                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 15 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    KOOPER CALDWELL,

                Plaintiff-Appellee,

    v.                                                   No. 99-2272
                                                  (D.C. No. CIV-98-284-JHG)
    WAL-MART STORES, INC.,                                (D. N.M.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before BALDOCK , McKAY , and BRISCOE , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Defendant Wal-Mart Stores, Inc. (Wal-Mart) appeals from the district

court’s order denying its motion for judgment as a matter of law, for judgment

notwithstanding the verdict, or alternatively, for a new trial. We affirm.

       Plaintiff Kooper Caldwell filed this case in state court after he slipped

and fell in an aisle at the Wal-Mart store in Alamogordo, New Mexico, sustaining

a broken femur. Wal-Mart removed the case to federal district court. A jury

awarded Caldwell the sum of $35,000 in damages for his injuries.

       Caldwell slipped and fell in an aisle where bottled water and various other

drink products were sold. Caldwell testified at trial that after he fell, he noticed

a puddle of water on the floor where he had slipped. The water was clear and

covered one full tile and parts of other surrounding tiles.   1
                                                                  He did not notice the

source of the water.

       Nicole Callais, a Wal-Mart employee, testified that she had been stocking

merchandise in the aisle where Caldwell fell approximately five minutes before

she heard the “code white” over Wal-Mart’s intercom system.          2
                                                                         Before leaving the

aisle, she had conducted a safety sweep to insure that she had not left anything on


1
      On cross-examination, counsel for Wal-Mart elicited a prior description of
the puddle of water from Caldwell’s deposition, in which he described it as
eighteen inches in size and circular or irregularly shaped.
2
       Wal-Mart employs a series of code words for alerting employees to various
incidents at the store. “Code white” signifies an incident involving a customer, or
an injured customer.

                                             -2-
the floor and that there were no hazards there. Callais testified that she did not

see any water on the floor when she left the aisle.

      After she heard the code white, Callais returned to the aisle where she saw

Caldwell lying on the floor surrounded by a group of people. She did not notice

any water on the floor when she returned.

      Mrs. Caldwell was in the store shopping separately from her husband when

the accident occurred. Wal-Mart paged her over its intercom system, and an

employee led her to the aisle where Caldwell had fallen. Mrs. Caldwell testified

that she observed liquid running along the lower panel on the floor in the area

where Caldwell was lying. The floor was white, and the liquid was clear.

Mrs. Caldwell described the water spots as follows:

             There were quite a few spots. They varied in size. Some had
      dried. Sometimes when we have stains on the floor, when they’re
      there for a while and when they start drying, you’ll have residue and
      you can see where a stain has been there for a while. There were
      a few of those in varying sizes.

Appellee’s Supp. App. at 15.

      The largest spot was approximately six inches by four inches, and the

smallest about the size of a dollar coin. When asked to quantify the spots,

Mrs. Caldwell indicated that there were four or five of them. She further testified

that she saw a “mashed-up jug” sitting at the edge of the counter at the bottom

shelf. Id. at 17. She did not see the jug leaking, but it was half empty.


                                         -3-
      Lance Dyer, an emergency medical technician who responded to the

accident, testified that he observed a spot or puddle of water at the scene near

Caldwell’s feet. The spot was approximately twelve inches in diameter. It had

a black skid mark running through it, which he assumed was caused when

Caldwell slipped and fell.

      Roy Velez, an assistant manager at Wal-Mart, arrived at the scene shortly

after the code white had been issued. A number of other employees already were

there. He did not notice any water on the floor; he believed it was cleaned up

before he got there. He did not notice any source for the spilled water. Velez

stated that due to Wal-Mart’s white floors, water spilled on the floor would have

been transparent.

      Michael Esquero, also a Wal-Mart assistant manager, heard the code white

and went to the scene. He used paper towels to clean up a small spot of clear

liquid on the floor, approximately four inches in size, which he assumed was

water. This spot was approximately two to three feet away from where Caldwell

was lying. Esquero looked for other liquid spills in the aisle and saw none.

Esquero did not see any smashed jugs of water or any source for the spilled

liquid.

