author: David Newbern, Justice,

text:
    CIBA-GEIGY CORPORATION v. John ALTER
    91-235
    834 S.W.2d 136
    Supreme Court of Arkansas
    Opinion delivered May 26, 1992

      Faegre & Benson, by: Winthrop A. Rockwell and Barber, McCaskill, Amsler, Jones & Fíale, P.A., for appellant.

      McKenna & Cuneo, by: Lawrence Ebner and Wright, Lindsey & Jennings, by: James M. Moody, for amicus curiae National Agricultural Chemicals Ass’n.

      Winston Bryant, Att’y Gen., by: Chad Farris, Chief Deputy Att’y Gen., and Charles L. Moulton, Asst. Att’y Gen., for appellee.
   David Newbern, Justice,

John Alter sustained severe injury to his corn crop allegedly as the result of his use of Dual 8E, a herbicide manufactured by Ciba-Geigy, Inc. Alter sued Ciba-Geigy asserting theories of strict liability, negligence, breach of warranty, misrepresentation, and breach of a settlement contract. The jury returned a general verdict of $100,410.51 in Alter’s favor. Ciba-Geigy argues the Trial Court abused its discretion by refusing to bifurcate the trial, separating the breach of settlement contract claim from the remaining claims. Ciba-Geigy contends the failure to bifurcate resulted in inadmissible evidence of settlement negotiations coming before the jury. We agree and reverse and remand on this point. Other issues which may arise on retrial will also be addressed.

Dual is a herbicide registered with the Environmental Protection Agency (EPA), and it is widely used by farmers to control weeds and grass. The herbicide was advertised as giving farmers longer control over weeds and grass for a lower price than competitive products. It was “the longer lasting grass herbicide.” The advertising materials which were distributed to farmers by Ciba-Geigy also stated, “Crop injury? You don’t have to worry when you use Dual. Gives you peace of mind. That’s worth alot.”

Dual was accompanied by a “label,” consisting of several printed pages, which contained the following language at page five:

Conditions of Sale and Warranty
* * *
CIBA-GEIGY warrants that this product conforms to the chemical description on the label and is reasonably fit for the purposes referred to in the Directions for Use subject to the inherent risks referred to above. CIBA-GEIGY makes no other express or implied warranty of fitness or merchantability or any other express or implied warranty. In no case shall CIBA-GEIGY or the Seller be liable for consequential, special, or indirect damages resulting from the use or handling of this product.
Directions for Use
* * *
FAILURE TO FOLLOW ALL PRECAUTIONS ON THIS LABEL MAY RESULT IN POOR WEED CONTROL, CROP INJURY, OR ILLEGAL RESIDUES.

The following warning is found in the label in a box at page six:

Precaution: Injury may occur following the use of Dual 8E under abnormally high soil moisture conditions during early development of the crop.

In early 1985, Ron Wulfkuhle and John McLeod, two Ciba-Geigy sales representatives, met with several Arkansas County farmers to promote the use of Dual. Alter was present at the meeting. Alter testified the salesmen told him Dual would control weeds longer at a cheaper price than other herbicides. They also said Dual was safe and would not injure a corn crop. Although Wulfkuhle knew that Dual could damage a corn crop if the crop received heavy moisture after planting, he did not tell Alter about that possibility. Hazards associated with Dual use were not mentioned. Alter testified he generally read the labels accompanying herbicides, but he could not recall whether he read the precautionary language on the Dual label. Alter did not read the Dual advertising materials, but purchased Dual in reliance on the representations made by the salesmen. He began planting his 997.8 acre corn crop on March 19th. A week and a half later Alter applied Dual to the crop. Midway through the Dual application, a heavy rain fell.

Alter noticed severe injury to his corn crop in early May. The greatest injury occurred in the field referred to as Pittman #3. Some corn was simply not coming up, and other plants looked twisted and “buggywhipped.” The crops treated with Dual nearest the time of the rainfall were severely injured, but those treated with Dual after the rainfall were not injured.

Alter immediately reported the problem to his herbicide supplier, Martin Gilbert. Gilbert then called Wulfkuhle who came to the Alter farm. Wulfkuhle determined the percentages of injury of the crop in the various fields. He noticed that some fields were 100 % injured, and there were others with less than 2 % crop injury. Wulfkuhle admitted the damage looked like it had been caused by Dual. Wulfkuhle told Alter to replant his crop and that Ciba-Geigy would pay him $25.00 an acre for replanting costs. Alter replanted 139 acres.

On May 30th, Alter’s counsel sent a letter to Ciba-Geigy’s main office in Greensboro, North Carolina. Counsel informed Ciba-Geigy of the injury to Alter’s crop and demanded compensation for loss of crop yield resulting from the Dual application, as well as replanting costs. Ciba-Geigy responded on June 28th. The response indicated Alter’s yield loss would be determined at harvest, and that Wulfkuhle would be checking on the harvest frequently. Ciba-Geigy agreed to pay Alter $25.00 an acre for replanting costs.

Wulfkuhle came to Alter’s farm on several occasions to check the harvest. Alter told Wulfkuhle he wanted Ciba-Geigy to pay for his loss of crop yield resulting from the Dual application. He told Wulfkuhle to bring someone to the farm who had the authority to settle the matter. John McLeod, a district manager for Ciba-Geigy, came to the farm with Wulfkuhle in July. Alter testified that during this meeting an agreement was reached on yield loss compensation.

According to Alter, he, McLeod, and Wulfkuhle agreed that compensation would be determined by utilizing a formula. Alter would first obtain an average yield on his three best fields: Pittman #3, Alter #3, and Alter #15. The average yield would be obtained by using what was referred to as a “random plot method.” Alter harvested random plots in his three best fields and obtained an average yield for these plots. Alter testified that McLeod and Wulfkuhle told Alter that Ciba-Geigy would pay the difference between the average yield of the random plots and the balance of the corn crop. The difference would represent Alter’s loss of yield resulting from the Dual application. McLeod refused to put the agreement in writing.

Sometime after the July meeting, Alter put the formula into operation. Alter harvested the random plots on his best fields and arrived at an average yield of 159.829 bushels per acre. He subtracted the 105,199.630 bushels he had harvested and arrived at a total loss figure of 54,357.746 bushels. Alter multiplied that figure by the $2,558 selling price per bushel to come up with a dollar crop yield loss of $139,047.11. He added replanting costs and concluded his total loss was $142,522.11. Alter provided the figures to Wulfkuhle on October 1st.

Alter stated Wulfkuhle was actively involved in the measuring and harvesting of the random plots. Wulfkuhle did not object to the random plot method. Wulfkuhle testified that neither he nor McLeod made a settlement offer to Alter. He only told Alter that Ciba-Geigy would work with him through the harvest. McLeod did not recall meeting with Alter. Jim LeCroix, who was present during the sales meeting, stated Wulfkuhle told him Ciba-Geigy had agreed on a formula to compensate Alter for his loss of yield. LeCroix stated Alter also told him about Ciba-Geigy’s agreement. Martin Gilbert, who sold the Dual to Alter, testified that McLeod and Wulfkuhle had agreed to compensate Alter based on the formula. Alter stated that although no precise dollar figure was agreed upon, everyone agreed on the formula to be used in calculating yield loss.

On October 21, 1985, Alter’s counsel again wrote to Ciba-Geigy requesting a settlement. The letter stated that Alter had worked extensively with Wulfkuhle in an effort to resolve the matter and had provided Wulfkuhle with the necessary documentation on yield loss. No response was received until October 29th when Ciba-Geigy offered Alter $31,036 in damages.

On November 22nd, Alter rejected Ciba-Geigy’s offer and counter-offered to settle for $142,522.11. In this letter, Alter indicated that $142,522.11 represented the yield loss as determined by the formula he and McLeod had agreed upon. The letter outlined the formula in detail. Ciba-Geigy replied with an offer of $45,000 which Alter rejected and countered at $110,000. This, his final counter-offer, was rejected by Ciba-Geigy on January 28, 1986, and Alter filed the action underlying this appeal.

The strict liability and negligence theories were premised upon Ciba-Geigy’s failure adequately to warn of risks associated with the use of Dual. Alter also requested $2 million dollars in punitive damages. Prior to trial, Ciba-Geigy moved to bifurcate the breach of settlement contract claim from the other claims. The motion was denied, and the case proceeded to trial.

Harper Grimes, a former trouble shooter for Ciba-Geigy, testified that Dual caused the damage in Alter’s field. He stated Dual frequently caused damage when the soil was extremely wet or when a substantial rain occurred in a short period of time during or just after application. The critical point for Dual damage was from the time of germination. Grimes did not believe that the precautionary language on the Dual label adequately informed farmers about the risks of rainfall. The warning should have been placed in two locations, and it should have described the conditions of danger more adequately.

Dr. Everett Cowlett, director of technical services for Ciba-Geigy, stated there was a potential for crop injury resulting from Dual use when high moisture conditions occurred within seven days to a month after the seed was planted. Dr. Cowlett admitted a farmer could not determine whether it was safe to apply Dual after planting. The farmer will not know whether there will be an abnormally high moisture condition within seven days to a month after planting. For this reason, Ciba-Geigy put the precautionary language on the label. Dr. Cowlett further stated that the Dual label was approved by the EPA.

Dr. Edward Higgins, an employee of the agricultural division at Ciba-Geigy, stated Dual was safe to use on corn. He stated Ciba-Geigy had conducted several studies and tests on Dual. The tests showed that the type of crop damage Alter experienced occurred in only one-tenth of one percent of cases. Dr. Higgins said the warnings on the Dual label were adequate, and they were like those commonly used in the herbicide industry. Placing the warnings in two places on the label would be burdensome.

The jury returned a general verdict in Alter’s favor for $100,410.51 in compensatory damages and no punitive damages.

