author: W.H. ”Dub” Arnold, Chief Justice.

text:
    Brad BUTLER v. HEARST-ARGYLE TELEVISION, INC.; Arkansas Hearst-Argyle Television, Inc.; and Rhonda Justice
    01-126
    49 S.W.3d 116
    Supreme Court of Arkansas
    Opinion delivered July 9, 2001

      The Mulkey Attorneys Group, P.A., by: Bruce L. Mulkey, for appellant.

      Warner, Smith & Harris, PLC, by: G. Alan Wooten, James M. Dunn, and Matthew C. Carter, for appellees.
   W.H. ”Dub” Arnold, Chief Justice.

Appellant, Brad Butler, brings the instant appeal challenging the Benton County Circuit Court’s order granting summary judgment in favor of appellees, Hearst-Argyle Television, Inc., its Arkansas affiliate, KHBS/KHOG-TV, and one of its reporters, Rhonda Justice. Butler, a former Benton County prosecuting attorney, complained that appellees committed the torts of defamation, invasion of privacy, and outrage by broadcasting portions of Benton County inmate Stephanie Roberts’s videotaped affidavit alleging a sexual relationship with Butler. The Court of Appeals certified this first-impression case for us to consider whether the “fair-report privilege” shields appellees from liability under the instant facts. Our jurisdiction is authorized pursuant to Ark. R. Sup. Ct. 1-2(d) and 1-2(b)(1) and (6) (2000).

Background

Butler sued appellees on September 28, 1999, after KHOGTV aired a report containing clips from Stephanie Roberts’s videotaped affidavit, detailing her alleged sexual relationship with Butler. In particular, Roberts claimed that she had sexual intercourse with Buder in his office during a time when she was being prosecuted by the prosecutor’s office. According to Butler, he first met Roberts when she offered to wear a wire while sharing a jail cell with Brandi Orman, a murder suspect. The prosecutor’s office utilized Roberts as an informant in a number of cases. Roberts was ultimately released on probation, subject to home detention and monitoring. Then, in late January 1999, Roberts told Butler that she was being sexually harassed by members of the Benton County Sheriffs Department. Although Buder never confirmed Roberts’s allegations, he acknowledged that he investigated the complaint, took recorded statements from Roberts, and reviewed jail files.

On June 2, 1999, Roberts cut off her ankle-monitoring device and held herself at gunpoint inside a home in Bella Vista. According to witnesses, Roberts demanded to speak with Butler. Authorities eventually disarmed Roberts but allowed her to remain in the home until Butler arrived. Roberts explained that she wanted to tell Butler that she had miscarried his baby. KHOG-TV reporter Rhonda Justice, who had previously met with Butler about Roberts’s sexual-harassment allegations against the jailers, observed the “strange treatment” Roberts received during the stand-off and decided to visit her in the Benton County Jail later that evening. During their meeting, Roberts reported that she had miscarried Butler’s baby. Justice met with Roberts again, a few days later, and also visited with her by telephone several times. During these interviews, Roberts admitted that she had numerous sexual encounters with Butler in his office and once in his Suburban while parked in front of her mother’s home.

In light of Roberts’s remarks, her attorneys questioned Butler about the allegations, which Butler denied. Her attorneys also informed Butler that he had “twenty-four hours to resign or else.” In response, Butler filed a motion to voluntarily recuse from prosecuting Roberts’s case. Roberts’s attorneys then filed a cross-motion seeking Butler’s recusal and the appointment of a special prosecutor. As an exhibit to the motion, Roberts’s attorneys attached her videotaped affidavit detailing four alleged incidents of sexual intercourse with Butler, including three encounters in the prosecutor’s office and one in his vehicle. She also discussed the events surrounding her stand-off with the police. Notably, Roberts explained that she made the affidavit in response to Rhonda Justice’s claim that she had pictures of Butler and Roberts and planned to release them.

On July 2, 1999, KHOG-TV broadcast a report stating that Buder had been asked to recuse from Roberts’s case because of allegations that . . . Butler and Roberts had ... an inappropriate sexual relationship while Roberts was on probation for check forgery. Attorneys also provided a video affidavit in which Roberts says she had sex with Butler on four occasions.” The video clip contained Roberts’s statement, “I mean, to be blunt, we had sex in his office.” The televised report also indicated that Butler called the allegations false, that he welcomed the appointment of a special prosecutor, and was “confident that there will be no evidence of criminal wrongdoing by him or his office.”

Special Prosecutor John Everett issued a report on December 1, 1999, concluding that, while there had been no criminal conduct involved, Butler and Roberts were certainly engaged in a relationship characterized as “unprofessional, far outside the ordinary, [and] reflected adversely on the Prosecuting Attorney’s Office, the criminal justice system in Benton County, the legal profession, and Brad Butler himself.” Everett’s report also noted that the relationship involved numerous late-night phone calls from Butler to Roberts, Butler’s intervention in some of Roberts’s criminal cases and probation matters, and Roberts’s knowledge of matters about Butler “which would not normally be known by a defendant in a criminal case,” including the location of a scar on Butler’s stomach and Butler’s very new home address and phone number. Finally, Everett observed that Butler’s response to the allegations was “non-committal” and “less than convincing as a denial and could be construed as a tacit admission.” A footnote to the report addressed the existence of the rumored pictures but explained that “no such photographs have been found and (Everett] believe[d] that none exist.”

For his part, Butler complained that Rhonda Justice “precipitate^] Roberts’ actions and . . . influence[d] Roberts’ allegations against Butler . . . [and] intentionally manufactured the news story about Butler and Roberts as there [was] no sexual contact between Butler and Roberts.” Although he conceded that the “fair-report privilege” protects the publication of statements made during a judicial proceeding if the report is fair, accurate, and complete, Butler asserted that KHOG-TV’s report was not privileged because it was not fair, accurate, or impartial. Along those lines, Butler averred that appellees knew that Roberts’s allegation that Justice had pictures was important to the story but delayed reporting that fact for twelve days following its initial report. Butler further reasoned that appellees should not be entitled to the privilege because they were “involved in promulgating the story, and Justice had knowledge of the likely falsity of the allegations behind the story.”

Appellees responded to Butler’s lawsuit by filing a motion for summary judgment, attaching Special Prosecutor Everett’s report as an exhibit and asserting the fair-report privilege. Based on the pleadings and exhibits, the trial court granted appellees’ motion for summary judgment. From that order, Butler filed the instant appeal challenging the application of the fair-report privilege to appellees. Specifically, appellant argues that the privilege does not apply “when the defamatory statement results from elicitation and coercion” and when the report was not fair, truthful, or accurate. We find no merit in appellant’s arguments, and we affirm the trial court’s grant of summary judgment.

I. Fair-report privilege

Appellant first argues that the fair-report privilege does not protect appellees because the televised report was not a fair and substantially true account of official court proceedings. Because the First Amendment is involved in this case, we are “obligated to make an independent examination of the whole record to make sure the judgment does not constitute a forbidden intrusion on the field of free expression.” Southall v. Little Rock Newspapers, Inc., 332 Ark. 123, 133-34, 964 S.W.2d 187, 193 (1998) (citing Fuller v. Russell, 311 Ark. 108, 112, 842 S.W.2d 12, 14 (1992) (citing Bose Corp. v. Consumer’s Union of United States, Inc., 466 U.S. 485 (1984))). Similarly, where the appellees’ First Amendment right to free expression is at stake, we apply a heightened standard of review. Southall, 332 Ark. at 134, 964 S.W.2d at 193.

The fair-report privilege is defined in the Restatement (Second) of Torts § 611 (1977), captioned “Report of Official Proceeding or Public Meeting.” Section 611 provides that:

The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgment of the occurrence reported.

According to the comments to section 611, the basis of the privilege is the “interest of the public in having information made available to it as to what occurs in official proceedings and public meetings.” Id., cmt. a. Significandy, the privilege exists “even though the publisher himself does not believe the defamatory words he reports to be true and even when he knows them to be false. Abuse of the privilege takes place, therefore, when the publisher does not give a fair and accurate report of the proceeding.” Id.

With regard to the accuracy and fairness of the report, it is enough that it conveys a substantially correct account of the proceedings. Id., cmt. f. Furthermore, although it is unnecessary that the report be exhaustive and complete, it is necessary that nothing be omitted or misplaced in such a manner as to convey an erroneous impression. Id. The privilege does not apply where a person testifies in a proceeding solely for the purpose of obtaining the fair-report shield for himself or in collusion with a third party. Id., cmt. c.

This court has addressed the fair-report privilege under the Restatement (Second) of Torts in one other case. In KARK-TV v. Simon, 280 Ark. 228, 656 S.W.2d 702 (1983), the appellant argued that it was entided under § 611, cmt. h, of the Restatement (Second) of Torts, to report the fact of an arrest. We declined to apply the privilege in that case because “the substance of the news story contained no truth at all.” Indeed, there had been no robbery attempt or arrest. Id., 280 Ark. at 231, 656 S.W.2d at 703. In so doing, we recognized that the privilege granted under § 611 can be lost “if abused by failure to give an accurate and fair report under [comment^,” but also noted that “[t]he report need not be precisely correct, as long as it is substantially correct.” Id., 280 Ark. at 231, 656 S.W.2d at 704.

