                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-1311
                                   ___________

Breanne Bennett,                       *
                                       *
           Plaintiff-Appellant,        *
                                       * Appeal from the United States
     v.                                * District Court for the
                                       * Eastern District of Missouri.
Hidden Valley Golf and Ski, Inc.,      *
                                       *
           Defendant-Appellee.         *
                                  ___________

                             Submitted: November 7, 2002
                                Filed: January 31, 2003
                                 ___________

Before MURPHY and MELLOY, Circuit Judges, and FRANK,1 District Judge.
                          ___________

MURPHY, Circuit Judge.

       Breanne Bennett was injured while skiing at Hidden Valley, a downhill ski area
owned by Hidden Valley Golf and Ski, Inc. She brought this negligence action
against the corporation, and the jury decided in favor of the defendant. The district
court2 ordered that judgment be entered accordingly, and Bennett appeals. Her appeal


      1
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota, sitting by designation.
      2
       The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
raises issues concerning some of the jury instructions and evidentiary rulings, as well
as the denial of her motion for judgment as a matter of law and her claim that there
was insufficient evidence to support the verdict. We affirm.

                                            I.

      In the early morning of February 7, 1998, Bennett went with two older male
friends to Hidden Valley for a midnight ski session. At the time Bennett was 16 years
old and a high school student. She had limited experience as a skier, all of which had
been at Hidden Valley where she had skied once before and had snowboarded twice.

        While Bennett was skiing down a slope marked for intermediate difficulty, she
fell at a spot which the parties have variously referred to as a bump, a ridge, a jump,
a ramp, or a mogul. She was thrown about five feet forward and hit the ground limp.
There was conflicting evidence as to whether she had hit a tree. Both sides agree that
the bump on the slope had not been intentionally created by Hidden Valley, but had
formed as skiers and snow boarders cut across the slope and moved the snow.
Bennett claims injuries as a result of the accident, including brain damage and a
diminished future earning capacity.

       Bennett sued Hidden Valley for compensatory and punitive damages under
several theories of negligence, but the punitive damages claim was dismissed before
trial. Bennett alleged that Hidden Valley had been negligent in the design,
maintenance, and staffing of its skiing facilities; in the supervision of its customers
"so as to prevent or cure dangers created by such business invitees"; in providing its
customers with "unrestricted access to advanced and intermediate ski areas without
assessing [their] ski aptitude, ability, or experience"; in permitting obstructions,
including trees and jumps, to "exist in the path of skiers at a time when [it] . . . should
have known that such obstructions posed a hazard or risk of injury"; in failing to
"warn of dangers and obstructions which it knew or reasonably should have known

                                           -2-
were present at its facilities and ski slopes"; and in failing "to guard against,
barricade, protect, or cushion known or reasonably knowable obstructions in the path
of skiers upon its ski slopes."

       Hidden Valley denied negligence and raised assumption of risk as a defense.
It waived a defense of comparative fault, however, and agreed that there was no issue
as to whether Bennett had contractually released Hidden Valley from liability because
she was a minor at the time of the accident.

        The case proceeded to trial before a jury. Bennett objected to a comment in
Hidden Valley's opening statement about her age and experience and moved for a
mistrial. The court overruled the objection and denied the motion. Bennett then
presented witnesses who described the accident, as well as expert evidence, to prove
Hidden Valley's negligence and the extent of her injuries, including her diminished
future earning capacity. After she rested, Hidden Valley put on evidence that it had
exercised reasonable care and that the bump and trees on the slope were risks inherent
in the sport of skiing, in support of its assumption of risk defense. Hidden Valley
also introduced over objections a videotape, depicting a daytime view of the ski area
at a time well after the accident, and Bennett's deposition testimony about her use of
drugs. At the close of all evidence, Bennett moved for a judgment as a matter of law,
claiming that Hidden Valley had not established its affirmative defense of assumption
of the risk. The district court denied the motion. In his closing argument, defense
counsel asked the jury to draw an adverse inference from plaintiff's failure to call two
witnesses who her attorney in his opening had told the jury would be testifying about
the extent of her brain injuries. The court overruled Bennett's objection, and the jury
returned a verdict in favor of Hidden Valley.