I. Bifurcation

Ciba-Geigy moved to bifurcate the breach of settlement contract claim from the remaining strict liability, negligence, breach of warranty, and misrepresentation claims. The basis of the motion was that allowing all claims to be tried together would result in the admission of evidence of settlement negotiations which would unfairly prejudice the defense of the claims for liability other than breach of the settlement contract.

Arkansas R. Civ. P. 42(b) provides:

The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or any number of claims, cross-claims, counterclaims, third-party claims, or issues.

Absent an abuse of discretion, the Trial Court’s decision regarding bifurcation will not be reversed. Transit Homes Inc. v. Bellamy, 282 Ark. 453, 669 S.W.2d 7 (1984). The purpose of Rule 42(b) is to further convenience, avoid delay and prejudice, and serve the needs of justice. The primary concern is efficient judicial administration, as long as no party suffers prejudice by the bifurcation. Hunter v. McDaniel Bros. Const. Co., 274 Ark. 178, 623 S.W.2d 196 (1981).

In addressing whether the Trial Court abused its discretion by failing to bifurcate the settlement contract claim, we must also examine Ark. R. Evid. 408. In provides, in part:

Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for, invalidity of, or amount of the claim or any other claim.

Offers of compromise or settlement are clearly inadmissible to prove a party’s liability on the underlying claim. They may, however, be admissible if offered for another purpose. See, e.g., McKenzie v. Tom Gibson Ford, Inc., 295 Ark. 326, 749 S.W.2d 653 (1988); Elrod v. G & R Const. Co., 275 Ark. 151, 628 S.W.2d 17 (1982).

There was an abundance of testimony about Ciba-Geigy’s offers to settle Alter’s claim. Alter testified in detail about the settlement negotiations. Alter’s counsel stated in closing argument that Ciba-Geigy would not have offered to settle had they not believed liability existed. Although the testimony on settlement negotiations might have been admissible as it related to the breach of settlement contract, it was clearly inadmissible in a trial on the other claims against Ciba-Geigy.

In Ismail v. Cohen, 706 F.Supp. 243 (S.D.N.Y. 1989), the District Court discussed the circumstances in which prejudice to a party may require separate trials of certain issues. The paramount concern is prejudicing the jury with respect to claim “A” by producing evidence on claim “B” when that evidence is irrelevant to claim “A.” See also Larsen v. Powell, 16 F.R.D. 322 (D. Colo. 1954) (if evidence would be relevant and material to one issue but improper and prejudicial with respect to another, separate consideration of each issue is indicated); 5 Moore’s Federal Practice § 42.03(1) (1987) (a separate trial may be appropriate where a defendant in a negligence action pleads a release, if the court believes the jury may be prejudiced by trying the issues as to the existence and validity of the release with the issues on the merits).

Although a combined trial of all claims might have been judicially economical, the prejudice to Ciba-Geigy resulting from the inadmissible evidence coming before the jury was substantial. In no area of the law are we disposed to promote the interests of judicial economy over a party’s right to receive a fair trial. Because the only way to avoid unfair prejudice in these circumstances would have been to bifurcate the breach of settlement contract claim, the Trial Court abused its discretion in failing to do so.

II. Issues on retrial

A. FIFRA preemption

Ciba-Geigy argues that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136-136y (1978), preempts Alter’s claims based on inadequate labeling. It is undisputed that Dual is a herbicide registered with the EPA under FIFRA, and that the Dual label has met with EPA approval. The essence of Ciba-Geigy’s argument is that, by imposing certain labeling requirements on pesticide manufacturers, Congress intended through FIFRA to preempt state common law tort claims based on the alleged inadequacy of the labels. We disagree and conclude state common law tort claims for inadequate labeling are neither expressly nor impliedly preempted by FIFRA.

1. Preemption doctrine

The doctrine of federal preemption is based upon the supremacy clause in Article VI, cl. 2, of the United States Constitution. Under the supremacy clause, state laws that “interfere with, or are contrary to the laws of congress, made in pursuance of the constitution” are invalid. Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824). Congressional intent to supplant state authority in a particular field may be express. Jones v. Rath Packing Co., 430 U.S. 519 (1977). No case has held that Congress through FIFRA has expressly preempted state common law tort claims. Absent express preemptive language, congressional intent to supersede state law may be implied.

Implied preemption can occur in the following circumstances: (1) when the scope of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the state to act, (2) when the state and federal law actually conflict, (3) when compliance with state and federal law is physically impossible, (4) when the state law stands as an obstacle to the accomplishment of the full objectives of Congress. See, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947).

We begin with the assumption that the historic police powers of the states are not to be superseded by a federal act unless that is the clear and manifest purpose of Congress. Rice v. Santa Fe Elevator Corp., supra, at 230. The burden is on the moving party to prove that Congress intended to preempt state law. Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984).

2. FIFRA requirements

All pesticides, fungicides, and rodenticides must be registered with the EPA before they can be sold in interstate commerce. 7 U.S.C. § 136a. FIFRA directs the EPA Administrator to register a pesticide when its composition is such as to warrant the proposed claims for it, its labeling and other material required to be submitted comply with the requirements of the Act, it will perform its intended function without unreasonable adverse effects on the environment, and when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment. 7 U.S.C. § 136a(c)(5). “Unreasonable adverse effects on the environment” is defined as “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of the pesticide.” 7 U.S.C. § 136(bb).

As part of the registration statement, a copy of the pesticide’s label is submitted to the EPA for approval. 7 U.S.C. § 136a(c)(1)(C). To obtain EPA approval, the manufacturer must comply with the EPA Labeling Requirements for Pesticides and Devices found in 40 C.F.R. § 156.10 (1991). One requirement is that the pesticide label provide the consumer with warnings or precautionary statements. § 156.10(a)(l)(vii). The warnings must be “clearly legible to a person with normal vision and must be placed with such conspicuousness and expressed in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.” § 156.10(a)(2);

The manufacturer submits its draft label to the EPA for approval. A manufacturer of some toxic pesticides is required to include “signal words” on the front panel of the label. For example, a manufacturer of a pesticide classified in Toxcicity Category I must include the signal word “Danger” on the front panel. § 156.10(h)(l)(i)(A). When an environmental hazard exists from the pesticide, precautionary language stating the nature of the hazard and the appropriate precautions to avoid potential accident, injury, or damage is required. § 156.10(h)(2)(ii).

In enacting FIFRA, Congress expressly delineated the extent to which states could regulate pesticides. Section 136v provides in part:

(a) In general. A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.
(b) Uniformity. Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.

FIFRA prohibits a state from imposing through statute or regulation different or additional requirements on pesticide labeling. The question we must answer, however, is whether a state tort claim based on inadequate labeling is also prohibited by FIFRA. Federal district and appellate courts disagree on this issue, and it is an issue of first impression for a state appellate court.

3. The Ferebee case

The first case to address the question presented was Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C. Cir. 1984). Ferebee contracted pulmonary fibrosis as a result of long-term skin exposure to paraquat, a herbicide manufactured by Chevron. Ferebee’s estate brought suit on the ground that Chevron’s label failed to warn adequately of the risks associated with paraquat. Addressing the preemption issue, the District of Columbia Circuit first recognized that FIFRA and state tort law served different purposes. The fact that the EPA had determined a label adequate for purposes of FIFRA did not compel a jury to find the label adequate for purposes of state tort law. The Court stated:

FIFRA aims at ensuring that, from a cost-benefit point of view, paraquat as labelled does not produce “unreasonable adverse effects on the environment.” State tort law, in contrast, may have broader compensatory goals; conceivably, a label may be inadequate under state law if that label, while sufficient under a cost-benefit standard, nonetheless fails to warn against a significant risk.

The Court held that Congress did not explicitly preempt state damage actions but merely precluded the states from directly ordering changes in EPA approved labels. Compliance with federal and state law was not impossible because a manufacturer could either continue to use the EPA approved label and pay damages or petition the EPA to allow the label to be made more comprehensive. State damage actions did not stand as an obstacle to the accomplishment of FIFRA’s purposes. In some circumstances, tort recovery could promote legitimate regulatory aims by exposing new dangers associated with pesticides. Successful actions may lead manufacturers to petition the EPA to allow more detailed labeling of their products.

4. The Papas case

Other federal appellate decisions have disagreed with the Ferebee decision and concluded FIFRA preempts state tort claims. In Papas v. Upjohn Co., 926 F.2d 1019 (11th Cir. 1991), Papas was injured from exposure to pesticides manufactured by Upjohn. The three main claims were based on inadequate labeling of the pesticides. The United States Court of Appeals for the Eleventh Circuit held that the EPA had regulated almost every aspect of pesticide labeling, thus leaving no room for the states to supplement federal law by means of state common law tort actions. The Court held that a jury determination that a pesticide’s labeling was inadequate was in direct conflict with the EPA’s determination that the labeling was sufficient to protect against health risks. The verdict would require the manufacturer to change its EPA approved label, thus destroying the uniformity of labeling that Congress sought to achieve by enacting FIFRA. The United States Court of Appeals for the Tenth Circuit recently agreed with the Papas case rationale in Arkansas-Platte & Gulf Partnership v. Dow Chemical Co., 1992 U.S. App. LEXIS 3572 (10th Cir. 1992).

5. This case

a. Conflict between state and federal laws

We do not agree that the federal scheme is so pervasive that states are left no room for common law tort claims, even though a state court judgment may have implications affecting the uniformity of labeling hazardous products.

Congress expressly recognized the states’ continued right to regulate the use of pesticides in Section 136v(a). The fact that states are allowed to regulate the use of EPA label-approved pesticides indicates Congressional recognition of retention in the states of power to control the use of such pesticides by requiring that some resulting injuries be compensated. Ferebee v. Chevron Chemical Co., supra. The adoption of Section 136v(a) demonstrates that the scheme created by FIFRA is not so pervasive or the federal interest so dominant as to demonstrate an intent to preempt state tort claims.

