              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                     ________________________

                           No. 00-50115
                     ________________________


ELAINE GREGORIUS, Individually
and in her capacity as Executrix and
Representative of the Estate of
Hans Gregorius, and
ELIZABETH GREGORIUS,

                                               Plaintiffs-Appellants,

versus

F.E. SEALE,* M.D., Individually, Et Al,

                                                          Defendants.

STARLITE VILLAGE HOSPITAL, INC., HOLLIE
RAMIREZ, CHARLOTTE RICKARD, also known as
Charlotte Richard; and DEBRA NICHOLS,

                                               Defendants-Appellees.

_______________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
                         (SA-96-CV-331-HG)
_________________________________________________________________
                           April 25, 2001

Before WIENER, STEWART, Circuit Judges, and SMITH,** District Judge.




     *
      Although spelled “Seal” in plaintiffs’ complaints and the
district court docket sheet, the defendants’ answer and the
transcript reflect that the actual spelling is “Seale.”
     **
      Walter S. Smith, Jr., District Judge for the Western
District of Texas sitting by designation.
PER CURIAM***:

     Appellants,      the   surviving       family   of    Dr.   Hans    Gregorius

(“Gregorius”), bring this wrongful death/survivor action against

defendants as a result of Gregorius’s death while a patient at

Starlite Village Hospital (“Starlite”).                   The jury returned a

verdict in favor of the defendants, which gives rise to the present

appeal.

                      FACTUAL AND PROCEDURAL HISTORY

     Gregorius was a licensed psychiatrist who suffered from an

addiction to alcohol and Valium.              In 1992, he was voluntarily

admitted to Starlite for treatment of his addictions and was

successfully discharged approximately one month later.                    After a

relapse, Gregorius again admitted himself to Starlite on June 10,

1994.

     Starlite    is   an    “open”   treatment       facility    that    primarily

provides treatment for substance abuse and chemical dependency. It

is an open and voluntary facility licensed by the Texas Commission

on Alcohol and Drug Abuse and the Texas Department of Health.

Starlite   engages     to    treat   addicted        patients    in     the   least

restrictive manner possible, and recognizes both a patient’s right

to refuse treatment and a patient’s involvement and participation

in his treatment.


     ***
       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.

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     Gregorius’s primary treatment during both commitments was

provided by Dr. F.E. Seale (“Dr. Seale”).                  Dr. Seale had treated

addicted patients for a number of years and had authored numerous

articles regarding withdrawal patterns and treatment of cross-

addicted    patients.            His    articles,   as   well   as       other   expert

testimony,       indicate        that    patients    addicted       to    Valium    are

susceptible to life-threatening seizures during withdrawal.                         The

critical     period      for      the    occurrence      of    such      seizures    is

approximately seven to ten days after withdrawal.                     Those addicted

to alcohol are most susceptible to hallucinations immediately after

withdrawal from alcohol.

     During the first six days of treatment, Gregorius received

Phenobarbital, an anti-seizure medication.                    This medication was

discontinued,      and      no    further       anti-seizure    medications         were

prescribed or administered, even though Gregorius was approaching

the critical stage in his withdrawal treatment.                          Gregorius did

receive Thorazine, to address his hallucinations, and Artane, to

prevent the side effects of Thorazine.                 Gregorius participated in

his own treatment plan, requesting some medications and refusing

others.    Gregorius requested both the Thorazine and the Artane but

refused    two    anti-seizure          medications,     Tegretol     and    Dilantin,

because of their side effects.

     Although Gregorius initially progressed well, his condition

started to deteriorate on June 20 when he began experiencing

intermittent hallucinations.              Because of this, one of the charge

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nurses moved Gregorius from the psychiatric ward back to the

detoxification ward.     Another nurse requested that Gregorius be

placed on “Q-15" watch, which required that he be observed every

fifteen minutes throughout the day and night.     Gregorius agreed to

the Q-15 observation, but refused to be placed on one to one

observation because it was too restrictive. One to one observation

requires that a staff member be within arms’ length of a patient at

all times.

     On the 21st, Gregorius left a group meeting unnoticed, some

time between 1:30 and 1:50 p.m.       He left the building undetected

and unescorted.    His absence was noticed within a few minutes, and

a search was initiated.    Several hours later, Gregorius was found

at the bottom of a steep hill not far from the hospital.    His shoes

were neatly laid side by side, and his shirt was folded and placed

over his shoes.    When discovered, Gregorius was in the midst of a

major seizure.    He later died at a nearby hospital.    A subsequent

autopsy listed his death as due to a seizure disorder, while the

defendants’ expert testified that the cause of Gregorius’s death

was heat stroke.

     Appellants filed suit against Starlite and various hospital

personnel asserting medical malpractice. Appellants contended that

Starlite was liable in one instance for failing to ensure that its

premises were safe.    They contended that the lack of a fence led

Gregorius to fall down the steep hill, thereby leading to his

death.   At the close of the plaintiffs’ case, the district court

                                  4
granted Starlite’s motion for judgment as a matter of law on the

premises liability claim.    In conformity with the jury’s verdict,

the district court entered a take-nothing judgment.     Appellants

then filed a motion for new trial, which was denied by the district

court.

                                ISSUES

     Appellants raise three issues:

     (1)   Did the district court err in refusing the standard of

     care instruction proffered by the plaintiffs?

     (2) Did the district court err in granting defendants’ motion

     for judgment as a matter of law on plaintiffs’ premises

     liability claim? and

     (3) Did the district court err in excluding from the jury

     charge plaintiffs’ contentions relating to Starlite’s breach

     of its duty?




