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NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

URBAN McCONNELL,

 Plaintiff-Appellant,

 v.

WAL-MART STORES, INC.,

 Defendant-Appellee.

No. 14-15941

D.C. No. 2:12-cv-01601-RCJ-PAL

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada 

Robert Clive Jones, Senior District Judge, Presiding

Submitted May 13, 2016**

San Francisco, California

Before: McKEOWN, SACK***, and FRIEDLAND, Circuit Judges.

Plaintiff Urban McConnell slipped and fell on a wet floor in a Wal-Mart 

store in Las Vegas and suffered serious injury to his left knee. He brought suit in 

 

* This disposition is not appropriate for publication and is not 

precedent except as provided by 9th Cir. R. 36-3.

** The panel unanimously concludes this case is suitable for 

decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Robert D. Sack, Senior Circuit Judge for the 

U.S. Court of Appeals for the Second Circuit, sitting by designation.

FILED

MAY 26 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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the United States District Court for the District of Nevada against Wal-Mart in tort 

on a negligence theory. The case was tried in the district court before a jury, which 

returned a verdict in favor of Wal-Mart on the sole basis that it was not negligent. 

We have jurisdiction under 28 U.S.C. § 1291, and we affirm. 

On appeal, McConnell raises three issues, each of which lacks merit. 

First, McConnell argues that the district court erred in denying his Rule 

50(b) motion for judgment as a matter of law based on the evidence at trial. "'We 

review de novo the district court's denial of a renewed motion for judgment as a 

matter of law' under Rule 50(b)." EEOC v. Go Daddy Software, Inc., 581 F.3d 

951, 961 (9th Cir. 2009) (quoting Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th 

Cir. 2006)). The district court could not entertain McConnell's Rule 50(b) motion 

because he failed to first file a timely Rule 50(a) motion as required by Rule 50(b). 

See Tortu v. Las Vegas Metro. Police Dep't, 556 F.3d 1075, 1078 (9th Cir. 2009).

Second, McConnell advances several arguments concerning the district 

court's assumption of risk instruction and its denial of his Rule 59 motion for a new 

trial, which was based on that instruction. "We review de novo whether [a jury] 

instruction misstates the law. If so, the error warrants reversal, unless it is 

harmless." Harrington v. Scribner, 785 F.3d 1299, 1306 (9th Cir. 2015). Even if 

the assumption of risk instruction was erroneous, reversal would not be required 

here because the "error [wa]s more probably than not harmless," and the defendant 
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has demonstrated that "it is more probable than not that the jury would have 

reached the same verdict had it been properly instructed." Clem v. Lomeli, 566 

F.3d 1177, 1182 (9th Cir. 2009) (quoting Dang v. Cross, 422 F.3d 800, 811 (9th 

Cir. 2005)). The jury found that Wal-Mart was not negligent, and therefore never 

was required to nor did reach the issue of McConnell's comparative negligence and 

whether he had assumed the risk of walking on the wet floor. Simply put, the 

assumption of risk instruction could not have affected the jury verdict.

Third, McConnell objects to "ad lib" explanatory commentary and 

hypothetical examples used by the district court in the course of delivering its jury 

instructions. But as McConnell concedes, he made no contemporaneous objections 

to these comments or examples. By failing contemporaneously to object, 

McConnell has waived his ability to challenge them on appeal. E.g., Affordable 

Hous. Dev. Corp. v. City of Fresno, 433 F.3d 1182, 1196 (9th Cir. 2006) ("Failure 

to object to an instruction waives the right of review."). In any event, the district 

court's commentary and use of hypothetical examples here did not impermissibly 

follow the fact pattern of this case or otherwise mislead the jury, and for this 

reason did not prejudice McConnell. Cf. United States v. Abushi, 682 F.2d 1289, 

1300-01 (9th Cir. 1982).

Judgment AFFIRMED.