text:
    Patricia McMAHAN v. John BERRY
    94-405
    890 S.W.2d 242
    Supreme Court of Arkansas
    Opinion delivered December 19, 1994

      Howell, Trice & Hope, P.A., by: Scott G. Lauck, for appellant.

      Wells Law Office, by: Bill G. Wells, for appellee.
   Steele Hays, Justice.

This dispute arises from an automobile collision. Appellant Patricia McMahan’s son, Christopher Clifton, was involved in an automobile accident with appellee John Berry. The jury returned a verdict against Christopher Clifton for $5,000 in compensatory damages and $7,500 in punitive damages. The jury returned a verdict against appellant McMahan for $5,000 in compensatory damages. Ms. McMahan appeals from that judgment.

As John Berry was attempting to turn left from State Highway 4 near Warren, he was struck from the rear by Christopher Clifton’s vehicle. The title to the Clifton vehicle was in Patricia McMahan’s name. Berry filed suit against McMahan and Clifton for personal injuries and property damage. Berry alleged that Clifton was negligent in the operation of the vehicle, that McMahan negligently entrusted her vehicle to Clifton, and that McMahan, as owner of the vehicle, had control and responsibility for the vehicle so as to render her liable for negligent operation. The trial court granted McMahan’s motion for directed verdict on the claim of negligent entrustment but held there was a question of fact as to whether an agency relationship existed between McMahan and Clifton.

On appeal, McMahan contends (1) the trial court erred in giving instructions relating to agency and (2) the trial court erred in allowing verdict forms with the appellant’s name on them to be submitted to the jury. We find the trial court erred in instructing the jury regarding agency and reverse.

Appellant McMahan objected to the proposed jury instructions because there was no proof of agency. Without responding directly to the objection, the trial court instructed the jury regarding agency. The instructions provided in part:

An agent is a person who, by agreement with another called a principal, acts for the principal and is subject to his control. The agreement may be oral or written or implied from the conduct of the parties and may be with or without compensation.
If one person has the right to control the action of another at a given time, the relationship of principal and agent may exist at that time, even though the right to control may not have actually been exercised.
One of the vehicles involved in this case was driven by Christopher Clifton, the vehicle being owned by Patricia McMahan. You may consider these facts along with any other evidence in the case in deciding whether Christopher Clifton was acting as agent for Patricia McMahan, his parent, at the time of the occurrence.

This instruction was based upon AMI Civ. 3rd 701 and AMI Civ. 3rd 706. AMI 706, however, was modified. AMI 706, Agency Minor Driver’s Parent A Passenger, provides in part:

[The vehicle] [One of the vehicles] involved in this case was driven by_, the minor child of__, who was a passenger in the vehicle [and owned the vehicle],

(Emphasis supplied.)

The question is whether Mr. Berry presented sufficient evidence of agency to submit the case to the jury. The burden of proving an agency relationship lies with the party asserting its existence. Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 871 S.W.2d 389 (1994). The two essential elements of an agency relationship are (1) that an agent have the authority to act for the principal and (2) that the agent act on the principal’s behalf and be subject to the principal’s control. Id. In Schuster’s, Inc. v. Whitehead, 291 Ark. 180, 722 S.W.2d 862 (1987), we examined the question of agency in connection with a family relationship. We wrote:

In general, the relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control and that the other consents so to act. Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985). Our court also has recognized the rule that an agency may be implied where one by his conduct holds out another as his agent, or thereby invests him with apparent or ostensible authority as agent, and he thereby becomes liable as the principal for the acts of the one held out or apparently authorized to act as agent, whether or not he actually intended to be bound. Lemm v. Sparks, 230 Ark. 105, 321 S.W.2d 388 (1959) (quoting from 2 CJ.S. Agency § 23 at 1048 which now appears in 2A CJ.S. Agency § 54 (1972) at 630). Finally, and certainly relevant to the situation now before us, we have held that mere relationship or family ties, unaccompanied by any other facts or circumstances, will not justify an inference of agency — but such relationship is entitled to great weight, when considered with other circumstances, as tending to establish the fact of agency. Braley v. Arkhola Sand & Gravel Co., 203 Ark. 894, 159 S.W.2d 449 (1942).

Indeed, it is well established that a parent is not liable for the negligence of a son or daughter when operation of the parent’s automobile caused damage in circumstances where the relationship of principal and agent, or master and servant, did not exist. Bonner v. Surman, 215 Ark. 301, 220 S.W.2d 431 (1949); Layes v. Harris, 187 Ark. 1107, 63 S.W.2d 971 (1933).

In the instant case, Christopher Clifton was eighteen years of age at the time of the accident and Patricia McMahan, his mother, was the legal owner of the vehicle he was operating. However, there is no evidence of a principal and agent relationship. The only testimony regarding the extent of Ms. McMahan’s control over either Clifton or the vehicle occurred during direct examination of Clifton by counsel for the appellee:

Q. Okay. And the vehicle was in your mother’s name, is that right.
A. Yes, sir.
Q. And you obtained the vehicle to go to the river, is that correct?
A. No, sir. I didn’t obtain the vehicle for that specific — to go to the river, no, sir.
Q. Okay.
A. The vehicle was mine. I had bought and paid for the vehicle. It was just in my mother’s name.
Q. If it was in her name then she had control of the vehicle?
A. Yes, sir.
Q. And she allowed you to use that vehicle that day, is that right?
A. Yes, sir.

Clifton testified he was not living with his mother at the time of the accident. He stated he was living with his uncle in Banks, Arkansas, because his mother was working for a nursing agency in Little Rock. Finally, there was no testimony that Clifton was acting in any way to benefit his mother. He was on his way to his uncle’s home after attending a senior class party.

This case is comparable to Bonner v. Surman, supra, where Bobby Bonner, eighteen years of age, caused a collision with a parked truck while driving his mother’s car. Judgment for $2,000 was entered against Rachael Bonner on the theory that “Bobby Bonner was in and about the business of Rachel Bonner” when the collision occurred. Bobby Bonner usually covered his newspaper route on a bicycle; however, he borrowed his mother’s car on the day of the accident. It was undisputed that Mrs. Bonner did not have a contract to deliver the newspapers and that her son’s work, although permissive, was on his own account. The testimony indicated Bobby had at times used his earnings to purchase personal clothing, but he did not contribute to the household upkeep such as buying groceries. The Court noted the collateral benefit received by Mrs. Bonner was what she may have saved in the purchase of clothing for Bobby, due to his voluntary act in applying some of his money in that way. In reversing the judgment against Mrs. Bonner, the Court found that she did not exercise any element of control over the money and any benefit was, at most, uncertain.

Further, it is significant that AMI 706 (Agency — Minor Driver’s Parent A Passenger) is specifically designed for instances in which the parent is a passenger in the vehicle. When the parent is a passenger in the vehicle, there are circumstances other than mere relationship or family ties that may justify an inference of agency. In such a situation there is a presumption that the parent exercises some control over the child. See Callaway v. Cherry, 229 Ark. 297, 314 S.W.2d 506 (1958). However, the presumption is not applicable here because Ms. McMahan was not a passenger in the vehicle.

While agency is normally a question of fact, it becomes a question of law when the facts are undisputed, and only one inference can reasonably be drawn. Dodds v. Hanover Ins. Co., 317 Ark. 563, 880 S.W.2d 311 (1994). We cannot say Mr. Berry presented sufficient evidence for a jury instruction on agency. The mere fact that Ms. McMahan owned the vehicle her son was driving does not suffice. See Bonner v. Surman, supra; Schuster's, Inc. v. Whitehead, supra.

The appellee submits that appellant failed to obtain a ruling from the trial court to her objections to the instructions on agency, citing Hobbs v. State, 43 Ark. App. 149, 862 S.W.2d 285 (1993). The record reflects that in chambers the trial judge indicated his intention to give the disputed instruction and the verdict forms. Counsel objected to the instructions, as we have said, for lack of evidence of agency and to the verdict forms on the basis of confusing the jury. Counsel proffered verdict forms which asked the jury whether it found from a preponderance of the evidence that Christopher Clifton was acting as agent for his mother, Patricia McMahan, at the time of the collision. The trial judge acknowledged the objection and the proffered verdict forms and proceeded to instruct the jury. Ordinarily a ruling by the trial court is essential, as we have often said issues left unresolved below cannot be considered on appeal. Hicks v. Clark, 316 Ark. 148, 870 S.W.2d 750 (1994).

