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

text:
    Billy C. SKINNER v. R.J. GRIFFIN & COMPANY
    93-2
    855 S.W.2d 913
    Supreme Court of Arkansas
    Opinion delivered June 14, 1993

      Jennifer Morris Horan, for appellant.

      Anderson & Kilpatrick, by: Michael E. Aud, for appellee.
   Robert H. Dudley, Justice.

This issue on appeal is whether the trial court erred in charging the jury on comparative fault. We hold that it was error to give the instruction, and, because the error is not shown to be harmless, we reverse and remand.

The testimony about the accident giving rise to the instruction is virtually undisputed. Plaintiff was an experienced backhoe operator who owned his own backhoe and tractor and subcontracted with general contractors for backhoe work on large construction projects. The defendant, R. J. Griffin & Company, was the general contractor for building Charter Hospital in Maumelle. The defendant general contractor employed the plaintiff as a subcontractor to do most of the excavations for the footings, grade beams, piers, and pilasters in the construction of the hospital. The defendant general contractor had the responsibility of marking the lines where the plaintiff was to dig. The lines were initially marked by tying nylon staging, or mason’s line, between wooden stakes. White crushed lime was then poured over the mason’s line to mark the boundaries. The depth of the excavation was specified. It was the defendant general contractor’s job to see that the subcontractors had a safe place to work, and, therefore, plaintiff contended that it was the defendant’s job to see that the mason’s line, stakes, and other similar objects were picked up before the backhoe operations were started. On several occasions the defendant did not pick up the string, and on one occasion, the defendant’s general superintendent even joked that he would not charge the plaintiff for the string that got wrapped around the axles of his machine.

Plaintiff’s machine had a loader in the front, a tractor in the midsection, a backhoe in the back, and outriggers, or movable booms, with pads, or feet, at the end of each outrigger. The outriggers were used to secure and level the unit. There was an enclosed cab in the midsection which contained a seat that could be pivoted to face either forward or backward. At the time of the accident, the plaintiff had the rear window of the cab folded down, or open.

A fifteen-to-twenty foot length of the mason’s line had been covered with about a quarter of an inch of mud and silt that came from a heavy rain. The line was described as “being tracked over and covered with dirt and mud.” As the plaintiff was preparing to move his machine to reposition the backhoe, he turned forward, lifted the outriggers off the ground, raised the front bucket, picked the backhoe up off the ground, and put the tractor into low gear. As he started to move, the plaintiff was turning the seat to face toward the rear when the mason’s line with a stake caught on the pad of one of the outriggers. The pad was covered with the same mud and silt. The movement of the pad caused the line to stretch until it snapped. It then whipped through the open back window of the cab, struck the plaintiff in the left eye, and caused injury to the eye. The evidence showed that the line was not visible to plaintiff, and, in addition, one could not sit in the backhoe seat and see the outrigger when it was on the ground. In sum, the plaintiff knew that lines had been left about the construction project, but there was no evidence to show that he failed to keep a lookout for such lines.

The defendant requested an instruction on the plaintiff’s comparative fault because the plaintiff had not worn safety goggles. On cross-examination the plaintiff admitted that he had not worn safety goggles, but there was no showing of any safety law or regulation that required the wearing of such goggles, and there was no testimony whatsoever that goggles would have either prevented or reduced the damage to the plaintiff’s eye. There was no showing of what types or kinds of goggles, if any, that were suitable and available for backhoe operators. In fact, there was testimony that backhoe operators could not wear safety goggles that were enclosed on the side because it would prevent them from having the necessary side vision. All but one of the witnesses testified that they had never seen backhoe operators use safety goggles in digging operations. That one witness testified that he had never seen a backhoe operator use safety glasses, unless it was at a paper mill in Pine Bluff, but even that witness did not state that glasses would have prevented the injury. There was no showing of the sizes, shapes, or strengths of goggles available, and there was no showing of whether the line and stake hit the plaintiff from the front or from the side, or whether that would have made a difference in the amount of damage to the eye. In short, there was no testimony whatsoever that safety goggles would have prevented or reduced the extent of the plaintiff’s injury, and yet, the trial court gave the standard A.M.I. comparative fault instruction over the plaintiff’s objection.

The plaintiff appeals and argues that the trial court erred in giving the comparative fault instruction since the record is devoid of any evidence that would establish fault on the plaintiff’s part or establish a causal connection between the plaintiffs failure to wear safety glasses and the injury he sustained. The argument is well taken. Comparative fault is an affirmative defense, ARCP Rule 8(c), and Ark. Code Ann. § 16-64-122 (1987), in the pertinent part, provides:

Comparative Fault.

(a) In all actions for damages for personal injuries ... in which liability is predicated upon fault, liability shall be determined by comparing the fault chargeable to the claiming party with the fault chargeable to the party . . . from whom the claiming party seeks to recover damages.
(c) The word “fault” as used in this section includes any . . . omission . . . which is a proximate cause of any damages sustained by any party. (Emphasis added.)

Under the express language of the statute there must be a determination of “proximate cause” before any “fault” can be assessed against the claiming party. Baker v. Morrison, 309 Ark. 457, 829 S.W.2d 421 (1992). While the question of proximate cause is usually a question for the jury, when the evidence is such that reasonable minds cannot differ, the issue becomes a question of law to be determined by the trial court. Wilson v. Evans, 248 Ark. 101, 679 S.W.2d 205 (1984). Here, reasonable minds cannot differ: The evidence at trial did not establish a causal connection between the failure to wear safety goggles and the damage to plaintiff’s eye, and, accordingly, the trial court erred in giving the instruction.

Without a citation of a case, or any other authority, the defendant asks us to hold that there was such a causal connection because “[i]t takes no expert to demonstrate that any decent protective eyewear would have prevented the string from striking appellant’s eye, in which event, no such injury could have possibly occurred.” We cannot so hold because here the jury had no basis, except for pure guesswork, to find that safety goggles would have totally prevented the injury or to what degree they would have reduced the injury. The proof in this case did not show what types of goggles or glasses were available or practical for a backhoe operator to wear. Further, assuming goggles were available and practical to wear, the proof did not show whether they would have prevented the string or the stake from entering from the side of the glasses; what the tensile strength of such glasses was; whether the whipping force of the string and stake, if coming from the front, would have broken or shattered the glasses; to what extent, if any, the glasses would have reduced or eliminated the injury if they had only slowed the string whipping from the side; or to what extent, if any, the glasses would have reduced the injury if they had not shattered or broken if the force was from the front. Thus, a causal connection between the failure to wear some unspecified type of goggles and the injury to plaintiffs eye was not established beyond mere conjecture and speculation. In Cates v. Brown, 278 Ark. 242, 247, 645 S.W.2d 658, 661 (1983), we said that “conjecture and speculation cannot be permitted to replace proof.”

We hold that the trial court erred in giving the instruction, but the case was submitted to the jury on a general verdict and the plaintiff is not able to show that he suffered any prejudice by the giving of the erroneous instruction. It is possible that the jury merely thought the plaintiff failed to prove negligence on the part of the defendant, and the erroneous instruction concerning comparative fault did not enter into the deliberation. In an identical case involving the giving of an erroneous instruction on comparative fault, we held we must reverse and remand for a new trial even though prejudice was not proved. Little Rock Electric Contractors, Inc. v. Okonite Co., 294 Ark. 399, 744 S.W.2d 381 (1988). The holding was based on our cases that provide when an error is shown in an instruction given, it is presumed that the error was prejudicial until the opposite is established. See, e.g., Safeway Stores, Inc. v. Gross 206 Ark. 240, 398 S.W.2d 669 (1966). Even so, we are aware that in other cases involving the giving of erroneous instructions we have said that error is no longer presumed to be prejudicial. See, e.g., Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589,711 S.W.2d 659 (1986). We acknowledge our inconsistent standard and now seek to prevent any further confusion. Henceforth, in cases involving a trial court’s giving of an erroneous instruction involving the trial mechanism to be used in deciding either a civil or criminal case, we will not require the appellant to demonstrate prejudice. Such a requirement is often an impossible burden, and the requirement of an impossible burden, in effect, renders the requirement of correct instructions on the law meaningless. As recently said by the Supreme Court of the United States, “A reviewing court in such a case can only engage in pure speculation-its view of what a reasonable jury would have done. When it does that, the wrong entity judges the defendant guilty.” Sullivan v. Louisiana, No. 92-5124 (June 1, 1993). Of course, an appellee may demonstrate that the giving of an erroneous instruction was harmless, and we would affirm. Some examples of this are where the jury demonstrably was not misled because the jury rejected the theory of the erroneous instruction, see, e.g., Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983), or where the erroneous instruction was obviously cured by other correct instructions, see, e.g., Moore v. State, 252 Ark. 526, 479 S.W.2d 857 (1972).

