author: W.H.“Dub” Arnold, Chief Justice. Donald L. Corbin, Justice,

text:
    Randy PORTER v. David HARSHFIELD, Jr., M.D.
    96-940
    948 S.W.2d 83
    Supreme Court of Arkansas
    Opinion delivered June 23, 1997

      Gary Eubanks & Associates, by: James Gerard Schulze, for appellant.

      Michael Angel, for appellee.
   W.H.“Dub” Arnold, Chief Justice.

The appellant, Randy Porter, brought suit against appellee David L. Harshfield, Jr., M.D., d/b/a Riverside Radiology Group, to recover damages for injuries sustained when Dr. Harshfield’s employee, Jerry Pearrow, a radiology technician, sexually assaulted Porter while conducting a gallbladder ultrasound. Porter’s separate suit against Pearrow resulted in a default judgment and a subsequent award to Porter in the amounts of $15,000 in compensatory damages and $15,000 in punitive damages. In the present appeal, Porter challenges the trial court’s granting of summary judgment in Dr. Harshfield’s favor. We affirm.

The facts as set out in Porter’s complaint are as follows. On October 4, 1993, Porter went to Riverside Radiology Group in North Little Rock for an ultrasound for suspected gallbladder problems. Pearrow escorted him to an examining room and requested that he partially disrobe, don a hospital gown, and lie on his back on the examining table. Pearrow put gel on Porter’s stomach and proceeded to examine his side several times. He then unbuckled and unzipped Porter’s pants, pulled them down, and examined around his testicles. Feeling something on his penis, Porter looked down to find Pearrow performing oral sex on him. Porter immediately got off the table, put on his clothes, and left the clinic.

In his complaint, Porter claimed that Pearrow’s actions were within the course and scope of his employment and thus should be imputed to Dr. Harshfield. In his answer, Dr. Harshfield admitted that Porter had been referred to his clinic on the date in question, but denied any knowledge of the sexual assault. He pleaded affirmatively that, if Pearrow indeed committed the actions alleged, his actions were outside the scope of his employment.

Both parties filed motions for summary judgment. Attached to Dr. Harshfield’s motion was the affidavit of Dr. Joseph Calhoun, the supervising radiologist at the clinic while Dr. Harshfield was the acting Chief of Radiology at the Veterans Administration Hospital. Dr. Calhoun averred that he had been practicing radiology in Little Rock since 1950. “Eminently familiar” with the standard of care in this area, Dr. Calhoun explained that it was standard procedure to allow radiology technicians to perform ultrasound tests unsupervised unless the examination was of an unusual nature. A routine gallbladder exam, according to Dr. Calhoun, was not of an unusual nature.

Dr. Harshfield also presented his own affidavit in which he stated that, at the time of the incident, he had no knowledge that Pearrow had the intent to touch or physically contact Porter in an inappropriate way, nor did he possess knowledge of any facts that would have alerted him to the probability that Pearrow would engage in such behavior. He further averred that Pearrow’s actions were wholly outside his employment and beyond the duties and responsibilities of a radiology technician at the clinic. According to Dr. Harshfield, Pearrow’s actions did not benefit him and were unexpectable.

In response to Dr. Harshfield’s motion, Porter claimed that Dr. Harshfield had conducted virtually no background check on Pearrow. He further complained that Dr. Harshfield failed to supervise Pearrow; instead, he allowed Pearrow to “be his own boss.” Porter also filed a motion for summary judgment, claiming that Dr. Harshfield had knowledge of Pearrow’s past misconduct. In support of this contention, Porter submitted the affidavit of Little Rock Police Officer Sam Morshedi, who averred that he interviewed Pearrow on October 6, 1993, at which time Pearrow told him that he had previously engaged in homosexual conduct and had had a prior complaint filed against him at the clinic for sexually assaulting a female during a breast examination. After considering the pleadings, affidavits, discovery, and arguments of counsel, the trial court granted summary judgment in Dr. Harshfield’s favor.

We have recently summarized our standards for summary judgment review in O’Mara v. Dykema, 328 Ark. 310, 315-316, 942 S.W.2d 854 (1997):

The standard of review for a grant of summary judgment is familiar. Summary judgment should only be granted when it is clear that there are no disputed issues of material fact. Franklin v. Osca, Inc., 308 Ark. 409, 825 S.W.2d 812 (1992). It is appropriate to sustain a grant of summary judgment if the evidence brought before the trial court by the moving party shows “that there is no genuine issue as to any material fact and that the moving party is entided to judgment as a matter of law.” Tullock v. Eck, 311 Ark. 564, 567, 845 S.W.2d 517, 519 (1993); Ark. R. Civ. P. 56(c). Appellees, as movants for summary judgment, bear the burden of showing that there is no issue of material fact. Gleghorn v. Ford Motor Credit Co., 293 Ark. 289, 737 S.W.2d 451 (1987). All evidence must be viewed in the light most favorable to appellants, as they are the parties resisting the motion; and they are also entided to have all doubts and inferences resolved in their favor. National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996). However, they may not rest upon the mere allegation of their pleadings; Ark. R. Civ. P. 56 requires their response, by affidavits or other evidence, to specifically show that there is a genuinely disputed issue of material fact. Guthrie v. Kemp, 303 Ark. 74, 793 S.W.2d 782 (1990). Once a movant makes a prima facie case for summary judgment, the respondent must then meet proof with proof by showing that there remains a genuine issue of material fact. Mt. Olive Water Ass’n v. City of Fayetteville, 313 Ark. 606, 856 S.W.2d 864 (1993).
Even if there are disputed facts, if reasonable minds would not differ as to the conclusion to be reached, then a grant of summary judgment is proper. Chalmers v. Toyota Motor Sales, 326 Ark. 895, 935 S.W.2d 258 (1996). Further, if a respondent to a motion for summary judgment cannot present proof on an essential element of the claim, the movant is entided to summary judgment as a matter of law. Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988).

In asking us to reverse the trial court’s granting of summary judgment, Porter suggests that we analyze his case under at least three different theories discussed in a recent law review article. See Jorgensen, Transference of Liability: Employer Liability for Sexual Misconduct by Therapists, 60 Brook. Law Rev. 1421 (1995). First, he asks that we apply the common-carrier theory of recovery to his case. According to Porter, as a patient, he was in a position at least as vulnerable as a passenger of a common carrier, and that, accordingly, Dr. Harshfield had a duty to protect him from willful assaults by his employee. Under this theory, which emerged from railroad-passenger cases, liability is based on the exclusive control that the carrier has over the passenger. Id. at 1449. It calls for an extraordinary, nondelegable duty of care that imposes liability on the employer for any harm befalling the plaintiff. Id. at 1450. In a common-carrier analysis, the plaintiff is never obligated to prove that the employee was acting under the scope of his or her employment or even that the actor was the defendant’s employee. Id.; see also Stropes v. Heritage House Children’s Ctr., 547 N.E.2d 244 (Ind. 1989).

Another theory of liability propounded by Porter is one of “job-created power.” Under this theory, employers are held vicariously liable for an employee’s intentional torts. Jorgensen, 60 Brook. L. Rev. at 1435. Porter claims that, by giving Pearrow supervisory authority, Dr. Harshfield granted job-created power to Pearrow, who in turn abused this power when he sexually assaulted Porter while performing the ultrasound. Porter further suggests that “the scope of risks attributable to an employer increases with the amount of authority and freedom of action granted to the servant in performing his assigned tasks.” Id. at 1437; quoting Samuels v. Southern Baptist Hospital, 594 So.2d 571 (La. App. 1992), cert. denied 599 So.2d 316 (La. 1992). However, courts have been generally reluctant to extend this theory of vicarious liability too far beyond the realm of police officers or those with special duties and powers associated with their positions. Id. at 1439.

Porter also asks us to examine his case on the basis of what was “reasonably incidental” to Pearrow’s legitimate work activities. See Stropes v. Heritage House Children’s Ctr., supra; and Doe v. Samaritan Counseling Ctr., 791 P.2d 344 (Alaska 1990). He asserts that Pearrow’s actions, while not desired or authorized by Dr. Harshfield, were reasonably incidental to Pearrow’s job as a radiology technician.

Rather than analyze the present case under one of the aforementioned theories from other jurisdictions, we think that the better course is to adhere to the theory of master-servant liability that we have followed since 1910. See Sweeden v. Atkinson Imp. Co., 93 Ark. 397, 125 S.W. 439 (1910)(an act of an employee, in order to render the employer liable, must pertain to something that is incident to the employee’s duties and which it is his duty to perform or for the benefit of the employer). Our test was further explained in Life & Cas. Ins. Co. of Tenn. v. Padgett, 241 Ark. 353, 355, 407 S.W.2d 728 (1966):

We think the law as it stands today is fairly summarized in the Restatement of Torts, where it is said that the master is subject to liability for his servant’s intentional tort “if the act was not unexpectable in view of the duties of the servant.” Restatement, Torts (2d), 245 (1958).

More recently, we reviewed our test, commonly referred to as the respondeat superior doctrine, in Gordon v. Planters & Merchants Bankshares, 326 Ark. 1046, 935 S.W.2d 544 (1996). There, we said that an employer may be held liable for punitive damages for the acts of his employee if the employee was acting within the scope of his or her employment at the time of the incident. Id.; J.B. Hunt Transp., Inc. v. Doss, 320 Ark. 660, 899 S.W.2d 464 (1995). Whether the employee’s action is within the scope of the employment depends on whether the individual is carrying out the “object and purpose of the enterprise,” as opposed to acting exclusively in his own interest. Id.

