author: Annabeixe Clinton Imber, Justice. Robert L. Brown, Justice,

text:
    UNION PACIFIC RAILROAD COMPANY and T.P. Spoon v. Jonathan SHARP and Aristea Sharp
    96-1096
    952 S.W.2d 658
    Supreme Court of Arkansas
    Opinion delivered October 9, 1997
    [Petitions for rehearing denied November 13, 1997.]

      William H. Sutton, Frederick S. Ursery , Scott H. Tucker, & Clifford W. Plunkett, for appellants.

      Epley, Epley & France, Ltd., by: Lewis E. Epley, Jr. and Tim S. Parker, for appellees.

      Arkansas Trial Lawyers Association, by: Henry C. Kinslow, amicus curiae.

      Barrett & Deacon, by: J.C. Deacon and D.P. Marshall, Jr., amicus curiae, for Association of American Railroads, on cross-appeal.

      Both appellants and appellees filed petitions for rehearing.

   Annabeixe Clinton Imber, Justice.

This is a negligence action involving a collision at a railroad crossing in Marianna. The appellants, Union Pacific Railroad Company and T.P. Spoon (“the railroad”), appeal a jury verdict rendered against them. The appellees, Jonathan and Aristea Sharp (“Sharp”), cross-appeal the trial court’s entry of partial summary judgment in favor of the railroad on the issue of whether the railroad placed adequate warning devices at the crossing. We reverse the jury verdict, and affirm the partial summary judgment.

On February 15, 1993, Jonathan Sharp was driving a van owned by his mother, Aristea Sharp, when he collided with a Union Pacific train at the Louisiana Street railroad crossing in Marianna. The accident occurred in the afternoon, and the streets were wet from an earlier rain. Union Pacific’s train was being pulled by two locomotives. The lead locomotive was operated by engineer T.P. Spoon who was on the right side of the train and brakeman Steve Tyler who was on the left side of the train where the impact occurred. The second locomotive was unoccupied. The only warning device at the railroad crossing was a single crossbuck which was installed in the early 1980’s pursuant to a safety program funded by the federal government.

Sharp filed a negligence action against the railroad alleging that it failed to place adequate warning devices at the crossing, failed to maintain the warning devices, failed to properly sound audible warnings, and failed to keep a proper lookout for vehicles entering the crossing. Prior to trial, the court granted the railroad partial summary judgment on the issue of whether it placed adequate warning devices at the crossing because it found that the claim was preempted by federal law. The case proceeded to trial on Sharp’s remaining negligence theories.

At trial, Sharp admitted that he was aware of the railroad crossing because he had passed over it four or five times the day of the accident. Sharp, however, claimed that he did not know that a train was entering the crossing at the time of the accident because his view was obstructed, and the train failed to sound its audible warning devices. Sharp further explained that he applied his brakes when he saw the train approximately sixty-two feet from the crossing, but that he was unable to stop before the front end of his van collided with the left side of the train. In contrast, the train operators testified that they sounded the whistle in a series of two long, one short, and one long blasts, and that they were unable to see Sharp’s vehicle prior to impact.

Direct Appeal

I. Sufficiency of the Evidence

For its first argument on appeal, the railroad asserts that the trial court erred when it denied its motion for a directed verdict on Sharp’s negligence claim. Our standard of review of the denial of a motion for a directed verdict is whether the jury’s verdict is supported by substantial evidence. Ouachita Wilderness Institute, Inc. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997); Balentine v. Sparkman, 327 Ark. 180, 937 S.W.2d 647 (1997). Substantial evidence is defined as “evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture.” Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997). When determining the sufficiency of the evidence, we review the evidence and a11 reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id. In such situations, the weight and value of testimony is a matter within the exclusive province of the jury. Id.

To establish a prima facie case of negligence, a plaintiff must show that damages were sustained, that the defendant breached the standard of care, and that the defendant’s actions were the proximate cause of the damages. See Ouachita Wilderness, supra; Southern Farm Bureau Casualty Ins. v. Allen, 326 Ark. 1023, 934 S.W.2d 527 (1996). The parties do not contest that Sharp suffered damages as a result of the collision. Hence, the relevant inquiry on appeal is whether Sharp presented substantial evidence that the railroad breached the standard of care, and that this breach was the proximate cause of his damages.

A. Breach of the Standard of Care

At trial, Sharp argued that the railroad was negligent in failing to keep a proper lookout and failing to properly sound its audible warnings. Because the jury rendered a general verdict of negligence, it is impossible to determine whether the jury found that the railroad was negligent in one or both respects. Hence, we must affirm if there is sufficient evidence to support either theory of negligence.

Sharp’s first theory of negligence was that the railroad failed to maintain a proper lookout under Ark. Code Ann. § 23-12-907(a)(1) (1987) which states that:

It shall be the duty of all persons running trains in this state upon any railroad to keep a constant lookout for all persons, including 'licensees and trespassers, and property upon the track of any and all railroads.

During Sharp’s case-in-chief, the train’s engineer, T.P. Spoon, testified that he could not see Sharp’s van, and that he did not know that the train had struck the van until the brakeman brought it to his attention. We find that from this testimony, a jury could have concluded that the railroad breached the standard of care by failing to keep a proper lookout for vehicles entering the Louisiana Street crossing. Because we find that Sharp presented substantial evidence that the railroad was negligent in failing to maintain a proper lookout, it is unnecessary to address whether he presented substantial evidence that the railroad was also negligent in failing to properly sound its audible warnings.

B. Proximate Causation

The railroad next argues that the trial court should have granted a directed verdict because there was insubstantial evidence that the railroad’s negligence was the proximate cause of Sharp’s injuries. We have previously defined proximate cause as “that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” Ouachita, supra; Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257 (1996). Proximate causation is usually an issue for the jury to decide, and when there is evidence to establish a causal connection between the negligence of the defendant and the damage, it is proper for the case to go to the jury. Ouachita, supra; Tyson Foods Inc. v. Adams, 326 Ark. 300, 930 S.W.2d 374 (1996); McGraw v. Weeks, 326 Ark. 285, 930 S.W.2d 365 (1996). In other words, proximate causation becomes a question of law only if reasonable minds could not differ. Ouachita, supra; Tyson, supra.

' As mentioned previously, Sharp presented evidence that the railroad might have been negligent in failing to keep a proper lookout. The jury could have concluded that if the railroad had kept a proper lookout, it could have either stopped prior to colliding with Sharp’s van or sounded earlier warnings to notify Sharp of the impending danger. The railroad argues that Archie Burnham’s testimony unequivocally established that the train could not have stopped when it was first able to see Sharp’s vehicle. We, however, have previously explained that the jury is not bound to accept the opinion testimony of experts as conclusive. Dixon Ticonderoga Co. v. Winburn Title Mfg. Co., 324 Ark. 266, 920 S.W.2d 829 (1996); Burns v. State, 323 Ark. 206, 913 S.W.2d 789 (1996); Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1996), cert. denied, 116 S. Ct. 1861 (1996). Hence, we find that Sharp presented substantial evidence of a causal connection between his damages and the railroad’s actions.

In reaching this conclusion, we are not unmindful of our prior decisions where we held that it was improper to give the lookout instruction where the evidence established that the train could not have stopped in time to avoid the collision. Northland Ins. Co. v. Union Pacific R.R., 309 Ark. 287, 830 S.W.2d 850 (1992); St. Louis Southwestern Ry. v. Evans, 254 Ark. 762, 497 S.W.2d 692 (1973). These cases, however, are distinguishable from the case at hand in that the appellants in both Northland and Evans contested the court’s decision to give a jury instruction on one particular theory of negligence. Northland, supra; Evans, supra. Although the railroad also objected to the lookout instruction in this case, it has faded to contest this ruling on appeal. Instead, the railroad has merely asked us to determine whether there was substantial evidence to support the jury’s general verdict of negligence which, as previously mentioned, could have been based upon the jury’s finding that the train was negligent in failing to sound audible warnings, in failing to keep a proper lookout, or both. In other words, we are asked only to determine if there was any showing of proximate cause, and not whether the plaintiff established proximate cause of a particular theory of negligence.

For these reasons, we find that Sharp presented substantial evidence that the railroad breached its standard of care, and that this breach was the proximate cause of Sharp’s injuries. Accordingly, we affirm the trial court’s decision to submit the case to the jury for resolution.

II. The Sudden Emergency Instruction

For its next argument on appeal, the railroad asserts that the trial court erred when it gave the Sudden Emergency instruction which states:

A person who is suddenly and unexpectedly confronted with danger to himself or others not caused by his own negligence is not required to use the same judgment that is required of him in calmer and more deliberate moments. He is required to use only the care that a reasonably careful person would use in the same situation.

AMI Civ. 3rd 614.

In Wiles v. Webb, 329 Ark. 108, 946 S.W.2d 685 (1997), we recently abolished the use of the Sudden Emergency instruction in aYL future cases because we found that the instruction was inherently con&sing. The Wiles holding applies prospectively only, and thus is inapplicable to cases, such as this one, that were tried before the Wiles decision was handed down on June 16, 1997. In these “pre-Wiles” cases, we will apply the old rule that the Sudden Emergency instruction may not be given where there is any evidence that the party requesting the instruction was negligent in creating the emergency situation. Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995); Druckenmiller v. Cluff, 316 Ark. 517, 873 S.W.2d 526 (1994).

