UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JEANNE D. BYRD, individually;
CLYDE BYRD, her husband,
Plaintiffs-Appellees,
                                                                      No. 98-2261
v.

WAL-MART STORES, INCORPORATED,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CA-96-27-CCB)

Argued: October 28, 1999

Decided: January 13, 2000

Before WIDENER, WILKINS, and TRAXLER, Circuit Judges.

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Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

ARGUED: Jeffrey M. Kotz, JEFFREY M. KOTZ, P.A., Towson,
Maryland, for Appellant. Kevin Anthony Dunne, OBER, KALER,
GRIMES & SHRIVER, P.C., Baltimore, Maryland, for Appellees.
ON BRIEF: Marc K. Cohen, OBER, KALER, GRIMES &
SHRIVER, P.C., Baltimore, Maryland, for Appellees.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Wal-Mart Stores, Incorporated ("Wal-Mart") appeals a jury verdict
against it in this negligence action brought by Jeanne D. Byrd and her
husband Clyde Byrd. Wal-Mart contends that the district court erred
in denying its motions for judgment as a matter of law, see Fed. R.
Civ. P. 50, and in instructing the jury that the Byrds could prove lia-
bility under the doctrine of res ipsa loquitur . Because we conclude
that the district court correctly denied Wal-Mart's motions for judg-
ment as a matter of law but erred in instructing the jury regarding res
ipsa loquitur, we reverse the verdict and remand for a new trial.

I.

The Byrds brought this diversity suit against Wal-Mart, a discount
retailer, for injuries Mrs. Byrd suffered at an Elkton, Maryland Wal-
Mart store when she was struck on the head and left shoulder by sev-
eral boxes of toy merchandise that fell from a shelf known as a
"riser," which was approximately six feet high. Mrs. Byrd had been
looking at toy trucks on a bottom shelf at about 3:00 p.m. on a Sunday
afternoon and had not noticed any other shoppers or store employees
in the aisle with her when the boxes fell and knocked her uncon-
scious. Byrd testified that she had not touched the boxes and did not
know why they fell. Indeed, no witness could explain how the boxes
fell or how they were positioned on the riser just prior to the accident.
Steve Cauley, the store manager, testified that based upon his review
of photographs of the scene taken after the accident, he "guess[ed]"
that some toys stacked in the area of those that fell on Byrd may have
been stacked as high as thirty-eight inches above the six-foot riser.
J.A. 135.

Cauley provided some information about how boxes were usually
stacked in the store. He explained that it was Wal-Mart's practice to

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stack merchandise on a riser "no more than three boxes high," and
that thirty inches above the riser was used as a"guideline," although
safety was the controlling factor. J.A. 99. He further explained that
after stocking a riser, employees bumped the shelving unit to ensure
the merchandise was stable. Cauley also noted that all stocking at the
Elkton store -- except for replenishing of seasonal merchandise --
was done overnight while the store was closed and was completed by
9:00 a.m. Further, no stocking took place on Saturday night or on
Sunday, the day the accident occurred. Accordingly, the boxes that
fell on Mrs. Byrd must have been stacked by 9:00 a.m. on Saturday.

Cauley further testified that despite signs posted on the risers ask-
ing customers to seek assistance in taking items from the risers, fall-
ing merchandise most commonly occurred when customers attempted
to retrieve items from the risers. Two other store employees testified
that they had witnessed customers climbing up the shelves and taking
merchandise off of the risers. Indeed, Mrs. Byrd testified that her hus-
band had obtained merchandise from a riser without asking a Wal-
Mart employee for assistance during a prior visit to Wal-Mart.

At the conclusion of the Byrds' case, Wal-Mart moved for judg-
ment as a matter of law, see Fed. R. Civ. P. 50(a), on the ground that
the Byrds had failed to present evidence from which a jury could rea-
sonably conclude that negligence on the part of Wal-Mart was a prox-
imate cause of Mrs. Byrd's injuries. More specifically, Wal-Mart
contended that as a matter of law the doctrine of res ipsa loquitur did
not apply to establish the Byrds' prima facie case of negligence. The
court reserved ruling on the motion at that time but subsequently
denied it when it was renewed after the conclusion of the entire case.
See id. Additionally, the district court, over Wal-Mart's objection,
instructed the jury on the doctrine of res ipsa loquitur.

