Petition for Writ of Certiorari — Oscar v. Clovervale Foods Processing, Inc.

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Hs Suprema Court, US

HILED

/ JUL 2g 1988

JOSEPH F. SPANIOU

CASE NUMBER: ripe i

SUPREME COURT OF THE UNITED STATES

TERM, 1988

G. ROBIN OSCAR,

Petitioner

vs.

CLOVERVALE FOODS PROCESSING, INC.,

Respondent

PETITION FOR CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOURTH CIRCUIT

William R. Hurst, Esq.

P. O. Box 88394

Dunwoody, GA. 30356

(404) 399-5485

QUESTIONS PRESENTED

1. Did the trial court deny the

Petitioner's right to jury trial under

the U.S. Constitution, Amendment 7?

2. Does a United States District

Court have the right to reweigh the facts

presented to the jury and set aside a

verdict based upon inferences and con-

clusions reached which the Court feels

are more reasonable than those found by

the jury?

3. In violation of precedent can

the trial court weigh the evidence and

conclude that the verdict is against that

weight of evidence?

4. Is the federal judiciary to

continue in its historical practice of

eroding the guarantee of the Seventh

Amendment?

5. Can a trial court now ignore the

mandate regarding JNOV and new trial

motions that all conflicts in the evidence

be resolved in the nonmoving party's

favor?

INDEX

Table of Contents

Questions Presented

Page

Gpiniene GELOW « 6 + 6 6s eee et eb

JUBAMGIOCION 2 st tt tt te th el ele ee

Constitutional and Statutory

Prowaseieese Teveiweag « « st tet th tht

Statement «6 6 se se ee eee ehhh eh te

Reasons for Granting the Writ ....7

COBGIMSLGN « 6.4. 4° e_¢s 6 ow *% @ oo”

Index to Appendices

Appendix "A" Opinion of Fourth Circuit

Court of Appeals

Order of District Court

of South Carolina

Order Denying Rehearing

Table of Citations

Arkwright Mut. Ins. Co. v. Philadelphia

Electric Co. (1970), CA 3 Pa), 427 F 2d

1273. p. 12-13

Berner v. British Commonwealth Pacific

Airlines, Ltd. (1965), CA 2 NY) 346 F 2d

532, cert den 382 US 983, 15 L ED 2d 472,

86 S Ct 559. pp. 13

Berry v. United States, 312 U.S. 450

(1941). p. 16

Corbett v. Curtis (ME) 225 A2d 402.

p. L2

DePinto v. Provident Life Ins. Co. (CA

9th, 1963), 323 F 2d 826. p. 14

Douglas Aircraft Co. v. Kerns (1947, CA

10 Okla) 164 F 2d 1007. p. 13-14

Farmers State Bank v. Dravo Corp. (1963)

CA u Ill) 321 F 2d 38. p. 13

Galloway v. United States, 319 US 372.

Bp. £5

Graham v. Whitaker, M.D., 282 S.C. 393,

321 SE 2d 40. p. 13

Jacob v. City of New York, 315 US 752.

p. 14

Kennedy v. Custom Ice Equipment Co., Inc.,

271 S.C. 171, 246 SE 2d 176 (1978). p. 13

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is qt 6a fl “4° ote

. a; &

Aa 2.

eras -

iii

Matthews v. Porter, 239 S.C. 620, 124

SE 2d 231. p. 13

Meistrich v. Casino Arena Attractions,

NJ , 5 A 2d 90, 82 ALR 2d

Inc.

T2708. p. 12

National Equipment Rental, Td., v.

Stanley (1959, DC NY) 177 F Supp 583,

affd (CA2 NY) 283 F 2d 600. p. 14

en v. Hildbrand, 145 W VA 420, 114

+. 896; 57 Am Jur 2a Negligence 282.

Readnour v. Commercial Standard Ins. Co.