Reversed and remanded.

Hays and Brown, JJ., dissent.

Steele Hays, Justice,

dissenting. The majority holds that the defendant must present specific evidence of negligence by the plaintiff in order to be entitled to an instruction on comparative negligence. I respectfully disagree and suggest that approach seriously undermines the purpose and intent of comparative negligence. The statute itself is couched in the broadest possible language:

In all actions for damages for personal injuries or wrongful death or injury to property in which recovery is predicated upon fault, liability shall be determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party or parties from whom the claiming party seeks to recover damages.

See Ark. Code Ann. § 16-64-122 (1987).

Comparative negligence is the successor by statute to contributory negligence, defined as

“Contributory negligence” is the doing of something by plaintiff which a person of ordinary care and prudence would not have done under the same or similar circumstances, or failure of plaintiff to do something which a person of ordinary care and prudence would have done under same or similar circumstances, and which conduct on part of plaintiff contributed, however slightly, in whole or in part, to occurrence and damages, and without which damages would not have been sustained.

Dempsey v. United States, 176 F. Supp. 75 (D.C. Ark. 1959).

Certainly, comparative negligence is an affirmative defense which must be pled, and the burden of proof is on the defendant to prove comparative negligence, but those are issues for the jury. Wasson v. Warren, 245 Ark. 719, 434 S.W.2d 51 (1968). And that proof can, and often does, arise by reasonable inference from the circumstances of the case. Headrick v. H.D. Cooperage Co., 97 Ark. 553, 134 S.W. 957 (1911). Only when it can be said with certainty that reasonable minds could come to no other conclusion should the issue be taken from the jury.

The dynamics of this incident are that Skinner alone set in motion the forces that resulted in his injury. In that setting, especially, the defendant is entitled to the comparative negligence instruction. The majority asserts that there is no evidence that Skinner failed to keep a lookout for lines of string. But direct evidence of that issue is not required, as there was ample evidence that lines were strung all around the job site and Skinner was well aware of it. That is sufficient.

Richison v. Boatright, 238 Ark. 579, 383 S.W.2d 287 (1964), is illustrative. The plaintiff was injured when he stepped through a piece of unsupported roofing felt and fell against the ceiling joists. Plaintiff appealed a verdict for the defendant, arguing the jury should not have been instructed on contributory negligence because there was no evidence to justify the instructions. Justice George Rose Smith wrote:

On the issue of negligence the jury could have found that Richison was at fault. He had assisted in putting down the decking and must have known that the ends of the boards were staggered. The jury could have found that he was careless in walking too close to the edge, even if the protective board referred to by McKinney had somehow been removed. On this point the case is similar to Headrick v. H.D. Cooperage Co., 97 Ark. 553, 134 S.W. 957, where the plaintiff stepped into a hole in the floor of a sawmill. He knew that the hole was there, but its exact location had been obscured by an accumulation of sawdust. We held that his contributory negligence was a matter for the jury.

It seems clear that this is a case where reasonable minds could readily infer from the circumstances that Skinner could have contributed to his own injury in a variety of ways: by not wearing goggles, by not closing the rear window of his backhoe, which he chose to leave open, by not keeping a better lookout, or not exercising reasonable care for his own safety. Even the means by which he positioned and operated his backhoe were factors the jury could have considered. Only if it could be said that under no conceivable circumstances could Skinner have contributed to his own injury would it have been proper to refuse the comparative negligence instruction. I believe the trial court was correct and should be affirmed.

Brown, J., joins in this dissent.

Robert L. Brown, Justice,

dissenting. The issue is whether Skinner contributed to his own eye injury by not wearing safety goggles. I view this as a matter for the jury to decide, not for the majority to dictate as a matter of law. With its decision, the majority reverses a jury verdict and cites the trial judge for error in giving the comparative fault instruction. I disagree and would affirm the verdict.

There are two circumstances in this case that should be taken as givens and should not be the subject of disagreement. Unhappily, they are. The first is that when a person operates a backhoe on a construction site without the protection of a cab window, there is always the risk that debris in the form of dust, dirt, rocks, or other foreign matter will enter the cab and afflict the driver.

The second is that goggles offer some protection against foreign matter striking the eye.

The idea that goggles are worn for safety reasons is generally accepted in our society. Witness two definitions of the generic term, goggles, in standard dictionaries:

A pair of large, usually tinted spectacles with shielding sidepieces worn as a protection against wind, dust, or glare.

The American Heritage Dictionary of the English Language (1971).

Large spectacles equipped with special lenses, protective rims, etc. to prevent injury to the eyes from strong wind, flying objects, blinding light, etc.

The Random House Dictionary of the English Language (1967).

Thus, it strains belief that the majority concludes that safety goggles, which by common definition include side pieces and rims for protection against flying objects, would not have afforded Skinner some relief. The majority, however, states:

While the question of proximate cause is usually a question for the jury, when the evidence is such that reasonable minds cannot differ, the issue becomes a question of law to be determined by the trial court. Wilson v. Evans, 248 Ark. 101, 679 S.W.2d 205 (1984). Here, reasonable minds cannot differ: The evidence at trial did not establish a causal connection between the failure to wear safety goggles and the damage to plaintiffs eye, and, accordingly, the trial court erred in giving the instruction.

Is the majority really saying that the fact that goggles protect the eyes must be proven? Do we really need expert testimony to make a case on the point that failure to wear goggles can lead to eye injury? Does that also mean that circumstances such as the fact that shoes protect one’s feet and gloves protect one’s hands must also be proven in a court of law to be considered? I cannot conceive that that is the law. Surely these are facts not subject to reasonable dispute of which judicial notice may be taken. Ark. R. Evid. 201; see, e.g., West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608 (1991) (judicial notice of the Physician’s Desk Reference may be taken for some purposes).

This is not a case such as we had in Baker v. Morrison, 309 Ark. 457, 829 S.W.2d 421 (1992), where we held that proof was necessary to show a causal connection between failure to wear seatbelts and injury to the plaintiffs in a car accident. In Baker we could not determine, short of proof, whether the absence of seatbelts contributed to the plaintiffs injuries in the wreck. In the case before us, there is no doubt that safety goggles would have covered the eyes and thwarted injury, at least to some extent.

Billy Skinner was a subcontractor and his own boss. It was his decision either to wear or not to wear safety goggles on the job. There was testimony that at one job — the Pine Bluff paper mill — backhoe operators did wear goggles. Skinner chose not to do so.

In our society we all take risks on a daily basis. At times we take these risks because to do otherwise is inconvenient and bothersome. For example, a homeowner may mow the grass over rocky terrain without goggles and be hit in the eye with gravel. An adult may ride a moped without a helmet and be injured in a fall. A teenager may weed a garden without gloves and develop poison ivy. We all recognize that we cause our injuries in part in such situations.

As the instruction says, juries are not supposed to set aside common knowledge and everyday experience. AMI 102. Nor should judges. I would acknowledge some causal relationship between Skinner’s conscious decision not to wear goggles and the eye injury and leave the matter to the jury. Because of that, I respectfully dissent.

Hays, J., joins.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Billy DILLARD v. STATE of Arkansas
    CR 93-47
    855 S.W.2d 909
    Supreme Court of Arkansas
    Opinion delivered June 14, 1993

      O. Byrum Hurst, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Billy Dillard raises four points of error in this appeal from his conviction of the crime of rape, resulting in a sentence of forty-five years in the Department of Correction. We affirm the judgment.

