author: Donald L. Corbin, Justice. Robert L. Brown, Justice,

text:
    Robert CRAIG v. Mike TRAYLOR
    95-789
    915 S.W.2d 257
    Supreme Court of Arkansas
    Opinion delivered February 12, 1996
    [Petition for Rehearing denied March 11, 1996.]

      Everett, Mars & Stills, by: David D. Stills, for appellant.

      Davis, Cox & Wright, PLC, by: Tim E. Howell, for appellee.

       Brown, J., would grant.

   Donald L. Corbin, Justice.

Appellant, Robert Craig, appeals the order of the Washington County Circuit Court granting summary judgment to appellee, Mike Traylor, on appellant’s complaint for negligence. This appeal presents questions about the law of torts. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(16).

While employed by appellee, appellant injured his hand in a chain-and-sprocket mechanism of a fertilizer spreader owned by appellee. Appellant filed suit against appellee and the manufacturer of the spreader. The trial court entered an order granting summary judgment to appellee. That order is the sole subject of this appeal. Appellant’s remaining claims against the manufacturer were tried to a jury that found in favor of appellant. The manufacturer has appealed the judgment entered pursuant to the jury verdict but is not a party to this appeal.

For reversal of the summary judgment, appellant contends there are disputed questions of fact. Prior to addressing these arguments, we consider two jurisdictional arguments raised by appellee. First, we address appellee’s claim that appellant’s notice of appeal was untimely because a timely notice of appeal is essential to this court’s jurisdiction. Binns v. Heck, 322 Ark. 277, 908 S.W.2d 328 (1995); LaRue v. LaRue, 268 Ark. 86, 593 S.W.2d 185 (1980) (per curiam). Second, we address appellee’s claim that the trial court lacked subject-matter jurisdiction to determine whether appellee was required to provide workers’ compensation coverage to appellant. When the trial court lacks subject-matter jurisdiction, the appellate court also lacks jurisdiction. Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995).

NOTICE OF APPEAL

On May 5, 1995, following the entry of the final judgment pursuant to the jury’s verdict, appellant filed a notice of appeal from the order entered April 21, 1995, that granted summary judgment to appellee. Appellee contends this notice of appeal was ineffective pursuant to Ark. R. App. P. Civ. 4(c) (1996) because it was filed prior to the filing and denial of the manufacturer’s motion for judgment notwithstanding the verdict. Rule 4(c) clearly provides that when any party files a specified post-trial motion, the time for appeal for all parties runs from the entry of the order disposing of the motion or from the deemed-denied date. Thus, according to Rule 4(c), it may well be that because appellant’s notice of appeal was filed prior to the disposition of the post-trial motion, it had no effect, and that appellant was required to file a new notice of appeal within thirty days of the trial court’s disposition of the motion or the deemed-denied date. However, we cannot determine if that is the situation here because the manufacturer’s post-trial motion and the trial court’s order, if any, disposing thereof are not included as part of the record in this case. This court does not consider matters outside the record. Widmer v. Widmer, 288 Ark. 381, 705 S.W.2d 878 (1986). On the record before us appellant’s notice of appeal was filed within thirty days of the final judgment and was therefore timely.

APPLICABILITY OF WORKERS’ COMPENSATION LAW

Should we decide the trial court erred in granting summary judgment, appellee requests that we provide guidance to the trial court on the matter of its “jurisdiction” to determine the applicability of the Workers’ Compensation Law, Ark. Code Ann. §§ 11-9-101 to -1001 (1987 and Supp. 1995), and the agricultural farm labor exception to the definition of “employment” in section 11-9-102(12)(A)(iii).

In his second amended and substituted complaint, appellant alleged appellee “was engaged in the business of selling, delivering and spreading fertilizers and manure in agriculture in Washington County, Arkansas.” Appellant also alleged that he was hired by appellee to operate certain spreaders used in appellee’s business and that appellee was an “employer” as that term is defined by the Workers’ Compensation Law and was therefore bound to provide compensation coverage to appellant. Appellant alleged further that appellee failed to provide such coverage.

Appellee denied that he was required to provide workers’ compensation coverage to appellant and moved to strike as impertinent and immaterial the portions of appellant’s complaint alleging to the contrary. Alternatively, appellee moved that appellant be required to elect between the remedies of filing a claim for workers’ compensation with the Workers’ Compensation Commission or pursuing a cause of action for tort in circuit court. The trial court denied both motions, and after a hearing on the question of whether it had jurisdiction to determine the application of the Workers’ Compensation Law to this case, entered an order concluding its jurisdiction of the coverage question was concurrent.

Appellee contends the Commission has exclusive jurisdiction to determine the applicability of the Workers’ Compensation Law and cites two sources of secondary authority addressing the question of whether the courts or the agency should determine the applicability of workers’ compensation laws to a given case. Daniel Keating, Employee Injury Cases: Should Courts or Boards Decide Whether Workers’ Compensation Laws Apply?, 53 U. Chi. L. Rev. 258 (1986); 2A Arthur Larson, The Law of Workmen’s Compensation § 67.60 (1995). Appellant does not respond to this argument. While both sources cited by appellee suggest that exclusive jurisdiction in the agency is superior to concurrent jurisdiction in the courts and agency, our cases suggest to the contrary. See, e.g., Lively v. Libbey Memorial Physical Medical Ctr., Inc., 317 Ark. 5, 875 S.W.2d 507 (1994) (indicating that either the Workers’ Compensation Commission or the circuit court must determine the applicability of the Workers’ Compensation Law prior to the circuit court’s granting of summary judgment). Therefore, we conclude the trial court did not err in holding that it had concurrent jurisdiction to determine the applicability of the Workers’ Compensation Law.

We observe, however, that although the trial court ruled it had concurrent jurisdiction to determine the applicability of the Workers’ Compensation Law to this case, it never ruled whether the Workers’ Compensation Law did or did not apply to this case. The applicability issue was left unresolved below, and is therefore waived on appeal. Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995).

DISPUTED FACT QUESTIONS

Appellant raises only one point of appeal in his brief, that the trial court erred in granting summary judgment because there existed genuine issues of material fact relating to negligence and proximate causation. Specifically, appellant contends there were disputed facts relating to appellee’s failure to provide safe equipment as required by OSHA regulations, 29 C.F.R. § 1928.57, appellee’s failure to instruct on the proper procedures for cleaning and maintaining the spreader, appellee’s failure to warn of the dangers of the spreader, and whether appellant’s injuries were proximately caused by appellee’s alleged negligence.

In Cash v. Lim, 322 Ark. 359, 908 S.W.2d 655 (1995), this court summarized its standards for summary-judgment review:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. . . .
Accordingly, it is the moving party who has the burden of presenting evidence to sustain a summary judgment, and ¿11 proof submitted must be viewed in the light most favorable to the opposing party. It is further well-settled that once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact.

Id. at 362, 908 S.W.2d at 656-57 (citations omitted).

Appellee moved for summary judgment without explanation, simply stating there were no disputed issues of fact and claiming entitlement to judgment as a matter of law. Attached to the motion was a portion of appellant’s deposition, wherein appellant stated that while the truck that housed the spreader was running, he noticed some chicken litter in and around the sprockets, that he thought the litter needed to be cleaned out, and that he stuck his hand in the sprocket area and began cleaning it when one of the sprockets caught his glove resulting in the injury to his hand. Appellant also stated that, because it was a “little bit safer,” he usually turned the truck off before he cleaned the sprocket area so that the chain and sprocket would not be moving, but that he left the truck running that day because there was still litter running out of the back of the truck bed. Also attached to appellee’s motion were his own affidavit and parts of his own deposition wherein he stated that while driving appellant to the hospital, appellant stated that he stuck his hand in the sprocket mechanism and that “[i]t was dumb.”

Appellant’s response to the motion included an affidavit from Dr. Albert L. Mink, an agricultural engineer from Arkansas State University. Dr. Mink averred that he was a certified OSHA instructor, that he had inspected the spreader that injured appellant, and that 29 C.F.R. § 1928.57 requires employers to protect employees from inadvertently coming in contact with hazards created by moving machinery parts on agricultural equipment, either by location or by installing and using a guard. Dr. Mink opined that appellee was in violation of 29 C.F.R. § 1928.57. Also attached to appellant’s response was a portion of appellee’s deposition wherein appellee stated that he did not remember instructing appellant on any cleaning procedures for the spreader except to “[j]ust [kjeeping, you know, the catwalks clean is basically what I told him.” Appellee stated that he did not give any instructions on general maintenance and service of the spreader. Appellee stated that he received an operations manual when he purchased the spreader but did not show it to his employees, nor did he ever show his employees any type of written instructions or warnings. Appellee stated there was no warning on the spreader about the danger of sticking a hand in the sprocket area.