(CA loth, 1958) 253 F 2d 907. p. 14

Reis v. Sanders (1964), DC Miss) 34 FRD

468. p. 14

Townes Associates Ltd. v. City of Green-

Ville, 266 S.C. 81, 221 S.E. (2d) 773

(1976). p. 14

Watts v. Great Atlantic and Pacific Tea

Company, Inc., Case No. 87-8441, April 15,

1988. p. 9

Restatement, Torts 2d §496D, 57 Am Jur 2d

Negligence 281. o. Ba

IN THE

SUPREME COURT OF THE UNITED STATES

TERM, 1988

G. ROBIN OSCAR,

Petitioner

vs.

CLOVERVALE FOODS PROCESSING, INC.,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The Petitioner prays that a Writ of

Certiorari issue to review the opinion and

judgment of the United States Court of

Appeals for the Fourth Circuit entered

in the above case on April 27, 1988.

OPINION BELOW

The Opinion of the Court of Appeals

is appended hereto as Appendix "A"; Denial

of Petition for Rehearing also appended.

The Order of the District Court

granting the defendant's motion for

a judgment notwithstanding the verdict

is included in the appendix.

JURISDICTION

The original judgment of the Court

of Appeals was entered on October 28,

1987; a petition for rehearing was

timely filed on November 12, 1987 and

was finally denied on April 27, 1988.

The jurisdiction of this Honorable

Court is invoked under Title 28 USC

1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Seventh Amendment to the U.S.

Constitution: "In Suits at common

law, where the value in controversy

shall exceed twenty dollars, the right

of trial by jury shall be preserved,

and no fact tried by a jury shall be

otherwise re-examined in any Court of

the United States, than according to

the rules of the common law.

STATEMENT OF FACTS

1. On October 20, 1986, a jury

trial was held in the case of G. Robin

Oscar v. Clovervale Foods Processing,

Inc., in the United States District Court

For the District of South Carolina,

Greenville Division, Civil Action No:

6:85-2717-16.

2. The jury returned a verdict for

the Plaintiff in the amount of $154,000.00

in actual damages.

3. The Defendant filed a motion for

judgment notwithstanding the verdict or

in the alternative for a new trial and

the motion was granted by Order entered

January 29, 1987.

4. An appeal was timely filed with

the United States Court of Appeals for

the Fourth Circuit.

5. An Order was entered affirming

the District Court's Order on October 28,

1987.

6. Petition for Rehearing was timely

filed on the 12th of November, 1987 and

was denied by Order filed April 27, 1988.

SEES TT

7. In its Order granting the JNOV

the District Court related the basic

story of the case as follows:

A. Plaintiff visited Defendant's

plant and was taken on tour by Defendant

Vice President Cawrse. (Testimony states

the visit was by invitation.)

B. Defendant Cawrse brought

Plaintiff onto dock area and began

directing the unloading of drums from

a truck trailer.

C. Defendant Cawrse asked

Plaintiff to help.

D. Plaintiff positioned himself

at rear of trailer. (Testimony showed

that Defendant Cawrse placed Plaintiff at

rear of trailer.)

E. After working 10 or 15

minutes a drum struck Plaintiff as he

turned from putting the last drum on the

dock.

F. Plaintiff fell backwards,

twisting his leg and striking his head on

a nearby forklift.

8. It is important to point out

that the Plaintiff was an invited guest

to the plant, was placed in harm's way

by the Defendant's people and hurt by

Defendant's employees.

9. The Fourth Circuit said:

A. Defendant had invited

Plaintiff to visit the plant.

B. Defendant Cawrse directed

the unloading of the drums.

C. Plaintiff was stationed at

the rear door of the trailer.

D. After about 15 minutes of

work Plaintiff was struck by a drum as

he was turning.

E. “Although it is possible to

EEE

infer that one of the appellee's employees

rolled the barrel in a negligent manner,

the evidence in the record equally

supports an inference that the appellant

was slower than usual in turning back

around, or that he was not as alert as

he should have been."

