*1
26
336,
Yates,
243,
Ark.
fully Benton has not litigated. that this suggested case is such an and we are not that an exception, persuaded should be exception made in this case. we dismiss. Accordingly, Dismissed. STORES,
WAL-MART LONDAGIN, INC. v. Johnny LONDAGIN, Sue and Laura Perkins
00-1083
Supreme Arkansas delivered
Opinion March *4 Davis, by: Clark, PLC, Carithers, Butt & Wright, Constance G.
Clark, for appellant. Mashburn & Taylor, by: for appellees Johnny Timothy Myers, J.
H. and Sue Londagin Londagin. P.L.C., D. & Lewis for Jones, Jones, Lushbaugh, by: appellee Jones Perkins. Laura case pursuant to Ark. Sup. have We this jurisdiction Thornton, Ju i c Ct. R. 1-2 and because (b) (1) (6) Ray e. st us to construe Rule 408 of the Arkansas Rules appeal requires of Evidence as to the of evidence of an effort applies admissibility Wal-Mart to a customer by satisfy complaint during subsequent a third out of recover by litigation party seeking damages arising the same transaction. The trial court ruled that Rule 408 did not evidence, exclusion of the and the awarded require damages.
Wal-Mart this court trial com brings contending appeal evidence, mitted error its motion to exclude this and denying asserts three additional error and We find no points appeal.
affirm. 4, 1996, The relevant faсts are that on October Laura appellee, Perkins, took her truck to the Tire Wal-Mart and Lube Express Bentonville. Ms. Perkins that Wal-Mart the oil in requested change her truck and rotate the tires. When Ms. Perkins her picked up truck, she noticed that the tires had not been rotated. Wal-Mart moved vehicle back inside and rotated the tires. 4, 1996,
Later in the afternoon of October Ms. Perkins was 59 when the left front wheel came off of her traveling Highway truck, line, crossed the center and struck a vehicle owned and his vehicle to operated by appellee, Johnny Londagin, causing wreck, wreck. As a result of the Mr. sustained Londagin injuries. wreck, After Ms. Perkins called Wal-Mart to the acci- report dent. Wal-Mart sent to the scene and Ms. representatives provided Perkins with a rental car to continue her to Oklahoma. planned trip then towed her truck back to their and had it shop all without cost to Ms. Perkins. repaired, 13, 1998, wife,
On January his appellee, Johnny Londagin Sue filed a appellee, Londagin, Wal-Mart. The against complaint for sustained the motor complaint sought damages injuries during vehicle accident on October 1996. The Londagins alleged the accident was caused Wal-Mart’s proximately negligence asserted Wal-Mart failed to rotate Ms. Perkins’s tires properly and failed to nuts on left front wheel of properly lug replace *5 Ms. Perkins’s truck. The fоr complaint sought damages personal sustained Mr. and future medi- injuries by Londagin, including past cal and mental lost expenses, pain anguish, permanent disability, of life. The and loss of also wages, enjoyment complaint sought on behalf for loss of consortium of Mrs. damages Londagin. 11, 1999, the
On amended their com- February Londagins an additional to add Ms. Perkins as defendant. The plaint complaint that Ms. Perkins’s caused Octo- alleged negligence proximately 4, 1996, ber accident because she failed to and to maintain inspect 9, 1999, March control over her vehicle. On Ms. Perkins answered all and filed a complaint, denying allegations negligence, 31, 2000, Wal-Mart. On Wal-Mart against cross-complаint January filed a Ms. Perkins that her separate cross-complaint against alleging caused accident. negligence proximately 8, 2000,
On Wal-Mart filed a motion in February limine exclusion of certain evidence. Wal-Mart requesting to sought exclude “evidence settlement and matters regarding to set- relating tlement.” Wal-Mart wanted to Additionally, “exclude evidence video cameras or lack thereof.” A regarding was held to hearing discuss 14, 2000, Wal-Mart’s and on requests, trial February court denied Wal-Mart’s motion. 15, 2000, On February trial jury was held. After the case-in-chief,
Londagins’s Ms. Perkins was a motion for granted verdict, directed and her case was dismissed. At the conclusion of trial, $125,000 awarded Mr. Londagin damages $10,000 awarded Mrs. It Londagin is from damages. this judg- ment that Wal-Mart four on appeals, raising points appeal. In its first point appeal, that the trial argues court erred when it allowed the to introduce Londagins evidence of Wal- Mart’s actions to Ms. seeking satisfy Perkins’s The complaint. introduced evidence at
Londagins trial that after the immediately accident, Wal-Mart came accident, to the scene employees Perkins, rental car for Ms. provided and towed and Ms. repaired Perkins’s truck. Wal-Mart in a motion in argued liminethat intro- duction of such would be in violation of Rule 408 of the Arkansas Rules of Evidence. The trial court denied Wal-Mart’s motion and allowed the Londagins present аs to the testimony actions taken Wal-Mart after the October 1996 accident.
