                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                                   No. 98-31208


JOHN HIRAM PERRY, JR.; DEIDRE PERRY,

                                           Plaintiffs - Appellees-Cross Appellants,
                                       versus

WAL-MART STORES, INC.; ET AL.,
                                              Defendants,
WAL-MART STORES, INC.,
                                              Defendant - Appellant-Cross-Appellee.


                  Appeal from the United States District Court
                for the Western District of Louisiana, Alexandria
                        (USDC Docket No. 96-CV-2914)
                                 February 25, 2000
Before POLITZ, GARWOOD, and DAVIS, Circuit Judges.
POLITZ, Circuit Judge:*

      Wal-Mart Stores, Inc., appeals an adverse jury verdict in favor of John Hiram
Perry, and the denial of its post-verdict motions. For the reasons assigned, we

affirm.
                                 BACKGROUND

      Perry injured his back while helping to load a riding lawnmower into a

pickup truck at the home of his stepfather, Johnny Fruge. Fruge had purchased a

  *
   Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
mower from Wal-Mart, Perry’s former employer, a week earlier. It was defective.
Wal-Mart sent an employee to deliver a replacement mower and to recover the first

unit. From time to time Wal-Mart has instructed its employees to use personal

vehicles to transport large products to customers. When dispatched, the employee
asked the store manager to send another employee along to assist in the unloading.

The manager declined because all personnel were busy.

      Upon arrival at Fruge’s home the replacement mower was unloaded without

incident but it malfunctioned. The three men then sought to reload the mower into
the truck. Perry injured his back during the effort.
      Perry’s doctor released him to do light work within two months of the
accident, including the lifting of up to twenty pounds. By the time of trial, this was

increased to medium-level work but no repetitive or heavy lifting. Perry has a tenth
grade education, reads at high school level, spells at fifth grade level, with seventh

grade math skills. Before the accident his annual earnings ranged from $5,000 to
$12,000. His work history included only heavy work assignments with skills not
transferrable to a light duty market. He has not worked since the accident.

      In the instant personal injury suit, the jury awarded Perry and his wife

$322,542.38 for past and future pain and suffering, past lost wages, diminished
earning capacity/lost wages, past and future medical expenses, and past and future

loss of consortium.

      Wal-Mart moved for judgment as a matter of law. It also sought a new trial

on negligence and damages. Alternatively, it asked for a remittitur of the damages


                                          2
award. The trial court denied all motions and this appeal followed.
                                      ANALYSIS

1. Jury Instruction

         Wal-Mart contends that the district court erred in giving the following
instruction:

         In this case, the alleged wrongful conduct of the defendant is the failure to
         act or nonfeasance. In such cases, courts have found it necessary for some
         definite relationship between the parties to exist, such that social policy
         justifies the imposition of a duty to act upon the defendant. Plaintiffs can
         establish such a definite relationship by showing either: one, that Perry was
         a Wal-Mart customer; or two, that he was requested by Wal-Mart, either
         explicitly or implicitly, to assist in loading the lawn mower. (emphasis added)
         Wal-Mart correctly notes that no duty is owed to a volunteer1 and contends
that this charge may have misled the jury. We are not persuaded. A successful

challenge to a jury instruction “must demonstrate that the charge as a whole
creates ‘substantial and ineradicable doubt whether the jury has been properly

guided in its deliberations.’”2 The challenged instruction is in accord with
Louisiana law and no such doubt exists herein. It is unlikely that the jury
understood the instruction in a way that would permit liability based on Perry’s

uninvited assistance. The instruction properly informed the jury that if Perry was

not found to be a Wal-Mart customer, liability requires a request for assistance.
That request might be specific or implicit, the latter from conduct or a verbal



   1
       Pratt v. Lifemark Corp.., 531 So.2d 488 (La. App. 1988).
   2
   Flores v. Cameron County, 92 F.3d 258 (5th Cir. 1996) (quoting F.D.I.C. v.
Majalis, 15 F.3d 1314 (5th Cir. 1994)).
                                            3
request not using words of solicitation.3 We perceive no error.
2. Comparative Negligence

         Wal-Mart contends that the jury’s finding that Perry was not comparatively

negligent is against the great weight of the evidence and that his fault was the most
significant, if not only, cause of his injuries. It further contends that the jury

ignored the law and based its decision on compassion, evidenced by a note a juror

sent the judge after the verdict in which the juror offered to help Perry find a job.

Wal-Mart seeks a re-allocation of fault or, alternatively, a remand for a new trial.
         Apportionment of fault is a fact determination which we review for clear
error.4 If a jury could have reached different results, its findings will be upheld if
supported by the evidence viewed in the light most favorable to the verdict.5 A

verdict may be set aside if the facts and inferences point so overwhelmingly in
favor of one party that a reasonable jury legally could not reach the challenged

verdict.6 Our review of a trial court’s ruling on a motion for a new trial is limited
to abuse of discretion.7 We afford even “greater deference when the district court




   3
   Perry testified that upon arriving the Wal-Mart deliveryman called out: “Y’all
ready to unload this lawnmower?”
   4
       Tullos v. Resource Drilling, Inc., 750 F.2d 380 (5th Cir. 1985).
   5
  Vickers v. Chiles Drilling Co., 882 F.2d 158 (5th Cir. 1989); Dawson v. Wal-
Mart Stores, Inc., 978 F.2d 205 (5th Cir. 1992).
   6
       Dawson, 978 F.2d 205.
   7
       Lucas v. American Mfg. Co., 630 F.2d 291 (5th Cir. 1980).
                                           4
has denied [a] new trial motion ... and left the jury’s determination undisturbed.”8
         Wal-Mart contends that Perry failed to exercise reasonable care, noting that

he was aware of the weight of the mower, knew of his prior back problems, and

failed to take appropriate safety precautions. The record contains ample evidence
to support the jury’s findings in favor of Perry. Both Perry and the driver testified

that they had no reason to believe that lifting the mower was dangerous. Perry

lifted heavy objects while employed at Wal-Mart. Wal-Mart further contends that

Perry was the superior actor. There is evidence to the contrary. The store manager
instructed the driver to make delivery under circumstances that made Perry’s
assistance necessary. We perceive no error.
3. Damages

