UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RUBY KAY BALLANCE; TOMMY Y.
BALLANCE,
Plaintiffs-Appellees,
                                                                   No. 98-1702
v.

WAL-MART STORES, INCORPORATED,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CA-97-128-5-BR)

Argued: March 5, 1999

Decided: April 21, 1999

Before HAMILTON and MOTZ, Circuit Judges, and
SMITH, United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion. Judge Hamilton wrote
a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Raymond Earl Dunn, Jr., DUNN, DUNN, STOLLER &
PITTMAN, L.L.P., New Bern, North Carolina, for Appellant. Brame
Perry Morrison, Jr., NARRON & HOLFORD, P.A., Wilson, North
Carolina, for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In this diversity slip and fall case, a jury found a store negligent
and awarded the plaintiffs damages in the amount of $378,300. We
affirm.

I.

Ruby Ballance fell while shopping with her two children at a Wal-
Mart store in Wilson, North Carolina on December 2, 1994. She and
her husband, Tommy Ballance, sued Wal-Mart for damages resulting
from the fall. Ballance testified at trial that she entered the Wal-Mart
store between 5:00-6:30 P.M. and proceeded to the rear where the
sock bins were located. While Ballance was rounding the corner of
the aisle, she saw a cardboard box on the floor under the sock bin,
which was protruding into the aisle. As she stepped around the box,
she fell forward landing on her right wrist and right knee.

Lying on the floor immediately after her fall, Ballance noticed a
number of plastic coat hangers on the floor and some underneath her.
She also noticed, for the first time, that the protruding box was on its
side and contained other plastic hangers spilling out of it. Ballance
testified that after she fell a Wal-Mart employee came over to her and
said "I get so tired when it gets 5 o'clock in the afternoon. Them stock
boys get ready to go, they just go and leave everything right in the
middle of the aisle and don't make a difference what's sitting in
there." At trial, an expert in retail safety standards testified that Wal-
Mart violated its own safety standards in failing to keep the floor
hazard-free and clear of all objects, and in not disposing of the extra
hangers.

Dr. David Tomaszek, a neurosurgeon who treated Ballance after
her fall, explained that Ballance had a number of congenital spine

                     2
birth defects. Ballance and her husband both testified that Ballance
was asymptomatic prior to her fall, but after the fall, she began to
experience symptoms consistent with her spinal abnormalities. In Dr.
Tomaszek's opinion, the fall caused Ballance to become symptom-
atic. He noted that her condition was progressive and eventually, if
untreated, she would lose mobility and bladder function. He testified
that surgery would be necessary to alleviate the symptoms and stop
the spinal deterioration. Because the surgery carried some risks, Dr.
Tomaszek recommended to Ballance that she forestall surgery until
her symptoms advanced.

Anthony Sciara, Ph.D., also testified on Ballance's behalf. Relying
on Dr. Tomaszek's diagnosis, Sciara presented two alternative "life
care plans" for Ballance. Life care plans are often used in litigation
to determine the cost of long-term care. The first plan was based on
a scenario in which Ballance had the recommended surgery and her
condition stabilized. The other assumed that Ballance became
wheelchair-bound.

Wal-Mart put on its own medical expert, Dr. Michael Haglund,
who contradicted some, but not all, of the opinions of Ballance's
experts.

The jury found for the Ballances, awarding $353,300 to Ruby Bal-
lance and $25,000 in consortium damages to her husband. Shortly
thereafter, Wal-Mart submitted a renewed motion for judgment as a
matter of law or, in the alternative, a motion for a new trial. The dis-
trict court denied the motion.

II.

