565 S.W.3d 107
Ark. Ct. App.2018Background
- On April 23, 2015, Charles (Bill) Hodge, riding south on US-65, collided with a car driven by Roxanne Garrison as she turned left; Hodge lost his left leg above the knee.
- Hodge sued Garrison (negligence: failure to yield, maintain control, and proper lookout) and her employer Mercy Home Health (vicarious liability); Garrison and Mercy admitted the collision and that she was acting within the scope of employment.
- The jury found Garrison negligent and awarded Bill Hodge roughly $5.21 million (including $1,000,000 for permanency, $1,000,000 for past/future medicals, $3,000,000 for pain and suffering, ~ $103,000 loss of earning capacity, ~ $4,100 lost earnings) and $100,000 to Mary Hodge for loss of consortium.
- Mercy objected at trial to (a) an AMI instruction citing Ark. Code § 27-51-104(b)(8) (inattentive driving), and (b) an instruction on loss of earning capacity; both were given over objection. Mercy also objected to portions of plaintiff’s closing argument but did not preserve all grounds on appeal.
- Posttrial, Mercy moved for JNOV or new trial/remittitur arguing improper jury instructions, improper closing argument, and excessive damages; the circuit court denied relief and Mercy appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether inattentive-driving statutory instruction (AMI Civ. 903 referencing § 27-51-104(b)(8)) was properly given | Hodge: testimony that Garrison did not see or hear the motorcycle supports inattentive-driving instruction | Mercy: no evidence Garrison was inattentive (she denied using phone, smoking, etc.; officer saw no distraction) | Court: instruction proper—some evidence (failing to see what is plain; testimony suggesting impatience) suffices; abuse-of-discretion standard not met |
| Whether loss-of-earning-capacity instruction and award were unsupported/speculative | Hodge: permanent loss of left leg permits submission; impairment of earning capacity may be inferred from injury; post-accident higher wages not dispositive | Mercy: no expert tying disability to lost capacity; Hodge earned more post-accident, so no impairment shown | Court: instruction and award proper—loss of limb supports loss-of-earning-capacity claim; parity of wages is only a factor, not conclusive |
| Whether portions of plaintiff’s closing argument were improper and required a new trial | Hodge: closing argued defendant’s ‘‘I didn’t see it’’ defense is unacceptable and would endanger public safety (attack on defense theory) | Mercy: argument was inflammatory (Golden Rule / "send-a-message"), prejudicial, and warranted mistrial or curative instruction | Court: not preserved—trial objection was Golden-Rule based, but appellate claim was send-a-message; judge did not abuse discretion in handling objection |
| Whether damages (pain/suffering and medicals) were grossly excessive and require remittitur/new trial | Hodge: injuries (amputation), ongoing prosthesis replacements, therapy, and loss of activities support awards; expert testified to substantial future prosthesis costs | Mercy: pain award and $1,000,000 medical award exceed proof and are speculative | Court: awards not excessive—jury discretion respected; medical cost evidence (past ~$379k; future prosthesis and upkeep) supports $1M; $3M pain/suffering supported by severity and impact of permanent amputation |
Key Cases Cited
- Pettus v. McDonald, 36 S.W.3d 745 (Ark. 2001) (instruction standard: correct law and some evidentiary basis required)
- Gross & Janes Co. v. Brooks, 425 S.W.3d 795 (Ark. App. 2012) (distinguishing loss of future wages from loss of earning capacity; impairment inference from nature of injury)
- Bochar v. J.B. Martin Motors, Inc., 97 A.2d 813 (Pa. 1953) (parity of post-accident wages is not conclusive against loss-of-earning-capacity recovery)
- Scott-Burr Stores Corp. v. Foster, 122 S.W.2d 165 (Ark. 1938) (serious injuries like loss of limbs support inference of pain and suffering)
- Bell v. Darwin, 937 S.W.2d 665 (Ark. 1997) (jury-instruction and evidentiary standards)