Sharp claims that this issue is not preserved for appeal because the railroad failed to make a proper objection to the instruction. It is well settled that no party may assign as error the giving or failure to give an instruction unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds of his objection. Bridges v. State, 327 Ark. 392, 938 S.W.2d 561 (1997); Clowney v. Gill, 326 Ark. 253, 929 S.W.2d 720 (1996). We find that the railroad complied with these requirements when it objected as follows:

SHARP: I have a 614 instruction on sudden emergency. It does appear that that was what occurred out there.
RAILROAD: Judge, the notes on 614 say one has to be free from negligence to be entitled to this instruction.
COURT: Just thinking on this — I don’t know how the Judge can be put in the position of making that decision because that is a question of fact for the jury.
RAILROAD: Well the law as we will get to, and I think its 1804 is: A railroad grade crossing is a place of danger. And the witness himself testified that he knew there was a railroad crossing ahead, and he saw it when he turned the corner and also he had been across it four of five times that same day. He wasn’t suddenly and unexpectedly confronted with the danger of a railroad crossing.

The railroad’s initial objection was a verbatim recitation of the notes commenting on AMI 614. See Williams v. Carr, 263 Ark. 326, 565 S.W.2d 400 (1978). After the trial court expressed its understanding that only the jury can decide whether Sharp was free from negligence, the railroad enumerated evidence of Sharp’s negligence, thereby apprising the trial court that the instruction should not be given because there was evidence that Sharp was negligent in creating the emergency situation. Only after considering the railroad’s references to evidence of Sharp’s negligence did the trial court overrule the objection. Hence, we find that the issue is properly preserved for appeal.

As to the merits, we agree with the railroad that the instruction should not have been given under the “pre- Wiles” rule because there was some evidence from which a jury could have concluded that Sharp was negligent in creating the emergency situation. For example, Sharp testified that he was aware of the crossing because he had passed over it several times that day. Additionally, Sharp admitted that he saw the train as it turned the corner to the intersection. Sharp also did not have a valid driver’s license at the time of the accident. Finally, there was some evidence that Sharp may have been driving too fast for the wet road conditions.

Because there was some evidence that Sharp was negligent in causing the impending collision, we conclude that the trial court erred when it gave the Sudden Emergency instruction. Accordingly, we reverse the trial court’s ruling on this issue.

III. Closing Arguments

At the close of all evidence, the railroad moved for a directed verdict on the issue of whether it failed to sound audible warnings in a manner required by law. This is merely another theory of how the railroad was negligent in causing the collision. As we have previously ruled, there was sufficient evidence to support the jury’s general verdict of negligence, and thus it is unnecessary for us to determine whether there was sufficient evidence of this particular theory of negligence. The railroad, however, raised this issue again during Sharp’s closing argument.

At the conclusion of all evidence, the judge gave the jury the following instruction which is based upon Ark. Code Ann. § 23-12-410 (1987):

A railroad is required to place on each locomotive a bell or whisde, and these shall be rung or whistled at a distance of at least a quarter mile from where the tracks cross any public street and shall be kept ringing or whistling until the locomotive has crossed the street.

AMI Civ. 3d § 1801. The judge also gave AMI Civ. 3d § 101 which informs the jury that opening statements, closing arguments, and statements made by the attorneys during the trial are not evidence.

During his closing argument, Sharp began to read AMI Civ. 3d § 1801 when the railroad objected stating that the statute does not say that each locomotive has to sound the warnings. At that point, Sharp had done nothing more than read the jury instruction, and thus we cannot say that he mischaracterized the law in any way. Sharp resumed his closing argument by reading the instruction again and then stating:

It doesn’t say they can pause one to three seconds in their whistling sequence. It says they shall be kept ringing and whistling. Mr. Spoon himself testified that he paused. Mr. Sain testified that there was pause in the blowing sequence. Mrs. Sain testified that there was pause in this blowing sequence. They were breaking the law coming down this track blowing that whistle like that. Mr. Spoon also testified that there were two engines on that train. He testified that only one had horns, whistles and bells working. They had one — at least one of the locomotives was out there without the proper equipment. They were breaking the law when they did that.

The railroad objected stating that Sharp had mischaracterized the law because the standard practice in the industry is to blow the whistle in a series of blasts, and that under federal law two engines together are defined as one locomotive. The railroad, however, did not ask for a mistrial or for a hmiting instruction.

In Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996), we held that in order to preserve this issue for appeal, the attorney must ask for and be denied affirmative relief such as a mistrial or a limiting instruction, (citing Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993)). In this case, the railroad did neither, nor did it ask the court to instruct the jury on the federal definition of locomotives or the method by which the train must sound its whistle. Hence, we find that the issue is not properly preserved for appeal.

For these reasons, we reverse and remand on the railroad’s direct appeal.

Cross-Appeal

A. Failure to Place Adequate Warning Devices

On cross-appeal, Sharp argues that the trial court erred when it found that Sharp’s claim that the railroad failed to place adequate warnings at the crossing was preempted by federal law. We find no error in the trial court’s ruling, and accordingly we affirm the entry of summary judgment on this issue.

In 1970, Congress passed the Federal Railroad Safety Act which directed the Secretary of Transportation to study and develop solutions to safety problems created by railroad crossings. 45 U.S.C. §§ 421 to 447. Based on the Secretary’s report and suggestions, Congress passed the Highway Safety Act of 1973. 23 U.S.C. § 130. This Act made federal funds available to states to improve railroad crossings, in return for which the states were required to:

conduct and systematically maintain a survey of all highways to identify those railroad crossings which may require separation, relocation, or protective devices, and establish and implement a schedule of projects for this purpose.

23 U.S.C. § 130(d). In 1975, the Federal Highway Administration (FHWA) promulgated regulations that determined the states’s eligibility for the federal funds provided by the Highway Safety Act. Of particular importance to this case, is 23 C.F.R. § 646.214(b)(3) which states that automatic gates with flashing signals must be installed if one or more of certain listed conditions exist. The regulation also provides that:

For crossings where the requirements of § 646.214(b)(3) are not applicable, the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of the FHWA.

23 C.F.R. § 646.214(b)(4).

Pursuant to the Highway Safety Act, the Arkansas State Highway and Transportation Department and Union Pacific’s predecessor became involved in a state-wide project to upgrade railroad crossings throughout the state. The state plan included a determination that two crossbucks should be placed at all railroad crossings in the state, including’the Louisiana Street crossing in Marianna. On January 4, 1980, the FHWA approved the state plan and subsequently entered into a contract to pay for 90% of the improvements. On March 3, 1981, the FHWA inspected and approved the completed improvements, and made final payment to the state on March 22, 1988.

The issue presented by this cross-appeal is whether federal funding of the improvements at the Louisiana crossing pursuant to the Highway Safety Act preempted Sharp’s claim that the railroad was negligent in failing to install adequate warning devices. It is uncontested that according to 23 C.F.R. § 646.214(b) automatic gates and flashing lights are required only if one or more of the conditions listed in 646.214(b)(3) exist at a particular crossing. The ultimate issue in this case is what kind of federal participation triggers federal preemption under the Highway Safety Act.

Sharp argues that preemption occurs only when a diagnostic team has determined whether the 646.214(b)(3) conditions exist at a particular crossing. Because a diagnostic team did not evaluate the Louisiana Street crossing, Sharp contends that the federal government has not made a final determination in this respect, and thus it is proper to submit the issue to a jury for resolution.

In contrast, the railroad asserts that, by providing federal funds, FHWA determined that the State Highway Department’s plan for the installation of crossbucks at the Louisiana Street crossing was adequate. Hence, the railroad argues that once federal funds have been spent to upgrade a railroad crossing, negligence claims such as Sharp’s are preempted. We agree with the railroad’s position, and accordingly we affirm the trial court’s ruling.

The United State Supreme Court first addressed the preemptive effect of the Highway Safety Act and its regulations in CSX Transportation Inc. v. Easterwood, 507 U.S. 658 (1993). In Easterwood, the plaintiff claimed that the railroad was negligent in failing to place adequate warning devices at a railroad crossing where her husband was killed. Id. As in this case, the railroad argued that the claim was preempted by the federal act and supporting regulations. Id. The Supreme Court explained that negligence actions are preempted by the act because 23 C.F.R. §§ 646.214(b)(3) and (4) remove the railroad’s decision-making authority to determine what type of warning devices are needed at a particular crossing. Id. The Court concluded that:

for projects in which federal funds participate in the installation of warning devices, the Secretary has determined the devices to be installed and the means by which railroads are to participate in their selection. The Secretary’s regulations therefore cover the subject matter of state law which, like the tort law on which respondent relies, seeks to impose an independent duty on a railroad to identify and/or repair dangerous crossings.

Id. Because federal funds were not expended to improve the railroad crossing in Easterwood, the Court found that the plaintiffs tort claim was not preempted.