10. Both courts below have violated

the applicable standards of review and

correction of alleged errors by allowing

the trial court to substitute its person-

al view on what to infer from the facts

presented for that of the jury.

REASONS FOR GRANTING THE WRIT

1. In a mind-bogglingly similar

case in the llth Circuit, the Court of

Appeals in connection with item 10 above,

reversed the district court's grant of a

JNOV to Great Atlantic and Pacific Tea

Company (A&P), holding that reasonable

persons could have differed as to whether

Watts was contributorily negligent.

Watts, a delivery man, was struck by

a forklift in an A&P warehouse in Richmond,

Virginia. The warehouse had no pedestrian

walkways, and the inventory was stacked

more than six feet high. Watts brought

suit in the U.S. District Court for the

Northern District of Georgia and a jury

awarded him substantial damages. Finding

that Watts was guilty of contributory

negligence as a matter of law, and noting

that under Virginia law, contributory

negligence completely bars a negligence

action, the court granted A&P's motion

for new trial if the JNOV grant was

overturned.

The Eleventh Circuit reversed and

remanded for reinstatement of the jury's

award, holding that the question of

Watts’ contributory negligence had been

properly determined by the jury, particu-

larly since Watts, as an invitee, was

not required to be on the lookout for

dangers that were not open and obvious.

Watts v. Great Atlantic and Pacific Tea

Company, Inc., Case No. 87-8441, April 15,

1988.

2. The following facts were esta-

blished without dispute in trial, the only

honest challenge to these could be in

extent - not in existence:

A. Rob Oscar visited the

Defendant's plant at Defendant's request.

B. Rob was a healthy adult male

prior to the incident on July 12, 1985.

C. Rob was injured to some

extent by the fall.

D. By trial time Rob had gone

through knee surgery and possibly needed

neck surgery as a result of the fall.

E. By trial time Rob had al-

ready spent $9,000.00 in medical expenses

on the knee and faced heavy additional

expenses.

F. At the plant Rob, by invita-

tion from the boss, became involved in

helping unload 55 gallon drums from a

truck.

G. After helping for a few

minutes, during which time the Defendant

boss figured out how to speed up the

process, a barrel rolled into Plaintiff

knocking him down and hyperextending his

knee.

H. Rob turned for a barrel, but

was struck by one rolling prematurely.

I. The barrel was rolled by a

Defendant employee who obviously was not

being concerned about the safety of Rob.

P :

; 11

The jury obviously agreed. They did

send the trial judge a question early in

their deliberations as to "who awarded

punitive damages". The court below point-

ed this out as a point of confusion. How-

ever the court's charges were brutally

defensive as it was; the jury merely got

mad at the Defendant's acts of callous

indifference at placing Plaintiff in

jeopardy and then hurting him as they did.

3. Material facts and laws have

been overlooked in the decision. Specific

facts and supporting laws of importance

are pointed out here.

a. The fact that the appellant

was an invitee and therefore certain

duties were owed him. Graham v.

Whitaker, 321 SE 2d 40, 282 S.C. 393.

b. The fact that the appellant

did not voluntarily and knowingly assume

the risk of his injuries. Restatement,

Torts 2d §496D, 57 Am Jur 2d Negligence

281. 57 Am Jur 2d Negligence 282, re-

statement of Meistrich v. Casino Arena

Attractions, Inc. 31 NJ 44, 155 A2d 90,

82 ALR 2d 1208. Corbett v. Curtis (ME)

225 A2d 402; Nugen v. Hildbrand, 145 W VA

420, 114 SE 2d 896; 57 Am Jur 2d Negli-

gence 282.

c. The fact that there is more

than one reasonable inference that can

be drawn from the evidence, (Court of

Appeals, Per Curiam, p. 8), that there

are controverted issues of fact upon

which reasonable minds could differ, that

S.C. local court rules determine that

there is sufficient evidence to support

inferences of defendant's negligence and

that these are jury questions. Arkwright

Mut. Ins. Co. v. Philadelphia Electric Co.

