*

 This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicata and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 14 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

_____________________

ALAN FARRIS; KELLY FARRIS,

 Plaintiffs-Appellants,

v.

WAL-MART STORES, INC., an

Arkansas Corporation,

 Defendant-Appellee.

No. 96-5162

(D.C. No. 95-CV-457)

(N.D. Oklahoma)

_____________________

ORDER AND JUDGMENT*

_____________________

Before BRORBY, EBEL and KELLY, Circuit Judges.

_____________________

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
1

 On appeal, Wal-Mart asserts Plaintiffs failed to reference the doctrine of res ipsa

loquitur in their pre-trial brief, and therefore the district court's refusal to instruct the jury

on the doctrine, and its refusal to grant a new trial, was proper. The district court did not

cite this issue as grounds for denying Plaintiffs' motion for a new trial. Because we affirm

the district court's holding for largely the reasons set forth by that court, we need not, and

do not, reach this issue.

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Plaintiffs, Mr. Alan Farris and his wife, Mrs. Kelly Farris, appeal from the

district court's refusal to grant their motion for a new trial. Their asserted ground

in support of a new trial was, and remains, the district court's refusal to instruct

the jury on the doctrine of res ipsa loquitur.

1

 We affirm the district court's

holding.

The facts are simple. Mr. Farris was shopping at the Wal-Mart store in

Pryor, Oklahoma. While walking down an aisle, Mr. Farris slipped and fell to the

floor. During or immediately subsequent to Mr. Farris' fall, a wooden book

cabinet fell from a display counter adjacent to the aisle onto Mr. Farris. At trial,

Mr. Farris claimed that as he slipped, he "placed [his] hand on the shelf" holding

the book cabinet to correct himself, and that after he walked "approximately two,

three feet" further down the aisle the cabinet toppled over onto him. He

contended Wal-Mart was negligent in failing to properly secure the cabinet. In

response, Wal-Mart offered evidence that Mr. Farris caused the cabinet to fall by

physically grabbing onto it when he slipped and fell. The jury issued a verdict in
-3-

favor of Wal-Mart.

Generally, we review a district court's denial of a motion for a new trial for

abuse of discretion. E.g., Sheets v. Salt Lake County, 45 F.3d 1383, 1390 (10th

Cir.), cert. denied, 116 S. Ct. 74 (1995). However, where the district court's

decision turns on an issue of law, we review the district court's determination on

that question de novo. Morgan v. City of Albuquerque, 25 F.3d 918, 919 (10th

Cir. 1994). State law governs the substance of a jury instruction in a diversity

case, and federal procedural law governs the grant or denial thereof. E.g., Lyon

Dev. Co. v. Business Men's Assurance Co., 76 F.3d 1118, 1124 (10th Cir. 1996);

City of Wichita v. United States Gypsum Co., 72 F.3d 1491, 1494-95 (10th Cir.

1996). Here, the applicability of the doctrine of res ipsa loquitur is a substantive

question of Oklahoma law, which we review de novo. Jackson v. Oklahoma

Memorial Hosp., 909 P.2d 765, 770-71 (Okla. 1995); see also Avard v. Leming,

889 P.2d 262, 264 (Okla. 1994) ("A determination of the sufficiency of the

evidence to permit [use of res ipsa loquitur] is to be made by the court before

submitting the case to the jury."); cf. Lyon Dev. Co., 76 F.3d at 1124-25

(examining state law in determining correctness of district court's refusal to give

requested instructions); City of Wichita, 72 F.3d at 1495 (same).
-4-

Under Oklahoma law, the doctrine of res ipsa loquitur "'is a rule of

evidence whereby negligence of the alleged wrongdoer may be inferred from the

mere fact that the accident happened.'" St. John's Hosp. & Sch. of Nursing, Inc.,

434 P.2d 160, 166 (Okla. 1967) (quoting Lawton Coca-Cola Bottling Co. v.

Shaughnessy, 216 P.2d 579, 610 (Okla. 1949)). The doctrine aids the plaintiff "by

allowing the trier of facts to infer negligence, from facts established by competent

evidence, on the theory that the injury complained of would not have occurred in

the absence of negligence on the part of the defendant." Avard, 889 P.2d at 264

(citing St. John's Hosp., 434 P.2d 160).

However, the simple fact an accident occurred "under mysterious or

unexplained circumstances provide[s] no basis for applying res ipsa loquitur." Id.

at 265 (citing National Union Fire Ins. Co. v. Elliott, 298 P.2d 448, 451 (Okla.

1956)). Rather, to be entitled to an instruction on the doctrine, the plaintiff must

establish three elements:

(1) the event is of a kind which ordinarily does not occur in the

absence of someone's negligence, (2) the accident was caused by an

agency or instrumentality within the exclusive control of the

defendant, and (3) the accident was not due to any voluntary action

or contribution on the part of the plaintiff.

Federal Ins. Co. v. United States, 538 F.2d 300, 301-02 (10th Cir. 1976)

(applying Oklahoma law); see also Avard, 889 P.2d at 266 ("[R]es ipsa loquitur
-5-

cannot be applied 'where, after proof of the occurrence, without more, the matter

still rests on conjecture, or is reasonably attributable to some cause other than

negligence.'") (quoting National Union Fire Ins., 298 P.2d at 451).

The Oklahoma Supreme Court has elaborated on the latter two

requirements:

In cases where an inanimate object is directly involved in

causing the plaintiff's injury or damage, it is quite logical to require

that the plaintiff show, as a preliminary proposition, that the

defendant had the management and control of the object at the time

the negligence, if any, on the part of the defendant would have

occurred and that the plaintiff had no management or control over

the object at any pertinent time and therefore could have had nothing

to do with causing the injury or damage.

St. John's Hosp. & Sch. of Nursing, 434 P.2d at 167 (emphasis added).

While as a general rule the doctrine of res ipsa loquitur cannot

be invoked where the instrumentality is not under the exclusive

control of the defendant at the time of the injury, the doctrine may

nevertheless be applied where there is an affirmative showing on the

part of the plaintiff that the instrumentality causing the injury was

not subjected to any extraneous harmful force while in the hands of

the plaintiff or third parties after the instrumentality leaves the hands

of the defendant. 

Michel v. Branham, 327 P.2d 440, 441 (Okla. 1958) (emphasis added).

Here, the district court correctly concluded Plaintiffs failed to prove the

second and third elements essential to the application of the res ipsa loquitur
-6-

doctrine in Oklahoma. Substantial evidence shows Mr. Farris contributed to the

falling of the bookcase, thus removing the bookcase from Wal-Mart's exclusive

control. Accordingly, the accident is "reasonably attributable to some cause other

than [Wal-Mart's] negligence." See Avard, 889 P.2d at 266. Federal law requires

a jury instruction to be supported by sufficient competent evidence to permit a

jury finding based on the instruction. Holt v. Deere & Co., 24 F.3d 1289, 1294

(10th Cir. 1994). Therefore the district court's refusal to instruct the jury on res

ipsa loquitur was proper, and it did not abuse its discretion by rejecting Plaintiffs'

motion for a new trial.

AFFIRMED.

Entered for the Court:

WADE BRORBY

United States Circuit Judge