However, counsel objected to the agency instruction, stating correctly why it should not be given. The trial court then proceeded to give the errant instruction. The giving of the instruction effectively became the ruling and we can see no sound reason why more should be required.

For the reasons stated, the judgment appealed from is reversed as to the appellant and the complaint as to her is dismissed.


source: Caselaw Access Project

author: Steele Hays, Justice. Robert H. Dudley, Justice,

license: Public Domain

text:
    Susan SPROLES, Special Administratrix of the Estate of Ralph Lynn Sproles, Deceased v. ASSOCIATED BRIGHAM CONTRACTORS, INC.
    94-185
    889 S.W.2d 740
    Supreme Court of Arkansas
    Opinion delivered December 19, 1994

      Tom Thompson and H. David Blair, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: Kenny McCulloch, for appellees.
   Steele Hays, Justice.

Lynn Sproles brought this action against Nucor-Yamato Steel Company (NYS) and Associated Brigham Contractors, Inc. (ABC) for personal injuries suffered when he fell from an elevated platform at a steel mill operated by NYS. Sproles later died of unrelated causes while this appeal was pending and Susan Sproles was duly substituted as special administratrix of the estate of Lynn Sproles, deceased.

Around June 1, 1991, Lynn Sproles was employed by West Tennessee Maintenance Services, Inc. (WTM) as a pipe fitter and welder. WTM had contracted with NYS to perform structural modifications at the NYS mill. On June 11, Sproles and other employees of WTM were taking measurements as they worked on the elevated platform. The platform was welded to the structure of the plant approximately thirty-four feet above the mill floor. Its purpose was to provide access to a valve station. The platform was constructed of structural steel and measured 6'6" by 10' 9". It was guarded by a yellow perimeter fence. In a corner of the platform was an unguarded opening measuring 2'4" by 3'.

The platform was constructed between February and May of 1988 by appellee ABC pursuant to a contract with NYS. The platform had been installed at a different location, but about ten days before Sproles’s injury it was moved by WTM from its original location and welded to the plant wall at its current location.

As originally installed, the platform was equipped with a ladder extending from the plant floor through and above the opening in the platform. The ladder rose above the platform floor by some four feet and provided access to and from the platform. The ladder was surrounded by a metal cage from the floor of the plant to the floor of the platform. When WTM relocated the platform, the ladder and cage were not reinstalled, evidently because some equipment needed for such installation was not then available. In the absence of the ladder, workmen gained access to the platform by a “JLG” lift or bucket.

On the day in question Sproles had been on the platform earlier and was there a second time helping other WTM employees take measurements for the piping they were to install. Sproles stated that he was going back to the lift to return to the ground. He had unhooked the lanyard of his safety belt and backed into the hole, falling to the floor below.

Sproles filed suit against NYS and ABC alleging that the negligence of NYS and ABC proximately caused the injuries he sustained. The complaint also alleged that ABC was strictly liable as the supplier of a product in a defective condition rendering it unreasonably dangerous.

Sproles settled with NYS and ABC moved for summary judgment in reliance on the pleadings, exhibits, photographs, affidavits and depositions, asserting that there were no genuine issues of material fact and ABC was entitled to judgment as a matter of law. ABC argued the accepted work doctrine, intervening proximate cause, and that Sproles’s negligence was greater than ABC’s as a matter of law. In response, Sproles moved to deny summary judgment, incorporating all pleadings, motions, exhibits previously filed and the affidavit of M.I. Starns, an expert in the design and construction of steel mills and industrial plants.

The trial court considered the matters submitted and concluded that no factual dispute existed with respect to NYS having accepted the platform constructed by ABC, and that under the accepted work doctrine ABC could not be liable for injuries to third persons. Sproles argues on appeal that the accepted work doctrine should be abandoned and that it has no application to strict liability imposed on suppliers of defective products under Ark. Code Ann. § 4-86-102 (Repl. 1991). We affirm the trial court.

I

Accepted Work Doctrine

Appellant concedes that extending back over many years this Court has recognized and upheld the accepted work doctrine. The general rule is stated in Canal Construction Co. v. Clem, 163 Ark. 416, 260 S.W. 442 (1924):

Subject to some qualifications, among them the cases where the work is a nuisance per se, or where it is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons, the general rule is that, after the contractor has turned the work over and it has been accepted by the proprietor, the contractor incurs no further liability to third parties, by reason of the condition of the work; but the responsibility, if any, for maintaining or using it in its defective condition is shifted to the proprietor. The contractor remains liable, if at all, only to the proprietor for a breach of his contract.

We have applied the doctrine in numerous cases: Milam v. Midland Corporation, 282 Ark. 15, 665 S.W.2d 284 (1984); DeVazier v. Whit Davis Lumber Co., 257 Ark. 371, 516 S.W.2d 610 (1974); Southwestern Bell Telephone Co. v. Travelers Indemnity Co., 252 Ark. 400, 479 S.W.2d 232 (1972); Chesser v. King, 244 Ark. 1211, 428 S.W.2d 633 (1968); Reynolds v. Manley, 223 Ark. 314, 265 S.W.2d 714 (1954); Memphis Asphalt and Paving Company v. Fleming, 96 Ark. 442, 132 S.W. 222 (1910).

Appellant does not dispute the fact that NYS had accepted the work of ABC. Rather, it is her contention that the doctrine itself cannot withstand critical analysis and should be excised. She maintains the concept of privity of contract is the theoretical basis for the doctrine, which has become virtually extinct in American jurisprudence, citing Chapman Chemical Co. v. Taylor, 215 Ark. 630, 220 S.W.2d 820 (1949). Appellant undergirds the argument for abandonment of the accepted work doctrine with forceful authority: Restatement of Torts (Second) § 385; W. Keeton, et al, Prosser & Keeton on Torts § 104A (5th ed. 1984); McDonough v. Whalen, 365 Mass. 506, 313 N.E.2d 435 (1974); Johnson v. Oman Construction Co., 519 S.W.2d 782 (Tenn. 1975); Kistrek v. Catron, 644 P.2d 480 (Kan. 1982); Nichol v. Corntassel, 852 P.2d 583 (Mont. 1993).

Appellant has made an impressive argument for reexamining the accepted work doctrine which we will do, without preconception, when the occasion arises, though we wish no inferences to be drawn from this assertion. However, for reasons to be explained, we are not persuaded that this is the case in which to overturn our many precedents applying the accepted work doctrine and we believe the trial court held correctly.

Several factors influence our conclusion. First, this platform was constructed by ABC over three years before Sproles’s injuries. Second, it was constructed by ABC according to the directions and instructions of NYS. Third, the platform was approved and accepted by NYS upon completion and ABC had no further involvement with it. Fourth, on or about June 1, 1991, the platform was detached from its original location by Sproles’s employer, WTM, and moved to another location in the mill and reattached to the structure of the plant without any involvement by ABC. Fifth, when the platform was relocated, the ladder and cage appendages were removed and were not reassembled at the new location. Sixth, the opening in the platform had been called to Sproles’s attention and he had been specifically instructed to cover it before working on the platform.

Sproles acknowledged that the opening was pointed out to him and that if the hole should have been covered it would have been his responsibility as foreman of the work crew to see that it was done. He explained that he had disconnected his safety belt to leave the platform and simply backed into the opening.

In short, this structure had been built by ABC three years before the incident, approved and accepted by NYS, utilized by NYS and others, including the personnel of WTM and, finally, removed and reinstalled in an altered form by WTM, Sproles’s employer. We believe the acceptance of the work by NYS under the circumstances of this case relieves ABC of liability, if any existed, as a matter of law.

II

Strict Liability

Appellant’s second assignment of error involves the Arkansas Product Liability Act of 1979, encoded at Ark. Code Ann. § 4-86-101-104 (Repl. 1991). Appellant argues that the platform was supplied in a defective condition which rendered it unreasonably dangerous within the meaning of the act. We disagree, because it is clear that ABC was not a supplier “engaged in the business of manufacturing assembling, selling, leasing or otherwise distributing the product[.]”