(1970), CA 3 Pa), 427 F 2d 1273. Farmers

State Bank v. Dravo Corp. (1963), CA 7

Ill) 321 F 2d 38. Kennedy v. Custom Ice

Equipment Co., Inc., 271 S.C. 171, 246

SE 2d 176 (1978). Matthews v. Porter,

239 S.C. 620, 124 SE 2d 231. Graham v.

Whitaker, M.D., 282 S.C. 393, 321 SE 2d

40.

d. The fact that the court over-

looked statements of law given in the

charges and stipulated by plaintiff and

defendant to be correct statements of

law.

e. The fact that the appellant's

rights under the Seventh Amendment of the

Constitution of the United States were

violated. Berner v. British Commonwealth

Pacific Airlines, Ltd. (1965), CA 2 NY}

346 F 2d 532, cert den 382 US 983, 15 L

ED 2d 472, 86 S Ct 559. Douglas Aircraft

Co. v. Kerns (1947, CA 10 Okla) 164 F 2d

1007. Ries v. Sanders (1964, DC Miss)

34 FRD 468. National Equipment Rental,

Td., v. Stanley (1959, DC NY) 177 F

Supp 583, affd (CA2 NY) 283 F 2d 600.

Readnour v. Commercial Standard Ins. Co.

(CA 10th, 1958) 253 F 2a 907. Townes

Associates Ltd. v. City of Greenville,

266 S.C. 81, 221 S.E. (2d) 773 (1976).

DePinto v. Provident Life Ins. Co. (CA 9th,

1963), 323 F 2d 826.

4. When the Trial Court weighs

testimony as a "13th juror” and takes

away the verdict of six, as did Judge

Henderson, it invades the protection

that a jury guarantee provides. In

Jacob v. City of New York, 315 US 752,

the Supreme Court reviewed the Trial

Judge's directed verdict for the Defendant

wherein he held that the Petitioner had

Mii i085 om.

failed to provide sufficient facts to

warrant a submission of the negligence

issue to the jury. The case involved the

selection of a proper tool by a ferry-

boat “water tender" under a Jones Act

case. The evidence was primarily con-

cerned with knowledge and foreseeability.

The proof of possible negligence on the

Defendant's part was minimal. The Court

said, "Without doubt, the case is close

and a jury might find either way. But

that is no reason for a Court to usurp

the function of the jury." (Emphasis

added)

Following the cutting away at the

Sanctity of jury decisions by the various

circuits and the US. Supreme Court Justice

Black, in a dissenting opinion in

Galloway v. United States, 319 US 372,

said: " .. . today's decision marks a

CeO) ia) ae

continuation of the gradual process of

judicial erosion which in one hundred

fifty years has slowly worn away a major

portion of the essential guarantee of

the Seventh Amendment." (p. 397)

In Berry v. United States, 312 U.S.

450 (1941), the Court remarked that the

new rule has given - district judges,

under certain circumstances .. . the

right (but not the mandatory duty) to

enter a judgment contrary to the jury's

verdict without granting a new trial.

But that rule has not taken away from

juries and given to judge any part of

the exclusive power of juries to weigh

evidence and determine contested issues

of facts - a jury being the constitutional

tribunal provided for trying facts in

courts of law." Ibid. 452-453 (The new

rule being the judge's ability to direct

a verdict on the ground of "insufficiency"

of the evidence.)

We submit that it was up to the jury

to weigh the evidence in this case and

to determine the obviously contested

issues of fact. The jury reached con-

clusions, as only they are allowed to do,

that the Defendant was negligent and the

Plaintiff was not (at least to the extent

urged by assumption of risk and contri-

butory negligence rules). Certainly, the

jury must decide whether a particular

act amounts to negligence under proper

instruction from the Court. In this case,

the combined life experiences of six

jurors guided them toward a just and

proper verdict.

5. There seems to be a problem for

the courts in deciding between "probable"

cause and "possible" cause and therefore,

in allowing the jury to exercise a

decision.

