UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT C. BELK,
Plaintiff-Appellee,

v.
                                                                 No. 95-3210
WAL-MART STORES, INCORPORATED,
d/b/a Sam's Wholesale Club,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CA-95-252-6-20)

Argued: November 1, 1996

Decided: January 24, 1997

Before MURNAGHAN and WILLIAMS, Circuit Judges, and
HARVEY, Senior United States District Judge
for the District of Maryland, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Dana Covington Mitchell, III, MITCHELL, BOUTON,
DUGGAN, YOKEL, MCCALL & CHILDS, Greenville, South Caro-
lina, for Appellant. Eugene Clark Covington, Jr., COVINGTON,
PATRICK, HAGINS & LEWIS, P.A., Greenville, South Carolina, for
Appellee. ON BRIEF: Alton L. Martin, Jr., MITCHELL, BOUTON,
DUGGAN, YOKEL, MCCALL & CHILDS, Greenville, South Caro-
lina, for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Wal-Mart Stores, Incorporated, ("Wal-Mart") appeals
from a judgment entered against it in the amount of $310,250, follow-
ing a jury trial in a personal injury case instituted in the District of
South Carolina. Appellee Robert C. Belk had his left arm crushed
between his delivery truck and a forklift operated by an employee of
Wal-Mart. Invoking the district court's diversity jurisdiction, he
sought and obtained a recovery from Wal-Mart for the personal inju-
ries sustained by him in the accident.

Raising numerous issues, Wal-Mart has here appealed. For the rea-
sons stated herein, we affirm.

I

On the morning of June 19, 1992, Robert C. Belk was delivering
cases of beer to Sam's Club ("Sam's"), a division of appellant Wal-
Mart. That morning, Ms. Dean Deathridge, a Wal-Mart employee,
was assigned to unload Belk's commercial vehicle known as a "bay
truck." Although Deathridge was an authorized forklift operator and
had operated forklifts for some twenty years, she had never before
unloaded a bay truck. Bay trucks have doors located on their sides,
instead of one large door at their rear. The bays are constructed so that
they slope down toward the inside of the truck. This design requires
the forks of a forklift to be tilted downward when lifting a pallet from
the truck. Belk was an experienced forklift operator himself, and he

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knew of Deathridge's overall forklift experience including her unfa-
miliarity with unloading bay trucks.

At the time of the accident, Belk was standing inside the truck to
the left of Deathridge as she faced the truck. The forklift's design
required its operator to face slightly to the right as the forklift was
being operated. Deathridge positioned the forks under a pallet of beer
and began lifting the pallet. Noting that the pallet had begun to shift
slightly because the forks were not centered under the pallet, Belk
told Deathridge to readjust the position of the forks. Deathridge then
lowered the pallet and repositioned the forks. Once the pallet was
properly positioned, Deathridge began backing the forklift away from
the truck. This motion caused some cases of beer on the pallet to wob-
ble. Belk raised his left arm to prevent the cases from falling and
shouted "stop." Deathridge, however, pulled forward to stabilize the
cases, causing the back guard of the forklift to pin Belk's left arm
against the side of the truck.

According to his doctor, Belk suffered a "crush-type injury," which
required two operations for repair. There were no bones fractured, but
the accident did result in a fifteen percent permanent partial impair-
ment to Belk's arm. Belk missed work for some nine months, from
the date of the injury, June 19, 1992, to April 1, 1993. Since returning
to work, Belk has continued in the same job which he had prior to the
accident.

This case was tried before a jury on November 13-15, 1995. At the
close of plaintiff's evidence, defendant Wal-Mart moved for judg-
ment as a matter of law arguing that there was insufficient evidence
(1) to support plaintiff's claim of future lost wages, and (2) to support
a finding of liability on the part of the defendant. The District Court
denied this motion. At the close of all the evidence, Wal-Mart
renewed its motion for judgment as a matter of law, which was also
denied. Thereafter, the court instructed the jury on negligence,
assumption of risk, future lost wages, and other relevant issues.
Although requested to do so, the court refused to instruct the jury that
under South Carolina law a violation of internal company policies is
not negligence per se. Nor, in the absence of a request from either
side, did the court instruct the jury that it should reduce any award of
future lost wages to present value.

