*1 STEWART, CATLETT, Inn v. Fred Lee King’s S.G. d/b/a E. Miller Ann and Steaven S.W.2d 90-78 Court Arkansas Supreme delivered February Opinion *2 Munson, Beverly A. Tilley, by: & Rowlett Huckabay, Rowlett, for appellant. and Silas Maxey, E. by: Philip Kaplan Brewer &
Kaplan, Brewer, Jr., Ann Stewart. Fred and Lee for appellees H.
Wilson, Timothy Dudley, & Dudley, by: Corum Engstrom, E. Miller. for Steaven appellee S.G. Catlett Corbin, L. Justice. Appellant, Donald d/b/a Inn, verdict in of its motion for directed the denial
King’s appeals to damages appellees which resulted in an award of jury a trial Stewart, We and Steaven E. Miller. find Lee Ann Fred no and affirm. error that occurred shooting February action arose out of a King’s Searcy, the Inn in Arkansas. on the of premises Fritts, was on-duty Erma Fritts who an
Merle
the husband of
a
following
the
shot the
domestic
of
employee
appellant,
appellees
against
suit
with his wife.
filed
Appellees
dispute
of care to act
claiming
duty
had a
appellant
appellant
that duty
situation and that
breached
reasonably
appellant
there
vicariously through
argued
his employees. Appellant
or,
alternative, the
duty
no
to
in the
owed
duty
appellees
receiving
After
satisfied
the actions taken
employees.
care,
returned
duty
jury
of
relating
ordinary
instructions
an
awarding damages
verdict
to appellees.
assignment of error in this appeal
makes but one
Appellant
directed
is
its motion for
grant
the trial court’s failure
is
Because this case
verdict. That is the sole issue before us.
state what
it is
confusing,
equally important
somewhat
perhaps
challenge
does not
assign
does not
error. Appellant
appellant
of care.
jury
regarding
duty
certain
instructions
giving
however,
Because,
makes
concept
peculiar
case,
in this
some
appearance
feel it
relate
important
events that occurred at trial. After an
objection by appellant
care,
giving jury
relating
instructions
to a
the trial
judge made his determination
that an
of care
ordinary
of law
here,
was owed in this cáse. Because there was indeed a duty owed
the trial judge was correct in
the motion for directed
denying
verdict and then
presenting
case
its determina
jury
tion of the various factual elements. The
language Adams v.
1040,
“Under system our of it is jurisprudence, the province of the jury to pass the facts. It is not upon their only privilege but their right to of of judge the the sufficiency witnesses, evidence. The of the credibility weight the of their and its testimony, tendency, are matters peculiarly within the province of the If is jury. there any substantial it evidence is the of the court to submit the to matter the jury.”
Pitts,
That is what occurred in this case. judge The made a determination of law that owed appellant an appellees ordinary care to act reasonably under the judge circumstances. The proceeded to instruct the jury on remaining the factual elements of negligence, and jury the its Thus, rendered verdict accordingly. the task before us in this case to record, is review the as it is presented to us the by parties and described the preceding and if paragraph, determine is there sufficient evidence to support the jury’s verdict.
An of a appeal denial a motion for a directed verdict is considered a challenge the of the sufficiency evidence. Our standard of review this situation is high indeed. We quite view all the evidence in the light most favorable appellees, if there any is verdict, evidence sufficient to warrant the affirm First Commercial direct a verdict. refusal to trial court’s Kremer,
Bank, Ark. S.W.2d N.A. are not disputed case the facts Generally, is disputed the facts that Rather, is interpretation it parties. at trial presented facts and all the evidence of the here. A review reveals that there favorably appellees most as viewed we affirm Accordingly, verdict. support evidence to sufficient verdict. a directed grant refusal to the trial court’s were and Erma Fritts that Merle evidence reveals attack disabled a heart became 1983. Merle later married in Thereafter, drink he began surgery. back subsequent Erma, drinking he was while he was According to heavily. occasion, he in her face threw beer hitting her. On one continually her, home neighbor’s run to a forcing her to verbally abused occasion, Merle another gun. outside with On while he roamed medical had seek with such force that she choked Erma treatment. twenty Inn at about King’s at the
Merle Fritts appeared He had a shooting. day before 7:00 a.m. on minutes Blackshire, desk who was on Nancy conversation with at 7:00 a.m. Ms. to relieve her clerk. Erma was scheduled breath. on Merle’s liquor she could smell Blackshire testified that Merle Blackshire that Erma told Ms. morning, Prior *4 he was of him when and that she was afraid heavily drank divorce parties’ was aware of the Ms. Blackshire also drinking. action. Inn at King’s approximately