After Easterwood, it was disputed whether preemption is triggered by the mere use of federal funds to improve a crossing or whether greater federal participation is required. In Shots v. CSX Transportation, Inc., 38 F.3d 304 (7th Cir. 1994), the Seventh Circuit Court of Appeals refused to read Easterwood “literally,” and held that the Secretary’s mere funding of the installation of crossing devices did not necessarily imply federal approval of the state’s determination of what warning devices were required at each crossing. Id. Instead, the Seventh Circuit suggested that preemption would occur only when there was greater federal participation such as the completion of an evaluation of the crossing in question by a diagnostic team.

The remaining federal circuit courts of appeal that have addressed this issue, have rejected the Shots holding, and have held that by providing funds the federal government has implicitly approved the states’ improvement plans and their determinations of whether a particular crossing requires automatic gates and lights under 23 C.F.R. § 646.214(b)(3). Armijo v. Atchison, Topeka, & Santa Fe Ry., 87 F.3d 1188 (10th Cir. 1996); Michael v. Norfolk S. Ry., 74 F.3d 271 (11th Cir. 1996); Hester v. CSX Transp., Inc., 61 F.3d 382 (5th Cir. 1995). As stated by the Fifth Circuit Court of Appeals in Hester, these courts find that:

The fact that federal funds participated in the installation of the warning devices legally presupposes that the Secretary approved and authorized the expenditure, which in turn legally presupposes that the Secretary determined that the safety devices installed were adequate to their task.

Hester, supra.

Likewise, the Eighth Circuit Court of Appeals has consistently held that once warning devices paid for with federal funds are installed and operating, the railroad’s common-law duty of care ceases, and it is entitled to the benefit of federal preemption. Kiemele v. Soo Line R.R., 93 F.3d 472 (8th Cir. 1996); Elrod v. Burlington Northern R.R., 68 F.3d 241 (8th Cir. 1995); St. Louis Southwestern Ry. v. Malone Freight Lines, Inc., 39 F.3d 864 (8th Cir. 1994). See also Dallari v. Southern Pac. R.R., 923 F. Supp. 1139 (E.D. Ark. 1996); Cartwright v. Burlington N. R.R., 908 F. Supp. 662 (E.D. Ark. 1995).

In response, Sharp directs our attention to Williams v. Burlington N. R.R., 849 F. Supp 682 (E.D. Ark. 1994), where the district court held that preemption does not occur unless federal funds are expended and a diagnostic team has determined what warning devices are adequate for the crossing in question. The Williams case, however, was decided before the Eighth Circuit first spoke on this issue in Malone, and thus we find it unpersuasive.

We agree with the Eighth Circuit that, “federal funding is the touchstone of preemption in this area because it indicates that the warning devices have been deemed adequate by federal regulators.” Elrod; supra. We find that such a holding is consistent with Section 109 of the Highway Safety Act which declares that no funds shall be approved for expenditure by the FHWA unless “proper safety protective devices complying with safety standards determined by the Secretary at that time as being adequate shall be installed or be in operation at any highway and railroad crossing.” 23 U.S.C. § 109(e). Moreover, 23 C.F.R. § 630.114(b) declares that the FHWA can authorize a project “only after applicable prerequisite requirements of Federal laws, and implementing regulations and directives have been satisfied.”

Finally, we do not agree with Sharp’s contention that the Hester and Elrod decisions are distinguishable because it was undisputed that the crossings did not contain the conditions listed in (b)(3). We find that such an analysis begs the question presented by this case. As we have previously explained, whether the conditions listed in (b)(3) exist at a particular crossing is for the FHWA, not a jury, to decide. Once the FHWA has spoken on the issue by providing federal funds for a state improvement project, the determination of whether (b)(3) conditions exist has already been made, and it may not be revisited by the state courts.

For these reasons, we follow the Eighth Circuit’s interpretation of Easterwood and hold that once warning devices paid for with federal funds are installed and operating, the railroad’s common-law duty to determine what warning devices are adequate for a particular crossing ceases, and it is entitled to the benefit of federal preemption. In this case, the Arkansas State Highway Commission determined that in the interest of safety two crossbuck warning signs should be installed at every railroad crossing in Arkansas, including the Louisiana Street crossing in Marianna. When the FHWA paid for the installation of these crossbucks, it implicitly determined that such safety devices were adequate to their task pursuant to 23 C.F.R. §§ 109(e), 630.114(b), and 646.214(b). Accordingly, we affirm the trial court’s ruling that Sharp’s claim that the railroad failed to place adequate warning devices at the crossing is preempted by federal law.

The dissent argues that such a holding is contrary to public policy because federal preemption will “provide blanket immunity to the railroad when proof that conditions have changed over time was offered at trial.” This argument, however, ignores the fact that the regulations promulgated by the FHWA have stripped the railroad of any decision-making authority to determine what type of warning devices are needed at a particular intersection, and placed such authority in the FHWA. See Easterwood, supra. As later acknowledged in the dissent, any failure to monitor the changing nature of an intersection thus must be attributable to a “break down” in the federal system.

Moreover, the dissent suggests that preemption is not absolute, and that at some undeterminable point preemption disappears and the railroad’s authority to determine what type of warning devices are needed is mysteriously resurrected. We, however, do not agree that federal preemption can be a revolving door. Rather, we find that federal premption is absolute once federal funds have been expended to implement the installation of warning devices at a particular intersection.

B. Failure to Maintain Warning Devices

Finally, Sharp alleges that the trial court erred when it granted the railroad a directed verdict on his claim that the railroad was negligent in failing to maintain the crossbucks at the Louisiana Street crossing. Sharp is correct that the Highway Safety Act does not preempt claims that a railroad was negligent in failing to maintain warning devices at a crossing. See, e.g., Michael v. Norfolk S. Ry., 74 F.3d 271 (11th Cir. 1996); Kiemele v. Soo Line R.R., 93 F.3d 472 (8th Cir. 1996). As explained by the court in Michael, 23 C.F.R. § 646.214(b) “deals with the design and installation of new warning devices, not the maintenance of those devices.” Michael, supra. Thus, while the Highway Safety Act preempts a claim that the railroad failed to install adequate warning devices, it does not preempt a claim that the railroad was negligent in failing to maintain the warning devices implicitly approved by the FHWA.

Moreover, we disagree with the dissent’s assertion that there is “a very thin line” between these two types of claims. As previously explained, federal preemption strips the railroad of its decision-making authority as to what types of warning devices are needed at a particular intersection. Preemption, however, does not relieve the railroad of its separate and distinct duty to maintain the warning devices. We find the line between these two types of claims to be clear and distinct.

During oral argument, Sharp asserted that the trial court precluded him from presenting any evidence that the railroad was negligent in failing to maintain the crossbucks at the Louisiana Street crossing. The abstract, however, is devoid of any such ruling. Moreover, after the railroad moved for a directed verdict on this issue, Sharp proclaimed:

It has been my assumption that [the claim that the railroad was negligent in fading to maintain the warning devices] was part of the preemption, your Honor, and that’s the reason I didn’t try to put on any proof.

We agree with Sharp’s admission that he failed to present any proof that the railroad was negligent in this respect. Accordingly, we affirm the trial court’s ruling.

For these reasons, we reverse and remand on the railroad’s direct appeal, and affirm on Sharp’s cross-appeal.

Brown, J., concurring in part and dissenting in part.

Robert L. Brown, Justice,

concurring in part; dissenting in part. I agree with the majority opinion on direct appeal but dissent from the majority’s conclusion on cross-appeal.

The issue on cross-appeal is whether federal funds used to pay for two crossbuck signs at a railroad crossing in Marianna in 1981 shields the railroad from all liability for what plaintiffs contend became an abnormally dangerous railroad crossing 12 years later. A subsidiary issue is whether this immunity exists for the railroad even when no survey of the crossing has been made by a diagnostic team during this 12-year period. I do not read the dictum in CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993), to provide blanket immunity to the railroad when proof that conditions have changed over time was offered at trial and when there has been no proof of monitoring by any government agency during the 12-year period. Otherwise, the federal government could pay for one crossbuck sign and protect the railroad from liability for decades. That defies common sense and is contrary to public policy.

The common law in Arkansas provides that where there is evidence to show that a railroad crossing is abnormally dangerous, that becomes a jury question. A jury must then decide whether the railroad breached its duty of ordinary care to give a warning reasonably sufficient to permit the traveling public to use the crossing with reasonable safety. Northland Ins. Co. v. Union Pac. R.R. Co., 309 Ark. 287, 830 S.W.2d 850 (1992); Missouri Pacific R.R. Co. v. Biddle, 293 Ark. 142, 732 S.W.2d 473 (1987); A.M.I. Civil 3d 1805. In Northland Ins. Co., we stated that AMI 1805, relating to the railroad’s duty at abnormally dangerous crossings, should be given when there is proof tending to show the warning devices are inadequate.