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On November 15, 1995, the jury returned a verdict in favor of Belk
for $365,000, but found that he was 15% comparatively negligent.
This apportionment of fault reduced the verdict to $310,250.

Wal-Mart then filed a motion for judgment as a matter of law under
Rule 50(b), F.R.Civ.P., an alternative motion for a new trial under
Rule 59(a), F.R.Civ.P., and an alternative motion to alter or amend
the judgment under Rule 59(e), F.R.Civ.P. In a written order dated
November 29, 1995, these motions were denied. This appeal fol-
lowed.

II

Wal-Mart first argues that the District Court erred in denying its
motions for judgment as a matter of law. Wal-Mart contends that
there was no substantial evidence (1) to support Belk's claim of future
lost wages, or (2) to support a finding of liability. Wal-Mart also
argues that the court should have found as a matter of law that Belk
had assumed the risk of the injury sustained by him.

Although its other grounds were properly preserved in its motions
for judgment as a matter of law made during the trial, Wal-Mart did
not in those motions claim that Belk had assumed the risk of his
injury. A Rule 50(a) motion is a prerequisite to a Rule 50(b) motion.
Price v. City of Charlotte, 93 F.3d 1241, 1249 (4th Cir. 1996). Thus,
this issue was not preserved for appeal. Nonetheless, because Wal-
Mart has here argued that a miscarriage of justice would result were
we to decline review of this issue, and because the issue in question
arises in connection with our analysis of the sufficiency of the evi-
dence supporting the jury's finding of liability, we will address it
along with appellant's other two assignments of error claimed to have
resulted from the trial judge's denial of Wal-Mart's motions for judg-
ment as a matter of law.

When reviewing a district court's denial of a motion for judgment
as a matter of law made under Rule 50, we consider the evidence in
the light most favorable to the nonmoving party and review de novo
any legal conclusions underlying the verdict. Price, 93 F.3d at 1249;
White v. County of Newberry, 985 F.2d 168, 172-73 (4th Cir. 1993).
Judgment as a matter of law may be granted only when there is no

                    4
substantial evidence to support recovery by the party against whom
the motion is directed. Mattison v. Dallas Carrier Corp., 947 F.2d 95,
100 (4th Cir. 1991).

We find here that substantial evidence existed to support both
Belk's claim of future lost wages and Wal-Mart's liability. According
to Wal-Mart, the jury awarded damages in the amount of $76,000 for
lost wages.1 Belk testified that his injury had caused him to work
slower, that he was paid on a commission basis and that since his
work included physically handling heavy cases of beer, his income
would be reduced by approximately $4,000 per year. Belk's income
tax returns indicate that his income was indeed reduced by an amount
of some $4,000 during his first full year back at work. In his final
argument, Belk's attorney multiplied this figure by nineteen, repre-
senting the number of years Belk was expected to keep working, and
requested that the jury award $76,000 for lost future wages.

Because Belk was paid on a commission basis, the jury could rea-
sonably have concluded that he could not have been as active after the
accident as he was before. Under South Carolina law,"[t]he guiding
light for future damages is that they need not be exact, as long as they
have a reasonable basis." City of Greenville v. W.R. Grace & Co., 640
F. Supp. 559, 569 (D.S.C. 1986), aff'd, 827 F.2d 975 (4th Cir. 1987).
The record discloses that Belk made $20,577 for eight months of
work in 1993, or $30,860 on an annual basis. In 1994, Belk made
only $26,721, a reduction of almost $4,000 from 1993. From our
review of the record, we are satisfied that there was substantial evi-
dence before the jury for it to have found that Belk had sustained a
loss of $76,000 in future wages.