It is certainly "possible", as are

all things, that some unknown force pro-

pelled the barrel into Mr. Oscar when he

was not looking, but there is no evidence

to indicate that. No witnesses testified

to unusual earth tremors, flashes of

lightning, or ghostly apparitions on the

scene. The “probability”, on the other

hand, is that the Defendant's employee

rolled the barrel carelessly or intention-

ally while Mr. Oscar was not looking -

striking him down like a bowling pin.

Given that probability, the question is

for the jury.

CONCLUSION

The Petitioner in this cause, a

Georgia resident, chose the federal forum

in Greenville, S.C. against an Ohio owned

South Carolina peach processing company.

Constitutional due process was a prime

consideration. All went well through

verdict and the original judgment.

Thereafter it became a nightmare because

of presumed and excessive authority

exercised by the trial court and because

of misinterpretation and confusion of the

Seventh Amendment with possibles and

probables. This Honorable Court needs

to grant current guidelines to follow.

We pray for a grant of certiorari

to fully review the matter.

Respectfully submitted,

Linh

WILLIAM R. HURST

Attorney for Petitioner

G. Robin Oscar

CERTIFICATE OF SERVICE

I certify that pursuant to Rule 28

Supreme Court and at time of filing here-

in I have served attorney James D. Brice

and attorney Frank Huger Gibbes III, both

of Rainey, Britton, Gibbs & Clarkson,

representing the respondent below with

three copies of the Petition for Writ of

Certiorari at 330 East Coffee Street,

P.O. Box 10589, Greenville, S.C. 29603.

Good and sufficient postage was placed

thereon to carry same to its proper

destination.

This 26th of July, 1988.

/ lq

LM he

WILLIAM R. HURST

Suite A

1876 Independence Sq.

Dunwoody, GA 30338

(404) 399-5485

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 87-2013 (L)

G. ROBIN OSCAR;

Plaintiff-Appellant

CLOVERVALE FOODS PROCESSING, INC.;

De fendant-Appellee

No. 87-2049

G. ROBIN OSCAR;

Plaintiff-Appellant

Vv.

CLOVERVALE FOODS PROCESSING, INC.;

De fendant-Appellee

Appeal from the United States District

Court for the District of South Carolina,

at Greenville. Karen L. Henderson,

District Judge. (C/A No. 85-2717)

~~ ‘ ee ee ae ee nt eee ee Pe ey 4 v7 eee Wr es er

a J Leia ta rv a i aati

Argued: October 5, 1987

Decided: October 28, 1987

Before POWELL, Associate Justice

(Retired), United States Supreme Court,

sitting by designation, PHILLIPS,

Circuit Judge and BUTZNER, Senior

Circuit Judge.

William Ransom Hurst, Sr. (Hurst & Barber;

John W. DeJong on brief) for Appellant;

James D. Brice (Deborah Casey Brown;

Rainey Britton, Gibbes & Clarkson, P.A.

on brief) for Appellee.

PER CURIAM:

The question presented is whether

the district court properly granted the

appellee's motion for judgment notwith-

standing the verdict.

On July 12, 1984, the appellant,

G. Robin Oscar, was visiting the peach

processing plant of appellee, Clovervale

Foods Processing, Inc. ("Clovervale").

Appellee had invited Oscar to visit the

plant so that he could view some fruit

that it wanted him to sell. During the

visit, Richard Cawrse, who was then a

vice president of Clovervale, took

appellant on a tour of the processing

plant. At the end of the tour Cawrse and

Oscar came upon some men unloading a

trailer filled with empty 55-gallon

barrels, each of which weighed about

35-40 pounds. Cawrse gave the men

instructions on how to unload the barrels

faster by setting up a brigade in which

One or two men located in the front part

of the trailer would roll the barrels to

another man located by the unloading

dock at the rear door of the trailer.