The more difficult question is whether a tort judgment based on inadequate labeling conflicts with the EPA determination that the label is sufficient. A conflict can occur to the extent compliance with federal and state law is impossible. The Ferebee rationale that a manufacturer can comply with both federal and state law by continuing to use the EPA approved label and paying damages to successful plaintiffs has met with sharp, justified criticism. See, e.g., Fitzgerald v. Mallinckrodt, Inc., 681 F. Supp. 404 (E.D. Mich. 1987) (a jury verdict effectively compels the manufacturer to alter the warning to conform to different state law requirements). A manufacturer who has to pay damages under state law is obviously not complying with the state law but is being held liable for not complying.

The Court in the Ferebee case was correct, however, in concluding that after a jury determines a pesticide label to be inadequate the manufacturer can simply petition the EPA to allow the label to be made more comprehensive. By doing so, the manufacturer would be in compliance with state tort law and with EPA regulations. See also Riden v. ICI Americas, Inc., 763 F. Supp. 1500 (W.D. Mo. 1991) (a manufacturer is not “compelled” to alter a label in the same way that it is “compelled” to comply with a state law or regulation).

b. Uniformity

The final preemption question is whether allowing state damage actions in cases such as this may not be allowed because it would conflict with the congressional purpose of promoting uniform labeling. The argument is that changing the label to conform to a jury verdict would destroy the uniformity that Congress and the EPA sought to achieve in FIFRA. It has been stated that, although broad in scope, the EPA requirements stop short of creating absolute uniformity in pesticide labels. As one court has observed, “the EPA requirements permit labeling variations even among products containing the same active ingredient. Thus, to argue that an adverse jury award would threaten FIFRA’s policy of uniform labeling belies the truth.” Riden v. ICI Americas, Inc., supra. The fact that manufacturers submit their own labels implies a duty to provide a label that gives adequate warnings about the risks associated with the product’s use notwithstanding the need for EPA approval.

The intent of Congress in enacting FIFRA was to set minimum standards for pesticide labeling. “Federal legislation has traditionally occupied a limited role as the floor of safe conduct; before transforming such legislation into a ceiling on the ability of states to protect their citizens, a court should wait for a clear statement of congressional intent.” Ferebee v. Chevron Chemical Co., supra; Cox v. Velsicol Chemical Corp., 704 F. Supp. 85 (E.D. Pa. 1989).

In conclusion, Ciba-Geigy has failed to overcome the strong presumption that Congress intended to leave intact a states ability to compensate its citizens for injuries resulting from pesticide use. Congress has not occupied the field of pesticide regulation so pervasively as to leave no room for the states to act in the area of tort compensation. There is no conflict between the EPA determination that a label is adequate for purposes of FIFRA and a jury determination that a label is inadequate for purposes of state tort law. Although we do not entirely agree with the Ferebee rationale, we agree with the conclusion that FIFRA and state tort law serve different purposes.

FIFRA seeks to ensure that, from a cost-benefit standpoint, a pesticide does not impose an unreasonable adverse effect on the environment. State tort law seeks to compensate injured parties when a manufacturer fails to give a reasonable and adequate warning of foreseeable dangers in using the product. As the Court pointed out in the Ferebee case, a label or warning may be inadequate under state tort law but sufficient under the EPA cost-benefit standard.

Finally, we understand the desirability of uniformity in labeling hazardous products, and we do not doubt that Congress intended to achieve uniform minimum labeling standards by passing the Act. We cannot, however, conceive of a plan by Congress to supplant the laws by which the states recompense, and to a degree protect, their citizens and others from injury resulting from the use of those products. Congress surely did not intend to put in place a system of uniformity in labeling so absolute as to subvert the tort laws of the states.

B. Breach of settlement contract

Ciba-Geigy argues the Trial Court should have directed a verdict in its favor on the breach of settlement contract claim because the evidence did not show a mutual agreement between the parties and the terms of the settlement contract were too indefinite to be enforced. Ciba-Geigy contends the evidence showed only that the parties were engaging in settlement negotiations and no mutual agreement on compensation was reached.

When asked to review the denial of a motion for a directed verdict, we examine the evidence, along with all reasonable inferences deducible from it, in the light most favorable to the party against whom the motion is sought. McWilliams v. Zedlitz, 294 Ark. 336, 742 S.W.2d 929 (1988). Only when the proof of one party is so clear, convincing, and irrefutable that no other conclusion could be reached, should the issue be taken from the jury and decided by the court. Barger v. Farrell, 289 Ark. 252, 711 S.W.2d 773 (1986).

1. Mutual assent

To have a valid contract, all terms should be definitely agreed upon. Madden v. Hart, 249 Ark. 1054, 463 S.W.2d 352 (1971). It does not follow, however, that the parties must share identical, subjective opinions as to the meanings of the terms. We have held mutual assent can be based on “objective indicator[s] or agreement.” Crain Indus., Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 334 (1991). See also Dziga v. Muradian Business Brokers, Inc., 28 Ark. App. 241, 772 S.W.2d 624 (1989).

Three witnesses testified that sometime in July of 1985 Ciba-Geigy and Alter entered into a binding, mutual agreement on yield loss compensation. In reliance upon this agreement, Alter changed his normal procedures and harvested random plots on his three best fields. Wulfkuhle, an agent for Ciba-Geigy, helped Alter measure and harvest these plots. This evidences objective indications of mutual assent. Although Wulfkuhle later denied the existence of the agreement, the jury was clearly free to disbelieve his testimony in light of the other evidence. Hodges v. Jet Asphalt, 305 Ark. 466, 808 S.W.2d 775 (1991).

Ciba-Geigy contends the later settlement negotiations show the parties did not intend to be bound in July. An examination of the evidence reveals the opposite conclusion was equally plausible. Alter’s subsequent “negotiations” can be interpreted as attempts to get Ciba-Geigy to perform under the terms of the agreed upon formula. The negotiations standing alone do not conclusively show a contract was not formed in July. Although the parties used the terms “offer” and “counter-offer” in their negotiations, one need not necessarily conclude Alter thereby conclusively demonstrated there was no contract. Again, the negotiations could well have been for the purpose of settlement pursuant to the alleged contract.

Ciba-Geigy also argues the jury concluded no settlement contract existed because the verdict did not correspond to the amount Alter requested under the contract. This issue may not arise upon retrial, but we note it has been held that “a verdict need not correspond in amount to the proof adduced by either party.” Garrison Properties, Inc. v. Branton Constr. Co., 253 Ark. 441, 486 S.W.2d 672 (1972); Dickson v. Delhi Seed Co., 26 Ark. App. 83, 760 S.W.2d 382 (1988).

2. Uncertainty

Terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy. Restatement (Second) of Contracts, § 33. The law does not favor the destruction of contracts because of uncertainty. Shibley v. White, 193 Ark. 1048, 104 S.W.2d 461 (1937).

Alter testified in detail about the formula upon which he, Wulfkuhle, and McLeod agreed upon for determining yield loss compensation. Although no precise dollar figure was agreed upon, Alter stated that everyone agreed on the formula to be used in settling the case. From this formula, Alter was able to arrive at a precise dollar figure for yield loss compensation. It is not difficult for us to determine from the formula the amount of damages Alter suffered.

C. Breach of warranty

Ciba-Geigy also asserts a directed verdict should have been granted in its favor on the breach of express and implied warranty claims because the Dual label effectively disclaimed all warranties, and the label prohibited recovery for consequential damages in the form of lost profits.

To exclude the implied warranty of merchantability, the disclaimer must mention merchantability and be conspicuous. Ark. Code Ann. § 4-2-316(2) (Repl. 1991). To exclude the implied warranty of fitness, the exclusion must be in writing and conspicuous. § 4-2-316(2). Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit the warranty shall be construed wherever reasonable as consistent with each other; but negation or limitation is inoperative to the extent that such construction is unreasonable. § 4-2-316(1). Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable, or the limited remedy fails of its essential purpose. Ark. Code Ann. § 4-2-719(2) and (3) (Repl. 1991).

1. Disclaimer of warranties

We do not decide the question, but we note a factual issue with respect to the implied warranties claim. The language on the Ciba-Geigy label could have been effective to disclaim all implied warranties under § 4-2-316(2). The disclaimer was in bold type on page five of the label and clearly mentioned merchantability. The Uniform Commercial Code defines “conspicuous” as being “written in that a reasonable person against whom it is to operate ought to have noticed it. Language in the body of a form is conspicuous if it is in larger or other contrasting type or color.” Ark. Code Ann. § 4-12-201(10) (Repl. 1991); Walker Ford Sales et. al. v. Gaither, 265 Ark. 275, 578 S.W.2d 23 (1979).

The next question is whether Ciba-Geigy’s express warranties and the disclaimer of all express warranties can be reasonably construed as consistent with each other under § 4-2-316(1). If they cannot, the disclaimer is ineffective. First to be examined is the nature of the express warranties Ciba-Geigy made to Alter. “Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.” Ark. Code Ann. § 4-2-313(l)(a) (Repl. 1991). An affirmation of the seller’s opinion or commendation does not create an express warranty. Ark. Code Ann. § 4-2-313(2) (Repl. 1991).

The advertising materials distributed to farmers by Ciba-Geigy contained an express warranty that a farmer need not worry about crop injury when using Dual. Alter, however, did not recall reading any of the advertising materials. An affirmation of fact must be part of the basis of the parties bargain to be an express warranty. See Currier v. Spencer, 299 Ark. 182, 772 S.W.2d 309 (1989). When a buyer is not influenced by the statement in making his or her purchase, the statement is not a basis of the bargain. See generally American Law of Warranties § 2:7 (1991). Clearly, Alter was not influenced by the advertising materials when purchasing Dual, and hence they were not a basis of the bargain.