The trial court granted summary judgment without explanation. The order stated simply that there was not sufficient evidence for a trier of fact to find that appellee was negligent or that his actions proximately caused appellant’s injury. Given the depositions attached to the motion and response, we find it is implicit in the trial court’s order that its resolution of this case was based solely on contributory negligence or comparative fault.

Under the comparative fault statute, there must be a determination of proximate cause before any fault can be assessed against a claiming party, and proximate cause is generally a question for the jury. Williams v. Mozark Fire Extinguisher Co., 318 Ark. 792, 888 S.W.2d 303 (1994). Proximate cause becomes a question of law only if reasonable minds could not differ. Id. Proximate cause is defined as “that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” Id. at 796, 888 S.W.2d at 305. Appellant presented some evidence that appellee failed to instruct appellant on operating and cleaning procedures for the spreader and that appellee failed to take steps to protect appellant from inadvertent contact with the sprocket mechanism as required by 29 C.F.R. § 1928.57. Reasonable minds could therefore differ as to whether appellee’s or appellant’s actions were the proximate cause in this case. In addition, violation of a safety statute is evidence of negligence to be considered by a jury, provided the violation is the proximate cause of the injury. Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995). Consequently, we conclude the trial court invaded the province of the jury, at least by resolving the proximate cause issue, and thereby erred in granting judgment as a matter of law. We therefore reverse the order granting summary judgment and remand for a new trial.

Brown, J., dissents.

Robert L. Brown, Justice,

dissenting. What was done in this case by the plaintiff, Robert Craig, is akin to cleaning sawdust from a chain saw while it is running or grabbing the hot end of a branding iron. Craig himself admitted to Traylor that what he did was “dumb” and said he usually turned the manure spreader off before attempting to clean the chain and small sprocket area. To actually get to the small sprocket and clean where his hand got caught, Craig had to bend down and reach into metal housing which covered the small sprocket. There was no surprise as to how the equipment operated. Craig could see that. The sum and substance of this case comes down to whether the employer had a duty to tell his employee to turn off the manure spreader before attempting to clean it. I believe that there was no duty to tell the employee the obvious, and for that reason, I would affirm.

Whether a duty exists is always a question of law. First Commercial Trust Co. v. Lorcin Eng’g, 321 Ark. 210, 900 S.W.2d 202 (1995); Carroll Elec. Coop. Corp. v. Carlton, 319 Ark. 555, 892 S.W.2d 496 (1995); Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994). We have stated that there is no duty to warn when the danger is obvious. Allen v. Lake Catherine Footwear, 246 Ark. 237, 437 S.W.2d 803 (1969) (flammable solvent). We have recently said that there is no duty to warn when the danger, or potential for danger, is generally known and recognized. First Commercial Trust Co. v. Lorcin Eng’g, supra (firearm sales). And we have affirmed a summary judgment premised on the obvious danger rule pertaining to the owner or occupier of land. See Jenkins v. International Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994). The obvious danger rule does not apply when an invitee is forced, as a practical matter, to encounter the danger in order to perform his job. See Carton v. Missouri Pacific Railroad, 303 Ark. 568, 798 S.W.2d 674 (1990). Nor should it apply when a farm employee is forced to encounter danger on the job.

We have held that a manufacturer’s duty to warn could not be decided as a matter of law. See Hergeth, Inc. v. Green, 293 Ark. 119, 733 S.W.2d 409 (1987). In Hergeth, a worker had his hand amputated by a rotating beater in a flock-feeder machine, which was housed behind a plexiglass window. He had reached in behind the window to retrieve some hangers. The manufacturer raised the argument that there was no duty to warn about work with a flock-feeder machine because the danger was open and obvious. We held that the manufacturer had a duty to warn of inherent dangers and that whether the danger was open and obvious was for the jury to decide on proper instructions.

Here, the issue is not the duty of the manufacturer to warn about its equipment but the duty owed by the employer to warn about an obvious danger. There is clearly an issue of fact over whether Traylor told Craig to clean the manure spreader. But assuming he did, does the duty to warn entail telling Craig to turn off the spreader before he begins cleaning chicken litter from the area of a sprocket and chain? I do not think so.

Were this merely a causation issue, I would agree with the majority that a fact question is presented. But it is not. The appropriate analysis is over the duty to warn, and because of our workers’ compensation laws there is little authority on this point in the master/servant context. I also disagree with the majority opinion that the OSHA regulation (29 C.F.R. § 1928.57) is pertinent. That regulation requires employers to protect employees from inadvertently coming into contact with the hazardous machinery. Inadvertence is not at issue here. Craig purposefully reached into the covered area where the small sprocket and chain were located. Craig’s various statements in depositions substantiate that.

Though the circuit court entered summary judgment due to no genuine issues of material fact, I would affirm the court on the basis that no duty existed to warn the employee under these facts to turn off the chain and sprocket before cleaning that area.

I respectfully dissent.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Roy CHAISSON v. Annette RAGSDALE
    95-945
    914 S.W.2d 739
    Supreme Court of Arkansas
    Opinion delivered February 12, 1996

      Greg L. Mitchell, for appellant.
    No response.
   Robert L. Brown, Justice.

Appellant Roy Chaisson appeals from part of an order which (1) grants appellee Annette Ragsdale a setoff against the child support award for a debt she paid following the divorce, and (2) grants visitation rights. Annette Ragsdale did not file an appellee’s brief. We reverse that part of the chancellor’s order which grants the setoff and visitation rights.

On May 2, 1982, Roy Chaisson and Annette Chaisson (now Ragsdale) were married. Two children, William Roy Chaisson and David Scott Chaisson, were born of that marriage. On October 6, 1988, the couple divorced in New Jersey. The New Jersey divorce decree awarded full custody of the two children to Annette Chaisson, with visitation rights granted to Roy Chaisson. Under the decree, Roy Chaisson was to pay $100.00 a week in child support to Annette Chaisson. He was further ordered to pay certain debts of the marriage, including payment of a loan owed to Atlantic Financial Company. That debt was later sold to Chase Manhattan Bank. Several months after the couple was divorced, Roy Chaisson filed for Chapter 7 bankruptcy. As a result of the bankruptcy, all of his debts, including the Chase Manhattan debt, were discharged. Chase Manhattan later pursued Annette Ragsdale for payment of the debt.

In July 1989, the two Chaisson boys went to visit their father in Mississippi where he now resides. Annette Ragsdale had become disabled due to a dislocated disk in her back, and because of her disability she and Ron Chaisson agreed that the boys would stay with their father. In March of 1990, Roy Chaisson filed a motion in Mississippi to modify the New Jersey divorce decree and requested that custody of the two children be placed in him and that his payment of child support be terminated. On April 6, 1990, he was awarded full custody of the two children by the chancery court in Mississippi, and his payment of child support was halted.

On November 3, 1993, Roy Chaisson, as a resident of Mississippi, filed a uniform support petition in Arkansas and requested that Annette Ragsdale, who had moved to Camden, pay him child support for their son William. (The second son, Scott, had been placed in an institution in Mississippi and was covered by Social Security.) Annette Ragsdale answered the petition and affirmatively pled the defense of setoff.

Two hearings were held on the matter. At the first hearing, Annette Ragsdale testified that after Roy Chaisson took bankruptcy, Chase Manhattan pursued her for payment of the credit card debt. She introduced into evidence the total amount she paid on that debt of $3,816.51. At the second hearing, Annette Rags-dale requested that visitation be set as well as setoff for the debt paid. The chancellor awarded child support to Roy Chaisson in the amount of $37.50 a week. He further found that Annette Ragsdale was entitled to a setoff in the amount of $3,815.51 due to her payment of the Chase Manhattan debt and, in light of that, he held her payments in abeyance until October 20, 1995. He further granted her visitation rights.

Roy Chaisson raises two points regarding the award of set-off and visitation on appeal. Those points can best be combined and framed this way: did the chancellor exceed his authority under the Uniform Interstate Family Support Act (UIFSA)? Roy Chaisson indicates in his brief that the issue of the chancellor’s subject matter jurisdiction over a debt contained in a New Jersey divorce decree was not raised at the trial level. However, the issue of whether the chancellor had the authority to address setoff and visitation issues in a UIFSA proceeding was clearly raised. Accordingly, we will consider that issue.

Arkansas enacted UIFSA in 1993, and it is codified at Ark. Code Ann. § 9-17-101 et seq. (Repl. 1993). It is manifest from the title of the uniform act, as well as the description of proceedings that may be brought under it, that the enforcement of interstate child support awards is the Act’s purpose and focal point. See Ark. Code Ann. § 9-17-301 (Repl. 1993). The duties and powers of the responding tribunal relate to the goal of enforcing child support orders. See Ark. Code Ann. § 9-17-305 (Repl. 1993). Indeed, the Act specifically prohibits conditioning support orders upon compliance with visitation rights. Ark. Code Ann. § 9-17-305(d) (Repl. 1993). The commentary to § 9-17-305 is even more specific and states that visitation issues should not be litigated in the context of UIFSA proceedings. Comment to Ark. Code Ann. § 9-17-305 (Repl. 1995).