The man stationed by the unloading dock

would stop the rolling barrels and stand

them up on the dock so that the rest of

the men positioned by the doorway of

the building and within the building

could continue the transfer. Cawrse and

Oscar joined appellee's employees in

unloading the barrels; appellant was

stationed at the rear door of the

trailer.

Appellant testified that he had been

assisting in unloading barrels for about

fifteen minutes when, as he was turning

around after placing a barrel on the un-

loading dock, he was struck by a barrel.

The blow caused his foot to slip off the

dock into the separation between the un-

loading dock and the trailer, and this

caused him to fall backward onto a tow

motor, striking his head.

The only witness to appellant's fall

was an employee of appellee, Talmade

King, who had been rolling the barrels to

appellant from the back of the trailer.

King stated that he only caught a glimpse

of appellant falling. He testified that

the barrels were being rolled a distance

of about 20 feet from near the front to

the back of the trailer at the time

appellant fell; that he would not roll

the next barrel until appellant had

turned around; and that appellant fell

after he had already picked up a barrel

and turned around.

After the jury found in favor of

appellant, appellee moved for a judgment

notwithstanding the verdict. The dis-

trict court granted the appellee's

motion based on a finding that, among

other things, the only reasonable infer-

ence that could be drawn from the evidence

was that appellant voluntarily and know-

ingly assumed the risk present at the

time of his fall.

In determining whether the district

court properly granted appellee's motion,

we note that in a diversity case the

sufficiency of evidence to create a

jury question is a metter governed by

federal law. Owens By Owens v. Bourns,

Inc., 766 F 2d 145, 149 (4th Cir.), cert.

denied, 106 S.ct. 608 (1985). The

trial court is required to grant a

judgment notwithstanding the verdict even

if there is some evidence supporting

the opposite position so long as there

are no controverted issues of fact upon

which reasonable minds could differ.

Whalen v. Roanoke County Board of

Supervisors, 769 F 2d 221, 227 (4th Cir.

1985) (Ervin, J. concurring in part and

dissenting in part) (adopted as opinion of

the Court, 797 FP 2d 170, 171 (4th Cir.

1986) (en banc)). However, the trial

court must judge the evidence in the light

most favorable to the party against whom

lthe law of South Carolina governs the

substantive issues of whether appellee

was negligent and whether he assumed the

risk of his injuries.

the motion is made, and it must give that

party the benefit of all reasonable infer-

ences from the evidence. 9 Wright &

Miller, Federal Practice and Procedures

§ 2524 at 543-45 (1971).

We agree with the district court

that the only reasonable inference that

can be drawn from the evidence is that

appellant assumed the risk of his injury.

Under South Carolina law, assumption of

risk is available as a defense in actions

where there is no contractual relation-

ship between the parties. Honea v.

West Virginia Pulp and Paper Company,

380 F 2d 704, 707 (4th Cir. 1967). See

also Baker v. Clark, 233 S.C. 20, 103

S.E. 2d 395 (1958). Further, the trial

court may find that as a matter of law

a party assumed the risk "where it

Clearly appears either that the plaintiff

had knowledge of and appreciated the

danger or that the danger was so obvious

Or apparent that knowledge should have

been imputed to him." Ballou v. Sigma

Nu General Fraternity, 352 S.E.2d 488,

495 (S.C. Ct. App. 1986). The trial

court must also determine whether the

risks assumed were or were not the

proximate cause of the plaintiff's

injury. Turner v. Sinclair Refining

Company, 239 S.C. 620, 173 S.E.2d 356,

359 (1970).

In the instant case, appellant free-

ly and voluntarily engaged in an activity

with appellee's employees that presented

an apparent danger, and therefore he is

regarded as “impliedly agreeing to look

out for himself and to relieve the

defendant of responsibility." Id.

Appellant had been unloading the barrels

for approximately fifteen minutes before

the accident occurred. During this time

he was aware of the three to six inch

gap between the truck and the dock, and

he also testified that the barrels were

not all rolled in the same manner. As

he testified, the barrels: "could go

to here [indicating a spot on a diagram]

Or could go crossways or whatever way it

rolled down the track." "And the stopper,

if you will, the catcher could move back

and forth across here [indicating an area

on the diagram] stopping the barrel..."

