* Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion

s hould not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR . R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 98-30106

_______________

HARVEY GOLEMAN, WANDA GOLEMAN,

Plaintiffs-Appellees,

VERSUS

WAL-MART STORES, INC.,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Louisiana

(95-CV-530)

_________________________

January 18, 1999

Before SMITH, DUHÉ, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge: *

This deceptively simple “slip and fall” i ncident has

mushroomed in to a four-year litigation involving two trials,

several district court orders, and this appeal. Wal-Mart Stores,

Inc. (“Wal-Mart”), challenges both the decisions of the magistrate

judge and the second jury’s verdict. It asserts that (1) the

magistrate judge erred in reducing the jury’s allocation of fault

to the plaintiff from 40% to 0%; (2) the magistrate judge2

improperly grante d a new trial; (3) the magistrate judge

incorrectly limited the new t rial to the issue of lost wages and

lost earning capacity; and (4) the second jury awarded damages that

are excessively high. We affirm the magistrate judge’s decision to

reduce the plaintiff’s fault but reverse the decision to grant a

new trial. Because we reinstate the damages awarded by the first

jury, we do not consider Wal-Mart’s third and fourth challenges.

I.

Harvey Goleman slipped and fell in the restroom of a Wal-Mart

store. A Wal-Mart employee had recently mopped the floor to remove

overflow from a toilet but had failed to leave any signs or cones

to indicate that the floor was wet. Goleman injured his left knee

and lower back and was forced to have his kneecap removed.

In this action removed from state court, Goleman asserted that

Wal-Mart was solely at fa ult. He claimed damages for pain and

suffering, permanent disability, loss of enjoyment of lif e, lost

economic opportunity, and medical expenses. Mrs. Goleman claimed

damages for loss of consortium. Wal-Mart denied the allegations,

asserted that Goleman was at fault, and claimed that because

Goleman had undergone knee surgery approximately six months before

the incident, his damages were caused by a pre-existing injury.

The parties agreed to trial by a magistrate judge. The jury

returned a verdict finding that Wal-Mart was 60% at fault and that

Goleman was 40% at fault. After the verdict, the Golemans filed a

motion under F ED

. R. C IV

. P. 50 (b) for judgment as a matter of law2 Begi n ning in 1991, Goleman attended Northeastern Louisiana University

part-time. After he began to have problems with his knees in the fall of 1992,

his grades dropped, and he was unable to complete several semesters.

3 In support of its conclusion that Goleman had suffered a loss of earning

capacity, the court also pointed to (1) the testimony of Goleman’s rehabilitation

expert that aft e r the injury, Goleman was physically able to perform only 11%

of the jobs defined by the Dictionary of Occupational Titles and possessed the

skills to perform only 4% of those jobs and (2) the testimony of a supervisor of

a local employment agency who stated that over a five-month period she had been

unable to find Goleman a job that he could perform.

3 (“j .m.l.”) on the issue of liability, requesting that Goleman’s

comparative fault be reduced to 0%. The magistrate judge granted

the motion.

Goleman filed a motion for new trial on the issue of all

damages awarded by the jury. The magistrate judge granted the

motion, in part, concluding that the award of $8,816.66 for lost

wages “and/or” lost earning capacity was contrary to the great

weight of the evidence. The court reasoned that, in light of

Goleman’s employment and educational history, 2 the $8,816.66 award

was too low to encompass both lost wages and lost earning capacity.

The magistrate judge determined that Goleman had established

by uncontroverted evidence that he had suffered a loss of earning

capacity, because it was undisputed that he had suffered permanent

restrictions on his physical activity that he did not have before

the accident. 3 The magistrate judge thus granted a new trial

limited to Goleman’s lost wages and lost earning capacity.

The second jury awarded Goleman $ 14,400 for lost wages,

$205,000 for future wages, and $75,000 for lost earning capacity.

Wal-Mart filed a motion for remittur and an alternative motion for

new trial. The magistrate judge conditionally denied the new4

trial, subject to Goleman's acceptance of a remittur of $ 75,000;

Goleman accepted the remittur. Wal-Mart filed a renewed motion for

new trial, which was denied.

II.