Erma arrived at work at the to be drunk or that She that Merle appeared 6:50 a.m. observed she was fearful until with him. She said something wrong hair of her head he her going grab Merle indicated was said he had a wild appearance her out of the motel. She drag to blow her head off. He also threatened when he made this threat. Throckmorton, manager then asked Dub She testified that she life-long friend of and a lobby the restaurant next to the motel to him. She Merle’s, and to talk to invite Merle in coffee the phone in back and used that she could have “eased the testified about that.” nothing but I didn’t think obviously angry saw that Merle Throckmorton a that Merle was from experience He knew previous intoxicated. drinking. he been He said Erma asked when had troublemaker did she thought call the but he not because he him to police, off, head he talked After Merle threatened blow Erma’s should. thought Each time he he with Merle for about minutes. twenty down, remark interject Erma would had Merle calmed Merle, more again anger causing vulgar would him become and abusive. a.m., about
At 7:20 after Throckmorton’s to calm attempts restaurant, Merle, truck, Merle his got shotgun left from and returned to the motel. Throckmorton observed Merle’s movements and Fred was drinking asked who appellee restaurant, coffee in him Merle. help Stewart stop agreed and gave Throckmorton the telephone number of the police department. Merle entered the motel lobby and began shooting, Fred severely injuring Stewart and Steaven Miller. Throckmorton called the who police arrested Merle shortly after their arrival.
Twelve reasonable jurors, who lived the community where occurred, the shooting acting court, under the instructions reached the reasonable conclusion that Erma did Fritts not meet her exercise care ordinary to prevent the harm from occurring, a harm that in judgment their a reasonable person should or could have foreseen. if there
Generally,
any
evidence,
is
conflict in the
find the evidence not
but is in such a
dispute
state that fair-
minded
might
people
conclusions,
have different
then a jury
question is presented, and a directed verdict will be overturned.
Smith,
Moore Ford Co.
340,
It follows true; that the reverse is also if there is evidence about which fair-minded conclusions, make people might different then a jury question is presented and denial of motion for directed will verdict be affirmed. When applying the law out set above to case, aforementioned factual situation in this we are unable say there is no evidence on appellant’s part to *5 the support jury’s that, verdict. we hold Accordingly, based on the presented evidence and instructions given to the jury, there was sufficient evidence to the verdict for support We appellees. therefore affirm the trial denial of judge’s motion appellant’s for
642 verdict.
directed OF NEGLIGENCE
ANALYSIS
owed to the
if any, appellant
of what duty,
The question
Adams,
v.
212
as
of Ford
early
as
the case
is answered
appellees
we
that a
458,
recognized
where
(1947),
206 S.W.2d
Ark.
it
but that
is
guests,
of the
of its
safety
an insurer
hotel is not
protection
for the
taking
all precautions
the
charged
duty
with
care would
ordinary
which
prudence
reasonable
guests
of its
the
There,
a matter
law
established that as
suggest.
the
care to
ordinary
appellees.
owed a
hotel
appellant
case,
it is clear
owed appellees
of this
appellant
Given
facts
ordinary,
care.
were
factual elements
remaining
of the
determination
v.
Stacks Arkansas Power
jury.
within the
of the
See
province
136,
Keck v.
Co.,
(1989);
771 S.W.2d
Ark.
Light
294, 652
219 Ark.
S.W.2d
Employment Agency,
American
may be
foreseeability
ques
of causation and
(1983), (questions
Center, 233 Ark.
v. El Dorado
fact);
Sports
tions of
Linxwiler
satisfac
191,
(1961), (the determination
FIREMAN’S RULE the argument, argues Within their “fire appellant rule” This man’s is Stewart. rule applicable appellee merely fighters enter in police holds fire officers who premises licensees, the execution of their official duties do so under a legal usually conferred under circum privilege authority, Torts, stances of Prosser the emergency. and Keeton on Law of (5th 1984). 429-431 ed. We have not pp. rule adopted § contrast, in Arkansas. Fred entered Inn on King’s February 9 as citizen and of private business customer restaurant, coffee, for the of drinking purpose reading maga zine, friends, and meeting as he was to doing accustomed several times each week. Mr. Although Stewart was a constable Arkansas, Kensett, at the city injuries, time his his official authority did responsibilities not extend the limits beyond that township. Each
(a) constable shall be a conservator peace riots, in his and shall all township suppress affrays, assemblies, fights, and unlawful and shall keep peace and cause offenders to be arrested and dealt with according to law. If
(b) offense any cognizable before a justice peace in his township is committed his presence, constable shall arrest the .... immediately offender Ark. Code Ann. 16-19-301 §
Appellees contend that Fred Stewart had no legal authority duty to arrest Fritts, and restrain Merle and his attempt to intercede when Fritts returned to the motel with a firearm was concerns, motivated entirely by humanitarian as the court properly instructed the We jury. agree.