Furthermore, in testing the accuracy of the reporting under the fair-report privilege, this court applied the “substantial truth” doctrine previously recognized in Pritchard v. Times Southwest Broadcasting, Inc., 277 Ark. 458, 642 S.W.2d 877 (1982) (citing Prosser, Handbook of the Law of Torts, 798-99 (4th ed. 1971)). Id. Under that doctrine, the literal truth is not necessary and substantial truth, sometimes referred to as the “gist” or the “sting,” will suffice. Id. In other words, under the fair-report privilege, the gist or the “sting” of an official action or proceeding must be accurately conveyed in the report.

Other jurisdictions have used a similar standard in the context of the fair-report privilege to test the accuracy of the reporting. See First Lehigh Bank v. Cowen, 700 A.2d 498, 503 (Sup. Ct: Pa. 1997) (“The question of whether the fair report privilege has been abused has been distilled by the federal court to a ‘gist’ or ‘sting’ test. ‘A statement is substantially accurate if its “gist” or “sting” is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced.’ ”); Dorsey v. National Enquirer, Inc., 973 F.2d 1431, 1436 (9th Cir. 1992); Williams v. WCAU-TV, 555 F. Supp. 198, 202 (E.D. Pa. 1983).

The original Restatement applied the privilege if it was an “accurate and complete or fair abridgment of such proceedings,” but the privilege could be lost if the report was “made solely for the purpose of causing harm to the person defamed.” Brandon v. Gazette Publishing Co., 234 Ark. 332, 334, 352 S.W.2d 92, 94 (1961) (quoting the first Restatement of the Law of Torts, Vol. 3, § 611). Thus, the fair-report privilege could be lost if published with malice under the original Restatement. The modern view, codified in the Second Restatement, removes the malice requirement such that the privilege is lost only by a “showing of fault in failing to do what is reasonably necessary to insure that the report is accurate and complete or a fair abridgment.” Restatement (Second) of Torts § 611, cmt. b. See also Rosenberg v. Helinski, 616 A.2d 866, 678 (Md. App. 1992); Lawton v. Georgia Television Co., 22 Media L. Rep. 2046 (Ga. Super. 1994); Barry v. Time, Inc., 584 F. Supp. 1110, 1124, n. 15 (N.D. Cal. 1984) (noting that the difference between the actual malice standard and neutral reporting privilege is that the privilege applies regardless of the defendant’s state of mind); Edwards v. National Audubon Society, Inc., 556 F.2d 113 (2d Cir. 1977), cert. denied sub nom., Edwards v. New York Times, Co., 434 U.S. 1002 (1997).

Here, appellant first argues that the fair-report privilege does not protect appellees because the televised report was not a fair and substantially true account of official court proceedings. However, a review of the media reports, including Roberts’s videotaped affidavit, evidences no distortion of either Roberts’s allegations or Buder’s denials. In each report, Roberts’s video clip alleging a sexual encounter was followed by a statement of Butler’s denial of any such occurrence. Further, KFIOG-TV provided coverage when Buder filed his motion in response to Roberts’s allegations and specifically noted that Butler’s motion “includes a complete denial of the allegations made by Stephanie Roberts. In addition, Butler’s attorneys provide thirteen documents they say support the denials. Included are various affidavits, plus a time sheet that contradicts the times given for the alleged sexual relationship.”

Buder relies heavily on comment c to section 611 and argues that a person cannot confer the privilege upon himself by making the original defamatory statement and then reporting to others what he stated. For example, he may not confer the privilege upon a third person, “even a member of the communications media, by making the original statement under a collusive arrangement with that person for the purpose of conferring the privilege upon him.” Id., cmt. c. Given Butler’s claim that Rhonda Justice colluded in the creation of Roberts’s defamatory statements, he concludes that appellees are denied the privilege.

A later televised report addressed the alleged involvement of Rhonda Justice in the events and aired Roberts’s statement that she came forward in response to Justice’s intimation that she had photographs of Roberts and Butler. The report also included an interview with Justice, who denied having any photographs or telling Roberts or Butler that she had pictures. This particular story concluded by noting that Butler had no comment and that the station had been advised to refrain from further comment on the unfinished investigation.

In short, Butler’s claim, that Justice colluded with Roberts and participated in the creation of the defamatory statements by threatening Roberts with the exposure of photographs, is unsupported by the record. Justice denied Butler’s allegation, and Butler offered no proof that Justice made the original defamatory statements about Butler to Roberts. Similarly, Butler presented no proof that Justice made any statements to Roberts in order to induce her to repeat an account for the purpose of conferring the fair-report privilege upon Justice. Neither is there evidence that Justice arranged, in any way, to have the story published. Special Prosecutor Everett also concluded that it was unlikely that any photographs existed.

As a result, we find no factual basis in the record for Butler’s conclusory allegations and, indeed, observe evidence supporting a contrary conclusion. For example, Roberts’s attorneys explained their decision to disclose the allegations to the court via videotaped affidavit as furthering their obligation to provide Roberts with the proper representation. They related that the “video affidavit was not instigated by Rhonda Justice nor did she have any participation in the production of the video. The video was produced for the sole reason of defending Roberts and for placing what appeared to be truthful allegations before the proper forum.” Thus, we conclude that no genuine issue of material fact has been presented on the question of whether the fair-report privilege applies. See Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996).

Butler’s contention that the privilege should not apply because the affidavit was not part of an “official proceeding” is likewise unpersuasive. Butler reasons that the affidavit was filed as an exhibit to a motion for recusal but no “official action” was taken. Section 611 does state that a “report of a judicial proceeding implies that some official action has been taken by the officer or body whose proceedings are thus reported.” Section 611 cmt. e. However, as appellees point out, the abstract of the record is devoid of any indication that Butler raised this issue before the trial court. Butler also failed to dispute this point in his appellate reply brief. Accordingly, we decline to reach the merits of his argument where the abstract does not reflect that appellant raised the issue below. See Rainey v. Hartness, 339 Ark. 293, 5 S.W.3d 410 (1999); Barber v. Watson, 330 Ark. 250, 953 S.W.2d 579 (1997).

In light of the foregoing, we cannot say that the trial court erred by finding that appellees’ report was a fair and substantially true account of official court proceedings entitled to the fair-report privilege. Accordingly, we affirm the trial court’s order granting appellees summary judgment as a matter of law.

       The fair-report privilege as defined in section 611 of the first Restatement of the Law of Torts was previously addressed by this court in Brandon v. Gazette Publishing Co., 234 Ark. 332, 352 S.W.2d 92 (1961), and Jones v. Commercial Printing Co., 249 Ark. 952, 463 S.W.2d 92 (1971).


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Sammy O. SMITH v. STATE of Arkansas
    CR 01-434
    48 S.W.3d 529
    Supreme Court of Arkansas
    Opinion delivered July 9, 2001

      John Wesley Hall, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

This appeal arises from the trial court’s denial of bail on appeal under Ark. R. App. P. — Crim. 6(b)(3), and requires us to examine the constitutionality of that rule. We thus have jurisdiction under Ark. Sup. Ct. R. 1-2(a)(1) and (b)(6).

Sammy Smith was convicted of first-degree murder on September 1, 2000, and sentenced to forty years’ imprisonment. That same day, he was released on a $50,000 appeal bond after the trial court made a finding that he would not be a flight risk. In March of 2001, however, the prosecutor sent a letter to the trial court, stating that he had just been informed of Smith’s release and requesting that the court revoke the appeal bond under Rule 6. On March 30, 2001, the court issued a show cause order directing Smith to appear and show cause why his bond should not be revoked. At the show-cause hearing, held April 2, 2001, Smith argued that a blanket denial of bail on appeal in certain classes of cases was unconstitutional. The prosecutor responded by pointing to Rule 6, which does not allow for an appeal bond when the defendant has been convicted of first-degree murder. The trial court agreed with the State that the appeal bond was inconsistent with Rule 6, and revoked Smith’s bail. From that decision, Smith brings this appeal, arguing that Rule 6 amounts to a violation of the prohibition against excessive bail found in the Eighth Amendment of the United States Constitution, as well as in Ark. Const, art. 2, § 9.

This court treats an appeal from the denial of bail as a petition for a writ of certiorari. See, e. g., Meeks v. State, 341 Ark. 620, 9 S.W.3d 25 (2000); Larimore v. State, 339 Ark. 167, 3 S.W.3d 680 (1999). In Meeks we stated the standard of review in such cases as follows:

Certiorari lies to correct proceedings erroneous on the face of the record where there is no other adequate remedy, and it is available to the appellate court in its exercise of superintending control over a lower court that is proceeding illegally where no other mode of review has been provided. Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993). A demonstration of a plain, manifest, clear, and gross abuse of discretion is essential before this court will grant a petition for writ of certiorari. Shorey v. Thompson, 295 Ark. 664, 750 S.W.2d 955 (1988).

Meeks, 341 Ark. at 621; see also Larimore, 339 Ark. at 170.

We first examine the rule in question here. Ark. R. App. P.— Crim. 6(b)(3) provides as follows:

When the defendant has been found guilty, pleaded guilty, or pleaded nolo contendere to murder in the first degree, rape, aggravated robbery, or causing a catastrophe, or kidnapping or arson when classified as a Class Y felony, and he has been sentenced to death or imprisonment, the trial court shall not release him on bail or otherwise, pending appeal or for any reason, (Emphasis added.)