         Wal-Mart maintains that the award of $30,000 for past lost wages and
$100,000 for future loss of wages and diminished earning capacity was excessive

and that the district court abused its discretion in not granting its motion for
remittitur of the total damages to $2,000, or granting a new trial.
         We review an award of damages for clear error,9 overturning same only upon

a clear showing of excessiveness or influence by passion or prejudice10 or if the

award is “entirely disproportionate to the injury sustained.”11 “Only where it is ‘so


   8
       Dawson, 978 F.2d at 208.
   9
       Ham Marine, Inc. v. Dresser Indus., Inc., 72 F.3d 454 (5th Cir. 1995).
   10
        Eiland v. Westinghouse Elec. Corp., 58 F.3d 176 (5th Cir. 1995).
   11
        Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 784 (5th Cir. 1983).
                                           5
large as to shock the judicial conscience, so gross or inordinately large as to be
contrary to right reason, so exaggerated as to indicate bias, passion, prejudice,

corruption or other improper motive’ will [this court] reverse a jury verdict for

excessiveness.”12 We review the district court’s denial of a new trial and remittitur
for abuse of discretion.13

         Wal-Mart contends that the jury based its verdict on sympathy for Perry, as

demonstrated by the note by one of the jurors offering to help Perry find a job. It

suggests that the evidence of past lost wages supports a maximum award of $2,000.
At the time of trial, Perry had not worked since the accident and had not sought
assistance in finding work from his vocational rehabilitation expert. Prior to the
accident, his annual earnings never exceeded $12,000. Within two months of the

accident, he was released by one of his doctors to do light work and authorized to
lift up to 20 pounds, and was later cleared by another doctor to do medium work

as long as it did not involve heavy lifting or repetitive bending or twisting. Wal-
Mart claims that Perry’s past lost wages could not have been more than two
months’ pay at his highest yearly rate of pay, or $2,000.

         The evidence of past lost wages is conflicting, however. At the time of the

accident, Perry was working fifty to sixty hours a week at $7.50 per hour. Perry’s
economist testified that based on that rate of pay, Perry lost more than $37,000

between the time of the accident and trial. Although Perry was permitted to do


   12
        Ham Marine, 72 F.3d at 462 (quoting Caldarera, 705 F.2d at 784).
   13
        Eiland, 58 F.3d 176.
                                          6
“some light type work activity” within two months of the accident, it is not clear
what work he would have returned to. The evidence is conflicting on work efforts.

On this record we cannot say that the jury clearly erred or that the trial court abused

its discretion in denying remittitur or a new trial.
         Wal-Mart next contends that Perry suffered no loss of future earnings. Under

Louisiana law lost earnings is not synonymous with future lost earnings. 14

         Earning capacity in itself is not necessarily determined by actual loss;
         damages may be assessed for the deprivation of what the plaintiff could have
         earned despite the fact that he may never have seen fit to take advantage of
         that capacity. The theory is that the injury done him has deprived him of a
         capacity he would have been entitled to enjoy even though he never profited
         from it monetarily.15

The economist assumed, based on Perry’s wages in the 11 months prior to the
accident, that Perry had an annual earning capacity of $17,892. He testified that

if Perry’s earning capacity were limited to $6.50 per hour as a result of the
accident, the present value of the earning capacity lost for the remainder of Perry’s
working years would be between $76,000 and $109,000. We conclude that the

record contains evidence sufficient for the jury to conclude that Perry’s future

earning capacity was $6.50 per hour. Thus, the award of $100,000 is within a range
supported by the evidence.




   14
        Burnaman v. Risk Management, Inc., 698 So.2d 17 (La. App. 1997).
   15
        Folse v. Fakouri, 371 So.2d 1120 (La. 1979).
                                           7
4. Voir Dire
         Finally, Wal-Mart contends that the district court erred by not asking

prospective jurors during voir dire whether they personally had been involved in

any litigation. Wal-Mart claims that when its request that the court question the
jurors on this issue was denied, it was deprived of all meaningful opportunity to

exercise its peremptory strikes.       Wal-Mart does not challenge the court’s

questioning except for the failure to ask that particular question. The trial court has

broad discretion over the scope of voir dire. Under Fed. R. Civ. P. 47, a court
conducting voir dire must permit the parties to supplement the examination only
“as it deems proper.” In addition, “the failure to permit certain questions is not
grounds for reversal absent a showing of error and prejudice.”16              Although

information regarding juror involvement in litigation is important17 and the failure
to make a proper inquiry on that score might constitute error under some

circumstances, Wal-Mart has not made the required showing of prejudice in this
case. It did not seek leave of court to poll or interview jurors at the conclusion of
the trial,18 nor did it attempt to conduct an independent investigation of the jurors’

litigation history. Without such evidence, the requested relief is not warranted. 19


   16
        Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252 (5th Cir. 1985).
  17
   Maldonado v. Mo. Pac. Ry. Co., 798 F.2d 764 (5th Cir. 1986), cert. denied, 480
U.S. 932 (1987).
   18
     Local Rule 47.5E requires leave of court with good cause shown before an
attorney or party may interview a juror.
   19
        Vezina v. Theriot Marine Serv., Inc., 610 F.2d 251 (5th Cir. 1980).
                                           8
AFFIRMED.




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