Affirmed. Brown, JJ.,
Newbern dissent. Justice, result majority Brown, dissenting. L. Robert of care on Erma It finds a in several respects. troublesome when Erma testified to the restaurant patrons, owed Fritts’ part *7 than would hurt other anyone Merle Fritts dreamed” she “never who officer owed to include police It herself. expands And, the effect of this lastly, in an official acting capacity. was to eliminate employees well to force employers be may decision will Employers from their employment. spouses with problem for spousal employees screen begin potential to certainly controversy. I have added although by majority, facts are set out Erma and behavior toward has a of violent history
to them. Merle occasion he toward her. On one abusive verbally physical was and names,” her “a bunch of in Erma’s face and called threw a beer that while trailer. She testified refuge neighbor’s took and she trailer, outside “marching Merle was neighbor’s was in her she bad, time, he me “real she said choked gun.” with a Another me the doctor.” On still another to take to my neighbors so I had down on dance floor. She admitted he her occasion pushed was where she was concerned. dangerous her husband 7,1986, against Erma filed for divorce February On Friday, Merle, restraining that same date. issued a order on and the court Merle, however, together. The follow- the night Erma and spent 8,1986, Erma and a female friend Saturday, February ing night, clubs, was be. likely those where Merle avoiding visited several 8,1986, morning was the morning, Sunday, February The next the shooting. job arrived at her morning, 6:50 a.m. that Erma
At about her, and she at Merle was for waiting front desk clerk the motel. something was was it that he drunk or observed that “appeared her she was with Merle first told wrong “pretty him.” some her been “out with morning,” having but then accused of the motel and threatened her out night pull men” the before the hair of the head.” “by lobby adjoining went the motel and into
Erma across Throckmorton, leasing who was from Dub get restaurant to help owner, Catlett. S.G. the restaurant from motel appellant police, she him to “call the According to Throckmorton asked Throckmorton, her.” She also asked threatening that Merle Merle’s, go to the her husband to was a friend of to induce who cause me going coffee I’m afraid he’s “because restaurant intervened, Merle became When Throckmorton trouble here.” take enough “You’re not me belligerent, declaring, big said, see her. I’m going He looked Erma and “You at anywhere.” statement, however, Erma to kill her.” This did “upset” had told me before he to kill me.” going because “he Nevertheless, to her she according testimony, suggested Throckmorton that he should the law on him.” “call perhaps minutes, and Erma talked to Merle for twenty Throckmorton Erma with him to leave. This made him madder. pleaded only succeed, Finally, they appeared Merle left the motel. Other adjoining witnesses in the restaurant testified that during the 20 minutes so of Merle used wrangling, other abusive and language. Fred profane Appellee consta- *8 ble for White and a County regular customer at the restaurant was having who his coffee usual that testified morning, that Merle finger said, his pointed at Erma and “You know I mean what I I’ll blow say. f-head off.” your remark, After making Stewart said Merle “turned and walked off.” Stewart did take said, the comment He “I seriously. a thought they had little problem.”
Appellee Steaven Miller also heard the threatening lan- guage about blowing Erma’s head off and chose ignore it.
Throckmorton and Erma watched from the restaurant window as Merle walked to his truck. Throckmorton thought Merle appeared calm as he leaving. Once he reached his truck, door, though, Merle opened shotgun, removed a and began walking back toward the restaurant. at Throckmorton point called on Stewart appellee for help. Stewart then described what happened: time,
At that if I right, recall Dub [Throckmorton] said, was on the phone. I “call the police,” gave him the number, and he came me by over and I was taking my gun boot, out my said, of said, and he “Can I you help?” And “I’ll We try.” watched the man walk here and I went out in the lobby past gates here these to stand at the corner right here to him got before he into the stop restaurant . . . . I stood here. I watched this man come in here. When said, me, “Police I four or five feet from got about
he I I knew was officer, thing the next gun.” And drop your . . . a noise. banging in head like loud hearing my a noise Arkansas, in Stewart was a enforcement officer As law to act He that he felt a firearm. testified carry authorized to that “if further testified violence. He officer to prevent as police are to have going anywhere you felony progress see you he was He understood “somewhat” action.” take some did so. voluntarily a risk and undertaking Duty Owed any analysis law is clear that in Our case following questions: answer the should duty, any, owe to Stewart and if did Catlett 1. What Miller?
