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McConnell v. Wal-Mart Stores, Inc.

United States District Court, D. Nevada

April 17, 2014

URBAN McCONNELL, Plaintiff,
v.
WAL-MART STORES, INC., Defendant.

ORDER

ROBERT C. JONES, District Judge.

This is a slip-and-fall case. Pending before the Court are two Motions for New Trial (ECF Nos. 85, 86). For the reasons given herein, the Court denies the motions.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff Urban McConnell alleged that on or about December 10, 2010, he slipped, fell, and injured himself at the Wal-Mart store at 8060 W. Tropical Pkwy., Las Vegas, Nevada after an employee mopped the floor without blocking access to the area or warning customers. (Compl. ΒΆΒΆ 5-9, Aug. 7, 2012, ECF No. 1-2). Defendant removed and moved for summary judgment as against the prayer for punitive damages. Plaintiff stipulated to dismiss the prayer for punitive damages, and the Court therefore denied the motion as moot. A jury rendered a verdict for Defendant. Defendant has submitted a proposed take-nothing verdict, and Plaintiff has moved for a new trial.

II. LEGAL STANDARDS

After a jury trial, a district court may, upon motion, grant a new trial "for any reason for which a new trial has heretofore been granted in an action at law in federal court...." Fed.R.Civ.P. 59(a)(1)-(a)(1)(A). Erroneous jury instructions are grounds for a new trial unless the error is harmless. Murphy v. City of Long Beach, 914 F.2d 183, 187 (9th Cir. 1990).

III. ANALYSIS

A. First Motion for New Trial

Plaintiff argues that the Court improperly instructed the jury as to the assumption of the risk doctrine, and that the error was not harmless. The Court rejects this argument. Plaintiff argues that the Court instructed the jury on the assumption of the risk doctrine as follows:

Defendant seeks to establish that Plaintiff assumed the risk of any injury he claims to have sustained in the incident:
In order to establish that Plaintiff assumed the risk, Defendant must prove, by a preponderance of the evidence, the following elements:
1. That Plaintiff has actual knowledge of the risk
2. That Plaintiff voluntarily exposed himself to the danger.
If you find that each of these elements has been proved, then Plaintiff may not recover for his injuries and your verdict should be for the Defendant . If, on the other hand, you decide that any of these elements has not been proved, then ...

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