      Patsy Telles, a Wal-Mart employee, heard a loud thump when Caldwell fell.

She found him lying in the aisle. She did not notice any liquid on the floor,


                                         -4-
except a small puddle of clear liquid about three or four inches in diameter, above

his head. She searched the aisle for other liquid spots, and found none. She did

not notice any source for the liquid.

       After all the evidence had been presented, Wal-Mart moved for judgment as

a matter of law (JMOL). Wal-Mart argued that there had been no evidence that it

had either caused the spill or known about the spill prior to the accident. The

district court denied the motion. After the jury returned its verdict, Wal-Mart

renewed this argument in its Fed. R. Civ. P. 50 motion for judgment as a matter of

law. It also argued that the district court had erred by not allowing Wal-Mart to

attack Caldwell’s credibility, and by improperly admitting and denying certain

jury instructions. Wal-Mart renews each of these arguments on appeal.

       1. Evidentiary sufficiency to support verdict for plaintiff

              We review de novo a district court’s disposition of a motion
       for judgment as a matter of law, applying the same standard as the
       district court. Such a judgment is warranted only if the evidence
       points but one way and is susceptible to no reasonable inferences
       supporting the party opposing the motion. We do not weigh the
       evidence, pass on the credibility of the witnesses, or substitute our
       conclusions for those of the jury. However, we must enter judgment
       as a matter of law in favor of the moving party if there is no legally
       sufficient evidentiary basis with respect to a claim or defense under
       the controlling law. We must view the evidence and any inferences
       to be drawn therefrom most favorably to the non-moving party.

Baty v. Willamette Indus., Inc.   , 172 F.3d 1232, 1241 (10th Cir. 1999) (quotations

omitted).


                                           -5-
       In New Mexico, the owner of a premises is not the insurer of the safety of

its visitors. See Brooks v. K-Mart Corp. , 964 P.2d 98, 101 (N.M. 1998).           Neither

the doctrine of res ipsa loquitur nor the concept of strict liability applies in

slip-and-fall cases.   See id. (stating that strict liability does not apply);   Holguin v.

Smith’s Food King Properties, Inc.      , 737 P.2d 96, 98 (N.M. Ct. App. 1987) (stating

that res ipsa loquitur does not apply, quoting Kitts v. Shop Rite Foods, Inc. , 323

P.2d 282, 284 (N.M. 1958)).

       Rather, a plaintiff seeking to hold a premises owner liable for

a slip-and-fall accident must show that the owner “failed to exercise ordinary

care by rendering safe an unreasonably dangerous condition on the premises.”

Brooks , 964 P.2d at 101. There are two ways of establishing this element of

plaintiff’s case. First, he may prove that the owner or his employees or agents

caused the dangerous condition to exist, resulting in his injury.         See Holguin ,

737 P.2d at 98. Second, plaintiff may prove that the owner knew, or should

reasonably have known, of the condition yet failed to rectify it.         See Brooks ,

964 P.2d at 101.

       Caldwell relies on the second theory of liability. He offered no proof that

Wal-Mart or its employees caused the water on which he slipped to be spilled on

the floor. Therefore, in order to make his case, he had to show that Wal-Mart had




                                              -6-
actual or constructive knowledge of the spilled liquid on the floor, but

unreasonably failed to clean it up or to warn him of the spill.

       New Mexico cases have explored the question of knowledge of a dangerous

condition in some detail. The general rule is that the owner of a premises is

charged with knowledge of conditions of which he would be aware upon

reasonable inspection of the premises.       See Brooks , 964 P.2d at 99 (quoting

New Mexico Uniform Jury Instruction 13-1318 (1998)). An exception to this

rule arises where there is a recurring, dangerous condition on the premises; in that

case, the owner need not have actual or constructive knowledge of the particular

hazard which caused the accident.        See Mahoney v. J.C. Penney Co. , 377 P.2d

663, 673 (N.M. 1962). Otherwise, the owner is responsible if the condition has

existed long enough to allow him sufficient opportunity to discover it.     See id. ;

De Baca v. Kahn , 161 P.2d 630, 634 (N.M. 1945) (quotation omitted).