Rule 408 provides: (1) Evidence of furnish, furnishing, or offering, promising or (2) accepting, or offering, promising a valuable accept, considera- tion in compromising attempting a claim compromise which *6 amount, not admissible to either or validity
was as to disputed of, for, or amount of the claim or any invalidity prove liability statements made in compro- Evidence of conduct or other claim. admissible. This rule does not is likewise not
mise negotiations another purpose, if the evidence is offered for exclusion require witness, of a a conten- negativing bias or prejudice such as proving a criminal undue or an effort to obstruct delay, tiоn of proving or investigation prosecution. 408. SeeElrod v. G & R Construc have Rule
Id. We
strictly applied
tion,
151,
that the mere
mention of an offer
compromise
declare a mis
would be to
error
only remedy
egregious
a
that offers are inadmissible to
We have held
prove party’s
trial).
Alter,
v.
309 Ark.
the
claim.
underlying
Ciba-GeigyCorp.
liability
426,
is based
The rationale for Rule 408
408 is to parties promote complete Mo. Pac. R. R. Co. v. Ark. settlement Ranch, Boys’ negotiations. Sheriffs However, 53, have we (1983). 280 Ark. S.W.2d a blanket admis held that Rule 408 is not against prohibition Edwards v. оf all evidence offers sion concerning compromise.
Stills,
We have further held
335 Ark.
In case before satisfy Ms. Perkins had been customer made by complaint completed his and if actions of before Mr.. Londagin brought complaint, an offer of and Ms. Perkins constituted compromise claim, the of Rule 408 would settlement of a disputed application an offer. exclude evidence of such that there are several
Our of Rule 408 informs us analysis to exclude evidence of elements that must be order present 408: (1) or offers to To invoke Rule compromise. compromise claim; the evidence must be a (2) there must purpose offering claim; for, of, or amount of the (3) be to invalidity liability prove furnished, be valuable consideration must furnished or offered to be furnished, or to be or valuable consideration must be promised offered, or to be in an effort to com- accepted, promised accepted claim; the claim (4) must promise attempt compromise *7 be as tо either or amount. See Ark. R. Evid. validity 408. disputed The essential elements to invoke Rule 408 have required protection also been in McCormick’s treatise on evidence. The explained treatise notes: rule, exist,-
to invoke the an actual exclusionary must dispute pref- some and at erably negotiations, least an difference of apparent view between the as to the or amount of parties validity the claim.
An offer to an admitted claimis not pay since there privileged is no claims, policy encouraging compromises which undisputed should be in full. paid Evidence,
McCormick on supra. Our first is whether a claim existed between inquiry Wal-Mart and Ms. Perkins when Wal-Mart came to the accident scene and assisted Ms. trial, Perkins on October 1996. At Ms. Perkins testified that after the accident she immediately Wal- phoned Mart tire and lube center from the scene and was express “really She informed Wal-Mart that upset.” “there’s no we can fix the way truck as it is Ms. Perkins was sitting.” informed that someone from Wal-Mart would come and assist her. Kuntz, a district for Wal-Mart tire and manager lube Jon testified that he with express, Ms. Perkins spoke day
accident. occurred, She described what had and he verified that Wal-Mart had worked on her truck to the accident. He prior informed Ms. Perkins that he would come to the accident scene and then secured a rental car for her. Mr. Kuntz testified Finаlly, that he of the “first participated completion of incident” report form. That form states that it is to be filled out “when there is a customer as well as when injury claim in the field.” After settling evidence, we reviewing conclude that when Ms. Perkins tele Wal-Mart, state, in a phoned disgruntled her wheel alleging had come off of her truck after Wal-Mart had rotated the shortly truck, tires on her and informed accident, Wal-Mart of the she a claim Wal-Mart. expressed against It is clear that the were to introduce Londagins seeking evidence of Wal-Mart’s actions to Wal-Mart’s prove liability, the second
thereby satisfying of our prong analysis. Additionally, that Wal-Mart furnished a showing there was certainly becаuse claim, the her third Perkins to satisfy consideration to Ms. valuable also this case. of Rule 408 is element present whether Ms. for analysis element remaining
The court concluded that the The trial claim was Perkins’s disputed. ever that Wal-Mart did not demonstrate disputed showed that amount. The testimony as to either claim validity it as to her claim. Wal- and notified Perkins called Wal-Mart Ms. her a Perkins’s claim by voluntarily bringing to Ms.