      Bennett appeals on multiple grounds. She contends that Instructions 6 and 7
misstated Missouri law. The first was a verdict director which differed slightly from
the Missouri pattern instruction for premises liability, and the second dealt with

                                          -3-
Hidden Valley's assumption of risk defense and directed the jury to find for it if the
conditions Bennett encountered "were a risk inherent in the sport of skiing." Bennett
further argues that the district court should have granted her motion for judgment as
a matter of law because Hidden Valley did not make out an assumption of risk
defense. Bennett also challenges many of the district court's evidentiary rulings and
its handling of prejudicial remarks in defense counsel's opening statement and closing
argument. Finally, she argues that the verdict for Hidden Valley was against the
weight of the evidence.

                                          II.

       Bennett argues that Instructions 6 and 7 were erroneous. We review a court's
jury instructions for an abuse of discretion. United Fire & Cas. Co. v. Historic
Preservation Trust, 265 F.3d 722, 727 (8th Cir. 2001). Although "our task is to
determine whether the instructions fairly and adequately submitted the issues to the
jury, we afford the district court 'broad discretion in choosing the form and language
of the jury instructions.'" Id. (citation omitted) (quoting Fed. Enters., Inc. v.
Greyhound Leasing & Fin. Corp., 786 F.2d 817, 820 (8th Cir. 1986)). In this
diversity case, Missouri law applies to the substance of the instructions, while federal
law "governs our review of the discretion exercised in refusing or admitting such
instructions." Horstmyer v. Black & Decker, (U.S.), Inc., 151 F.3d 765, 771 (8th Cir.
1998).

                                          A.

      Instruction 7 was the verdict director for Hidden Valley's defense of implied
primary assumption of risk. Under Missouri law, this defense "relates to the initial
issue of whether the defendant had a duty to protect the plaintiff from the risk of




                                          -4-
harm."3 Sheppard ex rel. Wilson v. Midway R-1 Sch. Dist., 904 S.W.2d 257, 261
(Mo. Ct. App. 1995). The defense applies where "the parties have voluntarily entered
a relationship in which the plaintiff assumes well-known incidental risks." Id. A
plaintiff's consent to assume the risk is "implied from the act of electing to participate
in the activity" and "[a]s to those risks, the defendant has no duty to protect the
plaintiff."4 Id.

      Instruction 7 stated, "Your verdict must be for the defendant if you believe that
the conditions that plaintiff encountered on defendant's ski slope on the day of the


      3
        Missouri recognizes three forms of assumption of risk: express, implied
primary, and implied secondary. See Sheppard ex rel. Wilson v. Midway R-1 Sch.
Dist., 904 S.W.2d 257, 261–62 (Mo. Ct. App. 1995). Only implied primary
assumption of risk is at issue in this case. Express assumption of risk "occurs when
the plaintiff expressly agrees in advance that the defendant owes him no duty," id. at
261, and both parties agree that Bennett made no such agreement. Implied secondary
assumption of risk "occurs when the defendant owes a duty of care to the plaintiff but
the plaintiff knowingly proceeds to encounter a known risk imposed by the
defendant's breach of duty." Id. at 262. Hidden Valley did not claim that Bennett
knowingly proceeded to encounter the particular risks; it thus did not raise a defense
of implied assumption of risk in the secondary sense.
      4
        Because the doctrine of implied primary assumption of risk focuses on
whether the defendant owed a duty to the plaintiff with respect to the risk in question,
it is not strictly an affirmative defense. See Krause v. U.S. Truck Co., 787 S.W.2d
708, 712 (Mo. 1990) (en banc) ("Primary assumption of the risk is not really an
affirmative defense; rather, it indicates that the defendant did not even owe the
plaintiff any duty of care."); see also Sheppard, 904 S.W.2d at 261 (citing Springrose
v. Willmore, 192 N.W.2d 826, 827 (Minn. 1971) ("Primary assumption of risk,
express or implied, relates to the initial issue of whether a defendant was negligent
at all—that is, whether the defendant had any duty to protect the plaintiff from a risk
of harm. It is not, therefore, an affirmative defense.")); 4 Fowler V. Harper et al., The
Law of Torts § 21.0, at 188–89 (2d ed. 1986) ("In its primary sense the plaintiff's
assumption of a risk is only the counterpoint of the defendant's lack of duty to protect
the plaintiff from that risk.").