The unchallenged testimony was that ABC was not engaged in the business of manufacturing a product as contemplated by the act. The proof was that ABC was a contractor, primarily specializing in concrete. It was not engaged in the business of manufacturing platforms. It had contracted with NYS to perform concrete, plumbing and pipe fitting services at the NYS mill. True, it constructed one or more (we are not told how many) platforms for NYS in 1988, but that was a departure from its regular business activity. More important, the platforms were constructed according to the plans and directions of NYS from materials supplied by NYS, on the premises of NYS and ABC’s contribution to the project was merely providing labor. ABC has had no involvement with the platforms since their completion in 1988. In short, in the circumstances here presented, ABC was not a supplier engaged in the business of manufacturing a product within the meaning of the Arkansas Product Liability Act. The case is analogous to Milam v. Midland Corp., 282 Ark. 15, 665 S.W.2d 284 (1984) in two respects. There we affirmed summary judgment granted to a developer of a residential subdivision, Midland Corporation. The appellant had asserted causes of action for negligence and strict liability, alleging that Midland had made a street too narrow and a curve too sharp. We held that a developer is not engaged in the business of manufacturing, assembling, selling, leasing or distributing streets. The opinion also noted the absence of proximate cause, in that the plaintiff, Milam, could easily have averted a collision with an oncoming vehicle simply by being attentive.

For the reasons stated, the order of summary judgment is affirmed.

Dudley, J., dissents.

Robert H. Dudley, Justice,

dissenting. Ralph Sproles, a construction worker, was working on an aerial platform at the Nucor-Yamato Steel mill in Armorel and, while moving backwards in the close quarters of the aerial platform, fell through a 2'4" by 3' unguarded opening in the floor of the platform. He fell thirty-four feet to the floor of the mill and was severely injured. The aerial platform was manufactured and supplied by Associated Brigham Contractors. Sproles filed suit against both Nucor-Yamato and Associated Brigham Contractors, but settled with Nucor-Yamato. This appeal involves Sproles’ claim against Associated Brigham Contractors.

Sproles’ complaint contains two counts against Associated Brigham Contractors, the first count being in ordinary negligence and the second being for strict liability under the product liability statute. The first count alleges the aerial platform was negligently manufactured and constructed by Associated Brigham Contractors. The second count alleges that the platform was supplied by Associated Brigham Contractors in a defective condition which resulted in the accident. See Ark. Code Ann. § 4-86-102 (Repl. 1991). Associated Brigham Contractors filed an answer in which it affirmatively pleaded that the accident and resulting injuries were solely caused by the fault of Sproles. Associated Brigham Contractors subsequently filed a motion in which it alleged that it was entitled to a summary judgment on four grounds: (1) Nucor-Yamato accepted Associated’s work; (2) there was an intervening proximate cause; (3) strict liability is inapplicable as a matter of law; and (4) Sproles’ negligence was greater than that of Associated Brigham Contractors. Affidavits and depositions were attached to the motion.

The trial court concluded that there was no factual dispute as to whether Nucor-Yamato accepted the platform constructed by Associated Brigham Contractors and that under the accepted work doctrine. Associated Brigham Contractors could not be liable for Sproles’ injury. The trial court granted the motion for summary judgment on both counts because of the accepted work doctrine. Sproles died, and his wife was substituted as special administratrix of his estate to pursue the claim. Sproles’ estate appeals and asks us to overturn our cases embracing the accepted work doctrine because it is based upon the privity of contract doctrine and because a privity requirement no longer has any logical application in the law of torts. The majority opinion does not directly decide the issue submitted on appeal, but rather affirms the summary judgment on the ordinary negligence count by leaving the accepted work doctrine intact and stating: “Irrespective of privity, we believe the acceptance of the work by NYS under the circumstances of this case relieve ABC of liability, if any existed, as a matter of law.” The majority opinion affirms the summary judgment on count two, the strict liability count, on the basis that Associated Brigham Contractors was not a supplier engaged in the business of manufacturing, assembling, selling or otherwise distributing the product. I dissent from both holdings.

I.

Accepted Work Doctrine

A.

Law

The accepted work doctrine is a common law doctrine that provides acceptance by the owner of work done by a contractor terminates any liability of the contractor to third parties for injuries due to the defective condition of the work. This court adopted the doctrine in Memphis Asphalt & Paving Co. v. Fleming, 96 Ark. 442, 132 S.W. 222 (1910). The theoretical basis for the rule was stated in Canal Construction Co. v. Clem, 163 Ark. 416, 260 S.W. 442 (1924):

[T]he general rule is that, after the contractor has turned the work over and it has been accepted by the proprietor, the contractor incurs no further liability to third parties by reason of the condition of the work; but the responsibility, if any, for maintaining or using it is its defective condition is shifted to the proprietor. The contractor remains liable, if at all, only to the proprietor for breach of contract.

Id. at 420, 260 S.W. at 443.

It is apparent that the basis of the rale is the concept of privity of contract, as has been recognized by practically all the writers of learned treatises on the subject. See, e.g., W. Page Keeton et. al., Prosser & Keaton on The Law of Torts § 104A (5th ed. 1984); 3 Fowler V. Harper, Fleming James, Jr. et. al., The Law of Torts § 18.5 (2d ed. 1986); Restatement (Second) of Torts § 385 (1965); William L. Prosser, The Assault upon the Citadel (Strict Liability to the Consumer), 69 Yale L. J. 1099 (1960).

This court adopted the accepted work doctrine in 1910, in the case of Memphis Asphalt & Paving Co. v. Fleming. Six years later the landmark decision of MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916) was handed down. That case repudiated the privity requirement in negligence cases, at least regarding manufacturers of chattels. In Chapman Chemical Co. v. Taylor, 215 Ark. 630, 222 S.W.2d 820 (1949), we unequivocally repudiated the privity doctrine in tort cases. There, we wrote:

It is said there was no privity of contract between the chemical company and cross-appellants. The showing was at one time, and for some time considered necessary to occasion liability, the line of decisions to that effect going back to the early English case of Winterbottom v. Wright, 10 Mees & W. 109, 152 Eng. Reprint 402, decided in 1842. But the courts have been getting away from that doctrine and many have entirely repudiated it and discarded it. The opinion of Justice Cardozo, then a member of the Court of Appeals of New York, and later an Associate Justice of the United States Supreme Court in the case of Macpher son v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696, Ann. Cas. 1916C, 446, is credited with the inception of the modern doctrine of manufacturer’s liability based upon foreseeability rather than privity of contract.
The Supreme Court of Mass, in the case of Carter v. Yardley, 64 N.W.2d 693, annotated in 164 A.L.R. 559, expressly repudiates the privity contract rule and stated that the MacPherson case, supra, was now generally accepted and the summary of the Mass, case and others there cited in that “The question in each case was whether the danger was sufficient to require the manufacturer to guard against it.” In other words, that foreseeability and not privity was the proper test. See, also, § 824, Chapter on Sales, 46 Am. Jur. p. 946.

Id. at 641, 222, S.W.2d at 825-26.

For the same reason, practically all other jurisdictions rejected the accepted work doctrine after they adopted the reasoning of MacPherson. Well-reasoned exemplars are McDonough v. Whalen, 313 N.E.2d 435 (Mass. 1974) and Johnson v. Oman Construction Co., 519 S.W.2d 782 (Tenn. 1975).

The accepted work doctrine is inconsistent with the tort concept of foreseeability. It is an anachronism that has been perpetuated long after its theoretical base was eroded by the doctrine of foreseeability. We should reexamine our common law acceptance of the work doctrine, and overrule our out-of-date cases, to provide that a contractor should be liable for injuries caused by his negligence to persons with whom he has no contractual relationship even though his work is completed and accepted by the owner before the injury occurs.

Even if the majority opinion is unwilling to modify our common law rule so that we will be in accord with nearly all other jurisdictions, it should recognize that there is a great incongruity between the rule and the special statute of limitations applicable to persons involved in the construction of improvements on real property. In commenting on a statute virtually identical to section 16-56-112(b)(1) of the Arkansas Code Annotated of 1987, the Tennessee Supreme Court wrote:

There is no indication in these statutes of limitations that building subcontractors or craftsmen are automatically to be discharged from liability to injured claimants simply because of the completion and acceptance of the work. Instead, claimants are allowed four years after substantial completion of such improvements in which to file actions, under the circumstances delineated in these statutory provisions.

Johnson, 519 S.W. 2d at 788.

Our General Assembly has even more clearly expressed today’s public policy on privity in tort cases. Section 4-86-101 provides:

The lack of privity between plaintiff and defendant shall be no defense in any action brought against the manufacturer or seller of goods to recover damages ... for negligence, although the plaintiff did not purchase the goods from the defendant, if the plaintiff was a person whom the manufacturer or seller might reasonably have expected to ... be affected by the goods.

Ark. Code Ann. § 4-86-101 (Repl. 1991).