Smith contends that this rule is in conflict with the right to be free from excessive bail. However, we note certain internal inconsistencies in his argument and essential flaws in his reasoning. Namely, at one point in his brief, Smith insists that the right to bail is a fundamental constitutional right under the Eighth Amendment, yet a mere two pages later, he asserts that he does not argue that there is a constitutional right to bail. Rather, he contends that he has a right not to have bail denied by arbitrary means, and he urges this court to fall back on the common law view that the right to bail pending appeal after conviction was a matter of judicial discretion. See Lane v. State, 217 Ark. 428, 230 S.W.2d 480 (1950).

As we recently pointed out, this common-law rule was modified by Act 3 of 1994, which provided the right to bail pending appeal in certain cases only. Meeks v. State, 341 Ark. 620, 622-23, 19 S.W.3d 25, 26 (2000). Further, even though this court struck down Act 3, the language in the current version of Rule 6 tracks that of the act. Id. at 623. Of course, this court is free to amend the common law, see Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997), and the General Assembly has that power as well. See Hartford Ins. Co. v. Mullinax, 336 Ark. 335, 984 S.W.2d 812 (1999). Were it not so, and we were required to “read constitutional provisions ... to say that the common law must remain as it stood in 1874[, it] would prevent the legislature from adjusting the law to the changes of time and circumstance.” White v. City of Newport, 326 Ark. 667, 933 S.W.2d 800 (1996).

Smith cites several United States Supreme Court memorandum opinions which state that the Eighth Amendment’s requirement that excessive bail shall not be required “at the very least obligates judges passing on the right to deny such bail only for the strongest of reasons.” Sellers v. United States, 89 S. Ct. 36, 38 (1968) (Black, J., in chambers); Harris v. United States, 404 U.S. 1232, 1232-33 (1971) (Douglas, J., in chambers). However, these memoranda are not decisions of the entire Court, but rather are written by individual justices in their capacity as Circuit Justices for the federal circuit courts of appeal. As such, they are not binding on this court. See, e. g., State v. Maccioli, 265 A.2d 561 (N.J. Super. 1970).

Simply stated, there is a distinction between pretrial bonds and appeal bonds. Article 2, § 8, of the Arkansas Constitution provides that “[a]ll persons shall, before conviction, be bailable by sufficient , sureties, except for capital offenses, when proof is evident or the presumption great.” (Emphasis added.) This court emphasized the difference between pretrial and appeal bonds in Larimore v. State, 339 Ark. 167, 3 S.W.3d 680 (1999), where we noted that a criminal defendant has an absolute right before conviction, except in capital cases, to a reasonable bail; however, a bond on appeal is not an absolute right. Id. at 171 (citing Henley v. Taylor, 324 Ark. 114, 918 S.W.2d 713 (1996); Perry v. State, 275 Ark. 170, 628 S.W.2d 304 (1982)). We noted further that “[b]ail on appeal is governed by Rule 6 of the Arkansas Rules of Appellate Procedure — Criminal. Most notable for this case is that bail on appeal is not available for one who has been found guilty of murder in the first degree.” Id.

Because nothing in our constitution or the United States Constitution guarantees a person convicted of a crime the right to bail pending appeal, Meeks, 341 Ark. at 622, we therefore hold that Rule 6’s denial of bail to those convicted of certain crimes does not constitute an “excessive bail” in violation of the Eighth Amendment or Ark. Const, art. 2, § 9. The trial court, therefore, did not err when it revoked Smith’s appeal bond.

       Rule 6 was formerly Ark. R. Crim. P. 36.5. In March of 1994, the General Assembly passed Act 3, governing bail on appeal after conviction. This court, however, struck down that statute in Casement v. State, 318 Ark. 225, 884 S.W.2d 593 (1994), having found that the act conflicted with postconviction appeal procedures established by rules of the court. However, the language of Rule 6 is nearly identical to that of Act 3 of 1994, reflecting only minor differences in wording that do not change the substance of the rule. See In re: In re: Adoption of Revised Rules of Appellate Procedure, 321 Ark. Appx. 663, 900 S.W.2d 560 (1995) (per curiam).

       Ark. Const, art. 2, § 9, in pertinent part, provides that “[e]xcessive bail shall not be required.”


author: Donald L. Corbin, Justice. Annabelle Clinton Imber, Justice,

text:
    ETHYL CORPORATION and Albemarle Corporation v. Larry JOHNSON and Nancy Johnson
    00-1378
    49 S.W.3d 644
    Supreme Court of Arkansas
    Opinion delivered July 9, 2001

      Chisenhall, Nestrud & Julian, P.A., by: Jim L. Julian and Mark W. Hodge; and Bell Law Firm, PA., by: Ronny J. Bell, for appellants.

      McHenry & McHenry Law Firm, by: Donna McHenry, Robert McHenry, and Connie L. Grace; and Kinard, Crane & Butler, PA., by: Mike Kinard, for appellees.
   Donald L. Corbin, Justice.

Appellee Larry Johnson was injured when part of a metal trash container fell on his foot. At the time of his injury, Johnson was on the premises of a chemical plant owned by Appellant Ethyl Corporation and run by its subsidiary, Appellant Albemarle Corporation. As a result of his injury, Johnson filed suit in the Ouachita County Circuit Court, alleging that Appellants’ negligence caused his injury. A jury found in favor of Johnson and awarded him damages of $165,851.50. We conclude that there was not substantial evidence of negligence to support the verdict, and we reverse.

The record reflects that Johnson and his wife, Nancy, were over-the-road truck drivers employed by the Jack B. Kelly Company. On May 10, 1993, around 6:30 a.m., the Johnsons took their tanker truck to Appellants’ facility in Magnolia to be loaded with hydrobromic acid. The Johnsons had been to Appellants’ facility numerous times in the past. On this occasion, Nancy was driving the truck, while Larry stayed in the bunk of the cab. It took approximately forty-five minutes to an hour to load the tanker that morning. Once loaded, Nancy proceeded to drive the truck out of the loading dock and back to the scales, so that the load could be weighed before beginning their trip. Instead of taking the ordinary route back to the scales, however, Nancy chose an alternate route that took the truck into the parking lot of the plant’s maintenance shop. Nancy intended to make a U-turn in the parking lot and proceed onto the main roadway back to the scales. While attempting the turn, Nancy realized that the rear wheels of the trailer were not going to clear a metal trash container that was situated at the edge of the parking lot, adjacent to a rack of pipe lines.

The container is not what is ordinarily thought of as a trash container or dumpster. It is a three-sided object that holds two separate trash bins. The container weighs 2,180 pounds and is stationary, i.e., it does not have wheels or rollers. The two bins that fit inside the container are kept inside the maintenance shop until they require emptying. They are then loaded into the metal container, and the container is picked up by a special truck and emptied. The container is designed so that the bottom will collapse or open when it is being emptied, thus allowing the trash to fall out.

On the date in question, Larry Johnson decided to attempt to move the container out of the truck’s path. He initially attempted to push the container by leaning into it with his shoulder. He felt it move a short distance, but not enough for the trailer to clear. He then went around to the front of the container and began to jerk on its handle, like a weight lifter jerks to lift heavy weights. Johnson continued to jerk on the handle until part of the container collapsed and fell on his foot. Appellants’ emergency medical team came to Johnson’s assistance and subsequently transported him to the Magnolia City Hospital.

Appellants moved for a directed verdict at the end of Johnson’s case and again at the close of all the evidence. They argued that Johnson’s injury was not foreseeable and that they had no duty to guard against an occurrence that was not foreseeable. The trial court denied the motion, and the case was submitted to the jury on the theories of negligence and premises liability. The jury was also instructed on the theory of comparative fault, as Appellants claimed that Johnson’s damages were proximately caused by his own negligence. The jury returned a general verdict in favor of Johnson. Following the verdict, Appellants filed a motion for judgment notwithstanding the verdict (JNOV), again arguing that there was insufficient proof of foreseeability. The trial court denied the post-trial motion, and this appeal followed.

Our standard of review of the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence. City of Caddo Valley v. George, 340 Ark. 203, 9 SNOd 481 (2000). Similarly, in reviewing the denial of a motion for JNOV, we will reverse only if there is no substantial, evidence to support the jury’s verdict and the moving party is entitled to judgment as a matter of law. Conagra, Inc. v. Strother, 340 Ark. 672, 13 S.W.3d 150 (2000). Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Caddo Valley, 340 Ark. 203, 9 S.W.3d 481. It is not this court’s place to try issues of fact; rather, this court simply reviews the record for substantial evidence to support the jury’s verdict. Id. In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. State Auto Prop. & Cas. Ins. Co. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999); Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997).