There was testimony that Wulfkuhle and McLeod told Alter during the sales meeting that Dual was safe and would not injure a corn crop. The question is whether this was a mere statement of opinion. In the misrepresentation context, we indicated “an opinion is merely an assertion of one man’s belief as to a fact.” Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987), citing Prosser & Keeton on Torts (5th Ed.), Ch. 19 § 109 (1984). There are no set criteria to help ascertain opinion from affirmation of fact, and the determination must be made on a case-by-case basis. Williston on Sales, § 17-6 (4th ed. 1974).

The evidence before the Trial Court supported the conclusion that Ciba-Geigy’s statements that Dual was safe and would not injure a corn crop were affirmations of fact and not mere opinions or commendations. The jury had sufficient evidence to conclude the statements were not “sales puffing” and constituted specific express warranties that the goods would conform to the affirmations. See, e.g., Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d 292 (3rd. Cir. 1961) (if a manufacturer assures the public that his product is safe when in fact it is harmful, he can “no doubt” be held liable for breach of warranty); American Law of Warranties § 2:57 (1991) (a statement that a product is safe is generally an absolute undertaking that it is so). Again, we do not decide the issue, but we note that if the evidence is the same on retrial, a jury could conclude the disclaimer ineffective. Walcott & Steele v. Carpenter, 246 Ark. 95, 436 S.W.2d 820 (1969).

2. Limitation of remedies

A seller of goods may limit the buyer’s remedies for breach of warranty pursuant to Ark. Code Ann. § 4-2-719(1) (a) (Repl. 1991). A limitation of remedies provision restricts the remedies available to the buyer once a breach of warranty is established. An otherwise valid limitation of remedy is avoided by the buyer if the limitation fails of its essential purpose, Great Dane Trailer Sales, Inc. v. Prysock, 301 Ark. 436, 785 S.W.2d 13 (1990), or is unconscionable. § 4-2-719(3).

The “failure of essential purpose” exception is most commonly applied when the buyer’s remedy is exclusively limited to repair or replacement of defective goods, and the seller is unable to repair or replace the goods to conform to the warranty. See, e.g., Great Dane Trailer Sales, Inc. v. Prysock, supra; Walker Ford Sales et. al. v. Gaither, supra. In this case, we are not dealing with a seller who failed to correct a defect after being asked to do so by the buyer, and the failure of essential purpose exception is not applicable. See Hill v. BASF Wyandotte Corp., 696 F.2d 287 (4th Cir. 1982). Ciba-Geigy has not limited or substituted Alter’s remedy to repair or replacement of the defective goods and has only limited its liability for consequential damages.

While we cannot definitely resolve the issue, some comment on whether the limitation on consequential damages was unconscionable and unenforceable under § 4-2-719(3) is appropriate. Unconscionability must be determined in light of general commercial background, commercial needs in the trade or the particular case, the relative bargaining positions of the parties, and other circumstances existing when the contract was mad e. Kohlenberger v. Tyson’s Foods, 256 Ark. 584, 510 S.W.2d 555(1974). The commentary to § 4-2-719 states “it is of the very essence of a sales contract that at least minimum adequate remedies be available.”

In Dessert Seed Co. v. Drew Farmers Supply, 248 Ark. 858, 454 S.W.2d 307 (1970), we held a limitation of liability clause unreasonable, unconscionable, and against public policy when negligence of the seller was clearly established, and the buyer was unable to discover the defect in the goods. See also Latimer v. William Mueller & Son, Inc., 149 Mich. App. 620, 386 N.W.2d 618 (1986) (limitation of remedy unconscionable when the defect could not be discovered); Majors v. Kalo Laboratories, Inc., 407 F. Supp. 20 (N.D.Ala. 1975) (limitation of remedy unconscionable when a latent defect is involved). Because other evidence might be presented on this issue on retrial, we cannot pass on the unconscionability question on this appeal. Kohlenberger v. Tyson’s Foods, supra.

D. Punitive damages

Ciba-Geigy argues that, although no liability for punitive damages was imposed, the issue of punitive damages and evidence of financial condition should not have been submitted to the jury. Ciba-Geigy fails to mention that the jury was instructed on the tort of deceit. Although we do not know the basis of the general verdict in this case, punitive damages are available in cases of misrepresentation or deceit. Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992); Thomas Auto Co. v. Craft, 297 Ark. 492, 763 S.W.2d 651 (1989). If there is substantial evidence to show deliberate misrepresentation or deceit the issue of punitive damages may be submitted to the jury. Stein v. Lukas, supra.

E. Prejudgment interest

Ciba-Geigy’s final point is that the Trial Court erred by awarding Alter prejudgment interest because the amount of damages was not ascertainable at the time of injury. The Trial Court awarded Alter prejudgment interest at the rate of six percent beginning on November 22, 1985, through March 19, 1991. In cases where damages cannot be ascertained at the time of the loss, prejudgment interest should not be allowed. The damages must be capable of exact determination as to time of accrual and amount. Lovell v. Marianna Fed. S & L Assn., 267 Ark. 164, 589 S.W.2d 577 (1979). In this case, Alter’s damages from the use of Dual were not capable of exact determination until harvest. The Trial Court’s award of prejudgment interest was only for damages accrued after Alter provided Ciba-Geigy with all necessary harvest figures. At that time, damages were capable of exact determination, and the prejudgment interest award was not error.

Reversed and remanded.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    John Paul and Shirley LEONARD v. LEONARD’S HARDWARE, INC., Jeannette E. Smith, et al.
    92-252
    828 S.W.2d 846
    Supreme Court of Arkansas
    Opinion delivered May 26, 1992

      Robert E. Irwin, for appellants.

      Wright, Lindsey & Jennings, by: Robert M. Honea and Mobley, Smith & Mobley, by: William F. Smith and Steve Edgar, for appellees.
   Tom Glaze, Justice.

John Paul and Shirley Leonard were awarded a decree below from which Jeannette Smith appealed. On January 22, 1992, Smith filed a motion to extend time for docketing the record on appeal. See Rule 5(b) of the Rules of Appellate Procedure. The trial court granted Smith’s motion the next day. The Leonards now attempt to appeal from the trial court’s granting Smith’s motion, contending the court’s order failed to comply with Rule 5(b).

We are unable to reach the Leonards’ argument in the manner sought because an order granting an extension to docket a record on appeal is not an appealable order. Ark. R. App. P. 2(a). We do not reach the merits of an appeal if the order appealed from is not final. Austin v. First Nat’l Bank, 305 Ark. 456, 808 S.W.2d 773 (1991). For a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Jackson v. Yowell, 307 Ark. 222, 818 S.W.2d 950 (1991).

Because the order the Leonards appealed from is not final, we dismiss this appeal.


text:
    RIVERWAYS HOME CARE of Ozarks Medical Center v. ARKANSAS HEALTH SERVICES COMMISSION
    91-230
    831 S.W.2d 611
    Supreme Court of Arkansas
    Opinion delivered May 26, 1992

      Davidson, Horne & Hollingsworth, by: Cyril Hollingsworth and Chet Roberts, for appellant.

      Winston Bryant, Att’y Gen., by: Susan G. Jones, Asst. Att’y Gen., for appellee.

      Simpson & Graham, P.A., by: HaroldH. Simpson & Lynda M. Johnson, for intervenors, Spring River Home Health Agency.
   Tom Glaze, Justice.

Appellant Riverways, an affiliate of Ozarks Medical Center, a not-for-profit hospital, applied for a permit of approval in order to provide home health services to residents of Fulton County. Spring River Home Health Agency (Spring River), the intervenor in this case, opposed Riverway’s application. Spring River serves the Fulton County area. The Arkansas Health Agency recommended denial of Riverways’ application, and after a hearing, the Arkansas Health Services Commission endorsed the Agency’s recommendation. Riverways appealed to the Commission for reconsideration, but the Commission declined to reverse its decision. Riverways then appealed to the circuit court making the two following arguments for reversal: (1) the Arkansas Health Agency failed to submit its recommendation to the Commission within the ninety-day period required under § 20-8-104(d), and therefore Riverways’ application was deemed approved as a matter of law; and (2) Riverways was denied due process and a fair hearing because the chairman of the Commission, Dr. Moody, who had an ownership interest in Spring River Home Health Agency, disqualified himself from the proceedings but still participated by speaking at the hearings.

The circuit court found that, since Riverways had not presented its argument at the administrative hearings that the ninety-day period had not been complied with, it could not address the argument on appeal. Further, the circuit judge concluded that, while Dr. Moody’s conflict of interest prevented him from participating as a commissioner, it did not prevent him from being a witness or litigant at the hearings. Based on these findings, the circuit court affirmed the Commission’s denial of Riverway’s permit. Riverways appeals the trial court’s two findings and holding.

A chronology of pertinent events is necessary for our review. Riverways applied for a permit of approval, and the Agency received the application on October 5, 1989. On October 27, 1989, the Agency received additional requested information from Riverways. No further information was requested or received. In accordance with Commission rules, the Agency then published in a newspaper a legal notice for five consecutive days — December 1-5, 1989 — announcing it was in receipt of applications for permits of approval review. Riverways’ application was included. The notice further provided “the applications qualify for a determination of need under the provisions of Act 593 of 1987,” and the Agency would review the applications and submit recommendations on each of the projects to the Commission prior to the close of business on March 1, 1990.

On February 14, 1990, Riverways was sent a copy of the Agency’s findings and recommendation denying Riverways’ application for permit. At a hearing on February 21, 1990, the Commission adopted the Agency’s recommendation, and after another hearing on April 11, 1990, the Commission declined to reverse its February 21 decision.

