                       REVISED AUGUST 5, 2002


                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit



                                 No. 01-11118



                          CARLOS H. REYES-MATA,

                            Plaintiff - Counter Defendant - Appellee,


                                    VERSUS


                                  IBP, INC.,

                            Defendant - Counter Claimant - Appellant.




            Appeal from the United States District Court
                 For the Northern District of Texas
                              July 22, 2002


Before DAVIS, DeMOSS and STEWART, Circuit Judges.

PER CURIAM:

     Carlos Reyes-Mata was injured when a beef carcass and shackle

fell from a gravity rail conveyor system and struck him in the

head.   The injury occurred while Reyes-Mata was working at a beef

processing facility in Amarillo, Texas.            He sued his employer IBP,

Inc. in federal district court for common-law negligence and

statutory   negligence.      A    jury   awarded    Reyes-Mata   a   total   of
$110,912 in damages and the district court entered judgment for

Reyes-Mata and awarded pre-judgment interest on the entire verdict

in the amount of $24,707.07.     IBP now appeals claiming that the

jury charge was erroneous and that the district court erred by

allowing prejudgment interest.

     The jury charge submitted states, in relevant part:

          “Negligence” means failure to use ordinary care to
     provide a safe workplace and to reduce or eliminate an
     unreasonable risk of harm created by the condition or use
     of a workplace equipment or procedures, that is, by
     failing to do that which an employer of ordinary prudence
     would have done under the same or similar circumstances.
     “Ordinary care” means that degree of care that would be
     used by an employer of ordinary prudence under the same
     or similar circumstances.

          The mere occurrence of an event causing injury is
     not evidence of negligence.    An occurrence may be an
     “unavoidable accident,” that is, an event not proximately
     caused by the negligence of any party to it.

          While an employer is not the insurer of its
     employees’ safety at work, an employer does have a
     continuing and nondelegable duty to use ordinary care in
     providing a safe workplace for its employees. Under this
     duty, each employer shall:

          1) provide and maintain employment and a place of
     employment that is reasonably safe and healthful for
     employees;

          2) install, maintain, and use methods, processes,
     devices, and safeguards, including methods of sanitation
     and hygiene, that are reasonably necessary to protect the
     life, health, and safety of the employer’s employees; and

           3) take all other actions that are reasonably
     necessary to make the employment and place of employment
     safe.

          You are instructed that while an employer has a duty
     to warn employees of known dangers and to make reasonable


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     inspections to see that workplace equipment does not
     become defective, an employer cannot be held liable for
     latent defects in the workplace, that is, defects that
     are not known by an employer and could not be revealed by
     the exercise of ordinary care.

          You are instructed that the Plaintiff must show more
     than that the Defendant merely furnished a condition in
     the workplace that made the injury possible. That is,
     Plaintiff must show that the Defendant in furnishing the
     condition failed to do that which an employer of ordinary
     prudence would have done under the same or similar
     circumstances, or did that which an employer of ordinary
     prudence would not have done under the same or similar
     circumstances.

IBP proffered to the district court what it believed to be a

correct instruction for premises liability only.      The district

court overruled IBP’s objection and submitted its jury charge. The

jury returned a verdict for Reyes-Mata for $5,000 for physical pain

and mental anguish, $912 for loss of earning capacity, $5,000 for

physical and mental impairment and $100,000 for future medical

expenses.   The district court entered judgment against IBP for

$110,912 and also awarded $24,707.07 in prejudgment interest.

     This Court recognizes that the district court has broad

discretion in formulating the jury charge, and, therefore, reviews

those instructions with great deference.   Deines v. Texas Dep’t of

Protective & Regulatory Servs., 164 F.3d 277, 279 (5th Cir. 1999).

A 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.”       Mooney v.

Aramco Servs., Inc., 54 F.3d 1207, 1216 (5th Cir. 1995).   “However,


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even erroneous jury instructions will not require reversal if based

upon the entire record the challenged instruction could not have

affected the outcome of the case.”     Deines, 164 F.3d at 279.

     IBP claims that the jury instruction is erroneous because it

is not limited to a premises liability claim.     The Texas Supreme

Court has stated that to recover on a negligent activity theory,

the injured party must have been injured by or as a contemporaneous

result of the activity itself rather than by a condition created by

the activity.   Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.

1992).   That court refused, however, to eliminate all distinctions

between premises conditions and negligent activities. Id. Indeed,

in Wal-Mart Stores, Inc. v. Bazan, 966 S.W.2d 745 (Tex.App.–San

Antonio 1998, no pet.), the court stated that liability for an

injury on business premises can be found under either a premises

condition theory or a negligent activity theory.        Id. at 746.

Also, in Texas, trial courts are given deference in their decisions

as to what charge the jury receives.     Wyler Indus. Works, Inc. v.