This court has addressed the issue of whether collateral matters are appropriate for consideration when the issue before the chancellor is enforcement of child support under a uniform act. See State v. Robinson, 311 Ark. 133, 842 S.W.2d 47 (1992); State v. Kerfoot, 308 Ark. 289, 823 S.W.2d 895 (1992); Iowa v. Reynolds, 291 Ark. 488, 725 S.W.2d 847 (1987). In all three cases, the uniform act involved was the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), which was the predecessor act to UIFSA. We held in each case that consideration of collateral matters, whether they be visitation rights or affirmative defenses to liability for child support, was error.

In both State v. Kerfoot, supra, and State v. Robinson, supra, we quoted with approval from Todd v. Pochop, 365 N.W.2d 559 (S.D. 1985), which concerned the purpose behind the Uniform Reciprocal Enforcement of Support Act (URESA):

The very purpose of the URESA requires that it be procedurally and substantively streamlined. Interstate enforcement of support obligations will be impaired if matters of custody, visitation, or a custodial parent’s contempt are considered by the responding court. The introduction of such collateral issues will burden the URESA mechanism. Moreover, permitting the resolution of other family matters in a URESA petition proceeding may deter persons from invoking the URESA.

Todd, 365 N.W.2d at 560.

The same holds true in the case before us. UIFSA actions are not intended to open up for renewed scrutiny all issues arising out of a foreign divorce. The purpose of UIFSA is support of the child and enforcement of the same. Other issues such as visitation and payment of debts under the divorce decree are collateral matters which necessarily burden the child support determination and run counter to the goal of streamlining these proceedings.

The facts in this case are analogous to those considered by the Wyoming Supreme Court in 1986. See Macy v. Macy, 714 P.2d 774 (Wyo. 1986). In Macy, the husband was required to pay child support by the divorce decree, and the wife was required to pay certain marital debts, one of which was a joint credit card debt. The wife later filed for bankruptcy and named her ex-husband as a creditor. The bankruptcy court discharged all the debts listed in the petition, including the joint credit card debt. The trial court held that the husband was entitled to a setoff against ordered child support for the amount of the debt that he was ultimately required to pay after his ex-wife had been discharged. The Wyoming Supreme Court reversed and held that the husband was enjoined from claiming any setoff because the claim of nondischargeability should have been made by him to the bankruptcy court, and there was no indication that he had done so. The Wyoming Supreme Court stated:

[I]t should be mentioned that child support is for the benefit of the children as plaintiff’s obligation to contribute to the upbringing of his children. A support payment is the children’s money administered in trust by defendant for their benefit. When the plaintiff withholds support for the children, he is depriving them. . . . Plaintiff and the trial judge seem to have lost sight of the real purpose of child support.

Macy, 714 P.2d at 777.

The reasoning of the Wyoming Supreme Court concerning setoff is persuasive and dovetails with our endorsed policy of eliminating collateral matters in connection with the enforcement of child support orders under UIFSA. We are aware that the general setoff statute provides that a setoff may be pled “in any action for the recovery of money.” Ark. Code Ann. § 16-63-206 (1987). We do not construe an action for the establishment of child support as an action for the recovery of money.

In sum, we conclude that the authority of the chancellor in considering the UIFSA petition was limited to establishment of child support and its enforcement. Resolution of other matters like setoff and visitation exceeded that authority in the UIFSA context. As we said in State v. Kerfoot, supra, the forum in which to argue about visitation rights is either where the parties obtained their divorce or the forum where the custodial parent and child reside. The order of the chancellor as it pertains to setoff and visitation is reversed, and the matter is remanded for orders consistent with this opinion.

Reversed and remanded.

       Annette Chaisson subsequently married Sid Ragsdale on January 16, 1993.

       The discrepancy between the amount of $3,816.51 submitted in the way of proof and $3,815.51, which the chancellor ordered to be the setoff amount, exists in the record.


text:
    Mary CLARK v. Robert D. RIDGEWAY, Jr.
    95-695
    914 S.W.2d 745
    Supreme Court of Arkansas
    Opinion delivered February 12, 1996

      Sloan, Rubens & Peeples, by: Kent J. Rubens and Timothy O. Dudley, for appellant.

      D. Scott Hicham, for appellee.
   Robert L. Brown, Justice.

On May 23, 1994, appellant Mary Clark sued appellee Robert Ridgeway Jr. for legal malpractice premised on a conflict of interest and breach of fiduciary duty. Ridgeway moved to dismiss the complaint on several grounds, including the lawyer immunity statute, Ark. Code Ann. § 16-22-310 (Repl. 1994). He further moved for Rule 11 sanctions and attorney fees under Ark. Code Ann. § 16-22-309 (Repl. 1994). Clark then amended her complaint to include allegations of professional negligence, breach of contract, and fraud. The precise allegations read:

12. In August of 1989, Plaintiff and Defendant entered into a contract. Under the terms of the contract, Plaintiff agreed not to object to the appointment of Defendant as a Master in Plaintiffs divorce proceedings. In return, the Defendant agreed that he would not represent either party to the action in the divorce case. The terms of the contract are set forth in Defendant’s affidavit, which is attached hereto as Exhibit “A”.
15. Defendant represented to the Plaintiff that he would not represent either Plaintiff or her husband in the divorce proceedings if Plaintiff did not object to his appointment as Master in the divorce proceedings. Plaintiff conditioned her approval of Defendant’s appointment as Master upon Defendant’s execution of an affidavit stating that he would not represent either party in the divorce proceedings. That affidavit is attached as Exhibit “A”. As set forth above, Defendant later represented Plaintiffs ex-husband in child custody matters and other matters in the divorce proceedings. Plaintiff relied upon Defendant’s representation to her detriment and has sustained damages as a proximate result of her detrimental reliance upon Defendant’s material representations. Defendant knew or should have known that his representations were false when made.

Exhibit A to the complaint is an affidavit by Ridgeway which was executed on August 11, 1989, and was part of the divorce action between Mary Clark and Harvey Clark in Garland County Chancery Court. The affidavit reads in pertinent part:

1. I am Robert D. Ridgeway, Jr., an attorney licensed and practicing in Garland County, Arkansas, and I have acted as the attorney for Clark Industries, Inc., since its incorporation in 1985. I have advised both parties to this divorce that it would be improper for me to do anything but remain neutral in this case, and that it is my desire to continue to act as attorney for the company.
2. During the time in which I have acted as attorney for the corporation, I have had numerous conversations concerning corporate activities with both Harvey Clark and Mary Clark, some of these conversations occurring in person and some of them by telephone.
3. Although most of my communications have been with Mary Clark concerning corporate business, it has always been my impression from my discussions with them that they were both directly involved in the day to day management of the business. I say this from conversations with both of them, in which they mentioned the other at work and involved at the business, and from my telephone calls to the business asking for either of them, and they would both would (sic) be on the job site.
4. From my knowledge of the corporation and the corporation’s business, as mentioned above, it would appear to me that Mrs. Clark is every bit as involved in the day to day management of the business as is Mr. Clark.

A second motion to dismiss the amended complaint was filed by Ridgeway, and that motion reasserted the grounds previously made.

The trial court granted the motion to dismiss. In doing so, it found:

I.
This Court has jurisdiction over the parties and the subject matter of this case.
II.
The Defendant is immune from the Plaintiff’s cause of action pursuant to Arkansas Code Annotated § 16-22-310.
III.
The Defendant, a licensed attorney, cannot be held civilly liable for conduct carried out in reliance on a Court Order.
IV.
The Plaintiffs action seeks to re-litigate an issue which has already been decided three (3) times in the Courts, and twice before the committee on Professional Conduct. As such, the Plaintiffs actions are barred by the Doctrines of Res Judicata and Collateral Estoppel.
V.
The Plaintiff has failed to allege sufficient facts to establish any proximate causation or any other connection between the alleged behavior of the Defendant, and any alleged damages suffered by the Plaintiff.
VI.
The Plaintiff has failed to state facts upon which relief can be granted.
VII.
There are no justiciable issues of law or fact.

Clark contends that the dismissal was error.

A history of this case is necessary to establish the context in which this litigation arose. Ridgeway had apparently performed some legal services for Mary Clark, Harvey Clark (her husband), and the family business, Clark Industries, Inc., during the time frame of 1985 to 1989. In 1990, Mary Clark and Harvey Clark were divorced, with the Property Settlement and Child Custody Agreement being filed on January 25, 1990. As part of the divorce proceedings, Ridgeway executed the quoted affidavit on August 11, 1989, and during the divorce proceedings, he was appointed Master of Clark Industries.

