                      UNITED STATES COURT OF APPEALS

                              FOR THE FIFTH CIRCUIT



                                       No. 00-60600
                                     Summary Calendar



ROBERT P. THOMPSON;
PATRICIA ANN THOMPSON,
                                                   Plaintiffs - Appellees-Cross-Appellants,

                                            versus

WAL-MART STORES, INC.,
                                                    Defendant - Appellant-Cross-Appellee.



                      Appeal from the United States District Court
                        for the Southern District of Mississippi
                             USDC No. 1:98-CV-472-GR

                                        May 21, 2001

Before POLITZ, DAVIS, and BENAVIDES, Circuit Judges.

POLITZ, Circuit Judge:*

       Wal-Mart Stores, Inc. appeals an adverse jury verdict finding it liable for

negligently maintaining the aisles of its store in Pascagoula, Mississippi. Robert and

       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Patricia Ann Thompson appeal the damage award, challenging a ruling allowing

cross-examination concerning prior injuries. Finding sufficient evidence to support

the verdict and the evidentiary ruling, we affirm.

                                  BACKGROUND

      While Robert Thompson slipped and fell on some bird seed on the floor. He

never saw the seed and did not know its origin.      Wal-Mart employees were

unaware of the birdseed or how it got on the floor, but Wal-Mart presented evidence

of various procedures designed for customer safety, including “Safety Sweeps,”

where employees physically walk through their departments, and “Zone Defenses,”

wherein employees periodically straighten merchandise shelves and inspect their

“zones” for potentially hazardous conditions.

      The Thompsons brought the instant action in Mississippi state court.

Invoking diversity jurisdiction, Wal-Mart removed to the court à quo where the

parties agreed to trial before a Magistrate Judge. Wal-Mart unsuccessfully sought

judgment as a matter of law at both the close of the Thompson’s case and at the

close of all evidence. The jury returned a verdict for Robert Thompson in the

amount of $47,123.50, but could not reach a verdict with respect to Patricia

Thompson’s claims. The parties agreed to let the trial court rule on her causes of

action and the court awarded her $5,000 for loss of consortium, services and

                                           2
society. Wal-Mart renewed its Motion for Judgment as a Matter of Law or

Alternatively, Motion for New Trial. The Thompsons sought a new trial on

damages alone. The court denied all post-trial motions. Both parties timely

appealed.

                                       ANALYSIS

      I.         Motion for Judgment as a Matter of Law or New Trial

      We review de novo the district court’s denial of a motion for judgment as a

matter of law.1 In order to create a jury question, there must be a conflict in

substantial evidence.2 Substantial evidence requires “‘evidence of such quality and

weight that reasonable and fair-minded men in the exercise of impartial judgment

might reach different conclusions.’”3 We employ a slightly more rigorous standard

in reviewing the denial of a motion for a new trial, asking whether the party

“demonstrate[d] ‘an absolute absence of evidence to support the jury’s verdict,’

thus indicating that the trial court had abused its discretion in refusing to find the




      1
           Wyvill v. United Companies Life Ins. Co., 212 F.3d 296 (5th Cir. 2000).
      2
           Id.
      3
         Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969)(en banc), overruled
on other grounds by Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.1997)(en
banc).
                                             3
jury’s verdict ‘contrary to the great weight of the evidence.’”4 Applying these

standards to the issues raised herein, we find no error.

      Wal-Mart contends that the Thompsons failed to establish premises liability

because they offered no evidence that Wal-Mart: (1) caused the bird seed to be on

the floor, or (2) had actual or constructive notice of its presence. These contentions

are unpersuasive. In Douglas v. Great Atlantic & Pacific Tea Co.,5 the Supreme

Court of Mississippi extensively reviewed the law regarding premises liability for

dangerous conditions. The court held that two rules govern the issue of notice when

determining liability for dangerous floor conditions. Initially, where the floor

condition is created by the proprietor or by one under his authority, or is a condition

in connection with which the proprietor is shown to have taken action, no proof of

notice is necessary. Alternatively, where it appears that the floor has been made

dangerous by a condition traceable to persons for whom the proprietor is not

responsible, a negligence plaintiff must show actual notice or that the condition

existed for such a length of time that, in the exercise of reasonable care, the




      4
        Hidden Oaks, Ltd. v. City of Austin, 138 F.3d 1036, 1049 (5th Cir.
1998)(quoting Dawsey v. Olin Corp., 782 F.2d 1254, 1262 (5th Cir.1986)).
      5
          405 So. 2d 107 (Miss. 1981).
                                           4
proprietor should have been aware of it.6