Although the foregoing statute is cited by Sproles in his brief, the majority opinion omits any discussion of it. The meaning of the statute is without doubt. Superimposing the accepted work doctrine on top of it is nothing less than a partial judicial repeal of a statute.

B.

Facts

The majority opinion states that this is not “the case in which to overturn our many precedents applying the accepted work doctrine” because of facts set out in the majority opinion. The majority opinion then finds some of those facts for the first time on appeal. Such a factual finding by an appellate court is contrary to established precedent and irrational for the review of a grant of summary judgment. Equally difficult to understand is that some of those facts are in dispute.

This case is on appeal to this court to review the circuit court’s grant of summary judgment on the ground of the accepted work precedent. The trial court made only those findings necessary to apply the accepted work doctrine. The trial court’s only findings of fact are:

3. The accepted work doctrine applies to this case as the Arkansas Supreme Court has held that once there has been a practical acceptance by a proprietor of an independent contractor’s work, the contractor is no longer liable for injuries to third persons. Based upon the record before the Court, there is no factual dispute about the fact that practical acceptance of ABC’s work on the platform has been made by Nucor, the owner or proprietor, and ABC, with an independent contractor working at Nucor’s plant.
4. The accepted work doctrine applies not only to plaintiff’s negligence claims against ABC, but also plaintiff’s product liability claims.
5. The Court finds that the “Imminent Danger” exception does not apply in this case, as the platform had been accepted by Nucor and had been in use for approximately three (3) years before plaintiff’s fall on June 11, 1991. Shortly before plaintiff’s fall, the platform had been disassembled by plaintiff’s employer, moved and reinstalled a different location. This was done at the direction of Nucor. The period of time of approximately three years between the time that the work on the platform was completed by ABC and the date of plaintiff’s injury, would preclude the “Imminent Danger” exception from being applicable.
6. The Summary Judgment applies to all claims of plaintiff against ABC, but does not address the cross-claim of Nucor against ABC.

The majority opinion additionally finds that Associated Brigham Contractors constructed the elevated platform “according to the directions and instructions” of Nucor-Yamato. Even if Nucor-Yamato had instructed Associated Brigham Contractors to negligently manufacture the elevated platform, it would not relieve Associated Brigham Contractors from liability, but that is an aside because the facts relied on in the majority opinion are found for the first time in the majority opinion. While an employee of Associated Brigham Contractors, Jerry Schultz, testified that Associated Brigham Contractors built the platforms at the direction of Nucor-Yamato, Nucor-Yamato’s employees never admitted that the platforms were built upon its specifications or instructions. Nucor-Yamato’s employees only admitted that Nucor-Yamato employed Associated Brigham Contractors to build the elevated platforms and that OSHA requirements were not to be violated. They never admitted that they gave detailed instructions or specifications that the platforms be built without a guard or cover on the elevated platform. The fact is in sharp dispute.

The majority opinion also makes a finding of fact for the first time that the ladder and cages were removed by Nucor-Yamato and implies that action constituted a substantial alteration. The finding ignores the testimony of Sproles’ expert witness on the fabrication of elevated work platforms. His testimony is abstracted in part as follows:

In my opinion, the absence of the ladder was not a factor in Mr. Sproles’ injury. The ladder, had it been installed, would have provided no guarding of the opening in the platform surface, nor would the steel rod cage around the ladder, below the floor surface, had provided any type of guarding of the opening or any meaningful protection to a person falling through the floor opening. The construction of the cage around the ladder is such that a person falling through it could have caught his head or neck on the tubing and could have caused a fatal injury.
It is my opinion that the work platform, as originally constructed and as it existed at the time of Mr. Sproles’ injury, did not conform to minimum accepted safety practices for workplace safety. In accordance with safety standards commonly recognized in the construction industry or those responsible for workplace safety. The opening in the surface of the work platform should have been protected by either a door or covering over the hole, installed on a four inch high vertical base around the perimeter of the opening, so as to give a safe walking surface or by a guard rail with a vertical toe plate continuous around the perimeter of the opening. Failure to provide the guarding of this opening is contrary to accepted standards for workplace safety.
The existence of the unguarded opening is a clear violation of OSHA requirements which require a floor opening of this size, and mounted at this elevation, to be appropriately guarded by an adequate covering or adequate guard rail around the perimeter.
This platform is obviously designed and intended to be used by persons working in connection with the operation or maintenance of the steel mill. Because of the size of the platform and the arrangement of piping, working space is somewhat limited an movement about the platform requires one to climb over and around or crawl under various pipes. As a result to the cramped working space and size of the opening, this platform presents [an] imminent hazard of injury to anyone working on it, which hazard could have been effectively eliminated at a minimal cost by appropriate guardian.

The most far-reaching finding of fact in the majority opinion is that Sproles could clearly see the hole in the platform and should have recognized the danger. The finding constitutes a finding that Sproles was guilty of contributory negligence as matter of law.

Associated Brigham Contractors pleaded contributory negligence as an affirmative defense. It bore the burden of proof on its affirmative defense. ARCP Rule 8(c). Yet, affidavits and depositions submitted to the trial court on the motion for summary judgment show that a finder of fact could rationally conclude that Sproles was not negligent in failing to appreciate his proximity to the unguarded opening as a result of the cramped area in which it was necessary for him to work and because he was moving backwards. Sproles did not admit that his negligence was greater than the others, and the testimony on the issue is also sharply in dispute. The majority opinion does not cite a single instance in which this court has previously evaluated degrees of fault for the first time on appeal. It is wrong to so do.

A summary judgment should only be granted where the record before the trial court shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. In determining whether a grant of summary judgment is proper, all evidence must be viewed in the light most favorable to the resisting party, and the resisting party is entitled to have all doubts and inferences resolved in his favor. Tullock v. Eck, 301 Ark. 564, 567, 785 S.W.2d 31, 46 (1993); ARCP Rule 56(c).

A second fallacy in the holding on the ordinary negligence count is that the implied comparison of fault is only between Sproles and Associated Brigham Contractors. The required comparison, however, is the fault of Sproles to that of all “parties from whom the claiming party seeks to recover damages.” Ark. Code Ann. § 16-64-122(a) (1987). Thus, Sproles’ right of recovery is determined by comparing any fault the jury should assess to him with the total fault of Associated Brigham Contractors and the owner of the premises, Nucor-Yamato Steel Company.

II.

Strict Liability

The Arkansas Products Liability Act, in part, provides: “The provisions of subsection (a) [strict liability] of this section apply although the claiming party has not obtained the product from or entered into any contractual relationship with the seller.” Ark. Code Ann. § 4-86-102(b) (Repl. 1991).

The trial court ruled: “The accepted work doctrine applies not only to plaintiff’s negligence claims against ABC, but also to plaintiff’s product liability claims.” Sproles makes a direct and straightforward appeal from the ruling that the accepted work doctrine exists even after the strict liability statute was enacted. The majority opinion, even in view of the unequivocal language of the strict liability statute, holds that we will not abandon the accepted work doctrine, even in cases of strict liability. The holding constitutes a judicial repeal of the statute.

The majority opinion additionally holds that Associated Brigham Contractors is entitled to summary judgment because it was not a supplier engaged in the business of manufacturing, assembling, selling or otherwise distributing the product. Yet, the majority opinion admits that Associated Brigham Contractors “constructed one or more [we are not told how many] platforms for NYS [Nucor-Yamato Steel] in 1988.” The holding is irreconcilable with the strict liability statute and the admitted facts. It is admitted that Associated Brigham Contractors manufactured and supplied elevated platforms such as the one involved in Sproles’ injury, and it is admitted that Associated Brigham Contractors in fact manufactured and supplied the platform involved in this case. The strict liability statute provides that “a supplier of a product is subject to liability in damages for harm to a person . .. if... the product was supplied ... in a defective condition.” Ark. Code Ann. § 4-86402 (Repl. 1991). It is illogical to affirm the grant of summary judgment on the basis that Associated Brigham Contractors was not a supplier engaged in the business of manufacturing the product when it is admitted that Associated Brigham Contractors both manufactured and supplied the product.

Even so, the majority opinion states that Associated Brigham Contractors was not a “supplier” of the elevated platform within the meaning of the product liability act. The majority opinion does not discuss the meaning of “supplier,” and it does not look at the decisions from other jurisdictions to discuss the meaning of the word. Rather, it simply cites Milam v. Midland Corp., 282 Ark. 15, 665 S.W.2d 284 (1984), as authority. In that case, we held that a real estate subdivision developer was not strictly liable for an automobile accident that occurred on a street in the subdivision because a street is not a “product.” We did not discuss the meaning of the word “supplier.”

