*1 CLARK Ronnie BARKER Charles 00-424 Arkansas Court of
Supreme 30, 2000 delivered November Opinion *2 Childs, Callis L. for appellant. and Doralee Idleman Chandler
Matthews, & Sanders Sayes, by: Sanders,for Gene appellee. Roy Barker DONALD L. Ronnie Appellant Justice. Corbin, both this court for
and
Charles Clark
petition
Appellee
a 4-2 decision
the Arkansas Court
review from
Appeals.
Clark,
the court
Ark.
The record reflects that on evening July flew off of truck’s camper two-by-four piece plexiglass Appellee’s vehicle, and shell and struck windshield Appellant’s breaking of the vehicle. Both to the side of damaging body parties pulled road, what had where told Appellant Appellee happened. and stated he did not denied that owning any Appellee plexiglass, on of his know how the came to rest truck’s plexiglass top that next to shell. he lived off right Appellee explained highway, a and lumber and that it was that the station gas yard, possible had fallen off of a truck and had then been tossed passing accident, of his truck. Police to the scene of the top responded with a driver’s and Officer Screeton Texas Appellee presented license. No traffic citations were issued. left Appellee ultimately of the accident with the scene piece plexiglass. a claim successfully
Appellant pursued against court, $1,738.82 and was awarded in dam- municipal Appellee court, that to the circuit and a decision jury ages. Appellee appealed trial, trial was held on 1999. Prior to the February Appellant he be of certain information that believed to sought discovery included evidence. This information impeachment Appellee’s addresses for the last fifteen disclosure of moving years; any violations of for the last fifteen information years; Appellee’s related to vehicular for the last fifteen insurance years. Appellee’s all of this information was relevant for his that argued Appellant of cross-examination Appellee. Appellant pointed preparation had been out that Texas license thirteen Appellee’s suspended years after he received four tickets in one year. ago, speeding Appellant that the information about violations was contended any moving it could that had a motive for relevant because lying prove Appellee his The trial to court regarding ownership plexiglass. police ordered with information Appellee provide Appellant regard- his addressesfor the last fifteen and also ordered ing years, Appellee information about violations that disclose involved any moving or failure to secure a load. The trial court overloading denied remaining Appellant’s request. trial,
At to elicit Appellant attempted testimony regarding that showed that Texas driver’slicense computer printout Appellee’s number differed from the number included in the incident police Officer report. Appellant argued Screeton Appellee presented with a fraudulent driver’s license. The trial court sustained Appel- lee’s to the introduction of the hearsay objection printout. Appel- lant also instruction on the sought jury theory ipsa loquitur. instruction, The trial court denied the case ruling was a action. The returned a verdict in simple negligence favor then the trial court’s order Appellee. Appellant appealed limiting and its order the res discovery instruction. The court refusing ipsa issues, affirmed on the appeals but evidentiary discovery *4 reversed and remanded for a new trial on the issue of res ipsa We affirm the trial court’s loquitur. rulings.
I. Issues Evidentiary For his first on point trial appeal, Appellant argues court abused its discretion when it denied his for request discovery evidence. impeachment that the information Appellant argues mind, was relevant and went to state sought credibil Appellee’s bias, motive, and intent for ity, fraudulent driver’s giving license. that had a Specifically, Appellant inter alleged Appellee pecuniary est in an insurance claim avoiding filing him. We against decline to address the because pecuniary-interest argument Appel lant failed to obtain a on that issue. The record ruling demonstrates that the trial court denied on simply Appellant’s discovery request that the information was irrelevant. It ground is well sought 12 obtain from the trial is a
settled that
failure to
court
ruling
bar to our consideration of
issue
SeeRoss
appeal.
procedural
Inc.,
74,
Inc. v. Freedom
340
Turning
relevancy,
defines relevant evidence
“evidence
401
as
having any tendency
make the existence of
fact that is of
to the deter
any
consequence
of the action more
or less
than it
mination
would
probable
probable
be without the evidence.”
court has held that
trial court’s
This
of evidence are
entitled
findings regarding relevancy
great
not be
an
and will
reversed absent
abuse of discretion in this
weight,
Smith,
81,
matter. TravelersIns. Co. v.
