                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-3562
                                     ___________

Marion R. Stafne,                            *
                                             *
                Appellant,                   *
                                             * Appeal from the United States
        v.                                   * District Court for the District
                                             * of Minnesota.
Unicare Homes, d/b/a                         *
Trevilla of New Brighton, Inc.,              *
                                             *
                Appellee.                    *
                                             *
---------------------------------------      *
                                             *
Equal Employment Opportunity                 *
Commission,                                  *
                                             *
        Amicus on Behalf of Appellant. *
                                        ___________

                               Submitted: November 17, 2000

                                    Filed: October 1, 2001
                                     ___________

Before LOKEN, LAY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

     Trevilla of New Brighton, Inc., fired Marion Stafne after she developed
rheumatoid arthritis, a condition that greatly limited her ability to walk and perform the
duties of her job as a nurse. Ms. Stafne subsequently brought a lawsuit against Trevilla
under the Americans with Disabilities Act ("ADA"), see 42 U.S.C. §§ 12101-12213,
and the Minnesota Human Rights Act, see Minn. Stat. Ann. §§ 363.01-363.20,
claiming that Trevilla discriminated against her because of her disability and retaliated
against her because she filed a complaint with the Equal Employment Opportunity
Commission ("EEOC") while she was still employed. Following a two-week trial, a
jury reached a verdict in favor of Trevilla.

       Ms. Stafne argues on appeal that the district court1 erred in several of its rulings
during the course of her trial. She maintains, in particular, that the district court should
have given certain jury instructions that she proposed and should not have excluded
certain evidence that tended to support her retaliation case. We affirm the judgment
of the district court.

                                             I.
       Ms. Stafne first contends that the district court erred in rejecting her proposed
jury instructions regarding Trevilla's duty to engage in an interactive process to
determine whether Trevilla could have provided her with an accommodation that would
have permitted her to keep her job. See generally Fjellestad v. Pizza Hut of America,
Inc., 188 F.3d 944, 952 (8th Cir. 1999). She insists that her proposed instructions were
critical to the theory of her case because they would have allowed the jury to find that
Trevilla's failure to engage in an interactive process constituted bad faith.

       We observe that our review of Ms. Stafne's argument is made more difficult by
her failure to explain how the matter is related to her claim that Trevilla discriminated
against her on the basis of her disability. Ms. Stafne never states precisely why it was
important for her to convince to the jury that Trevilla acted in bad faith. The district


       1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.

                                            -2-
court apparently faced the same difficulty in understanding her argument; it rejected her
request for jury instructions concerning an interactive process because it felt that they
would be "unnecessary" and "floating alone, unmoored to any of the issues that the jury
had to resolve."

        We think it important to emphasize that Ms. Stafne does not maintain that
Trevilla would have discovered an accommodation that would have allowed her to do
her job if only it had discussed matters with her further. The only accommodation that
Ms. Stafne suggested was allowing her to use a motorized cart called an Amigo, and
it is hard to see on the record before us how more interaction between her and Trevilla
would have made any difference in this regard. Ms. Stafne, moreover, does not now
claim that there was some other way in which Trevilla could have accommodated her.
Previous cases of ours have emphasized that it is the plaintiff's burden in this kind of
case to prove that there was an accommodation that would have allowed him or her to
perform the essential functions of his or her job, see, e.g., Cannice v. Norwest Bank
Iowa N.A., 189 F.3d 723, 727-28 (8th Cir. 1999), cert. denied, 529 U.S. 1019 (2000),
and, as we shall demonstrate, Ms. Stafne failed to do so.

       To establish a submissible case of discrimination under the ADA, Ms. Stafne had
to produce evidence that would allow a jury to find, among other things, that she was
qualified to perform the essential functions of her job with or without reasonable
accommodations. See Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d
1011, 1016 (8th Cir. 2000). As a nurse at Trevilla's extended care facility, Ms. Stafne
had many responsibilities that required significant amounts of walking. For example,
with respect to her dining room duties, she had to walk from table to table during
breakfast and lunch for three hours every day, serving meals to the facility's residents.
Ms. Stafne was also in charge of pushing wheelchair-bound residents to their proper
seating locations in the dining room and had to perform the Heimlich maneuver if any
of the residents should require it. Because these duties were essential functions of


                                          -3-
Ms. Stafne's job, she had the burden to prove that, with reasonable accommodations,
she could have performed them notwithstanding her disability.

