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                                                             [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-16245
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:10-cv-03284-SCJ

EIHAB ELZUBIER,

                                                                Plaintiff-Appellant,

                                       versus

SONY MUSIC HOLDINGS, INC.
f.k.a. and as the successor in interest to Sony Music
Entertainment, Inc.,
BOBBY BALLENTINE,
SONY MUSIC HOLDINGS, INC.,
d.b.a. Sony DADC,

                                                             Defendants-Appellees.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                   (May 5, 2014)

Before TJOFLAT, JORDAN, and COX, Circuit Judges.

PER CURIAM:
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         The outcome of this appeal turns on whether the district court properly

instructed the jury. Because we conclude that the district court erred by instructing

the jury on premises liability principles in addition to ordinary negligence

principles, we vacate the district court’s judgment and remand the case for a new

trial.

                          I. Factual and Procedural History

         This is a diversity case and we apply Georgia law. Klaxon Co. v. Stentor

Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021–22 (1941). The facts are

relatively straightforward. Eihab Elzubier, a tractor-trailer driver, arrived at the

Sony facility in Carrollton, Georgia to pick up four pallets of Sony Playstations.

Elzubier signed in at a security desk at the front of Sony’s building when he

arrived. According to Sony, standard protocol is for drivers to remain in a secure

area where the drivers can observe one of Sony’s employees loading their trucks

for them. Sony witnesses testified that signage throughout their facility, as well as

verbal instructions from Sony employees, alerted Elzubier to this standard

operating procedure. Elzubier disputed this fact.

         Elzubier does not dispute that Sony assigned its employee, Bobby

Ballentine, to load his truck by placing the pallets of Playstations into the truck

using a forklift. According to Elzubier, Ballentine damaged both the goods and the
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truck during the loading process. Having watched Ballentine inflict this damage,

Elzubier left the viewing area to inspect both the pallets and his tractor-trailer.

Ballentine testified that he was unaware that Elzubier had left the secure area and

that Elzubier had entered the tractor-trailer to inspect the damage. Elzubier

disputed Ballentine’s testimony, testifying that Ballentine had clearly seen him

enter the trailer and had even assented to his entry.

       Regardless, neither party disputed that after Elzubier entered the trailer,

Ballentine hit Elzubier with the forklift, temporarily pinning him to the wall of the

trailer. Sony employees promptly removed Elzubier from the trailer and told him

that he should not have been in there. There was conflicting testimony about

whether Elzubier responded to these statements. As a result of Ballentine striking

and pinning him with the forklift, Elzubier said he can no longer drive a truck for a

living and that he continues to suffer from various physical and psychological

issues as a result of his injury.

       After a three-day trial, a jury returned a verdict finding Sony twenty-five

percent at fault for Elzubier’s injuries and finding Elzubier seventy-five percent at

fault for his injuries. The verdict awarded Elzubier $2,870 in damages. (R.112 at

2.) However, under Georgia law, if a plaintiff is more than fifty percent at fault, he

can recover nothing. See O.C.G.A. § 51–12–33(g); Bridge Farms, Inc. v. Blue,


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480 S.E.2d 598, 599 (Ga. 1997) (citation omitted). Accordingly, Elzubier

recovered nothing for his injuries. He appeals.

                                 II. Issues on Appeal

      In his complaint, Elzubier did not inject premises liability into the case. (R.

26.) Despite this fact, the district court instructed the jury on the law of premises

liability. (See R. 133 at 471–90.) Elzubier contends that: (1) the district court

erred in instructing the jury on the law of premises liability and trespass; (2) the

district court erred in instructing the jury on the doctrine that silence can constitute

an admission; and (3) the plaintiff is entitled to a new trial on the issue of damages

because the verdict as to damages was tainted and the jury was without authority to

return such a verdict. (Appellant’s Initial Br. at 1.) We address each of these

contentions in turn.

                               III. Standard of Review

      We review de novo whether a jury instruction correctly stated the law or

misled the jury. United States v. Daniels, 685, F.3d 1237, 1244 (11th Cir. 2012).