338 Ark.
S.W.2d
Arthur v.
337 Ark.
Appellant argues Officer Screeton from about a preclude testifying computer that showed Texas driver’s license number dif printout Appellee’s fered from the number included in the incident police report. trial court ruled that such amounted to inadmissable testimony evidence, evidence. The was not offered into hearsay printout the officer asked to about the was not the testify printout person who the information. have held that a We trial court is compiled accorded wide discretion in and will not be evidentiary rulings, reversed on such absent a manifest abuse discretion. See rulings State, Kail v. S.W.3d we (2000). Accordingly, cannot the trial court abused its discretion. say
13 II. Res Ipsa Loquitur his second For contends that the point appeal, Appellant court erred in to submit a trial instruction on refusing jury instruction was ipsa loquitur. following theory proffered by Appellant:
In addition to the I rules of law have stated with just respect care and there are ordinary situations in which a negligence jury to, but is not an draw inference of may, required from the manner in which the occurred. alleged property damage situation,
Ronnie Barker asserts that this case involves such a therefore he has the burden of each of the two essen- proving tial propositions:
First: That the was attributable alleged property damage to the off of the truck plexiglass coming shell which camper under was the exclusive control of Charles Clark. events,
Second: That in the normal course of no prop- erty would have occurred if damage Charles Clark had used care ordinary while the on the truck shell under his exclusive control. If find that you each of these two has been propositions Barker, by Ronnie then proved are you but not permitted, to infer required, that Charles Clark was negligent.
A
is
entitled to
instruction
party
when it is a
correct statement of the law and there is some basis in the evidence
125,
of the instruction.
support
giving
337 Ark.
Zearley,
67;
666,
S.W.2d
Coca-Cola
Co. v.
328 Ark.
Bottling
Priddy,
Holder,
S.W.2d
Parker v.
(1997);
315 Ark.
In res doctrine of this court has describing ipsa loquitur, stated:
The doctrine of res was in the ipsa assist loquitur developed where the of an negligence cause unusual proof happening connected with some in exclusive instrumentality possession and control of the defendant could not be readily by established The was that since the was in the plaintiff. theory instrumentality the defendant, that the defendant be possession justice required to offer an of the event or be burdened compelled explanation awith presumption negligence. Webster, 826, 829, 345,
Reecev.
221 Ark.
256 S.W.2d
347 (1953).
This
is limited
where
to situations
the defendant’s
presumption
has been
See Coca-Cola
Co.
substantially proven.
Bottling
Hicks,
fact, there,
215 Ark.
This court has held that it will not
the doctrine of
apply
causes,
res
when all other
such as the con
responsible
duct of the
or third
are not
eliminated.
persons,
sufficiently
Parker,
Hicks,
Gann v.
(1993);
words,
Finally, unpersuaded by Appellant’s that the element of exclusive control is not essential to this doctrine. reliance this court’s decision in Appellant’s Stalter v. Coca-Cola Ark., Co. 669 S.W.2d Bottling (1984), his contention is He support cites Stalter for the misleading. pro that the control position is not requirement always equivalent case, however, exclusive control. At issue in that was the negligence In defendants. that court multiple this noted that when opinion, defendants, are there no one defendant will multiple maintain control, exclusive but that fact does not a preclude theory ipsa Based on a review of loquitur. this court’s treatment of the prior doctrine of res it that the trial court ipsa loquitur, appears correctly denied Appellant’s instruction. court,
Because we affirm the of the trial it is rulings not for us to address necessary final Appellant’s trial argument court erred in to allow to amend refusing his Appellant complaint to add a claim for punitive damages.