Following deliberations, the jury returned a verdict awarding
$208,745.40 in damages to the Byrds. Wal-Mart timely renewed its
motion for judgment as a matter of law, see Fed. R. Civ. P. 50(b), and
alternatively sought a new trial, see Fed. R. Civ. P. 59. The district
court denied both motions.

II.

We review the denial of a motion for judgment as a matter of law
de novo, viewing the facts in the light most favorable to the prevailing

                    3
party. See Konkel v. Bob Evans Farms Inc., 165 F.3d 275, 279 (4th
Cir. 1999), cert. denied, 68 U.S.L.W. 3106 (U.S. Oct. 4, 1999) (No.
99-180). The decision to give a jury instruction is reviewed for abuse
of discretion. See United States v. Russell, 971 F.2d 1098, 1107 (4th
Cir. 1992). A decision to give an instruction on res ipsa loquitur is
appropriate if the evidence in the record is sufficient to support a rea-
sonable conclusion by the jury that the requisite elements of the doc-
trine are satisfied. See Kicklighter v. Nails by Jannee, Inc., 616 F.2d
734, 740 (5th Cir. 1980).

A.

Under Maryland law, the duty owed by a storekeeper to his cus-
tomers is simply to maintain the premises in a reasonably safe condi-
tion. See Giant Food, Inc. v. Mitchell, 640 A.2d 1134, 1135 (Md.
1994). Although he is not an insurer of his customers' safety, see id.,
a storekeeper is liable for his customers' injuries that are shown to
have been proximately caused by the storekeeper's failure to take rea-
sonable measures to ensure that the premises are safe, see Rawls v.
Hochschild, Kohn & Co., 113 A.2d 405, 407 (Md. 1955). Included in
the duty of a storekeeper to protect its customers is a duty to protect
them from the reasonably foreseeable negligent acts of other custom-
ers. See Giant Food, 640 A.2d at 1135.

Wal-Mart first contends that the Byrds did not establish a prima
facie case of negligence and therefore the district court erred in deny-
ing Wal-Mart's motions for judgment as a matter of law. We dis-
agree, concluding that a jury reasonably could infer from the evidence
presented that Wal-Mart's shelving and stacking of the boxed toys at
a height from which they could fall onto the heads of customers
standing in the aisles created an unreasonable danger. See Wooley v.
Great Atl. & Pac. Tea Co., 180 F. Supp. 529, 531 (W.D. Pa. 1960)
(holding that a jury reasonably could conclude that storeowner was
negligent in stacking soup cans in a pyramid fashion, six to eight cans
high on the top shelf of a display rack, when there was no testimony
as to what caused the cans to fall and the store owner could anticipate
that his employees and shoppers might rearrange the display so as to
make it unstable); Dougherty v. Great Atl. & Pac. Tea Co., 289 A.2d
747, 748-49 (Pa. Super. Ct. 1972) (holding that a jury reasonably
could conclude that stacking goods on a shelf six feet or higher for

                     4
selection by customers created an unreasonable risk that an employee
would not stack the items correctly or that a customer's difficulty in
reaching the items could cause subsequent disarray which ultimately
could result in items falling from the shelf); see also Pullia v. Build-
ers Square, Inc., 638 N.E.2d 688, 695 (Ill. App. Ct. 1994) (explaining
that "[s]tore owners who desire to stack merchandise vertically in
order to increase profit should be liable for a customer's foreseeable
injury resultant from the practice"); cf. O'Shea v. K. Mart Corp., 701
A.2d 475, 477 (N.J. Super. Ct. App. Div. 1997) (holding that trier of
fact reasonably could find that height of the display combined with
the heavy nature of the item displayed created unreasonable risk of
harm); Garvin v. Bi-Lo, Inc., No. 99-3057, 1999 WL 956447, at *5
(S.C. Ct. App. Oct. 18, 1999) (holding that stacking boxed canned
goods from the floor to a height of more than five feet and putting the
items on sale so as to encourage customers to take them created a
genuine issue of material fact as to whether the store was negligent).
The evidence of the measures Wal-Mart took to discourage customers
from taking items from the risers would not prevent a jury from rea-
sonably concluding that Wal-Mart was negligent in stacking boxed
toys at the height it did. A jury reasonably could conclude that despite
those measures, Wal-Mart could foresee that its customers would
retrieve merchandise from the risers without asking for assistance.
Accordingly, the district court correctly denied Wal-Mart's motions
for judgment as a matter of law.