Wal-Mart first contends that Ballance's evidence was insufficient
as a matter of law to establish negligence on the part of Wal-Mart. We
must determine if "substantial evidence" supports the verdict. See
Bryan v. Merrill Lynch, 565 F.2d 276 (4th Cir. 1977). In doing so, we
consider the evidence in the light most favorable to the prevailing
party, see Andrade v. Mayfair Management, Inc. , 88 F.3d 258, 261
(4th Cir. 1996), recognizing that issues of negligence and contributory
negligence are generally best left to the jury, see Smith v. Wal-Mart

                     3
Stores, 495 S.E.2d 149, 151 (N.C. Ct. App. 1998) (citing Taylor v.
Walker, 360 S.E.2d 796, 199 (N.C. 1987)).

To prove negligence under North Carolina law, a plaintiff must
show (1) that the defendant negligently created the condition causing
the injury or (2) that the defendant negligently failed to correct the
condition after notice, either express or implied. See Hinson v. Cato's,
Inc., 157 S.E.2d 537, 538 (N.C. 1967). A defendant is not liable for
hazards that are open and obvious to the plaintiff. See Wrenn v. Hill-
crest Convalescent Home, Inc., 154 S.E.2d 483, 484 (N.C. 1967).

Wal-Mart initially argues that the box was "an open and obvious"
hazard for which it cannot be held liable. Ballance admits as much;
she acknowledges that she saw the box prior to falling. However, Bal-
lance makes no claim that the box caused her fall. Indeed, at trial she
repeatedly asserted that she "never touched the box" and "didn't hit
the box." Rather, Ballance testified at trial and asserts on appeal that
the hangers caused her fall. An assistant manager at the Wilson Wal-
Mart similarly testified that, when he spoke to Ballance immediately
after her fall, she told him that "she stepped on a plastic hanger and
she fell down."

Thus, Ballance maintains that the hangers, and not the box itself,
were the cause of her fall. Wal-Mart does not contend that the off-
white colored plastic hangers on the off-white colored floor consti-
tuted an open and obvious hazard, but the store nonetheless argues
that Ballance cannot recover. Specifically, Wal-Mart asserts that Bal-
lance presented insufficient evidence that (1) Wal-Mart caused the
hangers to be on the floor or (2) the hangers were on the floor for a
sufficient period of time to provide Wal-Mart with notice of them.

After careful review of the record, we believe that Ballance pro-
duced sufficient evidence for a rational jury to conclude that Wal-
Mart caused the hangers to be on the floor.1 Ballance repeatedly testi-
fied that the box with the hangers was "sticking out" into the aisle
from underneath the sock bin. She recounted that after her fall, she
_________________________________________________________________
1 For this reason, we do not need to reach the question of whether Bal-
lance also produced sufficient evidence that the hangers were on the
floor long enough to provide Wal-Mart with notice of them.

                    4
found the hangers around and under her and that the box, which con-
tained other hangers, was on its side. Ballance testified, without con-
tradiction, that she had not touched the box and thus had not caused
the hangers to spill out of it.

Furthermore, Ballance stated that the first Wal-Mart employee to
come to her aid, a woman with short black hair and a badge that Bal-
lance thought said "Bresler" on it, told her"I get so tired when it gets
5 o'clock in the afternoon. Them stock boys get ready to go, they just
go and leave everything right in the middle of the aisle and don't
make a difference what's sitting in there." Although Wal-Mart main-
tained that its well-trained stock employees would never leave a box
filled with hangers on its side spilling out onto the store floor, Wal-
Mart did not attempt to refute Ballance's testimony as to Bresler's
statement; e.g., the store did not offer Bresler's testimony or proof
that it had never employed a Ms. Bresler. Indeed, the testimony of
Wal-Mart's witness, Johnnie Jenkins, the assistant manager, entirely
accords with Ballance's report of Ms. Bresler's comment. Jenkins
conceded that the accident occurred during the week following
Thanksgiving, which he recognized was a "very hectic" time for the
store.