                                           -5-
occurrence were a risk inherent in the sport of skiing." Bennett contends that the
instruction misstated Missouri law because it did not require the jury to find that she
had knowledge of, and appreciated, the specific dangers causing her injury.5 Hidden
Valley argues on the other hand that under Missouri law, a plaintiff assumes any risk
inherent in a sport regardless of her actual knowledge of the risk.

         In a diversity case such as this we must follow state law as announced by the
highest court in the state. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
The Supreme Court of Missouri has explained that a participant in sport "accept[s]
. . . those [hazards] that reasonably inhere in the sport so far as they are obvious and
usually incident to the game." Perkins v. Byrnes, 269 S.W.2d 52, 53 (Mo. 1954).6
It has thus prevented a spectator injured by a foul ball at a baseball game from
proceeding beyond the summary judgment stage, for

      [t]his risk [of being struck by a foul ball] is a necessary and inherent part
      of the game . . . . [it] is assumed by the spectators because it remains
      after due care has been exercised and is not the result of negligence on
      the part of the baseball club.

Anderson v. Kansas City Baseball Club, 231 S.W.2d 170, 173 (Mo. 1950). Whether
the plaintiff had subjective knowledge of the risk of being injured by a foul ball was



      5
        Bennett implies that a different form of implied primary assumption of risk
might apply to minors, but she has not cited any Missouri case that says that. In fact,
the intermediate appellate court has discussed assumption of risk in a case involving
a fourteen year old girl without indicating in any way that a different standard should
apply. Sheppard, 904 S.W.2d at 259, 261–62.
      6
       We recognize that Perkins also discussed whether the decedent had personal
knowledge of the dangerous conditions in the river in which he drowned, 269 S.W.2d
at 56, but the court had already concluded that the conditions at that time were
unusual and not the normal or inherent conditions, see id. at 54–55.

                                          -6-
immaterial. See id. at 171. The risk assumed by a spectator was described in this way
in a case preceding Perkins:

      the patron . . . subjects himself to the dangers necessarily and usually
      incident to and inherent in the game. This does not mean that he
      "assumes the risk" of being injured by the proprietor's negligence but
      that by voluntarily entering into the sport as a spectator he knowingly
      accepts the reasonable risks and hazards inherent in and incident to the
      game.

Hudson v. Kansas City Baseball Club, Inc., 164 S.W.2d 318, 323 (Mo. 1942). These
cases show that the Missouri Supreme Court has analyzed implied primary
assumption of risk by focusing on whether the risk was incident to or inherent in the
activity undertaken by the plaintiff, rather than on the plaintiff's subjective knowledge
of the risk.

       The lower courts in Missouri have generally taken the same approach. For
example, injury to a professional hockey player was held not actionable because it
was "'part of the game' of professional hockey." McKichan v. St. Louis Hockey Club,
L.P., 967 S.W.2d 209, 213 (Mo. Ct. App. 1998).7 Similarly, a golf spectator injured
by a rock hidden in the grass "assumed the risks ordinarily incident to watching such
a match and to walking over the course." Thompson v. Sunset Country Club, 227
S.W.2d 523, 525 (Mo. Ct. App. 1950). "'Falling and colliding with other skaters is
not an extraordinary occurrence for those indulging in that form of exercise. One
who skates assumes those risks . . . .'" Chaney ex rel. Chaney v. Creten, 658 S.W.2d
891, 894 (Mo. Ct. App. 1983) (quoting Reay v. Reorganization Inv. Co., 224 S.W.2d
580, 582 (Mo. Ct. App. 1949)); see also Martin v. Buzan, 857 S.W.2d 366, 369 (Mo.
Ct. App. 1993) ("[P]ersons participating in sports may be held to have consented, by

      7
       Although McKichan was decided under Illinois law, the court concluded that
it made no practical difference "because Missouri has essentially adopted the Illinois
standard." 967 S.W.2d at 211.

                                          -7-
their participation, to those injuries which are reasonably foreseeable consequences
of participating in the competition.").

