*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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, th is 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 c ase is therefore ordered submitted without oral argument.1 On appeal, Wal-Mart asserts Plaintiffs failed to reference the doctrine of res ipsa

loquiturin 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.

-2- Plaintiffs, Mr. Alan Farris and his wife, Mrs. Kell y 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 dis trict 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 t he 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. Far ris' 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 topp led over onto him. He contended Wal-Mart was negligent in failing to prop erly 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 fel l. The jury issued a verdict in-3-

favor of Wal-Mart.

Generally, we review a district court's denial of amotion 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 distric t court's decision turns on an issue of law, we review the di strict 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 j ury 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 wrongdoe r 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, fr om 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 defend ant." Avard, 889 P.2d at 264 (citing St. John's Hosp. , 434 P.2d 160).

However, the simple fact an accident occurred "unde r 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 o n the doctrine, the plaintiff must establish three elements: (1) the event is of a kind which ordinarily does no t occur in the absence of someone's negligence, (2) the accident w as caused by an agency or instrumentality within the exclusive cont rol 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 occurr ence, without more, the matter still rests on conjecture, or is reasonably attribu table 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 invo lved in causing the plaintiff's injury or damage, it is qui te logical to require that the plaintiff show, as a preliminary propositi on, that the defendant had the management and control of the obj ect at the time the negligence, if any, on the part of the defendan t 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 t he 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 instrument ality leaves the hands of the defendant. Michel v. Branham , 327 P.2d 440, 441 (Okla. 1958) (emphasis added).

Here, the district court correctly concluded Plaint iffs failed to prove the second and third elements essential to the applicat ion of the res ipsa loquitur-6-

doctrine in Oklahoma. Substantial evidence shows M r. 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 co mpetent 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 r efusal to instruct the jury on res ipsa loquiturwas 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