Affirmed on direct court of reversed. appeal; appeals and dissent. JJ., Thornton, Brown view, Justice, dissenting. my
RAY THORNTON, erroneous, is and I dissent majority opinion respectfully This case turns on the from view. majority’s question the trial to submit to the a whether court erred refusing jury res on the doctrine of ipsa allowing requested loquitur instruction Clark, the to infer on the of Charles owner neghgence part a accident in truck and sheh. The pickup camper operator occurred when a three- sheet question plexiglass, approximately feet four-feet sailed from of Clark’s wide by long, top vehicle, and hit windshield of Barker’s caus appellant following over, and, substantial Both vehicles after a ing damage. puhed police Clark back in his truck and drove investigation, put plexiglass he Clark’s contention that did not know that the away. Accepting was on of his defense that raises fact top camper, for the trial consideration court question jury, appropriate ruled that the doctrine of was not res applicable *8 the instruction to decide whether an the inference of allowing jury be drawn from the circumstances of the accident negligence might was not required. reversed,
The court of that the instruction was appeals finding and should have been and We review the given. proper granted reverses that decision. I dissent on the basis majority respectfully law, instruction awas correct statement of the requested and would have allowed the to decide whether or not to draw jury an inference of from the manner in the which negligence property occurred. damage
n
doctrine
The
of res
is well
in Arkansas
established
and other
It
an
jurisdictions.
of the
represents
application
ordinary
rules
to
in
circumstantial evidence
cases stem-
pertaining
neghgence
from accidents
characteristics. When the
ming
having particular
invoked,
doctrine is
an
inference
be drawn
neghgence may
solely
from the
of the accident
the
that certain
happening
upon
theory
occurrences contain within
a
themselves sufficient
for an infer-
basis
Richardson,
ence of
Evidence
at
neghgence.
(Prince
10th
§
The rule
what
ed).
we know from our
simply recognizes
everyday
accidents,
nature,
that some
their
would ordi-
by
experience:
very
not
without
Id. Res
does not
narily
happen
neghgence.
ipsa loquitur
a
create
in favor of the
but
the
presumption
plaintiff, merely permits
inference of
be drawn
to
from the
neghgence
circumstances
occurrence. The rule has the effect of
a
case of
creating primafacie
sufficient for submission to the
negligence
jury,
jury may
—(cid:127)
—
but is not
draw the
inference. Id.
required
permissible
Once the
in the case sub
established that
judice
defendant owed a
of care to the
that the accident was
duty
plaintiff,
control,
or
caused
under the defendant’s
thing
that,
was one
accident
course of
ordinary
things,
care,
would not have occurred if the defendant had used
proper
that there was an absence of evidence to the
contrary,
showing
circumstances
an inference of
existed for
supporting
negligence
finder,
submission to the fact
which
have
or
might
accepted
the inference in the factual determination
rejected
of whether
defendant was
Ark.,
See Stalter v. Coca-Cola
Co.
negligent.
Bottling
In addition to the rules of law I just have stated with respect care and ordinary there are situations in negligence, which a to, but is not may, draw required an inference of negligence from the manner in which the alleged property damage occurred.
Ronnie Barker asserts that this case involves such a question, and therefore has the burden of each of proving two essential propositions:
First: That the alleged property damage attributable *9 to the shell, off plexiglass of the truck coming camper which under was the exclusive control of Charles Clark. events,
Second: That in the normal course of no prop- would have erty damage occurred if Charles Clark had used care while the ordinary plexiglass on the truck shell camper was under his exclusive control. If find you that each of these two has propositions been Barker, Ronnie proved by then are you but permitted, not to infer required, that Charles Clark was negligent. instruction, this the Upon receiving could consider evi- any Clark, dence presented such as the by assertion that an unknown third have truck, the party might on placed of his plexiglass top
18 the whether Clark’s this evidence determining question weighed were actions negligent. the instruction
The trial court declined to give requested fact it resolved the as to how got because question plexiglass that in favor of Clark’s conjecture of the speculative top it Based this have there. an unknown might placed upon person Clark, the did not declaration trial court pose self-serving by law, that, as a matter of had jury, ruling question failed to show “exclusive control” of the Clark. by my trial court committed reversible error in not view the presenting to the jury. question is a with a much broader than
Exclusive control
concept
scope
that
or the
and does no more than
urged by appellant
majority,
reason,
eliminate, within
all
for the
event
explanations
injurious
Qualls
other than
defendant’s
United StatesElevator
negligence.