I

Appellant’s second point challenges the sufficiency of the evidence, which we deal with first. The prosecutrix testified that on May 30,1992, she and her boyfriend were watching television when the appellant, whom they both knew, arrived. She had seen the appellant socially three or four times previously. She testified that while she and the appellant were on an errand for her boyfriend the appellant grabbed her by the hair and put a knife to her throat. He then drove to an abandoned house where she was raped and sexually assaulted.

Later at a dwelling in Hot Springs she said she was raped again, bound hand and foot and left while the appellant took her car to hide it. While appellant was away she managed to free herself and go next door, where she reported the rape and the police were called.

The appellant readily admitted the events of the evening but insisted that the sexual intercourse and related acts were wholly consensual and that the rope was used because she wanted to have sex while tied up. A physician testified to having performed a sexual assault evaluation on the prosecutrix and to finding her upset and tearful, a red and irritated vaginal area, with the presence of sperm, and rope burns on her wrists. The neighbors, Mr. and Mrs. Robert Miller testified that when she knocked at their door she was hysterical, crying and shaking uncontrollably, with her hands tied behind her back.

It was for the jury to determine the credibility of the witness, Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981). While there was corroboration in this case, the testimony of the prosecutrix alone was sufficient to support the verdict. Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990); Lackey v. State, 283 Ark. 150, 671 S.W.2d 757 (1984).

II

Appellant’s initial point is that the trial court erred in failing to set aside the verdict based on an allegation that a juror failed to heed an admonition not to discuss the case with third persons.

The jury concluded its deliberations and was dismissed on September 23,1992. On the following day it came to the attention of counsel for appellant that there had been a communication between a juror and a third party, Joe LaValle. A motion to vacate was filed accompanied by an affidavit signed by one Kathi Parker, asserting that her father, Joe LaValle, had communicated by CB radio during the trial with Janet Norris, a juror. The affidavit maintained that earlier that same day Parker had told her father that the testimony against appellant had been inconsistent, that LaValle told the juror his daughter thought appellant was innocent, that after talking to the juror, LaValle told his daughter “It doesn’t look good for him.”

There were counter affidavits from Janet Norris and LaValle stating that neither of them had discussed the merits of the case. La Valle’s affidavit also stated:

My daughter told me she is in love with Billy Dillard and I told her many times his case didn’t look good. If I said that to her on the evening of September 22, 1992, I was expressing my opinion which was in no way based on anything said to me by Janet Norris,... or anyone else.

Appellant relies wholly on the affidavit of Kathi Parker, as no evidence other than the three affidavits was submitted to the trial court. The burden was on the appellant to prove that a reasonable possibility of prejudice resulted from juror misconduct and prejudice is not presumed in such situations. Larrimore v. State, 309 Ark. 414, 833 S.W.2d 358 (1992). Whether unfair prejudice occurred is a matter for the sound discretion of the trial court. Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990). From those affidavits, the only proof before it, the trial court could readily have concluded that Ms. Parker’s motives were not unbiased and that the communication between juror Norris and Joe LaValle did not relate to the trial. We find no abuse of discretion under these circumstances.

Ill

On motion of the prosecution, and over the objection of the appellant, the jury was permitted to view the scene. Appellant maintains this was error since the alleged assaults occurred on May 30, 1992, whereas the jury viewed the scene on September 22 when weeds and grass were much higher. However, we find no objection on this ground in the abstracted record. The objections to the trial court were the possibility of inclement weather, the logistics of transporting the jury, the adequacy of existing photographs of the scene, and the appellant’s right to be present, with inevitable prejudice in that the jury would see him handcuffed. These points are abandoned on appeal and the point now argued was not preserved. Thus, we find nothing to address. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990).

IV

Appellant’s final point relates to the rape shield statute, Ark. Code Ann. § 16-42-101 (1987). Appellant relied on consent as his defense and prior to trial filed a motion for an in-camera hearing to determine the relevance of prior sexual conduct allegedly occurring between the prosecutrix and the appellant pursuant to the statute. However, at the hearing a discussion between counsel and the trial court reflects that counsel for the appellant effectively withdrew the motion and proffered no evidence of prior sexual conduct. It is clear that no ruling on the motion was given or sought:

THE COURT: All right, now, we’ve got what, Motion for In Camera hearing?
MS. HARRIS (Defendant’s Attorney): Yes, sir. I filed that motion but since I filed that motion, I have reread the Rape Shield Statute and I found a case. I showed the case to Ms. Hearnsberger and what I understand from the Kemp case is that I am prohibited from questioning either Mr. Dillard or the victim about anything that may or may not have happened between the two of them prior to May 30th of 1992, let’s say for example, May the 29th.
THE COURT: All right.
MS. HARRIS: I cannot do that. However, what the Kemp case stands for is that I can question Mr. Dillard, should he take the stand, about what happened between him and the victim on the day in question, on May 30th. However, I cannot cross examine her about it. He can only testify as to what happened between the two of them on that date.
THE COURT: Okay.
MS. HEARNSBERGER: In other words, during the res gestae of the crime is the way I understand it.
MS. HARRIS: That’s correct.
MS. HEARNSBERGER: And we agree with that.
THE COURT: Apparently you’re getting prepared then?
MS. HARRIS: Yes, sir.
MS. HEARNSBERGER: We would also make a Motion in Limine on our behalf though that they be admonished and their witnesses admonished from testifying to any kind of prior sexual activity, if any exists, pertaining to the victim. Just the Rape Shield Statute.
MS. HARRIS: That’s absolutely correct.

Appellant now maintains that the statute mandates a hearing “no later than” three days before trial, whereas, the hearing in this instance was only one day prior to trial. However, we find no complaint on that score before the trial court, nor any request for additional time. Since the appellant plainly abandoned any intent to offer evidence under the rape shield statute the timing of the hearing is of no import.

Appellant now contends the colloquy between counsel for the state and the appellant was tantamount to a ruling by the trial court, since it allowed counsel for appellant to believe that she could not introduce evidence of prior sexual conduct. But we are not prepared to speculate from that brief exchange what was in the mind of the trial court. We can say that no ruling, tacit or otherwise, was requested. It was appellant’s duty under § 16-42-101 to present such proof as he deemed pertinent to his defense and none was forthcoming.

For the reasons stated, the judgment is

AFFIRMED.


text:
    RAZORBACK CAB OF FORT SMITH, INC. v. Richard H. MARTIN
    92-1459
    856 S.W.2d 2
    Supreme Court of Arkansas
    Opinion delivered June 14, 1993

      Skinner Law Firm, P.A., by: Jack Skinner, for appellant.

      Karr, Hutchinson & Stubblefield, by: Charles Karr, for appellee.
   Steele Hays, Justice.

Appellee Richard Martin sued appellant Razorback Cab of Fort Smith, Inc., for personal injuries sustained by Martin when he was struck by a Razorback cab. The jury trial ended in a verdict for Razorback, but the trial court granted Martin’s motion for a new trial. On appeal we sustain Razorback’s contention that the trial court erred in setting aside the verdict.

Around 6:30 on the morning of January 30, 1990, while it was still dark, Richard Martin was riding his bicycle west on Rogers Avenue in Fort Smith. Martin was in the right hand lane next to the curb. Rogers Avenue has four lanes, two each for opposing traffic and a fifth lane in the middle. Martin was wearing dark clothing except for a reflective jogger’s vest attached to his back pack. There were no lights on his bicycle but there were reflectors on the front and rear and on the spokes and pedals of the bicycle. The rear reflector, situated under the seat, was obscured by a carrying rack over the rear of the bicycle.

The collision occurred, by some accounts, when Morgan moved to the right lane and struck Richard Martin. On striking Martin, Morgan swerved to his left and in so doing struck the left rear of Sargeant’s vehicle which was still in the left-hand lane. Richard Martin suffered injuries and was taken to the hospital.

Richard Martin filed suit against Razorback Cab, seeking damages of $50,000. At the trial all of the aforementioned witnesses testified except O.J. Morgan, who had died. The jury returned a verdict for Razorback, but on a motion for a new trial filed by Richard Martin, the trial court set aside the jury verdict upon a finding that there was no evidence that Morgan could not see the bicycle, that Morgan was negligent in failing to maintain a proper lookout. Razorback appeals from that order.