The majority opinion hinges its conclusion on CSX Transp. Inc. v. Easterwood, supra, but, again, that case does not resolve the issue before this court. In Easterwood, the Court stated that when federal regulations relating to warning devices are applicable, state tort law is preempted. Those regulations read:

(3) (i) Adequate warning devices, under § 646.214(b)(2) or on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals when one or more of the following conditions exist:
(A) Multiple main line railroad tracks.
(B) Multiple tracks at or in the vicinity of the crossing which may be occupied by a train or locomotive so as to obscure the movement of another train approaching the crossing.
(C) High Speed train operation combined with limited sight distance at either single or multiple track crossings.
(D) A combination of high speeds and moderately high volumes of highway and railroad traffic.
(E) Either a high volume of vehicular traffic, high number of train movements, substantial numbers of schoolbuses or trucks carrying hazardous materials, unusually restricted sight distance, continuing accident occurrences, or any combination of these conditions.
(F) A diagnostic team recommends them.
(ii) In individual cases where a diagnostic team justifies that gates are not appropriate, FHWA may find that the above requirements are not applicable.
(4) For crossings where the requirements of § 646.214(b)(3) are not applicable, the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of FHWA.

23 CFR §§ 646.214(b)(3) and (4).

In Easterwood, the Court concluded that the regulations did not apply due to lack of federal participation in paying for the warning devices. Thus, preemption did not occur. The opinion, in addition, did not confront the critical issue in this case — does preemption occur more than a decade later when there is proof that conditions have changed at the crossing and no diagnostic team has reevaluated the crossing? Without clear direction in Eas-. terwood that preemption occurs even when proof is offered that compliance with federal regulations has not transpired, I am reluctant to convey blanket immunity on the railroad.

The other cases cited by the majority, while endorsing a principle of general preemption, also fail to come to grips with and discuss the precise issue raised in the case at hand. See Kiemele v. Soo Line R.R., 93 F.3d 472 (8th Cir. 1996); Aronijo v. Atchison, Topeka & Santa Fe Ry., 87 F.3d 1188 (10th Cir. 1996); Michael v. Norfolk S. Ry., 74 F.3d 271 (11th Cir. 1996); Elrod v. Burlington Northern R.R., 68 F.3d 241 (8th Cir. 1995); Hester v. CSX Transp., Inc., 61 F.3d 382 (5th Cir. 1995); St. Louis Southwestern Ry. v. Malone Freight Lines, Inc., 39 F.3d 864 (8th Cir. 1994); Dallari v. S. Pac. R.R., 923 F. Supp. 1139 (E.D. Ark. 1996); Cartwright v. Burlington N. R.R., 908 F. Supp. 662 (E.D. Ark. 1995). That issue is does preemption occur when the federal system has broken down and monitoring by diagnostic teams has failed to take place. To maintain the fiction under such circumstances that the initial federal funding of a crossbuck sign presupposes a finding by the Secretary of Transportation that the crossing is still safe seems particularly ludicrous.

Furthermore, in Kiemele v. Soo Line R.R., supra, the Eighth Circuit stated that there was a fact question relating to whether the crossbuck signs were “operating” or whether they had lost their reflectivity. If the crossbuck signs were not operating, the Eighth Circuit opined that the railroad was not entitled to federal preemption. It seems to me to be a very thin line indeed between failure of crossbuck signs to reflect properly and the inadequacy of passive crossbuck signs as a warning device altogether. Along the same line is the case of Michael v. Norfolk S. Ry., supra. There, the installed warning gate was arguably shorter than what federal regulations required. The Eleventh Circuit noted that this lapse, if proven, would void any claim for preemption. Both Kiemele and Michael stand for the proposition that federal preemption may not occur under the facts of individual cases.

Both the Seventh Circuit Court of Appeals and two decisions by the Federal District Court for the Eastern District of Arkansas have found that blanket federal preemption does not occur under CSX Transp., Inc. v. Easterwood, supra. See Shots v. CSX Transp., Inc., 38 F.3d 304 (7th Cir. 1994); Birmingham v. Union Pacific R.R. Co., No. PB-C-96-573 (E.D. Ark. June 18, 1997); Williams v. Burlington Northern R.R. Co., 849 F. Supp. 682 (E.D. Ark. 1994). In Shots, the fiction that the Secretary of Transportation approved the warning devices at the crossing at issue is taken to task. Regulations b(3) and (4), according to the Seventh Circuit, merely set out criteria and not what was required at the particular crossing at issue. The two district court opinions (Williams and Birmingham) emphasize that there was inadequate proof that a diagnostic team had evaluated the pertinent crossings. This lapse in evaluation of the crossings raised a material issue of fact regarding whether preemption ever occurred which precluded summary judgment in both instances.

In the instant case, the Sharps presented proof of noncompliance with federal regulations which should at the very least raise a fact issue regarding the application of preemption of state common law and immunity for the railroad. That proof included not only the fact that one crossbuck sign on Sharp’s side of the tracks was inadequate but also proof of the following b(3) conditions that would require a gate and flashing lights:

• multiple tracks
• high volume of vehicular traffic
• number of school buses
• no diagnostic team evaluation.

There was also proof that multiple accidents had occurred at this precise crossing. Surely, this proof of inadequacy was sufficient to thwart summary judgment.

There is, finally, the point that with such full-blown immunity, there is no incentive for Union Pacific to measure safety at railroad crossings. The majority opinion concludes that federal preemption is absolute even when federal safety regulations are not followed and that the railroads of this land have been “stripped” of all decision-making authority concerning safety at railroad crossings. I cannot go that far because federal regulations and CSX Transportation, Inc. v. Easterwood, supra, do not contemplate that the railroad is out of the picture altogether or immune from liability when the federal system fails to operate. The Court made that clear in Easterwood:

Indeed, §§ 646.214(b)(3) and (4) effectively set the terms under which railroads are to participate in the improvement of crossings. The former section envisions railroad involvement in the selection of warning devices through their participation in diagnostic teams which may recommend the use or nonuse of crossing gates. §§ 646-214(b)(3)(i)(F) and (3)(ii). Likewise, § 646.214(b)(4), which covers federally funded installations at crossings that do not feature multiple tracks, heavy traffic, or the like, explicitly notes that railroad participation in the initial determination of “the type of warning device to be installed” at particular crossings is subject to the Secretary’s approval.
The Secretary’s regulations therefore cover the subject matter of the state law which, like the tort law on which respondent relies, seeks to impose an independent duty on a railroad to identify and/or repair dangerous crossings.

Easterwood, 507 U.S. at 670-71.

What is contended in the instant case is that the diagnostic team, with railroad participation, has failed to evaluate a dangerous crossing in Marianna, and proof was provided to support that contention. Far from my advocating a “revolving door” on preemption, when the federal apparatus has broken down, preemption simply does not occur. Otherwise, the public is protected neither by federal law nor common law tort. It is beyond dispute that the intention of the Secretary of Transportation in adopting the regulations was not to leave the traveling public vulnerable and without any mechanism to assure safety.

I respectfully dissent from the affirmance of summary judgment on cross-appeal.

       A “cross-buck” is an x-shaped highway warning sign placed at a railroad crossing. Webster’s New International Dictionary 541 (3d 1968).

       Sharp claimed that the railroad was negligent in several other respects which are not relevant to this appeal.

       The conditions listed in 23 C.F.R. § 646.214(b)(3) include: 1) multiple main line railroad tracks; 2) multiple tracks at or in the vicinity of the crossing -which may be occupied by a train or locomotive so as to obscure the movement of another train approaching the crossing; 3) high speed train operation combined with limited sight distance at either single or multiple crossings; 4) a combination of high speeds and moderately high volumes of highway and railroad traffic; 5) either a high volume of vehicular traffic, high number of train movements, substantial numbers of school buses or trucks carrying hazardous materials, unusually restricted sight distances, continuing accident occurrences, or any combination of these conditions; or 6) a diagnostic team recommends them.


source: Caselaw Access Project

author: Ray Thornton, Justice.

license: Public Domain

text:
    David HUNTER v. STATE of Arkansas
    CR 97-529
    952 S.W.2d 145
    Supreme Court of Arkansas
    Opinion delivered October 9, 1997

      Hatfield & Lassiter, by: Jack T. Lassiter and Karen D. Miller, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly Terry, Asst. Att’y Gen., for appeEee.
   Ray Thornton, Justice.

Appellant David Hunter appeals his convictions for the sale of unregistered securities, securities fraud, and theft of property, for which he has been sentenced to a total of forty-six years’ imprisonment. On appeal, he contends: (1) that the trial court erred in denying his motion for a directed verdict because of insufficient evidence to sustain the charge of selling unregistered securities; (2) that it erred in denying his motion for a directed verdict on the basis of the statute of limitations on the charge of securities fraud; and (3) that denial of these two motions violated his right to due process of law on the charge of theft of property. We find no merit in these arguments and affirm.

Appellant claimed that he invented or owned the rights to an invention of a patented device to prevent jackknifing of tractor-trailer trucks. The device was invented by O’Neal Sanders, who was granted a patent on October 17, 1978. Appellant met Mr. Sanders and persuaded him to install a working model of the invention on his horse trailer and truck. On October 21, 1980, a purported agreement was executed transferring Mr. Sanders’s rights in the invention to appellant. The evidence compels the conclusion that Mr. Sanders did not sign this purported agreement that was eventually filed with the Patent and Trademark Office on August 13, 1987.

