                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-3351
                         ___________________________

                                     James Lasley

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                                Running Supply, Inc.

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                     Appeal from United States District Court
                   for the District of South Dakota - Sioux Falls
                                   ____________

                            Submitted: October 20, 2016
                              Filed: December 5, 2016
                                   [Unpublished]
                                   ____________

Before MURPHY, GRUENDER, and SHEPHERD, Circuit Judges.
                         ____________

PER CURIAM.

       James Lasley appeals the district court’s1 denial of his motion for a new trial
after a jury verdict in favor of Running Supply, Inc. Lasley contends that the district

      1
       The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
court abused its discretion by instructing the jury on general negligence instead of
premises liability law. For the reasons discussed below, we affirm.

        Lasley, an independent truck driver, picked up cattle panels and calving pens
from Powder River Livestock Handling Equipment. Powder River gave Lasley
multiple copies of a document entitled Unloading Precautions, which stated, “When
popping black bands, be careful that you stand clear of the product and bands. They
will spring open and could injure you.” The Unloading Precautions also noted that
“[t]he black bands and posts are the only protection you have to keep the product
from falling off the truck” and that a driver was not responsible for unloading. Lasley
testified that he read and understood the precautions.

        Lasley delivered the cattle panels and calving pens to other customers before
arriving at Running Supply’s store in Huron, South Dakota. After noticing that
Running Supply only used one person for unloading, he offered to help unload the
cattle panels. Running Supply Department Manager Melvin Brown, the employee
responsible for unloading the panels, gave Lasley the tools to cut the bands. Brown
testified he did not ask Lasley to help unload and remarked, “The drivers are
independent folks. They can decide on what they do.” Lasley thus offered to help
of his own accord. Lasley then cut the first bundle. After Brown removed the first
set of panels with a forklift and drove them away, Lasley cut another bundle.
Instantly, the entire bundle of steel panels threw him from the truck and landed on
him. Lasley suffered extensive back and leg injuries.

       Lasley filed this diversity action, alleging a negligence claim against Running
Supply. Prior to trial, Lasley proposed jury instructions on premises liability, arguing
that Running Supply had a duty to warn Lasley of the dangers of unloading the cattle
panels. Running Supply proposed jury instructions for general negligence, arguing
that South Dakota law only required landowners to warn invitees about conditions on
the land, not about activities on the land. The district court rejected Lasley’s

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proposed instructions and gave the jury general negligence instructions without
further objection. The jury found in favor of Running Supply.

       Lasley filed a post-trial motion for a new trial, arguing that the district court
erred by not instructing the jury that South Dakota law holds landowners liable for
dangerous activities performed on the premises. The court surveyed different
jurisdictions and held “that the better rule is to apply traditional negligence principles
in the present case because Lasley’s injuries were caused by the actions (or
omissions) of Defendant’s employees and not by any dangerous condition of
Running’s property.” As a result, the district court found that sufficient evidence
supported the jury’s verdict because there was no evidence that a dangerous condition
caused Lasley’s injuries and therefore there was no breach of duty. Furthermore, it
held that there was sufficient evidence that Lasley assumed the risk of his injuries
when he read and understood the Unloading Precautions but nonetheless stood right
next to the panels when he cut the bands. Lasley’s sole argument on appeal is that the
district court abused its discretion by refusing his premises liability instructions based
on dangerous activities.

      “We review a district court’s decision to give particular jury instructions for
abuse of discretion.”2 Acuity v. Johnson, 776 F.3d 588, 595 (8th Cir. 2015)
(quotations omitted). “Our review is limited to whether the jury instructions, taken
as a whole, fairly and adequately represent the evidence and applicable law in light


      2
       Running Supply claims that because Lasley failed to specifically object to the
general negligence jury instructions, he has not preserved the alleged error, and thus,
we should only review for plain error. However, Rule 51(d)(1)(B) allows a party to
assign as error “a failure to give an instruction, if that party properly requested it
and—unless the court rejected the request in a definitive ruling on the record—also
properly objected.” Fed. R. Civ. P. 51(d)(1)(B) (emphasis added). Because Lasley
requested the premises liability jury instructions and the district court definitively
denied that request on the record, we review for an abuse of discretion. See id.

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of the issues presented to the jury in a particular case.” Linden v. CNH Am., LLC, 673
F.3d 829, 836 (8th Cir. 2012) (quotations omitted). “Even if a district court
erroneously instructs a jury, this court reverses only where the error affects the
substantial rights of the parties,” Bauer v. Curators of Univ. of Mo., 680 F.3d 1043,
1044 (8th Cir. 2012) (quotations omitted), and “a new trial is necessary only when the
errors misled the jury or had a probable effect on the jury’s verdict,” Slidell, Inc. v.
Millennium Inorganic Chems., Inc., 460 F.3d 1047, 1054 (8th Cir. 2006).

       Lasley asserts that he is entitled to a new trial because the district court’s
failure to instruct the jury on premises liability based on activities on the land affected
his substantial rights. He argues that in a premises liability case, a landowner must
give a business invitee a warning for dangerous activities on the land, and Running
Supply never warned him of the dangers inherent in unloading cattle panels. We need
not decide this question. Instead, even assuming erroneous jury instructions, any
error did not affect Lasley’s substantial rights because there was sufficient evidence
of Lasley’s assumption of risk. See Burry v. Eustis Plumbing & Heating, Inc., 243
F.3d 432, 435 (8th Cir. 2001) (holding that the plaintiff’s “showing of prejudice [for
an alleged erroneous jury instruction] fizzles” in part because “the defense exposed
serious problems with his case”); Parker v. Casa Del Rey-Rapid City, Inc., 641
N.W.2d 112, 116 (S.D. 2002) (holding that premises liability is a “subpart of the
general duty to exercise reasonable care”) (quotations omitted); Stenholtz v. Modica,
264 N.W.2d 514, 517 (S.D. 1978) (“[E]ven though a [landowner owed a duty to his
business invitee], the fact that the danger was known or obvious is important in
determining whether the invitee is to be charged with assumption of the risk.”).
Lasley does not object to the jury instruction on assumption of risk, which requires
Running Supply to show that (1) Lasley had actual or constructive knowledge of the
existence of the specific risk involved; (2) Lasley appreciated the risk’s character; and
(3) Lasley voluntarily accepted the risk, having had the time, knowledge, and
experience to make an intelligent choice.



                                           -4-
        Running Supply proved each element of the affirmative defense. Lasley
testified that he read the Unloading Precautions, understood that the cattle panels
could spring forward during unloading and injure him, and knew he was not
responsible for unloading the cattle panels. Despite this, Lasley still volunteered to
help and stood right next to the panels when he cut the bands. As the district court
held, “Lasley’s testimony indicated that he knew of the existence of the risk of harm,
appreciated the nature of the risk, and chose to cut the bands despite the known and
appreciated risks.” We find that even assuming erroneous jury instructions, Lasley’s
substantial rights were not affected. Because his substantial rights were not affected
and any potential error had no probable effect on the jury’s verdict, Lasley is not
entitled to a new trial. See Slidell, 460 F.3d at 1054.

      Accordingly, the judgment of the district court is affirmed.
                      ______________________________




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