In August 1990, after the divorce decree was entered, Ridgeway represented Harvey Clark and Clark Industries in foreclosure litigation brought by One National Bank against the two clients and Mary Clark. A motion to disqualify Ridgeway as counsel was filed by Mary Clark, and the chancellor denied it.

In 1991, Ridgeway next represented Harvey Clark in a change of custody proceeding involving Clark’s children which was resolved. In 1993, the question of whether Clark had complied with a court order concerning therapy sessions was raised by Ridgeway on behalf of Harvey Clark. In 1993, Clark filed suit against Ridgeway and her divorce attorney, but she later dismissed Ridgeway from the suit without prejudice.

In her appeal in the instant case, Clark contests the findings and conclusions by the trial court in its order: (1) that Ridgeway was immune from civil liability, (2) that he justifiably acted in reliance on a court order, (3) that the suit is barred by issue or claim preclusion, (4) that Clark failed to establish proximate causation, and (5) that there are no justiciable issues of fact. We note initially that some of Ridgeway’s defenses are affirmative defenses (res judicata and collateral estoppel), which are more typically raised by answer and not by a motion to dismiss. Clark does not object to the procedure followed by Ridgeway, however; nor does she contend that she was prejudiced by the process. We have permitted affirmative defenses to be raised by a motion to dismiss in the past. See Amos v. Amos, 282 Ark. 532, 669 S.W.2d 200 (1984) (res judicata); see also Davenport v. Pack, 35 Ark. App. 40, 812 S.W.2d 487 (1991) (laches and limitations). We will consider the defenses in the case at hand.

I. Summary Judgment

We first address whether the order of dismissal was in reality one for summary judgment. In her amended complaint, Clark attached the 1989 affidavit of Ridgeway as an exhibit. Also, in her response to Ridgeway’s motion to dismiss, she attached her own affidavit in which she swore to the facts which led to her “contract” with Ridgeway and the facts that she contends constituted a breach. She attached Ridgeway’s 1989 affidavit as a second exhibit to her response.

When matters outside the pleadings are presented and not excluded by the trial court in connection with a Rule 12(b) motion, we treat the motion as one for summary judgment under Rule 56 of the Arkansas Rules of Civil Procedure. Ark. R. Civ. P. 12(b) and (c); see Carter v. F.W. Woolworth Co., 287 Ark. 39, 696 S.W.2d 318 (1985); see also Godwin v. Churchman, 305 Ark. 520, 810 S.W.2d 34 (1991). The matters which will be considered in summary judgment proceedings are limited to affidavits, depositions, admissions, and answers to interrogatories. Ark. R. Civ. P. 56(c). Because the two affidavits by Clark were not excluded by the trial court and presumably considered by the court, we will treat the dismissal order as one for summary judgment. We emphasize, however, that we will not consider the exhibits attached to Ridgeway’s brief in support of his motion to dismiss in our consideration of the propriety of summary judgment, as we have specifically held that to do so would be incorrect. See Godwin v. Churchman, supra; Eldridge v. Board of Correction, 298 Ark. 467, 768 S.W.2d 534 (1989); Carter v. F.W. Woolworth Co., supra; Guthrie v. Tyson Foods, Inc., 285 Ark. 95, 685 S.W.2d 164 (1985).

II. Negligence and Fraud

Mary Clark’s first contention in this appeal is that the trial judge erroneously dismissed the case on the basis of the immunity statute for certain lawyers (§ 16-22-310(a)). According to Clark, that statute is inapplicable to this case because privity of contract existed between Ridgeway and her. The privity of contract asserted was based on an oral agreement that Ridgeway could serve as Master for Clark Industries, if he represented neither party in the divorce action. Clark attached Ridgeway’s affidavit, which she contends memorializes the contract, and her own affidavit to support her contention.

The apposite statute relating to privity of contract and lawyer immunity reads:

(a) No person licensed to practice law in Arkansas and no partnership or corporation of Arkansas licensed attorneys or any of its employees, partners, members, officers, or shareholders shall be liable to persons not in privity of contract with the person, partnership, or corporation for civil damages resulting from acts, omissions, decisions, or other conduct in connection with professional services performed by the person ....

Ark. Code Ann. § 16-22-310(a) (Repl. 1994). The language of this section is precise and clear and reveals that the contract contemplated by the statute relates to a contract for professional services performed by the attorney for the client. Here, taking the affidavits submitted at face value and the allegations of a contract to be true, the asserted contract did not relate to Ridgeway’s performance of professional services rendered to Mary Clark. Rather, the alleged breach appears to relate to Ridgeway’s representation of Harvey Clark in matters concerning the divorce, which he agreed not to do. We admit to having some doubt about whether the 1989 affidavit bound Ridgeway not to represent Harvey Clark after the divorce decree, but even assuming it did, the alleged contract still does not involve Ridgeway’s legal representation of Mary Clark.

If privity of contract is held to be lacking, Clark asserts that § 16-22-310(a)(l) still provides for a cause of action against attorneys for intentional misrepresentations or fraud. That is true. To establish fraud, the following elements must exist:

(1) a false representation, usually of a material fact;
(2) knowledge or belief by the defendant that the representation is false;
(3) intent to induce reliance on the part of the plaintiff;
(4) justifiable reliance by the plaintiff; and
(5) resulting damage to the plaintiff.

Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993).

Clark alleges in her complaint that Ridgeway knew or should have known that his representations were false “when made.” She then goes forward and asserts that Ridgeway “later” served as legal counsel for Harvey Clark in child custody matters which were part of the divorce proceedings. This legal work occurred after the divorce decree as witnessed by Mary Clark’s affidavit attached to her response to motion to dismiss:

After the divorce, Mr. Ridgeway represented my ex-husband, Harvey Clark, in a custody fight between me and Mr. Clark and also represented Mr. Clark in a court case in which the terms of the settlement agreement reached in the divorce were at issue.

It is clear to us that a promise or averment cannot be made false by subsequent events and still fall under the umbrella of intentional fraud unless the party making the promise knew it would not be kept at the time of the promise. See Anthony v. First Nat’l Bank of Magnolia, 244 Ark. 1015, 431 S.W.2d 267 (1968); Undem v. First Nat’l Bank, 46 Ark. App. 158, 879 S.W.2d 451 (1994). In the Undent case, the Court of Appeals considered an appeal from summary judgment entered in favor of First National Bank of Springdale. An affidavit of the appellant averred that an agent of First National Bank had advised him that he would be relieved of liability on a promissory note he made to the bank when he went off the board of a second bank. He went off the board of the second bank but was then sued by First National Bank on the promissory note. He alleged fraud by the bank’s agent but the trial court entered summary judgment against him, apparently on the basis that representations relating to future events cannot afford a basis for actionable fraud. The Court of Appeals reversed and held that a genuine issue of material fact existed on fraudulent inducement.

The instant case is different from Undem v. First Nat’l Bank, supra. Here, Clark points to Ridgeway’s legal representation of Harvey Clark after the divorce decree in the foreclosure action and the change-of-custody battle. Unlike the liability on the promissory note in the Undent case, neither lawsuit could have been foreseen with any degree of certainty when the 1989 affidavit was made by Ridgeway. Both developed from circumstances arising after the divorce decree. We find no factual basis for the conclusory allegation in Clark’s amended complaint that Ridgeway intentionally misrepresented his statement of neutrality in the divorce case on August 11, 1989. See Evans Indus. Coatings, Inc. v. Chancery Court, Union County, 315 Ark. 728, 870 S.W.2d 701 (1994). Thus, we conclude that no genuine issue of material fact has been presented on the immunity question with respect to negligence and fraud and that the court’s finding and conclusion that Ridgeway was immune from Clark’s complaint under § 16-22-310 was correct.

Nor do we view § 16-22-310 as usurping this court’s authority to regulate the practice of law. See Ark. Const, amend. 28. The statute enunciates the parameters for litigation by clients against attorneys and does not conflict with any rule or decision by this court. The arguments of legislative usurpation and violation of the separation of powers are meritless.

III. Breach of Contract

As quoted above, Clark alleged in her amended complaint that a contract existed based on mutual promises between herself and Ridgeway. She further alleged that she was damaged by Ridgeway’s breach of contract due to loss of custody of her daughters and her property valued at $250,000. In her affidavit attached to her response to the motion to dismiss, she had this to say about the contract:

3. After the divorce case between Harvey Clark and me was filed, Mr. Clark and I could not agree on who should run Clark Industries or how it should be run. A suggestion was made that a Master be appointed to oversee Clark Industries during the pendency of the divorce. Mr. Ridgeway was mentioned as a potential candidate for Master. I talked with Mr. Ridgeway and asked his assurance that he would never represent either me or Harvey against the other if he was appointed Master. Mr. Ridge-way promised me that he would not do so because it would not be fair to either party for him to do so since he had represented both parties in the past. Defendant then executed an affidavit in which he stated that it would be improper for him to do anything but remain neutral in the divorce case.

