*1 476 shall, conviction, be
provides
persons
bailable by
“[a]ll
before
sureties,
,
offenses,
sufficient
when
except
is evident
capital
proof
or the
This court
presumption great.”
added.)
(Emphasis
empha
sized the difference between
bonds in Larimorev.
pretrial
appeal
State,
167,
339 Ark.
Because in our constitution nothing or the United States Constitution convicted of a guarantees person crime the right Meeks, bail 622, pending appeal, at we therefore hold that Rule 6’s denial of bail to those convicted of certain crimes does not constitute an “excessive bail” in violation of the Amend Eighth Const, 2, ment or Ark. court, art. therefore, 9.2 The trial did not § err when it revoked Smith’s bond. appeal
ETHYL CORPORATION and Albemarle Corporation
Larry and Nancy JOHNSON 00-1378 Court of Supreme Arkansas delivered
Opinion July required.” Const, art. § pertinent part, provides “[e]xcessive bail shall not be *3 P.A., Chisenhall, L. and Mark W. Nestrud & by: Julian, Jim Julian Bell, PA., Firm, Law and Bell by: Ronny appellants. Hodge; J. Firm, Law Donna Robert & by: McHenry, McHenry McHenry Grace; PA., Kinard, Butler, & and L. and Crane by: Connie McHenry, Kinard, Mike for appellees. Donald L. Larry Appellee Justice. Corbin, of a metal trash container fell on his when injured part his was on the of a foot. At the time of injury, and run chemical owned by Appellant Ethyl Corporation plant his Albemarle As a result of its Corporation. subsidiary, Appellant Court, Circuit filed suit in the Ouachita County injury, Johnson his A found caused injury.1 jury negligence alleging Appellants’ $165,851.50. We awarded him in favor of damages there was not substantial evidence negligence conclude that *4 verdict, and we reverse. the support wife, were that and his Nancy, The record reflects the B. Com- truck drivers Kelly over-the-road employed by Jack a.m., their the took around 6:30 On May pany. Johnsons to be loaded with tanker truck to facility Magnolia Appellants’ had been to facility acid. The Appellants’ hydrobromic Johnsons occasion, this was driving times in the On Nancy numerous past. It took truck, of the cab. the bunk the while Larry stayed the tanker that hour to load minutes to an forty-five approximately loaded, drive the truck out of Once Nancy proceeded morning. scales, be that the load could and back to the so the dock loading the their Instead taking ordinary before weighed beginning trip. scales, however, route chose an alternate the Nancy route back to was of consortium. That claim also filed a claim for loss wife, Nancy, Johnson’s in this rejected jury and is not involved the appeal. by the that took truck into the the lot of maintenance parking plant’s intended to amake U-turn in the shop. Nancy lot and parking onto the main back to the scales. proceed While roadway attempt- turn, the realized that the rear wheels of the trailer were ing Nancy to clear a metal trash container that was going situated at the lot, of the to a rack of lines. edge parking adjacent pipe The container is not what is of as a trash ordinarily thought container or It is a three-sided that dumpster. holds two object 2,180 trash bins. The container separate and is weighs pounds i.e., it does not have stationary, wheels or rollers. The two bins that fit inside the container are inside the maintenance until kept shop are then loaded they require emptying. into the metal They container, and the container is truck and picked up by special The container is so emptied. that bottom will designed collapse when it is thus open being trash to fall emptied, allowing out. On the date in decided to question, Larry attempt
move the container out of the truck’s He path. initially attempted the container push into it with his by shoulder. He felt it leaning distance, move a short but not trailer to enough clear. He then went around to the front of the container and on began jerk handle, its like a lifter to lift weight jerks heavy weights. Johnson continued to on the handle until jerk of the container part collapsed and fell on his foot. Appellants’ medical team came to emergency assistance and him to subsequently transported Mag- Johnson’s nolia City Hospital. moved for a directed verdict at Appellants the end of Johnson’s case and at the close of again all the evidence. They argued was not foreseeable and that had no they Johnson’s an occurrence guard against that was not foreseeable. The trial motion, court denied the and the case was submitted to the jury the theories of negligence The was also premises liability. jury fault, instructed on the theory comparative claimed Appellants were caused damages his own proximately negli- Johnson’s The returned a gence. jury verdict in favor of general Johnson. verdict, filed a Following motion for Appellants not- judgment the verdict withstanding (JNOV), that there again arguing insufficient The proof trial court denied foreseeability. the post- *5 motion, trial and this followed. appeal
