Gemeny v. Wal-Mart Dept Store ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
HENRY GEMENY; ISABELLE GEMENY,
Plaintiffs-Appellants,
v. No. 99-1174
WAL-MART STORES, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-98-1008-JFM)
Submitted: October 29, 1999
Decided: November 22, 1999
Before WILKINS and KING, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Rodney M. Gaston, Towson, Maryland, for Appellants. Jeffrey M.
Kotz, JEFFREY M. KOTZ, P.A., Towson, Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Henry and Isabelle Gemeny appeal from the district court's order
entering judgment after a jury trial on their negligence action. The
Gemenys contend, first, that the district court erred in admitting cer-
tain photographs of the accident scene. Our review of the record dis-
closes that any prejudice resulting from the introduction of the photos
was cured by the district court's unambiguous instructions to the jury
not to consider the depiction of the warning cones as proof that they
were in place at the time of the accident. Accordingly, we find that
the district court did not abuse its discretion by allowing them into
evidence. See Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1383 (4th
Cir. 1995). The Gemenys also argue that the district court erred in
denying their motion for judgment notwithstanding the verdict, Fed.
R. Civ. P. 50(b), on the issue of assumption of the risk. We find that
there was evidence upon which the jury could reasonably find that
Gemeny assumed the risk of his fall. See Abasiekong v. City of
Shelby, 744 F.2d 1055, 1059 (4th Cir. 1984) (the district court's
denial of a motion for JNOV will be affirmed if,"giving [the non-
movant] the benefit of every legitimate inference in his favor, there
was evidence upon which a jury could reasonably return a verdict for
him"). Accordingly, we affirm the denial of the Gemenys' motion on
the reasoning of the district court. See Gemeny v. Wal-Mart Stores,
Inc., No. CA-98-1008-JFM (D. Md. Jan. 25, 1999).* We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid in the decisional process.
AFFIRMED
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*Although the district court's order is marked as"filed" on Jan. 21,
1999, the district court's records show that it was entered on the docket
sheet on Jan. 25, 1999. Pursuant to Rules 58 and 79(a) of the Federal
Rules of Civil Procedure, it is the date that the judgment or order was
entered on the docket sheet that we take as the effective date of the dis-
trict court's decision. See Wilson v. Murray, 806 F.2d 1232, 1234-35 (4th
Cir. 1986).
2