Whether a contract exists or not is for the trier of fact to determine. Tolson v. Dunn, 48 Ark. App. 219, 893 S.W.2d 354 (1995). Here, the allegations and affidavits are sufficient to raise a fact question as to whether a contract was made. The issue then becomes whether the cause of action is precluded by prior litigation where breach of contract could have been raised. See In Matter of Estate of Goston v. Ford Motor Co., 320 Ark. 699, 898 S.W.2d 471 (1995).

Though Ridgeway argues in his brief that his disqualification as counsel has been resolved by at least two chancellors, it does not appear that a decision on Clark’s allegation of breach of contract has been made. Was there previous litigation where the issue could have been raised and resolved? We do not think so. It is true that Clark joined Ridgeway briefly as a party defendant to her lawsuit against her divorce attorney in 1993, but she later dismissed him without prejudice. See Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995). The complaint in the case before us was then filed in 1994. Clark is entitled to have this claim heard. Ridgeway asserts that Clark has already been compensated for any damages due to the successful lawsuit against her divorce attorney. That may be, but we have insufficient information before us to resolve that issue on summary judgment. For these reasons, we reverse the trial court’s order solely as it pertains to Clark’s complaint of breach of contract and remand for trial.

TV. Miscellaneous Points

Clark further urges that Ridgeway purposefully failed to disclose his 1989 affidavit to the chancellors who denied his disqualification as counsel. Because Clark presumably had a copy of the affidavit, as it was part of her divorce proceedings, we give this point little credence.

On another point, whether sufficient facts support proximately caused damages is no longer relevant. Proximate causation is an essential element for a cause of action in negligence. W. Page Keeton et al., Prosser & Keeton on the Law of Torts, § 41, at 263 (5th ed. 1984). We have held in this opinion that Ridgeway is immune from a negligence claim due to lack of privity. The only viable claim is breach of contract, and proximate causation is not an essential element to a finding of damages due to contractual breach.

Finally, Clark asserts a breach of fiduciary duty and conflict of interest on Ridgeway’s part. These claims appear to be closely aligned to her claim of legal malpractice and fraud and arise out of his representation of Harvey Clark after the divorce decree in connection with the property of the marriage and custody matters. We perceive no duty flowing to Clark from Ridgeway based on legal representation as already discussed. This claim has no merit, and we affirm the trial court’s order on this point.

Affirmed in part. Reversed in part and remanded.

       This matter was subsequently appealed to this court, and we rendered a decision in Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995).


author: Robert L. Brown, Justice. Tom Glaze, Justice, Donald L. Corbin, Justice, Robert L. Brown, Justice.

text:
    FIRST COMMERCIAL TRUST COMPANY, Substitute Administrator of the Estate of Laura Allison Fullbright, Deceased v. Joseph John RANK, Mary Ellen Robbins, and Rheeta Stecker, M.D.
    95-518
    915 S.W.2d 262
    Supreme Court of Arkansas
    Opinion delivered February 12, 1996
    [Supplemental Opinion on Denial of Rehearing delivered March 18, 1996.]

      Gary Eubanks & Associates, by: James Gerard Schulze and William Gary Holt, for appellant/cross-appellee.

      D. Scott Hicham, for appellees/cross-appellants Joseph John Rank and Mary Ellen Robbins.

      Friday, Eldredge & Clark, by: Tonia P. Jones, for appellee/cross-appellant Rheeta Stecker.
   Robert L. Brown, Justice.

The appellant, First Commercial Trust Company, Administrator of the Estate of Laura Full-bright, appeals from a judgment in favor of appellee Dr. Rheeta Stecker, who was the family doctor for Laura Fullbright and her mother, Mary Ellen Robbins. The Administrator asserts that the trial court abused its discretion in refusing to allow a medical expert, Dr. Frederick Epstein, to testify with respect to the standard of medical care regarding child abuse in Hot Springs. We agree that this was error, and we reverse the judgment in favor of Dr. Stecker and remand the matter for a new trial on the medical negligence count. We affirm the judgment in favor of Dr. Stecker on the count relating to failure to report under the child abuse reporting statute, and we hold that the refusal of the trial court to direct a verdict on this count in favor of the Administrator was not error.

On June 12, 1992, Mary Ellen Robbins took her 12 1/2-month-old baby, Laura Fullbright, to Dr. Rheeta Stecker for a “well-baby checkup.” Robbins was a pharmacist and had been a patient herself of Dr. Stecker’s for approximately five years. Dr. Stecker referred to her as a “colleague.” During that checkup, Dr. Stecker noticed that Laura’s forearm was angulated and swollen, but upon checking, she determined that it was not tender and there was no bruising. An X-ray showed that there was a fracture to both of the bones of the lower left arm. Robbins and her boyfriend, Joe Rank, stated that they did not know what had caused the fractures. Dr. Stecker then referred Robbins to Dr. Robert Olive, an orthopedic surgeon, to assure that the bone would heal properly. At that time, Dr. Stecker believed that there was a possibility the child had been neglected, and that belief was communicated to Dr. Olive. After treating Laura, Dr. Olive stated in a letter to Dr. Stecker that the bones would heal nicely and that there did not appear to be any evidence of neglect.

On July 9, 1992, Robbins visited Dr. Stecker’s office again. During that visit, Robbins complained that Laura was “wobbly” and unbalanced. Dr. Stecker did not find any signs of head trauma. Dr. Stecker decided that Robbins had given Laura too much juice. Because Laura had been on multiple antibiotics frequently for a chronic ear infection, Dr. Stecker opined that there might be an overabundance of yeast in her stomach, causing her to become intoxicated.

On July 21, 1992, Robbins returned with Laura again. Dr. Stecker was not there, but her husband, Dr. Elton Stecker, was present and treated Laura. Dr. Elton Stecker’s records state that Laura had been nauseated the previous day and had vomited that morning. When the child awoke, there was swelling on the right side of the head in the temple area and over the right eye. Robbins told Dr. Elton Stecker that the bruise above the right ear was caused by a fall the week before.

The next morning, on July 22, 1992, Robbins made two phone calls to the Stecker clinic. In the first of those calls, she stated that she believed Laura was having an allergic reaction and that the swelling over the right eye had gone down but that the other eye had become swollen. Later on that morning, Robbins called and stated that both eyes seemed to be swollen and that Laura was running a temperature of approximately 99.5 degrees. She was told by the nurse to bring Laura in.

When Laura was brought into the clinic, Dr. Rheeta Stecker examined her. Prior to this examination, she referred to the notes taken by her husband the previous day. Both of Laura’s eyes now appeared to be swollen, and there was some purplish discoloration. Robbins informed Dr. Stecker that the child had fallen down several stairs the week before and that several of the bruises were related to that fall. Robbins asked if the swelling of the upper lids could be related to allergies or to spider bites. Robbins told her that Laura had had a watery nasal discharge for the last few days which she thought was due to an allergy. At that point, Dr. Stecker discussed the possibility of abuse with Robbins. Robbins informed her that it was highly unlikely, but that her son, Matthew, might have dropped Laura. She further stated that her boyfriend, Joe Rank, was not the type to have a bad temper. Dr. Stecker did not report her suspicions to the Arkansas Department of Human Services.

On September 12, 1992, Robbins was working and left Laura with Joe Rank. When she returned Rank informed her that Laura was taking a nap and that she had fallen down in the driveway. When Robbins went to wake Laura from her nap, she found Laura lying in bed and moving her head from side to side. When she took a closer look, she saw what appeared to be either juice or blood draining from the corner of her mouth. When she picked Laura up, the child was limp. She immediately took Laura to St. Joseph’s Regional Health Center in Hot Springs. At St. Joseph’s, Laura was not breathing and did not have a pulse. She was transported to Arkansas Children’s Hospital in Little Rock where she was later pronounced dead.

The medical examiner, Dr. William Sturner, determined that the cause of death was homicide. He found four bruises on the child’s scalp and bruises on her left hand and arm. He also found abraded contusions on the mid-chest of the body and on the face, forehead, the right eyebrow, and the right cheek. The most significant injury, he concluded, was a fracture to the child’s skull, with corresponding brain damage. Dr. Sturner opined that those injuries would have had to have been caused by a marked or severe force.