B.

Wal-Mart also maintains that because the Byrds failed as a matter
of law to demonstrate that the boxes that fell were in Wal-Mart's
exclusive control prior to the accident, the district court erred in
instructing the jury that it could find liability based on res ipsa
loquitur. We agree.

In spite of the general rule that a premises owner is not an insurer
against a customer's injuries, under certain circumstances a jury is
permitted under the doctrine of res ipsa loquitur to infer negligence
on the part of the premises owner even when the customer cannot
demonstrate that a particular negligent act of the premises owner
proximately caused her injuries, i.e., when there is no direct evidence
of negligence. See Dover Elevator Co. v. Swann , 638 A.2d 762, 765

                    5
(Md. 1994). In order to rely on res ipsa loquitur, a plaintiff must
prove three elements: (1) an injury of the type that does not ordinarily
occur in the absence of negligence; (2) the injury was caused by an
instrumentality in the defendant's exclusive control; and (3) the injury
was not caused by an act or omission of the plaintiff. See Holzhauer
v. Saks & Co., 697 A.2d 89, 92-93 (Md. 1997).

In Holzhauer, the Maryland Court of Appeals explained the role of
the exclusive control element:

          The element of control has an important bearing as negativ-
          ing the hypothesis of an intervening cause beyond the defen-
          dant's control, and also as tending to show affirmatively that
          the cause was one within the power of the defendant to pre-
          vent by the exercise of care. Thus it has been held that [res
          ipsa loquitur does not apply] where ... the opportunity for
          interference by others weakens the probability that the
          injury is attributable to the defendant's act or omission.

Id. at 93 (internal quotation marks omitted) (second alteration in orig-
inal). Although the plaintiff need not demonstrate that it is impossible
that someone other than the defendant could have caused the accident
in order to rely on res ipsa loquitur, see Gleason v. Jack Alan Enters.,
Inc., 374 A.2d 408, 411 (Md. Ct. Spec. App. 1977), the plaintiff does
have to demonstrate control sufficiently exclusive to support a reason-
able, nonspeculative conclusion by the factfinder that the defendant's
negligence -- and not that of a third party -- was the cause of the
accident, see Holzhauer, 697 A.2d at 93; Joffre v. Canada Dry Ginger
Ale, Inc., 158 A.2d 631, 636 (Md. 1960).

The facts here are analogous to those in Holzhauer, in which the
Maryland Court of Appeals held that the plaintiff failed as a matter
of law to prove that the instrumentality was in the exclusive control
of the defendant. There, the plaintiff sought recovery from a depart-
ment store for injuries he sustained when the escalator on which he
was riding came to an abrupt stop. See Holzhauer , 697 A.2d at 90.
The evidence established that the escalator was equipped with two
emergency stop buttons that were accessible not only to the store's
employees, but also to its patrons. See id. at 91. Even though there
was no evidence that the escalator had stopped because one of these

                    6
buttons had been activated, the court held that because "the escala-
tor's two emergency stop buttons [were] readily accessible to all per-
sons in the vicinity and any customer [could have caused] the
escalator to stop simply by pressing one of the buttons," the plaintiff
failed as a matter of law to demonstrate exclusive control and there-
fore could not rely on res ipsa loquitur. See id. at 94.