                          STANDARD OF REVIEW

     Challenges to jury instructions are reviewed for abuse of

discretion.   Battle v. Memorial Hosp. at Gulfport, 228 F.3d 544,

555 (5th Cir. 2000).   If a challenge to an instruction is properly

preserved, the challenger must establish the following to obtain

reversal of a judgment:

     First, the challenger must demonstrate that the charge as
     a whole creates substantial and ineradicable doubt
     whether the jury has been properly guided in its

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       deliberations.  Second, even if the jury instructions
       were erroneous, we will not reverse if we determined,
       based upon the entire record, that the challenged
       instruction could not have affected the outcome of the
       case.

Johnson v. Sawyer, 120 F.3d 1307, 1315 (5th Cir. 1997) (internal

citation and quotation remarks omitted).                  If the issue is not

properly preserved, review is only for plain error.                      Hartsell v.

Dr. Pepper Bottling Co. of Tex., 207 F.3d 269 (5th Cir. 2000).

       A district court’s decision to grant a judgment as a matter of

law is reviewed de novo.           Serna v. City of San Antonio, ___ F.3d

___, 2001 WL 237241 (5th Cir. 2001); Russell v. McKinney Hospital

Venture, 235 F.3d 219, 222 (5th Cir. 2000).                   Judgment as a matter

of    law   is   appropriate      when    “there   is   no     legally      sufficient

evidentiary basis for a reasonable jury to find for that party on

that issue.”       Fed. R. Civ. P. 50(a).        All evidence in the record is

reviewed, and all reasonable inferences are drawn in favor of the

non-movant.      Serna v. City of San Antonio, 2001 WL at 2.                 In making

the    de   novo    review,    the       Court   may    not    “make     credibility

determinations       or   weigh    the    evidence.”         Reeves    v.    Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110, 147 L.

Ed. 2d 105 (2000).

                                     DISCUSSION

       The record does not support appellants’ contention that a

proper objection was made to the failure to include in the court’s

charge their “contentions” relating to Starlite’s breach of a duty

owed to Gregorius.         Under Rule 51 of the Federal Rules of Civil

                                           6
Procedure, a party must state distinctly the matter objected to and

the grounds for the objection before the jury retires to consider

its   verdict.    A   party   does   not   satisfy   Rule   51   “by   merely

submitting a proposed instruction that differs from that ultimately

given.”    Hartsell, 207 F.3d at 273.         Failure to make a proper

objection may be excused “when a party’s position equating to an

objection has previously been made clear to the trial judge, and

further objection would be unavailing.”        Id.    The record does not

contain facts to make this exception applicable. Therefore, review

of this issue is under the plain error standard.

      If an issue is not properly preserved, in order to prevail on

appeal, the appellant must show:

      (1) that an error occurred; (2) that the error was plain,
      which means clear or obvious; (3) the plain error must
      affect substantial rights; and (4) not correcting the
      error would “seriously affect the fairness, integrity or
      public reputation of judicial proceedings.”

Highlands Ins. Co. v. National Union Fire Ins. Co. of Pittsburgh,

27 F.3d 1027, 1032 (5th Cir. 1994), citing United States v. Olano,

507 U.S. 725, ___, 113 S.Ct. 1770, 1779, 123 L. Ed. 2d 508 (1993).

The trial court’s instructions, as a whole, were not plainly

erroneous.

      Appellants did make specific and timely objections to the

trial court’s failure to include their definition of “ordinary

care.”    The definition given by the court was as follows:

      “Ordinary care” when used with respect to the conduct of
      the actor under consideration, means that degree of care
      that an actor of ordinary prudence would use under the

                                     7
     same or similar circumstances, as the patient’s
     condition, as it is known to be, may require.

The definition requested by appellants consisted of the following:

     “Ordinary care,” with respect to the conduct of Starlite
     Village Hospital means that degree of care that a
     hospital of ordinary prudence would use under the same or
     similar circumstances, as the patient’s condition, as it
     is known to be, may require, including safeguarding and
     protecting the patient from any known or reasonably
     apparent danger from himself that may arise from his
     known mental or physical incapacity.

The appellants’ definition is a modified version of that included

in a comment to 50.2 of the Texas Pattern Jury Charges (“TPJC”).

As the comment makes clear, such an instruction is optional rather

than mandatory.    As the trial court’s definition was a correct

statement of the law, Appellants have failed to establish that the

charge as a whole created substantial and ineradicable doubt

whether the jury had been properly guided in its deliberations.

     Even assuming the trial court’s definition was erroneous,

appellants have failed to establish that the definition given could

have affected the outcome of the case, based upon a review of the

entire record.    Although appellants point to what they assert was

inappropriate care, the record reflects equally that Gregorius was

provided appropriate care in keeping with the open and voluntary

nature of the hospital and the patient’s right to refuse treatment.

     Finally, there was no error in the trial court’s decision to

grant judgment as a matter of law on appellants’ premises liability

claim.   A review of the entire record reflects that plaintiffs

failed to present any evidence that any condition of the hospital

                                  8
premises was a proximate cause of Gregorius’s death.   As the Texas

Supreme Court has noted in an analogous case, “Property does not

cause injury if it does no more than furnish the condition that

makes the injury possible.”   Dallas County Mental Health & Mental

Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998).       The

premises defects identified by appellants were too attenuated to

constitute the instrumentalities causing Gregorius’s injuries.

Accordingly, the Judgment of the district court is

AFFIRMED.




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