In its first point for reversal, Riverways claims the Agency, in reviewing Riverways’ application, failed to meet the time requirement of Ark. Code Ann. § 20-8-104(d) (1991), which provides, as follows:

(d) The Health Services Agency shall review all applications for permits of approval and submit their recommendation for action to the commission within ninety (90) days of receipt of the application for permit of approval, without which the application shall be deemed approved.

In brief, Riverways argues its application was complete when it was sent to the Agency on October 27, 1989, and under § 20-8-104(d), the Agency had ninety days from the October 27 date — on or about January 25,1990 — to submit its recommendation or else the Riverways’ application was “deemed approved.” As set out above, the Agency’s recommendation was not made until February 14,1990; thus, under Riverways’ theory, the Agency had no subject matter jurisdiction to act on or deny Riverways’ application, once the aforementioned ninety-day period expired. The trial court rejected this argument because Riverways failed to raise it with the Agency or at the hearings before the Commission. The trial court is correct that this court has repeatedly held it will not set aside an administrative determination upon a ground not presented to the agency because to do so would deprive the agency or commission the opportunity to consider the matter, make its ruling and state the reasons for its action. Alcoholic Beverage Control Div. v. Barnett, 285 Ark. 189, 685 S.W.2d 511 (1985); see also Arkansas Cemetery Board v. Memorial Properties, Inc., 272 Ark. 172, 616 S.W.2d 713 (1981); Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982).

Riverways concedes it did not raise this argument before either administrative agency, but contends that, because the ninety-day requirement is jurisdictional, it can raise the argument at any time. Venhaus v. Hale, 281 Ark. 390, 663 S.W.2d 930 (1984). Riverways further argues that, since the ninety-day period had expired in the present case, no purpose would have been served by its having raised this argument because the Agency and Commission no longer had subject matter jurisdiction or any authority to correct their error.

Intervenor Spring River counters by pointing to the language of § 20-8-104(d), and submits that, while the statute requires the Agency to review and submit its recommendations to the Commission within ninety days of an applicant’s request for permit of approval, such time period applies only to the Agency, not the Commission. In other words, Spring River urges that, although the Agency might have been precluded from acting on Riverways’ application once the ninety-day period expired, the Commission still had authority to consider the application. Riverways argues Spring River’s interpretation of § 20-8-104(d) is strained because the statute contemplates both the Agency and Commission must act or the application is “deemed approved.” Riverways’ argument, however, assumes no further action or review is required if an applicant’s permit request is “deemed approved” due to the Agency’s inaction. Such an assumption is one which we cannot indulge.

Our analysis of Ark. Code Ann. § 20-8-103(f) and (h) and the Commission’s enabling rules supports Spring River’s argument. Under § 20-8- 103(f), the Commission must review Agency recommendations and either endorse or reject them. The Commission takes such action whether the Agency makes a recommendation on an application or fails to act under § 20-8-104(d). See also Arkansas Health Services Commission, Arkansas Health Services Commission Policies and Procedures for Permit of Approval Review, Section VII(B)(9) (Dec. 10,1987). In fact, permits of approval will only be issued, denied or withdrawn by the Agency with the Commission’s endorsement or under the direction of an appropriate court. Id., Section III. Clearly, the Commission acted properly in the present case when reviewing Riverways’ application whether the application had been appropriately and timely denied by the Agency or whether it had been deemed approved because of the Agency’s inaction.

In summation of the arguments bearing on Riverways’ first point for reversal, we reject Riverways’ argument that the Commission had no jurisdiction to rule on its application, and because Riverways does not otherwise question the merits of the Commission’s ruling, the ruling stands unchallenged. Although the trial court did not employ the reasoning argued to and adopted by this court on appeal, we will affirm the trial court since it reached the correct result. Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984).

In holding as we do, we mention Arkansas Health Services Comm’n v. Area Agency on Aging, 303 Ark. 38, 792 S.W.2d 321 (1990), where we upheld a lower court’s order that automaticallay approved the Area Agency’s application because the Arkansas Health Services Agency failed to submit its recommendation within the ninety-day period required under § 20-8-104(d) (Supp. 1989). In that decision, the parties made no mention of § 20-8-103(f) and (h) or the Commission’s rules; nor did the parties raise and develop the ninety-day-period argument before the Agency or Commission. Suffice it to say, to the extent our decision today conflicts with the rationale set out in Area Agency on Aging, that rationale is overruled.

We turn next to Riverways’ second argument that the trial court erred in finding the participation of the Commission chairman, Dr. Moody, was not prejudicial and reversible error. At the Commission hearing, Dr. Moody announced he owned an interest in Spring River Home Health Agency and, as a consequence, did not participate in the Commission’s deliberations or decision involving Riverways’ application. He did, however, participate in the discussion of the application during the February 21 hearing. The short answer to Riverways’ concern here is that Riverways simply failed to object to Dr. Moody’s participation. In fact, at the reconsideration hearing of the Commission, Riverways praised Moody for having disqualified. Because Riverways failed to preserve this argument at the administrative hearing, we do not consider it on appeal. Arkansas Contractors Licensing Board v. Butler Constr. Co., 295 Ark. 223, 748 S.W.2d 129 (1988); Barnett, 285 Ark. 189, 685 S.W.2d 511.

For the reasons set out above, we affirm.

       We note that Riverways apparently appeared without legal counsel at the hearing where Dr. Moody participated.


author: Donald L. Corbin, Justice.

text:
    John and Carol BAKER v. T.V. MORRISON
    91-354
    829 S.W.2d 421
    Supreme Court of Arkansas
    Opinion delivered May 26, 1992

      Butler, Hickey & Long, by: Fletcher Long, Jr., for appellants.

      Laser, Sharp, Mays, Wilson, Bujford & Watts, P.A., by: Kevin Staten and Brian Allen Brown, for appellee.
   Donald L. Corbin, Justice.

Appellants, John and Carol Baker, filed a complaint against appellee, T.V. Morrison, alleging appellee attempted to pass their vehicle on a highway and negligently struck their vehicle from behind while they were making a left turn. The suit was tried to a St. Francis County jury which returned general verdict in favor of appellee. As their sole point for reversal, appellants contend the trial court erred in denying their motion in limine to exclude evidence concerning their failure to wear seat belts at the time of the accident. We agree that the denial of the motion in limine was error and reverse.

On appeal, appellants argue the evidence of their failure to wear seat belts is not relevant to the type of injuries they sustained. They also argue appellee failed to prove that their failure to wear seat belts was a proximate cause of their injuries. Appellee responds with the claim that appellants’ failure to wear seat belts was evidence of their comparative fault and admissible as such.

We note that in appellee’s brief, in addition to his argument that appellants’ nonuse of seat belts is evidence of comparative fault, he asserts that in the absence of medical testimony of proximate cause, a reasonable juror could have concluded that appellants’ injuries would have been reduced or prevented by the use of seat belts. This assertion seems to be an argument that appellants’ nonuse of seat belts is admissible evidence of failure to mitigate damages. However, appellee did not argue this mitigation theory to the trial court in defense of the motion. Furthermore, appellee cites no authority nor presents us with any convincing argument to affirm, on the basis of the mitigation theory, the trial court’s denial of the motion.

Recognition of the seat belt defense on the mitigation theory requires the consideration of issues distinct from those considered under the comparative fault theory. For example, the mitigation theory requires the consideration of the doctrine of avoidable consequences and whether the plaintiff should have anticipated the defendant’s negligence before the accident occurred, while the comparative fault theory, applying Arkansas law on proximate cause, does not. As the trial court did not rule on the mitigation theory, nor was the theory briefed to us on appeal, we. will not address the issue of whether appellants’ nonuse of seat belts was admissible as proof of their failure to mitigate damages.

Thus, we are presented with a very limited issue — whether appellants’ failure to wear seat belts is admissible evidence of their comparative fault. We have never addressed the issue of whether the failure to wear an available seat belt constitutes comparative negligence. We note, however, that the legislature has spoken on this precise issue with the passage of 1991 Ark. Acts 562, the Mandatory Seat Belt Use Act. Specifically, Ark. Code Ann. § 27-37-703 (Supp. 1991) provides that the failure to “use a seat belt shall not be considered under any circumstances as evidence of comparative or contributory negligence, nor shall such failure be admissible as evidence in the trial of any civil action with regard to negligence.” As the date of the accident in question was December 17,1988, it occurred prior to the passage of the Mandatory Seat Belt Use Act. The Act is therefore not applicable to this case.