       Hidden Valley's position is also supported by the law of California which has
relevance because there, as in Missouri, the rights and duties of skiers and proprietors
of ski areas are still governed by the common law. By contrast, many states with a
large ski industry have statutes codifying those rights and duties. See, e.g., Colo.
Rev. Stat. Ann. § 33-44-101; Idaho Code § 6-1101. In California a defendant has "no
legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself."
Knight v. Jewett, 834 P.2d 696, 708 (Cal. 1992). This rule "does not depend on the
particular plaintiff's subjective knowledge or appreciation of the potential risk. Even
where the plaintiff, who falls while skiing over a mogul, is a total novice and lacks
any knowledge of skiing whatsoever, the ski resort would not be liable for his or her
injuries." Id. at 709; see also O'Donoghue v. Bear Mountain Ski Resort, 35 Cal. Rptr.
2d 467, 468 (Ct. App. 1994) ("[T]here is no duty of care to protect a sports participant
against risks of injury that are inherent in the sport itself.").

      Bennett points to language in several Missouri cases to support her position
that Hidden Valley had to show she knew that she might encounter conditions like
those existing on the night she was injured. She cites Ross v. Clouser, a case in
which a third basemen was injured by a sliding baserunner. 637 S.W.2d 11, 13 (Mo.
1982) (en banc) (reversing a judgment notwithstanding the verdict which had been
granted on the basis that the plaintiff had assumed the risk). Although the Missouri
Supreme Court said in Ross that assumption of risk "bars recovery when plaintiff
comprehended the actual danger and intelligently acquiesced in it," id. at 14, the court
appeared to be speaking about implied secondary assumption of risk.8 Ross also

       8
       In order to tag out the baserunning defendant in Ross, the plaintiff had
maintained his position in the base path, 637 S.W.2d at 13, thus raising an issue of
implied secondary assumption of risk because he arguably had "knowingly
proceed[ed] to encounter a known risk imposed by the defendant's breach of duty,"

                                            -8-
differs from the case before us in that it involved a question of liability between
fellow participants in a church league softball game. Id. at 13. Far from adopting a
theory like the one Bennett advocates, the Ross court quoted with approval the
statement that a relevant factor in determining "whether a player's conduct gives rise
to liability" to a fellow player is whether the risk was one "'which inhere[d] in the
game [or was one] . . . outside the realm of reasonable anticipation.'" Id. at 14
(quoting Niemcyzk v. Burleson, 538 S.W.2d 737, 741–42 (Mo. Ct. App. 1976),
overruled on other grounds, Ross, 637 S.W.2d at 14).

       The cases cited by Bennett from other Missouri courts are similarly
unpersuasive for the theory she advances. First, they are not internally consistent.
Compare, e.g., Lewis v. Snow Creek, Inc., 6 S.W.3d 388, 396 (Mo. Ct. App. 1999)
(defendant needed only "show that [plaintiff's] injuries were the result of falling on
ice, and that ice was a risk inherent in the sport of skiing"), with id. ("plaintiff must
be aware of the facts that create the danger and they must appreciate the danger
itself"); Sheppard, 904 S.W.2d at 263–64 ("[D]efendant is relieved from liability on
the grounds that by participating in the sport, the plaintiff assumed the risk and the
defendant never owed the plaintiff a duty to protect him from that risk."), with id. at
265 (instruction must require a finding "that [plaintiff] comprehended the actual




Sheppard, 904 S.W.2d at 262 (describing implied secondary assumption of risk). The
only case cited by Ross in support of its statement about plaintiff's comprehension of
the risk also involved implied secondary assumption of risk; the risk was
acknowledged to have arisen from the defendant's negligence. See Turpin v.
Shoemaker, 427 S.W.2d 485, 490 (Mo. 1968) (concluding that "plaintiff . . . was not
fully informed of defendant's negligence and that he did not assume the risk of what
actually occurred"); Sheppard, 904 S.W.2d at 262; see also 4 Harper et al., supra, §
21.1, at 204 ("It is clear then that the concept of assumption of risk in the primary
sense is not to be considered in a situation where defendant has breached a duty
towards plaintiff . . . .").

                                          -9-
danger and intelligently acquiesced in it").9 Second, the inherent risk rule is not
incompatible with a knowledge requirement since the rule can be viewed as charging
a plaintiff with knowledge of risks which inhere in an activity. See Hudson, 164
S.W.2d at 323 ("[T]here is no other reasonable conclusion but that [plaintiff] was
familiar with the ordinary risks and hazards inherent in and incident to [the
activity]."); cf. W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 68, at
488 (W. Page Keeton ed., lawyer's ed., 5th ed. 1984) ("There are some things . . .
which are so far a matter of common knowledge . . . [that] a denial of such knowledge
simply is not to be believed."). Moreover, to the extent these lower court decisions
might be inconsistent with the decisions of the Missouri Supreme Court, the latter
control. See Erie, 304 U.S. at 78; see also 19 Charles Alan Wright et al., Federal
Practice and Procedure § 4507, at 145–47 (2d ed. 1996) (in diversity action federal
court must follow law announced by forum state's highest court, "unless there are
very persuasive grounds for believing that the state's highest court no longer would
adhere to [it]").