Appellant incorporated Drivers Ace, Inc., in November 1987. Prospective investors in Drivers Ace, Inc., were informed that the corporation held the patent rights to manufacture the device. Appellant continued to promote the invention, sometimes claiming that he was the inventor. On December 3, 1992, Drivers Ace entered into an agreement with Marvin Engineering Co., Inc., of Inglewood, California, granting Marvin the exclusive license to manufacture the device worldwide.

Peter Brocklesby witnessed this agreement on December 3. On January 21, 1993, Mr. Brocklesby and another investor, Norbert von Boode, transferred $250,000 to the Drivers Ace, Inc., account in the First National Bank of Sharp County. This sum was to pay for 125 shares of stock in Drivers Ace at $2,000 per share, and the stock was issued February 3, 1993. Before the certificate was issued and on the same day that the sum of $250,000 was deposited in the Drivers Ace account, appellant wired $180,000 from the Drivers Ace account to his personal account in the First Ozark National Bank in Flippin, Arkansas.

Appellant argues that this transaction cannot be the basis for prosecution for securities fraud and for theft, that the charge of securities fraud is barred by the statute of limitations, and that the State did not prove the required elements of the crime of selling unregistered or nonexempt securities. We turn to our analysis of each of these arguments.

Appellant’s first two points for reversal involve his motions for directed verdicts, which we treat as challenges to the sufficiency of the evidence. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). We consider challenges to the sufficiency of the evidence before we address other allegations of trial error. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Id. Evidence is substantial if it is forceful enough to compel a conclusion one way or the other beyond speculation and conjecture. Id. We review the evidence in the light most favorable to the party opposing the motion and consider only the evidence that supports the verdict. Id.

At trial, appellant’s counsel made motions for directed verdicts on two charges, the sale of unregistered securities and securities fraud. Appellant moved for directed verdicts after the State’s case-in-chief and properly renewed his motions, which the trial court denied. We examine each motion separately below.

Sale of Unregistered Nonexempt Securities:

With respect to the charge of selling unregistered nonexempt securities, appellant argues that the State failed to meet its burden of proof with respect to the charge. This argument lacks merit.

The statute delineating the offense provides as follows:

It is unlawful for any person to offer or sell any security in this state unless:
(1) It is registered under this chapter; or
(2) The security or transaction is exempted under § § 23-42-503 or 23-42-504.

Ark. Code Ann. § 23-42-501 (Repl. 1994). As appellant correctly states, the burden of proof is on the State to show that a sale of, or an offer to sell, an unregistered security took place. However, once the State has met that burden, the burden shifts to the seller to show that the security was either exempt from registration or was registered. Schultz v. Rector-Phillips-Morse, Inc., 261 Ark. 769, 552 S.W.2d 4 (1977); McMullan v. Molnaird, 24 Ark. App. 126, 749 S.W.2d 352 (1988).

Under Ark. Code Ann. § 23-42-504 (Supp. 1995), certain transactions are exempt from § § 23-42-501 and 23-42-502. Specifically, under subsection (a)(9)(A), stock offers to twenty-five people or less are exempted. However, Ark. Code Ann. § 23-42-506 (Repl. 1994) provides: “In any proceding under this chapter, the burden of proving an exemption or exception from an exemption is upon the person claiming it.” The statute requires that a proof of exemption be filed with the commissioner to prove that the transaction was exempt. Ark. Code Ann. § 23-42-503(d)(l) (Supp. 1995). Appellant made no such showing at trial.

The State clearly proved that the sale of 125 shares of Drivers Ace stock to Mr. Brocklesby and Mr. von Boode, which was dated February 3, 1993, was a sale of securities. The State proved that the stock was not registered. The burden under Arkansas law then shifted to appellant to prove that the securities were exempt from registration. Appellant failed to meet this burden. There was sufficient evidence to sustain a conviction, and we affirm the trial court’s decision on this point.

Fraud in Connection with Offer, Sale, or Purchase of Securities:

For his second point of appeal, appellant urges error in denying his motion for directed verdict based on the securities-fraud charge. In trial, counsel stated the following:

Mr. Adams: Comes now the defendant, Mr. Hunter, and moves that the Court direct a verdict of acquittal on the charges as follows: On the charge of securities fraud, the allegations set forth in the Information and the allegation of the State was that there was the use of a forged document to defraud persons to purchase shares of stock in Drivers Ace. That document is dated more than five years before the filing of this Information. There has been no testimony that the document was shown to anybody within five years of the filing of this Information. In fact, the only person who made any reference to it in his testimony said that his last contact with David Hunter was prior to the year 1990. The Statute of Limitations has clearly run on that allegation and should be dismissed.

The State countered at trial with the argument that the act used for purposes of tolling the statute may be the last act in a chain of conduct, and that the act in this case began with showing Mr. Brocklesby and Mr. Parker the license and ended with the sale to Messrs. Brocklesby and von Boode in 1993. The State contended that the last act in the chain occurred in 1993 and that this act tolled the statute.

On appeal, appellant attempts to argue that the State faded to produce sufficient evidence that “the defendant made a statement that [he] and Drivers Ace, Inc., had an agreement with the owner of a patent on an anti-jackknifing device for large tractor trailer rigs permitting Drivers Ace, Inc., to manufacture and market the device and that the statement was not true.”

Our law is well established that in order to preserve the challenge for our review, the movant must apprise the trial court of the specific basis on which the motion is made. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). Parties may not change their argument on appeal and are limited to the scope and nature of their arguments made below. Id. Proof of the specific element of the alleged crime must be identified in the motion for directed verdict in order to preserve the argument for appeal. Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997).

As the trial language quoted above illustrates, the only portion of appellant’s argument on this point that is preserved for our review is the argument that the State failed to show that the fraud occurred within the preceding five-year period, as required under the statute of limitations. His argument regarding the sufficiency of the evidence was not made before the trial court and is therefore not preserved for our review.

The issue is whether the act alleged in violation of Ark. Code Ann. § 23-42-507 (Repl. 1994), was beyond the statute of limitations found in Ark. Code Ann. § 23-42-105 (Repl. 1994). The statute of limitations for this felony offense is five years, and it “does not begin to run until after the commission of the last overt act in the furtherance of a scheme or course of conduct.” Ark. Code Ann. § 23-42-105(a).

Arkansas Code Annotated § 23-42-507 provides as follows:

It is unlawful for any person, in connection with the offer, sale, or purchase of any security, directly or indirectly:
(1) To employ any device, scheme, or artifice to defraud;
(2) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading; or
(3) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.

The affidavit for warrant of arrest for appellant alleges that appellant’s violation of the statute involved a breach of subsection (2), making an untrue statement of material fact in connection with the offer, sale, or purchase of any security. The warrant stated that appellant made such a statement many times in connection with the sales and offers of stock in Drivers Ace, Inc. The affidavit claimed that the untrue statement was that appellant and Drivers Ace had an agreement with the inventor to manufacture and market the anti-jackknifing device. The fraud that appellant allegedly perpetrated was telling potential investors that the company had a license to use another’s patent to manufacture a device that would constitute the sole business of the company.

The evidence clearly shows that appellant’s acts in selling security in a company that makes and manufactures an invention that he claimed to have the right to manufacture and sell constituted fraud or deceit upon many persons within the five-year period preceding January 29, 1996. The abstract and record are replete with examples of appellant’s false statements or misrepresentations connected with the ongoing sale of this stock that culminated in the February 1993 exchange.

Reading the statute and viewing the evidence in the light most favorable to the State, we conclude that the evidence of appellant’s actions in offering stock in a company that he founded on a fraudulent premise constituted the last overt act in the furtherance of a scheme or course of conduct as required under statute. The course of conduct culminated in the sale of the stock on February 3, 1993, and commenced the running of the five-year statute of limitations. We affirm the trial court’s decision on this point.

Theft of Property:

As his last point of appeal, appellant argues that consideration of the charge of theft of property along with the two securities charges, which he argues should have been dismissed on his motions for directed verdicts, constituted a denial of his due process rights. Before the trial court, appellant argued that the State could not use the 1993 stock sale for both the purpose of tolling the statute of limitations for violations of § 23-42-507 and as a basis for liability under § 5-36-103 (Supp. 1995), the theft of property charge.

On appeal, appellant asserts merely that submitting these two securities charges to the jury with the theft charge denied him a fair trial in violation of his due process rights. Appellant clearly did not raise this issue before the trial court, and he cannot raise it for the first time on appeal. Arguments, even constitutional ones, that are not raised before the trial court are barred on appeal. Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997).

Affirmed.


text:
    Larry Don LOVELL, Sr., and Lynn A. Lovell, et al. v. Gerald BROCK, Tim Thomas, and Alfred Lee Brock
    96-1374
    952 S.W.2d 161
    Supreme Court of Arkansas
    Opinion delivered October 9, 1997

      Compton, Prewett, Thomas & Hickey, P.A., by: Floyd M. Thomas, Jr., , for appellant.

      Barrett & Deacon, by: David W. Calhoon and D.P. Marshall, Jr., for appellees’.
   Ray Thornton, Justice.