The law affecting the granting of a new trial and appellate review of that decision is settled. A trial court may not substitute its view of the evidence for that of the jury and grant a new trial unless the verdict is clearly against the preponderance of the evidence. Ark. R. Civ. P. 50(a); Turrise v. Crane, 303 Ark. 576, 798 S.W.2d 684 (1990). The test we apply on review on the granting of the motion is whether the trial court abused its discretion. Scott v. McClain, 296 Ark. 527, 758 S.W.2d 409 (1988); Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982). A showing of abuse is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Turrise v. Crane, supra; Worthington v. Roberts, 304 Ark. 551, 803 S.W.2d 906 (1991). In Worthington v. Roberts, supra, we noted that “abuse of discretion in granting a new trial means a discretion improvidently exercised,” i.e., exercised without due consideration.

There were four witnesses to the accident. Ronnie Martin was a passenger in the front seat of Morgan’s cab. In the right-hand lane was Danny Walden, the last of the three vehicles westbound at the time of the accident. Finally, there was John Sargeant, who was in front of Morgan’s cab traveling in the left-hand lane.

In addition to the eyewitnesses the testimony of the investigating officer was to the effect that the speed light was 40 miles per hour, that the bicycle had no lights, front or rear, and while “there was a red reflector underneath the bicycle seat, it would not be visible to the rear.” He testified that riding a bicycle at night in Fort Smith without a light is illegal.

One discrepancy in the testimony relates to whether Morgan was in the left-hand lane and struck Martin momentarily after moving to the right hand lane, or whether Morgan was in the right-hand lane for some blocks before striking Martin. Ronnie Martin, Morgan’s passenger, testified that Morgan never changed lanes, that he was in the right-hand lane from the time he entered Rogers Avenue at 74th Street, several blocks east of the point of impact. Danny Walden, also traveling west in the right hand lane, testified to the contrary that the accident happened when Morgan changed lanes and seconds later struck Richard Martin.

The jury may have resolved this conflict on the side of Walden’s testimony and determined, not inappropriately, that the bicycle was more visible directly from behind than from the side and that Morgan was either not at fault for failing to observe the unlit bicycle or, at most, was guilty of negligence no greater than Richard Martin’s in accordance with the comparative negligence instruction. In fact, the jury could have inferred from either the testimony of Walden or the officer that the visibility of the bicycle was decidedly restricted from either the side or the rear. Walden: “When I saw the bicyclist, it was too late to avoid an accident, as it was just almost instantaneous.” Ronnie Martin’s testimony is less emphatic: “When I first saw the flickering of the pedals, [Morgan] was far enough behind to have stopped without hitting [Richard Martin]. When I got closer and the lights from the oncoming traffic illuminated it, I could tell it was a person on the bicycle. We were far enough behind that [Morgan] could have stopped the cab at the speed he was driving.”

John Sargeant, driver of the forward cab, testified:

Q: —Mr. Sargeant, if I may, and that is, immediately before the accident, did you see anything, light reflector, flash, flicker, anything, that indicated to you that there was a bicyclist in the lane next to you?
A: No, the reason being, is that the traffic, and it was heavy coming out of Fort Smith, coming over the brow of the hill, at an approximate 64th and Rogers. It was coming directly out over the brow of the hill in front, swinging over to the left-hand side of me; on the right-hand side is the side of the hill and it was black. And there was no possible chance for anybody, not even a cab, to be able to see anything there, most especially dark clothing, most especially no lights.
Q: Before you changed into the outside lane, going west, was there any reason that you changed into the outside lane, going west, right then, other that it was closer to get on to the interstate?
A: No, that was the sole reason I would have, to get over there, and at the time I changed lanes, it was perfectly safe, there was no traffic close enough to interfere with my change, whereas there may have been, had I waited till I got to the 540 and Rogers.
Q: You did not change lanes because of the bicyclist?
A: No, had I not changed lanes, I would have hit him, there was no way to see that gentleman.

In sum, we cannot agree with the trial court that the verdict was clearly against the preponderance of the evidence. To the contrary, there was testimony of a substantial nature which quite plainly supported the verdict, and which was at least the equivalent of any countervailing evidence. Having only the trial court’s comment to the effect there was no evidence to support the verdict, which we cannot reconcile with the testimony of Sargeant and with other circumstantial evidence, we are of the opinion that the trial court substituted its view of the evidence in lieu of the jury and a manifest abuse of discretion resulted.

Reversed and dismissed.


author: Tom Glaze, Justice.

text:
    Billy Dale JOHNSON, Billy Lynn Johnson and Wife, Kimberly Johnson v. Robert L. JONES
    92-1327
    855 S.W.2d 315
    Supreme Court of Arkansas
    Opinion delivered June 14, 1993
    [Rehearing denied July 19, 1993.]

      Daggett, Van Dover & Donovan, by: Joe R. Perry, for appellants.

      Murrey L. Grider, for appellee.

      Newbern, J., not participating.

   Tom Glaze, Justice.

Appellee Robert Jones brought this lawsuit for injuries he sustained when removing brick veneer from a house owned by appellant Billy Dale Johnson. Jones also sued Billy Dale’s son, Billy Lynn Johnson, and Billy Lynn’s wife, Kimberly, who is Jones’s daughter. Billy Lynn and Kimberly resided in the house rent free at the time Jones was injured. In his complaint, Jones alleged that Billy Dale, Billy Lynn and Kimberly, or one of them, failed to provide Jones a safe place to work, which resulted in the eventual loss of his left foot and leg three inches above the ankle. At trial, a jury returned a verdict in favor of Jones from which appellants bring this appeal. Appellants raise six points for reversal, but we address only one since we agree the trial court erred in failing to grant their motions for directed verdict. Upon holding that appellants’ directed verdict motions should have been granted, we must reverse and dismiss, and there is no need to reach appellants’ other arguments.

We agree with the appellants that the case of May Constr. Co. v. Frick, 253 Ark. 642, 488 S.W.2d 3 (1972), is controlling. There, May Construction was constructing a building on the premises where Mrs. Frick resided. During the course of work, May Construction had to pump water from a creek bed located on the premises, and in doing so, it placed two hoses across a sidewalk which Frick had routinely traversed on prior occasions. Frick testified that, when walking on the sidewalk the day she fell, she first saw the hoses about twenty-five feet in front of her. As she approached the hoses, Frick attempted to step over them, but tripped on one, causing her to fall and to sustain an injury. Frick sued May Construction alleging May was negligent for having placed the hoses across the sidewalk. She was awarded a verdict at trial, but this court reversed on appeal. In reversing, this court stated it could not conscientiously say that May’s conduct in laying the hoses across the sidewalk was a proximate cause of Mrs. Frick’s fall. We defined proximate cause as one which, in a natural and continuous sequence, produces damage. AMI 501 (Civil, 1965).

The Frick court concluded that Mrs. Frick was aware of the hoses, thought she could step over them, but failed to do so due to her own miscalculation. In these circumstances, the court held May Construction’s actions did not proximately cause Frick’s injury. See also Kubik v. Inglehart, 280 Ark. 310, 657 S.W.2d 545 (1983).

In the present case, Jones testified that, on the day he went to remove the brick veneer on Billy Dale Johnson’s house, he first went inside the house, but to gain entrance through the right front door, he had to move a television to the left side of the porch on which the television was located. Jones later removed brick from three sides of the house, and then proceeded to work on the front side. He related that he again saw the television on the porch when he ascended the steps to the porch and walked past it to get to the location where he began to remove bricks. Jones said that, as he tapped on the corner of the bricks, the remaining front wall of bricks began to fall and “fell faster than I expected it to.” He further testified that “[I]f the wall had come down like I had planned it to, I don’t think it would have made any difference where the t.v. was at.” Instead, Jones said that, when he tapped on the brick, the entire wall came down, so he whirled to jump and in doing so, hit the corner of the television. He then rolled off the porch onto the ground.