        Ms. Stafne, however, failed to make a submissible case on this issue. Indeed,
all of the evidence at trial tended to show that Ms. Stafne would not have been able to
push wheelchairs or assist the residents in their dining even if Trevilla had allowed her
to use an Amigo, the accommodation that she requested and was denied. Trevilla's
vocational expert testified that it was impossible for Ms. Stafne to ride in an Amigo and
push wheelchair-bound residents at the same time. Ms. Stafne's own doctors,
moreover, stated that she needed a "totally sedentary sit-down job" and was qualified
for "seated work only." Given the evidence as presented, there can be no genuine
factual dispute that Ms. Stafne would have been unable to perform her duties in the
dining room even if she had been allowed the use of an Amigo. See Browning v.
Liberty Mut. Ins. Co., 178 F.3d 1043, 1048 (8th Cir. 1999).

       Ms. Stafne responds to the assertion that she failed in her proof only by insisting
that pushing wheelchairs was not a part of her job duties. We find this argument
impossible to credit, however, since Ms. Stafne herself admitted several times in her
testimony at trial that she often had to push and lift wheelchair-bound residents in the
dining room. She also stated that she exacerbated an injury resulting from her disability
while she was pushing a particularly heavy resident in a large wheelchair. It is
incontrovertible therefore that pushing wheelchair-bound residents was among the
essential functions of Ms. Stafne's job, despite her contention on appeal that it was not.
See Lloyd v. Hardin County, Iowa, 207 F.3d 1080, 1084 (8th Cir. 2000).

        Because Ms. Stafne did not make out a jury question on an essential element of
her case, we conclude that any errors in the district court's jury instructions with respect
to the interactive process were necessarily harmless. See Burlison v. Warner-Lambert
Co., 842 F.2d 991, 992-93 (8th Cir. 1988).


                                            -4-
       We also hold that the record in this case could not in any event have supported
a finding that Trevilla failed to engage in an interactive process with her. The proof
showed that Ms. Stafne and Trevilla had numerous discussions concerning her
proposed use of an Amigo for work. In particular, Trevilla met with Ms. Stafne and
her vocational rehabilitation counselor to investigate whether an Amigo could be used
in Trevilla's dining room area. It does not seem to us, therefore, that there is sufficient
evidence in this case to find that Trevilla did not act in good faith in attempting to
provide Ms. Stafne with a reasonable accommodation. See Treanor v. MCI Telecomm.
Corp., 200 F.3d 570, 575 (8th Cir. 2000).

       Ms. Stafne also maintains that the district court erred when it instructed the jury
that she had the burden to prove that her disability did not make her a direct threat to
anyone's safety at her work. She argues that the district court misallocated the burden
because the issue of direct threat was an affirmative defense raised by Trevilla; thus,
the argument runs, Trevilla should have been the party obligated to prove that she was
a danger to others. We need not address this argument, however, because, as we have
explained, Ms. Stafne's failure to present a submissible case renders harmless any
errors in the jury instructions.

                                            II.
       To prove her retaliation claim, Ms. Stafne had to establish that she engaged in
a statutorily protected activity, that her employer took an adverse action against her,
and that there was a causal link between the two. See Amir v. St. Louis Univ., 184
F.3d 1017, 1025 (8th Cir. 1999). Ms. Stafne contended below that Trevilla fired her
because she filed a charge with the EEOC complaining about Trevilla's unwillingness
to allow her to use an Amigo.

      With regard to her retaliation claim, Ms. Stafne argues that the district court
should have allowed the jury to hear a message that her supervisor left on her
answering machine on the day that she was terminated, a message that stated, in part,

                                           -5-
"I understand we are going into a lawsuit so I guess this is where it stands." When
Trevilla offered to stipulate that it had notice of Ms. Stafne's EEOC complaint before
it terminated her, the district court excluded the statement both as irrelevant and as
unfairly prejudicial under Fed. R. Evid. 403.