Suit was commenced on behalf of Laura’s estate. The suit alleged that Joe Rank intentionally assaulted Laura Fullbright and that her mother, Mary Ellen Robbins, negligently placed Laura in the care of Rank with the knowledge of his past abusive behavior. Medical negligence was alleged against Dr. Rheeta Stecker in addition to her failure to report her suspicions of child abuse under the child abuse reporting statute. Prior to trial, Dr. Stecker moved twice for summary judgment on the basis that the alleged actions on her part were not violative of the child abuse reporting statute. The second motion included a prayer for summary judgment on the medical malpractice claim against her. The trial court denied the motions.

The case went to trial, and the trial court, at the conclusion of the plaintiffs case, granted a partial directed verdict in favor of Rheeta Stecker on the issue of medical malpractice after refusing to allow the plaintiffs expert, Dr. Frederick Epstein, to testify as to the standard of medical care concerning child abuse in Hot Springs. The case proceeded on the remaining issues, and the jury returned a verdict against Joe Rank in favor of Matthew Robbins, Laura’s half-brother, in the amount of $1,000,000. The jury found in favor of Mary Ellen Robbins and Dr. Rheeta Stecker on the remaining failure to report count. Judgment was entered accordingly.

I. Medical Expert Witness

The Administrator’s first argument is the trial court erred in excluding the testimony of Dr. Frederick Epstein on the standard of care for diagnosing child abuse in Hot Springs, as required by the Medical Malpractice Act and specifically by Ark. Code Ann. § 16-114-206(a)(1) (1987). Dr. Epstein testified that he was an emergency medicine physician from Panama City, Florida. His curriculum vitae confirmed that he was a highly qualified physician.

Dr. Epstein testified that Panama City had a population of approximately 80,000 people. He further testified that in terms of the medical facilities available, Panama City was “very similar” to Hot Springs and that he was unaware of any facilities needed to detect possible child abuse that would have been available in Panama City but not available in Hot Springs. He added that he was familiar with the type of practice in which Dr. Stecker was involved and had formulated an opinion about the standard of care. At that point, the Administrator requested Dr. Epstein’s opinion on whether or not Dr. Stecker breached the standard of care.

Prior to the opinion being rendered, Dr. Stecker’s attorney asked to voir dire the witness on his qualifications. Dr. Epstein admitted that he was an emergency room specialist rather than a family practitioner and that he did not practice family medicine. He added that the difference in the two specialties was that family practitioners have an on-going doctor/patient relationship and that that was usually not present in emergency room practice. He testified, nevertheless, that the standard of care for doctors in detecting and reporting child abuse would be the same for both emergency room physicians and family practitioners. Counsel for Dr. Stecker then objected to the admission of Dr. Epstein’s opinion on the standard of care relating to diagnosis of child abuse on grounds of dissimilar practice and locality. The trial court conditionally granted Dr. Stecker’s motion to exclude the expert testimony but allowed the Administrator to make a proffer of proof.

The Administrator first proffered the testimony of Dr. Stecker concerning the medical community in Hot Springs. Dr. Stecker, under questioning by the Administrator’s counsel, testified that Hot Springs, a community with a population of approximately 35,000, had two acute and two subacute hospitals. One of the acute hospitals usually had an occupancy of about 120 beds, although it had a capacity of around 270. The other acute care hospital had a capacity of closer to 70 beds, although it had an average occupancy of about 60 patients. Dr. Stecker testified that although the hospitals were located in Hot Springs, both of the hospitals drew patients from throughout Garland County. She also testified that there were approximately 150 physicians in Hot Springs, eight or nine of whom were pediatricians. She added that the only equipment needed in the evaluation of Laura Fullbright was X-ray equipment and possibly a CT scanner, both of which were available to her. She further testified that the injuries that she encountered in her examination of Laura Fullbright were injuries that might be treated by an emergency room physician.

After Dr. Stecker’s testimony, the Administrator recalled Dr. Epstein as part of his proffer. Dr. Epstein opined that based on the testimony of Dr. Stecker it was his opinion that Panama City was a comparable locality to Hot Springs. Dr. Epstein was then handed a Hot Springs telephone book and was asked if he could draw any conclusions about the makeup of the medical community based on the yellow pages. From that, he testified that the range of specialties and subspecialties available in Hot Springs was comparable to the range of specialties available in Panama City. He stated that the majority of patients that he encountered in the emergency room were not suffering from life-threatening injuries and that, although it was not intended for that purpose, the emergency room is used by some as a clinic. Therefore, in reality, he was able to know some of the patient’s families and history as well as Dr. Stecker might in her family practice. He added that sometimes he saw patients as many as three times a month. He concluded by stating that his opinion on this case turned more on the history of the case and the physical examinations than on any technology that was or was not available to Dr. Stecker. A Hot Springs physician, he maintained, would apply the same standards in taking the history of the case and performing the physical examination that a Panama City physician would.

After the Administrator’s proffer of Dr. Epstein’s qualifications, the trial court made the following ruling on the admissibility of Dr. Epstein’s opinion testimony:

The one burdensome thing that concerns the Court is that you have a highly skilled expert, emergency room practice, has written numerous times, has a curriculum that’s several pages. And here is a family practitioner. And I just hesitate to find that that highly skilled doctor would know what the standard is here in Hot Springs, Arkansas, or this locale. For that reason, I would exclude it.

Dr. Epstein then proffered his opinion that after reviewing the documentation, he believed Dr. Stecker failed to meet the standard of care by not reporting the suspected child abuse to investigating agencies on July 22, 1992.

The determination of an expert witness’s qualification is within the discretion of the trial judge. Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989); McElroy v. Benefield, 299 Ark. 112, 771 S.W.2d 274 (1989); Phillips v. Clark, 297 Ark. 16, 759 S.W.2d 207 (1988). However, this discretion is not absolute, and this court will reverse, if the trial court abuses its discretion. Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991).

a. Different Specialty

In Cathey v. Williams, 290 Ark. 189, 718 S.W.2d 98 (1986), this court expressed its agreement with the reasoning of Evans v. Ohanesian, 38 Cal. App. 3d 125, 112 Cal. Rptr. 236 (1974), in which the California court stated:

Nor is it critical whether a medical expert is a general practitioner or a specialist so long as he exhibits knowledge of the subject. Where a duly licensed and practicing physician has gained knowledge of the standard of care applicable to a specialty in which he is not directly engaged but as to which he has an opinion based on education, experience, observation or association with that specialty, his opinion is competent. [Citation.] The reason for not requiring specialization in a certified field is obvious. Physicians are reluctant to testify against each other. [Citations.] Consequently, when an expert can be found, it is immaterial whether he is a general practitioner or a specialist providing he has knowledge of the standard of care in any given field; otherwise, the plaintiff could never prove a case against a specialist unless he has an expert of the particular specialty, and the plaintiff would never be able to sue a general practitioner unless he had a general practitioner who was willing to testify as an expert. [Citation.]

290 Ark. at 192-193, 718 S.W.2d at 101. We then went forward and rendered this holding:

We do hold that when the particular issue relates to a question within the general practitioner’s own area of expertise, he is not prohibited by the malpractice statute from testifying upon that question as an expert.

290 Ark. at 194, 718 S.W.2d at 101.

In the instant case, Dr. Epstein testified that the standard of care for doctors in detecting and reporting child abuse would be the same for emergency room physicians and family practitioners and that no specialized technology available only to an emergency room physician was necessary for these evaluations. Indeed, Dr. Stecker agreed that she had the necessary equipment on hand to detect child abuse. But she contended that Dr. Epstein’s emergency room practice and expertise made him unsuitable to testify about the standard of care for a family practitioner without emergency room expertise.

We disagree. What Dr. Epstein seemed to be asserting is that the knowledge necessary to evaluate a potential child abuse situation is one that is basic to the science of medicine and is the same regardless of whether the physician had a family medicine practice or an emergency room practice.

In this case, he based his opinion on the series of visits which Laura and her mother made to Dr. Stecker’s office in June and July of 1992 and the doctors’ notes and records respecting each visit. Had only one visit been made with signs of neglect or abuse, Dr. Stecker’s argument about dissimilar practices and knowledge of the family might have more merit. But here, in light of the pattern of visits [June 12, 1992 (broken arm); July 9, 1992 (wobbly demeanor); July 21, 1992 (swollen right temple and right eye); and July 22, 1992 (both eyes swollen and bruised)], and the medical records available, we see no reason why Dr. Epstein’s opinion would not be apposite. We are further persuaded that under these circumstances the variances in practices would not be a pivotal factor in diagnosing child abuse. See Cathey v. Williams, supra.

b. Similar Locality

Nor do we view Panama City, Florida as sufficiently dissimilar to Hot Springs to disqualify Dr. Epstein from testifying about child abuse. This court has addressed the similar locality rule in several cases. In Gambill v. Stroud, 258 Ark. 766, 531 S.W.2d 945 (1975), we wrote:

The rule we have established is not a strict locality rule. It incorporates the similar community into the picture. The standard is not limited to that of a particular locality. Rather it is that of persons engaged in a similar practice in similar localities, giving consideration to geographical location, size and character of the community. The similarity of communities should depend not on population or area in a medical malpractice case, but rather upon their similarity from the standpoint of medical facilities, practices and advantages. For example, appellants state in their brief that it was uncontroverted that the medical standards of practice in Jonesboro, Little Rock, and Memphis are comparable. Thus, they could be considered similar localities.