Qualls
P. 2d
noted that their
(Okl. 1993).
court
Corp.,
flexible
of the exclusive control
interpretation
requirement
with mainstream American
Id.
W.
consistent
jurisprudence.
(citing
al.,
Keeton et
& Keetonon the Law
at
Prosser
Torts
250-
Page
§
ed.
Courts do not
this
(5th
1984)).
generally apply
requirement
19.7,
stated,
it
Fowler V.
et al. Torts
at
as
is
literally
Harper
§
fixed, mechanical,
Keeton,
Indeed,
rule.
or as a
or
rigid
supra.
Torts, 328D, on res
Restatement (Second)
ipsa loquitur, requires
§
that other
causes be
eliminated
only
reasonably probable
sufficiently
the evidence. Comment
328D adds that: “[ejxclusive
(g)
§
control is
one fact which establishes the
merely
responsibility
defendant;
otherwise,
and if can be established
exclusive control is
not
to a res
case.” Id. We
essential
note further
ipsa loquitur
neither
Restatement nor the other authorities or jurisdictions
limit the broad treatment of “exclusive control” to those cases
defendants, as the
here seeks to do.
involving multiple
majority
that, when used in the res
Other authorities agree
context, the term “control” does not
actual
domin
require
physical
al.,
ion over an
4 Fowler V.
et
The Law Torts
object.
Harper
§
19.7,
control,
ed.
exclusive
at 48
To establish
(2d.
1986).
plain
tiff need not eliminate with
all other
inferences
certainty
possible
*10
causes,
the
but must show
that
likelihood of other causes is
only
“that
the
so reduced
the
lies at
defendant’s
greater probability
the
door.” Id.
to foreclose
Requiring
entirely
possibility
to
other than the defendant
of all causes attributable
would
anyone
Briscoe,
the
“emasculate
doctrine.” AmericanElevator Co. v.
93 Nev.
665,
The rule that the exclusive control and general management the the or must be shown to have appliance thing causing injury in the in been defendant is not all circumstances and is applicable where the the doctrine of res subject exceptions purpose ipsa would otherwise be defeated. 65A loquitur Negligence§ C.J.S. 220.15 It has been held that the matter of control is only one numerous factors to be considered in determining accident, whether or not the doctrine is to a applicable particular and that control the is defendant no an absolute by longer require- ment, that the other factors are provided usually required present, absence of on the chiefly knowledge concern- part injured party the cause of the incident and ing of the defendant superior ability the occurrence. It has also been held that where a explain defendant does not have exclusive control of an which causes but the eliminates other causes than injury, plaintiff reasonably defendant’s exclusive control is not negligence, necessarily prereq- uisite to of the doctrine. Id. A application defendant’s knowledge exceed, of the incident’s cause often would if not indeed supersede, that of the H. plaintiff. Evidence 2509 at Wigmore, § John ed. (3d. 19 )(“[T]he force ... particular ipsa loquitur], [res as a regarded presumption throwing upon party charged evidence, duty consists the circumstance that producing cause, chief innocent, evidence of the true whether or is culpable accessible to but inaccessible practically to the [the defendant] also See Lambert v. injured person”). Markley, S.W.2d 162 (1973). sum, where the is or to different proof conflicting subject
inferences, some of which are in favor of and others against applicability must be left to the ipsa loquitur, question jury. The trial court’s error came in reliance placing defendant’s upon law, alternatives and as a matter of that determining, exclusive control did not exist. nature and of control degree must be such that the reasonable to the defendant possibilities point an inference that he support was the Id. negligent party. notes, added). As (emphasis this court reviews such majority novo, decisions de and our review of the facts of the case suggests that defendant, the alternative offered explanations some *11 20 in the two hours that his truck was