Appellants argue that there was insufficient evidence of negligence. Particularly, they assert that they were not negligent because they had no duty to guard against the unforeseen harm that Johnson suffered. Negligence is defined as the failure to do something that a reasonably careful person would do, or the doing of something that a reasonably careful person would not do, under the circumstances. New Maumelle Harbor v. Rochelle, 338 Ark. 43, 991 S.W.2d 552 (1999); Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998). “To constitute negligence, an act must be one from which a reasonably careful person would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner.” Id. at 67, 961 S.W.2d at 715 (citing AMI Civ. 3d 301). Foreseeability is thus a necessary ingredient of actionable negligence in this state. Benson v. Shuler Drilling Co., Inc., 316 Ark. 101, 871 S.W.2d 552 (1994); First Electric Coop. Corp. v. Pinson, 277 Ark. 424, 642 S.W.2d 301 (1982); Dollins v. Hartford Acc. & Indem. Co., 252 Ark. 13, 477 S.W.2d 179 (1972). “Conduct becomes negligent only as it gives rise to appreciable risk of injury to others, and there is no negligence in not guarding against a danger which there is no reason to anticipate.” Id. at 18, 477 S.W.2d at 183 (citing North Little Rock Transp. Co. v. Finkbeiner, 243 Ark. 596, 420 S.W.2d 874 (1967)). In other words, “negligence cannot be predicated on a failure to anticipate the unforeseen.” Keck v. American Employment Agency, Inc., 279 Ark. 294, 299, 652 S.W.2d 2, 5 (1983).

Arkansas law has long since recognized that there is no duty to guard against merely possible, as opposed to likely or probable, harm. In St. Louis-San Francisco Ry. Co. v. Burns, 186 Ark. 921, 56 S.W.2d 1027 (1933), this court observed:

It is a matter of ordinary observation that frequently there is some danger attendant upon the most common and ordinary transactions, but the care required is only to provide against such dangers as ought to be foreseen in the light of the attendant circumstances, and the ideal “prudent person” will therefore not neglect what he can foresee as probable nor divert his attention to the anticipation of events barely possible, but will order his conduct by the measure of what appears likely in the ordinary course of events.

Id. at 925, 56 S.W.2d at 1028 (citations omitted) (emphasis added). See also St. Louis-San Francisco Ry. Co. v. Ward, 197 Ark. 520, 124 S.W.2d 975 (1939). In short, to demonstrate foreseeability, the harm must be “within the range of probability as viewed by the ordinary man,” and must, therefore, be more than “merely possible.” Larson Machine, Inc. v. Wallace, 268 Ark. 192, 208, 600 S.W.2d 1, 9 (1980) (citing Hayes v. Missouri Pac. R.R. Co., 208 Ark. 370, 186 S.W.2d 780 (1945)). It is not necessary, however, that the actor foresee the particular injury that occurred, only that he or she reasonably foresee an appreciable risk of harm to others. Broyles, 331 Ark. 58, 961 S.W.2d 712.

In the present case, there is no dispute that Johnson and his wife were invitees on Appellants’ property. As such, Appellants had a duty to use ordinary care in maintaining the premises in a reasonably safe condition. See Like v. Pierce, 326 Ark. 802, 934 S.W.2d 223 (1996); Derrick v. Mexico Chiquito, Inc., 307 Ark. 217, 819 S.W.2d 4 (1991). The duty owed is not without bounds; rather, it is limited to the risk of harm that is reasonably foreseeable. See Lindle v. Shibley, 249 Ark. 671, 460 S.W.2d 779 (1970); Hartsock v. Forsgren, Inc., 236 Ark. 167, 365 S.W.2d 117 (1963). The concept of risk is thus an aspect of foreseeability. As Professor Dobbs explains:

Courts are likely to use the term “foreseeable” to mean that harm was not only foreseeable but also too likely to occur to justify risking it without added precautions.... Along the same lines, when courts say that harm is unforeseeable, they may mean that although harm was actually foreseeable on the facts of the case, a reasonable person would not have taken action to prevent it because the risk of harm was low, and harm was so improbable that a reasonable person would not have taken safety precautions. [Footnote omitted.]

1 Dan B. Dobbs, The Law of Torts § 143, at 336-37 (2001).

Here, the alleged negligent act committed by Appellants was the placement of a metal trash container at the edge of a parking lot, adjacent to a pipe rack. Based on the evidence presented below, Appellants’ act did not amount to an unreasonable risk. It was not foreseeable that an invitee would injure himself by attempting to manually move the 2,180 pound container on his own. Appellants’ only duty under the circumstances was to provide reasonable care to guard against any harm that appeared “likely in the ordinary course of events.” Burns, 186 Ark. at 925, 56 S.W.2d at 1028. Appellants simply had no duty to take added precautions to guard against the remote chance that someone would injure himself by attempting to move the heavy container. Indeed, it was undisputed that there had never been any previous incidents, within the fourteen years that the container was on Appellants’ property, in which anyone, employee or otherwise, had been injured in conjunction with the container.

In contrast, Johnson should have been fully aware of any danger associated in attempting on his own to move a 2,180 pound stationary trash container. In fact, Johnson admitted that he recognized the container as a “potential hazard, but not to the hazard that it was.” There were no exigent or emergency circumstances that would have left Johnson with no other option but to attempt to move the object on his own. Given that he recognized the object as a potential hazard, Appellants owed no duty to warn him of the potential harm that could occur if he attempted such a move. The duty to maintain the premises in a reasonably safe condition for an invitee or to warn him of the dangerous condition “applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls and the like, in that they are known to the invitor but not known to the invitee and would not be observed by the latter in the exercise of ordinary care.” Jenkins v. Hestand’s Grocery, Inc., 320 Ark. 485, 488, 898 S.W.2d 30, 31 (1995) (quoting McClure v. Koch, 433 S.W.2d 589, 593 (Mo. App. 1968)). Because any danger associated with moving the heavy object was not hidden and was readily apparent to anyone exercising ordinary care, Appellants owed no duty to warn Johnson of the consequences of attempting to move the object without assistance.

Moreover, it is of no significance whether Appellants should have reasonably foreseen that trucks leaving their loading dock would seek alternate routes back to the plant’s scales. Contrary to Johnson’s urging, the issue is not whether Appellants were negligent in failing to create a better system for getting truck traffic through the plant. Assuming, arguendo, that it is reasonably foreseeable that trucks would take alternate routes to get back to the scales and that trucks would attempt a U-turn in the maintenance-shop parking lot, it does not follow that it is reasonably foreseeable that individual truck drivers would attempt to move this 2,180 pound object out of the way without assistance. Indeed, the evidence showed that Appellants’ employees had assisted the Johnsons in moving obstructions in the past. Nancy Johnson testified that on at least three prior occasions, she had asked Appellants’ employees to move similar containers out of her way before, and that they had done so.

In sum, to hold- that Appellants were under a duty to “guard against the remote chance of what actually occurred in this case would be in effect to strike the element of foreseeability from the concept of negligence in such a situation and thus to impose an absolute liability” upon any business that has a trash container or similar receptacle situated on its premises. Hartsock, 236 Ark. 167, 170, 365 S.W.2d 117, 118. Accordingly, we hold that there was not substantial evidence presented below demonstrating that Appellants were negligent or that they failed in their duty to maintain their premises in a reasonably safe condition. We thus reverse and dismiss this case.

Glaze and Imber, JJ., dissent.

Annabelle Clinton Imber, Justice,

dissenting. The majority has decided, as a matter of law, that the injury Mr. Johnson suffered on the premises of Albemarle on May 10, 1993, was not foreseeable. Even if the injury was foreseeable, the majority holds that Albemarle had no duty to warn Mr. Johnson of the potential danger of the dumpster on its premises because Mr. Johnson recognized the dumpster as a hazard. I believe that a question of fact existed that was properly sent to the jury; thus, I must dissent.

When we review the denial of a motion for directed verdict or motion for new trial, we must view the evidence in the light most favorable to the party against whom the verdict is sought and give that evidence the highest probative value, taking into account all reasonable inferences that can be derived from it. Conagra, Inc. v. Strother, 340 Ark. 672, 675-76 (2000); City of Caddo Valley v. George, 340 Ark. 203, 211 (2000); Croom v. Younts, 323 Ark. 95, 101, 913 S.W.2d 283 (1996). In the case at hand, therefore, we must view the evidence in the light most favorable to Mr. Johnson, not Albemarle.

Furthermore, we review the trial court only to determine if there is substantial evidence to support the jury verdict. City of Caddo Valley v. George, supra. Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or another with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture. Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997). When there is a conflict in the evidence or when the evidence is such that fair-minded people might reach different conclusions, a jury question is presented, and a motion for directed verdict should be denied. Conagra, Inc. v. Strother, supra. A question for the jury is presented “in any case where there might be reasonable difference of opinions as to the foreseeability of a particular risk . . . .” Keck v. American Employment Agency, Inc., 279 Ark. 294, 302, 652 S.W.2d 2, 7 (1983). In this case, the trial court properly denied Albemarle’s motions for directed verdict, judgment notwithstanding the verdict, and new trial because Mr. Johnson presented evidence from which fair-minded persons might reach different conclusions on the issue of foreseeability; therefore, a jury question was presented.