                                    IV. Discussion

      We first address whether Elzubier preserved his objections to the district

court’s jury instructions. Sony argues that Elzubier did not properly preserve his

objections to the jury charge (Appellee’s Br. at 8), and that he invited any error by


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proposing a jury charge containing premises liability principles. (Appellee’s Br. at

9.) Sony is correct in saying that we interpret Federal Rule of Civil Procedure 51

strictly—a party must object to a jury instruction prior to the jury’s deliberations in

order to preserve the issue on appeal. (Appellee’s Br. at 9.) But we have also

recognized two exceptions to this rule—one of which is “where a party has made

its position clear to the court previously and further objection would be futile . . . .”

Farley v. Nationwide Mut. Ins. Co, 197 F.3d 1322, 1330 (11th Cir. 1999) (citing

Landsman Packing Co. v. Continental Can Co., 864 F.2d 721, 726 (11th Cir.

1989)).

      Here, Elzubier preserved his objection to the charge because his counsel

made it clear to the court that he objected to the court charging the jury on

premises liability and the court made it clear to counsel that further objection

would be futile. (R. 131 at 382.) But even if Elzubier had not preserved his

objection, we could still review the district court’s jury charge for plain error. See

United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776–77 (1993). In

order for us to reverse the district court based on a plainly erroneous charge, four

requirements must be met: 1) an error occurred; 2) the error was plain; 3) the error

affected substantial rights; and 4) not correcting the error would seriously affect




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the fairness of the judicial proceeding. Id.; see also Farley, 197 F.3d at 1329

(citations omitted). Here, all of these requirements are met.

      Furthermore, we cannot say—as Sony contends—that Elzubier invited the

error by submitting a proposed jury charge that included premises liability

principles. After Elzubier’s counsel twice objected to the district court’s charge on

premises liability, the district court told Elzubier’s counsel: “I wouldn’t necessarily

come here tomorrow just making that argument [that this is not a premises liability

case] if I was you. I will tell you that argument you are making right now won’t

bode well with you tomorrow. I would have something else to argue.” (R. 131 at

382.) The district court made this statement to Elzubier’s counsel at the charge

conference on the afternoon of October 31, 2012. (R. 131.) Elzubier did not

submit a proposed charge containing premises liability principles until the next

morning, November 1, 2012, after the district court made clear to him that the

court intended to instruct the jury on premises liability despite Elzubier’s

contention that this was not a premises liability case. (See R. 110.) Surely,

Elzubier cannot have invited error by making his objection and then simply

following the district court’s instructions.

A. The district court erred in instructing the jury on the law of premises
liability and the law relating to trespass.



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      Elzubier contends that the district court erred by instructing the jury on

premises liability because his complaint did not allege injury from a static

condition on Sony’s property. Instead, he alleged that Ballentine’s active

negligence caused his injury. (See R. 26 at 5.)

      Georgia law distinguishes between negligence cases where a condition on

the land causes injury to someone and those where a proprietor’s active negligence

causes injury to someone. The Supreme Court of Georgia directly addressed this

issue in Lipham v. Federated Dept. Stores, Inc., 440 S.E.2d 193 (1994). There, the

Supreme Court of Georgia stated that “liability for [an employee’s] failure to

exercise ordinary care and not to subject others to an unreasonable risk of harm is

based only on the nature of his negligent act and is not affected by [plaintiff’s]

status with respect to the premises.” Id. at 194.

      Liability is determined under the rules of premises liability if an injury is

caused by a static condition that does not change. The inquiry is whether the

proprietor had superior knowledge of the defect or dangerous condition. Thus, the

importance of the injured individual’s status as an invitee, licensee, or trespasser

plays a crucial role. But, if an injury is caused by the active negligence of a

landowner, or its employee, ordinary negligence principles apply. In this case, the

inquiry is whether the proprietor’s employee could reasonably foresee that his


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actions or inactions would cause injury to the plaintiff. To put it simply, a

landowner’s duty as to the condition of property is distinct from a breach of duty

that constitutes active negligence. Id.

      In this case, Elzubier only alleged ordinary negligence, but the district court

improperly gave an instruction for premises liability. The district court charged the

jury on ordinary negligence, but in this same discussion, the court also instructed

the jury on three elements of premises liability. The court first described invitees

and charged the jury that a landowner owed invitees a duty of ordinary care. (R.