       The evidence here was sufficient for the jury to have determined that

Wal-Mart had actual or constructive notice of the liquid spilled on its aisle.

Several witnesses testified to water or other clear liquid on the floor near the

location of Caldwell’s accident. Mrs. Caldwell testified that some of the water

spots had been there long enough to dry and leave a residue. This suggests

a condition of some duration, or perhaps even a recurring condition.

Circumstantial evidence may be used to prove actual or constructive notice of


                                             -7-
a dangerous condition.    See Gutierrez v. Albertsons, Inc. , 824 P.2d 1058, 1062-64

(N.M. Ct. App. 1991). There was a legally sufficient evidentiary basis for the

jury’s award in this case.

      2. Jury instructions

      Wal-Mart complains that the district court incorrectly instructed the jury

concerning New Mexico’s law of premises liability. “We review the district

court’s decision to give a particular jury instruction for abuse of discretion and

consider the instructions as a whole de novo to determine whether they accurately

informed the jury of the governing law.”    United States v. McClatchey , 217 F.3d

823, 834 (10th Cir. 2000) (quotation omitted).

      Wal-Mart objects to the district court’s use of plaintiff’s instruction number

five, which stated in pertinent part as follows:

          TO ESTABLISH THE CLAIM OF NEGLIGENCE ON THE
      PART OF DEFENDANT, THE PLAINTIFF HAS THE BURDEN OF
      PROVING AT LEAST ONE OF THE FOLLOWING
      CONTENTIONS:

          1. THAT DEFENDANT PERMITTED WATER OR
      ANOTHER SUBSTANCE TO ACCUMULATE ON ITS AISLE
      FLOOR, CREATING A SLIP AND FALL HAZARD; OR

          2. THAT DEFENDANT FAILED TO KEEP ITS PREMISES
      AND AISLES SAFE FOR USE BY THE PLAINTIFF.

Appellant’s App. at 37.




                                           -8-
       The instruction also informed the jury that Caldwell had the burden of

proving that Wal-Mart’s negligence was the proximate cause of his injuries and

damages. See id. Wal-Mart argues that the instruction allowed the jury to impose

liability on a strict liability theory, simply because there was water on the floor.

       Even if the instruction was erroneous in allowing imposition of liability

solely because Wal-Mart “permitted” water to accumulate on its aisle floor, such

error was not reversible, in light of the instructions taken as a whole. In

particular, the district court’s instruction number fourteen quoted word for word

New Mexico Uniform Jury Instruction 13-1319, which has been designated for

use in slip-and-fall cases:   3




3
       The New Mexico pattern jury instructions actually contain two alternative
uniform instructions that may be used in slip-and-fall cases. Uniform instruction
13-1319, given here, is designed for use in cases where the employer caused the
dangerous condition or had actual notice of it. Uniform instruction 13-1318,
which discusses the employer’s duty to inspect his premises, is designed for use
in cases where the employer has only constructive notice of the condition.

        In its reply brief, Wal-Mart raises an objection to the district court’s failure
to give an instruction based on 13-1318 rather than 13-1319.         See Appellant’s
Reply Br. at 6. Wal-Mart did not object to the giving of instruction number
fourteen in the district court, however, and did not object to the lack of a 13-1318
instruction in this court until its reply brief.   A party wishing to object to a jury
instruction must do so before the jury retires to consider its verdict; otherwise,
the issue is waived. See Fed. R. Civ. P. 51. Furthermore, a party’s proffer of
its own instruction does not constitute an objection to the one given.      See United
States v. Voss , 82 F.3d 1521, 1530 (10th Cir. 1996). Finally, issues not raised
in an appellant’s opening brief may also be considered waived.         See State Farm
Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994). We therefore
                                                                           (continued...)

                                          -9-
             The defendant was not an insurer of the safety of the plaintiff,
      but it did owe him the duty to exercise ordinary care to keep the
      premises in a safe condition for the plaintiff’s use. If a dangerous
      condition existed on defendant’s premises which was caused by the
      defendant or its employees, or if the defendant had actual knowledge
      of such a condition, although not caused by it or its employees, then,
      in either event, it was its duty to exercise ordinary care to correct or
      to warn the plaintiff of the presence of such dangerous condition.
      A dangerous condition is a condition which a person exercising
      ordinary care would forsee as likely to cause injury to the one
      exercising ordinary care for his own safety.