From Jones’s own testimony, he was well aware of the television’s presence and location on the porch when he commenced removing the front wall of bricks. While the television was passively involved in Jones’s misfortune, it was his own miscalculation as to the timing and speed of the falling brick wall that proximately caused his injury. For this reason, we must reverse and dismiss.

Newbern, J., not participating.


author: Donald L. Corbin, Justice.

text:
    James E. WILLIAMS v. STATE of Arkansas
    93-129
    856 S.W.2d 4
    Supreme Court of Arkansas
    Opinion delivered June 14, 1993

      Daniel D. Becker, for appellant.

      Winston Bryant, Att’y Gen., by: TeenaL. White, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

This appeal arises from the circuit court’s denial of appellant James E. Williams’ motion to transfer his three aggravated robbery charges to juvenile court. At the time of the robberies appellant was fifteen years old. We find no error in the circuit court’s decision, and we affirm.

Appellant was charged with three counts of aggravated robbery, two counts of aggravated assault, one count of theft of property worth over $2,500.00, fleeing, and criminal mischief in the first degree as a result of incidents occurring on November 15, 1992. The charges were filed in Garland County Circuit Court by way of an information on November 16,1992. On November 25, 1992, appellant filed a motion to transfer the charges to juvenile court pursuant to Ark. Code Ann. § 9-27-318 (Supp. 1991). After a hearing on December 21,1992, the circuit court granted the motion as to all charges except the three aggravated robbery charges. The order transferring the two counts of aggravated assault, and one count each of theft, fleeing, and criminal mischief in the first degree to juvenile court and denying the motion to transfer the three counts of aggravated robbery was filed on December 21, 1992. Appellant appeals the denial of the circuit court to transfer his three counts of aggravated robbery to juvenile court.

We do not reverse a circuit court’s denial of a motion to transfer a case to juvenile court unless we determine the denial was clearly erroneous. Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991). Section 9-27-318 provides in pertinent part:

(b)(1) When a case involves a juvenile age fourteen (14) years or fifteen (15) years at the time the alleged delinquent act occurred, the prosecuting attorney has the discretion to file charges in circuit court for an alleged act which constitutes capital murder, murder in the first degree, murder in the second degree, kidnapping in the first degree, aggravated robbery, rape, or battery in the first degree.
(2) The circuit court shall hold a hearing within ninety (90) days of the filing of charges to determine whether to retain jurisdiction of the juvenile in circuit court or to waive jurisdiction and transfer the case to juvenile court.
(e) In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
(f) Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.

(Emphasis added.)

Appellant contends the aggravated robbery charges were improperly retained in the circuit court solely because of the nature of the charge. We disagree. Appellant had the burden of going forward with the proof to show a transfer was warranted under the statute. Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991). The circuit court made its decision after a hearing at which a Juvenile Intake Officer testified for the state and introduced a faxed copy of appellant’s file from the Probation Department of Alameda County, California. Appellant chose to rely on the proof presented by the state and did not introduce any proof in his favor.

The circuit court order denying appellant’s motion to transfer the aggravated robbery charges provided in pertinent part:

[t]hat the Juvenile Authorities of the State of Arkansas have no programs which would benefit the Defendant, therefore the motion to transfer the three counts of Aggravated Robbery to Juvenile Court is hereby denied.

Although the circuit court is not required to make specific findings of fact in a juvenile transfer case, it is helpful to our review if the court has made findings of fact. Vickers, 307 Ark. 298, 819 S.W.2d 13. During the hearing, the circuit judge made the following findings:

Not only is it clear and convincing but it’s the only credible evidence that we have, and that is that — and the Court is reviewing the Affidavit attached to the Information — and it shows that a handgun was presented to two ladies on November the 15th, Sandra Jones and Joyce Clark.
That the statement was made, “I’ll shoot. Give me your purses. That a small handgun was pointed at them. They delivered up their purses. Then approximately 30 to 45 minutes later, Charles Jordan reported that he was putting some items into the back of his trunk and that these words were — or words to this effect, “Give me your wallet or I’ll kill you.” Mr. Jordan delivered up his money.
And then again these words, “Give it to me or I will kill you.” And he pulled the money out of the clip and said he wanted to keep the clip. Then the person stated he wanted Jordan’s keys. He gave him his keys to his 1992 Cadillac and then he took his car.
Then what followed was an attempt to stop the car. It was pursued and the driver lost control and drove it into the side of a dwelling at 100 Perry Street. Apparently the building was struck so hard that a jukebox was turned over against James Haywood and Marilyn Igee. They were transported by ambulance for medical treatment. And then, of course, there was an identification.
So, there’s no doubt that fact number one — here it’s not the seriousness of the offense but the seriousness of the offenses. Violence was involved even in the fleeing.
And then referring back to the assessment statement, it shows that there was an assault on two residences [sic] in a program that he was in.
So, apparently in California, there was an adjudicated assault within a program, and that to me demonstrates a repetitive pattern.
All the prior history, the character traits would indicate to me that rehabilitation has not worked, would not work, and that society needs to be protected.

The court need not give equal weight to each factor in juvenile transfer cases and it is permissible to give substantial weight to the information. Walker v. State, 304 Ark. 393, 803 S.W.2d 502, reh’g denied, 304 Ark. 402-A, 805 S.W.2d 80 (1991). The circuit judge properly considered each of the three factors and determined that there was violence employed in the commission of the offenses, appellant had a repetitive pattern of adjudicated offenses, and that based on appellant’s character traits rehabilitation would not work. Therefore, the circuit judge determined the aggravated robbery charges should be tried in circuit court. Given the fact that the circuit judge considered all the factors and appellant failed to offer any proof in his favor, we are unable to say the circuit court’s decision was clearly erroneous or was not supported by clear and convincing evidence. Therefore, we affirm.


author: Robert L. Brown, Justice.

text:
    JUNCTION CITY SCHOOL DISTRICT and Arkansas Department of Education, et al. v. Margaret ALPHIN, et al.
    92-1274
    855 S.W.2d 316
    Supreme Court of Arkansas
    Opinion delivered June 14, 1993

      Winston Bryant, Att’y Gen., by: Tim Humphries, Senior Asst. Att’y Gen.; Elizabeth Boyter Murdock, Department of Education; and Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Dan F. Bufford and Brian Allen Brown, for appellants.

      Mitchell, Blackstock, Simmons & Barnes, by: Clayton R. Blackstock, Marcia Barnes, and David L. Ivers, for appellees.
   Robert L. Brown, Justice.

The appellees are teachers with the appellant Junction City School District in Union County. They filed a complaint in Pulaski County Circuit Court against the School District and appellants Arkansas Department of Education and Burton Elliott, its director (“Department”), alleging that during the 1987-88 school year the School District distributed an increase in net current revenue to certified personnel contrary to the express provisions of one section of Act 34 of 1983, codified as Ark. Code Ann. § 6-20-319(4) (1987). The appellees also alleged that the Department failed to terminate state aid as it was obliged to do when the School District did not comply with that Act. The trial court agreed with the appellees’ contention and awarded them damages to be paid by the School District. It further concluded that the Department should deny state aid to the School District because of noncompliance with the statute.

The School District and Department mount several arguments on appeal, including lack of venue for the School District in Pulaski County Circuit Court. We agree that venue for the School District did not lie in Pulaski County. The Department further contends that the trial court erred in its reading of Act 34 and in failing to apply the correct standard of review to an interpretation by an administrative agency. We disagree and affirm the trial court on these points.

FACTS

This case turns primarily on a section of Act 34 of 1983, which read in 1988 in pertinent part as follows:

In order for a district to be entitled to state aid under the provisions of this subchapter, each district shall satisfy the following requirements:
(4) Each district in the state shall pay its certified personnel an amount equal to at least severity percent (70%) of its net current revenue. Not less than eighty percent (80%) of seventy percent (70%) of each school district’s increase in net current revenue over the net current revenue received the previous school year less the total salary expenditure required to fund additional certified personnel added to the staff of the district in the school year shall be divided equally among the certified personnel positions existing in the district in that year unless the board of directors of the district and a majority of the teachers agree to a different distribution. The district shall file with the State Board of Education annually a salary schedule for its certified employees which recognizes a minimum level of training and experience. This schedule shall reflect the actual pay practices of the district, including all fringe benefits.