Applying these principles to the facts before us, we must agree with the trial court that Pearrow’s sexual assault of Porter was unexpectable. Pearrow was not, by any stretch of the imagination, acting within the scope of his duties as a radiology technician when he assaulted Porter. Rather, Pearrow’s actions were purely personal. Because Pearrow’s actions were not expect-able in view of his duties as a radiology technician, we conclude that Dr. Harshfield may not be held liable for Pearrow’s actions and was thus entitled to summary judgment as a matter of law. See Life & Cas. Ins. Co. of Tenn. v. Padgett, 241 Ark. 353, 407 S.W.2d 728 (1966).

Dr. Harshfield contends that Porter’s remaining claims for negligent hiring, retention, and supervision are procedurally barred because he failed to amend his complaint to include these theories of recovery. While it is true that Porter did not present these claims in his complaint, Dr. Harshfield acknowledged in his brief in support of his motion for summary judgment that Porter had raised three theories of recovery: negligent hiring and retention; negligent supervision; and respondeat superior. Under these circumstances, we must conclude that the negligence claims were tried by the express or implied consent of the parties and thus should be treated in all respects as if they had been raised in Porter’s complaint. See Ark. R. Civ. P. 15(b).

Turning to the merits of Porter’s negligent-hiring claim, Dr. Harshfield contends that our decision in St. Paul Fire & Marine Ins. Co. v. Knight, 297 Ark. 555, 764 S.W.2d 601 (1989) is dispositive. We agree. In that case, a patient argued that the hospital’s background check on an employee who sexually molested him was very inadequate and that a proper investigation would have shown that he was not qualified for the position of psychiatric technician. The investigation conducted by the hospital revealed that the technician had received apprentice counselor’s credentials, supervised a summer playground staff, completed a work-study program, and received an honorable discharge from the Air Force. Id. He had no criminal record and no history of violent acts or sexual misconduct. Id. On appeal, we concluded that there was no evidence that the hospital gained any information that would have led them to conclude that the employee might be predisposed to commit violent acts against anyone. Id., citing Williams v. Feather Sound, Inc., 386 So.2d 1238 (Fla. App. 1980). We further surmised that “[i]t would take a vivid imagination to glean from this evidence any predisposition of appellant to molest adolescent males or commit sexual assault.” Id.; citing Strauss v. Hotel Continental Co., Inc., 610 S.W.2d 109 (Mo. App. 1980).

In the present case, Dr. Harshfield stated in his deposition that Pearrow had the highest ultrasound degree available. He had known Pearrow for some eight years while the two worked together at Arkansas Children’s Hospital before he hired him as a technician and described him as very dependable. Porter claims that Dr. Harshfield should have inquired as to why Pearrow left Arkansas Children’s Hospital; however, he has not abstracted any evidence or testimony to show what, if anything, Dr. Harshfield would have discovered had he conducted a background check that would have led him to believe that Pearrow was predisposed to commit sexual assault. Porter further points to Dr. Harshfield’s testimony in his deposition that Pearrow had described himself as “asexual.” Yet Porter has stated no connection, and we know of none, between sexual orientation and a predisposition to commit sexual assault.

Regarding the negligent-retention claim, Porter refers to Pearrow’s statement to Officer Morshedi, made after the incident in question, that he had engaged in prior homosexual misconduct and had had a prior sexual-assault complaint against him stemming from a breast examination that he had conducted while employed at Dr. Harshfield’s clinic. Again, the fact that Pearrow had engaged in homosexual conduct in no way indicates that he would commit a sexual assault. As to the prior complaint, Dr. Harshfield claimed that he was unaware that such a complaint existed. Officer Morshedi’s affidavit did not address whether a complaint was made before the incident in question, much less whether Dr. Harshfield knew that such a complaint existed or whether the complaint had any validity. As such, Porter failed to meet proof with proof on this issue.

In support of his negligent supervision claim, Porter points to Dr. Harshfield’s policy at the clinic of having a female employee in the room when a male employee examines a disrobed female patient. He claims that Dr. Harshfield should have had a similar policy in place for Pearrow since he was aware that Pearrow had described himself as asexual. However, he offers no convincing authority or argument in support of his contention. We do not consider assignments of error that are unsupported by convincing legal authority or argument. Berry v. St. Paul Fire & Marine Ins. Co., 328 Ark. 553, 944 S.W.2d 838 (1997).

Finally, Porter asserts that public-policy considerations mandate reversal of the granting of summary judgment in his case. Particularly, he claims that Dr. Harshfield, who made a profit from his clinic while being employed by the VA Hospital, received an economic benefit by allowing Pearrow to be his own boss. Thus, according to Porter, Dr. Harshfield must bear the risks that go along with the economic benefit. In our view, the connection between Pearrow’s authority as a radiology technician and the abuse of that authority to indulge in personal, sexual misconduct is simply too attenuated to include within those risks allocated to his employer. Based on the foregoing, we affirm the decision of the trial court.

Affirmed.

Corbin, J., dissents.

Donald L. Corbin, Justice,

dissenting. The Appellant raises four possible, theories that this court could utilize in order to place liability on the health-care provider — the ultimate person upon which blame should lie. I address only two of them, as the other two werfe not adequately developed by Appellant. I would be willing, however, to consider the remaining two theories in the future, in the event they are properly developed for appeal.

I would apply the common-carrier liability theory to allow recovery in this case. True enough, that theory originated with companies that were in the business of transporting passengers, but I believe the reasons behind this theory could be applied to the situation presented in this case. The basis of the theory, as it relates to common carriers in Arkansas, is a recognition of an enhanced liability to passengers because they are most vulnerable due to the fact that they have entrusted the common carrier with their lives. Under this doctrine, common carriers are responsible for the intentional torts of their employees. The policy reason that militates such a high standard of care is the vulnerability of the patron.

I would extend this high standard of care to medical-care providers. I can think of no greater responsibility than the duty owed by medical-care providers to safely exercise their skills and maintain control and supervision over their support staff upon accepting a patient into their care. A patient entrusts his body to the physician and necessarily to any of the physician’s support staff. The patient subjects himself to a loss of dignity by even divulging his personal thoughts as to what ails him. Who does not feel the most vulnerable when told to disrobe and put on one of those split-tail gowns? Nakedness makes one feel the weakest, the most vulnerable. In addition to these feelings of vulnerability, we are conditioned since childhood to do what the doctor or his staff say “if we want to get well.” Do we refuse to follow or question the control of physicians or their staffs? No. We blindly obey their orders. Upon their direction, we bend over, we make a fist, we turn this way or that, we take a deep breath, and we even cough on command. We are essentially like sheep being led to slaughter, blindly doing as we are told. The reason for this blind faith lies within the trust we have for all medical-care providers, whom we are told will help us in our time of need.

I do not think it is proper for the medical-care provider, the authoritative figurehead, to be let off the hook of accountability because his employee’s assault on his patient did not pertain to something that is incident to the employee’s duties — that it was not foreseeable in view of the duties of the servant pursuant to our doctrine of respondeat superior. This is where I believe the majority is wrong. Certainly, the record reflects that Dr. Harshfield is a decent and fine physician, who employed Pearrow on the basis of his skills and reputation in the health-care field. The record further reflects that Dr. Harshfield did not in any manner desire or authorize Pearrow to make the sexual assault on his patient. But in this situation, control, trust, and vulnerability are the buzz words. This physician, acting through his radiology technician, Pearrow, to whom he had delegated the responsibility of solely caring for his patient, must and should bear the ultimate responsibility for the outrageous harm done to his patient, the Appellant herein. The majority’s decision is very disturbing to me. After reading this decision, who will ever totally trust any health-care provider? If it happened once, it can do so again.

What makes the majority’s decision even more disturbing is the fact that it is common practice that a male medical-care provider have a female medical-care provider present when he is examining a female patient. Although I suspect that the concern for the female patient is merely secondary to the male medical-care provider’s desire to protect himself from unwarranted accusations arising from such intimate encounters, this decision has the potential of undermining such practice. Because if such acts by the employer are not foreseeable under the instant facts, then there is no need to continue this practice. It has a smack of gender bias. The bottom line is that if it is foreseeable that a one-on-one encounter between a male medical-care provider and a female patient could lead to improper sexual assaults being perpetrated on a female patient, then it is just as foreseeable that such assaults may be perpetrated on a male patient. The key to viewing such a situation lies not within a heterosexual-versus-homosexual attraction; rather, the situation turns on the fact that the vulnerable patient finds himself or herself alone with a stranger while the patient is in a submissive situation. In fact, I agree with the majority’s observation that there is no connection between a person’s sexual orientation and a predisposition to commit sexual assault. Thus, I can discern no valid reason for having a third party present in the examining room when the medical-care provider is male and the patient is female, all the while continuing to allow a male medical-care provider to be alone with a male patient.

My observations would just as easily support liability under the theory of job-created power. Under this theory, employers are held vicariously hable for an employee’s intentional torts. Because Dr. Harshfield gave Pearrow supervisory control over his patient, he gave job-created power to Pearrow. The scope of risks attributable to a health-care provider should increase with the amount of authority and freedom of action granted to a servant in performing his assigned tasks. This is particularly true when those supervisory duties include one-on-one encounters with patients.