Mart responded
truck,
car,
her truck. Wal-Mart
her
and repairing
rental
towing
truck at no
Ms. Per
Ms. Perkins’s
expense
towed and repaired
kins,
her
her
without
testimony,
request
according
no
that Wal-Mart
be
There is
showing
services
simply
performed.
claim,
rather the evidence
Ms.
but
Perkins’s
supports
disputed
for
assumed
wholly
trial court’s
responsibility
finding
did
established that Wal-Mart
the claim. The testimony
paying
work for
rental car or
Ms. Perkins to
any paper
sign
require
*8
Moreover,
the
of her truck.
Ms.
act to authorize
repair
any
perform
at the
that Mr. Kuntz
scene of the
Perkins testified
apologized
that “Wal-Mart would take care of every
accident and assured her
evidence, we cannot
that the trial court
Based on the
say
thing.”
that there was no
as to either
erred
dispute
validity
finding
claim. We have held that
amount of Ms. Perkins’s
evidentiary
discretion of the trial court and will
are within the sound
rulings
set aside absent an abuse of discretion. Ozark Auto
not be
Transporta
227,
In its second on Wal-Mart contends point appeal, abused its discretion evidence Wal- relating court by admitting existence of a Mart’s videotaping possible capabilities and lube service center on the Ms. from tire day videotape limine, In a truck was motion Wal- Perkins’s pretrial repaired. evidence from the In a on
Mart such jury. hearing sought keep occurred, motion, that no but Wal-Mart argued videotaping was intrо if evidence its videotaping capabilities regarding duced, that a of the work on Ms. infer jury might videotape trial or hidden. The court Perkins’s truck was destroyed, misplaced, denied Wal-Mart’s motion.
On Wal-Mart that the evidence argues appeal, relating its was not relevant to Rule 401 of videotaping capabilities pursuant the Arkansas Rules of Evidence. Wal-Mart contends Specifically, that because it uncontroverted evidence that there was presented accident, area on the of the service of the then videotape day evidence to Wal-Mart’s would any relating videotaping capabilities “ not be relevant. states that Rule 401 ‘relevant evidence’ means evidence to make the existence of fact that is having tendency any to the determination of the action more consequence probable or less than would be without the evidence.” We have probable held that a trial court’s on is entitled to ruling relevancy great and will not be reversed absent an abuse of discretion. weight Arthur v. 337 Ark. 992 S.W.2d Zearley, 67(1999).