2. Was that breached? foreseen that such reasonably Catlett have 3. Could injury suffered Stewart and a breach would cause Miller? cause the injury Did act of Catlett negligent
4. of the injury? it a factor the cause substantial Inc., 279 Ark. Employment Agency, Keck American is owed said that “what S.W.2d 2 In Keck we further Ark. at law never one for the jury.” always question Torts, 4; Prosser, Law 45. citing S.W.2d at W. § however, causation, be ones Questions may foreseeability fact, Id. Keck we found an on the case. In depending *9 no on of its making for check one negligent employment agency who em- (Joiner) raped potential customers abducted said, agency “If the Mrs. Keck. In that case ployee, analyzing Joiner, Keck to referring could not foreseen risk in Mrs. any have on a cannot be negligent predicted it was not because at 652 to the unforeseen.” Ark. anticipate failure at S.W.2d 5. with unforeseen and the dealing
Here we are though it (And the unforeseen. against restaurant protect patrons was it should be noted that restaurant argued appeal, from the motel legal entity is a separate leased Throckmorton Miller Catlett.) did not to Stewart and owned Erma owe husband, her no inkling them when she had that against to protect way in harm’s until it too late. were they argued is not a case where defendant that a This and, was not foreseen there should particular injury accordingly, be liability. Bergetz no See Ark. S.W.2d Repka, Rather, one, is a case no including it where Erma and Throckmorton, the general potential foresaw injury patrons of the motel or restaurant which resulted from Merle’s presence.
Erma’s with Merle that be history suggested never he might danger other than herself. She asked persons about trial, at so much repeatedly so in fact that it raised an objection from counsel. In one exchange she said:
Q. You knew also at that time at your place others, had employment you some special responsibility didn’t you, to those who were doing there business? Sir,
A. I never dreamed of him hurting anybody else so, therefore, I didn’t I because never thought about him being, getting else. anybody
Q. so you never even Okay, thought about that? A. I sure didn’t. all of
And at trial bore testimony her out. She obviously foresaw danger others, no could, but abe arguably, subjective assessment. What confirms the of the objectivity assessment, however, is the friend, fact that Merle’s Dub Throckmorton, who knew him well and who spent twenty minutes with him before immediately shooting, did danger not foresee Otherwise, to third parties. And, he would have called police. — finally, neither of the appellees had they overheard — Merle’s abusive talk to Erma foresaw a problem. Under circumstances it is difficult to fathom how her personal experi- ence with Merle fostered a to restaurant when she patrons never anticipated when, he would do such thing according testified, who everyone he had never acted toward violently *10 other parties before. Duty
Breach of Moreover, to assuming duty patrons Erma owed restaurant, to that satisfy duty what more could she have done friend, Throckmorton, to did? She went Merle’s than what she did call the herself police he She police. and asked that call was watch- when an abusive husband but is understandable that give Throckmorton to Merle move. She also asked her ing every And she him to leave the get premises. coffee and try some minutes, leave for 20 placing with Merle to personally pleaded in the She embarrassing process. in a position herself fearful under have been reasonably expected did could everything standard. objective any
Duty Owed Police Officer tragic shooting bravery was What precipitated duty his own admission Stewart felt act Stewart. appellee By and was called on act as law enforcement officer to some extent that he Throckmorton. He understood capacity by to do was himself at risk but chose so. With voluntarily placing left into the motel lobby this in mind he the restaurant and went “Police he Merle with drawn and said: gun where confronted — His actions were laudable your gun.” completely officer drop and commendable. defense. He
Catlett took assert a Fireman’s Rule steps first a directed verdict at the conclusion appellees’ asked for drawing himself case on the basis that his weapon placing a law voluntarily Stewart was enforce- path, acting Merle’s officer, motion ment and no was therefore owed him. The close of trial but also was denied. Catlett’s motion renewed at to one of objected appellees’ requested denied. Catlett further law acting basis as a instructions that Stewart an severed when enforcement officerand “his status as invitee was he . . .” The was given anyway by assumed his instruction duty. the trial court. Rule, formally has not Fireman’s adopted
Arkansas which, stated, officers who enter public safety renders simply to whom no in their official licensees upon premises capacities owed of the other than a the owner premises intentional, willful, misconduct. Prosser refrain from or wanton
649 61, Torts, 1984). Keaton on Ed. I do not p. (5th suggest & § However, that we the Fireman’s Rule generally adopt today. claim of Catlett is his appellees’ primary against Erma, was knowledgeable about Merle’s employee, dangerous and she failed to call propensities, herself. It seems police inconsistent for one of the an activated appellees, officer on police behalf, who intervened on premises Erma’s to make this claim officer, What we have is negligence. Fred police who Erma, is shot protecting arguing that she was negligent for not calling the herself. This police result is highly illogical. do have a
Innkeepers special with their relationship patrons and owe them a exercise reasonable care. Prosser & 61, Keaton on Torts p. (5th 1984); Ed. Anderson & Co. v. § Diaz, 606, 92 77 Ark. S.W. 861 (1906); McDonald, Lopez v. 436, 193 Cal. Rptr. Cal. 3d ;(1987). 495 But App. where dangers are so highly extraordinary as to be improbable wholly beyond the range of expectability, of the liability should innkeeper Leon, attach. See Jones v. 3 Wash. 478 P.2d App. (1970). Who best would know about the high improbability of what Erma, Merle did other wife, than friend, his and his Throckmorton? High improbability what exactly we have in this case. Under such circumstances no is owed the restau rant Id. patrons.
