                               NOT FOR PUBLICATION                            FILED
                        UNITED STATES COURT OF APPEALS                        MAY 26 2016
                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT


 URBAN McCONNELL,                                   No. 14-15941

         Plaintiff-Appellant,                       D.C. No. 2:12-cv-01601-RCJ-PAL

   v.
                                                    MEMORANDUM*
 WAL-MART STORES, INC.,

         Defendant-Appellee.

                       Appeal from the United States District Court
                                 for the District of Nevada
                    Robert Clive Jones, Senior District Judge, Presiding

                                Submitted May 13, 2016**
                                San Francisco, California

Before: McKEOWN, SACK***, and FRIEDLAND, Circuit Judges.

        Plaintiff Urban McConnell slipped and fell on a wet floor in a Wal-Mart

store in Las Vegas and suffered serious injury to his left knee. He brought suit in


              *
                   This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.
              **
                   The panel unanimously concludes this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
              ***
                  The Honorable Robert D. Sack, Senior Circuit Judge for the
U.S. Court of Appeals for the Second Circuit, sitting by designation.
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the United States District Court for the District of Nevada against Wal-Mart in tort

on a negligence theory. The case was tried in the district court before a jury, which

returned a verdict in favor of Wal-Mart on the sole basis that it was not negligent.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      On appeal, McConnell raises three issues, each of which lacks merit.

      First, McConnell argues that the district court erred in denying his Rule

50(b) motion for judgment as a matter of law based on the evidence at trial. "'We

review de novo the district court's denial of a renewed motion for judgment as a

matter of law' under Rule 50(b)." EEOC v. Go Daddy Software, Inc., 581 F.3d

951, 961 (9th Cir. 2009) (quoting Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th

Cir. 2006)). The district court could not entertain McConnell's Rule 50(b) motion

because he failed to first file a timely Rule 50(a) motion as required by Rule 50(b).

See Tortu v. Las Vegas Metro. Police Dep't, 556 F.3d 1075, 1078 (9th Cir. 2009).

      Second, McConnell advances several arguments concerning the district

court's assumption of risk instruction and its denial of his Rule 59 motion for a new

trial, which was based on that instruction. "We review de novo whether [a jury]

instruction misstates the law. If so, the error warrants reversal, unless it is

harmless." Harrington v. Scribner, 785 F.3d 1299, 1306 (9th Cir. 2015). Even if

the assumption of risk instruction was erroneous, reversal would not be required

here because the "error [wa]s more probably than not harmless," and the defendant


                                            2
has demonstrated that "it is more probable than not that the jury would have

reached the same verdict had it been properly instructed." Clem v. Lomeli, 566

F.3d 1177, 1182 (9th Cir. 2009) (quoting Dang v. Cross, 422 F.3d 800, 811 (9th

Cir. 2005)). The jury found that Wal-Mart was not negligent, and therefore never

was required to nor did reach the issue of McConnell's comparative negligence and

whether he had assumed the risk of walking on the wet floor. Simply put, the

assumption of risk instruction could not have affected the jury verdict.

      Third, McConnell objects to "ad lib" explanatory commentary and

hypothetical examples used by the district court in the course of delivering its jury

instructions. But as McConnell concedes, he made no contemporaneous objections

to these comments or examples. By failing contemporaneously to object,

McConnell has waived his ability to challenge them on appeal. E.g., Affordable

Hous. Dev. Corp. v. City of Fresno, 433 F.3d 1182, 1196 (9th Cir. 2006) ("Failure

to object to an instruction waives the right of review."). In any event, the district

court's commentary and use of hypothetical examples here did not impermissibly

follow the fact pattern of this case or otherwise mislead the jury, and for this

reason did not prejudice McConnell. Cf. United States v. Abushi, 682 F.2d 1289,

1300-01 (9th Cir. 1982).

      Judgment AFFIRMED.




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