Based upon the foregoing reasons, I respectfully dissent.


source: Caselaw Access Project

author: W.H.“Dub” Arnold, Chief Justice. David Newbern, Justice,

license: Public Domain

text:
    Marlan Dale SHANNON, Individually and as Administrator of the Estate of Charles Shannon, Deceased v. L.K. WILSON and Elizabeth Ashworth, Individually and as Partners of City Liquor, a Partnership
    96-762
    947 S.W.2d 349
    Supreme Court of Arkansas
    Opinion delivered June 23, 1997

      The Mulkey Attorneys Group, P.A., by: Bruce L. Mulkey and Ramona G. Stein, for appellants.

      Ball & Mourton, Ltd., by: Kenneth R. Mourton and Rayburn W. Green, for appellees.

      Everett, Shemin, Mars & Stills, by: David D. Stills, for Amici Curiae.
   W.H.“Dub” Arnold, Chief Justice.

This is an appeal asking us to reconsider our decisions in Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965), and the line of decisions following that ruling in which we determined that there is no liability imposed upon one who sells intoxicants to minors for injuries caused by minors who became inebriated. Appellant asks us to modify our rule to allow the issue of whether the seller is negligent to go to a jury for determination. We reverse and remand holding that, under the facts which may be proved by the pleadings, a cause of action for common-law negligence against the vendor has been stated.

Marian Dale Shannon filed suit against L.K. Wilson and Elizabeth Ashworth, individually and as partners of City Liquor in Fayetteville, for the wrongful death of his son Charles Shannon. The trial court dismissed the complaint pursuant to an Ark. R. Civ. P. 12(b)(6) motion made by appellees. Upon our review, we accept all facts alleged in the complaint as true and view them in the light most favorable to the appellant. Neal v. Wilson, 316 Ark. 588, 596, 873 S.W.2d 552, 556 (1994).

On the evening of January 28, 1995, Charles Shannon and Jarred Sparks, both aged thirteen, were passengers in a Ford pickup truck driven by David Farmer, aged sixteen. Between 7:00 p.m. and 8:30 p.m., the three boys drove up to the drive-through window of City Liquor, located in Fayetteville, Arkansas. An employee of City Liquor sold them a six-pack of beer and a six-pack of malt liquor without asking for identification.

After leaving City Liquor, the three boys began drinking as they drove to St. Paul, Arkansas. At a pool hall in St. Paul, David Farmer exited the vehicle. Charles Shannon and Jarred Sparks remained in the vehicle drinking the rest of the liquor. At some time, the two boys left the pool hall in the pickup.

At approximately 9:10 p.m., the Arkansas State Police were notified of an accident in Madison County. Arriving at the scene, police found the Ford pickup had left the road, traveled through a fence, hit a telephone pole and finally come to rest after hitting a tree. The police surmised that the pickup was traveling at excessive speed and that the accident occurred while the driver was attempting to negotiate a curve. Jarred Sparks was found in the driver’s seat of the truck and Charles Shannon in the passenger’s seat. Both were pronounced dead at the scene. Blood tests revealed that Jarred Sparks had a blood-alcohol level of .10% and that Charles Shannon had a level of .07%.

Marian Dale Shannon, father of Charles Shannon and executor of the estate, filed suit asserting that appellees were negligent in selling alcohol to the three minors. The complaint alleged that it was foreseeable that the minors who purchased the liquor at a drive-through window would drive the vehicle on the roads of Arkansas thereby endangering their health and safety as well as that of other persons traveling on the roads. The trial court granted the appellee’s motion to dismiss for failure to state a claim upon which relief could be granted. Appellant appeals the dismissal and urges that the law in Arkansas be changed to recognize the potential liability for a vendor who knowingly sells alcohol to minors.

In Carr v. Turner, supra, this Court first addressed the issue of whether a person who was injured in a collision with a drunk driver had a cause of action against a tavern owner whose unlawful sale of liquor brought upon the inebriation. This Court determined, at that time, that it should follow the view of the majority of other jurisdictions in observing the common-law view that the proximate cause of any subsequent accident was the consumption of liquor, not its sale. Id. at 890 (citations omitted).

In Carr, we noted that the enactment of a dramshop act by the legislature would be the appropriate method to change the common-law principle. This Court in Carr examined two existing Arkansas statutes to determine whether in either of them the legislature had acted to change the common-law rule. The first statute directed that liquor be sold in packages and not consumed on the premises; this was enacted to avoid the return of “saloons” to the State. Ark. Stat. Ann. § 48-309 (Repl. 1946), recodified at Ark. Code Ann. § 3-3-604 (Repl. 1996). The second statute established a misdemeanor crime for anyone who sold or gave away liquor to a minor, a habitual drunkard, or an intoxicated person. Ark. Stat. Ann. § 48-901 (1947), recodified at Ark. Code Ann. § 3-3-206-210 (Repl. 1996).

This Court determined that neither of these two statutes changed the common-law rule of nonliability. In making this determination, we noted that the majority of other jurisdictions adhered to this principle and that the “cases finding liability are so few that they may be reviewed quickly.” Can, 238 Ark. At 891.

Since Can, this Court has been entreated to reevaluate the issue of a seller of alcohol’s liability on numerous occasions. Repeatedly we have held that absent a change in the common-law principle by the legislature, this Court would not depart from the ruling in Carr and its progeny.

In Milligan v. County Line Liquor Inc., 289 Ark. 129, 709 S.W.2d 409 (1986), we addressed the issue of liability for the provider of alcohol. In Milligan, the appellee, County Line Liquor, was charged with violation of an Arkansas statute by selling beer to a minor. Ark. Stat. Ann. § 49-8-901 (Repl. 1977). We upheld the premise that there is no liability for selling alcohol, even in the instance where a statute was violated. Specifically, we held:

It may be that a Dramshop Act is to be desired, but such a measure should be the result of legislative action rather than of judicial interpretation. The primary purpose of this appeal is to see if we will reverse our position and now adopt such a measure by judicial fiat. ... we decline to change our position because of the essential soundness of the common-law rule. That is, it is the consumption of intoxicants, not the sale standing alone, which is the proximate cause of injuries.
Appellant next argues that the trial court erred in ruling that as a matter of law there was no proximate cause between violation of the statute prohibiting the sale of beer to a minor and the accident. The argument, in essence, is simply another way to contend that Ark. Stat. Ann. 48-901 (Repl. 1977) is a Dramshop Act. We have previously rejected the argument. In Carr v. Turner, supra, we stated it is clear that in enacting Ark. Stat. Ann. 48-901 the General Assembly did not intend to change the common-law rule of nonliability.

In several cases following Milligan, we rejected appeals to deviate from the Carr v. Turner rule. In Yancy v. The Beverage House of Little Rock, Inc., 291 Ark. 217, 723 S.W.2d 826 (1987), the appellee twice sold alcohol illegally to a minor; on the second occasion, the minor was intoxicated at the time of the sale. The minor then had an accident where two teenagers were killed. Also, in First American National Bank of North Little Rock v. Associated Hosts, Inc., 292 Ark. 445, 730 S.W.2d 496 (1987), a “happy hour” customer was allowed to leave the bar in an intoxicated state after having consumed more than a dozen drinks in three hours. Upon leaving the bar, the customer fell and was injured. In both of these cases, we reaffirmed the Carr holding of nonliability for the seller of alcohol. In 1995, we again held in Mann v. Orrell, 322 Ark. 702, 912 S.W.2d 1 (1995), that the holdings of Carr and its progeny were controlling and that there is no liability to be imposed on tavern owners or liquor store owners for injury to a patron or third person when injury results from the consumption of alcohol.

Since 1965, our holdings have been consistent in declining to impose liability on the provider of alcohol by holding that the proximate cause of any injuries later occurring is the consumption of the alcohol, not its sale. In fact we have continually stated that a dramshop act is the preferred measure to deal with this issue and that “such a measure should be the result of legislative action rather than of judicial interpretation.” Carr at 892, supra. For twenty years, we have followed precedents while stating that the legislature should address this issue, and we have held to the contention that replacing the common-law rule is a matter of public policy best left to the legislature. Despite this Court’s preference for legislative action, there has been no action directly addressing this troublesome question; so, we will address this issue now.

In Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968), this Court addressed the issue of abolishing the common-law principle of governmental immunity from tort actions and noted that “[t]he Legislature’s broad investigative powers to determine facts and its greater flexibility in dealing with complex problems indicate a preference for a solution by statutory action.” Id. at 1242. While a legislative deliberation was the preferred method to address the issue, this Court concluded that “considerations of public policy are not and never have been for determination by the legislature alone.” Id., citing Oliver Wendell Holmes, The Common Law, 35 (1881).