        We review a district court's exclusion of evidence because of its unfairly
prejudicial effect for a "clear abuse of discretion," see Stephens v. Rheem Mfg. Co.,
220 F.3d 882, 885 (8th Cir. 2000), and we see no abuse of discretion here. We think,
moreover, that any error was harmless because the supervisor who left the message
testified that she knew of Ms. Stafne's EEOC complaint before Ms. Stafne was
terminated, so the essential probative force of the statement was before the jury.

                                         III.
      For the reasons indicated, we affirm the judgment of the district court.

      The motion to supplement the Appendix is granted.

LAY, Circuit Judge, dissenting.

      I respectfully dissent.

       This is a suit brought under the Americans with Disabilities Act (ADA),
42 U.S.C. §§ 12101-12213, and the Minnesota Human Rights Act, Minn. Stat. Ann.
§§ 363.01-363.20. The suit claims the nursing facility at which the plaintiff worked as
a nurse discriminated against her because of her disability. The district court instructed
the jury at length and after a two-week trial, the jury reached a verdict in favor of the
defendant. In denying post-trial motions, the district court affirmed the jury verdict,
believing there was sufficient evidence for the jury to side with either party. The
district court agreed that plaintiff “presented a significant amount of evidence in
support of her claim.” Mem. Op. at 12 (Aug. 12, 1999). The district court further

                                           -6-
stated, however, that the defendant presented a substantial amount of evidence in its
favor, conceding it was a close case. On that basis, the district court held that the
plaintiff’s post-trial motions for judgment as a matter of law under Federal Rule of Civil
Procedure 50(b), or in the alternative for a new trial under Federal Rule of Civil
Procedure 59(a), should be denied.

       Although the majority opinion affirms the judgment of the district court, it does
so on a totally different basis. It holds that the district court should have dismissed
plaintiff’s case because she did not produce sufficient evidence to submit the case to
the jury.

       I strongly disagree and for reasons to be explained, I would reverse the district
court’s ruling and remand the case for a new trial.

       In light of the record, the majority’s conclusion is difficult to understand. Of
course, the conclusion reached obviates the need to pass upon the erroneous jury
instructions. Such a holding avoids a remand and retrial, thereby serving judicial
efficiency. However, judicial efficiency runs a distant second to judicial fairness.

       The majority opinion holds that Ms. Stafne failed to produce evidence that would
allow a jury to find that she was qualified to perform the essential functions of her job
with or without reasonable accommodation. The majority believes that Ms. Stafne was
“in charge” of pushing wheelchair-bound residents to their proper seating locations in
the dining room. The majority opinion reasons that since this was one of the essential
functions of her job, she must prove, notwithstanding her disability, that she was
qualified to perform this duty with or without reasonable accommodation. The majority
opinion goes on to say that all of the evidence at trial tended to show that Ms. Stafne
would not have been able to push wheelchairs even if she had been allowed to use the
Amigo.


                                           -7-
       The majority rules on this issue as a matter of law, but the record is clear that
pushing wheelchairs was not an essential function of her job. The majority steps into
the role of the fact finder in holding, as a matter of law, that pushing residents in
wheelchairs was an essential function of Ms. Stafne’s job simply because she admitted
she had done it occasionally in the past.

       This mischaracterization of the record overlooks the undisputed evidence that
pushing wheelchairs was the essential and the primary function of another group of
employees specifically hired for this purpose: Transport Aides. Tr. at 566. The
district court, in discussing the evidence as a whole, did not find that pushing
wheelchairs was an essential function of her job. It did not because the record is
directly to the contrary. The record is undisputed that at mealtime, residents who use
wheelchairs were moved by the transport aides in and out of the dining room.
Trevilla’s job description for Ms. Stafne’s does not list pushing wheelchairs or
transporting residents in wheelchairs.2 The majority’s holding that pushing residents


      2
          Trevilla’s job description is as follows:

Job Duties:

 1. Committees
      A. Aliance of Hospital and Long Term Care Providers - Quarterly meeting
            1. Sub-Committee - Image
      B. Circle Committee Meeting - Unicare monthly
 2. Chairman of the Marketing Committee
      A. Chair Meeting
      B. Compute Staff Marketing Log
      C. Letters to M.D.’s every month - Appreciation
      D. Annual Marketing plan for Unicare
 3. Shoreview Community Center
      A. B/P Monthly
      B. Senior Advisory Committee Meeting - Monthly
 4. Golden Pond