A note about the Arkansas Products Liability Act provides:

Section one of Act 111 subjects suppliers of defective products to strict liability for harm their products cause to persons and their property. It is important to note that this act subjects “suppliers” to liability as contrasted with the strict liability rule under the Restatement Second of Torts which by its terms covers only “sellers.” By making the act cover “suppliers” the legislature has made it encompass all persons who engage “in the business of manufacturing, assembling, selling, leasing, or otherwise distributing such products.” Thus, this act’s coverage is much broader than that of section 402A Restatement Second of Torts, which subjects suppliers, other than sellers, only to the more circumscribed action of negligence.

Michael Greene, Note, Act 111 of 1973, An Act to Impose Liability for Injury and Damages Done in Certain Circumstances by Defective Products, 27 Ark. L. Rev. 562, 565 (1974).

The statute means that one who supplies a defective product is liable. Parker v. Seaboard Coastline R.R., 573 F.2d 1004 (8th Cir. 1978). The word “supplier” should be given its common and accepted usage, and a dictionary definition of the word is appropriate. All dictionaries define the word to include the platform manufactured and supplied by Associated Brigham Contractors. See, e.g., Webster’s International Dictionary 2297 (3d ed 1961).

The majority opinion also provides that the elevated platform is not a “product” within the meaning of the statute. Again, the majority opinion does not discuss the meaning of the word “product,” and it does not look at decisions from other jurisdictions that discuss the meaning of the words. The Michigan Court of Appeals, in Fenton Area Public Schools v. Sorensen-Gross Construction Co., 335 N.W.2d 221 (Mich. App. 1983), concluded that a “product” is “a thing produced by labor.” Id. at 224.

Our case of Blagg v. Fred Hunt Co., 272 Ark. 185, 612 S.W.2d 321 (1981), is factually closer than the Milam case cited in the majority opinion. In Blagg, we held that one who built a house was a “supplier” of a “product” as defined in the products liability statute. Id. at 190, 612 S.W.2d at 324. If a home is a “product,” surely an elevated platform is a product.

The majority opinion also determines for the first time on appeal that Associated Brigham Contractors’ primary business was concrete construction. Even so, the fact is immaterial. The Arkansas Product Liability Act provides that a supplier of a product is liable for damages caused by such defective products. Ark. Code Ann. § 4-86-102 (Repl. 1991). Liability does not depend on whether the product was supplied by one whose principal business was manufacturing that particular product. See Ark. Code Ann. § 4-86-102(a)(l) (Repl. 1991).

The majority opinion states that an additional reason it affirms the grant of summary judgment is because Nucor-Yamato Steel supplied the directions and material to build the elevated platform. This rationalization is antithetical to the products liability statute. Under the statute, it does not matter where or from whom the manufacturer acquired the raw materials, nor does it matter who designed it. Rather, “a supplier of a product is subject to liability” if it manufactured or assembled or supplied the product in a defective condition and that was the proximate cause of a harm. Ark. Code Ann. § 4-86-102 (Repl. 1991).

In support of affirming the grant of summary judgment the majority opinion further states that Associated Brigham Contractors “had no involvement with the platforms since their completion in 1988.” The short response is that not even Associated Brigham Contractors claims that the statute of limitations bars the claim.

In summary, the majority opinion affirms the trial court’s grant of summary judgment which was based on the accepted work doctrine. The accepted work doctrine is incompatible with current tort law and the statutes of this State. Therefore, I dissent.

       Mr. Norman L. Maero, construction manager at NYS, testified that ABC constructed the platform according to the directions of NYS. Record, p. 35. That statement was unchallenged.

       Record, pp. 64, 67, 82.


author: David Newbern, Justice.

text:
    YAM’S, INC. v. Shirley MOORE
    94-549
    890 S.W.2d 246
    Supreme Court of Arkansas
    Opinion delivered December 19, 1994

      Hardin, Jesson, Dawson & Terry, by: J. Rodney Mills, for appellant.

      Ogles Law Firm, by: Michael Knollmeyer and John Ogles, for appellee.
   David Newbern, Justice.

This is a malicious prosecution case. The appellee, Shirley Moore, was awarded compensatory damages of $20,000 and punitive damages of $10,000 against the appellant, Yam’s, Incorporated (Yam’s). Ms. Moore alleged that Yam’s maliciously prosecuted her for stealing a washer and dryer she rented from Yam’s and later reported stolen from her by a third party. Yam’s contends Ms. Moore’s evidence was insufficient to go to the jury. It also contends there were errors requiring the granting of its motion for a new trial and remittitur. We agree there was error requiring the granting of a new trial, and we reverse and remand for that purpose. As we are reversing the decision, we need not address Yam’s third point having to do with remittitur.

The evidence was that in January, 1988, Ms. Moore rented a washer and a dryer from Yam’s. She paid the weekly rental payments for about three-and-one-half months before the applianees were, according to her, stolen from her home. There was some evidence that the machines were taken by Ms. Moore’s estranged husband. She testified that on the night that she discovered that the washer and dryer had been stolen, she filed a police report and called Yam’s to say what had happened. In addition, she claimed that a representative from the store came to her house approximately two nights later to collect the police report.

Within a few days of the theft, Ms. Moore said she had a telephone conversation with the manager of the Yam’s store from which she rented the appliances. She testified she was told she still had to make payments, but when she offered to file a claim against her homeowner’s insurance, the manager told her Yam’s would make its own insurance claim. After that conversation, Ms. Moore had no further communication with Yam’s and assumed the matter was settled, she said.

In 1988, Bradley Croft was an assistant manager at Yam’s. His duties included taking sales calls, processing applications, making deliveries, and collecting. On August 1, 1988, he went to the Prosecuting Attorney’s Office where he signed an affidavit as follows:

I, Brad Croft, am assistant manager at Yam’s which rents personal property. On 1/11/88 Moore rented a washer and dryer. The minimum rental period is 30 days. Moore fulfilled her 30 day obligation and continued to make payments until 4/18/88. These items are worth over $700.00. On 4/26/88, Moore notified Yam’s that she couldn’t produce the property. Alternative arrangements could not be made with Moore. On 5/28/88 Notice by a written demand was made to Moore by certified mail to the address given by her in the original agreement.

Although he did not dispute having signed the affidavit, Mr. Croft testified he did not remember most of the details of the case or his visit to the prosecutor. In particular, he could not remember whether he sent Ms. Moore a demand letter, as stated in the affidavit. Yam’s practice was to send such a letter by certified mail, but he could not produce any receipt because the Yam’s files had been “bled” of out of date material. He concluded, however, that such a letter must have been sent as it is apparent from the affidavit that he had the supporting documentation with him during his visit to the prosecutor. Ms. Moore testified that, although she has been at the same address since she rented the washer and dryer, she did not receive the letter.

The deputy prosecutor who received Mr. Croft’s complaint, Jay Bequette, testified he filled out the affidavit, and that Mr. Croft signed it under oath. Mr. Bequette also testified he would not have written the affidavit if the supporting documentation had not been presented to him. After the affidavit was signed, it was sent to Municipal Court, where a judge found probable cause to issue a warrant for Ms. Moore’s arrest on a charge of theft of rented property, a class C felony.

No further action was taken against Ms. Moore until 1992, when she was stopped by the police for a traffic violation and the outstanding warrant for her arrest for theft was discovered. Because of the felony warrant, Ms. Moore was taken to the police station where she was fingerprinted, photographed, and put in jail from the early afternoon until after 9:00 p.m. when she was able to reach a bondsman.

Before Ms. Moore’s trial on the criminal charges began, she moved for a dismissal because the prosecution failed to present a prosecuting witness. Accordingly, the case was dismissed.

1. Sufficiency of the evidence

We decline to address this point because neither the motion for directed verdict made at the end of Ms. Moore’s case nor the one made at the end of the case specifically stated the ground for the motion. That is required. Ark. R. Civ. R 50(a); Security Pacific Housing Services, Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993). Arkansas R. Civ. P. 50(b) provides that a motion for a directed verdict is a condition precedent to a motion for a judgment notwithstanding the verdict. We note that Yam’s motion for judgment notwithstanding the verdict was also unspecific.

The Trial Court interrupted Yam’s counsel when he made his initial motion and was very quick to deny the second one and the motion for judgment notwithstanding the verdict. Nevertheless, counsel should have asked to put the grounds for those motions on the record. Because counsel for Yam’s failed to do so, we decline to address them now.