The majority’s determination that Mr. Johnson’s injury was not foreseeable as a matter of law improperly views the evidence in the light most favorable to Albemarle. According to the majority’s opinion today, “the alleged negligent act committed by Appellants was the placement of a metal trash container at the edge of a parking lot, adjacent to a pipe rack.” By viewing the evidence in the light most favorable to Mr. Johnson, as this court is required to do, it is evident that the alleged negligent act committed by Albemarle was actually its placement of a collapsible dumpster at the edge of a driveway on the premises of a chemical plant where there is constant tanker-truck traffic. The question that was properly submitted to the jury was whether Albemarle should have foreseen the fact that the dumpster, in its location partially obstructing the drive, would impede traffic, creating the need to move it. If so, Albemarle had a duty to exercise ordinary care and to warn Mr. Johnson of the danger posed by the dumpster. The trial court properly presented this question to the jury because reasonable minds could differ, based upon the evidence presented at trial, as to whether Albemarle should have foreseen the risk of harm posed by the dumpster. The evidence presented by Albemarle revealed that the dumpster was located adjacent to the maintenance building in an area marked “no thru traffic.” Yet, the evidence presented by-Mr. Johnson revealed that the “no thru traffic” sign was not visible to the driver of the truck until the truck had already entered the drive. Further evidence revealed that roadways not designated for trucks to use on the Albemarle premises were ordinarily barricaded. Roads that were not barricaded were not restricted. Finally, Mr. Johnson presented evidence that the roadways on the Albemarle facility were frequendy blocked by obstructions, forcing truck drivers to find alternate routes in and out of the facility. In light of all of this evidence, it is clear that a question of fact was created as to whether Albemarle should have foreseen the risk posed by a collapsible dumpster partially obstructing a roadway on its premises.

The majority likewise improperly focuses upon the foreseeability of the particular injury sustained by Mr. Johnson. While acknowledging that it is not necessary that Albemarle foresee the particular injury that occurred, only that it reasonably foresee an appreciable risk of harm, Broyles v. Wallace, 331 Ark. 58, 961 S.W.2d 712 (1998), the majority concludes that it was not foreseeable “that an invitee would injure himself by attempting to manually move the 2,180 pound container on his own.” It is irrelevant to an inquiry of foreseeability whether Mr. Johnson attempted to move the container on his own, or if he and five of his best buddies tried to move the container as a group. If Albemarle could have foreseen the need to move the container out of the roadway and knew that the container could break apart if moved improperly, yet failed to warn of that danger, then a jury could properly conclude that Albemarle had been negligent. For that reason, I cannot agree that, as a matter of law, the risk of harm to Mr. Johnson was not foreseeable, and would affirm the denial of directed verdict.

Having taken the extraordinary step of removing a question of fact from the decision-making realm of the jury, the majority then proceeds to declare the whole issue of foreseeability irrelevant because, the majority concludes, Albemarle had no duty to warn Mr. Johnson of the risk posed by the dumpster. According to the majority, Mr. Johnson recognized the dumpster as a hazard, and Albemarle has no duty to warn invitees of known hazards. The basis of a business owner’s duty of care to invitees is his superior knowledge of a condition that poses an unreasonable risk of harm of which the invitee does not or should not know. Jenkins v. Hestand’s Grocery, Inc., 320 Ark. 485, 898 S.W.2d 30 (1995). In the case at hand, Mr. Johnson admitted that he was aware that the dumpster posed a hazard, because it was a large object that was obstructing the path of his truck. However, Mr. Johnson testified that he did not know the dumpster would fall apart. Even if it could be said, as a matter of law, that Mr. Johnson should have known he could injure himself by moving a heavy object without help, we cannot say as a matter of law that he should have known that the container would break apart when moved. The evidence revealed that there were no warning labels or instructions on the container. The container was a solid-looking large object. And, finally, the container had a handle. It was not until Mr. Johnson pulled on the handle that the dumpster collapsed on his foot. Whether Albemarle had a duty to warn Mr. Johnson of the fact that the dumpster could collapse if the handle is pulled was a question of fact properly submitted to the jury under the facts of this case. For the foregoing reasons, I dissent.

Glaze, J., joins in this dissent.

       Johnson’s wife, Nancy, also filed a claim for loss of consortium. That claim was rejected by the jury and is not involved in this appeal.


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

text:
    Robert L. PLANT v. Gary WILBUR and Linda Wilbur d/b/a Northwest Arkansas Speedway
    00-1116
    47 S.W.3d 889
    Supreme Court of Arkansas
    Opinion delivered July 9, 2001

      Mashburn & Taylor, by: Timothy L. Brooks, for appellant.

      Kemp, Duckett, Spradley, Curry & Arnold, by: James M. Duckett, for appellees.
   Donald L. Corbin, Justice.

Appellant Robert L. Plant was injured by some flying debris while watching an auto race at the Northwest Arkansas Speedway. Plant sued Appellees Gary and Linda Wilbur, the owners and operators of the Speedway, alleging that his injuries resulted from their negligence. Appellees countered that Plant had signed an agreement releasing the Speedway from any liability, and therefore he could not maintain a cause of action against them. Appellees filed a motion for summary judgment based on the existence of the release, and the Benton County Circuit Court granted the motion, finding that the release was enforceable under Arkansas law. For reversal, Plant argues that the release is void as against public policy and, thus, the trial court erred in granting summary judgment. As this appeal presents an issue of first impression, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(1). We affirm.

The record reveals that the Speedway is an oval-shaped dirt track located in Pea Ridge, that has been in operation since 1992. Plant was a member of a pit crew for one of the drivers who raced at the Speedway. He testified during his deposition that he believed that he had been frequenting the track since it opened, and that he believed that he had signed the release on at least twelve occasions prior to the day his accident occurred. On the night of the accident, Plant paid $15 in order to gain admission to an area of the racetrack, known as the pit. Before entering the pit area, Plant signed a document entitled “Release and Waiver of Liability and Indemnity Agreement,” as was required of anyone who wanted to enter the pit area. The release, which contains twelve signature lines, was prepared by North American Racing Insurance, Inc., and is commonly used at racetracks across the country. The release provides as follows:

IN CONSIDERATION of being permitted to enter for any purpose any RESTRICTED AREA (herein defined as including but not limited to the racing surface, pit areas, infield, burn out area, approach area, shut down area, and all walkways, concessions and other areas appurtenant to any area where any activity related to the event shall take place), or being permitted to compete, officiate, observe, work for, or for any purpose participate in any way in the event, EACH OF THE UNDERSIGNED, for himself, his personal representatives, heirs, and next of kin, acknowledges, agrees and represents that he has, or will immediately upon entering any of such restricted areas, and will continuously thereafter, inspect such restricted areas and all portions thereof which he enters and with which he comes in contact, and he does further warrant that his entry upon such restricted area or areas and his participation, if any, in the event constitutes an acknowledgment that he has inspected such restricted area and that he finds and accepts the same as being safe and reasonably suited for the purposes of his use, and he further agrees and warrants that if, at any time, he is in or about restricted areas and he feels anything to be unsafe, he will immediately advise the officials of such and will leave the restricted areas:
1. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the promoter, participants, racing association, sanctioning organization or any subdivision thereof, track operator, track owner, officials, car owners, drivers, pit crews, any persons in any restricted area, promoters, sponsors, advertisers, owners and lessees of premises used to conduct the event and each of them, their officers and employees, all for the purposes herein referred to as “releasees”, from all liability to the undersigned, his personal representatives, assigns, heirs, and next of kin for any and all loss or damage, and any claim or demands therefor on account of injury to the person or property or resulting in death of the undersigned, whether caused by the negligence of the releasees or otherwise while the undersigned is in or upon the restricted area, and/or, competing, officiating in, observing, working for, or for any purpose participating in the event.
2. HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the releasees and each of them from any loss, liability, damage, or cost they may incur due to the presence of the undersigned in or upon the restricted area or in any way competing, officiating, observing, or working for, or for any purpose participating in the event and whether caused by the negligence of the releasees or otherwise.
3. HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE due to the negligence of releasees or otherwise while in or upon the restricted area and/or while competing, officiating, observing, or working for or for any purpose participating in the event.
4. EACH OF THE UNDERSIGNED expressly acknowledges and agrees that the activities of the event are very dangerous and involve the risk of serious injury and/or death and/or property damage. EACH OF THE UNDERSIGNED further expressly agrees that the foregoing release, waiver, and indemnity agreement is intended to be as broad and inclusive as is permitted by the law of the Province or State in which the event is conducted and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.
5. THE UNDERSIGNED HAS READ AND VOLUNTARILY SIGNS THE RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT, and further agrees that no oral representations, statements or inducements apart from the foregoing written agreement have been made.

Sheldon England, an employee of North American, testified that this release is known as “participant legal coverage,” and is required where a racetrack allows people into restricted areas, such as the pit area, because of the dangerous activities that take place in these areas.

On the evening of his accident, Plant was standing on a track compactor, located near the spot where the cars exit the track. While standing there, Plant was struck by a wheel and tire that became dislodged from one of the race cars. The wheel and tire went through and over the fencing that separated the track from the pit area. Plant sustained injuries to his neck, left shoulder, and left arm. Plant’s left arm was eventually amputated, although it is not clear from the record before this court what led to this amputation or when it occurred. Plant testified in his deposition that the only time he was in the pit area was when his team’s car was racing, otherwise he would watch the races from the grandstand area.

Plant filed a complaint against Appellees, alleging that Appellees were negligent in: (1) failing to provide adequate safety barriers between the racetrack and persons admitted into the pit area; (2) failing to properly maintain the existing fence between the racetrack and the pit area; and (3) failing to warn persons admitted to the pit area about dangers related to flying debris from race cars. In his complaint, Plant stated that he had accumulated medical expenses in excess of $45,000, and sought compensatory damages of $1,000,000. Appellees pled the affirmative defenses of waiver and release in response to the complaint, and also stated that they had paid $10,000 to Springdale Memorial Hospital in partial payment of Plant’s medical bills.