481 denial of a motion for of review of the Our standard is whether the verdict sub directed verdict is jury’s supported by 203, Ark. Caddo v. 340 9 stantial evidence. City Valley George, the denial of a motion in SNOd 481 (2000). Similarly, reviewing substantial,evidence to will reverse if there is no we only JNOV, is entitled to verdict and the judg moving party support jury’s Strother, 672, Ark. a matter of law. Inc. v. 340 13 ment as Conagra, Substantial evidence is that which (2000). S.W.3d 150 goes beyond a one or and is to conclusion conjecture compel suspicion sufficient 203, 9 It or the other. Caddo 340 Ark. S.W.3d 481. way Valley, rather, fact; this court not this court’s to issues of place try simply reviews the record for substantial evidence jury’s support evidence, Id. In whether there is substantial we verdict. determining and all reasonable inferences view the evidence therefrom arising most favorable to the on whose behalf light party judgment Swaim, 49, entered. State Auto & Cas. Ins. v. 338 Ark. Co. 991 Prop. 174, S.W.2d 555 Union Pac.R.R. Co. v. 330 Ark. 952 (1999); Sharp, S.W.2d 658 (1997). that there was insufficient evidence of
Appellants argue
were not
assert that
Particularly, they
they
negligence.
negligent
because
had no
the unforeseen harm that
they
guard against
suffered.
is defined as the failure to do some
Negligence
do,
that a
careful
would
thing
reasonably
person
doing
do,
that a
careful
would not
under the
something
reasonably
person
Rochelle,
43,
circumstances. New MaumelleHarbor v.
338 Ark.
991
58,
v.
Ark.
S.W.2d 552
Wallace
S.W.2d 712
(1999);
Broyles,
“To constitute
an must be one from which a
act
(1998).
negligence,
an
careful
would foresee such
risk of
person
appreciable
act,
or to
it in a
harm to others as
cause him
to do the
do
67,
more careful manner.” Id. at
at 715
AMI
961 S.W.2d
(citing
3d
is thus a
of action
Civ.
301). Foreseeability
necessary ingredient
Inc.,
Co.,
able
this state. Bensonv. Shuler
negligence
Drilling
101,
Pinson,
482 law that there no
Arkansas has since is recognized long as or duty guard against merely possible, opposed likely proba Burns, ble, 921, In v. harm. St. Louis-San Francisco Co. 186 Ark. Ry. 56 1027 this court observed: (1933), S.W.2d
It is a matter of
observation that
there is some
ordinary
frequently
attendant
the most common and
transac-
danger
upon
ordinary
tions, but the care
such
required
only
provide against
dangers
circumstances,
as
to be foreseen in the
of the attendant
ought
light
and the ideal
will therefore not
what he
“prudent person”
neglect
can foresee as
nor divert his attention to the
probable
anticipation
of events
but will orderhis conduct
barely
the measure
possible,
by
of
what
in the
course events.
appearslikely
ordinary
of
925,
Id. at
Courts are to use the likely term “foreseeable” to mean that harm was not foreseeable but also too to occur to likely justify lines, it without risking added the same when precautions.... Along unforeseeable, courts that harm is mean say they may although case, harm was foreseeable on the facts of the a reasonable actually would not have taken action it because the risk person prevent low, of harm was and harm was so that a reasonable improbable have would not taken person safety precautions. [Footnote omitted.] Dobbs,
1 Dan B. The Law Torts at 336-37 (2001). § *7 Here, the act committed alleged negligent by Appellants was the of metal a trash container at the of a placement edge lot, a to rack. Based on the parking adjacent evidence pipe below, act did not amount to an presented unreasonable Appellants’ risk. It was not that foreseeable an invitee would himself injure by 2,180 to move the attempting own. container on manually his pound under the duty circumstances was to
Appellants’ only
provide
reasonable care to
that
against
harm
in
guard
any
appeared “likely
Burns,
the
course of events.”