The trial court admitted to Wal-Mart’s testimony relating videotaping capabilities of a testimony regarding possibility of the service area on the date of the accident videotape into evidence. The evidence was relevant because the case involved a claim. If there was a negligence videotape alleged negligent act, it would be relevant. if there was a video clearly Alternatively, Wal-Mart, and it was not made available tape evidence would also be relevant. We conclude that the trial court did not abuse its discretion in admitting whether Wal- concerning Mart had and whether there was a videotaping capabilities video of the service area on the tape day act alleged negligent occurred. In its third point appeal, argues
trial court directed a verdict in favor of erroneously Ms. Perkins. In a trial verdict, court’s on a examining motion for ruling directed we view the evidence in the most favorable to the light pаrty against *9 whom the directed verdict is it the sought give highest proba value, tive into account all reasonable inferences taking deducible Cameron, from it. Little Rock v. 320 Ark. City 897 S.W.2d A (1995). motion for directed verdict should be if granted only the evidence so viewed be would so insubstantial as to a require jury verdict for the to be set aside. Id. Evidence is party insubstantial when it is not of sufficient force or character to a conclu compel sion one or the other or if it way does force a conclusion to pass beyond or Id. suspicion conjecture. trial,
At Ms. Perkins’s moved for directed verdict at attorney the close of the case-in-chief. The trial court Londagins’s granted this motion and found: or evidence testimony attention any
I have done best to my pay inaction on the behavior or indicated some sort of negligent that I see none.... I have listened to Quite frankly, Ms. Perkins. part heard that she was nothing indicating and I have testimony this control of her not maintaining proper or that she was speeding vehicle, There been were late or has improper. that responsefs] her could have done other anything that else anybody no evidence had evidence that she should have prior than what no happened, off, that would cause it fell something notice of the wheel before I think do not Nothing.... [customers], her to ahead and go stop. tire like this to start second
have a" behind duty go places work, them on unless has something placed guessing, checking and that something wrong. that there is amiss something notice contends that this was erroneous On ruling appeal, “there submitted from which because was evidence might Perkins,” of fault on the of Ms. well have assessedsome part degree The Wal-Mart considers Ms. Perkins’s testimony citing testimony. states in relevant to establish Ms. Perkins’s negligence part
sufficient that: — then all of a the truck our truck started shaking
And sudden I bad and we heard this and the truck shook. And really bang tire went and-I noticed out of the corner of this my eye that was because I don’t remember hitting wondered whose tire There wasn’t in the road. And I am off anything looking anything. the truck off the road once I
to the side of the road trying get I out that that was tire. When the front end figured my dropped, took off road. just
In whether trial court correctly determining Perkins’s favor we must determine directed verdict Ms. there was substantial evidence to establish Ms. Per
whether defined as: kins’s actions were We have negligent. negligence careful the failure to do which a something reasonably person from a where an ordina- would do. A act'arises situation negligent in the same situation would foresee such an rily prudent person act or at risk of harm to others that he would not least appreciable manner. While a can establish would act in a more careful party evidence, he cannot rely direct or circumstantial negligence by conjecture inferences based on upon speculation. Cameron, this definition citations (internal omitted). supra Applying *10 review, now on we hold that the trial court
to the case properly that Ms. Perkins insufficient evidence that there was determined There was no that issue to so as to submit jury. acted negligently that Ms. Perkins failed to do that established evidence presented would do. careful that a reasonably person something Perkins: was (1) no evidence that Ms. there was Specifically, out; failed to (3) maintain a look failed to (2) proper
speeding; maintain truck; her truck when she control of her (4) operated unsafe; her vehicle to insure it was knew it was failed (5) inspect condition; failed to use care in the in safe or (6) ordinary working evidence showed that as soon as Ms. of her truck. The operation unsafe, realized that her vehicle was she Perkins pulled immediately the road. we hold that the trial court did not off Accordingly, error in that there was no substantial evidence of commit finding Ms. Perkins’s and in a verdict in her favor. negligence, directing
In its last Wal-Mart contends that the appeal, point trial court committed error when it submitted the issue of Mr. future medical
Londagins’s expenses jury. argues that the evidence of Mr. future medical only Londagin’s expenses therefore, was the issue should not have been speсulative, submitted to the have held that future medical We jury. expenses need not be with the same as medical proven specificity past However, Arthur, there be must some expenses. supra.
medical treatment
be
in the
Id.
will
future. We have
necessary
further held that it is not
to calculate
speculation
conjecture
future medical
where
has before it a
expenses
history
medical
that have accrued as of the date of trial. Williamsv.
expenses
Gates,
381,
Ark.