A defendant is "charged with knowledge of an unsafe or dangerous
condition on his premises during business hours created by his own
negligence or the negligence of any employee acting within the scope
of his employment, or of a dangerous condition of which his employee
has notice." Morgan v. Great Atlantic and Pacific Tea Co., 145
S.E.2d 877, 882 (N.C. 1966) (emphasis added). We believe that the
above evidence was sufficient to permit a jury to infer that, as a con-
sequence of a Wal-Mart employee's negligent acts, some hangers fell
onto the floor. See Kekelis v. Whiten Mach. Works, 160 S.E.2d 439,
443 (N.C. 1968) (plaintiff need not have direct evidence of negli-
gence, but may prove it with circumstantial evidence).

Wal-Mart contends that unless a plaintiff puts forward direct evi-
dence that Wal-Mart employees "caused the coat hangers to spill from
the box onto the floor," a claim is insufficient, as a matter of law, to
demonstrate negligence. However, the law does not require as much.
A plaintiff need only prove that she has suffered an injury which is
the reasonably foreseeable result of the defendant's negligent acts.

                     5
See Winters v. Lee, 446 S.E.2d 123, 124 (N.C. Ct. App. 1994); see
also Whitley v. Jones, 78 S.E.2d 147, 152 (N.C. 1953) ("The law
requires reasonable foresight, and, when the result complained of is
not reasonably foreseeable, in the exercise of due care, the party
whose conduct is under investigation is not answerable therefor."
(internal quotation marks omitted)). A defendant may be held liable
for a negligent act leading to an injury that "a man of ordinary pru-
dence would have known . . . was reasonably foreseeable from this
negligent conduct." Hart v. Ivey, 420 S.E.2d 174, 178 (N.C. 1992).

North Carolina law is clear that even if a third party (someone
other than Wal-Mart employees) contributed to the injury, the original
tortfeasor may still be liable so long as the injury was a reasonably
foreseeable result of its actions. For instance, in Hart v. Ivey, the
North Carolina Supreme Court held that hosts who served alcohol to
an intoxicated minor could be liable to the victim of an automobile
accident caused by the intoxicated minor. 420 S.E.2d at 177-78.
Because the hosts "knew or should have known" that the minor was
intoxicated and would be driving, "the jury could find from such evi-
dence that the [hosts] had done something a reasonable man would
not do and were negligent." Id. at 178. Similarly, in Hairston v. Alex-
ander Tank and Equip. Co., 311 S.E.2d 559 (N.C. 1984), the court
held that a car dealer could reasonably have foreseen that its negligent
failure to properly tighten the lug nuts on a vehicle it sold to the plain-
tiff would cause the vehicle to become disabled and subsequently
struck by another vehicle thus causing injury to the plaintiff. In Brown
& Williamson Tobacco Corp. v. CSX Transp. Corp., 882 F. Supp. 511
(E.D.N.C. 1995) (applying North Carolina law), the court denied a
defendant railroad summary judgment where the railroad had negli-
gently abandoned some flares in its railroad yard; those flares were
picked up by a teenager who later ignited one of the flares setting fire
to the plaintiff's warehouse. The court reasoned that "a reasonable
and prudent individual could foresee that the abandoned [flares] could
be used to harm a second party." Id. at 514. These general principles
are even more compelling in the present case because here, unlike in
Hart, Hairston, and Brown & Williamson, there is no evidence that
a third party (someone other than Wal-Mart employees) was in any
way responsible for the hazard.

In sum, it is reasonably foreseeable that leaving a box of hangers
on its side partially protruding into a store aisle will result in the

                     6
hangers being spilled onto the floor of the aisle creating a hazard.
Thus a reasonable jury could have found Wal-Mart negligent. See
Hastings v. Seegars Fence Co., 493 S.E.2d 782, 785 (N.C. Ct. App.
1997) (holding that issues of foreseeability "are ordinarily best left for
resolution by a jury").

III.