We further conclude that substantial evidence existed to support
the jury's finding that Wal-Mart was liable for Belk's injury. There
is clear evidence in the record that Deathridge, Wal-Mart's employee,
operated the forklift in a negligent manner and that her negligence
caused Belk's left arm to be crushed. The record further indicates that
_________________________________________________________________
1 As noted hereinafter, it cannot be determined whether any part of the
jury's aggregate award of $365,000 included an amount for future lost
wages. In considering appellant's assignments of error, we will assume
that the jury's aggregate award included an amount for future lost wages.

                    5
Deathridge's supervisor allowed her to unload this particular bay
truck even though she had never unloaded one like it before.

Even though Wal-Mart did not preserve the issue of assumption of
risk for appeal, that issue is closely tied to the question of Wal-Mart's
liability, inasmuch as a finding in Wal-Mart's favor would have
barred a recovery for Wal-Mart's negligence. See Griffin v. Griffin,
318 S.E.2d 24, 28-29 (S.C. Ct. App. 1984) (noting that "[i]n South
Carolina, the doctrine of assumption of risk may . .. apply to preclude
recovery in negigence cases."). Wal-Mart argues that a miscarriage of
justice would result if we fail to review this issue in this appeal. A
party cannot complain on appeal about the denial of a motion for
judgment as a matter of law when it did not sufficiently state the
grounds for it below. Atlantic Greyhound Corp. v. McDonald, 125
F.2d 849, 850 (4th Cir. 1942). Thus, "a party's complete failure to
move for judgment as a matter of law, barring plain error, generally
forecloses appellate review of the sufficiency of the evidence." Bristol
Steel & Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 187 (4th
Cir. 1994). Under circumstances such as those present here, the appel-
late court's scope of review is "limited to whether there was any evi-
dence to support the jury's verdict, irrespective of its sufficiency, or
whether plain error was committed which, if not noticed, would result
in a `manifest miscarriage of justice.'" Coughlin v. Capitol Cement
Co., 571 F.2d 290, 297 (5th Cir. 1978) (emphasis in original) (quoting
American Lease Plans, Inc. v. Houghton Constr. Co. , 492 F.2d 34, 35
(5th Cir. 1974)), cited with approval in Bristol Steel, 41 F.3d at 187.

Both parties agree that to prove assumption of risk under South
Carolina law, a defendant must establish (1) that the plaintiff knew of
facts constituting a dangerous condition; (2) that he knew the condi-
tion was dangerous; (3) that he appreciated the nature and extent of
the danger; and (4) that he voluntarily exposed himself to the danger.
See Griffin, 318 S.E.2d at 28-29.

Wal-Mart contends that all of these factors were established as a
matter of law at the trial. According to Wal-Mart, Belk was aware of
the dangers of using forklifts and was also aware of Deathridge's lack
of experience in unloading bay trucks. Wal-Mart argues that by mov-
ing towards the pallet of beer and trying to stop the cases of beer from

                    6
falling instead of backing away after the pallet began shaking, Belk
assumed the risk of his injury.

We conclude that the jury had before it substantial evidence per-
mitting it to find that Belk did not assume the risk of his injury, and
to therefore find that Wal-Mart was legally responsible for causing
Belk's injuries. Although Belk reached to stop the cases from falling,
he did not assume the risk of Deathridge's erratic driving of the fork-
lift. Belk knew that Deathridge had twenty years of experience driv-
ing forklifts and thus had no reason to assume that Deathridge would
negligently drive the forklift forward after he had yelled "stop."

Accordingly, after reviewing de novo the legal conclusions under-
lying the jury's verdict, we hold that the district court did not err in
refusing to grant Wal-Mart's motions for judgment as a matter of law.

III

Wal-Mart next argues that the district court committed reversible
error by not granting its motion for a new trial. Five separate errors
are assigned:2 (1) that the verdict was contrary to the clear weight of
the evidence; (2) that the trial court erred in failing to instruct the jury
that a violation of company policy is not negligence per se; (3) that
the trial court erred by submitting the issue of future lost wages to the
jury; (4) that the trial court erred in failing to instruct the jury that it
should reduce future lost wages to present value; and (5) that the ver-
dict was clearly excessive.

