Donald J. Vogt v. Farmers Union ( 2001 )


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  •                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________
    
                                    No. 00-1982
                                    ___________
    
    Donald Vogt; Barbara L. Vogt,           *
                                            *
                   Plaintiffs - Appellants, *
                                            *
            v.                              *
                                            *
    Farmers Union Co-Operative              *
    Association, a Nebraska Co-operative *
    Association; Dawson Transport Service, *
    Inc.                                    *
                                            *
                   Defendants - Appellees.  *
                                            * Appeal from the United States
    -----------------------------           * District Court for the
                                            * District of Nebraska
    Donald J. Vogt; Barbara L. Vogt,        *
                                            * [UNPUBLISHED]
                   Plaintiffs - Appellants, *
                                            *
            v.                              *
                                            *
    Farmers Union Co-Operative              *
    Association, a Nebraska Co-operative *
    Association; Dawson Transport Service, *
    Inc.                                    *
                                            *
                   Defendants - Appellees.  *
                                          ___________
    
                                   Submitted: November 14, 2001
    
                                         Filed: December 27, 2001
                                          ___________
    
    Before BYE, RICHARD S. ARNOLD, and RILEY, Circuit Judges.
                               ___________
    
    PER CURIAM.
    
           Donald and Barbara Vogt bring this appeal from an adverse jury verdict, and
    from the district court's1 denial of their motion for new trial. The Vogts argue the
    district court erred in its instructions to the jury and in its refusal to grant a new trial
    based upon the improper jury instructions. We affirm.
    
           Donald Vogt was a truck driver for defendant, Dawson Transport Service, Inc.,
    a liquid fuel company. On December 9, 1994, he was delivering unleaded gasoline
    to defendant, Farmers Union Co-Operative Association (Farmers Union), at its
    Wausa, Nebraska location. The fuel was transferred from Donald's truck to
    underground storage tanks by inserting a 2" fuel nozzle from the truck into a 4" fill
    pipe leading to the underground fuel storage tanks. During this process, the nozzle
    dislodged allowing fuel to spill into the surrounding area. Donald was drenched in
    fuel which ignited resulting in serious injuries to him.
    
          The National Fire Protection Association's standards and Nebraska law
    required the delivery of unleaded gasoline to underground storage tanks to be made
    by means of a tight fitting connection between the petroleum transfer hose and the
    storage tank fill pipe. The connections are designed to allow control of the flow of
    
           1
           The Honorable William Cambridge, United States District Judge for the
    District of Nebraska, now retired.
    
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    fuel and to prevent leakage or accidental discharge of fuel during delivery. It is
    uncontested Farmers Union did not have such fittings on its fill pipe.
    
           At trial, the district court instructed the jury on a theory of premises liability.
    The court also instructed the jury that Farmers Union's admitted violation of the
    National Fire Protection Association's standard and Nebraska law was evidence
    which it could consider in deciding whether Farmers Union had been negligent.
    Plaintiffs' counsel objected, arguing the court's proposed instructions were
    insufficient and erroneous. Plaintiffs requested an instruction on ordinary negligence
    in addition to the premises liability instruction. Plaintiffs contended the uncontested
    violation of the applicable fire standard and Nebraska law constituted a direct and
    independent act of negligence, and therefore warranted a separate instruction. The
    district court rejected Plaintiffs' arguments and instructed the jury only on the theory
    of premises liability. The case was tried and the jury found no negligence. Plaintiffs'
    motion for new trial was denied and this appeal followed.
    
           The appeal focuses on the district court's refusal to give a separate ordinary
    negligence instruction in addition to the premises liability instruction. We review a
    district court's decision to give particular instructions for an abuse of discretion. See
    Slathar v. Sather Trucking Corp., 
    78 F.3d 415
    , 419 (8th Cir. 1996). We consider
    whether the jury instructions, "taken as a whole and viewed in light of the evidence
    and applicable law, 'fairly and adequately submitted the issues in the case to the
    jury.'" Grain Land Coop. v. Kar Kim Farms, Inc., 
    199 F.3d 983
    , 995 (8th Cir. 1999)
    (quoting White v. Honeywell, Inc., 
    141 F.3d 1270
    , 1278 (8th Cir. 1998)). Even when
    an instruction is erroneous, we will not reverse the judgment unless the alleged error
    was prejudicial. See Wolfe v. Gilmour Mfg. Co., 
    143 F.3d 1122
    , 1124 (8th Cir.
    1998). A new trial is warranted only if the error "misled the jury or had a probable
    effect on its verdict." See E.I. du Pont de Nemours & Co. v. Berkley & Co., Inc., 
    620 F.2d 1247
    , 1257 (8th Cir. 1980).
    
    
    
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          We believe the instructions, taken as a whole and viewed in light of the
    evidence and applicable law, fairly and adequately submitted the issues to the jury.
    Further, we conclude the Vogts' arguments to the contrary are foreclosed by our
    decision in Burry v. Eustis Plumbing & Heating, Inc., 
    243 F.3d 432
    , 434 (8th Cir.
    2001).
    
          Accordingly, the judgment of the district court is affirmed.
    
          A true copy.
    
                Attest:
    
                    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    
    
    
    
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