UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIDGET FIELDS,
Plaintiff-Appellee,

v.                                                               No. 97-1493

WAL-MART STORES, INCORPORATED,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(CA-96-808-2)

Submitted: March 10, 1998

Decided: March 25, 1998

Before WIDENER, MURNAGHAN, and HAMILTON,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James C. Lewis, RABINOWITZ, RAFAL, SWARTZ,
TALIAFERRO & GILBERT, Norfolk, Virginia, for Appellant. Chris-
topher C. Trundy, LAW OFFICES OF CHRISTOPHER C.
TRUNDY, New Bedford, Massachusetts, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Wal-Mart appeals the jury verdict in favor of plaintiff and attacks
the district court's order granting Fields' motion for judgment as a
matter of law on the issue of contributory negligence. Fields' civil
action alleged that a Wal-Mart employee negligently loaded a furni-
ture item into her shopping cart, which caused the cart to overturn and
injure her ankle. We affirm.

In October 1993, Fields and her three-year-old daughter went to a
Wal-Mart Store in Norfolk, Virginia, to purchase a chifferobe.1 Upon
entering the store, Fields collected a shopping cart and went to the
Home Furnishings Department where she chose the piece of furniture
she wanted to purchase. A sign was posted in the furniture department
requesting that customers seek assistance from Wal-Mart employees.
Fields located a Wal-Mart employee and asked him to assist her in
loading the piece of furniture into her shopping cart.2 The employee
placed the box in the cart so that the bottom of the box was in the
right corner of the cart at the end where the handle is and the left side
of the box hung over the side of the cart.3 Fields did not instruct the
employee on how to load the cart, nor did she know how much the
box weighed. Also, Fields was not touching the cart at the time the
box was loaded; the cart appeared to be stable.

Once the box was loaded into the cart, Fields pushed the shopping
cart from the Home Furnishings Department to the Lay-A-Way
Department. Fields did not notice if the box shifted, nor did she notice
_________________________________________________________________
1 Mrs. Fields described this chifferobe as a piece of furniture similar to
an entertainment center.
2 This employee was never identified.
3 The box was fifty inches long, seventeen inches wide, eight inches
deep, and weighed 135 pounds.

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any instability. Fields stood in line at the Lay-A-Way Department
with her hands on the cart until she was called forward by an
employee. When Fields took her hands off the cart, the cart began to
slide sideways onto her daughter. Fields pushed her daughter aside,
and the cart fell on Fields' ankle.

Following the accident, Fields was treated by several doctors and
required surgery to remove a nerve in her left foot, which left the last
two toes of her left foot permanently numb. Fields also had surgery
to alleviate aggravation from scarring after the removal of the nerve.

Fields filed a motion for judgment in the Circuit Court for the City
of Norfolk, Virginia, in October 1995 and subsequently removed the
action to the district court in August 1996. A jury trial commenced,
and at the conclusion of Fields' evidence, Wal-Mart moved for judg-
ment as a matter of law. The court denied the motion and again
denied the motion at the conclusion of all the evidence. At the conclu-
sion of all the evidence, Fields moved for judgment as a matter of law
on the issue of contributory negligence. The court granted this
motion, and the jury then returned a verdict awarding $275,000 to
Fields. The final judgment order was entered on March 21, 1997, and
Wal-Mart timely appealed.

On appeal, Wal-Mart asserts that the district court erred in granting
judgment as a matter of law on the issue of contributory negligence.
Wal-Mart claims that the evidence presented at trial created an issue
of fact as to whether Fields' conduct "during her trip from the Home
Furnishings Department to the Lay-Away-Department" contributed to
the instability of the shopping cart.

This court reviews the grant of a judgment as a matter of law de
novo. See Gairola v. Virginia Dep't of Gen. Servs., 753 F.2d 1281,
1285 (4th Cir. 1985). In ruling on a motion for judgment as a matter
of law, the district court must view the evidence in the light most
favorable to the nonmoving party. See Townley v. Norfolk & Western
Ry., 887 F.2d 498, 499 (4th Cir. 1989).

Under Virginia law, contributory negligence exists when "a plain-
tiff fail[s] to act as a reasonable person would have acted for his own
safety under the circumstances." Atrip v. E.E. Berry Equip. Co., 397

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S.E.2d 821, 823-24 (Va. 1990). If the plaintiff was contributorily neg-
ligent, then Virginia law bars a plaintiff from recovering in a negli-
gence action if the plaintiff's contributory negligence proximately
caused the injury. See Litchford v. Hancock, 352 S.E.2d 335, 337 (Va.
1987). Federal district courts operate under a federal standard when
determining the sufficiency of the evidence for submission of the
issue of contributory negligence to a jury. See Jones v. Meat Packers
Equip. Co., 723 F.2d 370, 372 (4th Cir. 1983). In the absence of evi-
dence, or reasonable inferences that can be drawn from the evidence,
disclosing that a plaintiff was negligent, the issue of contributory neg-
ligence should not go to the jury. Id.

We find no evidence that Fields engaged in objectively negligent
behavior. Fields requested assistance from a store employee who
loaded the box into Fields' shopping cart. Fields did not pick up the
box or touch it before or after it was loaded into her cart. Fields sim-
ply pushed the cart containing the box to the Lay-A-Way Department.
There is no evidence that Fields negligently pushed her cart through
the store, and Wal-Mart conceded at trial that there was no substantial
evidence of contributory negligence. Negligence cannot be presumed
simply because an accident occurred. See Murphy v. J.L. Saunders,
Inc., 121 S.E.2d 375, 378 (Va. 1961). Accordingly, we affirm the dis-
trict court's order granting judgment as a matter of law to Fields on
the issue of contributory negligence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

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