unknown came person along outside his home and this sheet of unattended placed plexiglass truck, the eviden- the of his is not reasonable to take sufficiently top the from consideration. tiary theory loquitur jury’s ipsa in had “exclusive Whether a defendant at the critical time point control” of an in the res sense often instrumentality fact, threshold, a mixed law and and at the constitutes question Qualls, the is of law for the This calls for the issue one judge. supra. trial court to decide whether the evidence lead reasonable may here, But to reach different conclusions. where the “proof persons to make the element is not so one-sided as control overwhelmingly law, a matter of the to the Id. must go jury.” question First, court, it is the address of the trial appropriate finding affirmed the control is whose majority, instrumentality view, at was the sheet of the issue my instrumentality plexiglass. harm the the was and its which Clark was causing camper cargo, condition, under state maintain in statute to a safe so “as obligated . . not to . other Ark. Code Ann. 27-32- endanger any person.” § 1997), 101 and the cause of accident was “such that the (Supp. would be defendant for connected with any responsible Prosser, it.” Torts 19.7 at 1086 Res James, Harper (quoting § in 37 Cal. L. Rev. 183 Ipsa Loquitur California, (1949)). Liebhardt, cases as in Other have held Forschv. similarly, N.J. where, 68 A. 2d when a (1949), cinder block was Super. to have believed fallen from defendant’s truck and struck plain street, on the tiff the court held that it was a “as to jury question it whether was the defendant’s truck from which the cinder block
fell, and whether the truck was under the causing [plaintiff’s]injury, There, here, sole and control of the defendants.” Id. as management it was the vehicle that was the dangerous causing not and it the vehicle was plaintiff’s injury, falling object, simply which defendant was with the for con charged responsibility if the trolling Certainly, maintaining. instrumentality causing was the truck and its Clark had the damage cargo, responsibility his vehicle and its Even if the carefully operate cargo. asserts, was the as the should instrumentality, majority question been have submitted to the leaves jury. majority opinion open If was not exclusive over the Clark control question: exercising Had the who was? been left for instrumentality, jury, question the fact-finder could then Clark’s contention that some weigh it truck unknown have there while his person might placed However; in his front the accident did for two hours yard. parked front It is had exclu- not his Clark yard. happen undisputed and its once he left his front sive control his cargo yard, *12 to the with the drove traffic. highway, merged fast-moving is no else exercised control There over showing anyone any movement of the to the all contrary, agree plexiglass; and its were set in motion Clark’s exercise of cargo, by camper, control, exclusive control. Without his exercise of exclusive would have been no where near the Under highway. circumstances, these should have been instructed that they had the to decide whether an inference of right negligence might drawn under the be doctrine of res ipsa loquitur. courts, Restatement,
Other
on the
have held that the
relying
evidence of the defendant’s
plaintiff’s
need
be
responsibility
not
irrefutable; rather, “the
need
establish
evi
plaintiff
only
enough
that,
credited,
dence
if
the defendant’s
as the
presents
negligence
Haven,
most
Giles v.
New
plausibleexplanation.”
228 Conn.
City of
441,
[OJnce doctrine, himself within the of the the burden operation of going forward with evidence to the accident is explain cast upon defendant however, .... The burden of shift, does not proof, must her case prove by evi- preponderance dence. the defendant is free to rebut the Accordingly, inference doctrine; nevertheless, provided by even the defendant though comes forward accident, with an of explanation inference of case, does not from remains and is disappear hut the scales to be placed the trier upon weighed of fact with any and all and other evidence. explanations
Giles, supra. to submit the instruc-
The trial court erred in failing requested be reversed and remanded for a tion to the and the case should jury, this I am authorized to state that BROWN new trial on point. Justice dissent. this joins Dissent. Lewis COULTER v. STATE Arkansas
Roger CR 00-281 *13 Court of Arkansas
Supreme delivered November Opinion