not due to any negligence on their part. The resort's general manager, Baldwin Powell, testified that it was "extremely windy" the night preceding the incident. Another resort guest, Matthew Bakalars, testified that it was very windy the day before the tree fell, and much windier than on previous days. Bakalars also testified that the tops of all of the trees on the beach were moving, causing debris to fall on the beach.

Appellees introduced expert testimony from Diane Clarke, a landscape consultant from Barbados, who testified that, in her opinion, the incident was the result of an act of God. Clarke testified that she visited the site more than two years after the incident, and discovered the tree's root ball where the tree had fallen.² Clarke testified that she conducted a series of tests which indicated that no disease or other biological phenomena caused the tree to fall, that her investigation revealed that the wind was gusting the day of the incident, and that she found no evidence that an act of negligence caused the tree to fall. After ruling out biological factors and negligence, and considering the extreme wind, Clarke testified that the tree's falling could only be attributed to an act of God.

At the close of evidence, appellants moved for judgment as a matter of law on appellees' defense that the tree fell due to an act of God. The district court denied the motion and subsequently instructed the jury on the act of God defense.³ Appellants proposed a jury instruction on the adverse inference the jury could draw from appellees' alleged destruction of the tree's root ball.⁴ The district court rejected this proposed instruction as well, ruling that its instruction on appellees' failure to produce the evidence was sufficient.⁵

On August 18, 2000, the jury returned a general verdict in favor of appellees, and the district court entered judgment on August 31, 2000. On September 14, 2000, appellants filed a renewed motion for judgment as a matter of law or for a new trial on the grounds that the district court erred in instructing the jury on the act of God defense and in refusing to instruct the jury on the adverse inference it could draw from appellees' alleged destruction of evidence. On December 21, 2000, the district court denied appellants' motion, holding that there was sufficient evidence to support the act of God instruction and that appellants had not been prejudiced by the instruction. See slip op. at 5-6. The district court also held that appellants' proposed destruction of the evidence instruction would have been repetitious and would have unduly emphasized this aspect of appellants' case, and that, in any event, appellants had not been prejudiced by the failure to give this instruction. See id. at 4-5. This appeal followed.

II. Discussion

A. Standard of Review

We review the jury instructions given by a district court for an abuse of discretion. See, e.g., B & B Hardware, Inc. v. Hargis Indus., 252 F.3d 1010, 1012-13 (8th Cir.2001) (emphasizing that "district court has broad discretion in instructing the jury, and jury instructions do not need to be technically perfect or even a model of clarity"). Our review is limited to whether the jury instructions, taken as a whole, "fairly and adequately represent the evidence and applicable law in light of the issues presented to the jury in a particular case." Ford v. GACS, Inc., 265 F.3d 670, 679 (8th Cir.2001) (citation omitted) (affirming district court's refusal to submit defendant's proposed jury instructions on mitigation because defendant failed to meet initial burden). In a diversity case, the substance of the jury instructions must fairly and adequately represent the law of the forum state. See id. The jury should receive instructions on issues supported by competent evidence in the record; the trial court is not required to instruct on issues that do not find support in the record. See id. at 679-80. Moreover, even where a jury instruction is erroneously given to the jury, reversal is warranted only where the error affects the substantial rights of the parties. See Phillips v. Collings, 256 F.3d 843, 851-52 (8th Cir.2001) (affirming ruling of district court, holding no reversible error because defendant "suffered no prejudice from the absence of more detailed instructions"); Burry v. Eustis Plumbing & Heating, Inc., 243 F.3d 432, 434 (8th Cir.2001) (Burry).⁶

B. Act of God Defense Instruction

Appellants first argue that the district court erred in instructing the jury on the act of God defense. Under South Dakota law, an act of God is defined as "any accident, due directly and exclusively to natural causes without human intervention, which by no amount of foresight, pains, or care, reasonably to have been expected, could have been prevented." Northwestern Bell Telephone Co. v. Henry Carlson Co., 83 S.D. 664, 165 N.W.2d 346, 349 (S.D.1969) (holding that whether damage was proximately caused by act of God is question of fact for jury to resolve, and that trial judge erred in taking issue away from jury). "An act of God must be the sole proximate cause of damages without concurrent negligent participation of the defendant before the defendant is entitled to a verdict." Id.

Appellants argue that the evidence at trial was insufficient to establish that the wind was so unusual and extraordinary a...