In of these we review the light testimony principles, presented at trial to determine whether there was sufficient evidence to sub- mit this issue to the Dr. Robert Mr. jury. Taylor, Londagin’s physi- cian, testified at trial. He stated that as a result of the October 1996 accident, automobile Mr. tunnel Londagin developed carpal syn- drome in his extremities and suffers from a midline abdomi- upper nal wall which has caused of his anterior some injury weakening abdominal wall. Dr. further testified that he recommends Taylor Mr. anterior abdominal wall. He also surgery stated that Mr. Londagin’s repair would have some discomfort as
Londagin always result of and the would be injury only way repair injury *11 38 to the defect. Dr. that close estimated surgically Taylor surgical $10,000. would cost
procedure approximately Mr. also He an testified. stated that he has Londagin injury abdomen, his stomach or attributed to the October automo- bile accident. He further that testified his causes him injury and that Dr. to correct recommends his “problems” Taylor surgery stomach Mr. also stated as a result that of his injury. Londagin he lower back when he works around his injury, experiences pain farm or himself. Mr. that exerts further stated when he Londagin “lifts,” his noted causes him he that if his injury pain. Finally, deteriorates, it, conditions and the doctor he recommends would have his abdominal surgery repair injury. that “the facts of this case fall within argues squarely of the Arkansas Court in Arthur v. ruling Supreme Zearley,
Ark. 992 S.W.2d and that because this case (1999)” is sо similar to then court Arthur the trial erred it submitted when issue of Mr. future medical to the Londagin’s Wal- jury. expenses Arthur, Mart’s In reversed argument we the trial misplaced. supra, court because instructed the on future medical jury expenses when there was “no that Mrs. by any testimony physician Zearley care, will need future medical such as or medica- surgery, therapy, tion.” Id. noted We that “in absence medical proof future, were certain to be in the expenses reasonably required was forced to resort to jury and Id. speculation conjecture.” The facts in Arthur are from the case now distinguishable Arthur, before us. In there was no medical that Mrs. testimony would future Zearley medical require contrаst in the By expenses. case Dr. subjudice, established Taylor’s testimony within reasonable of medical Mr. degree certainty would sur Londagin require in the future to gery his abdominal We conclude that repair injury. there was sufficient evidence which the could consider upon jury the issue of future medical without resorting expenses specula tion or the trial did conjecture. court not err in Accordingly, issue this to the submitting Wal-Mart’s motion for denying a directed verdict.
Affirmed.
CORBIN, J., participating.
Arnold, C.J., dissents. Arnold, I Chief dissenting. disagree “Dub” J e,e, c c court was correct when u u s s W.H. ti ti to introduce evidence of Wal-Mart’s it allowed Londagins Perkins’s I believe the trial Mr. actions seeking satisfy complaint. therefore, I, dissent. erred. must Rule 408 Arkansas
court Evidence, entitled offers Rules “Compromise compro- mise” provides: *12 furnish, or to (1) furnishing, offering,
Evidence of promising or or to a valuable con- (2) offering, promising accepting, accept, sideration in or to a claim attempting compromise compromising amount, to either or is not validity which was as admissi- disputed for, of, ble to or amount of the claim or invalidity prove liability other claim. Evidence of conduct or statements made in com- any likewise not rule is admissible. This does not promise negotiations evidence is exclusion if the offered for another require purpose, witness, such as bias or of a a conten- proving prejudice negativing tion of undue or an a effort to obstruct criminal delay, proving or investigation prosecution. added.)
(Emphasis It was in this case that one hour after undisputed approximately Laura Perkins had her truck serviced at Wal-Mart’s Tire pick-up and Lube the left front tire came off her vehicle as she was Express, Arkansas, down 59 near driving she and Highway Gentry, leaving her three children stranded on the side of the Ms. young highway. Perkins, who was then on her to attend a concert at the way State Tulsa, Oklahoma, Fair in Wal-Mart from immediately telephoned that, the scene on her cellular It was further phone. undisputed thereafter, two Wal-Mart arrived at the scene shortly employees the accident with a rental car for Ms. Perkins and transfеr helped her to the rental car so that she could be on her It belongings way.