        We conclude that under Missouri law, a voluntary skier assumes the risks
inherent in or incidental to skiing, regardless of her subjective knowledge of those
risks. This principle can also be put in terms of duty: the proprietor of a ski area has
no duty to protect a skier from those risks inherent in or incidental to skiing. Implied
primary assumption of risk does not of course relieve a defendant of liability for
negligence, because inherent risks "are not those created by a defendant's negligence
but rather by the nature of the activity itself." Martin, 857 S.W.2d at 369; see also
Knight, 834 P.2d at 316 ("[R]isk . . . posed by a ski resort's negligence[] clearly is not
a risk []inherent in the sport . . . ."). By directing the jury to find for Hidden Valley
if it determined that the conditions on the ski slope at the time Bennett was injured

      9
        Contrary to Bennett's contention, Sherbert v. Alcan Aluminum Corp., is not
on point since there is no indication that the injury in that case was alleged to have
arisen from an inherent risk. 66 F.3d 965, 966 (8th Cir. 1995) (plaintiff injured when
slick material fell from forklift).

                                          -10-
were inherent risks of skiing, Instruction 7 fairly and adequately submitted the issue
to the jury. The district court therefore did not abuse its discretion by giving this
charge.

       Resolution of this issue also affects Bennett's argument that the district court
erred in denying her motion for a judgment as a matter of law at the close of the
evidence. She had contended that because there was no evidence that she had
knowledge of the risks which she encountered on the ski slope, Hidden Valley's
implied primary assumption of risk defense must fail. Since such a showing was not
required under Missouri law and there was evidence sufficient to support an implied
primary assumption of risk defense,10 it was not error for the district court to deny
Bennett's motion. See Fletcher v. Price Chopper Foods of Trumann, Inc., 220 F.3d
871, 875 (8th Cir. 2000) (denial of a motion for judgment as a matter of law must be
upheld if evidence is sufficient to support a jury verdict).

                                          B.

       Instruction 6 was a verdict director adapted from the pattern Missouri
instruction on premises liability which added the words highlighted below:

             Your Verdict must be for the plaintiff if you believe:
             First, there was either:
             (1) a jump or ramp on defendant's ski slope, or
             (2) trees in the fall line of defendant's ski slope,
      and as a result of either or both of those conditions, the ski slope was not
      reasonably safe for its intended purpose of skiing, and
             Second, defendant knew or by using ordinary care could have

      10
         Evidence was presented at trial to show that inherent risks in the sport of
skiing include losing control, falling, colliding with objects and other skiers,
encountering variations in snow surface terrain, variable weather conditions, and low
visibility.

                                         -11-
      known of this condition, and
             Third, defendant failed to use ordinary care to remove the jump
      or to remove, barricade or cushion the trees, and
             Fourth, as a direct result of such failure, plaintiff sustained
      damage.
             Unless you believe plaintiff is not entitled to recover by reason of
      Instruction No. 7.

Bennett argues that addition of this phrase to the pattern instruction erroneously
suggested that proprietors of ski areas owe a different duty to customers than other
businesses.

       Under Missouri law, the care owed by a "'proprietor of a place of public
amusement . . . . is a care commensurate with the particular conditions and
circumstances involved.'" Gold v. Heath, 392 S.W.2d 298, 302 (Mo. 1965) (internal
quotation marks omitted) (quoting Dickinson v. Eden Theatre Co., 231 S.W.2d 609,
610 (Mo. 1950)). It is one "'reasonably adapted to the character of . . . the
amusements offered'" and the place. Id. (internal quotation marks omitted) (quoting
Dickinson, 231 S.W.2d at 610); see also Weisman v. Herschend Enters., Inc., 509
S.W.2d 32, 38 (Mo. 1974) (standard of care owed by operator is "commensurate with
the particular conditions and circumstances involved" and operator "is not an insurer
of their safety"). The phrase for its intended purpose of skiing reflects the principle
of Missouri law that the duty of care owed by a proprietor of a place of public
amusement depends on "'the particular conditions and circumstances involved in the
given case,'" Gold, 392 S.W.2d at 302 (internal quotation marks omitted) (quoting
Dickinson, 231 S.W.2d at 610). The charge therefore fairly and adequately submitted
the issue for the jury and was not an abuse of discretion by the district court.