Appellees, in turn, filed a motion for summary judgment, asserting that Plant could not maintain a cause of action against them because he had signed the release. Initially, the trial court denied the motion, but the trial court later granted Appellees’ motion for reconsideration and conducted a hearing on the summary-judgment motion. During that hearing, the trial court ruled from the bench that the release was valid, and therefore, summary judgment was proper in this case. From that order, comes the instant appeal.

The appropriate standard of review to be employed when reviewing a grant of summary judgment was set forth by this court in Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000):

We have repeatedly held that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998); Pugh, 327 Ark. 577, 940 S.W.2d 445. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Wallace v. Boyles, 331 Ark. 58, 961 S.W.2d 712 (1998); Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. George, 337 Ark. 206, 987 S.W.2d 710.

Id. at 20, 14 S.W.3d at 475.

For reversal, Plant asserts that the trial court erred in granting summary judgment because the release he signed is void and has no effect under Arkansas law. Specifically, he contends that the release is an exculpatory contract, and our court has stated that such contracts are not favored under the law. Appellees counter that this is an issue of first impression, as no Arkansas court has considered and ruled upon the validity of exculpatory agreements involving dangerous recreational activities, such as auto racing.

It is true that this court has long stated a strong disfavor for exculpatory contracts that exempt a party from liability, because of the public-policy concern encouraging the exercise of care. See Farmers Bank v. Perry, 301 Ark. 547, 787 S.W.2d 645 (1990); Middleton & Sons v. Frozen Food Lockers, 251 Ark. 745, 474 S.W.2d 895 (1972); Arkansas Power & Light Co. v. Kerr, 204 Ark. 238, 161 S.W.2d 403 (1942). This court has further stated that exculpatory contracts are to be stricdy construed against the party relying on them. Farmers Bank, 301 Ark. 547, 787 S.W.2d 645.

While this court disfavors exculpatory contracts, it has never ruled that such contracts are invalid per se. “When construing such release contracts, this court has said that it is not impossible to avoid liability for negligence through contract; however, to avoid such liability, the contract must at least clearly set out what negligent liability is to be avoided.” Farmers Bank, 301 Ark. at 550-51, 787 S.W.2d at 646-47 (citing Middleton & Sons, 251 Ark. 745, 474 S.W.2d 895). Moreover, this court has never before been presented with a situation where a release was executed in the context of a dangerous recreational activity.

We are persuaded by the Eighth Circuit Court of Appeals’ analysis of this very issue in Haines v. St. Charles Speedway, Inc., 874 F.2d 572 (8th Cir. 1989). There, the court of appeals stated that a release, containing language identical to the release at issue here, signed by the appellant prior to his entering the restricted infield area constituted an adhesion contract. The court of appeals, however, analyzed the validity of the contract under a “total transaction” approach, as opposed to simply reviewing the literal language of the release, in order to determine the intent of the parties. Id. at 575. In holding that the release was valid, the court of appeals found it significant that the appellant had been involved in the sport of racing for quite some time, and that he admitted to being aware of the dangerous nature of this activity, both for participants and spectators. Finally, the court noted that the lower court correctly considered the circumstances surrounding the execution of the release and properly found that while the appellant was functionally illiterate, he had the responsibility of finding out what the contract said.

We are also mindful that numerous jurisdictions have found that releases containing similar, and sometimes identical language to this one, are not void as against public policy. The general rationale behind allowing these types of releases in the context of auto racing is that they involve a very narrow segment of the public, rather than situations involving a public utility, a common carrier, or a similar entity connected with the public interest. See Dunn v. Paducah Int’l Raceway, 599 F. Supp. 612 (W.D. Ky. 1984); Rhea v. Horn-Keen Corp., 582 F. Supp. 687 (W.D. Va. 1984); Grbac v. Reading Fair Co., Inc., 521 F. Supp. 1351 (W.D. Pa. 1981).

An additional reason stated by some jurisdictions in affirming the validity of these releases is that situations involving auto racing are ones where the parties have equal bargaining power. In LaFrenz v. Lake County Fair Bd., 360 N.E.2d 605 (Ind. Ct. App. 1977), the Indiana Appeals Court found that a release signed by a racing participant was valid in light of the relationship between the parties. “The decedent was under no compulsion, economic or otherwise, to be in the restricted pit area.” Id. at 395. See also Dunn, 599 F. Supp. 612. Finally, some courts have expressed a concern that if they disallow releases, fewer promoters would be willing to sponsor auto races because of the unlimited liability they may face. Grbac, 521 F. Supp. 1351; Gore v. Tri-County Raceway, Inc., 407 F. Supp. 489 (M.D. Ala. 1974).

Keeping these factors in mind, we now turn to the release executed by Plant and the circumstances surrounding that execution. Plant was a regular participant in auto races and admitted to having frequented the Speedway. He also stated that he had signed the exact same release form on at least twelve prior occasions. Plant has made no allegations that he was forced to sign the release, and he admitted that he never asked any questions regarding the contents of the document he was signing. Moreover, Plant was familiar with the pit area and its proximity to the racetrack. He stated that he was only in the pit area when his team’s car was racing, and that when he was there as a mere spectator, he stayed in the grandstand area. More importantly, as a participant, Plant was certainly familiar with the dangers inherent in the sport of auto racing. In fact, he admitted to having witnessed numerous wrecks that occurred during racing events. With this knowledge, Plant continued to voluntarily participate in this activity.

As for the release itself, it contained certain key phrases in bold, such as “releases,” “discharges,” and, “covenants not to sue,” that should have put Plant on notice about the import of what he was signing. We also disagree with Plant’s assertions that the release was overly vague. It specifically references releasing the Speedway of claims for “negligence” in three different passages. It also states that the pit area is a restricted area to which the release applies.

In granting the Appellees’ motion for summary judgment, the trial court took into consideration the circumstances surrounding the execution of the release and stated:

I don’t find an unequal bargaining position type of argument sustained by the record before me. ... I don’t find that this is the type of enterprise in which the courts have acknowledged that it is improper to let them, — in other words, an enterprise that people have to rely upon like public transportation or other types of enterprises where people of necessity have to go just to get through life and conduct regular business activities, making a living. This is nothing but a — this is, this is recreation, dangerous recreation, exciting recreation, but it’s recreation. And, I certainly don’t find a compelling reason for this Court to start drawing up public policy. I just don’t think that it’s called for here. I don’t think it has been established as something that the Arkansas courts would clearly see as against public policy, and, uh, so I am going to reverse my earlier opinion and grant summary judgment.

Considering the facts and circumstances surrounding the execution of the release by Plant, we agree with the trial court that this release was valid, and therefore, summary judgment was appropriate. Accordingly, we affirm the order of the trial court.

We note that Plant also argues that the release is not enforceable because it was not the result of a mutual agreement, nor supported by sufficient consideration. Specifically, Plant contends that neither Appellees, nor himself, understood the meaning of the release. The abstract before us does not reveal, however, that this argument was raised at the trial court level. It is well settled that where the abstract does not reflect that the argument, or any similar argument, was made in the trial court, we will not reach the merits of the argument on appeal. Barber v. Watson, 330 Ark. 250, 953 S.W.2d 579 (1997); Betts v. Betts, 326 Ark. 544, 932 S.W.2d 336 (1996). Nor will we turn to the record to decide such an issue. Reeves v. Hinkle, 326 Ark. 724, 934 S.W.2d 216 (1996). This court will not be placed in a position of deciding an issue for the first time on appeal. Id. Accordingly, we decline to address Plant’s argument on this point.

Affirmed.

Glaze and Imber, JJ., dissent.

Tom Glaze, Justice,

dissenting. In reaching its decision, the majority opinion relies on the Eighth Circuit Court of Appeals case, Haines v. St. Charles Speedway, Inc., 874 F.2d 572 (8th Cir. 1989). The Haineses brought action against the promoter of an automobile race and a racetrack owner to recover damages for injuries sustained when Mr. Haines, the race car owner, was struck by his own car while attempting to have it started. The Haineses sought to defeat a summary judgment order primarily by arguing that, under controlling Missouri law, the release and waiver constituted a contract of adhesion. The federal court agreed that the release was a contract of adhesion, but determined the release was unambiguous, not overbroad, and the facts surrounding the case were essentially undisputed. In so finding, the Haines court held it must apply a “total transaction” analysis in determining the intent of the parties to an exculpatory agreement.

The Haines case is far different from the one now before our court. First, as expressed in Haines, the federal court looked to Missouri law to decide that case, and in doing so, pointed out that, under Missouri law, an agreement to exempt one from the consequence of negligence is not against public policy. To the contrary, our court has very clearly decided that agreements exculpating parties from liability for their own negligence is against Arkansas’s strong public policy. Farmers Bank v. Perry, 301 Ark. 547, 787 S.W.2d 645 (1990). Rather than adopting another state’s law on adhesion contracts in reviewing this case, our court would be better served by adhering to its own well-settled law on the review of orders granting summary judgment, and the analysis of exculpatory agreements set out in Perry.