A j.m.l. can be sustained only if, considering the evidence in

the light most favorable to the party opposed to the verdict, the

“evidence points 'so strongly and overwhelmingly in f avor of one

p arty' that a reasonable trier of fact could not arri ve at a

contrary verdict.” T urner v. Purina Mills, Inc., 989 F.2d 1419,

1421 (5th Cir. 1993) (quoting Boeing Co. v. Shipman, 411 F.2d 365,

374 (5th Cir. 1969) (en banc)). The standard is the same on appeal

as in the district court. R esolution Trust Corp. v. Cramer

, 6 F.3d

1102, 1109 (5th Cir. 1993).

In this diversity case, we apply the substantive law of

Louisiana, under which, to prove a plaintiff’s comparative fault,

the defendant bears the burden of establishing by a preponderance

of the evidence that the plai ntiff failed to act as a reasonable

person and that his negligence was a legal cause of the accident.

United States Fidelity & Guar. Co. v. Hi-Tower Concrete Pumping

Serv., Inc. , 574 So. 2d 424, 434 (La. App. 2d Cir.), writ denied

,

578 So. 2d 136 (La.), and writ denied , 578 So. 2d 137 (La. 1991).

In viewing comparative fault, a court should consider (1) whether

the conduct resulted in inadvertence or involved an a wareness of

danger; (2) how great a r isk was created by the conduct; (3) the

significance of what was sought by the conduct; (4) the capacities5

of the actor; and (5) any extenuating circumstances that might

require the actor to proceed in haste, without proper thought.

Watson v. State Farm Fire & Cas. Ins. Co. , 469 So. 2d 967, 974

(La. 1985). Additionally, “[a]llocation of comparative fault is a

factual matter lying within the discretion of the fact finder and

will not be disturbed unless manifestly erroneous.” S imeoneaux v.

Humedicenters, Inc. , 642 So. 2d 318, 321 (La. App. 4th Cir. 1994)

(quoting Scamardo v. New Orleans Stevedoring Co ., 595 So. 2d 1242

(La. App. 4th Cir. 1992)).

Wal-Mart relies heavily on this sort of language to attack the

j.m.l. A review of the way Louisiana courts have applied this

language, however, reveals a willingness to modify jury findings of

comparative fault in factual situations v ery similar to those in

the case at hand.

In Breaux v. Wal-Mart Stores, Inc. , 635 So. 2d 667 (La. App.

3d Cir.), writ denied

, 640 So. 2d 1347 (La. 1994), the court

reduced the jury’s allocation of comparative fault to a plaintiff

from 30% to 10%. The facts of that case also involve a customer

who slipped and fell on a wet floor in a Wal-Mart store bathroom.

The plaintiff had slipped while carrying her fifteen- month-old

daughter through a puddle located on the bathroom floor. The jury

appar ently had decided that though Wal-Mart was principally at

fault, the plaintiff should have been more careful in walking,

because she had already noticed that water was leaking onto the

floor.

On app eal, however, the court held that even accepting Wal-6

Mar t’s view of the evidence, almost none of plaintiff’s conduct

could have contributed to her fall. Though she knew the floor was

w et, she did not know the water had leaked outside the stall she

had entered. Moreover, she had been distracted by a reasonable

concern for her daughter’s safety.

In light of this and of Wal-Mar t’s unreasonable failure to

warn customers of the leaking water, the court did not hesitate to

find the jury in clear error. The only fault the jurors reasonably

could have assigned to plaintiff's conduct stemmed from her failure

to brace herself more firmly when walking on a potentially wet

surface, so the court allocated 10% fault to her.

Thus, a Louisiana appellate court was willing to intervene in

a jury’s allocation of comparative fault, even when there was an

arguable theo ry under which the plaintiff could have been at

greater fault. The court rejected the jury’s allocation of 30%

fault to a plaintiff who knew the bathroom floor was wet.

In comparison, even under the ver sion of the facts most

favorable to Wal-Mart, Goleman had no notice that the bathroom

floor was wet when he entered. Additionally, he has alleged there

was a partition facing the entrance t o the door that blocked his

view of the floor and that the wetness of a white tile floor is

difficult to notice. Wal-Mart does not dispute the color of the

floor or that the partition existed. Thus, it appears that there

is even less evidence in this case supporting allocating fault to

the plaintiff than there was in Breaux

.

