* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Myron H. Bright, Senior Circuit Judge, Un ited States Court of Appeals for the Eighth Circuit, sitting by designat ion.

UNITED STATES COURT OF APPEALS Filed 8/22/96 FOR THE TENTH CIRCUIT

VICKI J. GANS,

Plaintiff-Appellant,

v. C.F. MENNINGER MEMORIAL HOSPITAL and THE MENNINGER CLINIC, Defendants-Appellees. No. 95-3193 (D.C. No. 94-CV-4031) (D. Kan.)

ORDER AND JUDGMENT *

Before PORFILIO, BRIGHT, ** and KELLY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

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. Plaintiff Vicki J. Gans appeals the jury verdict an d judgment in her negligence action against defendants C.F. MenningerMemorial Hospital and the Menninger Clinic for injuries allegedly sustained w hile hospitalized at defendants’ mental health facility with a principal diagnosis of post-traumatic stress disorder. In her action, plaintiff claimed to have suffered injuries when she fell out of a tree while roaming the hospital groun ds without appropriate supervision. The jury found plaintiff forty-nine p ercent at fault and defendants fifty-one percent at fault, and determined that pla intiff had sustained damages of $7,500 for medical expenses. We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1291, and we affirm. On appeal, plaintiff argues that the district courterred in denying her motion for a new trial because: (1) the court erron eously instructed the jury with respect to the appropriate standard of care to whic h plaintiff should be held, and (2) the jury improperly failed to award noneconomic damages. We review the district court’s denial of plaintiff’s motion for anew trial for abuse of discretion.
See Sheets v. Salt Lake County , 45 F.3d 1383, 1390 (10th Cir.), cert. denied , 116 S. Ct. 74 (1995). We will reverse “only if the tri al court ‘made a clear error of judgment or exceeded the bounds of permissible choi ce in the circumstances.’”-3-

Id. (quoting Hinds v. General Motors Corp. , 988 F.2d 1039, 1046 (10th Cir. 1993)). Plaintiff contends that the district court erroneou sly instructed the jury on the issue of negligence by defining the standard of care applicable to plaintiff with reference to an “ordinary person” rather than a person suffering from mental disease. In relevant part, the court instructed th e jury that “[n]egligence is the lack of ordinary care. It is the failure of a pers on to do something that an ordinary person would do, or the act of a person do ing something that an ordinary person would not do, measured by all the circumstan ces then existing.” Appellant’s App. at 8. The court refused plaintiff’s tendered instruction, which provided: “Where the mental condition of a person is in dispute, his mental incapacity if found to exist insofar as it is knownto the person charged with the duty of care must be given weight in determining wh ether the person thus mentally deficient was guilty of contributory negli gence.” Id. at 7. We review the district court’s refusal to give a pa rticular jury instruction for abuse of discretion. Brown v. Wal-Mart Stores, Inc. , 11 F.3d 1559, 1564 (10th Cir. 1993). “In assessing whether the court properly exercised that discretion, [we] . . . examine the instructions as a whole to determine if they sufficiently cover the issues in the case and focus on the facts presented by the evidence.” United States v. Lee , 54 F.3d 1534, 1536 (10th Cir.), cert. denied , 1161 We note that Tenth Circuit Rule 30.1.1. provides th at “[i]t is the

responsibility of appellant’s counsel to file an ap pendix sufficient for consideration and determination of the issues on ap peal. . . . The court is under no obligation to remedy any failure of counsel to f ulfill that responsibility.” -4- S. Ct. 247 (1995). “An error in jury instructions will mandate reversal of a judgment only if the error is determined to have be en prejudicial after reviewing the record as a whole.” Brown , 11 F.3d at 1564. Having reviewed the limited record before us, 1 we find no basis to conclude that the district court abused its discretion in re fusing plaintiff’s requested instruction. The proposed instruction was drawn fr om the language in a Kansas Supreme Court case involving the question of approp riate instructions for contributory negligence where “[f]rom the record it[was] apparent that reasonable minds might differ . . . upon the questi on of [the] plaintiff’s accountability for his own actions.” Avey v. St. F rancis Hosp. & Sch. of Nursing,
Inc. , 442 P.2d 1013, 1023 (Kan. 1968). Without conside ring the extent to which Aveysurvived the move to comparative fault (or the ext ent to which the jury might have been confused by a reference to contribu tory negligence), the record before us reveals no comparable question as to plai ntiff’s accountability for her actions in connection with the alleged incident. A lthough plaintiff clearly suffered from serious mental problems, nothing befo re us suggests that she lacked the mental capacity to understand and appreciate th e danger inherent in climbing-5-