                                             -8-
in wheelchairs was an essential function of Ms. Stafne’s job because she had
occasionally assisted the transport aides simply does not follow.3 See Milton v.
Scrivner, Inc., 53 F.3d 1118, 1124 (10th Cir. 1995) (“The initial inquiry in determining
whether a job requisite is essential is whether an employer actually requires all
employees in the particular position to perform the allegedly essential function.”). The
evidence is undisputed that no one, including the employer, considered “pushing
wheelchairs” an essential function of her job. The majority’s conclusion is directly
contrary to 29 C.F.R. § 1630.2(n)(1). Under this section “[t]he term essential
functions means the fundamental job duties of the employment position the individual
with a disability holds or desires.” Relevant to our discussion, the regulation continues
and states “‘essential functions’ does not include the marginal functions of the
position.” (emphasis added). For the majority to now rule, as a matter of law, that Ms.
Stafne’s occasional assistance to the transport aides made that work essential to her job
is a misinterpretation of the law and the facts of the case. This task was specially
delegated to the transport aides and Ms. Stafne’s job description did not list it as one
of her duties. One might argue, at the very least, this is a question of fact, but the



        A. B/P Monthly
 5.   Dining room Supervisor
        A. Breakfast and Lunch
        B. Arrange seating
 6.   Incident Reports:
        A. Nursing 24 - hour follow-up
        B. Quarterly stats
 7.   Infection Control:
        A. Checking on station - Information Control Logs
 8.   Chart Audits
 9.   Room Check Rounds
10.   Other Duties as assigned.
       3
       The majority’s reasoning is akin to saying a food server at a hospital, who
occasionally washes out a dish, has washing dishes as an essential function of her job.

                                          -9-
overall record strongly suggests it was not essential she do the work a totally different
group of employees was hired to do.

        The majority next finds that it was Ms. Stafne’s job to assist residents in the
dining room. This is true. However, Ms. Stafne introduced evidence she could
perform those tasks. The majority points out that it would be impossible for Ms. Stafne
to ride an Amigo and push wheelchair-bound residents in the dining room at the same
time. This sounds very logical. However, Ms. Stafne never claimed that she desired
to use an Amigo in the dining room to assist the residents. Notwithstanding the record,
the majority concludes that “[g]iven the evidence as presented, there can be no genuine
factual dispute that Ms. Stafne would have been unable to perform her duties in the
dining room even if she had been allowed the use of an Amigo.” This observation
completely misconstrues the record. Ms. Stafne, as well as James Cronick, a job
placement counselor with the Minnesota Department of Economic Security (MDES),
and Bonnie Malloy, vocational rehabilitation counselor from MDES, requested Trevilla
to accommodate Ms. Stafne by allowing her to use the Amigo to travel from “point A
to point B.” Once she reached her destination, Ms. Stafne could get off the Amigo,
park it, and perform her duties. The majority overlooks the actual evidence as to how
the use of the Amigo could otherwise make her walking assignments in the dining room
such that it would lessen the stress caused by her rheumatoid arthritis. Dr. Gulli
testified: “My goal with prescribing the Amigo was to reduce the amount of walking
that Ms. Stafne was doing to the point below the threshold of her causing these types
of injuries such as stress fractures.” Dr. Gulli further stated that once she arrived on
an Amigo to where she wanted to go

      that her walking requirements were relatively light and I felt that they
      were acceptable. And so I wanted her to use the cart to travel the longer
      distances so that she could save her energy and walking ability for the
      shorter distances that were required for her to actually do her job.



                                          -10-
        The evidence was that the hallways were wide and the Amigo could be easily
parked in the hallways, the same as wheelchairs, laundry, and cleaning carts. Trevilla
first told her that the fire marshal would not permit the Amigo. The evidence showed,
however, that Trevilla’s people had never spoken with the fire marshal. Bonnie Malloy
subsequently confirmed with the fire marshal that the electric car was permissible at
Trevilla.

