                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 00-1253
                                  ___________

Roger L. Burry,                       *
                                      *
            Plaintiff-Appellant,      *
                                      * Appeal from the United States
       v.                             * District Court for the
                                      * District of Nebraska
Eustis Plumbing & Heating, Inc.,      *
a Nebraska Corporation; ALCAN         *
Aluminum Corporation, doing business *
as Kroy Transportation, Inc.,         *
                                      *
            Defendants-Appellees.     *
                                 ___________

                            Submitted: October 16, 2000

                                 Filed: March 8, 2001
                                  ___________

Before HANSEN, MURPHY, and BYE, Circuit Judges.

BYE, Circuit Judge.

      The plaintiff, Roger Burry, brings this appeal from a jury verdict for the
defendant. On appeal, Mr. Burry argues the district court1 erred and should be
reversed, based on its instructions to the jury. We disagree, and affirm.


      1
       The Honorable William G. Cambridge, Senior United States District Judge for
the District of Nebraska.
        Burry was a truck driver for Kroy Transportation of Nebraska. On a snowy day
in March, 1995, Burry was injured while making a delivery of pipes to Eustis
Plumbing, a Nebraska client. While the owner of Eustis Plumbing, Frank Strong, was
unloading Burry's delivery in the company pipeyard, a bundle caught Burry's hand and
yanked his arm. About a year later, while on a job in California, Burry lost his grip and
fell from the top of his truck. In all, between March, 1995, and March, 1996, Burry's
arm was hurt on at least two, and possibly upwards of four, occasions.2

      Burry filed a civil action against Eustis Plumbing based on Nebraska law. Burry
alleged that Strong was negligent in unloading the pipes in the Eustis Plumbing
pipeyard, and that Strong's negligence–by weakening Burry's arm–was the cause of
Burry's fall a year later in California. The case went to trial.

       Before the second day of trial, the district judge met with the parties in
chambers. The judge told them that he felt a negligence theory was insufficient, and
that he'd issue a "premises liability" instruction. Burry's counsel objected, without
success.

       Since Strong had no memory of the Eustis Plumbing accident, Burry alone was
able to testify on what he believed had happened. Nonetheless, the defense cross-
examined Burry extensively, exposing flaws in Burry's testimony.3 After deliberating




      2
        In March, 1995, after the Eustis Plumbing accident, Burry slipped and fell on
ice in Missouri. Also that month, Burry "felt like something tore lose" in his arm as he
was strapping a different load to his truck.
      3
        For example, Burry admitted he wasn't watching Strong's actions when the pipes
fell. Burry also admitted knowing about the weaknesses in his arm before climbing
atop his truck in California a year later. The defense also pointed to the other accidents
Burry had as alternative causes for his injury.

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for less than an hour, the jury returned a verdict for the defendants. The district court
considered and denied Burry's motion for a new trial. Burry appealed.



       The appeal focuses mostly on the district court's instructions to the jury. We
review a district court's decision to give particular instructions for abuse of discretion.
See Slathar v. Sather Trucking Corp., 78 F.3d 415, 419 (8th Cir. 1996). We consider
whether the jury instructions, "taken as a whole and viewed in light of the evidence and
applicable law, 'fairly and adequately submitted the issues in the case to the jury.'"
Grain Land Coop v. Kar Kim Farms, Inc., 199 F.3d 983, 995 (8th Cir. 1999) (quoting
White v. Honeywell, Inc., 141 F.3d 1270, 1278 (8th Cir. 1998)). Because many errors
are harmless, we will not reverse the judgment unless the alleged error was prejudicial.
See Wolfe v. Gilmour Mfg. Co., 143 F.3d 1122, 1124 (8th Cir. 1982). We will order
a new trial only if the error "misled the jury or had a probable effect on its verdict."
See E.I. du Pont de Nemours & Co. v. Berkley & Co., Inc., 620 F.2d 1247, 1257 (8th
Cir. 1980).

       First, we reject Burry's suggestions that the premises liability instruction was
wrong as a matter of Nebraska law. In Haag v. Bonger, 589 N.W.2d 318, 334 (Neb.
1999), the Nebraska Supreme Court made clear that "premises liability encompasses
not only condition of land, but also activities conducted on the premises." Accordingly,
the premises liability instruction was correct.

       As for Burry’s objection to the timing of the district court's decision to instruct
on premises liability, while we don't necessarily endorse the district court's timing, we
find no reversible error based on the record in this case. We recognize that the district
court must assure that only legally viable theories reach the jury, and that it is "in the
best position to evaluate any difficulties that might arise in the course of the trial, and
to fashion jury instructions appropriate to them." Wolfe, 143 F.3d at 1125 (citation
omitted); see also Pony Express Cab & Bus, Inc. v. Ward, 841 F.2d 207, 209 (8th Cir.

                                           -3-
1988) (rejecting defendant's argument that district court's "amendment" to pleadings,
and change in legal theories, constituted reversible error).

       Moreover, while Burry portrays the district court's decision as a "bombshell," his
showing of prejudice fizzles. The practical difference between an ordinary negligence
case and a premises liability case is minimal; the latter theory adds one element
concerning knowledge of the danger. Under both theories, Burry first had to prove the
elements of negligence. On the question of negligence, Burry had an open field on
which to testify, yet the defense exposed serious problems with his case. We do not
believe Burry has shown prejudice, and we see no reason to reverse the district court's
denial of a motion for a new trial. See Oriental Trading Co. v. Firetti, 236 F.3d 938,
946 (8th Cir. 2001).

       Burry also argues that the district court erred when it included language on
intervening and superceding causes in the proximate cause instruction. See Sacco v.
Carothers, 567 N.W.2d 299 (Neb. 1997). However, Sacco doesn't preclude the court
from providing guidance on intervening and superceding causes; it only disapproves the
giving of separate instructions on them. See Sacco, 567 N.W.2d at 306. We do not
find any reversible error in the concurring cause instruction which, if anything, was
more favorable to Burry. We find meritless Burry's complaints about the verdict forms.
See Eighth Cir. R. 47(b).

       For the reasons stated above, we affirm the district court and the judgment for
the defendant.

      A true copy.

             Attest:

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

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