258 Ark. at 770, 531 S.W.2d at 948-949. (Citations omitted.)

An expert witness need not be one who has practiced in the particular locality, or one who is intimately familiar with the practice in it in order to be qualified as an expert in a medical malpractice action, “if an appropriate foundation is established to demonstrate that the witness is familiar with the standard of practice in a similar locality, either by his testimony or by other evidence showing the similarity of localities.” White v. Mitchell, 263 Ark. 787, 568 S.W.2d 216 (1978). Conclusory statements that the physician is so familiar are not enough. See Grice v. Atkinson, 308 Ark. 637, 826 S.W.2d 810 (1992). But that is not the situation in the case before us.

Here, unlike Grice v. Atkinson, supra, the trial court was provided evidence of similar localities through the testimony of Dr. Stecker and Dr. Epstein. There is, too, the irresistible suggestion that whether child abuse was evident is a question that spans localities irrespective of size and available technology. We further do not believe that by being called to proffer testimony about practice in Hot Springs Dr. Stecker was forced to be an expert against herself as contemplated by Ark. Code Ann. § 16-114-207(3) (1987).

In light of the above, we conclude that the trial court abused its discretion in excluding the medical expert testimony of Dr. Epstein. We reverse and remand the matter for a new trial solely for the claim made under the Medical Malpractice Act.

We next address whether a remand of the medical malpractice claim for trial would be a futile and useless act. See Alexan der v. Twin City Bank, 322 Ark. 478, 910 S.W.2d 196 (1995). Dr. Stecker contends that it would be since there is no cause of action for medical negligence for failure to report child abuse and, secondly, since there is no proof that the failure to report caused the death of Laura more than 1 1/2 months later. In essence, Dr. Stecker contends that the absence of a cause of action for medical negligence is another reason to affirm the directed verdict by the trial court.

Dr. Stecker cites us to Cechman v. Travis, 202 Ga. App. 255, 414 S.E.2d 282 (1992), for the proposition that a medical negligence claim does not lie under these facts. In Cechman, the doctor of a child later killed by an abusive father failed to report suspected child abuse after one examination in the emergency room. The Georgia Court of Appeals affirmed a grant of summary judgment in part because common law medical negligence did not impose a legal duty to discover and report a case of possible child abuse.

The scope of medical injuries giving rise to potential negligence claims in Arkansas, however, is apparently much broader than that in Georgia. “Medical Injury” is defined under the Medical Malpractice Act as “any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services; ... or from failure to diagnose, ... or otherwise arising out of or sustained in the course of such services.” Ark. Code Ann. § 16-114-201(3) (1987). We conclude that this broad language encompasses a cause of action for failure to diagnose child abuse under the facts of this case. Moreover, counsel for Dr. Stecker conceded at oral argument that a child’s death the day after suspected child abuse might be actionable as medical malpractice. We believe that the trial court appropriately refused to enter summary judgment in favor of Dr. Stecker on this point.

There is, then, the question of causation. Dr. Stecker points to the absence of a causative relationship as still another reason to affirm the directed verdict. But causation is ordinarily a fact question for the jury to decide. See Catlett v. Stewart, 304 Ark. 637, 804 S.W.2d 699 (1991). Here, Doug Shuffield, the brother of Robbins and an investigator for the Department of Human Services, testified for the Administrator. He stated that had Dr. Stecker voiced suspicion to his agency of child abuse involving Laura, he would have recommended that an investigation be commenced. Though he believed that the complaint would have ultimately been deemed “unfounded,” he acknowledged that in some instances knowing someone is going to be investigated might offer protection against abuse. He agreed that it might cause an abuser “to be more careful,” and “mind their manners from the standpoint of abuse.”

This stands to reason. Reporting child abuse would lead to an investigation which could result in some prophylactic action after the State entered the picture. In this case, Laura’s father, Jim Fullbright, might have been alerted to take some legal action. The failure to report, however, allows the matter to fester unabated. We conclude that a fact issue for the jury exists in this case on whether the failure to diagnose and report was a partial cause of the death of Laura Fullbright.

II. Directed Verdict

The Administrator also contends that the trial court erred in not directing a verdict in its favor on the count of failure to report reasonably suspected child abuse under § 12-12-507. According to the Administrator’s contention, Dr. Stecker admitted that she suspected child abuse but did nothing about it. As a result, the Administrator urges that a directed verdict on this point was appropriate. We disagree. There is no doubt that Dr. Stecker had suspicions but the question is whether she had reasonable cause to suspect abuse. That was an issue for resolution by the jury, and the jury resolved the issue in favor of Dr. Stecker.

Furthermore, we have made it clear that we are extremely reluctant to affirm a directed verdict on behalf of a plaintiff. Young v. Johnson, 311 Ark. 551, 845 S.W.2d 510 (1993). In Young we quoted with approval from United States Fire Ins. Co. v. Milner Hotels, 253 F.2d 542, 547 (8th Cir. 1958):

Thus, no matter how strong the evidence of a party, who has the burden of establishing negligence and proximate cause as facts, may comparatively seem to be, he is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise.

311 Ark. at 555, 845 S.W.2d at 512; see also Potlatch Corp. v. Missouri Pacific R.R. Co., 321 Ark. 314, 902 S.W.2d 217 (1995). That test is not met in this case, and the trial court committed no error in denying the Administrator’s motion for a directed verdict.

We will not entertain Dr. Stecker’s cross-appeal on the “willful” component of the child abuse reporting statute because Dr. Stecker prevailed on that claim. See Walker v. Kazi, 316 Ark. 616, 875 S.W.2d 47 (1994).

Affirmed in part. Reversed and remanded in part.

Glaze, J., concurs.

Corbin, J. dissents.

Tom Glaze, Justice,

concurring. This case is one of first impression under our child abuse reporting statutes, but unfortunately, was not presented to this court in such a way to establish legal precedent under those statutes. I write only to emphasize certain points not discussed in the majority opinion.

Our child abuse reporting statutes are found at Ark. Code Ann. §§ 12-12-501 — 518 (Repl. 1995), and among other reasons, were enacted to protect the best interest of the child and to prevent further harm to the child. § 12-12-501. Under § 12-12-507(b), any physician, dentist, medical personnel, teacher, day care worker, inter alios, having “reasonable cause to suspect that a child has been subjected to child maltreatment . . . shall immediately notify central intake or law enforcement.” (Emphasis added.) The statute places a duty on those who are most likely to observe and examine the child, and who are in positions of trust of the child’s welfare. Additionally, § 12-12-507(c) provides that “[n]o privilege or contract shall relieve anyone required by the subchapter to make notification of the requirement of making notification.” Thus, under our statutory scheme, a physician has an absolute duty to report to authorities when the physician has a reasonable suspicion that child abuse has occurred, and the physician cannot claim a doctor-patient privilege in order to avoid the statute’s reporting requirements.

In the present case, Dr. Rheeta Stecker admitted she suspected Laura’s injuries were due to child abuse beginning with Laura’s broken arm; nonetheless, she made a conscious decision not to report those suspicions. The standard of care is what a physician in Stecker’s position should have reasonably suspected. The burden was on the estate to show that Stecker breached that standard of care, and at what point in time, she had an absolute duty to report her suspicions. While Dr. Epstein testified, in his opinion, Stecker breached her duty to report on July 22, the jury never heard this testimony. As the majority opinion holds, we are reversing because of the exclusion of Epstein’s testimony as to the medical malpractice cause of action. However, the estate did not properly preserve reversal as to the issue of violation of the child abuse reporting statutes. Without Epstein’s excluded testimony, there is no evidence to show Stecker breached her duty under the reporting statutes. This court cannot reverse a trial court for denying a directed verdict based on evidence never presented to the trier of fact.

Finally, I note that while Stecker contended on appeal that her failure to report was not the proximate cause of Laura’s death, nothing in the statute requires that failure to report child abuse result in the child’s death. Under section 12-12-504(b), any person, official, or institution required to make notification of suspected child maltreatment who willfully fails to do so shall be civilly liable for damages proximately caused by that failure.

Because the estate filed its complaint against Stecker for damages under two different causes of action, medical malpractice and violation of the child abuse reporting statutes, it was necessary to show Stecker breached both standards of care. The estate failed to meet its burden under the reporting statutes.