Wal-Mart argues that given Goleman’s recent knee surgery, he7

should have been particularly careful in walking, to avoid

slipping. Additionally, unlike the circumstances in many slip and

f all situations, there was no merchandise to distract Goleman on

his way into the bathroom. Considering this in conjunction with

the deference that should be afforded jury determinations, Wal-Mart

argues that a reasonable jury could have found Goleman liable for

40% of the fault.

Unfortunately for Wal-Mart, there is no basis under Louisiana

law for placing a higher duty of care on a plaintiff simply because

he is already injured. Wal-Mart does not point to any part of the

Louisiana code or caselaw that supports its argument.

Additionally, Louisiana courts have found that customers using

bathrooms located in stores do not lose protection of that store’s

duty of care simply because there is no merchandise to distract

them. “We do not find that factor dispositive, for a store patron

might be as distracted by a store’s backrooms as might be a theatre

patron who is offered the opportunity to go backstage.” Sims v.

Winn Dixie La., Inc.

, 638 So. 2d 716, 719 (La. App. 3d Cir.), writ

denied

, 644 So. 2d 1062 (La. 1994). Thus, Wal-Mart cannot claim a

lower duty of care simply because the accident occurred in the

bathroom and not in the main store.

A reasonable jury could assign fault to Goleman only under a

general obligation of customers entering bathrooms to watch for

slippery floors. On this theory, every customer who enters a

bathroom should expect to encounter water on floors and the danger

of falling. As Wal-Mart puts it, “the jury concluded that8

Mr. Goleman bore 40 percent of the fault in not watching where he

was going and in not being careful.” This approach, however, also

has been rejected by Louisiana courts:

Neither the jurisprudence nor legislative adoption of

c omparative fault in assessing liability in such case s automatically require [ sic ] fact finders to assign fault

whenever a version of the facts might suggest a plaintiff

failed to take “every possible step” to guard against the

risk of falling after noticing a wet floor surface.

Breaux

, 635 So. 2d at 670. Because Wal-Mart has failed to raise a

reasonable theory that allocates fault to Goleman, and because the

discretion afforded Louisiana juries is highly deferential but not

absolute, we affirm the j.m.l. reducing Goleman’s fault from

40% to 0%.

III.

A.

Wal-Mart attacks the grant of a new trial on the issue of lost

earning capacity and lost wages. It questions both the decision to

grant a new trial and the limitation of that trial to these two

damages issues. We review the grant of a new trial for abuse of

discretion. Peterson v. Wilson

, 141 F.3d 573, 577 (5th Cir. 1998).

A court should not grant a new trial on evidentiary grounds

unless the verdict is against the great, and not merely the

greater, weight of the evidence. C onway v. Chemical Leaman

Tanklines, Inc.

, 610 F.2d 360, 363 (5th Cir. 198 0). A verdict,

however, can be against the great weight of the evidence “even if

there is substantial evidence to support it.” Rousseau v. Teledyne

Movable Offshore, Inc. , 812 F.2d 971, 972 (5th Cir. 1987).9

This c ourt has identified three factors that, if present,

should reinforce a district court’s d eference to the jury:

(1) simplicity of the issues; (2) extent to which the evidence is

in dispute; and (3) absence of an y pernicious or undesirable

occurrence at trial. S ee Shows v. Jamison Bedding, Inc.

, 671 F.2d

927, 930 (5th Cir. 1982). These three factors are present in this

case.

First, juries often are entrusted with resolving the

straightforward question of lost earning capacity in a slip-andfall lawsuit. Second, the parties no longer dispute the evidence.

Third, there is nothing in the record suggestin g any improper

conduct at trial.

The presence of these factors counsels us to conduct a more

rigorous review of the magistrate judge's actions than the abuse of

discretion standard normally would require. “In t his situation

there is little, if any, need to defer to the judge as against the

jury, and we will not affirm an order granting a new trial unless

on review we are satisfied, i ndependently, that the jury verdict

was against the great weight of the evidence.” Id. at 931.

B.

The part of the jury damages award in question stems from the

curious instruction on damages in the first trial. The verdict

form provided only one line for “lost wages and/or lost earning

capacity.” The combination of the conjunctive “and” and the

d isjunctive “or” suggested that the jury could award damages for10

either (1) lost past wages and lost earning capacity or ( 2) lost

past wages or lost earning capacity. There is nothing in the jury

instruction or verdict form that requires the jury, on finding WalMart liable, to assess damages for both elements. Neither party

objected to this part of the verdict form.