Carr was decided in 1965 utilizing a rule of law from the early 1800s. In the 1800s, when the common-law rule was formulated, most people walked and some rode in horse-drawn carriages, no unreasonable risk to third persons was created by selling alcohol to a visibly intoxicated person or a minor. Today, patrons of bars and liquor stores no longer typically walk or ride on horses. They almost always travel by motor vehicle. The reality of modern life is evidenced by the fact that most drinking establishments and liquor stores provide patrons parking lots. Meade v. Freeman, 462 P.2d 54, 64-65 (Idaho 1969). See also, Right of Action at Common Law for Damages Sustained by Plaintiff in Consequence of Sale of Intoxicating Liquor or Habit-forming Drugs to Another, 120 A.L.R. 352 (1941); see generally, Bender, Tort Liability for Serving Alcohol: An Expanding Doctrine, 46 Mont. L. Rev. 381 (1985). Today, motor-vehicle crashes are the single greatest health hazard to people under the age of forty-five. Over 50% of all highway fatalities result from driving under the influence of alcohol. Over 250,000 people died in the United States in alcohol-related motor-vehicle accidents in the years between 1980-1990. Interim Report to the Nation from the Presidential Commission on Drunk Driving, p.1-2 (Dec. 13, 1995).

The law has undergone massive change since the 1800s. The ultimate test in determining the existence of a duty to use due care is found in the foreseeability that harm may result if care is not exercised. Common experience dictates that when a person is imbibing alcohol, that person reaches a level of toxicity after which continued imbibing alcoholic beverages will render him unable to operate an automobile safely.

The rule espoused in Carr was judicially created. When a judicially created rule becomes outmoded or unjust in its application, it is appropriate for the judiciary to modify it.

The Oklahoma Supreme Court, in Brigance v. Velvet Dove Restr., Inc., 725 P.2d 300 (Okla. 1986), wrote:

Inherent in the common-law is a dynamic principle which allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying common-law to new situations as the need arose. If this were not so, we must succumb to a rule that a judge should let others ‘long dead and unaware of the problems of the age in which he lives, do his thinking for him.’

Id., citing, Bielski v. Schulze, 114 N.W.2d 105 (Wisc. 1962), quoting Mr. Justice Douglas, Stare Decisis, 49 Colum.L.Rev. 735,736 (1949).

In Parish v. Pitts, supra, this Court noted that “the field of common law is not primarily the Legislature’s problem, it is the primary concern of this Court. Accordingly, the Court, not the Legislature, should extirpate those rules of decision which are admittedly unjust, for it is to the judiciary that the power of government is given to provide protection against individual hurt.” Id. citing, Green, Freedom of Litigation, 38 Ill. L. Rev. 355, 382 (1944). Thus, as a part of our common-law doctrine, this Court is free to amend the common law. True, as we have frequently stated, the legislature may amend or change our common law, but we are not bound to adhere to outmoded holdings pending legislative action. This Court has a duty to change the common law when it is no longer reflective of economic and social needs of society. We conclude, therefore, on the basis of past cases decided by this Court regarding our obligation to adapt our common law to an ever changing society and as a matter of policy, we should recognize a common-law cause of action against a vendor of liquor who knowingly sells alcohol to a minor.

The absolute rule of nonliability for vendors who sell alcohol to minors in violation of a criminal statute is unjust jurisprudence because the furnishing of alcohol to minors may seriously endanger the health, safety and welfare of Arkansas’ minors. The doctrine of stare decisis is not a sufficient reason to preclude the recognition of liability.

Many other jurisdictions have held that such a rule is unjust and have acknowledged liability for those who illegally sell liquor; we are in the minority by continuing with the rule from Carr. This Court concluded in Carr that it did not wish to be in the minority of jurisdictions on this issue, so this Court adhered to what then was the majority rule — nonliability of the seller. Ironically, over the passage of years the holding in Carr has now become the clear minority rule which is the position that this Court expressly stated it wanted to avoid when it first considered the vendor nonliability issue twenty years ago. Most state and federal courts that have considered this issue since the 1960s have reevaluated and rejected as patently unsound the rule that a seller cannot be held liable for furnishing alcoholic beverages to an intoxicated or minor patron who injures a third person based upon the grounds that the sale or service is causally remote from the subsequent injurious conduct of the patron. A substantial majority have decided that the furnishing of alcoholic beverages may be a proximate cause of such injuries and that liabifity may be imposed upon the vendor in favor of the injured third person.

The State of Kentucky initially followed the common-law rule of nonliability for a vendor of intoxicating liquor; however, the Kentucky Court of Appeals found that the constitution, statutes, and case law of Kentucky provide a policy of special protection for minors from injury; therefore, in instances involving minors, such liability for vendors can exist. Statutes relied upon as creating this special protection include minimum ages for employment; prohibition against harming minors; prohibition on exhibition of minors; and other child-protection acts. See, Pike v. George, 434 S.W.2d 626 (Ky. 1968).

The expanding view of common-law liability is evidenced by the overwhelming number of other jurisdictions which have found liability under similar facts. Other jurisdictions that have adopted the theory of allowing the issue of negligence to go to a jury follow: Alaska: Nazareno v. Urie, 638 P.2d 671 (Alaska 1981) (sale violating minor-sale statute is evidence of negligence for jury to examine); Arizona: Ontiveros v. Borak, 667 P.2d 200 (Az. 1983) (do not favor special rules of tort nonliability because no group should be given special privileges to negligently injure others without bearing the consequences of that act); California: Strang v. Cabrol, 691 P.2d 1013 (1984) (sale of liquor to obviously intoxicated person gives rise to liability; however, other forms of common-law civil liability are rejected); Colorado: Kerby v. Flamingo Club, Inc., 532 P.2d 975 (Colo. App. 1974) (illegal sale to minor basis for common-law negligence suit); District of Columbia: Marusa v. District of Columbia, 484 F.2d 828 (1973) (violation of a statutory duty is evidence of negligence); Florida: Davis v. Shiappacossee, 155 So.2d 365 (Fla. 1963) (illegal sale to minor evidence of negligence for jury to consider); Georgia: Sutter v. Hutchings, 327 S.E.2d 716 (Ga. 1985) (provider of alcohol is liable for injury to third party by an intoxicated person if he had knowledge that the consumer of alcohol was intoxicated at the time the alcohol was furnished; however, there is no liability for provider to consumer because consumer is solely responsible for his or her own injuries); Georgia also has dramshop act: Ga. Code § 3-3-22 (1982); Hawaii: Ono v. Applegate, 612 P.2d 533 (Ha. 1980) (modern trend and injustice of nonliability rule lead to a conclusion that a person injured by an inebriated tavern customer may recover from the tavern); Idaho: Alegria v. Payonk, 619 P.2d 135 (Idaho 1980) (situation analogous to negligent entrustment, so jury should determine whether it was proximate cause of later injuries); Illinois: Waynick v. Chicago’s Last Department Store, 269 F.2d 322 (7th Cir. 1959) (sale in violation of criminal statute held to be basis for common-law negligence claim); Illinois also has dramshop act: 111. Stat. Ann. ch. 43, § 135 (Smith-Hurd 1984 Supp.); Indiana: Elder v. Fisher, 217 N.E.2d 847 (Ind. 1966) (in the absence of a special statutory provision, the general principles of common-law negligence should be applied to cases involving intoxicating liquor); Indiana also recognizes statutory liability: Ind. Code § 7.1-5-10-15 (1982 ed.); Iowa: Lewis v. State, 256 N.W.2d 181 (Iowa 1977) (in instances involving an illegal sale of alcohol to a minor, the proximate cause of any subsequent injury is an issue to be resolved by the fact finder); Louisiana: Thrasher v. Leggett, 373 So.2d 494 (La. 1979) (there should not be civil immunity for alcoholic retailers even when there is no dramshop statute); Massachusetts: Adamin v. Three Sons, Inc., 233 N.E.2d 18 (Mass 1968) (illegal sale to intoxicated person can be basis for common-law negligence claim); Michigan: Thaut v. Finley, 213 N.W.2d 820 (1973) (violation of statute for illegal sale of alcohol is negligence per se); also recognize statutory liability: Mich. Stat. Ann. § 18.993 (Callaghan 1984 Supp.); Minnesota: Trail v. Christian, 213 N.W.2d 618 (Minn. 1973) (common-law rule overruled because of change in public policy, law is not “chiseled in marble to be left unchanged”); Minnesota also recognizes statutory liability: Minn. Stat. § 340.95 (1984); Mississippi: Munford, Inc. v. Peterson, 368 So.2d 213 (Ms. 1979) (violation of a statute is negligence per se, there is no justification to exclude sellers of alcohol from this requirement); Missouri: Sampson v. W.F. Enterprises, Inc., 611 S.W.2d 333 (Mo.App. 1980) (statute prohibiting sale to minors gives rise to cause of action for civil damages); Montana: Nehring v. LaCounte, 712 P.2d 1329 (Mon. 1986) (it is foreseeable that injury can occur resulting from sale of alcohol to obviously intoxicated person); Jevning v. Skyline Bar, 726 P.2d 326 (Mont. 1986) (it is foreseeable that injury can occur resulting from sale of alcohol to minor); New Hampshire: Ramsey v. Anctil, 211 A.2d 900 (N.H. 1965) (common-law action based upon a violation of criminal statute prohibiting sale to minor; court noted this would advance protected policy of state); New Jersey: Rappaport v. Nichols, 156 A.2d 1 (N.J. 1969) (violation of criminal statute is evidence of negligence); New Mexico: Lopez v. Maez, 651 P.2d 1269 (N.M. 1982) (the breach of a statutory duty may constitute negligence); New York: Berkeley v. Park, 262 N.Y.S.2d 290 (N.Y.Supp.Ct. 1965) (liability for supplier of alcohol under both common-law theories as well as dramshop act); New York also recognizes statutory liability: N.Y. Gen.Oblig.Law § 11-101 (McKinney 1984 Supp.); North Carolina: Hutchens v. Hankins, 303 S.E.2d 584 (N.C.App. 1983) (allows persons injured a right to recover from tavern owners providing liquor to customer after proof of owner’s negligence); North Carolina also recognizes statutory liability: N.C. Gen. Stat. § 18B-121 et seq. (1983); Ohio: Mason v. Rob erts, 294 N.E.2d 884 (Ohio 1973) (illegal sale to intoxicated person evidence of negligence); Ohio also recognizes statutory liability: Ohio Rev. Code Ann. § 4399.01 (1982); Oklahoma: Brigance v. Velvet Dove Restr., 725 P.2d 300 (Okla. 1986) (third party injured by intoxicated driver had civil cause of action against vendor for illegal sale of alcohol); Oregon: Wiener v. Gamma Phi Chapter of Alpha Tau Omega Fraternity, 485 P.2d 18 (Ore. 1971) (illegal furnishing to minor warrants finding of liability); Pennsylvania: Jardine v. Upper Darby Lodge No. 1973, 413 P.2d 626 (Penn. 1964) (plaintiff may maintain a common law action for injuries received as a result of vendor’s sale of liquor); South Carolina: Scott v. Greenville Pharmacy, Inc., 410 S.E.2d 324 (S.C. 1984) (sale of alcohol to a minor is evidence of negligence for jury to examine in determining proximate cause of injuries); South Dakota: Walz v. City of Hudson, 327 N.W.2d 120 (S.D. 1982) (statute prohibiting sale to minors protects them as a class, so violation of statute is negligence per se); Tennessee: Mitchell v. Ketner, 393 S.W.2d 755 (Tenn. 1964) (where it affirmatively appears that the violation of a statute was the proximate cause of injury, the violation of a penal statute is negligence per se); Texas: Poole v. El Chico Corp., 713 S.W.2d 955 (Tx.Ct.App 1986) (inquiry of whether licensee’s illegal sale of alcohol was proximate cause of injuries should be determined on case-by-case basis by jury); Utah: Rees v. Albertson, 587 P.2d 130 (Utah 1978) (reasonable minds could believe that selling beer to a minor could be the foreseeable proximate cause of an accident, so the jury should be given this to determine); Utah also has dramshop act: Utah Code Ann. § 32-11-1 (1983 Supp.); Washington: Callan v. O’Neil, 578 P.2d 890 (Wash. 1978) (suit allowed against tavern owner and employee based upon violation of criminal statute prohibiting sale to minors); West Virginia: Anderson v. Moulder, 394 S.E.2d 61 (W.Va. 1991) (violation of statute prohibiting sale of alcohol to minors evidence of negligence for jury to consider); Wisconsin: Sorenson v. Jarvis, 350 N.W.2d 108 (Wisc. 1984) (vendors are guilty of negligent acts if they sell intoxicants to persons they knew or should have known were minors); and Wyoming: McClellan v. Tottenhoff, 666 P.2d 408 (Wyo. 1988) (vendor of liquor owes a duty to exercise the degree of care required of a reasonable person in light of all of the circumstances).

