NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                           ________________

                                 No. 13-1772
                              ________________


                         RANDALL DUCHESNEAU,

                                                   Appellant

                                        v.

                         CORNELL UNIVERSITY;
                       CORNELL GYMNASTICS CLUB;
                             TUMBL TRAK

                              ________________

                  Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                     (D.C. Civil Action No. 2-08-cv-04856)
                  District Judge: Honorable C. Darnell Jones, II
                               ________________

                   Submitted Under Third Circuit LAR 34.1(a)
                                March 6, 2014


             Before: AMBRO, JORDAN, and ROTH, Circuit Judges

                        (Opinion filed: March 13, 2014)

                              ________________

                                  OPINION
                              ________________

AMBRO, Circuit Judge
I.     Background

       Randall Duchesneau, a student at Cornell University and a member of Cornell’s

student-run gymnastics club, was seriously injured while attempting to perform a back

flip on a trampoline-type surface known as a TumblTrak. Duchesneau filed suit in the

Eastern District of Pennsylvania against Cornell, the Cornell Gymnastics Club and the

manufacturer of the TumblTrak, asserting negligence claims against Cornell and the

Cornell Gymnastics Club, and negligence and product liability claims against

TumblTrak.1 Specifically, Duchesneau alleged that he did not know how to use safely a

TumblTrak and that Cornell was negligent because it failed to provide him with

instruction, training, warnings, and supervision. The case proceeded to a jury trial

against Cornell.

       Prior to trial, Duchesneau filed a motion in limine asking the District Court to

exclude, in its entirety, a “Waiver and Assumption of Risk” document (hereinafter, the

“Document”) that he had signed as a condition of using the Cornell gymnasium. Relying

on N.Y. Gen. Oblig. Law § 5-326, which renders releases in certain contexts void against

public policy and thus unenforceable, the District Court partially granted the motion and

prevented Cornell from introducing into evidence or otherwise relying on Duchesneau’s

waiver of liability. However, the District Court ruled that portions of the Document that

were relevant to Cornell’s defense of assumption of the risk could be introduced into

evidence. Those portions ultimately shown to the jury included Duchesneau’s


1
 Duchesneau ultimately dismissed his complaint against the Cornell Gymnastics Club
and reached a settlement with TumblTrak.
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acknowledgment that he had “full knowledge of the nature of the extent of all the dangers

and risks associated with gymnastics including but not limited to … head injuries, and

back injuries.” App. at 2080a.

      When the modified Document was introduced to the jury, defense counsel stated

as follows:

      Judge, this is the first time that we’ve had use of this document. Obviously this
      was prepared at the request of Your Honor. I didn’t know if it was appropriate for
      you to give an instruction to the jury that this is not the actual document but was
      something that you asked counsel to piece together.

App. at 2985a. The District Court judge admonished defense counsel for this statement.

      At trial, Cornell introduced evidence that it was reasonable and customary for

Gymnastics Club members to use the gymnasium, including its TumblTrak, in a non-

coached, non-instructional ‘open gym’ format. The jury unanimously found that Cornell

was not negligent, and a verdict was entered in Cornell’s favor. Duchesneau filed a Post-

Defense Verdict Motion for Mistrial, and a Motion for a New Trial. The District Court

denied both motions and Duchesneau appealed. 2

      Duchesneau argues that the District Court erred in 1) denying his motion in limine

to preclude any reference to the Document, and 2) denying his motion for a new trial

based on defense counsel’s allegedly improper reference to the Document during trial.

II.   Discussion

      A “[d]istrict [c]ourt’s determinations concerning the admissibility of evidence are

reviewed for abuse of discretion.” Forrest v. Beloit Corp., 

, 349 (3d Cir.

2
  The District Court had jurisdiction under 28 U.S.C. § 1332, and we have appellate
jurisdiction under 28 U.S.C. § 1291.
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2005). To the extent an evidentiary issue turns on the interpretation of state law,

however, we exercise plenary review. 

for abuse of discretion a district

court’s denial of a motion for a new trial. Wagner v. Fair Acres Geriatric Ctr., 

, 1017 (3d Cir. 1995).

A.     Motion in Limine

       New York law provides that any agreement that exempts the owner or operator of

a gymnasium “from liability for damages caused by or resulting from the negligence of

the owner . . . shall be deemed to be void as against public policy and wholly

unenforceable.” N.Y. Gen Oblig. Law § 5-326. Here the District Court held that the

“Waiver” component of the Document was unenforceable under § 5-326. However, the

District Court admitted portions of the Document as relevant to Cornell’s argument that

Duchesneau assumed the risk of using the gymnasium.

       Duchesneau responds that the District Court’s ruling was incorrect because § 5-

326 required the exclusion in its entirety of the Document. This misinterprets § 5-326

and the case law applying the statute. While it makes waivers unenforceable to bar suit,

it says nothing about whether waiver documents can be admitted as evidence. New York

case law supports and further clarifies this position. See DiMaria v. Coordinated

Ranches, 

, 445 (N.Y. App. Div. 1988) (noting that § 5-326 “does not

preclude the introduction of such an agreement, as redacted, into evidence . . .”). The

cases on which Duchesneau relies – Brancati v. Bar-U-Farm, Inc., 

(N.Y. App. Div. 1992), and Owen v. R.J.S. Safety Equipment, Inc., 

(N.Y.

App. Div. 1991) – are not on point, as they address only whether certain documents were

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enforceable to bar suit entirely, as opposed to whether relevant portions of those

documents would be admissible evidence in an existing suit. The District Court correctly

ruled that, though the Document was void under § 5-326 and therefore not enforceable as

a complete bar to Duchesneau’s suit, portions of the Document were admissible as

evidence that Duchesneau was warned of the risks associated with gymnastic activity.

B.     Motion for New Trial

       After the jury returned its verdict, Duchesneau moved for a new trial, arguing that

defense counsel’s improper references to the Document had put the issue of waiver

before the jury and influenced the verdict. To grant a new trial, a court must determine

that “the allegedly improper statements or conduct make it ‘reasonably probable’ that the

verdict was influenced by the resulting prejudice.” 

(citation

omitted). Here, even assuming that defense counsel engaged in misconduct, it is not

“reasonably probable” that this misconduct influenced the verdict. In returning its

verdict, the jury stopped after answering “No” to Question 1 (whether Cornell was

negligent) and never reached Question 3 (regarding Duchesneau’s assumption of the

risk). The District Court noted that

       Plaintiff’s perceived issues of disobedience of the Motion in Limine ruling and
       this Court’s directives did not go to the issue of whether or not Defendant was
       negligent. This alleged misconduct did not affect Plaintiff’s substantial rights
       because it did not touch upon the aggrieved issues. Plaintiff speculates that the
       jury, in its unequivocal finding of “no negligence” on the part of Cornell,
       somehow considered the concept of “waiver.” Such speculation is unsupported by
       the record and Plaintiff simply does not meet its burden of proof that would
       require a new 

. Accordingly, the District Court correctly held that “due to the jury’s finding

that defendant Cornell University was not negligent, any error in this case was harmless.”

App. at 15a. Thus the Court did not abuse its discretion in denying Duchesneau’s motion

for a new trial. See Farra v. Stanley-Bostitch, Inc., 

, 1027 (E.D. Pa.

1993) (“A motion for a new trial on issues that a jury did not reach will not be granted.”).

       For these reasons, we affirm.




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