Before leaving this point, it should be mentioned that in its reply brief Yam’s asks us to review the sufficiency of the evidence because the verdict was against the preponderance of the evidence, a matter which is not waived by failure to move for a new trial on that ground. Ark. R. Civ. R 59(f). As that argument was not raised in Yam’s opening brief, we decline to address it. John Cheeseman Trucking, Inc. v. Dougan, 313 Ark. 229, 853 S.W.2d 278 (1993).

2. New trial motion

Yam’s moved for a new trial on the following bases: (1) the Trial Court’s refusal to allow Yam’s to cross-examine Ms. Moore concerning the terms and conditions of the lease agreement, (2) the Trial Court’s submission of an improper instruction to the jury, and (3) the submission of an instruction to the jury concerning punitive damages.

a. Cross examination

Ms. Moore introduced the lease instrument into evidence. Counsel for Yam’s sought to cross examine her as to what the lease revealed about responsibility for the rented machinery in the event of theft. Ms. Moore’s counsel objected on the ground of relevancy, and the Trial Court agreed, thus preventing Yam’s counsel from asking her whether she understood her obligation under the lease regardless of the theft.

We have little doubt that the terms of the lease and Ms. Moore’s obligation under it were relevant to the issue of whether Yam’s was malicious in filing its affidavit with the prosecutor. It also was directly relevant to impeach her testimony that someone from Yam’s told her a claim would be made against Yam’s insurance. The lease provided specifically that Yam’s did not insure the appliances, and that it was the lessee’s responsibility to assume the risk of loss and obtain insurance.

While we conclude the cross examination should have been allowed, we need not go so far as to reverse on this point as we hold a new trial should have been granted on the next point to be discussed. We have discussed the issue solely for guidance in the event the issue arises upon retrial.

b. Mental anguish instruction

The jury was instructed on the matter of damages as follows:

If you decide for Shirley Moore on the question of liability against Yam’s, you must then fix the amount of money which will reasonably and fairly compensate her for any of the following elements of damage sustained which you find were proximately caused by the conduct of Yam’s:
First, harm to her reputation resulting from the accusation;
Second, humiliation;
Third, any mental anguish experienced in the past;
Fourth, the loss of freedom due to arrest; and
Fifth, the expense that she has reasonably incurred in defending herself on the criminal charges.
Whether any of these five elements of damage have been proved by the evidence is for you to determine.

Ms. Moore apparently presented that instruction to the Trial Court after copying it verbatim from the transcript of First Commercial Bank v. Kremer, 292 Ark. 82, 728 S.W.2d 172 (1987). Yam’s objected and submitted an instruction based on AMI 2201 which would have allowed recovery for Ms. Moore’s expenditures and for mental anguish.

The instruction given was not at issue in our decision in the First Commercial Bank case. Indeed had it been, we would have disapproved it because it stated “humiliation” as a element for which damages could be awarded separately from “mental anguish.” In Bruns v. Bruns, 290 Ark. 347, 719 S.W.2d 691 (1986), an instruction was given, much like the one above, in which “embarrassment” and “mental anguish” were listed as separate damages elements. We reversed and said that, while embarrassment could have been argued to the jury as contributing to the plaintiff’s mental anguish, the “jury could not be instructed that embarrassment and mental anguish were separate elements to be weighed in determining her compensation.” The same rule applies here.

c. Punitive damages instruction

Yam’s argument here is nothing more than a repetition of the sufficiency of the evidence argument we have dealt with above. The point is that the evidence was insufficient to go the jury on punitive damages and thus there should have been no instruction on punitive damages. No argument is made that the instruction was in any other way improper. We need not address the point further than to say again that it was waived by the failure to be specific in the motions for directed verdict and judgment notwithstanding the verdict.

Finally, we deny Ms. Moore’s motion for costs expended in preparing a supplemental abstract, much of which we deem to have been unnecessary.

Reversed and remanded.


author: Tom Glaze, Justice. David Newbern, Justice,

text:
    Jenny BARTLEY v. Jerry SWEETSER & Sharon Sweetser, d/b/a Sweetser Properties
    94-592
    890 S.W.2d 250
    Supreme Court of Arkansas
    Opinion delivered December 19, 1994

      Bruce Schlegel and Everett, Mars & Stills, by: David D. Stills and John C. Everett, for appellant.

      Roy & Lambert, by: James M. Roy, Jr. and James H. Bingaman, for appellee.
   Tom Glaze, Justice.

During the early morning hours of June 21, 1991, two men entered the apartment of appellant Jenny Bartley and raped her. Bartley was a twenty-one-year-old college student at the time and one of the men who raped her was a tenant in the same apartment complex which was owned by appellees Jerry and Sharon Sweetser. The undisputed facts showed that the two men knocked on Bartley’s door, and she opened the door to ascertain who was there. The men forced their way into Bartley’s apartment and raped her.

On November 16, 1992, Bartley filed her complaint against the Sweetsers, alleging the Sweetsers owed Bartley and other residents of University Studio apartments a duty to provide reasonable security from foreseeable criminal acts against the tenants, and the Sweetsers breached that duty. The Sweetsers filed a motion to dismiss for failure to state facts upon which relief could be granted. Treating the motion to dismiss as one for summary judgment, the trial court granted the motion and dismissed Bartley’s complaint with prejudice. Bartley appeals from that order.

Bartley argues that the Sweetsers provided her with a windowless door which was latched with a simple push-button doorknob lock, failed to provide adequate security and adequate lighting of the common areas, and failed to warn Bartley that the apartment complex was prone to criminal activity. Further, Bartley argues the lease prohibited her from installing additional locks to the apartment door, and the Sweetsers retained sole dominion and control over her door and the common areas of the complex. Bartley urges this court overturn its prior holdings and hold that a landlord owes a duty to tenants to provide them with a reasonably safe environment.

Bartley points to her lease and its terms that prevented her, as a tenant, from making any modification to the premises without the landlords’ written consent. Bartley argues she was specifically precluded from installing additional locking devices on her door. Bartley argues many jurisdictions have discarded the general rule of landlord immunity based on the common law rule of caveat emptor as being inconsistent with modern circumstances or warranties of habitability. Bartley argues that, if her door had had a peephole or chain lock, she would have had greater protection from the two men who attacked her.

Bartley cites a long line of cases where this court has considered issues of landlord liability for injuries to tenants, all of which held that the landlord owes no special duty to tenants and that tenants are not invitees. She also cites Jackson v. Warner Holdings, Ltd., 617 F.Supp. 646 (W.D. Ark. 1985), where the federal court held that Arkansas would recognize a duty owed by the landlord to tenants in providing adequate security to protect against criminal attacks by third persons. There, a tenant was raped after the assailant entered her apartment. In finding that a duty was owed by the apartment owner, the federal court relied heavily on Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983).

Keck, however, did not involve landlord liability for a tenant’s injury due to a third party’s criminal acts. Instead, Keck was a negligence case where an employment agency sent one of its customers to interview a prospective employer. The prospective employer raped the customer. The evidence further showed that the agency had not investigated the prospective employer. While the Keck court mentioned the rule that one is ordinarily not liable for the acts of another unless a special relationship exists, the court held such a relationship had occurred. It concluded such duty arose out of (1) the contractual relationship between the employment agency and its customer, (2) the agency’s ability to foresee some danger in sending the customer to prospective employers, and (3) the degree of control the agency had over the employers it made available to its customers.

Arkansas landlord/tenant law has its own history that bears on the issue before us in this case. Since 1932, Arkansas has adhered to the general rule that, as between a landlord and tenant, the landlord is under no legal obligation to a tenant for injuries sustained in common areas, absent a statute or agreement. See Glasgow v. Century Property Fund XIX, 299 Ark. 221, 772 S.W.2d 312 (1989); Knox v. Gray, 289 Ark. 507, 712 S.W.2d 914 (1986); Kilbury v. McConnell, 246 Ark. 528, 438 S.W.2d 692 (1969); Joseph v. Riffee, 186 Ark. 418, 53 S.W.2d 987 (1932). Consistent with the foregoing principle is the general and common law rule that a landlord does not owe a tenant or social guest a duty to protect the tenant or guest from criminal acts. Pippin v. Chicago Housing Authority, 78 Ill.2d 204, 399 N.E.2d 596 (1979); Morgan v. 253 E. Delaware Condo Ass’n, 231 Ill. App. 3rd 208, 595 N.E.2d 36 (1992); 52 C.J.S. Landlord and Tenant § 545 (1968); American Law of Landlord and Tenant § 4.14 (1980 and Supp. 1994); 43 ALR3rd 331 (1972 and Supp. 1994) (Landlord’s obligation to protect tenant against criminal activities of third persons); see also 65th Center, Inc. v. Copeland, 308 Ark. 456, 825 S.W.2d 574 (1992) (court said that a landowner is not liable for the negligent act of a third party, when the landowner had no control over the person who committed the act and the act was not committed on his account); contra Kline v. 1500 Mass. Ave. Apt. Corp., 141 App. D.C. 370, 439 F.2d 477, 43 ALR3d 311 (1970); American Law of Landlord and Tenant § 4.15 (1980 and Supp. 1994).