During the 1987-88 school year, the School District had 59 certified employees who were entitled to receive an equal portion of the 56 percent increase in net current revenue. The increase in net current revenue for that school year was $219,144.28. That meant $122,720.79 was available for distribution. During the relevant school year, three and one-half additional certified personnel were added to the employment rolls whose salaries totaled $71,063.50. That amount was credited against the increase under Act 34, leaving $51,657.29, according to the appellees, to be distributed to certified personnel. Prior to distribution, the School District deducted amounts awarded employees for “position upgrades” and “experience increments." The result was that instead of each certified person receiving a salary increase of $875.55, much less was awarded.

On July 6, 1990, the appellees filed suit against the School District and the Department in Pulaski County Circuit Court, alleging noncompliance with Act 34 by both defendants. They further alleged that the Department agreed that the School District could deduct these amounts against the revenue to be distributed. Because of its erroneous interpretation, according to the appellees, the Department refused to terminate state aid to the School District.

The School District filed a motion to dismiss and an objection to venue, arguing that because it was located in Union County the District was not subject to a suit for debt in Pulaski County. The trial court denied the motion to dismiss.

Following a bench trial, the trial court found: 1) Act 34 was not ambiguous; 2) the School District’s credits against amounts to be distributed for position upgrades and experience increments was improper because the credits were not authorized by the statute; 3) the School District had violated the law and damages for the underpaid amount were appropriate; and 4) the Department should deny state aid until the School District complied with Act 34.

I. VENUE-

We first address the issue of venue. The School District urges on appeal that Pulaski County was not the proper venue for a suit against it under Ark. Code Ann. § 16-60-116(a) (1987) because it did not reside in that county, nor was it summoned there. The School District argues instead that the appellees’ case against it was a debt case, and venue under the appropriate statute — Ark. Code Ann. § 16-60- 111 (1987) — was only cognizable in Union County.

In determining venue, we look to the pleadings. See Mack Trucks v. Jet Asphalt and Rock Co., 246 Ark. 101, 437 S.W.2d 459 (1969). In the complaint filed by the appellees, they prayed for a declaration that Act 34 was improperly interpreted, for damages against the School District, and for the Department to cut off state aid until the district came into compliance. It is undisputed that venue in Pulaski County was proper for the Department. The issue, then, is whether the same holds true for the School District.

The controlling statute for venue over multiple defendants reads:

(a) Every other action may be brought in any county in which the defendant, or one (1) of several defendants, resides or is summoned.
(c) Where any action embraced in subsection (a) of this section is against several defendants, the plaintiff shall not be entitled to judgment against any of them on the service of summons in another county than that in which the action is brought, where no one of the defendants is summoned in that county, or resided in that county at the commencement of the action, or where, if any of them resided, or were summoned in that county, the action is discontinued or dismissed as to them, or judgment in the action is rendered in their favor, unless the defendant summoned in another county, having appeared in the action, failed to object before the judgment to its proceeding against him.

Ark. Code Ann. § 16-60-116(a) and (c) (1987).

Decades ago, this court added a gloss to this venue statute and held that where venue is appropriate for one defendant, it will only lie for a co-defendant when that co-defendant is jointly liable with the resident defendant. See B-W Acceptance Corp. v. Colvin, 252 Ark. 306, 478 S.W.2d 755 (1972); Barr v. Cockrill, 224 Ark. 570,275 S.W.2d 6 (1955); Terry v. Plunkett-Jarrell Grocer Co., 220 Ark. 3, 246 S.W.2d 415 (1952); Wernimont v. State, 101 Ark. 210, 142 S.W.2d 194 (1911); Atkins Pickle v. Burrough-Uerling-Brasuell, 271 Ark. 897, 611 S.W.2d 775 (Ark. App. 1981). The issue we must resolve is whether joint liability was alleged against the School District and the Department. Looking at the complaint, we cannot say that it was. To be sure, the trial court was requested to declare what Act 34 meant in connection with actions by both the School District and the Department. But the remedy requested against the School District was damages and that against the Department was a directive that state aid be terminated due to violation of the statute.

We confronted the issue of joint liability in Barr v. Cockrill, supra. In Barr, the receiver for an insurance exchange filed suit to recover assessments against 100 policyholders based on their separate contracts of insurance. The suit was brought in Pulaski County where 13 policyholders lived. We concluded that joint liability did not exist for the nonresident policyholders, stating:

Again, we use the term “jointly liable” in the sense that there must be a common liability of the defendants on the same cause of action. It is clear from the complaint filed in Circuit Court that only several liability is alleged against petitioners and that separate judgments are sought against each defendant for a different debt based on separate policies of insurance.

224 Ark. at 575-576, 275 S.W.2d at 9.

Similarly, in the case before us, joint liability was clearly lacking. The School District was sued for debt for failure to pay salary increases as mandated by statute. The Department was sued for termination of state aid. In no wise can the liability or the remedy requested against the two parties be considered “joint” under our cases where the Department was not liable for damages, and the School District was not endowed with authority to terminate state aid. We have said in this regard that separate liability arising out of the same circumstances is not sufficient to establish venue; common liability is what is required. Barr v. Cockrill, supra; see also Atkins Pickle v. Burrough-Uerling-Brasuell, supra.

Accordingly, we reverse the trial court’s judgment against Junction City School District and dismiss the suit against it for lack of venue.

II. RELIEF AGAINST THE DEPARTMENT

What remains for our review is the relief awarded the appellees against the Department. The trial court in its judgment first declared what the relevant section of Act 34 says:

1. Act 34 of 1983, codified as Ark. Code Ann. § 6-20-319(4)(a) (Supp. 1989), is an unambiguous Act under which school districts must calculate 56 % of their increase in net current revenue, subtract the amount paid for certified personnel “added to the staff’ and then divide what is left “equally” among certified personnel positions existing in the District that year.

It then awarded relief against the Department:

(b) The Court declares that DOE has illegally abdicated its executive branch responsibility of interpreting and applying the law to [Legislative] Audit;
(c) The Court declares that the DOE’s “rules” are invalid under the Administrative Procedure Act and are contrary to the express language in Act 34;
(d) DOE is ordered to withhold state aid from Junction City until the requirements of Act 34 are satisfied as to the Plaintiffs in this suit. Ark. Code Ann. § 6-20-319; 303(c) and 16-11-110(a).

We begin by noting that we observe no ambiguity in the language of Act 34. The Act by its terms applies to certified personnel. Certified personnel are defined in Act 34 as teachers and administrators. See Ark. Code Ann. § 6-20-307(a) (1987). It is clear to us that the School District is required to pay certified personnel an amount equal to 56 percent of its increase in net current revenue, and if it does not do so, it does not qualify for state aid. There is only one deduction contemplated by statute, and that is for additional certified personnel added to the staff that school year. There is no provision under the statute for credits to be given for amounts paid for position upgrades and experience increments. Yet the Department agreed that these credits could be made, the result being that the equality of treatment envisioned by Act 34 was lacking in the School District for the 1987-88 school year. By continuing to provide state aid to the School District in contravention of the express terms of Act 34, the Department ran afoul of the Act.

We give no credence to the Department’s argument that its conclusion that the School District was in compliance amounts to an agency “rule” interpreting Act 34 which is entitled to great deference by the courts. It does not appear that a rule interpreting Act 34 was formally promulgated by the Department, but it is unnecessary for us to reach that point because we do not believe the pertinent parts of Act 34 require interpretation.

Ordinarily, an interpretation by a state agency is highly persuasive. Arkansas Contractors Licensing Bd. v. Butler Constr. Co., 295 Ark. 223, 748 S.W.2d 129 (1988). But that is so when there is an ambiguity in the statute at issue, and an agency interpretation is warranted. Here, that is not the case. Act 34 calls for equal distribution of the revenues to certified personnel and makes no provision for deductions for position upgrades and experience increments. We have held that where a statute is plain and unambiguous, we will not interpret it to mean anything other than what it says. Townsend v. State, 292 Ark. 157, 728 S.W.2d 516 (1987); Hinchey v. Thomasson, 292 Ark. 1, 727 S.W.2d 836 (1987).