On November 29, 1986, Larry Don Lovell, Jr., died as a result of a gunshot wound sustained while deer hunting. His parents, appellants, brought this action against Herbert Bartlett and a number of other individuals engaged in deer hunting in the area, contending that although Mr. Bartlett fired the shot that killed their son, vicarious liability should be imputed to other hunters who were staying at the Bartlett house. Appellants took a voluntary nonsuit against all the other hunters except for appellees, Gerald Brock, Tim Thomas, and Alfred Lee Brock.

The trial court found that Mr. Bartlett was solely responsible for the accident that caused Larry Jr.’s death, and entered a substantial judgment in favor of appellants against Mr. Bartlett. No appeal was taken from this judgment. In the trial court’s order holding Mr. Bartlett solely responsible, the court found that there was no basis to impose vicarious liability on appellees and granted their motions for summary judgment. In their argument for reversal, appellants contend that appellees were members of an “association” or “club,” imposing vicarious liability on appellees, or alternatively that they were involved in a joint venture or enterprise and should be held liable for Larry Jr.’s death. We have determined that the trial court’s finding was not erroneous and affirm.

Several groups of hunters were seeking to kill deer on land owned by the Georgia Pacific company in Drew County on Thanksgiving weekend in 1986. The land was open to the public, and no hunting group had leased the land, or organized a club or association with officers and bylaws. Several persons from Marked Tree, including Larry Don Lovell, Sr., and his son were camped on Tommy Brashears’ property near Ladelle. Nearby, ten or twelve other people from Marked Tree were camped.

In the same area, Mr. Bartlett owned a cabin and allowed several persons to use the cabin during deer season. These hunters paid Mr. Bartlett $100.00 per season to stay at the cabin. They did not meet and adopt any rules, did not own any property together, and did not lease any hunting rights. Among those who sometimes stayed at the cabin were appellees, Gerald Brock, Alfred Brock, and Tim Thomas, although Gerald Brock was not in Drew County on the day of the tragic accident.

On the day of the accident, a local hunter, Monroe Cottington, and his brother-in-law, Royce Wesson, were also nearby in the woods hunting deer. Although the season for using dogs was over, Mr. Cottington was running his dogs, and he gave an unsworn statement that Alfred Brock had asked bim to do so. Under oath, Mr. Brock denied making that request. Tim Thomas had killed a deer by himself that morning, and he kept it for his own use. Hunters from at least three camps were in the area where Larry Jr. was fatally wounded.

The young victim, properly outfitted in an orange coat and cap, had been left at a pine top beside the road, while his father and another hunter looked for other stands. Mr. Brock was more than three-quarters of a mile away. Mr. Bartlett was driving along the road near the boy and had picked up Mr. Thomas, who was walking through the woods. Hearing dogs, Mr. Bartlett stopped the truck, and both he and Mr. Thomas loaded their guns as they were getting out of the truck. Almost immediately, a deer appeared on the left side of the road seventy or eighty yards ahead. Larry Jr.’s pine top was on the right side of the road about halfway between Mr. Bartlett and the deer. Larry Jr. fired at the deer, and almost simultaneously, Mr. Bartlett fired his rifle. The projectile from Mr. Bartlett’s rifle struck Larry Jr. in the back and emerged from his abdomen. He died that evening during surgery in Pine Bluff. Mr. Thomas did not fire his shotgun and did not see Larry Jr. in time to warn Mr. Bartlett. However, the young man was in plain view.

The trial court found “that the proximate cause of this terrible accident was the negligence of the Defendant, Herbert Bartlett, only, and that the negligence of Herbert Bartlett is not imputed to the Defendants, Gerald Brock, Alfred Lee Brock, or Tim Thomas, or either of them.” The trial court also found “[t]hat there is no genuine issue as to any material fact that gives rise to joint or vicarious liability as to the Defendants, Gerald Brock, Alfred Lee Brock, or Tim Thomas, and the Defendants are entitled to a Judgment as a matter of law.” Based on these findings, the trial court granted summary judgment to appellees.

This appeal raises a single point for reversal. Appellants argue that the court erred in granting summary judgment because appellees were vicariously liable either due to their involvement in a joint enterprise or because they were members of an “association” or “club.”

Summary judgment should only be granted where there exists no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Porter v. Harshfietd, 329 Ark. 130, 948 S.W.2d 83 (1997) (citing Ark. R. Civ. P. 56). The evidence is viewed in the light most favorable to the party opposing the judgment, and we resolve all inferences and doubts against the moving party. Id. If the party moving for summary judgment makes a prima facie showing that no issues of fact exist, and the nonmoving party fails to present proof that such issues do exist, then we must affirm the trial court’s grant of a summary judgment. Id. Our review of an order granting summary judgment is limited to the pleading, affidavits, and other supporting documents that the parties file in support of their arguments. Id. These well established principles guide our analysis of the issues in this case.

Joint Enterprise or Venture:

First, we address appellants’ argument that the trial court erred in granting summary judgment to appellees because a joint enterprise existed, imposing vicarious liability upon appellees. To find that a joint enterprise existed, Arkansas law requires only a showing of: (1) a common object and purpose of the undertaking; and (2) an equal right to direct and govern the movements and conduct of each other in respect to the common object and purpose of the undertaking. RLI Insurance Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991). We have stated that the doctrine of joint enterprise is a very complex doctrine and have noted that it has generally “fallen into disrepute.” Neal v. J.B. Hunt Transp., Inc., 305 Ark. 97, 101, 805 S.W.2d 643, 645 (1991) (citing W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 72, at 521 (5th ed. 1984)). In Neal, we said that “[w]hile we are not enamored of the joint enterprise doctrine, it is a part of the common law of this State.” Id. at 101, 805 S.W.2d at 645. We determined that, the proper query for joint enterprise is whether there is enough evidence to show “an equal right to direct and govern the movements and conduct of each other in respect to the common object and purpose of the undertaking.” Id. at 101, 805 S.W.2d at 645.

Appellants argue that appellees formed a joint enterprise by engaging in the one hunt that resulted in Larry Jr.’s death. The evidence shows that the group lodging in Mr. Bartlett’s house may have had a common object and purpose in renting space in the house while hunting deer. However, there is no evidence to prove that any of the hunters had an equal right to direct and govern the movements and conduct of the group, or each other, with respect to the common object and purpose of the undertaking.

Because the essential elements for a joint enterprise have not been proven, we conclude that the trial court did not err in finding that Mr. Bartlett and the other hunters were not involved in a joint enterprise.

Associations and Clubs:

Appellants also argue that the trial court erred in finding no legal basis for the vicarious liability of the hunters because they were members of a hunting club or association. The necessary-predicate for reaching the question whether there is a legal basis for the application of vicarious liability to members of an association is a determination that an association or club was formed at all under the circumstances of this case.

We have defined an “association” as “a body of persons acting together, without a charter, but upon the methods and forms used by corporations, for the prosecution of some common enterprise.” Weaver v. First Nat’l Bank of Memphis, Trustee, 216 Ark. 199, 207, 224 S.W.2d 813, 817 (1949). At issue in Weaver was whether the Menasha Outing Club, an unincorporated association formed as a hunting and fishing recreational club, was authorized to seE property belonging to its members without the appeEant’s consent. It was uncontested that some sort of organization had been formed, and the Club operated under its own bylaws. Id. The court determined that it was appropriate to look to the Club’s bylaws and supporting documents because such evidence “was competent to prove anything that the parties said or did in the formation of the association in order to determine what the nature of the association was . . . .” Id. at 207, 224 S.W.2d at 817 (quoting Harris v. Ashdown Potato Curing Ass’n, 171 Ark. 399, 284 S.W. 755 (1926)). We noted that the Club was organized for the pleasure of its members rather than for profit, with no attempt to incorporate. Id.

While the issue in Weaver is different, the language on associations is instructive. Here, there were no such bylaws or efforts to incorporate or create any formal organization. The group staying at Mr. Bartlett’s house had no membership requirements or elected officers. It was shown that Mr. Bartlett was the sole party with authority over the operation of the camp. The property was owned by Mr. Bartlett, and the hunters abided by his terms without any written or other formalized agreement. The other hunters possessed no ownership rights in the property. Each one was paying $100 a season for the privilege of sleeping and eating at the house, although no joint or communal arrangements had been made. There was no promise of future years’ hunts at a fixed amount, and no promise of a particular place in which to hunt. The hunters understood that Mr. Bartlett did not tolerate drinking alcoholic beverages on the property, although again this was not a formal rule. Unlike the language quoted above on the definition of an association, the hunters did not appear to act upon the methods or forms used by corporations, or upon any formalized methods or forms at all. Neither did they have any apparent right of control or voting rights. Therefore, unlike Weaver, there was no showing of an intent, express or implied, to create a club or association.

In our decision in Harris v. Ashdown Potato Curing Ass’n, supra, we stated that “the mere purchase of space in the curing-house by one who was not otherwise interested in the business would not constitute a membership in the association . . . .” Harris, 171 Ark. at 411, 284 S.W. at 760. Harris is analogous to the case before the court because the depositions and statements indicate that the hunters thought that they were basically purchasing the right to occupy and eat in Mr. Bartlett’s house. There is no indication that they thought they were purchasing a membership in an association that would entitle them to have future rights or interests in the property. There is evidence that the hunters shared meals and that they followed the practice of dividing the kill with the owner of the dogs, as well as sometimes sharing their kill with other hunters. There was no genuine issue of material fact contrary to the showing that these practices were based upon the decisions of each individual hunter.