We begin our analysis with a discussion of the seat belt defense and its existence in other jurisdictions. As seat belts became standard equipment on motor vehicles in the late 1960’s, defendants in actions for damages resulting from motor vehicle collisions began raising the issue of a plaintiffs failure to wear an available seat belt. The seat belt arguments presented to various courts over the years have changed according to the changes in negligence law. For example, some of the defense arguments presented have requested a complete bar to the plaintiffs recovery based on the doctrine of contributory negligence. Courts presented with this theory have focused on the liability aspect of negligence and concluded that because the plaintiffs failure to wear a seat belt was not a cause of the collision, the nonuse should not completely bar recovery. See, e.g., Fischer v. Moore, 183 Colo. 392, 517 P.2d 458 (1973). Other arguments presented have requested a reduction in the amount of damages awarded rather than a complete bar to recovery. One such argument is that the evidence of the plaintiffs nonuse of a seat belt should be admissible on the issue of the plaintiffs failure to mitigate his or her damages. Courts presented with the mitigation theory have split. Some have held that the evidence of nonuse is not admissible for various reasons. Britton v. Doehring, 286 Ala. 498, 242 So.2d 666 (1979); Romankewiz v. Black, 16 Mich. App. 119, 167 N.W.2d 606 (1969); Stallcup v. Taylor, 62 Tenn. App. 407, 463 S.W.2d 416 (1970); Carnation Co. v. Wong, 516 S.W.2d 116 (Tex. 1974). Others have held that the evidence of nonuse is admissible as long as the defendant can demonstrate a causal connection between the nonuse and the damages incurred in the collision. Mount v. McClellan, 91 Ill. App. 2d 1, 234 N.E.2d 329 (1968); Spier v. Barker, 35 N.Y.2d 444, 323 N.E.2d 164, 363 N.Y.S.2d 916 (1974). The other theory advanced by defendants requesting a reduction in the amount of damages awarded is that the nonuse should be admissible as evidence of the plaintiffs comparative negligence. Courts presented with this issue have also split. Some courts have held the evidence of nonuse is not admissible because it could not have contributed to the cause of the accident, therefore it is not a valid ground for the defense of comparative fault. Melesko v. Riley, 32 Conn. Supp. 89, 339 A.2d 479 (1975); Amend v. Bell, 89 Wash. 2d 124, 570 P.2d 138 (1977). Other courts have held the nonuse of a seat belt may constitute such comparative negligence as to allow an apportionment of damages; these courts have analyzed the issue in terms of whether there is available evidence that the nonuse contributed to the injuries rather than whether the nonuse contributed to the cause of the accident. Law v. Superior Court of Arizona, 157 Ariz. 147, 755 P.2d 1135 (1988); Bentzler v. Braun, 34 Wis. 2d 362, 149 N.W.2d 626 (1967).

Although we have never addressed the issue of the availability of the seat belt defense in a comparative negligence context, we have spoken on the subject in general. In Shelter Mut. Ins. Co. v. Tucker, 295 Ark. 260, 748 S.W.2d 136 (1988), we did not reach the merits of the claim because of the admittedly speculative nature of the physician’s proffered testimony concerning the relation between the injuries sustained and the nonuse of the seat belt. However, we did indicate that evidence concerning a plaintiffs nonuse of a seat belt is relevant to “connect” the nonuse of the belt with the injuries. Id. at 263, 748 S.W.2d at 137. In Harlan v. Curbo, 250 Ark. 610, 466 S.W.2d 459 (1971), we reversed the trial court’s giving of an instruction that when considering the question of the plaintiffs negligence, the jurors could consider the fact that seat belts were available for the plaintiffs’ use. As in the present case, in Harlan, the only evidence of the plaintiffs’ nonuse of seat belts were statements that the, belts were available for use but were not used at the time of the collision. The holding in Harlan was based on the fact that the jury was also instructed on the duty of all persons involved in the accident to use ordinary care for their own safety. The additional reference to the nonuse of seat belts was concluded to have been an unnecessary duplication which was unduly emphasized and may have led the jury to attribute to the plaintiff a greater percentage of total fault than should have been the case. Unlike the present case however, Harlan was a case that was submitted to the jury on interrogatories.

The Eighth Circuit Court of Appeals applied both Tucker, supra, and Harlan, supra, in Benjamin v. Potts, 882 F.2d 1320 (8th Cir. 1989), and predicted that we would allow the admissibility of a plaintiffs failure to wear a seat belt if there is evidence that the failure proximately caused the plaintiffs injuries. Although we think Benjamin correctly applied Arkansas law, we proceed with an analysis of the seat belt defense.

Our comparative fault statute provides that “fault” includes “any act, omission, conduct, risk assumed, breach of warranty, or breach of any legal duty which is a proximate cause of any damages sustained by any party.” Ark. Code Ann. § 16-64-122(c) (Supp. 1991). Because this statute defines comparative fault in terms of that which proximately causes damages, we find it necessary to follow the foregoing cases focusing on whether the nonuse caused the plaintiffs injuries, notwithstanding that the nonuse did not cause the accident. Therefore, because appellants’ failure to wear their seat belts was a failure to exercise ordinary care, see Harlan, supra, such failure is not considered “fault” for purposes of comparative fault, unless it was a proximate cause of appellants’ damages. We have defined proximate cause as a cause which, in a natural and continued sequence, produces damage, and without which the damage would not have occurred. Wilson v. Evans, 284 Ark. 101, 679 S.W.2d 205 (1984); AMI 501 (3d ed. 1989). Thus, we hold that appellants’ nonuse of their seat belts may have been admissible as evidence of their comparative fault if such nonuse was a proximate cause of appellants’ injuries.

In asserting that appellants’ failure to wear seat belts was evidence of their comparative fault, appellee had the burden of proving their nonuse of seat belts was the proximate cause of some or all of their injuries. Appellee did not meet this burden. Except for the testimony of the officer who investigated the accident that appellants told him they were not wearing their seat belts, the only evidence offered on this issue came by way of appellants’ admissions on cross examination that they were not wearing their seat belts when the collision occurred. Their admissions alone are not sufficient proof that the nonuse of their seat belts proximately caused some or all of their injuries.

There was no testimony concerning the specific type of seat belt available to appellants and the effect of wearing a similar belt in a similar accident. There was testimony that appellant John Baker suffered injuries to his back and that appellant Carol Baker suffered injuries to her neck, shoulder, and knee. However, there was no testimony concerning the relationship of appellants’ nonuse of seat belts to these injuries. Without any evidence that their nonuse caused their injuries, the trial court erred in denying appellants’ motion in limine and allowing appellee to cross examine on this issue.

Although the jury was properly instructed on comparative fault, because this case was submitted to the jury as a general verdict, we are unable to determine how the jury apportioned fault or if it did so at all. The erroneously admitted evidence may very well have led the jury to attribute appellants with more fault than should have been the case. We therefore reverse and remand for a new trial.

Reversed and remanded.

Hays, J., dissents.

Glaze, J., not participating.


author: Robert L. Brown, Justice.

text:
    Calvin LOWE v. STATE of Arkansas
    CR 91-280
    830 S.W.2d 864
    Supreme Court of Arkansas
    Opinion delivered May 26, 1992

      Baim, Gunti, Mouser, De Simone & Robinson, by: Greg Robinson, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Calvin Lowe, was convicted of two counts of capital murder and was sentenced to life without parole. On appeal, he argues that a) he did not intelligently, knowingly, and voluntarily waive his Miranda rights or voluntarily give his statement, and b) the presence of two police officers in the room during the voir dire of individual panel members tainted the process and effectively deprived him of a fair trial.

We affirm the convictions and sentences.

On Saturday morning, September 29, 1990, the appellant, age twenty-nine and a resident of Pine Bluff, and two other men named Theatrice Hunter and Vincent Hinds traveled to Watson Chapel to a horseshoe shop known as the Forge for the purpose of robbing the owner, Jim Linzy. They arrived at the shop at about 8:30 a.m. Upon entering, the appellant ordered two men, Jim Linzy and Burt Burgess, to lie on the floor, according to one accomplice, and then shot them both with a .22 pistol in the head. Both men died. About $900 was taken from the two wallets. The appellant set fire to Jim Linzy’s wallet and threw it out of the car on the ride home.

Two days later, on October 1, 1990, at 9:00 p.m., the appellant, accompanied by family members, voluntarily surrendered to the Pine Bluff Police Department. On arriving, he was handcuffed to a chair for fifty-five minutes by Detective Ron Ursery while waiting for Lieutenant Brad King, who was assigned to the case, to finish another assignment. He was not read his Miranda rights at this time.

At 9:55 p.m., Lieutenant King and Sergeant John Scarlet took the appellant to an interview room and read him his rights from a standard form. Lieutenant King wrote “yes” beside each separate Miranda right on the form as the appellant answered in the affirmative. He then asked Lowe to initial each answer on the form, which the appellant did. King next asked the appellant if he knew why he was there, and Lowe answered, “Well I understand something about a robbery.” King proceeded to explain why the appellant was there and asked him questions. The officer was not aware that the appellant had low intelligence.

After fifteen minutes of questioning, King transported the appellant to State Police Headquarters. There, State Police Investigator John Howell interviewed him, after first advising him of his rights. Howell wrote in “ Yes Sir” beside each Miranda right on the form, and the appellant initialed it. The time stated on the waiver form was 11:00 p.m. Both Sergeant Nathaniel Clark of the State Police and Investigator Howell talked with the appellant, together and separately. The appellant first denied being at the site where the murders were committed. Sergeant Clark then visited with him alone for about thirty minutes. After that, the appellant gave a statement to Howell in which he admitted having been at the Forge but denied doing the shooting.

After this discussion, Howell obtained a tape recorder for Sergeant Clark to take a taped statement. Sergeant Clark talked with the appellant for about twenty or thirty minutes and then took a statement from him which he thought was being taped; the tape recorder, however, was not functioning properly. The following morning, October 2, 1990, beginning at 2:01 a.m., Sergeant Clark taped a second statement. This time the machine was in working order. The interview was concluded at about 2:30 a.m. that same morning. Sergeant Clark testified that he did not know whether the appellant understood the questions or not but assumed that he did from his responses. Sergeant Clark did not know anything about the appellant’s mental abilities when he took the statement.

The appellant subsequently moved to suppress his statement on grounds that he did not knowingly and intelligently waive his constitutional rights and that the statement itself was coerced. Hearings were held on the motion on May 6, 1991, and May 20, 1991. Evidence at the hearings revealed that the appellant had progressed through the twelfth grade in special education classes. At the second hearing, the appellant testified that after he denied killing Jim Linzy at the Forge, Investigator Howell jumped up and beat on the desk and said he was “a damn liar.” He further testified that Sergeant Clark, who was black, asked him whether he felt better talking to him than to the white officers. Clark, he said, then added that he had been out to the appellant’s house and was told that the appellant’s mother wanted him to tell everything he knew and to tell the truth. Investigator Howell and Sergeant Clark denied that any coercion took place.