Appellee’s Supp. App. at 225-26.

      While the statements in Wal-Mart’s proposed jury instruction number eight

might have more correctly instructed the jury concerning Caldwell’s burden of

proof on the issue of negligence, any error in giving instruction number five was

cured by the other instructions given by the district court, including instruction

number fourteen. The error was not reversible.

      3. Impeachment evidence

      Wal-Mart contends that the district court erred in excluding evidence that

it offered to attack Caldwell’s credibility. Wal-Mart attempted to show that

Caldwell’s credibility was adversely affected because he had promised proceeds

from this lawsuit to former business partners who had sued him. It also sought

to introduce opinion evidence of Caldwell’s allegedly untruthful character.



3
 (...continued)
consider Wal-Mart’s argument waived for purposes of appeal.

                                         -10-
We review the district court’s decision to exclude this evidence for an abuse of

discretion. See United Int’l Holdings, Inc. v. The Wharf (Holdings) Ltd.    ,

210 F.3d 1207, 1230 (10th Cir. 2000).

       Wal-Mart’s counsel elicited on cross-examination of Caldwell that

Caldwell had failed to mention in his answers to interrogatories a suit filed

against him as the result of a failed business. Caldwell admitted that he had made

a mistake and should have listed the suit. Counsel then pursued the questioning

by asking Caldwell whether he had ever filed an answer to the suit. At this point,

Caldwell’s counsel objected on the basis of relevance. In the colloquy that

followed, Wal-Mart’s counsel explained:

       The reason – and I have to tie this together with this continuing
       testimony. He made a deal with these people who sued him, his
       partners in this business, that he would pay them money he owed
       them as soon as he settled this lawsuit with Wal-Mart. And I believe
       that goes to his motivation for testifying the way he’s testifying now.

Appellee’s Supp. App. at 100.

       The district court properly rejected any further testimony about the other

suit or Caldwell’s motive for pursuing this action. The testimony was irrelevant,

and unfairly prejudicial.   See Fed. R. Evid. 402, 403, 404(b). Absent some

evidence of fraud on Caldwell’s part (and none was proffered), evidence of his

financial motivation to bring the suit was not relevant to any of the issues in this

case. Compare Schendel v. Hennepin County Med. Ctr.       , 484 N.W.2d 803, 810


                                         -11-
(Minn. Ct. App. 1992) (holding that trial court properly excluded financial

evidence concerning injured plaintiff’s motivation to go back to work, where

record contained no evidence that his injuries were feigned)     with C.L. Maddox,

Inc. v. Royal Ins. Co. of Am. , 567 N.E.2d 749, 755 (Ill. App. 1991) (holding that

evidence of sole shareholder’s financial difficulties was admissible to show his

motive to commit arson).   4
                               The district court did not abuse its discretion in

refusing to admit this evidence.

      Wal-Mart also sought to present testimony from the comptroller of the

parent company of Caldwell’s former employer to the effect that Caldwell was

an untruthful person. The district court excluded this evidence, among other

reasons, because the witness did not lay an adequate foundation for knowledge of

Caldwell’s character for truthfulness. We cannot say that the district court abused

its discretion in excluding this testimony.




4
       In Gaudin v. Shell Oil Co. , 132 F.R.D. 178, 179 (E.D. La. 1990), the court
stated, without explanation, that a plaintiff’s credit and financial history was
admissible to show that she had an improper motive in bringing the suit. This
holding is remarkable, to say the least, and a leading commentator’s view of it
shows how far afield it is from the general rule.   See 22 Charles A. Wright &
Kenneth W. Graham, Federal Practice & Procedure § 5240 (2000 Supp.)
(“Shocking ruling unless there is more to case than appears from opinion”).

                                            -12-
     The judgment of the United States District Court for the District of

New Mexico is AFFIRMED.

                                                  Entered for the Court



                                                  Monroe G. McKay
                                                  Circuit Judge




                                      -13-