(App. at 86). "“{T]Jhe barrel could go

Straight down the middle, straight down

the side; it could go at an angle. You

moved to catch the barrel." (App. at

87-8). Most significantly, appellant

testified that “sometimes you reached in

because the barrel came slow or stood

back to catch it because it came a little

faster." (App. at 87). The unpredictable

variations in the direction and speed

the barrels traveled created a clear -risk

that should have alerted appellant tc the

danger of his position. Despite his

knowledge that the barrels varied in

both the angle and speed at which they

traveled, appellant voluntarily continued

to participate in the work. In a situa-

tion where one or two men are rolling

barrels to the back entrance of a trailer

at varying speed and angles, the risk that

the "catcher" will be struck by a barrel

while he is not fully alert is "so obvious

Or apparent that knowledge should be im-

puted to him." Ballou, 352 S.E. 2d at

495.

We also agree with the district

court that the evidence presented at trial

was too insubstantial to support a

finding of negligence on the part of the

appellee. Appellant testified at trial

that: (1) he did not know who rolled the

barrel; (2) he did not see the barrel

rolling toward him; (3) he does not know

how fast the barrel was traveling; and

(4) he does not know what direction it

came from. Although it is possible to

infer that one of the appellee's employees

rolled the barrel in a negligent manner,

the evidence in the record equally

supports an inference that the appellant

was slower than usual in turning back

around, or that he was not as alert as he

should have been. An issue can only be

submitted to the jury when it is supported

by evidence that shows a probability and

not a mere possibility of proof. Whalen

v. Roanoke County Board of Supervisors,

769 F 2d 221, 227 (4th Cir. 1985) (Ervin,

J. concurring in part and dissenting in

part) (adopted as opinion of the Court,

797 F 24 170, 171 (4th Cir. 1986) (en

banc)). The only evidence produced by

the appellant to establish that an em-

ployee of appellee rolled the barrel in

a negligent manner was Oscar's testimony

that the barrel struck him while he was

not looking. In the context of the

record this does not create a probability

of negligence on the part of the appellee.

Therefore, we base our decision to affirm

the judgment of the district court on this

ground as well.2

2The district court did not address

appellee's argument that it was also en-

titled to the defense of contributory

negligence, and we need not address that

issue on appeal.

In sum, we agree with the district

court's conclusion that the only reason-

able inference to be drawn from the evid-

ence presented at trial is that appellant

assumed the risk of his injury, and that,

moreover, there is insufficient evidence

in the record to support a finding of

negligence on the part of appellee.

AFFIRMED.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

GREENVILLE DIVISION

Filed

Jan 29, 1987

CIVIL ACTION NO.

G. ROBIN OSCAR,

Plaintiff

Vv. 6:85-2717-16

CLOVERVALE FOODS

PROCESSING, INC., ORDER

+ ee ee eee He

Defendant

This matter is before the Court on

the motion of defendant Clovervale Foods

Processing, Inc. ("Clovervale") fora

judgment notwithstanding the verdict

pursuant to Fed. R. Civ. P. 50(b) or, in

the alternative, for a new trial pursuant

to Fed. R. Civ. P. 59(a). The plaintiff,

G. Robinson Oscar, Jr., brought this

action under the diversity jurisdiction of

this Court seeking recovery for injuries

he received when he was struck by an

empty 55-gallion drum while visiting the

defendant's peach processing plant as a

business invitee. A jury trial was held

on October 20, 1986, and the case was

submitted to the jury on the plaintiff's

negligence theory. The jury returned a

verdict for the plaintiff in the amount

of $154,000 in actual damages. For the

reasons stated below, the Court grants

the defendant's motion for a judgment

notwithstanding the verdict and condition-

ally grants the defendant's motion for a

new trial pursuant to Fed. R. Civ. P.