We review a district court's denial of a motion for a new trial for
abuse of discretion. See In re Wildewood Litigation, 52 F.3d 499, 502
_________________________________________________________________
2 The district court also denied Wal-Mart's alternative motion to alter
or amend the judgment pursuant to Rule 59(e). Appellant argues that the
district court abused its discretion by not reducing the verdict by
$150,000, or by not increasing the amount of appellee's proportionate
fault to 40%. Appellant's sole reasoning for such a reduction in the
amount of the award is that "[s]uch an amendment would better meet the
ends of justice and equity." We will not summarily set aside this jury
verdict in the absence of a clear abuse of discretion by the trial court,
which we do not find here.

                     7
(4th Cir. 1995). The crucial inquiry in our review of a district court's
denial of a motion for a new trial is "whether an error occurred in the
conduct of the trial that was so grievous as to have rendered the trial
unfair." Bristol Steel, 41 F.3d at 186 (quoting DMI, Inc. v. Deere &
Co., 802 F.2d 421, 427 (Fed. Cir. 1986)). When reviewing a motion
for a new trial, we may weigh the evidence itself to determine
whether the jury's verdict was against the clear weight of evidence.
Id. In Aetna Casualty & Surety Co. v. Yeatts , 122 F.2d 350 (4th Cir.
1941), we explained:

          On such a motion it is the duty of the judge to set aside the
          verdict and grant a new trial, if he is of opinion that the ver-
          dict is against the clear weight of the evidence, or is based
          upon evidence which is false, or will result in a miscarriage
          of justice, even though there may be substantial evidence
          which would prevent direction of a verdict.

Id. at 352-53.

Applying these principles here, we conclude that the district judge
did not abuse his discretion when he denied Wal-Mart's motion for
a new trial.

As noted hereinabove, there was abundant evidence before the jury
to support its verdict. Although there is evidence of record here from
which a jury might have found and apparently did find that plaintiff
himself was negligent in raising his hand to intercept the falling cases
of beer, we cannot conclude that the clear weight of the evidence
necessitates a new trial. The jury concluded that the aggregate award
should be reduced by 15% because of Belk's comparative negligence.

Similarly, the trial court's decision to submit to the jury the issue
of future lost wages was not an abuse of discretion. Wal-Mart argues
that because insufficient evidence was presented to support an award
of future lost wages, it was an abuse of discretion for the trial court
to submit this issue to the jury. Under South Carolina law, however,
future damages may be awarded if supported by a reasonable basis.
See City of Greenville, 640 F. Supp. at 569. Belk testified concerning
the actual and expected future decrease in his salary. This testimony
coupled with Belk's tax returns constituted a reasonable basis from

                     8
which the jury could conclude that Belk would suffer lost future
wages as a result of his injuries.

Wal-Mart further contends that it was error for the district court to
fail to instruct the jury to reduce the award of future damages to pres-
ent value. However, Wal-Mart did not request such an instruction and
did not object to the instructions given by the trial court concerning
the damages which the jury could award if it found for Belk. Wal-
Mart nevertheless argues that it was plain error for the trial court to
fail to give a present value instruction and that we should therefore
reverse and remand for a new trial.

Wal-Mart's argument concerning a present value instruction
assumes that the jury's verdict in fact included an award of future lost
wages. Yet, nothing in the record indicates what portion, if any, of the
jury's verdict constituted an award of future lost wages. A verdict
form was given to the jury and was filled out by the foreperson during
the deliberations. The form did not include any breakdown of the var-
ious items of damages awarded. Responding to the question: "What
is the total amount of damages sustained because of the accident
regardless of fault?", the jury recorded the figure "$365,000." Because
the jury's verdict was less than the total amount requested by Belk's
attorney in his closing argument, it cannot automatically be assumed
that an award of damages for future lost wages was included. More-
over, no instruction was requested or given to the jury concerning any
requirement for it to increase any award of future lost wages because
of inflation. In the absence of any such instruction, the jury's failure
to reduce its award to present value could not, as Wal-Mart argues,
result in a windfall to Belk. See Rhodan v. United States, 754 F. Supp.
76, 78 (D.S.C. 1991) (noting that "the rate of inflation and the dis-
count rate for investment offset one another"). Accordingly, we con-
clude that it was not plain error for the trial court to fail to instruct
the jury to reduce future damages to present value.