       Trevilla urged at trial that Ms. Stafne might not be able to perform the Heimlich
Maneuver on any of the residents if they required it. Once again the majority
misinterprets the evidence on this issue by simply concluding that Ms. Stafne failed to
make a submissible case on this issue. Yet, the record contains no evidence
whatsoever that Ms. Stafne could not perform the Heimlich Maneuver. She only did
this on rare occasions. The only evidence is that Ms. Stafne testified she had done this
on occasion and had performed it successfully.4

        The reason this case requires a new trial is because the jurors were given
erroneous instructions concerning the burden of proof on a basic issue. There is no
question that under the ADA an employer may avoid liability for discrimination if it can
prove that the claimant is not qualified under one of the affirmative defenses as defined
in the statute. 42 U.S.C. § 12113(a)-(b). Trevilla contended in its pleadings, as well
as at trial, that Ms. Stafne was unqualified for her job because her rheumatoid arthritis
made her a direct threat to nursing home residents. Under the ADA, direct threat is




      4
        I find similar problems with the majority’s discussion on the accommodation
process. The majority opinion overlooks this court’s discussion relating to bad faith
and the interactive process as set out in Fjellestad v. Pizza Hut of America, Inc.,
188 F.3d 944, 952-54 (8th Cir. 1999). However, there is nothing to be gained by going
into each detail of the majority’s opinion.

                                          -11-
listed as a defense to liability.5 As such, the employer in posing an affirmative defense
must carry the burden of proof that the individual poses a direct threat to the safety of
those in the workplace. It is fundamental, basic procedural law under the Federal Rules
of Civil Procedure that any affirmative defense must be pled under Rule 8(c). Trevilla
did just that; yet, the district court instructed the jury that Stafne had the burden of
proof to show that she did not constitute a threat to others.

       As the Equal Employment Opportunity Commission (EEOC) points out, this
court in Belk v. Southwestern Bell Telephone Co., 194 F.3d 946 (8th Cir. 1999), in
discussing another defense under the same section of the ADA, held that these were
affirmative defenses and the burden of proof lies upon the employer. Id. at 951-53.6
Further, the House Judiciary Report says that an otherwise qualified applicant for a job
“cannot be disqualified on the basis of a physical or mental condition unless the
employer can demonstrate the applicant’s disability poses a direct threat to others in
the workplace.” H.R. Rep. No. 101-485(III), at 46 (1990), reprinted in 1990
U.S.C.C.A.N. 445, 469 (emphasis added).

       Several circuits have referred to the “defense” of direct threat. See Hamlin v.
Charter Township of Flint, 165 F.3d 426, 431 (6th Cir. 1999) (“As a defense to
[plaintiff’s] claims, [defendant] argued that [plaintiff] posed a direct threat . . . .”);
Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999) (“Because this



       5
        42 U.S.C. § 12113(a) allows as a defense the application of “qualification
standards . . . that screen out . . . an individual with a disability” if such a standard is
“job-related and consistent with business necessity, and such performance cannot be
accomplished by reasonable accommodation . . . .” A requirement that an employee
“not pose a direct threat to the health or safety of other individuals in the workplace”
is an acceptable qualification standard. 42 U.S.C. § 12113(b).
       6
        The EEOC has filed an amicus brief in this court arguing that the trial court
erred in giving the burden of proof instruction.

                                           -12-
is an affirmative defense, [defendant] bears the burden of proving that [plaintiff] is a
direct threat.”); EEOC v. AIC Sec. Investigation, Ltd., 55 F.3d 1276, 1283 (7th Cir.
1995) (“The first rejected instruction involved [defendant’s] ‘direct threat’ defense.”).7

         Some circuits have held, at least in a limited set of circumstances, that the
plaintiff has the burden of showing that he or she is not a threat to others. These courts
reason that the plaintiff cannot prove that she can preform the essential functions of her
job if she is a direct threat to others. See EEOC v. Amego, Inc., 110 F.3d 135, 144 (1st
Cir. 1997) (“Where [plaintiff’s] essential job functions necessarily implicate the safety
of others, plaintiff must demonstrate that she can preform those functions in a way that
does not endanger others. There may be other cases under Title I where the issue of
direct threat is not tied to the issue of essential job functions but is purely a matter of
defense, on which the defendant would bear the burden.”); Moses v. American
Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996) (“The employee retains at all times
the burden of persuading the jury either that he was not a direct threat or that
reasonable accommodations were available.”); Borgialli v. Thunder Basin Coal Co.,
235 F.3d 1284, 1295 (10th Cir. 2000) (“Plaintiff was not a ‘qualified person’ to work
in a position as a blaster because the defendants rightly considered that he was a direct
threat to others in the work place.”).