Moreover, the duty a landowner owes to his invitees is not absolute, and it does not extend to conditions where an unreason- able risk cannot be anticipated. Restatement Torts (Second) 343A, 218; p. Prosser & Keaton § on Torts pp. 425-427 § (5th Ed. 1984). is, too,
There an important public policy consideration here which the majority fails to consider. We are telling employers by this decision that they must examine the lives of private their employees to avoid liability. That an places incredibly heavy burden on restaurant owners who now must make the investiga- tion into potential spousal abuse of their and an employees even heavier burden on the employees themselves who might lose their jobs in the process. Verdict
Motion Directed the close of for directed verdict at Catlett moved Appellant as well. trial close his defense case and at the appellees’ a trial court’s decision reviewing In denied motion. court we motions, give held that must have directed verdict force strongest probative its party prevailing evidence *12 on a exists the jury question whether determining Fulton, 624, 617 294 Ark. 745 S.W.2d Dawson v. issue. See Co., 348, 229 Ark. 314 S.W.2d v. Mo. Pac. Rd. (1988); Harper case Arkansas Court Appeals In (1958). subsequent 696 said, when the evidence only “. . . a directed verdict is proper has verdict for the non- as to require jury is so insubstantial Williams, 15 be aside.” Prudential Ins. Co. v. moving set party 94, 96-97, In (1985). S.W.2d 590 Williams Ark. 689 App. evidence on was whether there substantial focus appeal of cataract sight surgery. loss independently support plaintiffs or not is a of law. question Whether evidence is substantial 257, Co., S.W.2d 736 Findley, Adm’x v. Time Ins. 269 Ark. Williams, on to define court of in went (1980). The appeals, evidence as: substantial
\
.
that is of sufficient force and charac-
. evidence
will,
it
and material
certainty
ter that
with reasonable
It
way
conclusion one
or the other.
compel a
precision,
or
pass beyond suspicion
must force or induce the mind
Evidence,
549,
2760.
Ford
Vol. 4
conjecture.’
page
on
§
has
been defined as ‘evidence
Substantial evidence
also
furnishing
of fact from which
fact
a substantial basis
inferred; and
can
be
the test is
satisfied
reasonably
issue
or which
merely
suspicion
evidence which
creates
gives equal
amounts to no more than a scintilla or which
references.’
to inconsistent
support
592,
97,
Findley,
at
Adm’x
15 Ark.
689 S.W.2d at
App.
quoting
Co.,
257,
(1980)
v. Time Ins.
269 Ark.
However, the term “violent
is not
but
temper”
precise,
one of
We do not
degree.
believe it can be inferred from this
incident that Bird’s
was so violent and
temper
uncontrolla-
ble that it was reasonably foreseeable to the respondents
that he would use
gun
under similar circumstances.
evidence,
There
evidence,
is no
nor inference from
that
respondents had
knowledge
of Bird to
any propensity
use
gun.
There was that ample proof Merle was dangerous as far as Erma was concerned but no that he was proof dangerous others. His shooting appellees wholly Erma unexpected by Throckmorton, who knew him best and who visited with him for twenty minutes before the shooting. There is no of care where the wholly is involved. And unexpected is what occurred. Here the evidence introduced Merle’s prove propen- conjecture the level of does rise above to harm others
sity suspicion. in failing the trial court erred grounds
I would reverse Catlett. The in favor of the appellant direct a verdict not established Catlett simply owed to appellees care this case. the facts of under
Newbern,
J.,
in this dissent.
joins
SMITH SERVICE
MEDLOCK v. FORT
Kathryn
FINANCE CORPORATION