Here, as in Holzhauer, any number of the defendant store's cus-
tomers had unlimited access to the instrumentality that caused the
plaintiff's injuries.1 Indeed, in the present case, Wal-Mart not only
presented testimony that customers had access to the instrumentality
that caused the plaintiff's injury, but it also presented evidence that
customer tampering of the kind that could have caused Mrs. Byrd's
injuries actually had occurred many times in the past. In fact, Cauley
testified that in his experience, customer interference was the most
prevalent cause of merchandise falling from risers. Even Mrs. Byrd
admitted that her husband had removed merchandise from the risers
on a prior visit to Wal-Mart. Accordingly, the Byrds, as a matter of
law, failed to "negat[e] the hypothesis of an intervening cause beyond
the defendant's control," and therefore failed to create a jury issue
regarding the applicability of res ipsa loquitur . Holzhauer, 697 A.2d
at 93 (internal quotation marks omitted); see Chesapeake & Potomac
Tel. Co. v. Hicks, 337 A.2d 744, 763 (Md. Ct. Spec. App. 1975) (stat-
ing that "[w]here the instrumentality which causes the injury is con-
stantly subject to the uses and abuses of the public the doctrine will
not be applied") (internal quotation marks omitted).

The present case is clearly distinguishable from Leidenfrost v. Atl.
Masonry, Inc., 201 A.2d 336 (Md. 1964), on which the Byrds rely.
In Leidenfrost, the plaintiff sustained injuries when he was struck by
some slag blocks at a construction site, and he sued the masonry sub-
contractor that had accepted delivery of the blocks. See id. at 337-38.
The blocks had been stacked about one-and-a-half to two hours before
they fell. See id. at 338. The foreman for the masonry subcontractor
testified that his company was the only one on the site using the type
of blocks delivered and that he was uncertain whether employees of
other subcontractors were at the site that morning. See id. at 339. He
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1 Testimony established that 25,000 to 30,000 paying customers visited
the Elkton Wal-Mart each week.

                    7
further testified that even if other subcontractors were on the site, they
would have had no right to disturb the blocks and little reason for
doing so. See id. The Maryland Court of Appeals concluded that a
jury reasonably could believe that the masonry subcontractor had
exclusive control of the blocks, noting that "[t]he circumstances of the
injury rule out the inference that the falling of the blocks was caused
by the interference of a third person." Id. at 339. In so holding, the
court stated that the time between the act of negligence and the injury
is a factor to be considered and noted that a "plaintiff is not required
in his proof to exclude remotely possible causes and reduce the ques-
tion of control to a scientific certainty." Id.

There is a substantial difference between the proof of exclusive
control in the present case and that presented in Leidenfrost. Here, the
time between the stacking and the accident was more than a full day,
rather than two hours. More importantly, the instrumentality that
caused the accident was one to which third parties had access and,
indeed, did disturb regularly. Thus, unlike in Leidenfrost, the evi-
dence here was not sufficient to rule out the inference that third-party
tampering caused the accident.2

Accordingly, the jury could not have ruled out the possibility that
the instability of the merchandise on the risers was due to the act of
a customer rather than that of a Wal-Mart employee. The district court
erred, therefore, in instructing the jury on the doctrine of res ipsa
loquitur. Although the evidence was sufficient to justify a reasonable
conclusion by the jury that Wal-Mart proximately caused Mrs. Byrd's
injuries by stacking its merchandise at an unreasonable height, there
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2 The present case is also easily distinguishable from Leikach v. Royal
Crown Bottling Co. of Baltimore, 276 A.2d 81 (Md. 1971), and Munzert
v. Am. Stores Co., 192 A.2d 59 (Md. 1963), on which the Byrds rely as
well. In these cases, the plaintiffs were able to exclude the inference of
third-party intervention. In Leikach, there was testimony that the instru-
mentality that caused the accident was not left unattended when custom-
ers could access it; in Munzart, testimony showed that the
instrumentality that caused the harm was left unattended for no more
than five minutes. In the present case, the merchandise that fell had been
on the shelf for at least 24 hours, and the record is void of testimony indi-
cating that the merchandise had been attended during any of that time.

                     8
is no way for us to discern whether the jury actually reached that con-
clusion or whether it based its finding of liability on res ipsa loquitur.
Consequently, the proper remedy is to remand for a new trial. See
Sunkist Growers, Inc. v. Winckler & Smith Citrus Prods. Co., 370
U.S. 19, 29-30 (1962) (holding that when a general verdict may rest
on an erroneous ground, and there is no way to discern otherwise, the
verdict must be set aside).

III.

In sum, we conclude that the district court correctly denied Wal-
Mart's motions for judgment as a matter of law, but erred in instruct-
ing the jury regarding res ipsa loquitur. Accordingly, we reverse the
jury verdict and remand for a new trial.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

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