                                         -12-
                                          III.

       Bennett also challenges a number of evidentiary rulings by the district court,
its handling of objections during Hidden Valley's opening statement and closing
argument, and its denial of her motion for a mistrial.

       A district court has wide discretion in admitting and excluding evidence, and
"its decision 'will not be disturbed unless there is a clear and prejudicial abuse of
discretion.'" United HealthCare Corp. v. Am. Trade Ins. Co., 88 F.3d 563, 573 (8th
Cir. 1996) (quoting Maddox v. Patterson, 905 F.2d 1178, 1179 (8th Cir. 1990)). We
will not reverse for an abuse of discretion in admitting or excluding evidence unless
it "affects a substantial right of the party challenging the ruling." Williams v. Wal-
Mart Stores, Inc., 922 F.2d 1357, 1360 (8th Cir. 1990). We also review a district
court's conduct of a trial, including opening statements, for an abuse of discretion.
Cox v. Treadway, 75 F.3d 230, 237 (6th Cir. 1996).

       Bennett argues that the court erred by allowing Hidden Valley to introduce
deposition testimony in which she described her experimental drug use and to refer
to it in opening. This evidence was relevant, however, because of the damages
Bennett was seeking for brain injuries. Her own medical expert admitted that the use
of narcotics can lead to cognitive difficulties like those which she claimed resulted
from her accident. The district court did not abuse its discretion by admitting the
evidence under these circumstances or by overruling her objection to a reference to
it in Hidden Valley's opening statement.

       Bennett argues as well that the district court abused its discretion by permitting
Hidden Valley to play a videotape showing the ski slope in daylight several years
after the accident. Bennett complains that the snow conditions on the tape were
different from those which existed the night she fell, that the tape showed skiers
successfully negotiating the slope, and that it showed warning signs even though

                                          -13-
there was no evidence Bennett had seen the signs on the night she was injured.
Bennett argues that the effect of the video gave the jury a false impression of the
safety of the slope and suggested issues of comparative fault which were not in the
case.11 Hidden Valley counters that the tape was admitted to assist Tim Boyd, the
owner of Hidden Valley, in explaining the design of the ski area during his testimony.

       Even if we might not have admitted the videotape at trial, our role as a
reviewing court is to reverse only upon a clear and prejudicial abuse of discretion.
See United HealthCare Corp., 88 F.3d at 573. Bennett has not made such a showing,
and any risk of confusion to the jury was mitigated by Boyd's testimony. He
explicitly stated that the tape had been made years after the accident, that it was not
"meant to be any sort of a reconstruction of what happened [on the night of the
accident]," and that it was not intended to show "the path that Breanne Bennett was
going, or what she was doing on that night." After considering the record, we do not
conclude that any error in admission of the videotape prejudiced Bennett's substantial
rights. See Lovett ex rel. Lovett v. Union Pac. R.R. Co., 201 F.3d 1074, 1080 (8th
Cir. 2000) (if district court errs in admitting evidence, jury's verdict will not be
overturned unless "plaintiff's substantial rights were affected").12

      Bennett argues that a remark about her in Hidden Valley's opening statement
should have been excluded and that the court should have sustained her objection to


      11
         Bennett also argues that a comment in Hidden Valley's opening statement that
she had chosen not to take ski lessons raised an inference of contributory negligence.
This comment was only an isolated remark in the opening statement, however, and
the jury was not instructed on comparative fault. We do not see that the district court
abused its discretion by overruling her objection, and in no respect was the remark
"so clearly injurious as to require us to remand for a new trial." Moses v. Union Pac.
R.R., 64 F.3d 413, 418 (8th Cir. 1995).
      12
        We have examined the remainder of Bennett's evidentiary issues and find
them to be without merit.

                                         -14-
it and granted her motion for a mistrial. Defense counsel had made the following
comment:

      [Her] mother thought that her 16-year-old was mature enough to go
      skiing with 28- and 27-year-old men, and that's who she had been skiing
      with on the four other occasions. They seem like decent people. I'm not
      trying to draw anything about their character into this, but it gives you
      an example of the type of person Breanne Bennett was.