was also that made Wal-Mart to have undisputed Ms. arrangements Perkins’ vehicle towed to a and that Wal-Mart to repair shop paid have her truck repaired. would Obviously anticipating Londagins attempt Wal-Mart,
utilize this evidence to on the prove liability part counsel for Wal-Mart moved limine to exclude it. It was Wal- Mart’s contention that this evidence of the of considera furnishing tion in a claim is attempting compromise disputed expressly Ark. R. Evid. 408. In by call of its prohibited responding customer her with by alternative and tow providing transportation vehicle, her furnished a valuable ing repairing clearly cоnsideration to Laura Perkins or com- compromise attempted Rule, above, of a claim. The as noted
promise states that disputed such evidence is “not admissible to for . . . the claim liability prove other claim.” any added.) (Emphasis the Rule the introduction of this evidence
Clearly, precludes with claim Laura Perkins only any have respect might Wal-Mart, but also with to the claim brought against regard and Sue Johnny Wal-Mart in this case. Londagin brought against contend, The and the trial Londagins court apparently agreed, Rule 408 is to this case because there was no inapplicable that the claim was at the time of Wal-Mart’s actions. The disputed Rule does not define the word аnd there are “disputed,” apparently no Arkansas cases wherein this of Rule 408 particular has portion been Ms. Perkins testified at trial that interpreted. she remembers “being when she really upset” Wal-Mart. She recalled telephone Wal-Mart that “there’s no we telling can fix the truck as it way Common sense would dictate sitting.” that when Wal-Mart customer, received this call from its some obviously demanding — kind of action on Wal-Mart’s claim arose at least part, disputed from Wal-Mart’s Evidence of Wal-Mart’s efforts to perspective. that claim compromise loaner car and *13 furnishing towing Ms. Perkins’ truck
repairing
is
the
of con-
pick-up
precisely
type
duct
that Rule 408 is
to
from the
designed
prohibit
jury’s
cоnsideration.
The “First
of Incident”
Report
in
completed by
that,
connection with this accident confirms the fact
at
in
least Wal-
mind,
Mart’s
this was an
of a
attempted compromise
disputed
claim. The incident
indicates at the
that the form
report
is to be
top
filled out “when there is a customer
as well as when
injury
settling
claim in the field.” The form
settlement
specifies
on the
authority
store level of
$1,000.
$250
to
and at the district
up
level of
manager
up
case,
In this
in the blank
for the insertion of the
provided
amount,
settlement
the incident
reflects that the
report
district
authorized a
manager
rental car and
What further evidence
towing.
of a
claim need there be?
disputed
Here,
who,
we have a
words,
call from a customer
in her own
was
with Wal-Mart and
“really upset”
the
telephoned
company
from the side of the
retribution; further,
road
we have
expecting
action taken Wal-Mart in an
by
the
resolve
attempt
controversy
by
rental car and the
furnishing
of the
towing
repair
undis-
that these
Wal-Mart submits
vehicle.
customer’s damaged
the exclu-
have
compelled
more than sufficient
facts were
puted
408. I
to Rule
agree.
of the
sion
pursuant
construed Ark. R.
notes,
has
this Court
strictly
theAs majority
Co.,
Ark.
v. G & R Construction
In Elrod
408 in the
Evid.
past.
that
far as to hold
went so
151,
this Court
In Ferguson Graddy, evidence of decision to exclude a trial court’s this Court affirmed carrier the defendant’s insurance to the made plaintiff payments Ark. R. Evid. 409 and medical expenses. Finding for lost earnings behind the Rule the rationale the Court controlling, explained these words: and in with society keeping the best interest of
... is to humanitarian and benevolent community mores of the hazard that assistance to an injured be hobbled by instincts not injury in a liability personal be taken as an admission person action, great difficulty when even lawyers judges experience on such agreeing questions. 417-18, The same
Id. at at 602. reasoning S.W.2d applies 408, which, Rule intended to Rule like clearly companion claims, or not a claim is claim,” the settlement of whether foster third-party “or other involved. including language any Clearly, by have intended to cover the scenario we the Rule was very presently before us. *14 clear whether conduct on the of a
If it is not entirely
part
or
an admission of
is a true offer of
defendant
compromise
simply
the court to take is .one of
then the
safe
for
only
position
liability,
cites two Connecticut cases in
exclusion of the evidence. Appellant
this
the
of Connecticut has taken
very
whiсh
Court
Appellate
405,
appellant evidence, that is not clear whether a statement
holding “[wjhere is an offer of or an admission . . . and of the compromise liability to and motive declarant is subject speculation conjecture, statement must be excluded.” 717 A.2d at The held 822. court that Mr. statements about medical bills Lupien’s pаying plaintiffs and a claim his “were homeowner’s not making against policy admissions of Rather are more char- clearly acterized as liability. they accurately are
offers of hence not admissible.” Id. compromise case, Inc., Mart, In another v. Connecticut Sokolowski Medi Conn. 587 A.2d a customer App. (1991), brought action for she negligence against drugstore personal injuries alleg- sustained in a edly accident. The defendant slip-and-fall contended that the trial erred court to allowing testify plaintiff store’s assistant had offered to her medical bills. manager pay Specif- accident, the evidence was that two after the ically, days an assistant directed another store her manager she employee “give anything wants, and be no for it” and charge concerning “any [there will] bills that occurred to them and Medi Mart take bring would care of them.”