trees, see Appellee’s Supp. App. at 73, 117, or furthermore that defendants had any knowledge of any such lack of capacity. Even t hough plaintiff’s mental condition resulted in periodic episodes which dimin ished or eliminated her ability to care for herself, there is no indication that pl aintiff was incapable of understanding and appreciating the possibility of s uch episodes and the potential danger they posed. See id. at 68, 78-79, 123. Plaintiff’s suggestion in her reply brief that anyone receiving in-patient psychiatric care is automatically incapable of assuming any responsibility for herself is not p ersuasive, and indeed contradicts the evidence before us. See id. at 65-67, 69, 91 (testimony regarding defendants’ system of assigning varying levels of r esponsibility to its patients), 115 (plaintiff’s testimony that she acted responsib ly while taking walks on the grounds). Plaintiff’s second claim of error relates to the ju ry’s determination of damages. Plaintiff contends that the district court erred in denying her motion for a new trial because the jury’s failure to award dam ages for noneconomic loss (pain, suffering and disability) was contrary to th e evidence and inconsistent with its award of $7,500 for medical expenses. Our revi ew in this situation “focuses on whether the verdict is clearly, decidedly, or ov erwhelmingly against the weight of the evidence, with the trial court’s decision [t o deny the motion for a new trial] to stand absent a showing of a manifest abuse of di scretion.” Continental2 In support of her argument on damages, plaintiff r elies not on her own

evidentiary record but on two Kansas cases where re versible error was found when juries awarded medical expenses incurred as a result of personal injuries but nothing for noneconomic damages. In both cases, ho wever, the Kansas Supreme Court made it clear that it was dealing with situat ions where the evidence of pain and suffering as a result of the accidents was unco ntroverted. Germann v. Blatchford , 792 P.2d 1059, 1064 (Kan. 1990); Timmerman v. Sc hroeder , 454 P.2d 522, 524 (Kan. 1969). Although we cannot inde pendently confirm it given the limited record before us, that apparently is no t the case here. See Appellant’s App. at 18 (district court’s mem. and order, denyin g motion for new trial). Furthermore, contrary to the position taken in plai ntiff’s brief, it would appear from the record before us that the award formedical expenses does not represent “the exact amount of uncontradicted medic al expenses,” Appellant’s Br. at 14, see Appellee’s Supp. App. at 28-44 (medical bills tota ling $7,313.50); Appellant’s App. at 17 (district court’s mem. and o rder, characterizing the evidence of medical expenses as controverted), rais ing the specter of a lump sum award notwithstanding the itemized verdict. But se e Germann , 792 P.2d at 1064 (“With the adoption of the itemized verdict . . . , the damages awarded for any specified element of loss or injury are not subjectto speculation.”). -6- Casualty Co. v. Southwestern Bell Tel. Co. , 860 F.2d 970, 972 (10th Cir. 1988), cert. denied , 489 U.S. 1079 (1989). Here, the record on appeal does not include those portions of the record which would enable us to conduct our review. 2 Accordingly, we have no basis to question the distr ict court’s conclusion that “[t]he jury was clearly within its bounds based on the controverted evidence as to plaintiff’s pain and suffering in not making such an award.” Appellant’s App. at 18 (district court’s mem. and order, denying plaint iff’s motion for a new trial).-7-

The judgment of the United States District Court fo r the District of Kansas is AFFIRMED.

Entered for the Court

John C. Porfilio Circuit Judge