Both appellants and appellees agree that this court has not imposed vicarious liability on members of an unincorporated association for the negligence of one member of the group solely on the basis of membership in the group. Appellants cite us to two cases that arose out of federal court in support of their argument that Arkansas law favors holding members of an association or club vicariously liable for the tortious conduct of its members. In United Mine Workers v. Coronado Co., 259 U.S. 344 (1922), the Supreme Court determined that the individual members of a local labor union could be held liable for damages resulting from the violent acts of a few of the members. The union operated under a constitution; and it had an express joint purpose, elected representatives, and an organization of principal officers. Id. The Court stated that associations cannot be sued in the organization’s name, but liability may be had against each individual member. Id. The Court then carved out a special category of such organizations in the labor field and concluded that such organizations may be sued in federal court for their tortious acts; however, this decision rests upon the existence of an association. Id.

Next, appellants cite us to Ketcher v. Sheet Metal Workers’ Int'l Ass’n, 115 F.Supp. 802 (E.D. Ark. 1953). This case also involved an unincorporated international labor union. The Ketcher court restated the principle that an unincorporated association may be liable for the tortious acts of its agents, although the association cannot be sued as an entity. Id. These are recognized principles of law and would be applicable to the case at bar only if we determine that 'an association existed with respect to these hunters.

Unlike United Mine Workers and Ketcher, this case does not involve an associated or incorporated group. Rather, in this case, the members had only the rights to occupy Mr. Bartlett’s house and take meals there. They had no written “constitution” or agreement, and the only commonality of purpose was to eat and sleep in a place near hunting woods. Unlike United Mine Workers and Ketcher, the evidence in this case gives us no indication that a club or association, incorporated or unincorporated, was formed.

Viewing the evidence in the light most favorable to the party opposing the motion, we conclude that there is no genuine question of material fact as to the nonexistence of an association or club. The evidence shows that such an entity was neither intended nor created. We affirm the trial court’s finding that appellees were not vicariously liable for the tortious act of Mr. Bartlett on this basis.

Even if an issue of material fact remained as to the formation of an association or the existence of a joint enterprise, it would still not be necessary to return this matter for a jury determination of that question. This court has most frequently applied the principles of vicarious liability in the context where it has found a master-servant or agency relationship, see St. Joseph’s Regional Health Ctr. v. Munos, 326 Ark. 605, 934 S.W.2d 192 (1996); or in automobile cases, see Reed v. McGibboney, 243 Ark. 789, 422 S.W.2d 115 (1967) (holding that there was sufficient evidence “of community of interest and of an equal right to share in the control and operation of the vehicle to warrant the submission to the jury of [the defendant’s] vicarious liability upon either the theory of joint enterprise, or the theory of agency, or both”).

Prosser states that the basis of a finding of imputed vicarious liability is still negligence, although the law has effectively broadened the action by imposing the negligence on an innocent defendant. Prosser and Keeton on the Law of Torts, supra § 69, at 499. To prove a cause of action based on negligence, the plaintiff must not only prove both that he sustained damages and that the defendant was negligent, but also that the defendant’s negligence was the proximate cause of the damages. Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997).

In Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257 (1996), the-court stated that proximate cause must be determined before fault may be assessed and that proximate cause is typically a question for the jury. Id.; see also Ouachita Wilderness Inst., 329 Ark. at 414, 947 S.W.2d at 785. The only time that proximate cause may become a question of law is when “reasonable minds could not differ.” Id. at 370, 915 S.W.2d at 260. The court defined “proximate cause” as “that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” Id. at 370, 915 S.W.2d at 260 (quoting Williams v. Mozark Fire Extinguisher Co., 318 Ark. 792, 888 S.W.2d 303 (1994)).

The Supreme Court of Alabama has considered this issue in Hall v. Booth, 423 So.2d 184 (Ala. 1982). In Hall, the only issue on appeal was whether the members of an unincorporated association were vicariously liable for the negligent shooting of a thirteen-year-old boy during a deer hunt. Id. at 185. The trial court had granted summary judgment with respect to all members of the club, except the member who accidentally shot and killed the boy. Id. The court determined that while the acts of the other hunters who were conducting the hunt may have been negligent, the appellant had the burden of proving that the appellees’ negligence was the proximate, or direct and immediate, cause of the injury. Id. The court concluded that it would not extend the liability of the member who fired the fatal shot to the other members because the appellant had failed to meet his burden of proving the element of proximate causation, and it affirmed the summary judgment. Id.

In this case, the trial court found that the proximate cause of the accident was the negligence of Mr. Bartlett only, and that his neghgence was not imputed to appellees. Viewing the facts in the light most favorable to appellants, even if appellees negligently participated in the illegal act of running dogs to harvest a deer, Mr. Bartlett’s negligent act was the immediate and direct cause of Larry Jr.’s death. The trial court correctly found that Mr. Bartlett’s act was the proximate cause because it broke any causal chain that would be necessary to broaden his liability to appellees.

We conclude that there is no genuine issue of material fact and that the trial court did not err in finding that the liability of Herbert Bartlett did not extend to appellees.

Affirmed.


author: Per Curiam.

text:
    Senaca Maurice BOGAN v. STATE of Arkansas
    CR 97-842
    951 S.W.2d 314
    Supreme Court of Arkansas
    Opinion delivered October 9, 1997

      Jame P. Massie, for appellant.
    No response.
   Per Curiam.

Senaca Maurice Bogan, by his attorney, has filed a motion for reconsideration and affidavit in compliance with this court’s Per Curiam order dated September 11, 1997.

In the motion for reconsideration, Bogan’s attorney, James P. Massie, accepts full responsibility for failing to timely file the record.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional conduct.


text:
    Larry Darnell INGRAM v. STATE of Arkansas
    CR 97-1114
    951 S.W.2d 314
    Supreme Court of Arkansas
    Opinion delivered October 9, 1997
    D. Kirk Joyce, for appellant.
    No response.
   Per Curiam.

The appellant, Larry Darnell Ingram, has filed a motion for belated appeal. His attorney, D. Kirk Joyce, a deputy public defender, states that appellant’s case has been delayed due to recent turnover of attorneys at the Washington County Public Defender’s Office. He explains further that he was assigned appellant’s case after Kent McLemore, another deputy, resigned from the office. According to Mr. Joyce, while the notice of appeal and designation of record was timely filed in appellant’s case, the court reporter did not receive notice to begin transcribing the record. No extensions were sought, and the deadline for filing the record was August 21, 1997. The record was tendered for filing on September 11, 1997.

Because counsel does not admit fault for failing to file the record in a timely manner, we must deny the motion. If the attorney will concede by affidavit that it was his fault that the record was not timely filed, or if other good cause is shown, then the motion will be treated as one for rule on the clerk and will be granted. Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). The attorney is given thirty days from issuance of this per curiam order to respond.

Motion denied.


text:
    Robin K. SCHLESIER v. STATE of Arkansas
    CR 97-399
    953 S.W.2d 575
    Supreme Court of Arkansas
    Opinion delivered October 9, 1997

      Wayne A. Gruber, for appellant.
    No response.
   Per Curiam.

Appellant Robin K. Schlesier, by his attorney, Wayne A. Gruber, has filed a motion for remand to the trial court.

On May 27, 1997, appellant filed a Petition for Writ of Certiorari to complete the record. By Per Curiam Order dated June 16, 1997, appellant’s Petition for Writ of Certiorari was granted. The Writ of Certiorari was issued to the Monroe County Circuit Clerk and to the Court Reporter, Nila J. Keels, returnable on July 16, 1997.

On July 16, 1997, appellant filed a motion for extension of time and for further instruction. By Per Curiam Order dated September 11, 1997, appellant’s motion for extension of time to file the record of testimony was granted and Nila J. Keels, court reporter, was cited to appear before this court on September 25, 1997, to show cause why she should not be held in contempt of this court for her failure to comply in a timely manner with the command of the Writ of Certiorari issued on June 16, 1997.

Nila J. Keels appeared on September 25, 1997, entered a plea of not guilty, and requested a hearing. By Per Curiam Order dated October 9, 1997, this court appointed the Honorable Steele Hays as a master to conduct a hearing, make his findings of fact, and file them with the court. A decision regarding whether Nila J. Keels should be held in contempt will not be made by this court until the master files his findings of fact with the court.

As a result of appellant’s inability to obtain a record of testimony from the court reporter, appellant seeks to remand this matter to the Monroe County Circuit Court to allow counsel to prepare a statement of the evidence or proceedings and to allow the trial court to settle the record, pursuant to Ark. R. App. P.— Crim. 4 and Ark. R. App. P. — Civ. 6(d) & (e). In support of his motion, appellant submits the unsworn affidavit of Nila J. Keels, in which she avers that the record of testimony in appellant’s case on appeal has been lost since December, 1996, and that she has been unable to locate the record as of the date of the affidavit, March 21, 1997.

