John Mackovich v. United States

United States Court of Appeals
For the Eighth Circuit
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No. 13-2183
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John Vincent Mackovich
lllllllllllllllllllll Plaintiff - Appellant
v.
United States of America
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: March 4, 2014
Filed: April 24, 2014
[Unpublished]
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Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.
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PER CURIAM.
John Mackovich appeals the district court’s1 adverse judgment entered after a
bench trial in this Federal Tort Claims Act (FTCA) action arising out of a claim that
1
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
negligence contributed to a slip-and-fall accident in the dining room at the United
States Medical Center for Federal Prisoners in Springfield, Missouri. Following
careful review, we conclude the district court’s findings are not clearly erroneous, and
there is no basis to reverse its determination that Mackovich failed to establish
liability on the part of the government. See 28 U.S.C. § 2674; Wright v. St. Vincent
Health Sys., 730 F.3d 732, 737 (8th Cir. 2013) (after bench trial, district court’s
factual findings are reviewed for clear error and its legal conclusions de novo;
reviewing court will overturn factual finding only if it is not supported by substantial
evidence in record, if it is based on erroneous view of law, or if reviewing court is left
with definite and firm conviction that error was made); Little White Man v. United
States, 446 F.3d 832, 835 (8th Cir. 2006) (in FTCA action, court applies law of state
in which acts underlying complaint occurred); Fogelbach v. Wal-Mart Stores, Inc.,
270 F.3d 696, 698-700 (8th Cir. 2001) (Missouri slip-and-fall plaintiff must establish
defendant had actual or constructive notice of dangerous condition that resulted in
injury); see also Moore v. Novak, 146 F.3d 531, 534-35 (8th Cir. 1998) (trial judge’s
evaluation of witness credibility can virtually never amount to clear error). In
addition, contrary to Mackovich’s position on appeal, we see no indication in the
record that he requested or was denied the opportunity to make an opening statement
or to testify on his own behalf. See Porterco, Inc. v. Igloo Prod. Corp., 955 F.2d
1164, 1173 (8th Cir. 1992) (to obtain appellate review of trial court’s acts or
omissions, party must have made known to trial court action it desired court to take
or objection to court’s action and grounds therefor). Last, we find no abuse of
discretion in the district court’s handling of closing remarks. See Cook v. City of
Bella Villa, 582 F.3d 840, 856-57 (8th Cir. 2009).
Accordingly, we affirm. See 8th Cir. R. 47B.
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