1

 The Honorable Charles A. Shaw, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-1403

___________

Barbara C. Ragle, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri.

Beverly Enterprises, Inc., *

* [UNPUBLISHED]

Appellee. *

___________

Submitted: September 16, 1999

Filed: November 5, 1999

___________

Before RICHARD S. ARNOLD, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

___________

PER CURIAM.

Barbara C. Ragle brought this action for wrongful death under diversity

jurisdiction, 28 U.S.C. § 1332 (1994), after her father, Homer Cone, exited his

residential nursing facility unattended and suffered fatal hypothermia. The jury

returned a verdict for $100.00, but assessed 99% comparative fault against Mr. Cone.

The district court1 entered judgment on the jury verdict against the nursing facility,
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Beverly Enterprises, Inc., in the amount of $1.00 and subsequently denied Ragle's

motion for a new trial. Ragle appeals, and we affirm. 

For reversal, Ragle contends, inter alia, that the trial judge erred in refusing to

order a new trial on the issue of damages. While her primary argument is that the

damages awarded were so grossly inadequate that a new trial should be ordered, she

also alleges error in the judge's charge to the jury regarding comparative fault. 

"We apply a deferential standard when reviewing a district court's jury

instructions, reversing only for an abuse of discretion." See Thomlison v. City of

Omaha, 63 F.3d 786, 790-91 (8th Cir. 1995). A comparative fault instruction is proper

where there is an evidentiary basis establishing that some degree of causation flowed

from the plaintiff's own negligent acts. See Scheerer v. Hardee's Food Systems, Inc.,

92 F.3d 702, 710 (8th Cir. 1996). Such an evidentiary basis existed in the case before

us. The jury heard evidence that, with the assistance of his wife and roommate, Ethel

Cone, Mr. Cone deliberately removed a security bracelet designed to alert the nursing

staff of any attempt to exit the facility through its front door. 

Ragle asserts however, that Mr. Cone suffered from dementia. She argues that

a plaintiff afflicted with mental infirmity cannot, as a matter of law, be assessed

comparative fault. Therefore, Ragle claims that, notwithstanding the existence of a

valid evidentiary basis, the submission of a comparative fault instruction was improper.

Missouri law governs our inquiry into the effect of mental deficiency on

comparative fault. "Under Missouri law mental deficiency may avoid what would

otherwise be contributory negligence in a normal person." Snider v. Callahan, 250 F.

Supp. 1022 (W.D. Mo. 1966). Plaintiff appears to construe this statement as a

categorical prohibition against an instruction on comparative fault where evidence of

mental deficiency has been presented. We disagree.
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We agree with Ragle that mental deficiency is properly taken into account in

determining the existence or level of comparative fault. However, we regard this

consideration as one falling squarely within the province of the jury. The traditional

objective standard of care in cases of primary negligence mandates that "[u]nless the

actor is a child, his insanity or other mental deficiency does not relieve the actor from

liability for conduct which does not conform to the standard of a reasonable man under

like circumstances." Restatement (Second) of Torts § 283B (1965). A number of

states, including Missouri, have departed from this strict stance in favor of a more

compassionate, subjective regime, wherein mental incapacity may mitigate fault. See

Snider, 250 F. Supp. at 1022; Lynch v. Rosenthal, 396 S.W.2d 272, 278 (Mo. App.

1965)(holding that the question of contributory negligence of mentally handicapped

plaintiff was one for the jury). 

We reject Ragle's averment that the intention of this departure was to create a

categorical rule precluding instruction on comparative fault in the presence of evidence

suggesting subnormal mental capacity. Mental infirmities exist in infinite degrees and

with infinite levels and varieties of behavioral impairment. As such, the significance

of mental infirmity to a person's particular behavior or action is an inherently subjective

assessment, properly committed to the discretion of the jury. Therefore, we hold that

the submission of the comparative fault instruction was proper in this case. 

Ragle next argues that the verdict amount upheld by the district court was

manifestly unjust and warrants reversal. We disagree. Absent a showing of abuse of

discretion, we will not disturb a district court's order denying a new trial on the issue

of damages. See Johnson v. Cowell Steel Structures, Inc., 991 F.2d 474, 476 (8th Cir.

1993). We defer to the law of the forum state when determining the adequacy of a

jury's verdict. See Vanskike v. Union Pacific R. Co., 725 F.2d 1146, 1150 (8th Cir.

1984). In Missouri, a new trial is warranted only where the jury's verdict so defies the

weight of the evidence as to be "shockingly inadequate." Johnson, 991 F.2d at 477
2

 The official death certificate simply states that Mr. Cone "wandered out of

nursing home in cold weather" and lists "hypothermia" as the immediate cause of death.

See Appellant's Ex. App. at 28. Similarly, the trial testimony of the responding officer

recites a general description of the weather that day and chronology of events following

Mr.Cone's discovery. See Appellee's Br. at 34.

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(citing Havel v. Diebler, 836 S.W.2d 501, 504 (Mo. Ct. App. 1992); Gardner v.

Reynolds, 775 S.W.2d 173, 175 (Mo. Ct. App. 1989)). 

Ragle fails to establish that the jury's damage award was against the weight of

the evidence. The jury awarded damages of $100.00, reduced by Mr. Cone's

comparative fault. Ragle urges that the record predicates a much larger award for the

pain and suffering attendant to Mr. Cone's death. For support, Ragle directs the court

to the official death certificate and testimony of the officer responding to the emergency

call on the morning of Mr. Cone's death.2 Our review of this evidence, indeed the

record as a whole, yields no fact sufficient to meet Ragle's burden on this claim. We

conclude that the district court did not abuse its discretion in denying Ragle's motion

for a new trial. 

Ragle raises numerous additional claims challenging certain of the district court's

rulings during the pendency of the trial. We have carefully considered each of these

claims, and conclude that they are without merit. See 8th Cir. R. 47B. Accordingly,

we affirm the decision of the district court. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.