On cross examination, the appellant admitted that he had been in trouble three times and that each time he was read his Miranda rights. He also said that he had seen Miranda rights read on television. He interpreted the right to remain silent as meaning that you do not have to say anything.

There was additional testimony at the May 20,1991 hearing about the appellant’s intelligence level. Dr. Douglas Stevens testified for the defense that, after administering several tests, he concluded that the appellant operated verbally in the mentally retarded range and non-verbally in the borderline mentally retarded range. Academically, he was below a third-grade level. He stated, too, that he expected that the appellant would have a general understanding of his Miranda rights when they were read to him but would have difficulty putting them into his own words.

Dr. Kelly Eldridge testified for the State and identified herself as a psychological examiner at the Southeast Arkansas Mental Health Center. She concluded, after administering her own tests, that the appellant’s verbal abilities were in the range of mild mental retardation and that his non-verbal abilities were in the borderline mental retardation range. She also testified that if the appellant had not comprehended his Miranda rights, he knew enough to say so. He operated in the nine-year-four-month-old child’s range, according to Dr. Eldridge. Based on these facts, the circuit court denied the appellant’s motion to suppress.

Trial commenced on May 21, 1991, and the appellant requested individual voir dire. The court then entertained an objection by the appellant and a request to limit the number of deputies in the voir dire room to one instead of two, so that the jurors would not feel intimidated. The appellant did not extend his objection to the estimated ten deputies present in the courtroom. The court denied the request and stated that security was left to the judgment of the sheriff and that he was not going to second-guess that decision absent some proof that the jurors felt intimidated.

At the ensuing trial, the death penalty was requested by the State. Theatrice Hunter testified that the appellant recommended the Forge as a place to be robbed and that he shot and killed both victims at the crime scene. The appellant first ordered the victims to lie on the floor, according to Hunter, and then shot them in the head with a .22 pistol. The appellant’s taped statement was played to the jury. The statement placed him at the location of the crime and revealed that he suggested the robbery and drove the borrowed car to the shop. The jury convicted the appellant on both counts of capital murder and assessed a sentence of life without parole.

We first consider the appellant’s contention that his waiver and statement were coerced. He premises this argument on several allegations: a) he was handcuffed to a chair for fifty-five minutes and not read his Miranda rights; b) Investigator Howell struck the desk and called him a liar; c) Sgt. Clark suggested that he might be more comfortable talking with a black officer; d) Sgt. Clark visited his mother who told the sergeant that she wanted the appellant to tell all; and e) he was detained five hours before completing a taped statement.

Custodial statements are presumed involuntary, and the state has the burden of demonstrating their admissibility. Weaver v.State, 305 Ark. 180, 806 S.W.2d 615 (1991); Moore v. State, 303 Ark. 1, 791 S.W.2d 698 (1990). Here, the coercion alleged does not appear of the magnitude to require reversal. But, in addition, both officers refuted the appellant’s testimony at the Denno hearing and, thus, the issue became one of credibility between the officers and the appellant. The circuit court has wide discretion where the issue is one of witness credibility, and any conflict in testimony is for the court to resolve. State v. Massery, 302 Ark. 447, 790 S.W.2d 175 (1990). The circuit court believed the officers in this case. On review, we cannot say that the court clearly erred in giving more credence to the officers’ testimony. Cf. Weaver v. State, supra. We affirm the court’s finding of no coercion.

The appellant also claims that his statement should be suppressed because his intelligence level made comprehension of his Miranda rights impossible. On appeal, this Court reviews the totality of the circumstances surrounding a confession in determining whether an accused knowingly and intelligently waived his rights, and we reverse a circuit court only if its finding was clearly erroneous. Segerstrom v. State, 301 Ark. 314, 783 S. W. 2d 847 (1990). Factors to consider in determining an intelligent waiver include the age, experience, education, background, and intelligence of the accused. Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992). But a low intelligence quotient, in and of itself, will not render a waiver of rights involuntary where the evidence shows the waiver was knowing and voluntary. See, e.g., Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990); Burin v. State, 298 Ark. 611, 770 S.W.2d 125 (1989); Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988); Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986); Hignite v. State, 265 Ark. 866, 581 S.W.2d 552 (1979).

The Hill case is analogous to the case at bar. Hill was twenty years old at the time of the crime. He was evaluated by a private psychologist and found to have a low I.Q., to be functioning at below a third-grade level, and to be mildly mentally retarded. He also had a tenth-grade education, consisting mainly of special education classes, and drove a car. Hill had been previously convicted of a felony, which gave him some familiarity with the criminal process. At the interrogation, he initialed each Miranda right and signed the waiver form before giving a statement. With these facts, we held that Hill’s argument for reversal was not persuasive.

In the case before us, the appellant was twenty-nine and had completed special education classes through the twelfth grade. Capable of operating an automobile, he drove the borrowed car to the scene of the crime. The appellant testified at the suppression hearing and at trial and stated that he had been advised of his rights three times before in connection with other problems and had seen the procedure on television. He also testified that he knew the Miranda rights meant he did not have to say anything. The defense expert testified that the appellant operated verbally in the mentally retarded range but could generally understand his rights. The State’s expert testified that he functioned as a nine-year-four-month-old child and if he had not understood his rights, he had the capability of asking the interrogator to clarify the matter. Based on this evidence, we cannot say that the circuit court clearly erred in finding a waiver and admitting the statement.

Appellant contends, as his next point, that the presence of the two officers during individual voir dire of panel members was. prejudicial. At the trial, this exchange took place:

Defense Counsel: ... I would like for the record to state that off the record I addressed the Court on the issue of the fact that there seemed to be ten deputies in the courtroom, including the Sheriff himself, and that there are two deputies present in this room for individual voir dire, and that I believe that in itself has a prejudicial effect, gives a poor image to the Defendant. And I believe it is by design, and I believe it is not necessary, and would ask that the Court remove one of the deputies from this room. There is only one door in and one door out and so that the jurors, as they come in individually, do not feel intimidated. / really have no motion towards the number of deputies in the courtroom. I believe there are at least two at every door and two additional. (Emphasis ours.)

The circuit court responded that this was a security matter best left to the sheriff, and the court did not believe the presence of the officers was prejudicial.

We first note that although the appellant now raises the issue of the prejudicial effect of all deputies in the courtroom and in the voir dire room, he only preserved the issue of the two deputies inside the voir dire room for our review. We generally have held that guards or officers present during trial are appropriate unless the defendant can show prejudice. In a similar case, guards stood near the defendant during his trial. See Glick v. State, 286 Ark. 133, 689 S.W. 2d 559 (1985). We held that in light of the fact that the defendant was in court on an escape charge and was a high security risk, it was not prejudicial or obtrusive to have guards standing near him during trial.

The United States Supreme Court has spoken on the issue of officers in the courtroom. See Holbrook, Superintendent, Massachusetts Correctional Institution v. Flynn, 475 U.S. 560 (1986). In Holbrook, four uniformed officers sat in the front row of the spectator’s section to supplement the customary security force, which was overextended at the time. Though the jurors stated that the officers’ presence had no bearing on their ability to give the defendant a fair trial, the First Circuit Court of Appeals reversed the trial court’s decision that the officers’ presence was harmless, stating that the trial court had failed to consider whether the particular circumstances of the defendant’s trial called for the officers’ presence and that the trial court had improperly relied on the jurors’ voir dire responses to rebut any suggestion of prejudice.

The United States Supreme Court reversed the First Circuit, holding that the officers’ presence was not so inherently prejudicial that he was denied his constitutional right to a fair trial; nor did it constitute an impermissible risk of prejudice. The Court stated:

While shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendant’s trial need not be interpreted as a sign that he is particularly dangerous or culpable. Jurors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence. Indeed, it is entirely possible that jurors will not infer anything at all from the presence of guards.
However, “reason, principle, and common human experience,” (citing authority) counsel against a presumption that any use of identifiable security guards in the courtroom is inherently prejudicial. In view of the variety of ways in which such guards can be deployed, we believe that a case-by-case approach is more appropriate.

475 U.S. at 569.

Similarly, in this case, we are not prepared to say that the presence of two officers in the room during individual voir dire is cause for reversal. The circuit court referred to security as a concern. The potential for disruption was understandable in light of the crime, which involved the execution-style slaying of two victims, where the death penalty was sought and where the testimony of an accomplice was contemplated against the appellant. The appellant points to nothing to show that the officers did anything other than sit or stand quietly in the room. We cannot say that their presence was inherently prejudicial or that it presented an unacceptable risk of prejudice.

Accordingly, we hold that there was no abuse of discretion by the circuit court in allowing the two officers to remain in the room for individual voir dire.

The record has been examined in accordance with Ark. Sup. Ct. R. 11(f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed.


author: Mike Kinard, Special Justice.

text:
    Mike DORTON and Don Spence d/b/a D & S Dairy Farm v. Troy FRANCISCO
    91-282
    833 S.W.2d 362
    Supreme Court of Arkansas
    Opinion delivered May 26, 1992

      Laser, Sharp, Mayes, Wilson, Buff or d & Watts, P.A., by:
      Sam Laser and Brian Allen Brown, for appellants.

      Robert L. Robinson, Patricia Stanley Luppen, and Henry Hodges, for appellee.
   Mike Kinard, Special Justice.

The appellants, Mike Dorton and Don Spence, owned and operated a 200 milk cow dairy farm under the partnership name D & S Dairy Farm in Lonoke County, Arkansas. Dennis Madding was an employee of the partnership. Madding’s usual duties included repairing fences, moving cattle, grinding and storing feed, hauling hay, feeding cows and normal farm hand duties. He was engaged in such duties on the day of the accident which gave rise to this litigation.