Ark. at
ordinary
would left have with no other but to to option attempt move the object his own. Given that he recognized object hazard, a owed potential no to warn him of the Appellants duty harm that occur could if he potential such a move. The attempted to maintain the in a duty safe condition for an reasonably invitee or to warn him the condition to dangerous “applies defects or conditions which are in the nature of hidden dangers, snares, like, and in that traps, pitfalls are known to the they invitor but not known the invitee to and would not be observed by the latter in exercise of care.” v. Hestand’s ordinary Jenkins Grocery, S.W.2d 31 (1995) (quoting Koch, McClure v. 433 S.W.2d 593 (Mo. 1968)). Because App. associated with any was not danger moving hidden heavy object care, and was to readily apparent anyone exercising ordinary Appel lants owed no warn of the duty consequences to move the without assistance. attempting object
Moreover, no whether should it is of significance Appellants their dock that trucks leaving loading foreseen have reasonably back scales. routes to the Contrary would seek alternate plant’s were the issue is not whether negli- Appellants urging, Johnson’s traffic truck create a better getting failing system gent that it is foresee- reasonably Assuming, arguendo, through plant. back to the scales trucks take alternate routes to able that would get in the that trucks U-turn maintenance-shop would attempt lot, that it follow that it is foreseeable does not parking individual truck drivers would 2,180 to move this pound attempt Indeed, without the evidence out of the assistance. object way had assisted the showed employees Appellants’ Johnsons testified that on at in the Nancy obstructions moving past. occasions, she least three had asked prior Appellants’ employees before, and that had similar out her they move containers way done so. sum, were under a In to hold- Appellants *8 this chance of what occurred in actually the remote against
“guard of from would be effect to strike the element foreseeability case an in such a and to the of situation thus impose concept negligence a or business that has trash container absolute any liability” upon Hartsock, 167, its on 236 Ark. similar situated receptacle premises. 170, 117, we hold that there was not 365 S.W.2d 118. Accordingly, evidence below demonstrating substantial Appellants presented their maintain their were or that failed in they duty negligent in a thus and dismiss safe condition. We reverse premises this case. and dissent. JJ., Imber,
Glaze The major- Annabelle Clinton Justice, dissenting. Imber, decided, law, as a of that the Mr. has matter ity injury 1993, 10, the suffered on of Albemarle premises May foreseeable, not Even if the was the was foreseeable. majority injury no Mr. of the that Albemarle had to warn holds Mr. of the on its because danger dumpster potential John- a I a of son the as hazard. believe that recognized dumpster question thus, sent the I must dissent. fact existed that was properly jury; the denial for directed verdict or When we review of a motion trial, most for we must view the evidence in the motion new light the is and favorable to the whom verdict give against sought party value, account all evidence into taking the highest probative it. v. that can be from Inc. reasonable inferences derived Conagra,
485 Strother, 672, 675-76 (2000); 340 Ark. Caddo v. City Valley George, Younts, 95, 101, 340 Ark. Croomv. 323 211 913 (2000); therefore, hand, the S.W.2d 283 In case at we must view the (1996). evidence in the most favorable to Mr. Albemarle. light Johnson,
Furthermore, review we the trial court determine if there is substantial evidence verdict. jury support City of Caddo Substantial is evidence evidence of Valley supra. George, sufficient force and character to a conclusion one or compel way another with reasonable it must force the mind to certainty; pass Union Pac. R.R. Co. v. beyond Ark. conjecture. 330 suspicion Sharp, 658 S.W.2d When there is a conflict in (1997). evidence or when the evidence is such that fair-minded people conclusions, reach different might is and jury presented, question a motion for directed verdict should be denied. Inc. v. Conagra, Strother, for A “in supra. question case jury any presented where there be reasonable difference as to the might opinions of a risk . . . .” foreseeability Keckv.American particular Employment Agency, S.W.2d In this (1983). case, the trial court denied Albemarle’s motions properly verdict, verdict, directed judgment new notwithstanding trial because Mr. evidence from which fair- presented minded reach different conclusions on the persons issue of might therefore, a foreseeability; jury was question presented. The determination that Mr. majority’s Johnson’s not foreseeable as a matter