Donald L. Corbin, Justice,

dissenting. The majority does no more than substitute its independent thinking for that of the trial judge on the issue of the admissibility of Dr. Epstein’s proffered expert testimony on the standard of care for diagnosing child abuse in Hot Springs. In so doing, the majority fails to apply the abuse-of-discretion standard by which we are required to review the trial court’s ruling in this matter.

An expert witness’s qualifications are a matter lying within the trial court’s discretion, and, absent an abuse of discretion, will be upheld on appeal. Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995); Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989). We have stated that manifest abuse of discretion means “ ‘a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration.’ ” Nazarenko v. CTI Trucking Co., Inc., 313 Ark. 570, 582, 856 S.W.2d 869, 875 (1993) (quoting Security Ins. Co. v. Owen, 255 Ark. 526, 501 S.W.2d 229 (1973)). Applying that definition to the facts of the present case, I cannot agree that the trial court abused its discretion in excluding Dr. Epstein’s testimony.

To sustain its medical-malpractice claim, appellant was required to prove “[t]he degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices, or in a similar locality[.]” Ark. Code Ann. § 16-114-206 (1987) (emphasis added). Applying this standard, the trial court determined that Dr. Epstein was not qualified to offer expert testimony on the issue of the standard of care for diagnosing child abuse in Hot Springs. I find no abuse of discretion.

As regards the differences in the medical specialties of Dr. Epstein and Dr. Stecker, Dr. Epstein’s testimony and curriculum vitae confirm that he is a highly-qualified emergency-medicine physician. Dr. Epstein testified that he is an emergency-medicine specialist rather than a family practitioner, and does not maintain an independent office outside the hospital where he practices. Dr. Epstein conceded on voir dire that the types of medical problems he deals with, as an emergency-medicine physician, are different from those of a family practitioner. This statement may be confirmed by an examination of Dr. Epstein’s vitae revealing his publications on the subjects of brain injury, transfusions, and spinal cord neoplasms, to name a few. Dr. Epstein stated that it is not the intention of the hospital where he practices to have the on-going doctor-patient relationships that a family practitioner has, or to have parents bring in their child for a well-baby checkup. Dr. Epstein testified that the daily reality of practice for emergency-medicine practitioners is to treat people who do not have ordinary financial access to care and are in the emergency departments as a last resort. Dr. Stecker testified that the circumstances under which emergency-room doctors in Hot Springs usually see their patients differs from the circumstances for a family physician.

917 S.W.2d 167

As regards the differences in the localities in which they practice, testimony was given by Dr. Epstein and Dr. Stecker regarding the medical facilities and technology in their respective localities, Panama City, Florida, and Hot Springs. Dr. Epstein estimated the population of Panama City is 80,000. Dr. Stecker estimated the population of Hot Springs is 35,000.

On this record, the trial court ruled that Dr. Epstein’s proffered testimony on the standard of care for diagnosing child abuse in Hot Springs was inadmissible. I do not find that the trial court’s decision was made with a discretion improvidently or thoughtlessly exercised and without due consideration. Nazarenko, 313 Ark. 570, 856 S.W.2d 869. For these reasons, I respectfully dissent.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING MARCH 18, 1996

D. Scott Hickam, for appellee Mary Ellen Robbins.

Robert L. Brown, Justice.

Appellee Mary Ellen Robbins has petitioned for rehearing to clarify that, upon remand of this case, the judgment discharging appellee Robbins with prejudice will not be disturbed. In its appeal of this case, appellant First Commercial Trust Company raised no issues and offered no argument directed at appellee Robbins. Because of this, appellee Robbins withdrew her cross-appeal. The opinion handed down in this case on February 12, 1996, was limited to the issues raised, and those issues pertained only to appellee Rheeta Stecker. Accordingly, the reversal and remand in this case relate solely to appellee Rheeta Stecker. The judgment entered in favor of "appellee Mary Ellen Robbins in Garland County Circuit Court is affirmed.

       I note there is no locality rule under the child abuse reporting statutes.


text:
    Brian Patrick HANSEN v. STATE of Arkansas
    95-961
    914 S.W.2d 737
    Supreme Court of Arkansas
    Opinion delivered February 12, 1996

      Marianne L. Hudson, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Brian Patrick Hansen appeals the denial of his motion to transfer the statutory rape charge (Ark. Code Ann. § 5-14-103(a)(3) (Repl. 1995)), to juvenile court. We affirm the decision of the trial court.

The felony information filed in circuit court charged: “On or about February 12, 1995, the defendant, (DOB: 3/17/77), digitally penetrated the vagina of a ten (10) year old female . . . .” A motion to transfer the matter to juvenile court was filed, and a hearing was held on that motion on July 18, 1995. By that time, Hansen had turned 18. Julie Hansen, Hansen’s mother, testified at the hearing that he had only completed the tenth grade and had recently obtained his GED and had sought to join the Army. At the time of the charged offense, Hansen was living with his fiancee and her mother. Julie Hansen admitted on cross-examination that Hansen had previously been charged with the unauthorized use of a motor vehicle in Iowa.

The State called Mike Scott, a former juvenile intake officer with the Washington County Juvenile Court, as a witness. Scott testified that on December 6, 1993, the Fayetteville Police Department arrested Hansen on a warrant out of Iowa for two counts of burglary and one count of the unauthorized use of a vehicle. Hansen subsequently escaped in handcuffs, and he was charged with escape. The escape charge was later dropped. The disposition of the Iowa charge is unknown, but Scott indicated that Hansen received probation. He also testified that Hansen had been arraigned earlier that morning on felony charges of theft of property (a .40 caliber pistol) and fleeing. Hansen’s criminal history further reflects that other charges of theft of property and breaking and entering were nolle pressed by the State at the request of the victim.

Following the hearing, the trial court made its ruling from the bench:

Both of the attorneys recognize that this is obviously a very serious offense, these are very serious allegations, and I think standing alone it would be proper to leave this case in circuit court as opposed to transferring it as the defendant requests. I’ll just make these additional observations. The defendant has now been charged with three — or actually — yes, three — four felonies in this court: Theft of property and breaking or entering in case 95-285; rape in the case that we’re holding this hearing in, 95-457; and only today, theft of property — all felonies. Although there obviously has not been a pattern of adjudicated offenses in juvenile court, Mr. Hansen certainly has had his troubles. There’s at least a suggestion that although he was arrested as a juvenile on an Iowa warrant, he nonetheless was to some degree treated as an adult in Iowa. He apparently escaped after having been taken into custody here in Washington County on that warrant. He has not chosen to offer up any explanation as to how those cases were resolved. Therefore, in my view the likelihood of rehabilitation is remote at best, even assuming those services were available as an eighteen-year-old. Again, as pointed out by Mr. Threet [deputy prosecuting attorney], this offense allegedly occurred within a month of his eighteenth birthday and of course he is seeking to enter the Army as an adult.
I think for all those reasons, in my judgment it’s inappropriate to transfer this case. The defendant’s motion is denied.

Hansen now argues in this interlocutory appeal that the trial court’s denial of the transfer was clearly erroneous under the factors set forth in Ark. Code Ann. § 9-27-318(e) (Supp. 1995). We disagree. Briefly stated, the factors under the statute are (1) seriousness of the offense and whether violence was employed; (2) repetitive pattern of adjudicated offenses indicating that the juvenile is beyond rehabilitation; and (3) prior history and character traits reflecting on the juvenile’s prospects for rehabilitation. We have stated that in making its determination, the trial court is not required to give equal weight to each of these factors. Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995); Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994); Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992). If the trial court decides to hold the juvenile for trial as an adult, its decision must be supported by clear and convincing evidence. Ark. Code Ann. § 9-27-318(f) (Supp. 1995). The decision to transfer the case to circuit court will not be overturned unless it is clearly erroneous. McGaughy v. State, 321 Ark. 537, 906 S.W.2d 671 (1995).

Statutory rape is without question a serious crime. Moreover, as the trial court noted, commitment to a juvenile facility is not available for a young person older than 18. We have previously held that the chance for rehabilitation within the Division of Youth Services is nonexistent when a commitment cannot be had for a young person older than 18. See, e.g., Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995); Hogan v. State, supra.

We are cognizant of the fact that by Act 1261 of 1995 the General Assembly extended commitment time for juveniles beyond age 18 under certain circumstances:

(d) Commitment shall not exceed the eighteenth birthday of a youth, unless the Department of Human Services’ State Institutional System Board determines that an adequate facility or facilities are available for youths eighteen (18) years of age or older.

Ark. Code Ann. § 9-28-208(d) (Supp. 1995). Section 9-28-208(d), however, presupposes that the youth has already been committed at the time he or she turns 18 and allows for that commitment to continue. That is not the situation in the case before us. Under these circumstances, we cannot say that the decision of the trial court was clearly erroneous in denying the transfer.

Affirmed.