We conclude that the interpretation placed on Act 34 by the Department was clearly wrong in light of the plain language of the statute and that the trial court was correct in ordering that state aid to the School District be terminated.

Reversed in part; affirmed in part.

Glaze, J., not participating.

       Act 34 has been amended by Act 401 of 1991 to provide that school .districts might amend the salary schedules and use the 56 percent money to satisfy pay increases for “experience and additional hours or degrees.”


author: Per Curiam. Robert L. Brown, Justice,

text:
    Dr. John SMITH, Vice President for Student Affairs, UCA, et al. v. Heather A. DENTON
    93-580
    855 S.W.2d 322
    Supreme Court of Arkansas
    Opinion delivered June 14, 1993

      Mary B. Stallcup of UCA, for appellant.

      Hartie & Collier, by: Linda P. Collier, for appellee.
   Per Curiam.

The appellee, Heather A. Denton, was suspended by the University of Central Arkansas (UCA) for violation of its policy prohibiting possession of firearms on the UCA campus. The Faulkner Chancery Court found the rule pursuant to which Ms. Denton was punished to be unconstitutional and stated that any attempt by UCA to enforce the rule after April 16, 1993, would be punishable as contempt.

UCA asks us to stay the Chancery Court’s order, contending that our refusal to do so will leave it with no enforceable policy restricting possession of firearms on its campus. Ms. Denton responds that we are unlikely to reverse the order and if we stay it she will be harmed by being prevented from registering at UCA in the fall and thus lose her academic scholarship and valuable education time.

Rules of the Arkansas Supreme Court and Court of Appeals 8. deals with supersedeas bond upon staying a trial court order. The Rule does not provide a standard by which we are to consider requests for such stays, but the implication is that we have discretionary authority to issue a stay. We have done so in the past, and often without comment we have issued such orders. Our consideration of a motion to stay includes preservation, if possible, of the status quo ante and the matter of prejudicial effect of the passage of time necessary to decide the case here.

The motion to stay the judgment is denied.

Hays and Brown, JJ., dissent.

Robert L. Brown, Justice,

dissenting. I would grant the temporary stay and expedite the appeal for consideration of this matter on the merits.

Hays, J., joins.


author: Jack Holt, Jr., Chief Justice.

text:
    ARKANSAS KRAFT, A Division of Green Bay Packaging, A Wisconsin Company v. Richard Alan COTTRELL
    93-123
    855 S.W.2d 333
    Supreme Court of Arkansas
    Opinion delivered June 21, 1993

      Anderson & Kilpatrick, by: Randy P. Murphy, for appellant.

      Lynn F. Plemmons, for appellee.
   Jack Holt, Jr., Chief Justice.

Richard Alan Cottrell, an employee of Koontz Electric Co., was awarded a judgment in the amount of $166,630.74 against Arkansas Kraft, a Division of Green Bay Packaging, a Wisconsin Company, following a jury trial. Kraft claims the trial court erred in failing to grant its motion for directed verdict as Mr. Cottrell presented no proof of negligence on Kraft’s part. We agree and reverse the trial court’s denial of Kraft’s motion and dismiss Mr. Cottrell’s cause of action.

Mr. Cottrell sued Kraft for back injuries he sustained when he fell down a staircase leading to the roof of the Kraft plant in Morrilton, Arkansas, on April 14, 1987. In his complaint, Mr. Cottrell alleged:

2. That on or about April 1,1987, while Plaintiff was a business invitee, or was otherwise lawfully passing on a stairway located in Defendant’s factory; and while walking in a careful and prudent manner, the Plaintiff became disoriented due to an accumulation of steam and extreme heat which was allowed to reach as high as 130 degrees; and that due to these conditions the Plaintiff was unable to employ the use of the handrail; being too hot to touch. Due to these conditions Plaintiff fell striking his head on a steel beam which went across the stairway and continued to fall down a thirty-foot flight of stairs with great force.
3. That said conditions did render the stairway unreasonably dangerous for its intended usage as a passageway.
4. That the Defendant knew or should have known, in the exercise of ordinary care, that these conditions would create a hazardous condition and render the passageway unsafe for invitees and others lawfully on said premises.
5. That the Defendant was negligent in failing to use ordinary care to maintain the premises in a reasonable [sic] safe condition or to take precautions to prevent injury to Plaintiff and others.
6. That as a direct and proximate result of the negligence of the Defendant, the Plaintiff has suffered excruciating pain and suffering, severe permanent and partial permanent injuries, disability, and impairment to his back, and to his body as a whole, and will continue to suffer these injuries in the future; further, that the Plaintiff has suffered constant and severe mental anguish, injury to his earnings and earning capacity, and inability to participate in his livelihood, hobbies, and recreational activities; further, that the Plaintiff has incurred substantial medical, hospital and rehabilitation expenses and will incur same in the future.
7. That as a direct and proximate result of the negligent and careless acts of the Defendant as heretofore set forth, the Plaintiff has been damaged in the sum of One Million Eight Hundred and Twenty Thousand Dollars ($1,820,000), which includes permanent disability, past and future medical, pain and suffering, reduced earning capability and punitive damages.

In support of his complaint, Mr. Cottrell testified that he was employed as an electrical apprentice for Koontz Electric on April 14,1987 and was assigned to work at Kraft on the air conditioning units at its paper mill in Morrilton. On this particular morning, Mr. Cottrell was making his usual rounds when he noticed all three lights on the cooling towers were off and proceeded to the roof of the plant to check them.

Cottrell’s description of the access to the roof at Kraft’s plant and the area where he fell is at best sketchy. No drawings or photographs of this area of the plant were introduced into evidence. The most we can tell from the record is that there are four or five flights of stairs inside the building leading to a mezzanine deck. From the mezzanine there is one flight of stairs, in the words of Mr. Cottrell, that goes “out through the roof.” Mr. Cottrell also makes reference to a “penthouse” at the top of the uppermost stairs, which exits to the roof, the penthouse being a shack about six by six feet. According to Mr. Cottrell, the penthouse has a door opening onto the roof to which the uppermost stairs lead, and that this door serves as the only ventilation for steam rising from the plant. Testimony of the industrial relations manager at Kraft added little to Mr. Cottrell’s description of the area other than there were no vents on the roof and that the last flight of stairs was not enclosed but was open to the interior of the plant.

Be this as it may be, Mr. Cottrell testified that first he climbed the four or five flights of stairs to the mezzanine level. Then, he began climbing the uppermost staircase leading to the roof. Mr. Cottrell described this final staircase as steeper and narrower than the four or five flights leading to the mezzanine, or approximately two and one half feet wide as opposed to four or five feet wide. He testified that the temperature outside that day was about 45 or 50 degrees, but that the plant roof was hotter because of heat and steam rising from within the plant which he said made it difficult to breathe. Mr. Cottrell testified he had been up to the roof four or five times before and that on at least on one of those occasions, the conditions were the same as at the time of his fall.

On the day of the accident, Mr. Cottrell said he went halfway up the uppermost staircase, took a deep breath, and continued to the top. He remained on the roof for approximately fifteen minutes while he checked the air conditioners. As he prepared to descend the stairs, he said he took another deep breath and got a dizzy feeling two or three steps down. He said he thought about turning back but decided he could make it down the stairs. He then bumped his head on a metal beam that runs across the stairs, his feet came out from under him, and he did not recall anything until he woke up in Kraft’s ambulance where he remembered seeing a nurse and O.C. Robinson, Kraft’s security guard. Mr. Cottrell said he was wearing a hard hat when he hit his head on the beam. In the ambulance, he said he told the nurse his back hurt.

Mr. Cottrell testified that he did not know exactly why he fell, but he believed it was probably a combination of the heat and the uppermost staircase being wet and steep. When he went up the stairs, he “rushed up” the second half because he could only hold his breath “so long.” He said he did not get in a big hurry going down the stairs. He also said there were no other forms of ventilation on the roof except the door at the top of the uppermost stairway.