The following states have addressed the issue of a seller’s liability and have expressly declined to recognize common-law liability: Delaware: Samson v. Smith, 560 A.2d 1024 (Del. Supr. 1989) (no common-law liability for supplier of alcohol, such a rule is desirable; however, responsibility of legislature); Kansas: Mills v. City of Overland Park, 837 P.2d 370 (Kan. 1992) (if liability is to be imposed, it is a decision of the legislature); Maryland: Felder v. Butler, 438 A.2d 494 (Md. 1981) (only legislature can properly address issue); Nebraska: Pelzek v. American Legion, 463 N.W.2d 321 (Neb. 1990) (liability is a question of public policy better left to the legislature); Nevada: Hamm v. Carson City Nugget, Inc., 450 P.2d 358 (Nev. 1969) (status as a minority view on this issue is not a rational basis to abrogate the common-law rule of nonliability).

Several states’ legislatures have enacted statutes imposing dramshop liability. The following states courts have found that there is no co-existing common-law liability and that the dram-shop statutes govern all liability of sellers: Alabama: Ala Code § 6-5-71 91975); Connecticut: Conn. Gen. Stat. § 30-102 (1985); Maine: Me. Rev. Stat. Ann. Tit. 17, § 2002 (1983); Rhode Island: R.I. Gen. Laws § 3-11-1 (1956). Conversely, Connecticut, Georgia, Illinois, and Utah currently have dramshop statutes; those states’ courts have found the existence of common-law liability as well. Citations, supra. The States of Vermont and Virginia have not addressed this issue.

Under the existing common-law rule, no cause of action exists against one selling liquor because the drinking of liquor, not the remote sale of it, is considered to be the proximate cause of any injury. See, 48A C.J.S., Intoxicating Liquors, § 553 (1969); 97 A.L.R.3d 528, § 2 (1980). This strict nonliability rule that keeps the issue of a vendor’s illegal sale of alcohol to a minor from a jury takes away the basic jury function of determining proximate cause. We have long held that questions of foreseeability and causation may be ones of fact, depending on the case. See, Larson Mach., Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980); Brinkley Car Works & Mfg. Co. v. Cooper, 60 Ark. 545, 31 S.W. 154 (1895). Usually, however, proximate causation is a question for the jury. Larson Mach., Inc. v. Wallace, supra. Like any other question of proximate causation, the question whether an act or condition is an intervening or concurrent cause is usually a question for the jury. Helena Gas Co. v. Rogers, 104 Ark. 59, 147 S.W. 473. See also, Rhoads v. Service Mach. Co., 329 F.Supp. 367 (E. D. Ark. 1971).

The rule of nonliability predicated on the “proximate cause” of injuries being the consumption, not the sale of intoxicants, is not persuasive. Implicit in the common-law rule is that proximate cause must be the immediate cause. This is contrary to our cases interpreting proximate cause. This Court has held that proximate cause is the efficient and responsible cause, but it need not be the last or nearest one. Bennett v. Bell, 176 Ark. 690, 3 S.W.2d 996 (1928). The mere fact that other causes intervene between the original act of negligence and the injury for which recovery is sought is not sufficient to relieve the original actor of liability, if the injury is the natural and probable consequence of the original negligent act or omission and is such as might reasonably have been foreseen as probable. Butler v. Arkansas Power & Light Co., 186 Ark. 611, 54 S.W.2d 984; Arkansas Power & Light Co. v. Marsh, supra; Hayes v. Missouri Pac. R.R. Co., 208 Ark. 370, 186 S.W.2d 780 (1945). The original act or omission is not eliminated as a proximate cause by an intervening cause unless the latter is of itself sufficient to stand as the cause of the injury. Butler v. Arkansas Power & Light Co., supra; Arkansas Power & Light Co. v. Marsh, supra. The intervening cause must be such that the injury would not have been suffered except for the act, conduct, or effect of the intervening agent totally independent of the acts or omission constituting the primary negligence. Arkansas Power & Light Co. v. Marsh, supra; Hayes v. Missouri Pac. R.R. Co., supra.

We find no basis for determining that the proximate cause is solely the voluntary consumption of alcohol. Under our theory of proximate cause, the selling of alcohol may be a proximate cause of injuries along with the proximate cause of the consumption. The two are not mutually exclusive. In order to relieve liability as a matter of law, we have to accept that a minor’s intoxication is not reasonably foreseeable and merely possible, but not within the range of probability as viewed by the ordinary man. Hayes v. Missouri Pac. R.R. Co., supra. We believe that selling alcohol to minors can be a proximate cause because the consumption, resulting intoxication, and injury-producing behavior is reasonably foreseeable.

As we noted, supra, most states have rejected the rule that the sale of alcohol cannot be the proximate cause of subsequent injuries. Nearly every court that has recognized that liability may be imposed has predicated this upon the duty of a licensed vendor to refrain from selling alcohol to minors.

In order to prove negligence, there must be a failure to exercise proper care in the performance of a legal duty which the defendant owed the plaintiff under the circumstances surrounding them. See generally, Bowie v. Missouri Pac. R.R. Co., 262 Ark. 793, 561 S.W.2d 314 (1978). Duty is a concept which arises out of the recognition that relations between individuals may impose upon one a legal obligation for the other. See, W. Prosser, Handbook on the Law of Torts, § 42 at 244 (4th ed. 1971).

The existence of a duty to act with care when selling liquor to patrons can be found for an entity licensed to sell alcohol in this state in the affirmative requirements of statutes. The legislature has enacted statutes which regulate the liquor industry. Foremost, our legislature has declared that holding a license to sell alcoholic beverages is a privilege, not a right. Ark. Code Ann. § 3-3-218(a) (Repl. 1996). In regulating those who hold such licenses, the legislature enacted Ark. Code Ann. § 3-3-218(a), (b) (Repl. 1996) that provides that licensed seller of alcohol is to be held to “a high duty of care in the operation of the licensed establishment” and that “every holder of an alcoholic beverage permit. . . to operate the business wherein alcoholic beverages are sold. . . in a manner which is in the public interest, and does not endanger the public health, welfare, or safety.” Additionally, the legislature has established a training program, the “Responsible Permittee Program” to “eliminate the sale of [alcohol] and consumption of [alcohol] by underaged persons; to reduce intoxication and to reduce accidents, injuries, and deaths in the state which are related to intoxication; and to encourage alcoholic beverage permit holders to be prudent in the sale and service of [alcohol].” Ark. Code Ann. § 3-4-803 (a) (Repl. 1996).