Wal-Mart next asserts that the district court erred in failing to grant
its motion for judgment as a matter of law on the ground that the evi-
dence established that Ballance was contributorily negligent as a mat-
ter of law. A customer has the duty to "(1) see that which can be seen
in the exercise of ordinary prudence, and (2) use reasonable safe-
guards to protect himself." Hinson, 157 S.E.2d at 538. Ballance testi-
fied that she did not see any of the hangers on the ground before she
fell. An expert testified at trial that a photograph he took of an identi-
cal hanger on the floor at the Wilson Wal-Mart demonstrated that "the
color of the coat hanger [was] very, very similar to the background
[floor]." He further testified, "[a]s a matter of fact, I should say when
I was taking this photograph I had to put the coat hanger down on the
floor, I got my camera out and I really had to get down and look for
the thing. It was amazing how it disappeared on the floor." Because
there is no evidence indicating that Ballance was not exercising ordi-
nary prudence when she fell on the hanger, Wal-Mart's contention
that she was contributorily negligent as a matter of law lacks merit.
See also Kremer v. Food Lion, Inc., 401 S.E.2d 837 (N.C. Ct. App.
1991) (plaintiff acts with prudence while looking at store items on
display).

IV.

Finally, Wal-Mart contends that the district court, in failing to limit
the testimony of the Ballances' expert medical witnesses, violated the
standard for admission of scientific expert evidence set forth in
Daubert v. Merrell-Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Daubert instructs district courts to make a"preliminary assessment
of whether the reasoning or methodology underlying[expert] testi-
mony is scientifically valid." 509 U.S. at 592-93. Under a Daubert
analysis, the district court must determine whether the testimony is

                     7
"reliable" and whether it is "relevant." Id. at 591-93. The Court sug-
gested the following four factors that a district court should look to
in exercising this "gatekeeping function": (1) whether a theory or
technique "can be (and has been) tested"; (2) whether it has "been
subjected to peer review and publication"; (3) whether, in respect to
a particular technique, there is a high "known or potential rate of
error" and whether there are "standards controlling the technique's
operation"; and (4) whether the theory or technique enjoys "general
acceptance" within a "relevant scientific community." Id. at 593-94.

Recently in Kumho Tire Co. v. Carmichael, ___ S.Ct. ___, 1999
WL 152275 (Mar. 23, 1999), the Supreme Court held that Daubert's
"gatekeeping" obligation requires a district court to make a prelimi-
nary assessment of all expert testimony, not just"scientific" testi-
mony. Id. at *8-9. Perhaps most significantly for the present case,
Kumho makes plain that a district court retains wide discretion in per-
mitting or excluding expert testimony. Thus, in Kumho the Supreme
Court reiterated that the district court's decision to admit or deny
expert testimony is reviewed only for an abuse of discretion. Id. at *8-
11. Furthermore, the Court explained that this discretion is not con-
fined to application of the four factors discussed in Daubert. Id. at *9-
10. Rather, the district court has "considerable leeway" to examine
any number of factors in determining whether expert testimony is reli-
able; these factors may include, but are not limited to, the Daubert
factors. Id. at *10-11. Thus, the abuse of discretion standard "applies
as much to the trial court's decisions about how to determine reliabil-
ity as to its ultimate conclusion." Id. at *11.

In Kumho the Supreme Court affirmed the district court's exclusion
of testimony by the plaintiff's expert as based on unreliable methodol-
ogy. The Kumho Court's directives as to the broad discretion to be
afforded a district court's determinations concerning the admissibility
of expert testimony require that we also affirm the district court's
decision as to admissibility, even though here the court admitted the
challenged expert testimony.

Wal-Mart contends that Dr. Tomaszek's testimony"relating to the
possibility of surgery, the possibility of paralysis, [and] the possible
loss of the use of bladder function" should have been excluded as
speculative and unreliable because Dr. Tomaszek was not recom-

                     8
mending surgery until some future date and because Ballance's symp-
toms were only slowly progressing. Dr. Tomaszek based his opinion
that Ballance's condition would progressively worsen and that sur-
gery would be necessary on published medical literature, personal
experience with numerous other patients with similar conditions, first-
hand observations of Ballance's deterioration, and notes and evalua-
tions of Ballance's other treating physicians. Wal-Mart's medical
expert, Dr. Haglund, maintained that there was an 80% likelihood that
surgery would be successful; however, even Dr. Haglund conceded
surgery could worsen Ballance's condition and that if Ballance did
not have surgery, her condition could progress to the loss of bowel
and bladder function and the loss of the ability to walk. Clearly, the
district court, after conducting a Daubert hearing at which it consid-
ered each party's evidence, did not abuse its broad discretion in
admitting Dr. Tomaszek's testimony.

