Margaret Aaron v. Kroger Limited Partnership I ( 2012 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 12-1809
    MARGARET M. AARON,
    Plaintiff – Appellant,
    v.
    KROGER LIMITED PARTNERSHIP I,
    DEFENDANT - Appellee.
    Appeal from the United States District Court for the Eastern
    District of Virginia, at Norfolk.     Robert G. Doumar, Senior
    District Judge. (2:10-cv-00606-RGD-FBS)
    Submitted:   November 6, 2012             Decided:   November 13, 2012
    Before MOTZ, KING, and AGEE, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    John S. Wilson, WILSON & MCINTYRE, PLLC, Norfolk, Virginia, for
    Appellant.    Cathleen Kailani Memmer, Victor S. Skaff, III,
    GUYNN, MEMMER & DILLON, P.C., Salem, Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM
    Margaret M. Aaron appeals from the district court’s
    judgment entered pursuant to a jury verdict in favor of Kroger
    Supermarket, and its order denying her motion for a new trial.
    Aaron sued Kroger for injuries she sustained in a slip and fall
    at one of their stores.          The jury returned a verdict for Kroger,
    and Aaron moved for a new trial pursuant to Fed. R. Civ. P. 59.
    On appeal, Aaron renews her arguments from the motion for a new
    trial that the trial judge’s interventions into her case and
    comments to the jury compromised her right to a fair trial and
    that   the    district   court    improperly   instructed   the       jury.   We
    affirm.
    We review a district court’s denial of a motion for a
    new    trial     based    on     partiality    or   bias    for       abuse   of
    discretion.         United States v. Wilson, 
    118 F.3d 228
    , 237 (4th
    Cir. 1997) (citing United States v. Castner, 
    50 F.3d 1267
    , 1272
    (4th Cir. 1995)).         A new trial will only be granted “if the
    resulting prejudice was so great that it denied any or all the
    appellants      a     fair,      as   distinguished    from       a     perfect,
    trial.”      United States v. Villarini, 
    238 F.3d 530
    , 536 (4th Cir.
    2001) (quoting United States v. Parodi, 
    703 F.2d 768
    , 776 (4th
    Cir. 1983)) (internal quotation marks omitted).
    Upon review of the record, we find that the district
    court’s comments did not result in the necessary prejudice to
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    warrant a new trial.            We note that “the judge has the right, and
    often an obligation, to interrupt the presentations of counsel
    in order to clarify misunderstandings or otherwise insure that
    the trial proceeds efficiently and fairly.”                           United States v.
    Cole,    
    491 F.2d 1276
    ,    1278     (4th       Cir.    1974)     (citing      United
    States v. Casiagnol, 
    420 F.2d 868
    , 879 (4th Cir. 1971)).                               The
    district court’s interventions into Aaron’s case were for the
    purpose of clarifying the evidence for the jury and ensuring
    that     evidence       was   properly     presented          without       undue    delay.
    Further, any prejudice created by the district court’s other
    comments to the jury was adequately cured.                         See United States v.
    Quercia, 
    289 U.S. 466
    , 472 (1933).
    Aaron     next     argues        that         the     district       court’s
    instruction to the jury that it could find for the defense if
    the unsafe condition was open and obvious was improper.                               Aaron
    contends       that     the     district        court’s       instruction       did    not
    adequately      distinguish       between       the    condition       and    the   hazard
    created by the condition.                We review the decision to give or
    refuse      a      proposed        jury         instruction           for     abuse     of
    discretion.       United States v. Green, 
    599 F.3d 360
    , 377 (4th Cir.
    2010).     We consider “whether taken as a whole and in the context
    of the entire charge, the instructions accurately and fairly
    state the controlling law.”               United States v. Passaro, 
    577 F.3d 207
    , 221 (4th Cir. 2009).                 We conclude that the instructions
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    given did not misstate the law and that the district court did
    not   abuse     its    discretion     by   concluding      that      the    distinction
    sought by Aaron would likely be more confusing than clarifying.
    Finally, Aaron argues that the district court erred by
    giving an insufficient instruction to the jury that it could
    find for the defense if the condition was so slight that a
    reasonable         person   would    not   anticipate      any    danger      from   it.
    Aaron did not object to the exclusion of this instruction during
    the trial, raising it for the first time in her motion for a new
    trial.        We    therefore     review     for   plain      error.        See   United
    States v. Robinson, 
    627 F.3d 941
    , 953 (4th Cir. 2010).                            Aaron
    cites    to   no     authority      that   indicates     that    the    language     she
    desired was necessary to correctly reflect Virginia law.                          Thus,
    the district court did not commit plain error by declining to
    modify its instruction in the manner sought by Aaron.
    Accordingly, we affirm the district court’s judgment
    and order.         We dispense with oral argument because the facts and
    legal    contentions        are   adequately       presented     in    the    materials
    before    the      court    and   argument      would   not    aid    the    decisional
    process.
    AFFIRMED
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