Although some jurisdictions have held a landlord, under certain circumstances, owes a duty to take reasonable steps to protect a tenant from foreseeable criminal acts committed by intruders on the premises, Kline, 141 App. D.C. 379, 439 F.2d 477, the courts have generally found that, as a matter of public policy, it was not fair to impose this duty of protection on the landlord. See American Law of Landlord Tenant § 4.14 (1980). Professor Robert S. Schoshinski in his text, American Law of Landlord Tenant, states that the common law rule, which imposes no duty (absent an agreement or statute) on the landlord to protect a tenant from a third party’s criminal acts, has persisted for a variety of reasons. Citing cases from other jurisdictions, Professor Schoshinski stated those reasons as follows:

Judicial reluctance to tamper with the common law concept of the landlord-tenant relationship, the notion that the act of a third person in committing an intentional tort or crime is a superseding cause of harm to another . . . ; the often times difficult problem of determining foreseeability of criminal acts; the vagueness of the standard which the landlord must meet; the economic consequences of the imposition of the duty; and the conflict with public policy allocating the duty of protecting citizens from criminal acts to the government rather than the private sector.

Id.

For more than sixty years, this court, when reviewing landlord/tenant cases, has seemed content to adhere to the general rule and common law, and has consistently imposed no legal obligation upon a landlord for a tenant’s injury on the premises unless a duty is imposed by statute or agreement. No sound reason is given here to depart from it. Certainly, no Arkansas statute has been enacted imposing a duty upon a landlord to protect a tenant from a third party’s criminal acts. Nor has the parties’ lease agreement here imposed a duty upon the landlords, the Sweetsers, to protect tenant Bartley in these circumstances. The Sweetsers provided a lock for Bartley’s door. Concerning the purpose of the lease terms prohibiting additional locks, this provision merely assured the Sweetsers access to tenant premises during reasonable hours in order to make an inspection or necessary repairs. While Bartley would like to make more out of these lease terms involving locks, the Sweetsers simply undertook no responsibility to provide any security or protection against possible criminal acts of third parties. In sum, a landlord, under Arkansas law, is not the insurer of the safety of tenants or others upon the premises. And, while circumstances could arise under the terms of a lease between a landlord and tenant so as to impose a duty, those circumstances do not exist in this case.

Because the question of whether a duty is owed is always a question of law and never one for the jury, we uphold the trial court’s ruling granting summary judgment in the Sweetsers’ favor. 65th Center, Inc. v. Copeland, 308 Ark. 456, 825 S.W.2d 574. Therefore, we affirm.

Newbern, J., concurs.

David Newbern, Justice,

concurring. Our landlord-tenant law does indeed place no duty on a landlord to protect a tenant from a criminal act by a third party. When, however, there is a relationship between parties in which one of them acts so as to imply the assumption of a duty to act without negligence toward the other, then negligence becomes an issue. Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). I see no reason why a landlord should be immune from such a rule. A landlord’s relationship with a tenant is just as “special” as that of an employment agency’s relationship with its client. Both are based on contract.

In this case, however, even assuming the landlords were negligent in not providing greater security, we could not reverse. It would not have mattered what sort of lock or locks were on the door because Ms. Bartley opened it. We could not say any supposed negligence on the part of the landlord constituted of the failure to provide a dead bolt or other lock more secure than the push-button type was the proximate cause of the injury.

Negligence is not a static concept. That which was not characterized as negligence 60 years ago might be so characterized today in view of changed conditions. In a proper case, we should be willing to examine whether there is anything about the landlord-tenant relationship which would preclude us from holding that a landlord might be liable for demonstrable negligence causing injury to a tenant.


author: Tom Glaze, Justice.

text:
    JENNY’S CLEANING SERVICE v. Mary REDDICK
    94-561
    889 S.W.2d 754
    Supreme Court of Arkansas
    Opinion delivered December 19, 1994

      Bassett Law Firm, by: Curtis L. Nebben, for appellant.

      Tolley & Brooks, P.A., by: Jay N. Tolley, for appellee.
   Tom Glaze, Justice.

In this appeal of a workers’ compensation case the court of appeals affirmed the Workers’ Compensation Commission on appeal and reversed on cross-appeal and we granted a petition for review of that decision. A detailed recitation of the facts of this case is set out in Jenny’s Cleaning Serv. v. Reddick, 46 Ark. App. 5, 875 S.W.2d 856 (1994).

The pertinent evidence reveals that Mary Reddick, a sole proprietor, filed an application for workers’ compensation insurance. Her desire was to obtain coverage for herself as an employee of her business, Jenny’s Cleaning Service. Mrs. Reddick was told by both Patsy Doss, the previous owner, and Pamela Fuller, the insurance agent from whom she purchased the insurance, that to obtain coverage as an employee, Mrs. Reddick could file an application with the Workers’ Compensation Commission naming her daughter, thirteen year old Jenny Sigmon, as the “sole proprietor.” Mrs. Reddick filed an application in the suggested manner without in any way notifying the Commission that she wanted to be considered an employee for insurance purposes, and indicated that coverage for the “sole proprietor” was not desired.

The Workers’ Compensation Commission found that Mrs. Reddick had substantially complied with Ark. Code Ann. § 11-9-102(2) (1987) and was a covered employee. In a 4-2 decision, the Arkansas Court of Appeals affirmed. We disagree and consequently reverse.

Ark. Code Ann. § 11-9-102(2) (1987) provides in part:

“[T]he term ‘employee’ shall also include a sole proprietor or a partner who devoted full time to the proprietorship or partnership and who elects to be included in the definition of ‘employee’ by filing written notice with the Workers’ Compensation Commission.” [Emphasis added.]

The appropriate form to be filed with the Commission, in compliance with the notice requirement in Ark. Code Ann. §11-9-102(2), is a Form A-18. Mrs. Reddick, the true sole proprietor, never listed herself as such on her workers’ compensation insurance application. Moreover, she not only failed to file a Form A-18, but failed to file any kind of written notice, or give any notice otherwise, to indicate her election to be included in the definition of “employee” as clearly required under § 11-9-102(2). This court cannot affirm that Mrs. Reddick substantially complied with the statutory requirements when, in fact, her actions do not comply in the least.

On two occasions, the court of appeals has held that after 1979 sole proprietors could be considered employees, but only if they elected to be included in the definition of employees and filed their election with the Commission. Stone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (1988); Gilbert v. Gilbert Timber Co., 19 Ark. App. 93, 717 S.W.2d 220 (1986), aff’d on separate grounds, 292 Ark. 124, 728 S.W.2d 507 (1987). The court of appeals’ decisions were correct.

Having failed to comply with the statutory requirement of filing with the Commission written notice of election to be treated as an “employee” for workers’ compensation insurance purposes, Mrs. Reddick is not covered, and we must reverse the Commission.

      Pamela Fuller thoroughly contested Mrs. Reddick’s version of the facts, but we accept the Commission’s findings for purposes of this review.

       The court of appeals majority opinion incorrectly determined that the application for insurance Mrs. Reddick completed named “Lois Reddick” as an employee.

      Ark. Code Ann. § 11-9-102 (Supp. 1993) differs from § 11-9-102 (1987) and reads as follows:
      [T]he term “employee” shall also include a sole proprietor or a partner who devotes full time to the proprietorship or partnership. Further, however, it is to be understood that any sole proprietor or partner of a partnership who desires not to be included in the definition of employee may file for and receive a certification of noncoverage under this chapter from the commission and thereafter, or until he elects otherwise, to be conclusively presumed not to be an employee for purposes of this chapter.


author: Donald L. Corbin, Justice.

text:
    Tony PLANTE v. TYSON FOODS, INC.
    94-596
    890 S.W.2d 253
    Supreme Court of Arkansas
    Opinion delivered December 19, 1994

      Tolley & Brooks, P.A., by: Jay N. Tolley, for petitioner.