of law views the evidence in improperly most favorable Albemarle. to the light According majority’s “the act opinion today, alleged committed negligent by Appellants was the a metal trash container at the placement of a edge lot, ato rack.” the evidence parking adjacent pipe By viewing *9 the most favorable Mr. court light as this Johnson, required do, it is evident that the act committed alleged negligent by Albemarle was its of a at the placement actually collapsible dumpster of a the of a edge chemical where there driveway plant is constant tanker-truck traffic. The that was question properly submitted to the was whether Albemarle should have foreseen jury the fact that the in its location the dumpster, obstructing partially drive, traffic, so, would the need to move it. If impede creating Albemarle had a exercise care and to warn Mr. duty ordinary of the the The trial court danger posed by dumpster. Johnson this to the because reasonable properly presented question jury differ, trial, minds could the based evidence at as to upon presented whether Albemarle should have foreseen the risk of harm posed by the The evidence Albemarle revealed that dumpster. presented by the maintenance building located adjacent was the dumpster Yet, the evidence by- presented “no thru traffic.” marked an area not visible was “no thru traffic” sign that the revealed Mr. Johnson the entered had already until the truck the truck the driver of not that roadways designated revealed evidence drive. Further barricaded. were ordinarily use on the Albemarle premises trucks to Mr. not restricted. Finally, barricaded were not Roads that were on the Albemarle that the roadways evidence presented Johnson obstructions, driv- truck forcing blocked by were facility frequendy all of In of out of the facility. light in and alternate routes ers to find created as to evidence, of fact was clear that a it is question this a col- risk foreseen the posed by should have Albemarle whether on its a roadway premises. obstructing dumpster partially lapsible the foreseeabil focuses likewise upon The improperly majority Mr. While sustained by the injury of ity particular Johnson. the Albemarle foresee that that it is not necessary acknowledging occurred, an it foresee that particular Wallace, harm, 961 S.W.2d of risk Broyles appreciable “that it was not foreseeable concludes that the 712 (1998), majority move the to manually himself by an invitee would injure attempting of to an 2,180 his own.” It is irrelevant inquiry container on pound to move whether Mr. attempted foreseeability Johnson tried to own, his best buddies if he and five of his container on foreseen the could have a If Albemarle the container as move group. that the and knew out of the roadway move the container need to warn failed to if moved yet break improperly, container could apart that Albemarle could conclude then a of that jury properly danger, that, reason, as a matter I cannot For that agree had been negligent. foreseeable, and law, to Mr. the risk of harm of verdict. the denial of directed would affirm a removing question taken extraordinary step Having then realm of the majority jury, fact from the decision-making irrelevant whole issue of foreseeability to declare the proceeds because, concludes, had no to warn Albemarle duty the majority to the According of the risk dumpster. Mr. posed hazard, a Mr. recognized dumpster majority, hazards. The basis of known to warn invitees has no Albemarle his knowl care to invitees is superior of a business owner’s duty harm of risk of an unreasonable condition of a poses edge v. Hestand’s not know. does not or should which the invitee Jenkins In the case at (1995). Grocery, that the that he was aware hand, dumpster admitted Mr. Johnson that was hazard, obstructing a it was large object because posed *10 However, of his truck. Mr. path testified that he did Johnson not know the would said, fall dumpster Even if it could be apart. law, a matter of that Mr. should have known he could himself injure by moving heavy without we object cannot help, as a matter of say law that he should have known that the container would break when moved. The apart evidence revealed that there were no labels or warning instructions on the container. The container was a And, solid-looking large object. finally, container had a handle. It was not until Mr. on the pulled handle that the on his foot. Whether dumpster collapsed Albemarle had a to warn Mr. of the fact that the could dumpster if the handle is collapse was a pulled of fact question properly submitted to the under the facts jury of this case. For the foregoing reasons, I dissent.
Glaze, J., in this dissent. joins Robert L. PLANT v. Gary WILBUR
Linda Wilbur d/b/a Northwest Arkansas Speedway 00-1116 Court of
Supreme Arkansas delivered Opinion July