600 S.W.3d 597
Ark.2020Background:
- On June 10, 2010, Elder slipped on wet concrete outside the Dollar General store entrance during rain; no mat was in place.
- Store assistant manager Pam Bryant testified the area was slick, had uneven concrete texture (smooth vs. rough), and she had seen others slip; she reported the problem to store district managers and landlord Rodney Fagan.
- Elder had preexisting neck/back pain and had been treated by chiropractor Eric Carson since 2004; after the fall she treated with a chiropractor, neurologist, neurosurgeon, and orthopedic surgeon and later underwent neck, back, and shoulder surgeries.
- Plaintiff’s expert Jennings performed slip-resistance testing and opined the surface was unsafe; Carson (chiropractor) testified causation for subsequent treatments; defense doctors attributed conditions to degeneration.
- Jury returned $700,000 (reduced to $630,000) and apportioned fault among Dollar General and the landlords; defendants appealed raising challenges to proof of dangerous condition, landlord duty, and admissibility/timeliness of causation testimony.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether wet concrete at entrance was an unreasonably dangerous condition | Elder: uneven, smoother area made surface unreasonably slippery; prior slips and expert testing show danger | Dollar General: wet concrete is obvious risk of rain; no proof of hidden/unreasonable danger | Court: Evidence (prior slips, Jennings’s testing, witness reports, missing mat) was substantial; denial of directed verdict affirmed |
| Whether landlords (lessors) had duty/failed to maintain exterior/comply with lease/ADA | Elder: lease obligated landlords to maintain exterior; they were notified and failed to remedy | Landlords: statute limits landlord liability absent assumed duty; no evidence they failed to maintain or violated ADA | Court: Lease language created a maintenance obligation; plaintiff showed failure to maintain; denial of directed verdict affirmed |
| Whether chiropractor Carson was qualified to give causation opinions about later medical/surgical treatment | Elder: Carson’s training and long treatment of Elder qualified him to opine on causation and need for later care | Defendants: Carson lacked surgical/medical specialist training; Hardy limits chiropractors’ testimony outside scope; testimony was improper | Court: Voir dire established sufficient foundation (training, experience, familiarity with Elder pre/post-fall); court did not abuse discretion admitting Carson’s causation testimony |
| Whether Elder’s own testimony about causal necessity of later treatments was inadmissible as too remote | Elder: her testimony and bills show treatments tied to fall | Defendants: many treatments occurred long after fall; expert testimony required for causal link | Held: Elder’s causation testimony alone was insufficient, but admission was harmless because Carson’s admissible expert testimony provided the causal link |
Key Cases Cited
- Crawford Cty. v. Jones, 365 Ark. 585 (Ark. 2006) (standard of review for directed verdict/substantial-evidence review)
- Nat’l Bank of Ark. v. River Crossing Partners, LLC, 2011 Ark. 475, 385 S.W.3d 754 (Ark. 2011) (view evidence in light most favorable to prevailing party on directed verdict review)
- Dye v. Wal-Mart Stores, Inc., 300 Ark. 197 (Ark. 1989) (landowner duty to invitees to maintain reasonably safe premises)
- Jenkins v. Hestand’s Grocery, 320 Ark. 485 (Ark. 1995) (distinguishing obvious hazards from hidden, owner-known dangers)
- Ethyl Corp. v. Johnson, 345 Ark. 476 (Ark. 2001) (duty to warn applies to hidden dangers not observable by invitees)
- Kuykendall v. Newgent, 255 Ark. 945 (Ark. 1974) (no duty for known or obvious dangers)
- Hardy v. Bates, 291 Ark. 606 (Ark. 1987) (limits on chiropractor expert testimony absent foundation as to scope)
- Bell v. Stafford, 284 Ark. 196 (Ark. 1984) (nonexpert plaintiff can sometimes lay foundation for medical-expense evidence; distinction between reasonableness and necessity)
- Avery v. Ward, 326 Ark. 829 (Ark. 1996) (explaining when injured party’s testimony suffices to show necessity vs. when expert proof is normally required)
- Brumley v. Naples, 320 Ark. 310 (Ark. 1995) (expert qualification test: knowledge beyond ordinary persons)