       Even if we were to accept the view of the First Circuit, the present case is not
one that places the burden on Ms. Stafne to show that she was not a direct threat. The
Amego court makes it clear that the only time the plaintiff has the burden of showing
she is not a direct threat is when plaintiff cannot preform the essential functions of her
job without endangering others. See Amego, 110 F.3d at 144; Borgialli, 235 F.3d at


      7
        See also Rizzo v. Children’s World Learning Centers, Inc., 213 F.3d 209, 213
(5th Cir. 2000) (en banc) (deciding, under plain error standard of review, that the
district court did not commit obvious error by giving the defendant the burden of
proving plaintiff was a direct threat.).

                                           -13-
1292. There is simply no evidence in the record that shows that Ms. Stafne’s disability
created the possibility that she would injure someone during the performance of her
duties. Absent any indication that Ms. Stafne’s attempts to perform her duties might
threaten the patients, indeed absent any indication that Ms. Stafne was a threat to
anyone at all, the district court’s direct threat instruction prejudiced Ms. Stafne and
demands a new trial.

       It is difficult for me to write this dissent because of the profound respect I have
for my two learned colleagues. However, unless appellate courts are willing to adhere
to the actual evidence adduced at the trial, we abdicate our role as appellate judges for
that of finders of fact. We are bound by the record adduced at trial. We should not
attempt to obviate the actual record by our own interpretative sense of right and wrong.

       It seems to me, once the plaintiff did put forth a submissible case and the
defendant submitted its defense, it should be left to the jury, as the trial court reasoned,
to assess the credibility of the evidence and to follow the court’s instructions by reason
of the law given by the court.8


       8
        The trial court is in the best position to judge the sufficiency of the evidence.
The trial judge hears the witnesses and observes their demeanor and, although the trial
judge does not pass on the credibility of witnesses, when a jury is present, the judge is
in a far better position to weigh the evidence in deciding whether to submit a case to
a jury. All judges are mandated by the Seventh Amendment to give overall deference
to a jury verdict. Our entire system of justice, as recognized in the Seventh
Amendment, lies in this nation’s mandate to allow issues of fact be tried by the
composite diversified mix of our citizenry. Appellate courts should seldom vacate jury
verdicts; this should occur

       [o]nly when there is a complete absence of probative facts to support the
       conclusion reached does a reversible error appear. But where, as here,
       there is an evidentiary basis for the jury’s verdict, the jury is free to
       discard or disbelieve whatever facts are inconsistent with its conclusion.

                                           -14-
       I believe that since there was no evidence whatsoever that Ms. Stafne’s attempts
to complete her job threatened anyone, the district court erred in giving the jury a direct
threat instruction. At best, defendant raised vague allegations of a threat. Even under
the logic of Amego, absent any evidence that Ms. Stafne’s performance of her duties
could conceivably threaten someone she worked with, the district court should have
placed the burden on the defendant to show that she was a direct threat. If ever an
instruction is prejudicial, it is where the trial court erroneously instructs the jury on the
burden of proof.

       I would grant Ms. Stafne a new trial.

       A true copy.

              Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




       And the appellate court’s function is exhausted when that evidentiary
       basis becomes apparent, it being immaterial that the court might draw a
       contrary inference or feel that another conclusion is more reasonable.

Lavender v. Kurn, 327 U.S. 645, 653 (1946) (emphasis added). “We do not know
what our answer would have been if we had been sitting on the jury, but that is not
important. There was conflicting evidence on this issue, and it could have gone either
way. Making decisions of this kind is exactly what juries are for.” Forbes v. Arkansas
Educational Television Comm’n, 93 F.3d 497, 501 (8th Cir. 1996). Such second
guessing of the fact finder should rarely occur. It should not have occurred here. There
was clearly a conflict of evidence which only a jury should have decided. If the
majority had given deference to the jury verdict, then the majority would be faced with
whether the trial court prejudicially instructed the jury on the law of the case.

                                            -15-
