UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIDGET FIELDS,

Plaintiff-Appellee,

v. No. 97-1493

WAL-MART STORES, INCORPORATED,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Robert G. Doumar, Senior District Judge.

(CA-96-808-2)

Submitted: March 10, 1998

Decided: March 25, 1998

Before WIDENER, MURNAGHAN, and HAMILTON,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James C. Lewis, RABINOWITZ, RAFAL, SWARTZ,

TALIAFERRO & GILBERT, Norfolk, Virginia, for Appellant. Christopher C. Trundy, LAW OFFICES OF CHRISTOPHER C.

TRUNDY, New Bedford, Massachusetts, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Wal-Mart appeals the jury verdict in favor of plaintiff and attacks

the district court's order granting Fields' motion for judgment as a

matter of law on the issue of contributory negligence. Fields' civil

action alleged that a Wal-Mart employee negligently loaded a furniture item into her shopping cart, which caused the cart to overturn and

injure her ankle. We affirm.

In October 1993, Fields and her three-year-old daughter went to a

Wal-Mart Store in Norfolk, Virginia, to purchase a chifferobe.1 Upon

entering the store, Fields collected a shopping cart and went to the

Home Furnishings Department where she chose the piece of furniture

she wanted to purchase. A sign was posted in the furniture department

requesting that customers seek assistance from Wal-Mart employees.

Fields located a Wal-Mart employee and asked him to assist her in

loading the piece of furniture into her shopping cart.2 The employee

placed the box in the cart so that the bottom of the box was in the

right corner of the cart at the end where the handle is and the left side

of the box hung over the side of the cart.3 Fields did not instruct the

employee on how to load the cart, nor did she know how much the

box weighed. Also, Fields was not touching the cart at the time the

box was loaded; the cart appeared to be stable.

Once the box was loaded into the cart, Fields pushed the shopping

cart from the Home Furnishings Department to the Lay-A-Way

Department. Fields did not notice if the box shifted, nor did she notice

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1 Mrs. Fields described this chifferobe as a piece of furniture similar to

an entertainment center.

2 This employee was never identified.

3 The box was fifty inches long, seventeen inches wide, eight inches

deep, and weighed 135 pounds.

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any instability. Fields stood in line at the Lay-A-Way Department

with her hands on the cart until she was called forward by an

employee. When Fields took her hands off the cart, the cart began to

slide sideways onto her daughter. Fields pushed her daughter aside,

and the cart fell on Fields' ankle.

Following the accident, Fields was treated by several doctors and

required surgery to remove a nerve in her left foot, which left the last

two toes of her left foot permanently numb. Fields also had surgery

to alleviate aggravation from scarring after the removal of the nerve.

Fields filed a motion for judgment in the Circuit Court for the City

of Norfolk, Virginia, in October 1995 and subsequently removed the

action to the district court in August 1996. A jury trial commenced,

and at the conclusion of Fields' evidence, Wal-Mart moved for judgment as a matter of law. The court denied the motion and again

denied the motion at the conclusion of all the evidence. At the conclusion of all the evidence, Fields moved for judgment as a matter of law

on the issue of contributory negligence. The court granted this

motion, and the jury then returned a verdict awarding $275,000 to

Fields. The final judgment order was entered on March 21, 1997, and

Wal-Mart timely appealed.

On appeal, Wal-Mart asserts that the district court erred in granting

judgment as a matter of law on the issue of contributory negligence.

Wal-Mart claims that the evidence presented at trial created an issue

of fact as to whether Fields' conduct "during her trip from the Home

Furnishings Department to the Lay-Away-Department" contributed to

the instability of the shopping cart.

This court reviews the grant of a judgment as a matter of law de

novo. See Gairola v. Virginia Dep't of Gen. Servs., 753 F.2d 1281,

1285 (4th Cir. 1985). In ruling on a motion for judgment as a matter

of law, the district court must view the evidence in the light most

favorable to the nonmoving party. See Townley v. Norfolk & Western

Ry., 887 F.2d 498, 499 (4th Cir. 1989).

Under Virginia law, contributory negligence exists when "a plaintiff fail[s] to act as a reasonable person would have acted for his own

safety under the circumstances." Atrip v. E.E. Berry Equip. Co., 397

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S.E.2d 821, 823-24 (Va. 1990). If the plaintiff was contributorily negligent, then Virginia law bars a plaintiff from recovering in a negligence action if the plaintiff's contributory negligence proximately

caused the injury. See Litchford v. Hancock, 352 S.E.2d 335, 337 (Va.

1987). Federal district courts operate under a federal standard when

determining the sufficiency of the evidence for submission of the

issue of contributory negligence to a jury. See Jones v. Meat Packers

Equip. Co., 723 F.2d 370, 372 (4th Cir. 1983). In the absence of evidence, or reasonable inferences that can be drawn from the evidence,

disclosing that a plaintiff was negligent, the issue of contributory negligence should not go to the jury. Id.

We find no evidence that Fields engaged in objectively negligent

behavior. Fields requested assistance from a store employee who

loaded the box into Fields' shopping cart. Fields did not pick up the

box or touch it before or after it was loaded into her cart. Fields simply pushed the cart containing the box to the Lay-A-Way Department.

There is no evidence that Fields negligently pushed her cart through

the store, and Wal-Mart conceded at trial that there was no substantial

evidence of contributory negligence. Negligence cannot be presumed

simply because an accident occurred. See Murphy v. J.L. Saunders,

Inc., 121 S.E.2d 375, 378 (Va. 1961). Accordingly, we affirm the district court's order granting judgment as a matter of law to Fields on

the issue of contributory negligence. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional

process.

AFFIRMED

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