The appellee, Troy Francisco, was a friend of Madding. On December 29, 1985, the appellee drove by D & S Dairy and stopped to discuss repairs to a truck owned by Madding. Francisco and Madding had worked on Madding’s truck the day before and planned to work on it again that day. While Francisco was waiting on Madding to finish work, he began helping out with chores so that Madding could finish sooner. Francisco had previously been to the dairy farm and had helped to repair a fence, thaw out pipes and assisted with grinding feed and shoveling corn. There was testimony from one of the partners, Don Spence, which confirmed an awareness of appellee’s occasional presence on the premises.

While waiting for Madding that day, appellee raked manure off a cow lot using the tractor. Since appellee had never operated the tractor before, Madding had to show him how to operate it.

Another man, Frank Conley, an acquaintance of all of the parties present (including partners Dorton and Spence), came to the farm after appellee arrived and volunteered his help to complete the farm chores in order to free Madding sooner to go rabbit hunting with him.

As the appellee was finishing, Madding was hooking up a feed mill and another tractor to run an auger. Thereafter, Madding and Conley went upstairs to spread out the feed and appellee stayed downstairs to watch the feed to prevent it from vibrating out and onto the ground. Neither appellee nor Conley were recruited by the farm owners nor were they being compensated for their services. There was no evidence tending to prove that the farm partners had personal knowledge appellee was present on the premises on the day of the accident.

As appellee was standing on the side of the shaft watching the feed, the feed tub fell over spilling the feed out on the ground. As the appellee reached across to push the feed tub upright, his clothing got caught by the universal joint of the auger and he was jerked down where the universal joint pulled him until his windbreaker and T-shirt eventually ripped off, causing permanent and painful injuries including pulling his shoulder out of socket, tearing his biceps and pectoral muscles, and shattering his collarbone.

The appellee filed suit against Mike Dorton and Don Spence d/b/a D & S Dairy Farm alleging that he was an invitee on the premises of D & S and D & S negligently caused his injuries by failing to maintain the premises in a reasonably safe condition. Appellee alleged that the reason his clothing was caught was that a metal guard designed to cover the universal joint on the auger had been removed or pushed back thus creating an unsafe and dangerous condition.

At the close of plaintiffs case, the appellants moved for a directed verdict which was denied. After the ruling of the trial court, appellants rested and renewed their Motion for Directed Verdict. The Trial Court, without specifically ruling on the renewed Motion for Directed Verdict, submitted the case to the jury on a general verdict form.

After deliberation, the jury returned a verdict in favor of the appellee in the amount of $35,000.00. It is from that verdict that the appellants appeal.

Affirmed.

Appellants rely on two points for reversal. They contend (1) that the trial court erred in refusing to direct a verdict because the appellee was a licensee and there was no evidence of willful and wanton conduct and (2) that the trial court erred in refusing to instruct the jury that appellee had the burden of proving he was an invitee on the premises. We disagree.

In ruling on a motion for directed verdict the trial court views the evidence most favorably to the non-moving party and gives that evidence its highest probative value, taking into account all reasonable inferences deducible from it. Kinco Inc. v. Schueck Steel, Inc., 283 Ark. 72, 671 S.W.2d 178 (1984). The motion should only be granted where the evidence is so insubstantial as to require that a jury verdict for the non-moving party be set aside. Carton v. Missouri Pacific R.R. Co., 303 Ark. 568, 798 S.W.2d 674 (1990). On the other hand, if there is substantial evidence to support the jury verdict, the motion should be denied. Id. Substantial evidence is evidence of sufficient force and character that it will compel a conclusion one way or the other and it must induce the mind to pass beyond mere suspicion or conjecture. Id.

The following definitions and descriptions of duties regarding licensees and invitees were given to the jury, by way of jury instruction, before it considered the evidence and rendered its verdict:

One question in this case is whether Troy Francisco was a licensee or an invitee. The reason it is necessary for you to distinguish between the two is that an owner of property owes a different duty to an invitee from that which he owes a licensee.
A licensee is a person who goes upon the premises of another with the consent of the owner for his own purposes and not for the mutual benefit of himself and the owner and not for a purpose connected with the business which the owner conducts or permits to be carried on. The owner’s consent to the licensee’s presence may be express or may be implied from the circumstances.
An invitee is a person who goes upon the premises for a purpose connected with an activity which the owner carries on or permits to be carried on the premises for a purpose mutually beneficial to himself and the owner and by invitation of the owner. The invitation may be express or implied from the circumstances under which the person enters the premises.
The owner owes an invitee a duty to use ordinary care. He owes a licensee a duty to not cause injury willfully or wantonly. If the owner knows or reasonably should know that a licensee is in a position of danger, he has a duty to use ordinary care to avoid injury to the licensee. (AMI 1106)

Appellants cite the cases of Aluminum Co. of American v. Guthrie, 303 Ark. 177, 793 S.W.2d 785 (1990) and King v. Jackson, 302 Ark. 540, 790 S.W.2d 904 (1990) for reversal on this point. We find the facts in these two cases distinguishable. In Aluminum Company of America v. Guthrie, the court held there was no evidence of willful or wanton conduct on the part of Alcoa or that Alcoa discovered or reasonably should have discovered Guthrie’s peril on the night in question. In the instant case the facts support the jury verdict finding that appellee was either known to have been on the premises in the proximity of a dangerous piece of equipment which had been altered by someone other than appellee prior to his arrival or that the jury could decide that appellants should have known from the attendant circumstances that appellee was in a position of danger.

In the case of King v. Jackson, the complaining party came on to the property in error, attempted to leave and in doing so stumbled over shoes and cane poles on the front porch. We affirmed a Summary Judgment, citing W. Keeton, Prosser and Keeton on the The Law of Torts, § 60 at 417 (5th ed. 1984) for the proposition that the duty to warn does not extend to dangers or risks that the trespasser or licensee should have been expected to recognize.

In the case now before the Court, the evidence is uncontroverted that the auger with its safety guard in the up position presented a dangerous and unsafe condition. In addition, the appellee was not a skilled farm hand with knowledge of farm-equipment dangers (he had to have instruction even to operate the tractor) and it was clear the appellee operated the equipment in the condition in which he found it.

This case is also distinguishable from Henry Quellmaly Lumber & Mfg. Co. v. Harp, 173 Ark. 43, 291 S.W. 982 (1927) because in the instant case there is evidence to show that the kind of volunteer services being performed by appellee had been customary and accepted by appellants in the past and while no emergency or pressing necessity was alleged or proved, we believe neither agency nor emergency nor pressing necessity are the standards under prevailing law of negligence relating to persons upon property of another under facts such as we are presented here.

AMI 1106 was given in the form set out above and that instruction presented the jury with a clear recitation of the duties owed to invitees as well as licensees under the facts of this case.

This was not a case which could or should be disposed of by directed verdict because there was sufficient evidence from which the jury could have concluded that Troy Francisco was an implied invitee. But even if the jury did not so determine, there was sufficient evidence from which the jury could have determined that Francisco was a licensee in a position of danger and a person to whom the landowner, D & S Dairy Farm, owed a duty to use ordinary care to avoid his injury.

Finally, while the owner of property owes no duty to make the premises safe for licensees or trespassers, nor is he required to warn them of obvious or patent dangers, there should be a duty to warn such person of hidden dangers known to the owner-occupier. The Restatement (Second) of Torts, Section 342 (1965), Section 342 (1965) states:

“A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensee of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved.”

There was ample testimony in this case from which it could be inferred that D & S Dairy knew or should have known that non-employees would visit the farm and would participate in farming related activities. Coupled with that was the undisputed evidence that the exposed machinery was some of the most dangerous on the farm. When those facts are reviewed in light of the applicable law, there was substantial evidence for the jury to find as it did.

The second point for reversal brought by appellant is whether the trial court erred in failing to instruct the jury that appellee had the burden of proving he was an invitee on the premises.

A Per Curiam order of the Arkansas Supreme Court of April 19,1965, states in pertinent part, “If Arkansas Model Jury Instructions (ÁMI) contains an instruction applicable in a civil case, and the trial judge determines that the jury should be instructed on the subject, the AMI instruction shall be used unless the trial judge finds that it does not accurately state the law.” (Emphasis added.)

At trial the judge instructed the jury, among other things, that Troy Francisco has the burden of proving (1) that he had sustained damages; (2) that the appellants were negligent; and (3) that such negligence was a proximate cause of Francisco’s injuries. Appellants, proffered instruction included a fourth proposition: that appellee had the burden of proof that he was an invitee on appellants’ premises.

The trial court was correct in refusing the proffered instruction because negligence includes both a duty or standard of conduct and a failure to conform to that conduct, thus the substance of the proffered instruction was included in the general negligence instruction given from AMI. Newman v. Crawford Const. Co., 303 Ark. 641, 799 S.W.2d 531 (1990). It is logical that in finding that the appellee proved his burden of demonstrating negligence, the jury necessarily found that the appellee established the standard of care which was owed to him. The jury also had the above-cited jury instruction defining an invitee and licensee and the duties owed to each. It is not necessary for a trial judge to give repetitious or redundant instructions. Newman v. Crawford Const. Co., supra. The court instructed the jury that “a failure to exercise ordinary care is negligence. . . .’’It is the duty of the judge to instruct the jury, and each party to the proceeding has the right to have the jury instructed upon the law of the case with clarity and in such a manner as to leave no grounds for misrepresentation or mistake. W. M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982). We cannot say the instructions given were not clear upon the points of law cited.

For the reasons stated, the judgment is affirmed.

Special Justice Charles L. Gocio joins in this opinion.

Glaze and Brown, JJ., not participating.