Nor did the court err in admitting Dr. Sciara's life care plan testi-
mony. Again, Wal-Mart's claim is that because the life care plans are
contingent upon future events and choices (i.e. whether Ballance has
surgery and whether it is successful), they are speculative and unreli-
able. But Wal-Mart's objections simply do not implicate the "reliabil-
ity" of the opinions of either of the Ballances' medical experts. Those
experts testified to the eventual consequences of the disease, the treat-
ment options available to Ballance, the likelihood of success of these
options, and the cost of care depending on which option Ballance
chooses. Wal-Mart was able to cross-examine the Ballances' experts
and put on its own expert to refute their testimony. See Daubert, 509
U.S. at 596 ("Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the tradi-
tional and appropriate means of attacking shaky testimony."). In sum,
the district court did not abuse its discretion either in permitting plain-
tiffs' medical experts to testify about the future costs associated with
the consequence of Ballance's injury, or in denying Wal-Mart's
motion for a new trial based upon this testimony. 2
_________________________________________________________________
2 Wal-Mart also claims that Dr. Tomaszek's demonstrative use at trial,
and introduction into evidence, of a catheter was unfairly prejudicial and
violated Federal Rule of Evidence 403. It objects on the same grounds
to all of Dr. Sciara's testimony. After careful consideration, we find that
the district court was well within its discretion in allowing this evidence.

                    9
V.

For the reasons set forth above, the judgment of the district court
is

AFFIRMED.

HAMILTON, Circuit Judge, dissenting:

Because I disagree with the majority's conclusion that there is suf-
ficient evidence in the record to support the jury's verdict, I respect-
fully dissent.

Under North Carolina law, a store owner is not an insurer of the
safety of its customers. See Smith v. Wal-Mart Stores, Inc., 495
S.E.2d 149, 152 (N.C. App. 1998). Rather, a store owner has the duty
to

          keep the aisles and passageways of [its] store, where cus-
          tomers are expected to go, in a reasonably safe condition so
          as not to expose customers unnecessarily to danger, and to
          give warning of hidden dangers and unsafe conditions of
          which [it] knows or, in the exercise of reasonable supervi-
          sion and inspection, should know.

Rives v. Great Atl. & Pac. Tea Co., 315 S.E.2d 724, 726 (N.C. App.
1984). A store owner is charged with knowledge of a condition which
it either negligently created or negligently failed to correct after actual
or constructive notice of its presence. See Carter v. Food-Lion, Inc.,
488 S.E.2d 617, 620 (N.C. App. 1997); see also Roumillat v. Simplis-
tic Enters., Inc., 414 S.E.2d 339, 342-43 (N.C. 1992). Thus, to estab-
lish liability in this case, the Ballances had to prove that Wal-Mart
negligently created the condition causing Ruby Ballance's injury, or
negligently failed to correct the condition causing Ruby Ballance's
injury after actual or constructive notice of its existence.

In their attempt to establish liability, the Ballances contend that
Wal-Mart is charged with knowledge of two conditions it negligently
created: (1) the box protruding from under the sock bin and into the

                     10
aisle; and (2) the hangers in the aisle. As to the former condition, the
Ballances' case clearly fails, as the majority correctly notes, see ante
at 4, because Ruby Ballance testified that the box protruding out from
under the sock bin and into the aisle was an open and obvious condi-
tion which she observed and appreciated.

