            Case: 12-16038   Date Filed: 07/29/2013   Page: 1 of 6


                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 12-16038
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 1:11-cv-00297-WS-N



EUGENE M. COSTA,

                                                                         Plaintiff,

EVA COSTA,
as Personal Representative for the
Estate of EUGENE M. COSTA, deceased,
                                                               Plaintiff-Appellee,


                                   versus

SAM’S EAST, INC.,
d.b.a. Sam’s Club,
                                                          Defendant-Appellant.

                        ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                               (July 29, 2013)
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Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      Sam’s East, Inc., doing business as Sam’s Club, appeals the denial of its

motion for a new trial and for judgment as a matter of law. Eugene Costa was

injured at a Sam’s Club store when an employee dislodged a box containing a

television that then fell on Costa’s leg. Costa complained that Sam’s Club was

responsible for the negligence of its employee, and Sam’s Club removed the

complaint to the district court based on diversity of citizenship. 28 U.S.C.

§§ 1332(a), 1441. Costa died before trial, and the district court granted a motion to

substitute Costa’s wife, Eva, as the personal representative of his estate. A jury

found Sam’s Club liable for Costa’s injuries. Sam’s Club argues that the district

court erred by applying the law of negligence instead of premises liability and by

admitting portions of the deposition of Costa’s treating physician about the effect

of Costa’s injury on his health. We affirm.

      The undisputed evidence established that Costa was injured while having his

television inspected by an employee of Sam’s Club. As the employee attempted to

connect the television to an antenna post, the employee dislodged from a shelf a

box containing another television. The box fell on Costa’s left leg and caused a

hematoma and severe swelling. Costa, who suffered from heart disease, developed




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acute renal failure associated with the hematoma and his health continued to

deteriorate. Costa later died of congestive heart failure.

      This appeal is governed by two standards of review. We review de novo the

denial of a motion for a judgment as a matter of law. Chaney v. City of Orlando,

483 F.3d 1221, 1227 (11th Cir. 2007). We review the denial of a motion for a new

trial for abuse of discretion. Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d

1299, 1312 (11th Cir. 2013). Under that standard, “[o]ur review of the district

court’s decision to admit [expert] testimony is very limited.” Maiz v. Virani, 253

F.3d 641, 662 (11th Cir. 2001). “Our cases, consistent with Rule 61 of the Federal

Rules of Civil Procedure, hold that a new trial is warranted only where [an] error

has caused substantial prejudice to the affected party (or, stated somewhat

differently, affected the party’s ‘substantial rights’ or resulted in ‘substantial

injustice’).” Peat, Inc. v. Vanguard Research, Inc., 378 F.3d 1154, 1162 (11th Cir.

2004) (internal footnote omitted).

      The district court did not err by instructing the jury to apply the law of

negligence instead of premises liability. Under Alabama law, which the parties

agree applies, “negligence principles are applicable when the landowner’s active

conduct, rather than the condition of the land, causes the injury[.]” Baldwin v.

Gartman, 604 So. 2d 347, 348 (Ala. 1992) (citing Orr v. Turney, 535 So. 2d 150

(Ala. 1988)); see also Lilya v. Greater Gulf State Fair, Inc., 855 So. 2d 1049, 1053


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(Ala. 2003); Powell v. Piggly Wiggly Ala. Distrib. Co., Inc., 60 So. 3d 921, 924

(Ala. Civ. App. 2010). The undisputed evidence at trial established that Costa’s

injury was caused by the active conduct of an employee of Sam’s Club instead of a

dangerous condition in the store. When the employee dislodged the box from the

shelf, he created a danger to Costa that was “independent and distinct from the

condition of the premises,” see Baldwin, 604 So. 2d at 349 (quoting Orr, 535 So.

2d at 154), and made “ordinary negligence the standard to be applied,” see id. The

district court did not err in refusing to instruct the jury to apply the law of premises

liability. See Gowski v. Peake, 682 F.3d 1299, 1315 (11th Cir. 2012) (“The

purpose of jury instructions is to give the jury a clear and concise statement of the

law applicable to the facts of the case.”).

      Sam’s Club argues that the law of negligence does not apply to an invitee

like Costa, but we disagree. As the Supreme Court of Alabama explained in Orr, if

“the affirmative conduct of the landowner, rather than the condition of his

premises, . . . causes the injury,” then “the justifications for determining liability

based upon the classification of the injured party (which, while perhaps

anachronistic, are yet viable in Alabama) do not attach.” 535 So. 2d at 152. After

Orr, Alabama courts have continued to determine the applicable law based on the

cause of the injury. In Baldwin, an invitee was injured when he was struck by a

slab of concrete knocked off a dolly by the landowner’s son. 604 So. 2d at 348,


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350. The Supreme Court of Alabama held that the tort claim was governed by the

law of premises liability because the landowner had created a dangerous condition

on his land. Id. at 349. But, the court explained, “[h]ad [the landowner] . . .

bumped the slab and caused it to fall, his conduct, distinct from his status as

landowner, could then be said to have caused the injury and could be evaluated by

an ordinary negligence standard.” Id. Similarly, in Lilya, when an invitee at a fair

sued for injuries caused by a mechanical bull, the Supreme Court of Alabama

determined that the issue “whether the duty owed . . . by Gulf State Fair should be

extracted from general principles of negligence or of premises liability” turned on

“whether the injury was caused by some affirmative conduct of the landowner or

by a condition of the premises.” 855 So. 2d at 1053. And recently in Powell, the

Court of Civil Appeals applied the law of negligence to determine whether Piggly

Wiggly was liable when a warehouse employee struck a visitor with a forklift. 60

So. 3d at 924–26. Costa’s status as an invitee did not affect the decision whether

to apply the law of negligence.

      The district court also did not abuse its discretion by admitting portions of

the video deposition of Dr. Michael O’Dowd to explain Costa’s injury and how the

accident affected his health. Under Alabama law, Costa’s estate had to prove that

he suffered “an injury or damage resulting from the . . . conduct” of the Sam’s

Club employee. See Cook’s Pest Control, Inc. v. Rebar, 28 So. 3d 716, 725 (Ala.


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2009). Dr. O’Dowd, Costa’s cardiologist and treating physician, testified that

Costa was “always a little ill” because he suffered from coronary heart disease, the

hematoma caused him to “develop[] acute renal failure” and “deteriorate,” and

“eventually he just died from heart failure.” See Fed. R. Evid. 702(a). Sam’s Club

argues that Dr. O’Dowd’s statements that Costa’s health deteriorated more quickly

after his injury was unduly prejudicial, under Federal Rule of Evidence 403, but

the probative value of those statements outweighed their possible prejudicial effect.

Costa’s estate was entitled to recover “compensatory damages to compensate for

[Costa’s] expenses and losses incurred up to . . . [his] death,” and could introduce

evidence to explain the full extent of Costa’s physical injuries. See King v. Nat’l

Spa and Pool Inst., Inc., 607 So. 2d 1241, 1248 (Ala. 1992). And the district court

was careful to exclude any evidence that was unduly prejudicial. Before trial, the

district court examined Dr. O’Dowd’s testimony and excluded statements

suggesting that Costa’s injury caused or contributed to his death. Sam’s Club was

not substantially prejudiced by Dr. O’Dowd’s testimony that Costa’s injury was

debilitating. See Vanguard Research, 378 F.3d at 1162.

      We AFFIRM the judgment in favor of Costa’s estate.




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