The Connecticut Court that held the trial court Appellate should have excluded this evidence. that the assistant man- Noting comments were ager’s court nevertheless found that ambiguous, the statements “could have been construed as an offer to settle easily The court compromise.” went to hold it is not “[w]here clear whether the statement is an offer of or an admis- compromise sion of other and the motive of the liability declarant is [or fact] subject the statement must speculation сonjecture, be words, excluded.” 587 at A.2d 1059. In other in order to promote which arise goal settling disputes, from any ambiguity might a defendant’s statements or actions must be resolved on the side of such to be conduct an offer of finding rather than an compromise, admission liability. The same kinds of statements were made very allegedly Kuntz,
Wal-Mart’s Tire and Lube in the Express manager, Jon instant case. Ms. Perkins was allowed to that she an testify signed affidavit that Mr. told Kuntz her stating Wal- worry, Mart would take care of To extent that this Court everything. finds with any Wal-Mart’s intent in ambiguity regard employee’s statements, such then the Rosalesand Sokolowskicasesstand
making for the that all doubt must be resolved in favor of proposition *15 the state- deeming Rule 408 by underlying the policy upholding ments of to be offers compromise. in this case that testified that no witness to note
It is important in this accident. On fault admitted causing Wal-Mart any employee who did hand, testify of the Wal-Mart employees all the other — to service namely, customer policy Wal-Mart’s expressed clearly customers its happy. are necessary keep whatever measures take that, its customer service in of light submits Wal-Mart especially in conduct of Wal-Mart’s the reasonable interpretation only policy, it to be a to resolve what is it was an perceived this case that attempt on Laura Perkins’s out service of performed claim arising disputed truck. pick-up the the counsel’s of It is from questioning Londagins’ apparent trial, to the in and from his statements jury closing
witnesses at intent in these matters the introducing that Londagins’ argument, into evidence was to leave the with the that Wal- impression In his remarks the was liable for closing jury, Mart negligence. stated, the “The reason authorized the attorney they Londagins’ for that.” He later knew that were they responsible they repairs stated, think, the “I ladies and that all evidence will gentlemen, that’s the reason knew were they indicate that they they responsible; vehicle; the that that’s the reasons had towed to took they had it out to Bob that’s the reason towed Morey’s they Supercenter; that’s the reason had it towed to Ron they body shop; ”. . Blackwell . . Evidence,
Rule of the Arkansas Rules which Wal-Mart limine, of its motion in also relied provides support upon be excluded if its value is even relevant may probative unfair confu- outweighed danger prejudice, substantially by Here, issues, or Wal-Mart sion of the misleading jury. clearly references the trial to suffered throughout prejudice repeated with Ms. Perkins. The real issue in to resolve claim its attempts was this case whether Wal-Mart performing was negligent Ms. Perkins’s vehicle. The fact tire rotation on customer, call from stranded at to an distress its agitated responded three on a rural while on her with her sons highway night young Tulsa, Oklahoma, not have been a concert in should attend way admission allowed to be into an of liability. parlayed short, settlement In when the with to Wal-Mart’s proof respect case, in this claim admitted into evidence of Laura Perkins’s was — which underlies Rule that being encourage public policy *16 — the settlement of claims without resort to was litigation seriously thwarted, and, if allowed in this case because a third simply party evidence, to introduce said will attempting further undermine the reasons, of the Rule. For all of these purpose I would reverse the trial court case, on this issue and remand the that it was an holding abuse of discretion for the trial court to allow this evidence in clear I, therefore, violation of Rule 408. dissent. respectfully CORPORATION, YAMAHA MOTOR U.S.A. v. YAMAHA;
RICHARD’S HONDA Yamaha;
North Little Rock
Arkansas Motor Vehicle Commission
00-846
Supreme Arkansas delivered March
Opinion