In addition to the special statutes regulating the liquor industry, Ark. Code Ann. § 3-3-202(b)(l) (Repl. 1996) makes it a felony to knowingly sell or furnish liquor to a minor for monetary gain. The specific code section follows:

3-3-202. Knowingly furnishing or selling to minor.
(b)(1) It shall be unlawful for any person knowingly to sell or otherwise furnish for money or other valuable consideration any alcoholic beverage to any person under twenty-one (21) years of age.
(2) (A) Any person violating this subsection shall, upon a first conviction, be deemed guilty of a Class D felony and shall be punished as provided by law.
(B) Upon a second conviction within five (5) years, a person violating this section shall be deemed guilty of a Class C felony and may be imprisoned or fined, or both as provided by law.

The legislature determined that the prohibition of the selling or furnishing alcohol to minors for monetary gain was of such importance that this criminal sanction was amended in 1993 by Act 875 establishing the violation as a Class D felony. In the emergency clause for Act 875, the legislature made the determination that existing statutes criminalizing the sale of alcohol to minors were too lenient and thus heightened the penalty from a misdemeanor to a felony. Specifically, the legislature found, “supplying alcoholic beverages to underage persons is strictly contrary to the public policy and is detrimental to the young people of this State, and that the penalties for this conduct should be increased to deter and to punish these violations of Arkansas law and policy.” 1993 Ark. Acts 875.

In enacting the foregoing statutes, it is clear that the legislature determined it is the public policy of the State of Arkansas to protect minors as a special class of citizens from the adverse consequences of alcohol consumption. The statutes establish an affirmative duty for alcoholic beverage license holders to safeguard against minors purchasing alcohol. These statutes serve to regulate the liquor industry and to promote the safety of our citizenry as a whole. We conclude that the statutes establishing affirmative obligations upon license holders authorized to sell alcohol and the statute classifying the criminal act of selling or furnishing alcohol to minors for monetary gain a felony create a duty for licensees to exercise a high standard of care for the protection of minors. A breach of this duty can lead to a suit for negligence.

In Rogers v. Stillman, 223 Ark. 779, 268 S.W.2d 614 (1954), we concluded that the violation of a statute is evidence of negligence. See also, Gussell v. Missouri Pac. R.R., 237 Ark. 812, 376 S.W.2d 545 (1964); Franco, Admn’x v. Bunyard, 261 Ark. 144, 547 S.W.2d 91 (1977). On the issue of proximate cause, it is often enough to point out that the act could not have occurred if the law had been obeyed. Franco, supra, 261 Ark. at 147. It is our conclusion a licensed vendor’s violation of the statute prohibiting the sale of alcohol to minors is evidence of negligence to be submitted to a jury.

For the foregoing reasons, the holding in Carr is hereby modified to allow juries to determine whether the violation of the criminal statute for selling alcohol to minors by a licensed vendor is the proximate cause of any subsequent alcohol-related injury to a minor or third party. Due to the legislative enactment of a higher duty of care, a licensed vendor who violates the regulatory policy and the criminal statutes of this state by selling alcohol to minors should be held accountable for any consequences of that action if a jury determines the results were foreseeable. Therefore, such violations of the statute prohibiting the sale of alcohol to minors by a licensed vendor can be presented to the jury as evidence of negligence with the jury to determine whether such was the proximate cause of any harm.

We conclude that 'the rule of liability adopted herein should be prospective. With the exception of the claims at issue here, there shall be liability for acts of negligence of a vendor selling to a minor pursuant to the application of this holding commencing with trials held on or after the date this opinion becomes final. With respect to this case, our decision is given immediate effect so that the efforts of a litigant to bring about needed changes in the law will not go unrewarded, because without such inducements changes might not occur. See Special Sch. Dist. of Ft. Smith v. Sebastian Co., 277 Ark. 326, 641 S.W.2d 702 (1982). For the foregoing reasons, this matter is reversed and remanded for proceedings consistent with this opinion.

Reversed and remanded.

Newbern, J., dissents.

David Newbern, Justice,

dissenting. It is indeed proper for an appellate court of last resort to overrule a prior decision when that decision was made on the basis of a mistake or when conditions have changed so as to make it outmoded. Stare decisis does not require stagnation. The law develops through the application of tried-and-true principles to changing times. That is not what the majority is about in this case.

In Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965), we recognized that the General Assembly had criminalized giving or selling liquor to an intoxicated person or to a minor. We wrote, however, that

Even if the prohibition against the sale of liquor to an intoxicated person [the subject at hand; see Ark. Code Ann. § 3-3-209 (Repl. 1996)], had the comprehensive implications that the appellant attributes to it, [i.e., civil liability of the seller] we do not see how the impact of the statute could be confined to those who sell liquor, legally or illegally. The same reasoning would be applicable in the case of a person entertaining his friends in his home. ... It may be that a Dramshop Act is to be desired, but such a measure should be the result of legislative action rather than of judicial interpretation.

The legislation to which we referred in the Carr case appeared in Ark. Stat. Ann. § 48-903 (1947). At the legislative session following our decision, the General Assembly added Act 277 of 1967 which made it a misdemeanor chargeable to one who would “knowingly sell, give, procure, or otherwise furnish any alcoholic beverage to any person under twenty-one years of age.” An exception was provided for furnishing wine for a religious ceremony. A second offense within three years of the first offense was made a felony. The penalty was stiffened somewhat by Act 875 of 1993 which called for a fine and imprisonment rather than stating those penalties in the disjunctive.

Although the majority opinion does not mention it, the law, as found in Ark. Code Ann. § 3-3-202(a)(l) (Repl. 1996), continues to make it a crime “to give ... or otherwise furnish any alcoholic beverage to any person under twenty-one . . . .” In addition, Ark. Code Ann. § 3-3-201 (Repl. 1996) makes a misdemeanor “The sale, giving away, or other disposition of intoxicating liquor to a minor. . . .” whether it is done knowingly or not. See State v. Jarvis, 244 Ark. 753, 427 S.W.2d 531 (1968).

The majority opinion apparently attempts to limit its effect to sale of alcoholic beverages to minors, but the principle or “public policy” upon which the opinion is based, to the extent it comes from these criminal statutes, cannot be limited to those facts. The policy involves not only sale but giving or furnishing. It involves not only selling, giving, and furnishing alcoholic beverages to minors but giving, selling, and furnishing alcoholic beverages to persons who may not be minors but who are not yet twenty-one years of age. It flies in the face of a basic tenet of the Carr decision. As we said in that case, “we do not see how the impact of the statute could be confined to those who sell liquor, legally or illegally.” In that respect, nothing has changed.

Clearly, the public policy expressed by the General Assembly in the regulation of the retail liquor industry and in the criminalization of the sale of liquor to persons under twenty-one has not been extended by that body to impose civil liability. If the decision to do so were one this Court should make, we should have made it in 1965. Our decision then in the Carr case was not an ovine submission to a majority of other state courts. It was, rather, a principled conclusion that basing a departure from the common law on the legislation then extant would be unwise and that the public policy aspect of such a departure required legislative action. None of that has changed.

If we were mistaken in 1965, we surely would have corrected our mistake in one of the several decisions in which the issue has been raised since that time — most recently in Mann v. Orell, 322 Ark. 701, 912 S.W.2d 1 (1995). Rather, we have continuously stated that the issue is one for the General Assembly. In Yancey v. The Beverage House of Little Rock, Inc., 291 Ark. 217, 723 S.W.2d 826 (1987), it was argued that the General Assembly would be powerless to change the law because we had stated it was the consumption of intoxicants, not the sale standing alone, that was the proximate cause of injuries. There, we even went so far as to say “We meant to place no roadblock to legislation commonly called a ‘Dramshop Act.”’

Our Carr decision is no more outmoded today than when it was made or reaffirmed over the years. Citizens were not riding horses up to package-store drive-in windows in 1965, 1987, and 1995. Apparendy the change on which the majority opinion relies primarily is the fact that some courts have found ways in which to answer the question we have said should be addressed to the General Assembly. Being in a majority, like being politically correct, offers superficial comfort, but it may not be right in the long run. It is especially harmful to the stability of the system we serve for any court to legislate in an area it has consistently staked out as belonging to the legislators.

I respectfully dissent.


author: David Newbern, Justice.

text:
    IN THE MATTER OF THE ADOPTION OF Kristen Dyan LYBRAND; John Wesley King v. Sharon Lybrand
    97-94
    946 S.W.2d 946
    Supreme Court of Arkansas
    Opinion delivered June 23, 1997

      Thurman, Lawrence & Heuer, P.L.C., by: Sam Heuer, for
    appellant.
    No response.
   David Newbern, Justice.

This is an adoption case in which the natural father of the adopted child challenges the adoption on the ground that he received no notice and did not give his consent. He further contends the adoption was not in the best interest of the child. We affirm the decision.

The appellant, John Wesley Kang, and a woman whose name is now Sharon Lybrand married in 1976. They divorced and then remarried. After the divorce and prior to their remarriage in 1984, Kristen Dyan Lybrand was born to Ms. Lybrand. Mr. King and Ms. Lybrand thereafter divorced again, and the decree did not mention Kristen. Ms. Lybrand married Joseph Lybrand in 1986. In 1987, Ms. Lybrand sued Mr. King alleging that he was the father of Kristen and seeking child support. Mr. King denied paternity, and apparendy the action was dropped by Ms. Lybrand.