We find that the court reporter’s inability to submit the record of testimony is good cause to grant Appellant’s motion for remand to the trial court, pursuant to Ark. R. App. P. — Crim. 4 and Ark. R. App. P. — Civ. 6(d) & (e).

The motion is, therefore, granted.


text:
    Robin K. SCHLESIER v. STATE of Arkansas
    CR 97-399
    951 S.W.2d 563
    Supreme Court of Arkansas
    Opinion delivered October 9, 1997
   Per Curiam.

On September 11, 1997, we issued an order for Nila J. Keels, court reporter, to appear before this court at 9:00 a.m., Thursday, September 25, 1997, to show cause why she should not be held in contempt of court for failure to comply in a timely manner with the command of the Writ of Certiorari issued on June 16, 1997.

Nila J. Keels appeared on September 25, 1997. At that time, she entered a plea of not guilty and requested a hearing. Therefore, we appoint the Honorable Steele Hays as a master to conduct the hearing. After the hearing, we direct the master to make findings of fact and file them with the court. Upon receiving the master’s findings, we will decide whether Nila J. Keels should be held in contempt.


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

text:
    Darren SMITH and USA Truck, Inc. v. Dorien GALAZ
    97-281
    953 S.W.2d 576
    Supreme Court of Arkansas
    Opinion delivered October 16, 1997

      Wright, Lindsey & Jennings, by: James M. Moody, Jr. and Troy A. Price, for appellants.

      Gary Eubanks & Associates, by: Willaim Gary Holt, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

Appellee Dorien Galaz was injured when her parked tractor-trailer was struck by another tractor-trailer owned by appellant USA Truck, Inc., and driven by appellant Darren Smith. The accident occurred in the parking lot of a North Little Rock truck stop on July 27, 1994. Galaz sued USA Truck and Smith for negligence, and a jury returned a $300,000.00 verdict in Galaz’s favor. After the trial court entered judgment in the amount of the verdict, USA Truck and Smith filed a motion for new trial on the ground of excessive damages. The trial court denied the motion, from which USA Truck and Smith now appeal, raising two issues: (1) that the jury award is excessive and (2) that the trial court erred in admitting hearsay testimony at trial. Because we conclude that neither argument has merit, we affirm the trial court’s judgment.

1. Excessive jury award

Smith first alleges that the jury award of $300,000.00 was so excessive as to shock the appellate court’s conscience. We have stated that the standard of review we utilize in deciding whether a jury award is excessive is whether the verdict is so great as to shock the conscience of this court or demonstrate passion or prejudice on the part of the trier of fact. Houston v. Knoedl, 329 Ark. 91, 947 S.W.2d 745 (1997); Collins v. Hinton, 327 Ark. 159, 937 S.W.2d 164 (1997). In doing so, we review the proof and all reasonable inferences most favorably to the appellee. Id. In determining whether the amount of damages is so great as to shock the conscience, we consider such elements as past and future medical expenses, permanent injury, loss of earning capacity, scars resulting in disfigurement, and pain, suffering, and mental anguish. Builder’s Transp., Inc. V. Wilson, 323 Ark. 327, 914 S.W.2d 742 (1996). Our determination of whether a jury verdict is so excessive as to shock the conscience is made on a case-by-case basis. Id. We have said that the jury has much discretion in awarding damages in personal injury cases. Id.

In the present case, Galaz was standing in the cab of her tractor-trailer when Smith, who was speeding to make a left turn to back into a parking space, clipped the left front fender of her trailer with his rig. According to Galaz, upon impact, her neck snapped, then she fell back and hit the wall of the sleeper bunk in her rig. She did not go to the doctor immediately because she thought the pain would eventually go away. On August 29, 1994, approximately one month after the accident, Galaz, feeling pain in her left shoulder and experiencing numbness in her left arm, went to see Dr. Carl McKenney, a neurologist. After ordering a CT test, Dr. McKenney recommended that Galaz undergo physical therapy and an EMG nerve conduction. He also prescribed Darvocet, a pain medication, and suggested that she see Dr. Richard Hamer, a neurologist, and Dr. Samuel Finn, a neurosurgeon, for further treatment.

At trial, Galaz offered the deposition testimony of Dr. Hamer, who testified that Galaz had osteoarthritis, a degenerative condition common among truck drivers, a small posterior central disc herniation, and a ruptured disc, a new injury. According to Dr. Hamer, there was no question that the osteoarthritis existed prior to the accident. However, according to Dr. Hamer, with this chronic condition, any added force could rupture the disc — “it [was] like an accident waiting to happen.” It was Dr. Hamer’s testimony that “the thing that really brought [Galaz] to the doctor was the ruptured disc.” Regarding permanent impairment, he testified that Galaz would have a continuous pain requiring Advil, Tylenol, or similar medications, and would have difficulty using her neck.

Dr. James Bland, a neurosurgeon, saw Galaz on November 28, 1994, on February 17, 1995, April 20, 1995, June 8, 1995, and July 20, 1995. During each of these visits, Galaz complained of pain on the left side of her neck and numbness in her left arm. According to Dr. Bland, Galaz’s symptoms were common among those persons suffering from aggravated degenerative disc disease.

The accident in question resulted in $3,334.79 in property damages to the tractor-trailer Galaz was driving. In addition to these damages, Galaz presented evidence that she incurred $7,409.74 in medical expenses. Her weekly average income as a truck driver prior to the accident was $455.54. Galaz returned to work in November 1995, taking a job as a server at Shoney’s. In April 1996, she began working at International House of Pancakes. She assumed full duties as a server with the exception of heavy lifting. She worked between thirty-six and forty hours per week at $2.13 per hour plus tips, which amounted to an extra $400 to $600.00 per month.

When reviewing the facts at bar, it is clear that Galaz was simply an “eggshell plaintiff,” or one who was susceptible to enhanced injury by virtue of an existing condition, which, in this case, was osteoarthritis. See Avery v. Ward, 326 Ark. 829, 933 S.W.2d 810 (1996). Matters of causation and credibility are questions of fact for the jury to decide. Id. Galaz produced evidence that the accident caused her to suffer a ruptured disc. Dr. Hamer testified that Galaz would suffer some permanent loss of normal function in that she would have continuous pain requiring medications such as Advil or Tylenol, and that she would have difficulty using her neck.

Galaz also presented proof of mental anguish as a result of the accident. It was her testimony that she was not happy with her position as a waitress, for she would rather be out on the road as a truck driver where she could enjoy traveling and seeing the country. The accident had an emotional impact on her; she felt as though she had been stripped of her livelihood. She could no longer ride horses, whereas she had been very active in horse shows and horseback riding prior to the accident.

When considering this evidence, we conclude that the proof supported the conclusion that Galaz suffered a permanent injury that will cause her pain and discomfort and that has changed her life in that she can no longer pursue either her chosen career as a truck driver or her preferred social activities such as horseback riding. We cannot say that the verdict of $300,000.00 is so great as to shock the conscience of this court or to demonstrate passion or prejudice on the part of the jury.

2. Hearsay objection

At trial, Galaz offered the deposition testimony of Joe Neal Hilman, a manager of the pancake restaurant where Galaz worked after the accident. Smith objected to the following portion of the deposition being shown to the jury:

QUESTION: Did you observe [Galaz] having any problems or limitations from the injuries that she attributed to the accident?
ANSWER: Observations, no sir. But she explained to me that she had limitations in her capacity as a server, because there is a requirement to take the bus tub from the table and some lifting over — between 15 and 25 pounds. And she explained to me about the accident. And I told her she didn’t have to do it if that was the situation, and that I would take care of it.

On appeal, Smith claims that the trial court erred in admitting this testimony because it was hearsay, and, under A.R.E. Rule 802, the jury could have taken it as proof of Galaz’s limitations in her new job. Smith further claims that the error was not harmless because this evidence “from a seemingly disinterested third party seems likely to have influenced the assessment of damages.” According to Smith, it is “impossible to say that the jury did not credit [Galaz’s] employer on the matter of whether [her] injury prevented her from having a future as a capable and efficient server.”

Galaz argued at trial that the portion of Hilman’s deposition testimony at issue was admissible as an exception to the hearsay rule. Particularly, she argued that the testimony was admissible under A.R.E. Rule 803 (3) as a then-existing physical condition. On appeal, we will not reverse the trial court on a ruling on the admission of evidence absent an abuse of discretion. Warhurst v. White, 310 Ark. 546, 837 S.W.2d 857 (1992). The evidentiary rule at issue, A.R.E. Rule 803 (3), provides as follows:

Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

In the present case, Galaz offered the testimony of Hilman to prove the truth of the matter asserted — that she had physical limitations in her new job after the accident. It is significant that the declarant, Galaz, was present and testified in front of the jury. In fact, she also testified that she could not do any heavy lifting at the pancake restaurant because of the accident. Under these circumstances, we cannot say that Smith and USA truck were prejudiced by the admission of the portion ofHilman’s deposition testimony at issue. Nor can we say that the trial court abused its discretion in admitting this evidence under A.R.E. Rule 803 (3) as evidence of a then-existing physical condition.

We affirm the judgment of the trial court.