Wal-Mart also argues that the district court erred in failing to give
an instruction to the jury concerning the applicability of the principle
of negligence per se. Under South Carolina law, an employee's viola-
tion of an in-house rule of his employer does not constitute negli-
gence per se. See Caldwell v. K-Mart Corp., 410 S.E.2d 21, 24 (S.C.
Ct. App. 1991). At the time of the accident, Sam's Club had a rule

                     9
stating that no person may be within 20 feet of a forklift while it is
lifting or lowering freight. The trial court denied Wal-Mart's request
that the jury be instructed that Deathridge's violation of this so-called
"20-foot rule" was not negligence per se . Instead, the court charged
the jury at some length on the general concept of negligence. The
court did not in its charge instruct the jury that any particular conduct
would not constitute negligence, reasoning that such a negative
instruction would tend to confuse the jury.

Wal-Mart now argues that the district court had a duty to charge
the jury as to this principle of law. Wal-Mart had requested the nega-
tive negligence per se instruction because Belk's attorney had men-
tioned several times that Deathridge had violated Sam's 20-foot rule.
Wal-Mart argues that if the jury found that Deathridge had violated
the rule, it may have concluded that she was negligent merely because
of this violation. We disagree.

The district court gave a thorough and adequate charge on the law
of negligence, including a discussion of principles of assumption of
the risk and comparative negligence. As we have explained, "if the
instructions given `sufficiently cover the case and are correct, the
judgment will not be disturbed, whatever those may have been that
were refused.'" Chavis v. Finnlines Ltd., 576 F.2d 1072, 1084 (4th
Cir. 1978) (quoting 9 Wright and Miller, Federal Practice and
Procedure, § 2552 at 627 (1971 ed.)). Under Rule 51, F.R.App.P.,
this Court reviews instructions to the jury as a whole to determine if
they had a tendency to confuse or mislead the jury. See Spell v.
McDaniel, 824 F.2d 1380, 1395 (4th Cir. 1987), cert. denied sub nom.
City of Fayetteville v. Spell, 484 U.S. 1027 (1988). As explained in
Spell:

          [t]he test of adequacy of instructions . . . is not one of tech-
          nical accuracy in every detail. It is simply the practical one
          of whether the instructions construed as a whole, and in
          light of the whole record, adequately informed the jury of
          the controlling legal principles without misleading or con-
          fusing the jury to the prejudice of the objecting party.

Id.

                     10
On this record, we find that it was unnecessary for the trial judge
to tell the jury what would not be negligence. Belk's attorney never
argued that Deathridge's violation of the rule was negligence per se,
and there is no reason to believe that a lay juror would infer that such
a rule existed. Indeed, the only mention of the phrase was made by
counsel for Wal-Mart in his closing argument, when he properly
explained that a violation of a company policy is not negligence per
se. We find that the trial court acted well within its discretion in refus-
ing to instruct the jury on negligence per se when there was no reason
to believe that the jury would conclude that Deathridge's violation of
the 20-foot rule automatically established her negligence. To intro-
duce an unfamiliar concept to a jury, and then to instruct it that the
concept does not apply, would serve only to confuse the jury.

Finally, we reject Wal-Mart's argument that the verdict was clearly
excessive, warranting a new trial. Wal-Mart argues that the lower
court's failure to instruct the jury on negligence per se and its error
in instructing the jury as to future lost wages, necessarily resulted in
an excessive verdict. Because we have separately rejected those
assignments of error, we are not persuaded that in the aggregate they
resulted in an excessive verdict and are therefore grounds for a new
trial.

For all these reasons, we deny Wal-Mart's request that a new trial
be ordered.

IV

Because we find that there was substantial evidence of record to
support the jury's verdict, we conclude that the district court did not
err in denying Wal-Mart's motions for judgment as a matter of law
and did not err in denying Wal-Mart's motion for a new trial. The
judgment below is accordingly affirmed in all respects.

AFFIRMED

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