In March 1995, Mr. King filed a “visitation motion” in Pulaski County where he resides, asserting that he is the father of Kristen. In May 1995, Mr. Lybrand petitioned the Grant Probate Court to adopt Kristen. On June 13, 1995, Mr. King’s Pulaski County action was dismissed, as venue was improperly laid. It was refiled as a paternity action by Mr. King in Grant County on June 16, 1995. Ms. Lybrand answered and denied Mr. King’s allegation that he was Kristen’s father.

On August 22, 1995, a final adoption order was entered in favor of Mr. Lybrand. On August 31, 1995, Ms. Lybrand moved to dismiss Mr. King’s paternity suit, attaching to her motion the final adoption decree making Kristen the daughter of Mr. Lybrand.

Mr. King moved to set aside the adoption decree and to “reopen” the adoption proceeding. He claimed he was entitled to have notice of the adoption proceeding but had not received notice. The motion to set the adoption aside was granted, and the proceeding was thus reopened. Prior to the ensuing hearing, Ms. Lybrand filed a further response to Mr. King’s paternity action, and she admitted that Mr. King was Kristen’s father.

At the ultimate hearing, there was testimony about acrimony between Ms. Lybrand and Mr. King. The evidence showed that, although Ms. Lybrand allowed the child to spend considerable time with Mr. King’s mother, she attempted to keep Mr. King from seeing the child. Mr. King asserted that he had indeed seen Kristen despite the attempts to keep her away from him and that he had supported her to some extent by reimbursing his mother for gifts and expenditures she had made for Kristen.

The Lybrands contended Mr. King was not entitled to notice of the adoption proceeding because he had not registered as a putative father pursuant to Ark. Code Ann. § 20-18-702 (Repl. 1991) and because he had abandoned or deserted Kristen. The Trial Court’s order dismissed Mr. King’s paternity petition and granted Mr. Lybrand’s adoption petition. Mr. King has raised four points of appeal.

1. Jurisdiction

Mr. King contends that he was not given notice of the initiation of the adoption petition by Mr. Lybrand. He contends the failure to give him notice was fatal to the Trial Court’s “jurisdiction” because of the lack of strict compliance with the adoption statutes requiring such notice. Although he does not say so directly, Mr. Bang’s suggestion seems to be that the Court in that circumstance lacks jurisdiction of the subject matter. That is not so. The cases Mr. King cites have to do with jurisdiction of the person.

In Hughes v. Cain, 210 Ark. 476, 196 S.W.2d 758 (1946), the natural parent of an adopted child petitioned for habeas corpus contending that the adoption was invalid because the natural parents had not been given notice. The writ was granted, and we affirmed. Our holding was that the adoption was void because the nonresident parents of the child had not been given notice by publication as required by statute. We held, “it was necessary that service be obtained by publication as provided in § 256 of Pope’s Digest, . . . before the probate court could acquire jurisdiction of the person of the appellee.” Hughes v. Cain, 210 Ark. at 482, 196 S.W.2d at 760 (emphasis added).

In Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979), we held that lack of notice was not sufficient to void an adoption where the complaining natural parent had entered an appearance in the proceeding. In Schrumm v. Bolding, 260 Ark. 114, 539 S.W.2d 415 (1976), the natural parent of the child sought to be adopted was a minor. We voided the adoption because she had not received service of process. The opposing argument was that she had entered her appearance in the adoption proceeding. We rejected that argument on the ground that, as a minor, she was unable to enter an appearance except through a guardian, and that had not occurred.

The last case cited by Mr. King on the jurisdiction point is Olney v Gordon, 240 Ark. 807, 402 S.W.2d 651 (1966), in which we held a foreign adoption decree entered without notice to the natural parent or evidence of his entry of appearance was void and thus not entitled to full faith and credit. Again, the issue was not jurisdiction of the subject matter.

Mr. King did clearly appear in the adoption proceeding. Instead of asking that it be dismissed for lack of notice to him, he asked that the adoption be set aside and the proceeding reopened. The request was honored, and we have no hesitation in concluding the Trial Court had personal jurisdiction of Mr. King.

2. Putative Father Registry Act

One of the Lybrands’ contentions before the Trial Court with respect to the notice issue was that, as Mr. King had not registered his paternity claim pursuant to the Putative Father Registry Act, Ark. Code Ann. §§ 20-18-701 through 20-18-705 (Repl. 1991 and Supp. 1995), he was not entitled to notice. On appeal, Mr. King argues, as he did before the Trial Court, that the Act is unconstitutional. We decline to address the argument, as the abstract of the record does not demonstrate that any ruling was made on the point. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997); Vanderpool v. Fidelity & Casualty Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997); Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996).

3. Consent

Mr. King contends his consent to the adoption was necessary and was obviously not given. Ark. Code Ann. § 9-9-207 (Repl. 1993) provides:

(a) Consent to adoption is not required of:
(1) A parent who has deserted a child without affording means of identification or who has abandoned a child;
(2) A parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree.

“Abandonment” is defined in Ark. Code Ann. § 9-9-202(7) (Repl. 1993) as:

. . . the failure of the parent to provide reasonable support and to maintain regular contact with the child through statement or contact, when the failure is accompanied by an intention on the part of the parent to permit the condition to continue for an indefinite period in the future, and failure to support or maintain regular contact with the child without just cause for a period of one (1) year shall constitute a rebuttable presumption of abandonment.

This definition is relevant to § 207(a)(1), as that provision excuses the necessity of consent from a parent who has “abandoned” a child and was cited by the Trial Court as a ground for granting the adoption despite the lack of consent from Mr. King.

The “abandonment” definition overlaps a bit with the language in § 207(a)(2). Under both provisions, the question is whether the periods of non-communication or non-support resulted “without just cause” or were “justifiable.” The justification proffered by Mr. King is that Ms. Lybrand was the sole reason he was unable to see his daughter.

Adoption statutes are strictly construed, and a person who wishes to adopt a child without the consent of the parent must prove that consent is unnecessary by clear and convincing evidence. In Re Adoption of K.F.H. and K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993); Harper v. Caskin, 265 Ark. 558, 561, 580 S.W.2d 176, 179 (1979)(stating adoption petitioner’s burden is “heavy”). A finding that consent is unnecessary on account of a failure to support or communicate with the child is, however, not reversed unless clearly erroneous. K.F.H, supra. “We view the issue of justifiable cause as factual but one that largely is determined on the basis of the credibility of the witnesses. This court gives great weight to a trial judge’s personal observations when the welfare of young children is involved.” K.F.H, 311 Ark. at 423, 844 S.W.2d at 347.

In analyzing these consent statutes, some additional principles are relevant. A “failure to communicate without justifiable cause” is one that is “voluntary, willful, arbitrary, and without adequate excuse.” K.F.H., 311 Ark. at 421, 844 S.W.2d at 346. The one-year period, moreover, may be any one-year period, not merely the one-year period preceding the filing of the adoption petition. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979). It is not required that a parent fail “totally” in these obligations in order to fail “significantly” within the meaning of the statutes. Pender v. McKee, 266 Ark. at 28, 582 S.W.2d at 934. The duty to support is not excused on the basis of other people’s conduct unless such conduct prevents the performance of the duty of support. Pender v. McKee, 266 Ark. at 31, 582 S.W.2d at 935.

Mr. King’s justification argument must be considered in light of his denial of paternity when support for Kristen was sought by Ms. Lybrand in 1987 and his failure to assert his paternity until 1995. Although Mr. King and his mother testified that he supported Kristen somewhat through his mother and that he sneaked visits with Kristen when she was visiting with his mother, there is no “paper record” of support whatever. Given the deference we accord to the Trial Court’s determination of the credibility of the witnesses, we cannot say it was clearly erroneous to hold Mr. King’s consent was not required.

4. Best interest

In this fourth point, the question is whether the judge was correct to conclude that the adoption was in Kristen’s best interest. We will not reverse a probate court’s decision regarding the best interest of a child to be adopted unless it is clearly against the preponderance of the evidence, giving due regard to the opportunity and superior position of the trial court to judge the credibility of the witnesses. In the Matter of the Adoption of Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989); Dixon v. Dixon, 286 Ark. 128, 689 S.W.2d 556 (1985).

The evidence presented with respect to Mr. Lybrand’s relationship with Kristen was all positive. His marriage to Ms. Lybrand is apparently stable, and he has worked for the same employer for sixteen years and is apparently able to continue supporting his family. There was some evidence that in the past Mr. Lybrand had a drinking problem and exhibited some tendency toward violence, but there was also evidence that he had quit drinking. On the whole, we cannot say that the Trial Court erred in granting Mr. Lybrand’s petition.