Bennett argues that this remark was an attempt to interject irrelevant issues of
character into the case. Hidden Valley says that it was responding to Bennett's
opening statement which had made the age and maturity of its customers an issue
when she suggested that the company was negligent in permitting young children to
ski without restriction or supervision. Bennett's counsel had said, for example, that
"if you are six years old and you go in there, there is never any attempt to ascertain
your level of skill or restrict you from someplace which they feel you are
inappropriate to go to [sic]" and that "the evidence will be that six-year-olds and five-
year-olds are [on the slopes]." Hidden Valley says its counsel was simply indicating
that Bennett was not a small child, but rather a mature teenager.

       A trial court's management of opening statements and its denial of a motion for
mistrial are reviewed for abuse of discretion. See Cox, 75 F.3d at 237; Sterkel v.
Fruehauf Corp., 975 F.2d 528, 532 (8th Cir. 1992). In respect to motions for mistrial,
the district court "'is in a far better position to measure the effect of [an] improper
[comment] on the jury than an appellate court which reviews only the cold record.'"
Id. (quoting Williams v. Mensey, 785 F.2d 631, 637 (8th Cir. 1986)). These remarks
are not beyond fair comment within the context of the opening statements, and we
conclude that the district court did not abuse its discretion by overruling the objection
and denying the motion for a mistrial.




                                          -15-
       Bennett also contends the district court erred in overruling her objection to a
portion of Hidden Valley's closing argument. Specifically she objects that defense
counsel improperly argued that the jury should draw an adverse inference from her
failure to call two witnesses who counsel had said would help establish the extent of
her brain injuries. District courts "are invested with broad discretion to control
closing arguments, and this court will reverse only for an abuse of discretion" that
prejudices the substantial rights of the complaining party. McGuire v. Tarmac Envtl.
Co., 293 F.3d 437, 442 (8th Cir. 2002); see 28 U.S.C. § 2111 (2000). We are not
persuaded that this was an objectionable comment in light of the statements made in
plaintiff's opening, but any error would not be reversible unless the statement were
"plainly unwarranted and clearly injurious." Geimer v. Patrovich, 946 F.2d 1379,
1382 (8th Cir. 1991). We see no clear injury and note that the jury never had to reach
the issue of the extent of Bennett's damages because of the nature of its verdict.

                                         IV.

       Bennett also contends that the evidence was insufficient as a matter of law to
support the verdict in favor of Hidden Valley. She claims that Hidden Valley's expert
admitted that hitting a tree was not an inherent risk of skiing and that the jury
therefore could not have found that she had assumed the risk of her accident. In
reviewing a challenge to the sufficiency of the evidence, we must affirm a jury verdict
"'unless, viewing the evidence in the light most favorable to the prevailing party, we
conclude that a reasonable jury could have not found for that party.'" Stockmen's
Livestock Mkt., Inc. v. Norwest Bank of Sioux City, N.A., 135 F.3d 1236, 1240 (8th
Cir. 1998) (quoting Chicago Title Ins. Co. v. Resolution Trust Corp., 53 F.3d 899,
904 (8th Cir. 1995)).

      Regardless of whether or not Hidden Valley admitted that trees are not an
inherent risk of skiing, Bennett's argument is without merit. There was conflicting
evidence about whether she hit a tree and whether she was injured by hitting the

                                         -16-
ground or a tree. In addition, there was evidence to support a finding that Hidden
Valley had properly discharged the duties it owed Bennett. For example, a
professional ski patrol director had testified that the difficulty of the ski slope had
been appropriately marked, that it was natural for bumps and ridges of snow to be
created as people ski down a slope, that it is common in the ski industry to have
exposed trees on a ski slope, and that the ski slope as it existed when Bennett was
injured was in "a very reasonable condition." We conclude that the jury's verdict was
supported by sufficient evidence.

                                          V.

       For the reasons discussed, we conclude that the district court did not abuse its
discretion with respect to its jury instructions, evidentiary rulings, and management
of the trial. We also conclude that Bennett was not entitled to judgment as a matter
of law on Hidden Valley's assumption of risk defense and that she has failed to show
that the verdict was not supported by sufficient evidence. We therefore affirm the
judgment.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -17-