The magistrate judge found that the jury award on this line of

the verdict f orm, $8,816.66, could constitute a low award for

Goleman’s lost past wages. Because, however, as the court stated,

“that award was rendered as to b oth the claim for lost wages and

the claim for loss of earning capacity, it is against the great

weight of evidence.” Because the court found that Goleman had

suffered a loss of earning capacity, it assumed that the $8,816.66

must represent awards for both lost past wages and lost earning

capacity rather than for either lost past wages or lost earning

capacity (as implied by the “and/or”). We disagree.

In support of its decision to set aside the verdict, the court

cited to three items of evidence. First, it concluded that it is

“undisputed that as a result of the injury sustained in the WalMart fall, plaintiff now has permanent restrictions on his physical

activities

. . . that he did not have before.” Second, it pointed

to testimony by Goleman’s vocational rehabilitation expert

discussing the limited number of jobs Goleman could perform with

his physical restrictions. Finally, it noted that an employmentplacement expert could not find any job for Goleman o ver a fivemonth period.

These facts do not show that the verdict was against the great11

weight of the evidence. Under the theory advanced by Wal-Mart, the

jury could have accepted all of these facts as true and still have

refused to award damages for lost earning capacity. Wal-Mart does

not deny that Goleman suffered permanent physical restrictions as

a result of the fall. Rather, it argues that Goleman’s physical

restrictions before his accident al ready had limited him to a

“sitting type job.” Thus, his earning capacity “didn’t change

from before the fall [to] after the fall.”

During cross-examination, Goleman’s orthopedic surgeon, Dr.

McClelland, agreed that immediately before the accident, Gole man

could do only a “sitting type job,” and Goleman would be able to do

only a “sitting type job” in the future, as well. Additionally,

Wal-Mart’s counsel established during cross-examination that

Goleman’s vocational rehabilitation expert calculated his 11%

figure based on the assumption Goleman could work only in a

“sitting-type job.” Thus, this testimony also supports Wal-Mart’s

theory that Goleman’s pre-existing injuries already had restricted

him to sedentary jobs. Finally, the inability of the temporaryemployment placement specialist to find Goleman a job for three

months is not conclusive, given that Goleman admitted that he had

not been able to find a job for the year before the accident, in

part because of his increasingly serious pre-accident knee

problems.

Under a normal abuse-of-di scretion standard of review, we

likely would defer to the magistrate judge's experience. In this

situation, though, we must also guard against “the trial judge []12

simply substi tuting his judgment for that of the jury . . . .”

Shows

, 671 F.2d at 930. The verdict on lost earning capacity is

n ot against the great weight of the evidence, because Wal-Mart’s

theory can survive the undisputed evidence relied on by the

magistrate judge.

Even accepting that Goleman suffers from greater p hysical

restrictions as a result of the accident, Wal-Mart showed that

these restric tions do not affect his already limited earning

capacity. Because the “great weight of the evidence” standard is

not easy for a court to overcome, we defer to the jury when the

adverse party has raised a persuasive theory not directly

contradicted by the evidence presented by the other party.

The jury reasonably could have believed that Goleman’s

economic loss from the accident consisted only of lost wages from

the type of jobs he had held in the past. As the magistrate judge

noted, “[g]iven plaintiff’s employment and educational history

prior to the incident, an award of $8,816.66 for past and future

lost wages, although on the low side, would not have been against

t he great weight of the evidence.” Because we conclude that the

jury could have refused to award Goleman anything for loss of

earning capacity under the “a nd/or” instructions and under the

theory advanced by Wal-Mart, the $8,816.66 aw ard was not against

the great weight of the evidence.

IV.

B ecause we reverse the grant of a new trial, we do not13

consider Wal-Mart’s app eal of the limitation of that trial to

economic damages or its appeal of the se cond jury verdict. The

j.m.l. reducing the allocation of fault to Goleman from 40% to 0%

is AFFIRMED, but the grant of a new trial is REVERSED, and judgment

is RENDERED in accordance with the first verdict.