Affirmed.


text:
    Sean RIGGINS v. STATE of Arkansas
    CR 96-652
    946 S.W.2d 691
    Supreme Court of Arkansas
    Opinion delivered June 23, 1997

      Montgomery, Adams & Wyatt, PLC, by: Dale E. Adams, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Sean Riggins appeals from denial of his request for postconviction relief sought pursuant to Ark. R. Crim. P. 37. Mr. Riggins was convicted of first-degree murder and sentenced to fifty years’ imprisonment on July 20, 1993. We affirmed his conviction in an opinion delivered on September 12, 1994. Riggins v. State, 317 Ark. 636, 882 S.W.2d 664 (1994). Mr. Riggins sought postconviction relief on the ground that his counsel failed to communicate to him an offer by the State of a plea agreement pursuant to which the State would have recommended a sentence of fifteen years’ imprisonment in exchange for Mr. Riggins’s agreement to testify against others involved in the crime. He also contended his counsel failed to seek a sentence consistent with those received by others involved in the crime of which he was convicted as an accomplice. The other defendants received sentences of no more than 35 years. We affirm the denial of postconviction relief.

As recited in our opinion affirming the conviction, the evidence showed that Mr. Riggins joined with others in shooting at a vehicle in which one occupant was killed and the other wounded. Mr. Riggins wielded a shotgun while his compatriots shot with pistols. The death and injury were caused by pistol bullets, but two shotgun slugs also hit the target car.

i. Plea agreement

Counsel who represented Mr. Riggins at the trial testified at the postconviction hearing that he could not remember whether an offer of a plea agreement had been made by the State. Mr. Riggins and the State, however, stipulated that such an offer was made. Failure to communicate a plea agreement offer to a defendant has been held to be ineffective assistance of counsel. Elmore v. State, 285 Ark. 42, 684 S.W.2d 263 (1985); Rasmussen v. State, 280 Ark. 472, 658 S.W.2d 867 (1983). The issue thus became whether the offer was communicated to Mr. Riggins.

We cannot gainsay the Trial Court’s remark that “there [was] no substantial evidence to support the defendant’s claim that his counsel failed to convey a plea offer to him.” Counsel’s statement that he could not recall a plea offer to Mr. Riggins did not constitute an admission of failure to convey such an offer. He was not asked if he failed to communicate any offer that might have been given or if it was his practice in any case to decline to convey such an offer to a client.

The Trial Court’s statement that there was no substantial evidence that the offer was not conveyed was a clear indication that he did not regard Mr. Riggins’s testimony as credible on the point. The Judge was, of course, not required to believe that testimony. Thompson v. State, 307 Ark. 492, 821 S.W.2d 37 (1991); Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985).

2. Comparative sentences

While it is true that the Trial Court could have honored a request for leniency pursuant to Ark. Code Ann. § 16-90-107(e) (1987), Mr. Riggins has not shown that the outcome of his trial would have been different had his counsel requested consideration of the sentences received by the others who were involved in the crime of which he was convicted. We do not reverse absent such a showing, Strickland v. Washington, 466 U.S. 668 (1984); Johnson v. State, 325 Ark. 44, 924 S.W.2d 233 (1996), and absent a showing that the Trial Court’s decision on the matter was clearly erroneous. Rowe v. State, 318 Ark. 25, 883 S.W.2d 804 (1994).

Affirmed.


author: Tom Glaze, Justice.

text:
    Allen Lee POLK v. STATE of Arkansas
    CR 96-1426
    947 S.W.2d 758
    Supreme Court of Arkansas
    Opinion delivered June 23, 1997

      Herbert T. Wright, Jr., P.A., for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Allen Polk was charged as a habitual offender with (1) being a felon in possession of a firearm under Ark. Code Ann. § 5-73-103(a)(l) (Supp. 1995), and with two class C misdemeanors, (2) disorderly conduct, and (3) obstructing governmental operations. At a bench trial, the circuit judge found Polk guilty on all charges. Fie sentenced Polk to six years on the felony count and ninety days and a $1,000 fine on the misdemeanor crimes, to run concurrently. On appeal, Polk’s sole argument is that, under Ark. Code Ann. § 5-2-604 (Repl. 1993), commonly labeled the choice-of-evils defense, he was justifiably in possession of the gun found on him when arrested, and asks that his case be remanded for a new trial.

Polk commences his contention by arguing that the constitution and legislation provides for all citizens to defend themselves regardless of their classification. He specifically relies on § 5-2-604(a)(1) and (2) as an affirmative defense, which in relevant part provides as follows:

(a) Conduct which would otherwise constitute an offense is justifiable when:
(1) The conduct is necessary as an emergency measure to avoid an imminent public or private injury; and
(2) The desirability and urgency of avoiding the injury outweigh, according to ordinary standards of reasonableness, the injury sought to be prevented by the law proscribing the conduct.

In arguing § 5-2-604’s applicability, Polk points to his and his fiancee’s (Virginia Irene Johnson’s) testimony where they claimed they met a “John” and his wife at the Arkansas River “somewhere” in North Little Rock. During the initial visit, Polk and Virginia claim they agreed to meet at John’s house. Upon arrival, Polk suggests John wanted to show him some bombs and books on how to make them, and sometime after discussing the subject, “John placed a fake bomb and bomb information or material in Polk’s truck.” Polk said that he complained about John placing the bomb and material in the truck, and John sometime thereafter pulled a gun on him. In self-defense, Polk said he snatched the gun from John. Polk admitted both he and John were drunk. Polk called for Virginia, and during this period, John allegedly had obtained a crowbar, and struck Polk on his arm, fracturing it. Polk shot the gun to scare John, threw the gun in the seat of his truck, and he and Virginia drove away and returned to Virginia’s house in Vilonia in Faulkner County.

After returning to Virginia’s house, Polk said that he called the Faulkner County Sheriffs Office, and upon the officers finding a gun on Polk, they cuffed and arrested him. Polk further testified that he had never intended to keep the gun found on him. In her testimony, Virginia confirmed most of Polk’s story, but she claimed (contrary to Polk’s own testimony) that she would not have called Polk drunk. Virginia added that, when they returned to Faulkner County, Polk retrieved the gun from the truck and took it into her house. She also said she knew Polk had just been released from the penitentiary, but she did not know he was not to possess a weapon.

In sum, Polk’s justifiable defense argument is that, under § 5-2 — 604(a)(1) and (2), having someone pull a gun on him constituted an emergency measure, and the urgency of avoiding the injury outweighed the harm sought to be prevented by § 5-73-103, which prohibits a felon from possessing a firearm. Because he chose to flee and notify the police concerning the firearm, Polk concludes that his conduct is not the type the General Assembly intended to punish.

First of all, Polk’s argument wholly ignores subsection (c) of § 5-2-604, which provides that the justification defense is unavailable if the actor is reckless or negligent in bringing about the situation requiring a choice of evils or in appraising the necessity for his conduct. It has been said that, the choice of evils, or more modernly called the defense of necessity, is a rarely used defense. See Wayne R. LaFave, et al., Criminal Law § 5.4, at 441-450 (2d ed. 1986). We mention, too, Maryland v. Crawford, 521 A.2d 1193 (1987), where the Maryland Supreme Court held that necessity is a valid defense to the crime of unlawful possession of a handgun when five elements are present. The Maryland Court stated the following:

(1) the defendant must be in present, imminent, and impending peril of death or serious bodily injury or reasonably believe himself or others to be in such danger; (2) the defendant must not have intentionally or recklessly placed himself in a situation in which it was probable that he would be forced to chose the criminal conduct; (3) the defendant must not have any reasonable, legal alternative to possessing the handgun; (4) the handgun must be made available to the defendant without preconceived design; and (5) the defendant must give up possession of the handgun as soon as the necessity or apparent necessity ends. We emphasize that if the threatened harm is property damage or future personal injury, the defense of necessity will not be viable; nor can the defense be asserted if the compulsion to possess the handgun arose directly from the defendant’s own misconduct. Maryland v. Crawford, 521 A.2d 1193 (1987). (Emphasis added.)

Consistent with such observation, § 5-2-604 is to be narrowly construed and applied. See Koonce v. State, 269 Ark. 96, 598 S.W.2d 741 (1980).

Here, Polk conceded that, as a parolee, he knew he was not allowed to leave Faulkner County; nonetheless, he did. He had been drinking all day, and admitted he was drunk. Obviously, even by his own testimony, Polk had knowingly and recklessly placed himself in a position or in circumstances where he could get into trouble — if for nothing else, for violating parole conditions. Also, our case law is well settled that the trial court was not required to believe Polk’s version of what occurred, especially since Polk had an interest in the outcome of the proceedings. See Patterson v. State, 306 Ark. 385, 815 S.W.2d 377 (1991); Hudson v. State, 294 Ark. 148, 741 S.W.2d 253 (1987).

In summarizing the evidence, the trial judge revealed there were several factors about the case that concerned him. The judge was bothered that “John” could not be identified and that, if Polk’s concern was to give John’s gun to law enforcement, Polk could have traveled a short distance to the North Little Rock Police Department to turn in the firearm or he could have given the weapon to Conway’s or Vilonia’s police. He also could have called his parole officer. From the defense’s testimony, the judge further did not understand how or why the firearm was found in Polk’s possession after it was first placed in Polk’s truck, and then seen in Virginia’s house, if Polk’s only intention was to turn the gun over to the police. To confuse this matter further, the Faulkner County officers testified that they were called regarding a “bomb threat” and that was what the officers said they were investigating when arriving at Virginia’s house — not a firearm. In fact, Polk never mentioned a gun, until an investigating officer asked Polk to take his hand out of his pocket. Only then did Polk reveal he had a gun in his possession.

In conclusion, we believe the record supports the trial court’s holding that Polk was not justified in possessing the firearm, and therefore we affirm.