       The Thompsons alleged that Wal-Mart created an unsafe area by failing to

have its merchandise securely fastened, bagged, and closed within the confines of its

aisles and shelves. They offered evidence that the birdseed bags were stocked on a

shelf adjacent to the spill and that a Wal-Mart employee had, on other occasions,

cleaned up birdseed in that area. We perceive no difference between the case at bar

and K-Mart Corp v. Hardy,7 in which the Mississippi court affirmed a jury verdict

based on evidence that plaintiff slipped on a paint spill, 2 ½ to 3 feet in diameter,

located adjacent to a paint can and lid and approximately a foot and half away from

a stacked display at the end of the aisle. The court found sufficient evidence for the

jury to trace the spilled paint to the negligent manner in which K-Mart had stacked

its paint can display.8 The Thompsons offered sufficient evidence to create a factual



       6
         Id. at 110 (citations omitted); see also Drennan v. Kroger Co., 672 So. 2d 1168
(Miss. 1996) (stating “[e]ven though Drennan established the element of notice, its proof
is not necessary where it is claimed the condition was created by the negligence of the
proprietor or an individual acting under his authority”).
       7
           735 So. 2d 975 (Miss. 1999).
       8
         Id. at 982. The court found that the case was not “predicated upon whether
Kmart had sufficient notice that the spilled product, paint, was on the floor. Rather,
Hardy is accusing Kmart of negligence in stocking the paint cans on the end-cap
incorrectly resulting in their falling onto the floor and creating a puddle of paint.” Id. at
981.


                                              5
issue for the jury as to Wal-Mart’s negligence and the court properly denied its

motions for judgment as a matter of law or a new trial.

      II.      Damage Award

       We review admission and exclusion of evidence for abuse of discretion. 9

An error in the exclusion of evidence is not grounds for reversal unless

substantial rights are affected or unless the affirmance is inconsistent with

substantial justice.10 The Thompsons challenge the award of damages, asserting

that it “represents a compromise verdict in that it is less than two times the medical

expenses incurred.” They point to evidence, admitted after the court denied their

motion in limine, of prior medical injuries to Robert Thompson’s knees, back, and

wrist, asserting that such evidence improperly persuaded the jury to reduce his

award. The injuries in question affected parts of his body which he also injured

during his fall. Accordingly, the court was well within its discretion to allow

questioning to determine the extent of damages attributable to the fall at issue.

Further, it appears that he testified about the injuries during direct examination,

lending support to the court’s decision to allow Wal-Mart to ask relevant questions.



      9
           United States v. Sharpe, 193 F.3d 852 (5th Cir. 1999).
      10
         Bickerstaff v. South Central Bell Tel. Co., 676 F.2d 163 (5th Cir.1982) (citing
FED. R. CIV. P. 61; 28 U.S.C. § 2111).
                                              6
Finally, the Thompsons sought lost wages, making any previous injury affecting

future ability to work directly relevant to the evaluation of damages. Nothing in the

record persuades that we should disturb the trial court’s evidentiary rulings.

      III.     Conclusion

      “We exercise with the utmost care the power to set aside a jury verdict and

grant a new trial.”11 Finding adequate support in the record to justify the jury’s

verdict and nothing to demonstrate that the court abused its discretion in allowing

testimony concerning previous injuries, the judgment appealed is in all respects

AFFIRMED.




      11
           Douglas, 405 So. 2d at 111 (citing Williams v. Hood, 114 So.2d 854 (1959)).
                                            7