      Bassett Law Firm, by: Curtis L. Nebben, for respondent.
   Donald L. Corbin, Justice.

Petitioner, Tony Plante, appeals from a decision of the Arkansas Workers’ Compensation Commission holding his claim for additional compensation barred by the statute of limitations, Ark. Code Ann. § ll-9-702(b) (Supp. 1993). The Arkansas Court of Appeals affirmed the commission’s decision by a 3-1-2 vote. Plante v. Tyson Foods, Inc., 46 Ark. App. 22, 876 S.W.2d 273 (1994). We granted this petition for review of the decision of the court of appeals pursuant to Ark. Sup. Ct. R. l-2(f). We hold the claim for additional compensation was timely filed and therefore reverse and remand.

We review a decision of the Arkansas Court of Appeals under Ark. Sup. Ct. R. l-2(f), as though the case had been originally filed in this court. Maloy v. Stuttgart Memorial Hosp., 316 Ark. 447, 872 S.W.2d 401 (1994). On appeal of a workers’ compensation case from the court of appeals to this court, we view the evidence in the light most favorable to the commission’s decision and affirm that decision if it is supported by substantial evidence. Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993). Substantial evidence exists if reasonable minds could have reached the same conclusion. Id. Thus, before we reverse the commission’s decision, we must be convinced that fair-minded persons considering the same facts could not have reached the conclusion made by the commission. Id. Thus, the issue presented in this case is whether there is substantial evidence to support the commission’s decision that petitioner’s claim for additional compensation was barred by the statute of limitations. Hall’s Cleaners v. Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992). In addition to reviewing the record for substantial evidence, however, we also examine the record for matters that would toll the limitations statute, or estop respondent, Tyson Foods, Incorporated, from pleading it. McFall v. United States Tobacco Co., 246 Ark. 43, 436 S.W.2d 838 (1969).

The record reveals that petitioner suffered a compensable injury to his right knee on September 12, 1988. He first saw a doctor on September 14, 1988, and was referred to an orthopedic specialist, Dr. James A. Arnold, who performed arthroscopic surgery on the petitioner’s right knee on November 11, 1988. The surgery consisted of an excision of loose body, medial and lateral menisectomy, and modified McIntosh repair. Petitioner returned to Dr. Arnold for numerous post-operative follow-up visits and, after undergoing physical therapy as recommended by Dr. Arnold, was finally released to return to work on April 10, 1989, with no restrictions. Dr. Arnold instructed petitioner to return every six months for the next five years for evaluation and laxity testing of the repaired ligament on the right knee.

Petitioner returned to Dr. Arnold’s office on September 26, 1989, and July 26, 1990. Dr. Arnold’s office files describe these two visits as “post-operative McIntosh research visits” and reflect that petitioner was experiencing pain in his right knee. Petitioner did not see Dr. Arnold on these two visits, nor was the respondent, petitioner’s employer at the time of the injury, billed for them. Petitioner returned to Dr. Arnold’s office for another postoperative McIntosh research visit on July 22, 1991, and then returned to see Dr. Arnold on July 25, 1991. Dr. Arnold determined the McIntosh repair had failed, as it is expected to do in 20% of cases, and recommended a synthetic ligament replacement. Dr. Arnold submitted a bill to the respondent for the July 25, 1991 visit, and petitioner filed his claim for additional compensation on September 11, 1991.

Below, the respondent contended the statute of limitations had run on the claim for additional compensation. Petitioner responded that the statute was tolled because medical services were furnished on September 26, 1989, and July 26, 1990. We agree with petitioner that these visits tolled the statute.

The applicable limitations statute is section ll-9-702(b), which states in part:

(b) TIME FOR FILING ADDITIONAL COMPENSATION. In cases where any compensation, including disability or medical, has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the commission within one (1) year from the date of the last payment of compensation, or two (2) years from the date of the injury, whichever is greater.

The administrative law judge ruled that medical services were last paid by the respondent on April 26, 1989, that indemnity for the 10% disability rating to the claimant’s right leg was last paid on August 9, 1989, and that the claimant, by waiting until September 11, 1991, to file his claim for additional compensation, therefore failed to meet his burden of filing the claim within the limitations period. The commission affirmed the decision of the administrative law judge by a 2 to 1 vote, ruling that the one-year limitations period expired on August 9, 1990, and that the two-year limitations period expired on September 12, 1990.

It is well-settled that the furnishing of medical services constitutes “payment of compensation” within the meaning of the limitations statute and that such payment of compensation or furnishing of medical services tolls the running of the time for filing a claim for additional compensation. Heflin v. Pepsi-Cola Bottling Co., 244 Ark. 195, 424 S.W.2d 365 (1968). The one-year limitations period begins to run from the last payment of compensation, which this court has held means from the date of the last furnishing of medical services. Superior Federal Savings & Loan Ass’n v. Shelby, 265 Ark. 599, 580 S.W.2d 201 (1979).

This court has also stated that employers and carriers must either have actual knowledge or constructive knowledge that medical services are being provided before they are deemed to have furnished medical services. McFall, 246 Ark. 43, 436 S.W.2d 838. In the present case, there was testimony that the respondent was not aware of the visits on September 26, 1989 and July 26, 1990, either by way of a bill from Dr. Arnold or otherwise. Consequently, the administrative law judge, the commission, and the court of appeals all relied on McFall in rendering their decisions that the statute had run. Such reliance was misplaced as McFall is clearly not applicable to this case due to distinguishing facts.

In McFall, the claimant sought and received care for a knee injury from an authorized physician who did not perform surgery; the claimant then made an unauthorized change of physician to a surgeon who did perform surgery on the claimant’s knee. Thus, in McFall, the claim for additional compensation included the surgical expenses as well as temporary and permanent partial disability. On those facts, this court held the respondent employer did not have either actual or constructive knowledge that medical services were being provided to the claimant. As noted by Judge Cooper in his dissent from the decision on review:

The fact that the treatment in McFall was rendered following an unauthorized change of physician is the crux of the opinion, which must be considered in order to comprehend the Court’s statement that they were “unable to see how an employer could furnish medical treatment without knowing, and without reason to know, that he is doing so.”

Plante, 46 Ark. App. at 26, 876 S.W.2d at 275 (Cooper, J., dissenting). In the present case, however, the claims for both disability and surgery by an authorized physician had already been paid when the claim for additional compensation was filed for follow-up treatment from the same authorized physician who performed the surgery. The facts of these two cases are remarkably distinct, therefore McFall does not apply to the present case.

The respondent cannot succeed on the limitations defense, therefore, simply because the authorized physician never submitted a separate bill for the 1989 and 1990 follow-up visits, which were presumably included in the payment for surgery, because it is the furnishing of the services that tolls the statute, not the payment therefor. Heflin, 244 Ark. 195, 424 S.W.2d 365. Further, regardless of whether the respondent had actual knowledge of the 1989 and 1990 visits, the respondent should have known they would occur, especially given the 20% failure rate of this petitioner’s particular surgery.

“[T]he primary purpose of the one year statute of limitations is to give the claimant that much extra time to decide whether he has been fully compensated for his injuryf.]” Shelby, 265 Ark. at 601, 580 S.W.2d at 203. Consistent with this purpose is the rule that the period is tolled so long as the claimant is being furnished medical services or is being “compensated.” Heflin, citing Ragon v. Great American Indemnity Co., 224 Ark. 387, 273 S.W.2d 524 (1954) and Reynolds Metal Co., 226 Ark. 388, 290 S.W.2d 211 (1956). We can think of no better way for petitioner to decide whether he has been fully compensated than to return to his authorized physician or staff for follow-up treatments after surgery. Moreover, we can think of no better illustration of medical services with respect to the provision of which an employer or carrier should have knowledge than follow-up treatment from an authorized surgery. We grant the better practice in this case would have been for respondent to have been actually notified of these follow-up visits, although the better practice is not what is required by the statute.

In sum, respondent’s failure to receive actual notice of the follow-up treatment is not determinative of the limitations issue here where “payment of compensation” was made by respondent by virtue of the medical services which were actually furnished within the limitations period and for which respondent had reason to know would be furnished. We are mindful that it is the claimant’s burden to act within the statutory time allowed. Shelby, 265 Ark. at 601, 580 S.W.2d at 203. Petitioner, as the claimant in this case, met that burden. Therefore, his claim for additional compensation was not barred by limitations. This case is reversed and remanded to the commission for award of benefits.

Reversed and remanded.

Hays, J., would affirm.