Unpublished Disposition, 936 F.2d 577 (9th Cir. 1991)

MEMORANDUM^* 

"A defendant is ... entitled to an instruction concerning his or her theory of the case if it is supported by law and has some foundation in the evidence." Gauthier v. AMF, Inc., 788 F.2d 634, 635 (9th Cir.), amended, 805 F.2d 337 (1986). The trial court decision will be upheld absent an abuse of discretion. Under this standard of review, we will not reverse unless we have a definite and firm conviction that the district court made a clear error of judgment in its decision. Davis v. Mason County, 927 F.2d 1473, 1479 (9th Cir. 1991).

In this case, appellant Raytheon Service Company requested a jury instruction on the California tort defense of "reasonable implied assumption of the risk." See Harrold v. Rolling "J" Ranch, 228 Cal. App. 3d 260, 266 Cal. Rptr. 734, rev. granted, 269 Cal. Rptr. 720, 791 P.2d 290 (1990); BAJI 4.31 (7th ed.) (1989 revision). The district court denied this request, stating "I'm not going to [give the requested instruction]. You can argue this because it is the law, but its application to these facts is very, very tenuous."

A review of the evidence at trial supports the district court's view that Gamboa was at best a "sideline volunteer who at the time of the accident had essentially abandoned his involvement in the forklift operation and shifted his attention to stacking his chains on the back of his cab." We find unpersuasive Raytheon's argument that even if Gamboa had withdrawn from his role as a spotter at the time of the accident, he should nevertheless be barred from recovery for assuming the risk in the first instance. Had Gamboa been actively engaged in spotting at the time of the accident, Raytheon might have been entitled to the disputed instruction, but it appears Gamboa was not. Under the circumstances, we cannot say that the refusal of the district court to submit the question of reasonable implied assumption of the risk to the jury was an abuse of discretion.

AFFIRMED.