133 at 95.) Second, the court instructed the jury on licensees. (R. 133 at 96.) The

court charged the jury that a licensee “enters the premises at his or her own risk,

and the owner owes the licensee no duty . . . except that the owner should not

knowingly let the licensee run into a hidden part or willfully or wantonly cause

him or her injury.” (R. 133 at 97.) Third, the court charged the jury on trespassers.

(Id.) The court instructed that “the owner of the premises owes no duty to a

trespasser until after his or her presence is actually known, and then only owes the

trespasser the duty to not willfully or wantonly injure him or her.” (Id.)

      Sony contends that even if the premises liability instructions were incorrect,

they were not prejudicial because the district court’s charge also included a

standard negligence charge. (Appellee’s Br. at 10.) But the benchmark for


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instructing a jury is not that the correct standard need only be included somewhere

within the charge, while the court primarily instructs the jury on misleading, non-

applicable law. Palmer v. Board of Regents of Univ. Sys. of Ga., 208 F.3d 969

(11th Cir. 2000) (quoting United States v. Starke, 62 F.3d 1374, 1380 (11th Cir.

1995)). We have made clear that “our task is to examine whether the jury charge,

considered as a whole, sufficiently instructed the jury so that the jurors understood

the issues and were not misled.” Id. (emphasis added).

      Here, the district court’s instructions on licensee status and trespasser status

were misleading and prejudicial. These instructions were not given as a separate

premises liability charge for static conditions. Rather, the district court presented

them as a factor that could change Sony’s duty to Elzubier. The court instructed

the jury that if Elzubier was a licensee, Sony only had a duty to refrain from

willfully or wantonly injuring him. The court also instructed the jury that if

Elzubier was a trespasser then Sony had no duty. These instructions are

substantially different than the correct duty of reasonable care. Furthermore, the

jury’s verdict form only had questions regarding ordinary negligence. So, the jury

faced the difficult task of trying to reconcile the court’s instructions on premises

liability with a jury verdict form on ordinary negligence.




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       Accordingly, the district court’s instruction on premises liability was

erroneous and misled the jury.

B. The district court did not err in instructing the jury that silence can
constitute an admission.

       The judge instructed the jury that “if the jury finds that the Plaintiff was

present and heard and understood statements which he would be expected to deny

or respond to, you [the jury] may consider whether his silence was an admission of

the truth of the statement.” (R. 133. at 481–82.) The district court correctly stated

the law, and neither party argues that this statement is incorrect. Elzubier simply

argues that there was insufficient evidence to support the charge. (Appellant’s

Initial Br. at 23–25.) But there was evidence presented at trial that Elzubier was

asked several questions to which he did not respond. (R. 131. at 206, 260.) While

Elzubier disputes the veracity of this evidence, the district court properly charged

the jury on the applicable law in order to allow the jury to weigh the evidence.

C. Elzubier is not entitled to a new trial on damages.

       Elzubier contends that he should also have a new trial on damages because

the verdict on damages was tainted by the incorrect charge on liability. 1 Elzubier



       1
         Elzubier also contends that the issue of damages was moot. This contention is
meritless. Georgia law makes clear that the court makes the appropriate adjustment after the jury
has deliberated and reached a verdict on both liability and damages. See O.C.G.A. § 51–12–
33(a), (g).
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does not dispute that the jury instructions on damages were correct. Nor does

Elzubier contend that the verdict on damages is against the weight of the evidence.

Instead, Elzubier contends the jury did not carefully consider the damages award

because they knew his comparative fault barred any recovery under Georgia law.

        The jury instructions and jury form instructed the jury to determine

damages independent of their finding on liability. Elzubier’s speculation that the

jury could have been influenced by the verdict on liability is not irrational. But,

absent extraordinary situations, “we adhere to the crucial assumption underlying

our constitutional system of trial by jury that jurors carefully follow instructions.”

Francis v. Franklin, 471 U.S. 307, 324, 105 S. Ct. 1965, 1977 (1985).

Accordingly, Elzubier is not entitled to a new trial on damages.

                                    V. Conclusion

      For the foregoing reasons, we vacate and remand the case to the district

court for a new trial on liability and degree of fault only.

VACATED AND REMANDED.




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