Smith v. Jefferson County Chamber of Commerce, Inc.

• Decision Date: 14 September 1989
• Docket Number: No. 88-1765,88-1765
• Citation: 885 F.2d 866
• Parties: Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Judy M. SMITH, Plaintiff-Appellant, v. JEFFERSON COUNTY CHAMBER OF COMMERCE, INC., George Vickers, Manager, Florence Hatfield, Lowell Hatfield, d/b/a Country Trunks, James Does, (1-100), Defendants-Appellees, v. Paul REMSBERG, t/a Remsberg's Tent Rentals, Third Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 866

885 F.2d 866

Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Judy M. SMITH, Plaintiff-Appellant, v. JEFFERSON COUNTY CHAMBER OF COMMERCE, INC., George Vickers,

Manager, Florence Hatfield, Lowell Hatfield, d/b/a

Country Trunks, James Does, (1-100), Defendants-Appellees, v. Paul REMSBERG, t/a Remsberg's Tent Rentals, Third Party

Defendant-Appellee.

No. 88-1765.

United States Court of Appeals, Fourth Circuit.

Argued June 6, 1989.

Decided Sept. 14, 1989.

Leslie Allison Powell (Rogerr C. Simmons, Gordon, Simmons & Cornelison on brief) for appellant.

Donald Kevin Krohn (Michael S. DeBaugh, Lord & Whip, P.A. on brief), Thomas V. Monahan, Jr. (Goodell, Devries, Leech & Gray on brief) for appellees.

Before WIDENER and WILKINSON, Circuit Judges, and RICHARD L. VOORHEES, United States District Judge for the Western District of North Carolina, sitting by designation.

PER CURIAM:

Appellant Judy Smith sustained a leg injury at a crafts festival in Charles Town, West Virginia, which was operated by appellee Jefferson County Chamber of Commerce ("JCCOC"). Although the facts are disputed, it is agreed that her leg struck a tent peg, resulting in physical injuries. Smith claims here injuries are due to negligence, both on the part of JCCOC and co-appellees, the Hatfields, who were exhibitors. Smith also sought to claim that she was the victim of negligent misrepresentation by JCCOC, due to an unkept promise by them to take care of her medical expenses. The district court dismissed the simple negligence claim as against the Hatfields for lack of personal jurisdiction, but permitted that claim to go forward as against JCCOC. The court also disallowed the negligent misrepresentation claim, which was offered as an amendment to the original complaint, as untimely.

Trial began in district court in Maryland, Smith's home state. The jury returned a verdict in favor of the defendants. Smith appeals, assigning error on assumption of risk, in personam jurisdiction and negligent misrepresentation. We affirm the judgment of the district court in all respects.

I. ASSUMPTION OF RISK

West Virginia is a comparative negligence state. The district court instructed the jury that assumption of risk by the plaintiff, if proved, was a valid defense and would act as a complete bar to recovery from JCCOC. A defendants' verdict followed.

The accident involved one of numerous tent pegs used at the fair. There was conflicting evidence as to how the pegs were installed, how they were painted or otherwise made easier to see, and what degree of danger they represented to fairgoers. The circumstances of the individual peg with which Mrs. Smith collided were also hotly disputed. However, Mrs. Smith's testimony that she had seen the pegs before the accident, considered them dangerous, and took care to avoid them, was undisputed. The defense seized on these facts to argue that she had assumed the risk, and the court granted an instruction on the point.

This Court believes that the doctrine of assumption of risk was inapplicable to the facts of this case, and that the district court should not have instructed the jury on it. However, we also believe that the instruction was at most harmless error. There is ample support in the record for the verdict the jury reached.

"The doctrine of harmless error expressed in Rule 61 [of the Federal Rules of Civil Procedure] is applicable to errors in instructions to the jury, and whether such errors are harmless or prejudicial depends upon whether substantial rights of a party are affected thereby. This requires consideration of the instructions as a whole ... errors ... which do not affect substantial rights ... are not grounds for disturbing the verdict or judgment."

7 J. Moore, J. Lucas, Moore's Federal Practice, p 61.09, pp. 61-32--61-34 (footnotes omitted).

Because the district court declined to place an interrogatory regarding assumption of risk on the verdict sheet, we do not know whether the jury considered it or not. However, we cannot say that they would have reached a different verdict had they not been instructed upon the doctrine. Assumption of risk is a doctrine which acts to negate the defendant's negligence or unreasonableness when the plaintiff volunteers to meet the risk. In order for it to be applicable in the first place, there must first be some unreasonable or extraordinary danger, created by actions of the defendant, i.e., negligence. The jury disposed of this issue by answering "No" to the first issue, "Were George Vickers and the Jefferson County Chamber of Commerce, Inc. negligent?" ¹ The giving of the instruction regarding assumption of risk prejudiced no substantial right of the plaintiff.

II. IN PERSONAM JURISDICTION OVER THE HATFIELDS

Appellees Lowell and Florence Hatfield conducted an exhibit at the fair in connection with their business "Country Trunks." Smith claimed they were partially liable for her injuries because they negligently placed their exhibits in a position where they obscured her view of the tent peg, which she might otherwise have seen and avoided. The district court ruled that the Hatfields, who are Virginians, did not have sufficient contacts with Maryland to be sued there.

We think the Hatfields' total contact with Maryland is insufficient basis for jurisdiction. The strongest showing of their contact with Maryland which appellant can make is evidence of their trips into Maryland to purchase trunks for their business. This might well suffice if Smith's cause of action had something to do with those purchases, e.g., if she bought a Maryland-source trunk from the Hatfields, it turned out to be defective, and she sued for breach of contract. Purchases from a state are of...