50(c).

In the summer of 1984, the plaintiff

was a forty-five year old independent food

broker who had a food brokerage contract

with Clovervale. On July 12, 1984, he

made a business visit to Clovervale's

peach processing plant in Pickens County,

South Carolina. During his visit,

Clovervale Vice-President Richard Cawrse

took him on a tour of the facility. To-

ward the end of the tour, Cawrse and the

plaintiff came upon some Clovervale em-

ployees unloading empty 55-gallon drums

from a 35 to 40 foot semi-truck trailer

and rolling the drums into the plant.

After watching his employees" method

of unloading the drums, Cawrse stepped in

and began directing the operation himself.

According to the plaintiff's testimony,

Cawrse asked the plaintiff to lend a hand.

The plaintiff was a recreational athlete

who enjoyed physical activity and he read-

ily agreed to assist in unloading the

trailer.

The plaintiff positioned himself on

the threshold between the rear door of the

trailer and the loading dock. His func-

tion in the unloading process was to stop

the drums, which two employees took turns

rolling toward him from inside the trailer,

and turn them up on their end on the load-

ing dock. The plaintiff had been engaged

in this activity for approximately ten

to fifteen minutes when, according to the

plaintiff's testimony, a drum struck him

as he turned from putting the last drum on

the loading dock. The plaintiff fell

backwards, twisting his leq and striking

his head on a nearby forklift.

Cawrse went over to the plaintiff,

helped him to his feet and took him back

to the plant office in order to treat a

cut on the plaintiff's head. After rest-

ing a while and eating a small lunch, the

plaintiff went on to tour Clovervale's

warehouse with Cawrse before driving to

a medical clinic to receive further treat-

ment for his cut. Later that afternoon,

the plaintiff drove back to his home in

Clarksville, Georgia, where he went to

bed. The plaintiff subsequently received

medical treatment for injuries to his

ankle, knee and neck.

At trial, the plaintiff's case con-

Sisted of testimony from the plaintiff

concerning the accident and his injuries,

the deposition testimony of two doctors

concerning the plaintiff's injuries and

the testimony of Mrs. Oscar concerning

her husband's injuries. The defendant

called Richard Cawrse and Clovervale

employees Talmadge King and David Lewis to

testify about the accident and its after-

math. The doctor who treated the

plaintiff's head wound the day of the

accident also testified for the defendant.

At the close of both the plaintiff's

case and its own case, the defendant moved

for a directed verdict. The Court noted

its reservation about the sufficiency of

the evidence on the negligence claim, but

denied both motions. Following the jury

verdict for the plaintiff, the defendant

made a timely motion for a judgment not-

withstanding the verdict or alternatively

for a new trial.

In ruling on a motion for judgment

notwithstanding the verdict, the Court must

consider the evidence in the light most

favorable to the nonmoving party, resolv-

ing all conflicts in that party's favor.

Whalen v. Roanoke County Bd. of Supervisors,

769 F. 2d 221, 227 (4th Cir. 1985) (Ervin,

C.J. concurring in part and dissenting in

part) (adopted as opinion of the Court, 797

F.2d 170, 171 (4th Cir. 1986) (en banc)).

"If there is substantial evidence opposed

to the motion, that is, evidence of such

quality and weight that reasonable and

fair-minded men in the exercise of im-

partial judgment could reasonably return

a verdict for the nonmoving party, the

motions should be denied, and the case

submitted to the jury.” Wyatt v. Inter

state & Ocean Transport Co., 623 F2d 888,

891 (4th Cir. 1980). Evidence is not

sufficiently substantial, however, when it

shows only a “mere possibility” as opposed

to a "probability" of proof. Whalen, 769

F.2d at 227; Mayberry v. Dees, 663 F. 2d

502, 510 (4th Cir. 1981); Ralston Purina

Co. v. Edmunds, 241 F.2d 164, 168 (4th

Cir.) cert. denied, 353 U.S. 974 (1957);