Admittedly, the latter condition is a closer question, as Ruby Bal-
lance was unaware of the condition--the hangers lying in the aisle.
However, it was incumbent upon the Ballances to prove either that:
(1) a Wal-Mart employee negligently created the condition, i.e.,
placed, or caused to be placed, the hangers in the aisle, or (2) Wal-
Mart negligently failed to correct the condition after actual or con-
structive notice of its existence. In my view, the Ballances failed to
prove that Wal-Mart negligently created the condition or had actual
or constructive notice of the condition.

The Ballances and the majority rely on the statement of a Wal-Mart
employee (Bresler) to Ruby Ballance after the incident. Bresler said:
"I get so tired when it gets 5 o'clock in the afternoon. Them stock
boys get ready to go, they just go and leave everything right in the
middle of the aisle and don't (sic) make a difference what's sitting in
there."

For two reasons, Bresler's statement to Ruby Ballance should be
disregarded. First, the record contains no evidence regarding what
formed the basis of Bresler's knowledge that the stockboys left "ev-
erything" in the aisles at 5:00 p.m. There is no evidence as to how
long Bresler worked for Wal-Mart (a day, a week, a month, a year?),
in what capacity she was employed by Wal-Mart, her position's rela-
tionship to the activities of the stockboys, and what gave her superior
knowledge of the stockboys' activities. In fact, the record contains no
evidence that Wal-Mart ever employed a person by the name of Bres-
ler.

Second, Bresler's statement to Ruby Ballance simply does not sug-
gest, let alone prove, that a Wal-Mart employee was responsible for
the presence of hangers in the aisle, or that Wal-Mart had actual or
constructive notice of the condition. Indeed, it is unclear exactly what
Bresler meant by the word "everything" in describing what the stock-
boys left in the aisle. Did she mean that every Wal-Mart item found

                    11
in the aisle at 5:00 p.m. during the "very hectic" week following
Thanksgiving at the Wal-Mart store in question was placed there by
a Wal-Mart employee and not by one of the thousands of customers
that shopped the store during that time? Of course she did not; such
a proposition would be absurd. Then, did she mean that certain items,
for example, hangers, found during that time were placed there, or
caused to be placed, by Wal-Mart employees and not by one of the
thousands of customers that shopped the store during that time? In the
absence of evidence that Wal-Mart had a persistent problem with the
manner in which its stockboys performed their duties, like the jury,
I can only guess at what Bresler meant by her statement to Ruby Bal-
lance.

Equally fatal to the majority's analysis is that even if one assumed
Wal-Mart's stockboys occasionally left Wal-Mart items in the aisles,
this fact does not form the basis to conclude that a Wal-Mart
employee was responsible for the presence of the hangers in the aisle,
or that Wal-Mart had actual or constructive notice of the condition.
Obviously, some other customer could have haphazardly removed
some of the hangers from the box, perhaps while trying to hang up
a piece of clothing that the customer had tried on, placed the box on
its side in doing so, or bumped the box causing the box to lay on its
side and allowing the hangers to spill into the aisle. Again, we can
only guess as to what caused the hangers to wind up in the aisle.

Over thirty years ago, the North Carolina Supreme Court admon-
ished its lower courts not to engage in guesswork to determine how
long a condition existed in a store so as to give rise to store owner
liability:

          Even if a negligent situation could be assumed here, had it
          existed a week, a day, an hour, or one minute? The record
          is silent; and since the plaintiff must prove her case, we can-
          not assume, which is just a guess, that the condition had
          existed long enough to give the defendant notice, either
          actual or implied.

Hinson v. Cato's, Inc., 157 S.E.2d 537, 538 (N.C. 1967). That admon-
ishment applies equally in the context of determining whether a store
owner negligently created the condition causing the injury. In this

                    12
case, we can only guess as to who negligently created the condition
at issue.

In sum, I think the evidence is insufficient to establish that Wal-
Mart negligently created the condition at issue, or had actual or con-
structive notice of it. In the absence of such proof, there can be no lia-
bility. Accordingly, I would reverse. Because I would reverse the
judgment of the district court, I respectfully dissent.

                     13