Second, I would further add that, unlike in Haines, the instant case involves disputed material facts that need to be tried. In Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998), this court held that “we only approve the granting of the [summary judgment] motion when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admission on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of fact and the moving party is entitled to judgment as a matter of law.” Unlike the federal courts’ interpretation of Fed. R. Civ. P. 56, under our rule the court will not engage in a “sufficiency of the evidence” determination. Id. The object of summary-judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever, the motion should be denied. Id. (quoting Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991)). Viewing the evidence here in a light most favorable to Mr. Plant, the party against whom the motion was filed, and resolving all doubts and inferences against the Wilburs, the evidentiary items presented by the Wilburs in support of their motion leave questions of material fact unanswered.

Here, factual disputes remain concerning several material issues: (1) whether the disclosure of the types of negligence addressed in the waiver and release form were clear and specific enough to render a valid exculpatory agreement; (2) whether Mr. Plant was a spectator or a participant in the race at the time of his injury and how that might affect the exculpatory agreement; (3) whether Plant was injured while he was in a “restricted area,” covered by the terms of the agreement; and (4) whether Plant knowingly waived all right to hold the Wilburs liable for the specific negligent acts that he alleged in his complaint.

As the majority notes, this court has stated that it is not impossible to avoid liability for negligence through contract if the exculpatory agreement clearly and specifically sets out exactly what negligent acts-are covered. Perry, 301 Ark. at 550-51, 787 S.W.2d at 646-47 (citing Middleton & Sons v. Frozen Food Lockers, 251 Ark. 745, 474 S.W.2d 895 (1972)). Such contracts are strictly construed against the party relying on them. Id.

First, I note here that the generic waiver and release form signed by Plant does not specify the types of negligence that it covers. Plant alleged that the Wilburs failed to provide and maintain adequate safety barriers, and failed to warn of the dangers of flying debris. Plant’s expert testified that the safety barriers between the track and the pit area, specifically the “wheel fence,” had been improperly constructed and that the Wilburs had failed to construct any barrier to keep the spectators away from the wheel fence. The case should be remanded so that a fact-finder may determine whether the agreement clearly set out what negligent liability was to be avoided. See Middleton & Sons v. Frozen Food Lockers, 251 Ark. 745, 474 S.W.2d 895 (1972) (citing Arkansas Power & Light Co. v. Kerr, 204 Ark. 238, 161 S.W.2d 403 (1942)).

Secondly, I point out that a fact question exists as to whether Mr. Plant was a spectator or a participant member of the race crew at the time he was injured. As the majority notes, Sheldon England, the insurance broker, testified that the release applied to “participant legal coverage.” Plant testified that he was admitted as a member of the race crew; however, he was admitted by paying the same entry fee and signing the same release form as an ordinary spectator. Plant’s testimony reflected that at the time he was injured he was not working as a crew member, but instead was watching the race with other spectators in an area away from the pit area where his race crew was located. In sum, a genuine issue remains as to whether Plant was a spectator or a participant, and whether the exculpatory agreement applied the same, to spectators as it did to participants, or not at all. See, e.g., Eder v. Lake Geneva Raceway, 523 N.W.2d 429 (Wis. Ct. App. 1994).

Thirdly, I submit that it is equally unclear whether the area in which Plant was located, when injured, qualified as a “restricted area” under the terms of the exculpatory agreement. See, e.g, Arnold v. Shawano County, 317 N.W.2d 161 (Wis. Ct. App. 1982) overruled on other grounds by Green Spring Farms v. Kersten, 401 N.W.2d 816 (Wis. 1987); Eder v. Lake Geneva Raceway, 523 N.W.2d 429 (Wis. Ct. App. 1994). Although the Wilburs and the trial court presumed that Plant was observing the race from the pit area because that is where he had entered the race track, Plant’s deposition reflects, and the Wilburs fail to dispute, that Plant was injured behind a fence near the race course, where he stood with other spectators.

Finally, the record reflects that the broad terms of the exculpatory agreement fail to give a reasonable person signing the release notice that he or she is waiving any right to hold the Wilburs accountable for premises liability. See, e.g., Yauger v. Skiing Enters., Inc., 557 N.W.2d 60 (Wis. Ct. App. 1996) (court must examine whether “overbroad, general terms of exculpatory agreement create ambiguity and uncertainty as to what the signer was releasing”); see also AMI Civ. 4th 3012 (Supp. 2000-2001). Here, a disputed factual issue exists as to whether Plant knew or should have known, even upon the inspection required by the release and waiver agreement, that the safety barriers constructed to protect restricted areas were inadequate to prevent the type of injury that he incurred. Similarly, there is a factual issue as to whether Plant was given a reasonable opportunity to read and comprehend that he was signing a complete waiver of liability, especially in light of Plant’s undisputed allegations about his signing of the agreement through a truck window while waiting in line for entrance. See, e.g., Eder v. Lake Geneva Raceway, 523 N.W.2d 429 (Wis. Ct. App. 1994); Sexton v. Southwestern Auto Racing Assoc., 394 N.E.2d 49 (Ill. App. Ct. 1979).

As noted, this court has never upheld an agreement purporting to release a party from liability for his own negligence before it occurred. Perry, 301 Ark. at 550, 787 S.W.2d at 646 (citing Williams v. U.S., 660n F. Supp. 699 (E.D. Ark. 1987)). The rationale behind the numerous decisions invalidating so-called releases given before liability arises is based upon the strong public policy of encouraging the exercising of care. Id. Why should we carve out an exception to our rule and public policy disfavoring exculpatory contracts merely because the contractual release covers a dangerous recreational activity? Surely the person charging an admission price to view a car race (or hockey game or wrestling match for that matter) should be held to some duty to use ordinary care for the spectators’ safety. We should not, in my opinion, allow parties who promote dangerous sports activities to be effectively immunized from liability when a spectator is injured by a flying wheel (or puck, or folding chair) because the party promoting the dangerous sport failed to afford the spectator, as an invitee, a reasonably safe environment. Although there may be some exception made to allow racing facility proprietors like the Wilburs to place reasonable conditions on the terms of admission, the owners of such facilities should also be charged with taking reasonable steps to insure the safety of the public at such events.

In my view, Mr. Plant is entitled to have a fact-finder resolve the foregoing disputed material issues, and, therefore, I dissent.

Imber, J., joins this dissent.

       The admission price to the pit area was more expensive than the $6 admission price for entrance to the grandstand.

       Missouri law defined a contract of adhesion as a form of contract submitted by one party and accepted by the other on the basis of this or nothing. Id.


author: Robert L. Brown, Justice.

text:
    STATE of Arkansas, Arkansas Department of Correction v. Jackie Lee STAPLETON
    01-523
    51 S.W.3d 862
    Supreme Court of Arkansas
    Opinion delivered July 9, 2001

      Mark Pryor, Att’y Gen., by; Joseph V. Svoboda, Ass’t Att’y Gen., for appellant.

      William R. Simpson, Jr., Public Defender; Kent C. Krause, Deputy Public Defender, by: Clint Miller, Deputy Public Defender, for appellee.
   Robert L. Brown, Justice.

This matter involves an appeal by the State from an order granting appellee Jackie Lee Stapleton’s petition for a writ of habeas corpus. The facts leading up to this order are these. On April 29, 1987, Stapleton pled guilty to two counts of aggravated robbery, two counts of theft of property, and one count of aggravated assault.

At a hearing held on June 24, 1987, before the Pulaski County Circuit Court, the following colloquy took place:

The COURT: I’m going to sentence you to the negotiated plea that you negotiated. I don’t know what it is but they’re going to tell me and I am going to do that. As I understand it, that sentence is going to be served concurrently with the time you’re going to get in Tennessee. And we’re going to immediately release you to the Tennessee authorities [a]nd they’re going to hold you until they sentence you and then our sentence will run concurrent to that.
Defense Counsel: He’s ready to go.
The Court: Okay. He’s going to get life over there, is he?
Defense Counsel: At least, yes, sir.
The COURT: At least. If for some reason it doesn’t happen, we’re going to bring him back here and let him serve this sentence, whatever it is.
Defense Counsel: I think Mr. Douglass [the prosecutor] and I are both ...
The COURT: Satisfied that it’s going to happen and Jackie’s satisfied it’s going to happen, too?
Defense Counsel: Yes, sir. And Mr. Stapleton’s well aware of what’s going on.
The COURT: What’s the recommendation, Mr. Prosecutor?
PROSECUTOR: Your Honor, on count one, aggravated robbery, the state would recommend fife. On count two, aggravated robbery, the state would recommend life imprisonment, to be served concurrent to each other. On the remaining counts, counts three, four and five, the state would recommend six years concurrent to each other and concurrent to counts one and two.
Defense Counsel: And for the record also, your Honor, it’s our understanding that this will be concurrent to time to be received in Tennessee.
The COURT: Do you know of any reason why I shouldn’t sentence you at this time?
Stapleton: No, sir.
The COURT: State of Arkansas versus Jackie Stapleton, 87-164, it is the judgment and sentence of this court that you be taken by the sheriff of Pulaski County and delivered to the Department of Correction to serve at hard labor for a period of fife for count one and life for count two. Counts three, four and five, it is the judgment and sentence of this court that you be sentenced to a term of six years in the Department of Correction. These sentences are to be run concurrently, each with the ... all with each other and they are to be concurrent to the sentence that you are to receive in the State of Tennessee and they are to be served in the State of Tennessee Department of Correction. ... It is the intention of the court to grant your request that you be sentenced to these terms and that you be allowed to serve them in the Department of Correction of the state of Tennessee concurrent with the sentence that you receive there. Good luck to you.

