URBAN McCONNELL v. Wal-Mart Stores, Inc.

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
URBAN McCONNELL,
Plaintiff-Appellant,
v.
WAL-MART STORES, INC.,
Defendant-Appellee.
No. 14-15941
D.C. No. 2:12-cv-01601-RCJ-PAL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Senior District Judge, Presiding
Submitted May 13, 2016**
San Francisco, California
Before: McKEOWN, SACK***, and FRIEDLAND, Circuit Judges.
Plaintiff Urban McConnell slipped and fell on a wet floor in a Wal-Mart
store in Las Vegas and suffered serious injury to his left knee. He brought suit in
* This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Robert D. Sack, Senior Circuit Judge for the
U.S. Court of Appeals for the Second Circuit, sitting by designation.
FILED
MAY 26 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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the United States District Court for the District of Nevada against Wal-Mart in tort
on a negligence theory. The case was tried in the district court before a jury, which
returned a verdict in favor of Wal-Mart on the sole basis that it was not negligent.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
On appeal, McConnell raises three issues, each of which lacks merit.
First, McConnell argues that the district court erred in denying his Rule
50(b) motion for judgment as a matter of law based on the evidence at trial. "'We
review de novo the district court's denial of a renewed motion for judgment as a
matter of law' under Rule 50(b)." EEOC v. Go Daddy Software, Inc., 581 F.3d
951, 961 (9th Cir. 2009) (quoting Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th
Cir. 2006)). The district court could not entertain McConnell's Rule 50(b) motion
because he failed to first file a timely Rule 50(a) motion as required by Rule 50(b).
See Tortu v. Las Vegas Metro. Police Dep't, 556 F.3d 1075, 1078 (9th Cir. 2009).
Second, McConnell advances several arguments concerning the district
court's assumption of risk instruction and its denial of his Rule 59 motion for a new
trial, which was based on that instruction. "We review de novo whether [a jury]
instruction misstates the law. If so, the error warrants reversal, unless it is
harmless." Harrington v. Scribner, 785 F.3d 1299, 1306 (9th Cir. 2015). Even if
the assumption of risk instruction was erroneous, reversal would not be required
here because the "error [wa]s more probably than not harmless," and the defendant

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has demonstrated that "it is more probable than not that the jury would have
reached the same verdict had it been properly instructed." Clem v. Lomeli, 566
F.3d 1177, 1182 (9th Cir. 2009) (quoting Dang v. Cross, 422 F.3d 800, 811 (9th
Cir. 2005)). The jury found that Wal-Mart was not negligent, and therefore never
was required to nor did reach the issue of McConnell's comparative negligence and
whether he had assumed the risk of walking on the wet floor. Simply put, the
assumption of risk instruction could not have affected the jury verdict.
Third, McConnell objects to "ad lib" explanatory commentary and
hypothetical examples used by the district court in the course of delivering its jury
instructions. But as McConnell concedes, he made no contemporaneous objections
to these comments or examples. By failing contemporaneously to object,
McConnell has waived his ability to challenge them on appeal. E.g., Affordable
Hous. Dev. Corp. v. City of Fresno, 433 F.3d 1182, 1196 (9th Cir. 2006) ("Failure
to object to an instruction waives the right of review."). In any event, the district
court's commentary and use of hypothetical examples here did not impermissibly
follow the fact pattern of this case or otherwise mislead the jury, and for this
reason did not prejudice McConnell. Cf. United States v. Abushi, 682 F.2d 1289,
1300-01 (9th Cir. 1982).
Judgment AFFIRMED.

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