Garcia, 999 S.W.2d 494, 510-11 (Tex.App.–El Paso 1999, no. pet.).

After reviewing the record, we find that the district court in the

present case did not err in formulating the jury instructions and

we therefore give deference to its decision.

     This Court reviews a district court’s award of prejudgment

interest for an abuse of discretion.      Harken Exploration Co. v.

Sphere Drake Ins. PLC, 261 F.3d 466, 478 (5th Cir. 2001).      Under

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§ 304.102 of the Texas Finance Code, “A judgment in a wrongful

death, personal injury, or property damage case earns prejudgment

interest.”    The Texas Supreme Court has held that this provision

entitles a plaintiff to prejudgment interest on its entire judgment

including future damages because the statute makes no distinction

between damages awarded in judgment for past damages and damages

awarded for future damages.    C & H Nationwide, Inc. v. Thompson,

903 S.W.2d 315, 324 (Tex. 1994) (referring to § 304.102's precursor

statute Tex. Rev. Civ. Stat. Ann. art. 5069-1.05, § 6).     In the

past, this Court has upheld an award for prejudgment interest on

future medical damages when it found that the Alaska Supreme Court

(the state whose law controlled in that matter) endorsed such

awards.   Carlton v. H.C. Price Co., 640 F.2d 573, 575-76 (5th Cir.

1981).

     IBP argues first that, though, the Texas Legislature may have

passed a statute that endorses prejudgment interest awards on all

damages including future damages, this Court should recognize that

future medicals are an economic rather than physical damage.    As

such, IBP avers that Casteel v. Crown Life Ins., 3 S.W.3d 582

(Tex.App.–Austin 1997), aff’d in part & rev’d in part, vacated in

part & remanded on other grounds, 22 S.W.3d 378 (Tex. 1998), should

apply.    This conclusion is not supported by the decision in C & H

Nationwide, however, and that case made no such distinction.    In

fact, Casteel relies in part on Cavnar v. Quality Control Parking,


                                  5
Inc., 696 S.W.2d 549, (Tex. 1985), but that case was recognized as

having been modified by statute in C & H Nationwide.            C & H

Nationwide, 903 S.W.2d at 324.   Though IBP argues that, as a matter

of policy, plaintiffs should not be entitled to damages that they

have not yet incurred, “[t]he purpose of prejudgment interest

recognizes that the injured party was injured at the moment the

cause of action accrued, and that the injured party is entitled to

be made whole as of that moment.       Thus the purpose of prejudgment

interest is to put a plaintiff in the position he would have been

in had he had his trial and recovered his judgment immediately

after his injury.”   Carlton, 640 F.2d at 576.      Therefore, under a

plain reading of the statute, plaintiffs are allowed to collect

prejudgment interest on all damages when the case is a personal

injury case.   See Johnson & Higgins of Tex., Inc. v. Kenneco

Energy, Inc., 962 S.W.2d 507, 530 (Tex. 1998).

     IBP also raise claims that the prejudgment interest statute is

unconstitutional because it violates their substantive due process

rights, because it violates their right to a jury trial and because

it violates their right to be free from excessive fines.      Many of

these arguments, however, rely on this Court believing IBP’s

argument that the prejudgment interest awarded on future medical

expenses is really a fine. As already explained above, prejudgment

interest is not a fine but a recognition that, had the plaintiff

recovered immediately, they would have had the entire amount of


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money to use as they pleased.   Additionally, IBP’s substantive due

process arguments were already dealt with by the Texas Supreme

Court in C & H Nationwide.   There, the court noted that the statute

need only be rationally related to a legitimate state interest.

C & H Nationwide, 903 S.W.2d at 326 (citing Moore v. City of East

Cleveland, 431 U.S. 494, 498-99 & n.6 (1977)).   The court concluded

that this test was met because the statute related to fully

compensating the plaintiff as well as expediting settlements and

trials.   Id.    IBP’s other two arguments both rely on IBP’s

assumption that prejudgment interest is a fine. IBP seems to think

that it has somehow been denied a trial by jury because a court

imposed prejudgment interest, but a trial was already held for

liability and damages.    The interest accrued is based on damages

already found by a jury, so IBP can not now claim that it was

denied a trial by jury.   IBP’s final argument that the prejudgment

interest imposes an excessive fine is also without merit.   IBP has

failed to demonstrate that it has been fined or that the interest

imposed was oppressive in light of the judgment.



                             CONCLUSION

     Having carefully reviewed the record of this case and the

parties’ respective briefing and for the reasons set forth above,




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we conclude that the district court did not err in submitting its

jury   instructions   or    in   awarding   prejudgment   interest.   We

therefore AFFIRM the district court’s decision.

                AFFIRMED.




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