On June 25, 1987, a judgment and commitment order was entered wherein Stapleton was sentenced to life imprisonment at “hard labor” for the counts of aggravated robbery, six years for theft of property, and six years for first-degree assault. The judgment and commitment order stated that the sheriff is directed to transport Stapleton to the Arkansas Department of Correction to commence his sentence. Under “Explanatory Notes,” the judgment read that the sentence would be “current [ sic] with time in Tennessee to be served in Tennessee.”

Thereafter, Stapleton was transferred to representatives of the State of Tennessee for purposes of resolving the criminal charges brought against him in that state. On January 12, 1988, a judgment was entered in the criminal court of Sullivan County, Tennessee, which stated that Stapleton had been found guilty of second-degree burglary in two cases, grand larceny, and possession of burglary tools. He was sentenced to twenty years on each burglary conviction, six years for grand larceny, and five years for possession of burglary tools. The sentences were to be served concurrently in the Tennessee Department of Correction and concurrently with the Arkansas sentences. The Tennessee judgment provided that Staple-ton would have to serve thirty percent of his sentence before he would be eligible for release.

On January 17, 1992, Stapleton was released on parole by the Tennessee Department of Correction to the Knoxville, Tennessee parole office. Parole was to be continued, according to Stapleton, until the year 2014. On January 13, 1998, Stapleton was arrested in Tennessee and later extradited back to Arkansas. At the time he was arrested in Tennessee, he had married, received custody of his four-year-old granddaughter, and was working as a truck driver for Goodwill Industries. Stapleton was denied a hearing by the Pulaski County Circuit Court and was committed to the Arkansas Department of Correction to serve his life sentence. An order by the circuit court was entered to that effect on March 30, 1998. Staple-ton filed a notice of appeal from the circuit court’s order, but his record was rejected by the Clerk of the Supreme Court because it did not contain a notice of appeal. No additional action was taken by Stapleton to perfect his appeal.

On January 12, 2000, Stapleton filed a petition for writ of habeas corpus with the Lincoln County Circuit Court. In that petition, he contended that in 1987, the Pulaski County Circuit Court “waived jurisdiction or otherwise implicidy pardoned” him when it authorized that he serve his Arkansas sentence in Tennessee and that the circuit court in 1998 lacked jurisdiction to modify the 1987 judgment and recommit him to the Arkansas Department of Correction. The State responded to the petition and argued that the initial commitment to the Arkansas Department of Correction in 1987 was not invalid on its face and that the circuit court did not lack subject-matter jurisdiction to enter the 1987 judgment and commitment order.

A hearing was held on the petition on September 7, 2000, and Stapleton testified in support of his petition. On February 27, 2001, the Lincoln County Circuit Court entered its order granting habeas corpus relief to Stapleton. In that order, the court found and concluded as follows:

At the time Petitioner Stapleton was arrested in Tennessee and extradited back to Arkansas, he was on parole from the Tennessee Department of Correction and thereby subject to the supervision of the Tennessee Department of Correction. This Court specifically finds that until such time as he is no longer under the supervision of the Tennessee Department of Correction, Petitioner Staple-ton’s Arkansas sentence should be served concurrently with his Tennessee sentences and supervised by the Tennessee Department of Correction. That this Court does not reach, as it is not before the Court, what will happen when Petitioner Stapleton completes his Tennessee sentence and is no longer under supervision of the Tennessee Department of Correction. That to the extent necessary to effect this order, the Respondent is hereby directed to disregard the order of the Pulaski County Circuit Court, First Division, dated March 30, 1998.

On May 9, 2001, the State filed a motion for stay of the order granting habeas corpus relief to Stapleton and expedited review of the matter. This court granted the stay and set an expedited briefing schedule. See State v. Stapleton, 345 Ark. 47, 43 S.W.3d 157 (2001) (per curiam).

In its appeal, the State contends that habeas corpus relief is not available when a petitioner is merely questioning where he is to be incarcerated. Rather, the remedy, according to the State, is limited to the question of whether a person should be incarcerated at all. The State further maintains that no one disputes the validity of the 1987 Arkansas judgment or the jurisdiction of the circuit court to enter that order.

Stapleton, on the other hand, argues that the Pulaski County Circuit Court lost jurisdiction to modify the 1987 Arkansas sentence after it was placed into execution in Tennessee. Under his theory, the Pulaski County Circuit Court sentenced him to serve his life sentence in Tennessee and, thus, waived subject-matter jurisdiction over him to modify that sentence. Thus, he contends, the Pulaski County Circuit Court was without jurisdiction to commit him to the Arkansas Department of Correction in 1998 so long as the Tennessee sentence, albeit parole rather than incarceration, was still in effect. This action by the Pulaski County Circuit Court, he claims, constituted a modification of the 1987 judgment and resulted in his illegal incarceration in Arkansas.

Habeas corpus is a vital privilege that is protected by the Arkansas Constitution. Ark. Const. Art 2, § 11. A writ of habeas corpus will be granted forthwith upon a showing by affidavit or other evidence that there is probable cause to believe a person is being detained without lawful authority. Ark. Code Ann. § 16-112-103 (a) (1987). This court has made it clear that a writ of habeas corpus will issue when a commitment is invalid on its face or when the sentencing court lacked subject-matter jurisdiction to enter or modify the sentence. Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515 (1999); Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997).

As both parties agree, our beginning focus must be on the 1987 judgment and commitment order entered by the Pulaski County Circuit Court. Neither party contends that that judgment was invalid. The salient parts of that judgment are:

• Stapleton received several sentences on several convictions, including a life sentence.
• His sentence was described as “hard labor” and the sheriff was directed to transport him to the custody of the Arkansas Department of Correction.
• The Arkansas sentences were to run concurrently.
• Under “Explanatory Notes,” the judgment said the Arkansas sentences would run concurrently with the Tennessee sentences.

As an initial matter, we disagree with Stapleton that the Pulaski County Circuit Court had the authority to determine where Stapleton would serve his Arkansas sentence. The 1987 order was a valid judgment and commitment order for incarceration in the Arkansas Department of Correction. Furthermore, a circuit court has no authority to order where a sentence will be served. That authority rests solely with the executive branch of government and particularly in Arkansas with the Arkansas Department of Correction. See Ark. Code Ann. § 5-4-402(a) (Supp. 1999); Ark. Code Ann. § 12-27-113(a)(1) (Repl. 1999). In short, it was the decision of the Arkansas Department of Correction, and only the Department of Correction, as to where Stapleton’s sentence would be served. An “explanatory note” in the judgment that the life sentence be served in Tennessee does not diminish that fact. We do note, however, that it would be nonsensical to sentence Stapleton to life in prison for Arkansas crimes and then order, in effect, that that sentence be served concurrently with a twenty-year sentence in Tennessee. Of course the circuit court in 1987 did not know what the Tennessee judgment would be, but nonetheless it would be an absurd interpretation of the 1987 judgment to limit its effect to a term of twenty years.

In short, the transfer of Stapleton to Tennessee for service of his Arkansas life sentence concurrently with his Tennessee sentences did not void that life sentence. Nor did it postpone Arkansas’s ability to have its life sentence of “hard labor” carried out when Stapleton was placed on parole in Tennessee. In support of our conclusion, we turn to our decision in George v. State, 285 Ark. 84, 685 S.W.2d 141 (1985). In George, the habeas corpus petitioner had been convicted of burglary in Texas and placed on probation. He returned to Arkansas and was convicted of second-degree murder. While on appeal bond, the Desha County Circuit Court turned the petitioner over to the Texas authorities, and in Texas, his probation on the burglary conviction was revoked. He was sentenced to five years in Texas. He was paroled in Texas, and he returned to Arkansas where he was arrested and sent to the Arkansas Department of Correction to serve time on the second-degree murder conviction.

Petitioner filed a habeas corpus petition and claimed that the Desha County Circuit Court had lost jurisdiction to commit him to the Arkansas Department of Correction because that court had released him to Texas. This court disagreed that the commitment was illegal. We said:

While one effect of the Arkansas commitment may be to place [petitioner] in violation of his Texas parole obligation, that is not a consideration in determining whether the Desha County Circuit Court had the power to commit him.

285 Ark. at 87, 685 S.W.2d at 143. We held that the petitioner was not entided to a writ.

The same holds true in the case at bar. The Pulaski County Circuit Court never relinquished its power to require Stapleton to serve his life sentence. Nor was that court’s commitment of Staple-ton in 1998 to the Arkansas Department of Correction a modification of the original 1987 judgment. The circuit court had the power to require Stapleton to serve his Arkansas sentence regardless of his parole in Tennessee. Indeed, the fact that Tennessee placed Stapleton on parole did not undercut the Pulaski County Circuit Court’s authority any more than the Texas parole undercut the authority of the Desha County Circuit Court to commit the petitioner in the George case.

The order of the Lincoln County Circuit Court granting a writ of habeas corpus is reversed and this matter is remanded for entry of an order consistent with this opinion.

       The written Plea Statement does not include the two counts for theft, although Stapleton admitted to the circuit court that he was also pleading guilty to the theft charges.