On cross-examination, Mr. Cottrell testified that he had been on the roof of Kraft “several times” when the conditions were the same as the day of the accident, and that the stairs were in the same condition as before. He said it was very hot and uncomfortable on the roof, and that he had been working since 7:00 a.m. so he was tired but not worn out. He said he felt lightheaded and dizzy when he started down the stairs.

When questioned about his version of his fall in his pretrial deposition, Mr. Cottrell agreed with his earlier statement that the “biggest part” of the reason he fell was because he felt dizzy. He repeated his statement from the deposition that he did not know what caused him to fall, that it is always hot up there, that he had been hot up there before, that he was holding both handrails before he fell, and that he just got dizzy and fell. He repeated again that he did not know why he fell, and that as he descended the stairs, he bumped his head, and his feet came out from under him. Also, Mr. Cottrell said he did not remember telling the nurse that he got in a hurry and just fell down the stairs, but he admitted that he could have said that. He said he was not in a big hurry but was trying to get through the steam so he could breathe. He did remember getting dizzy. He was not running down the stairs but was trying to hurry. Again, he repeated that he did not know why he fell.

On re-direct examination, Mr. Cottrell recapped his statements from his deposition that a combination of taking a deep breath and walking in the heat made him dizzy. He read his deposition statement that it was a combination of the heat and bumping his head on the beam that caused him to fall.

On re-cross-examination, Mr. Cottrell said that he was wearing a hard hat when he hit his head on the beam, and that he did not remember how hard he hit his head on the beam, but that he had known the beam was there. When asked during his deposition whether hitting his head had anything to do with his fall, he read his reply, “I really don’t know, it could have,” but on further questioning said, “It may not have.” Mr. Cottrell then repeated his statement that he really didn’t know what caused his fall.

Doug McGeehee, a fellow employee from Koontz Electric, testified on Mr. Cottrell’s behalf. Mr. McGeehee described going to the roof of the Kraft plant to service the air conditioners and gave the same description as Mr. Cottrell of the ascent. He said the air was very hot on the uppermost stairs when the mill was operating, and the further he went up, the hotter it got. He said, as he neared the top of the stairwell, it became hard to breathe, and his glasses fogged over. He said when climbing the uppermost stairway, he would breathe two or three times, hold his breath, and then walk on up to the top. When descending the stairs, he would walk faster down the top third of the uppermost stairway than the bottom two-thirds.

At the conclusion of Mr. Cottrell’s case in chief, Kraft made a motion for a directed verdict on the basis that Mr. Cottrell had failed to make a prima facie case of negligence. The trial court took the motion under advisement and later ruled in Mr. Cottrell’s favor. This was error.

In reviewing the denial of a motion for a directed verdict, we must view the evidence in the light most favorable to the party against whom the verdict is sought and give its highest probative value, taking into account all reasonable inferences deducible from it. Lytle v. Wal-Mart Stores, Inc., 309 Ark. 139, 827 S.W.2d 652 (1992) (quoting Howard v. Hicks, 304 Ark. 112, 113, 800 S.W.2d 706, 707 (1990)). If there is any substantial evidence to support the verdict, we must affirm the trial court. Ark. R. Civ. P. 50(e); St. Louis Southwestern Ry. Co. v. White, 302 Ark. 193, 788 S.W.2d 483 (1990); Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987). However, the burden is on the party asserting negligence to prove it as negligence is never presumed. Brantley v. Stewart Bldg. & Hardware Supplies, Inc., 274 Ark. 555, 626 S.W.2d 943 (1982); St Louis-San Francisco Ry. Co. v. Ward, 197 Ark. 520, 124 S.W.2d 975 (1939).

To establish a prima facie case of negligence, the plaintiff must show that he sustained damages, that the defendant was negligent, and that such negligence was a proximate cause of the damages. We recently set forth in Sanford v. Ziegler, 312 Ark. 524, 851 S.W.2d 418 (1993), the essential elements of negligence which must be proved for a plaintiff to prevail:

Negligence is the failure to do something which a reasonably careful person would do. A negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992).

Register v. Oaklawn Jockey Club, Inc., 306 Ark. 318, 811 S.W.2d 315 (1991); Earnest v. Joe Works Chevrolet, Inc., 295 Ark. 90, 746 S.W.2d 554 (1988). While a party may establish negligence by direct or circumstantial evidence, he cannot rely upon inferences based on conjecture or speculation. Earnest, supra (citing Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S.W.2d 4 (1948)).

Considering these rules of law, we have reviewed the testimony presented by Mr. Cottrell in its entirety, and we agree with Kraft that Mr. Cottrell has failed to establish a prima facie case of negligence, and the trial court committed error in failing to grant Kraft’s motion for a directed verdict.

There is no substantial evidence to support the jury’s verdict. The record reflects that Mr. Cottrell offered no proof other than his own testimony and that of a fellow worker in an attempt to show Kraft was negligent but failed to convincingly show negligence on the part of Kraft. We have long held that substantial evidence is not present where a factfinder is merely given a choice of possibilities which require the jury to conjecture or guess as to a cause. Arkansas Power & Light v. Cash, 245 Ark. 459, 432 S.W.2d 853 (1968) (quoting Kapp v. Sullivan Chevrolet Co., 234 Ark. 395, 353 S.W.2d 5 (1962) and Henry H. Cross Co. v. Simmons, 96 F.2d 482 (1938) (decision under Arkansas Law)). In other words, evidence showing possible causes of a fall, as opposed to probable causes, does not constitute substantial evidence of negligence. Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986). The mere fact that a person slips and falls does not give rise to an inference of negligence, and there is no such inference here. Dye v. Wall-Mart Stores, Inc., 300 Ark. 197, 777 S.W.2d 861 (1989).

Here, the record reflects that the only evidence of a possible negligent act or omission by Kraft regarding the conditions at the time of the accident was Mr. Cottrell’s statement that it was “hot” on the uppermost stairway, and that the steps were narrow. Mr. Cottrell submitted no other evidence of any type regarding the temperature or conditions on the staircase at the time of the accident. There was no evidence to support the allegations in his complaint that there was “an accumulation of steam and extreme heat which was allowed to reach as high as 130°,” nor was there any evidence that the conditions at the time of the accident were “unreasonably dangerous” or failed to meet any standard of care, or that the stairs were “unsafe as a passageway” as Mr. Cottrell averred. There was no empirical evidence of the width, length, or angle of the stairs down which Mr. Cottrell fell.

Mr. Cottrell’s complaint also alleged that the handrail was “too hot to touch,” and this contributed to his fall, but he presented no evidence regarding the handrail, nor did he testify that the handrails caused or contributed to his fall. To the contrary, he testified that he was holding on to both handrails at the time he became dizzy and fell.

Under the facts before us, we hold that Mr. Cottrell’s case rested upon conjecture and speculation and, as such, he failed to establish a prima facie case of Kraft’s alleged negligence, and the trial court erred in not granting a directed verdict in Kraft’s favor.

Reversed and dismissed.


author: Jack Holt, Jr., Chief Justice. Robert L. Brown, Justice,

text:
    James McCLARD, Brian Stacks, and Joyce Stacks v. CRAIN MANAGEMENT GROUP, INC., d/b/a Freeway Ford Lincoln, Mercury, Inc.
    92-1325
    855 S.W.2d 929
    Supreme Court of Arkansas
    Opinion delivered June 21, 1993
    [Rehearing denied July 19, 1993.]

      Grisham A. Phillips, for appellant.

      Larry Killough, Jr., for appellee.

      Hays and Glaze, JJ. would grant rehearing.

   Jack Holt, Jr., Chief Justice.

The appellants, James McClard, Brian Stacks, and Joyce Stacks, (McClard and Stacks), are appealing a jury verdict in favor of the appellee, Crain Management Group, d/b/a Freeway Ford, Lincoln, Mercury (Freeway Ford). McClard had sued Freeway Ford in tort for actual and punitive damages as a result of misrepresentation in the sale of a vehicle. McClard and Stacks appeal on the sole basis that the trial court erred in giving a non-AMI jury instruction. Since we agree, this case is reversed and remanded to the trial court.

This dispute arose when James McClard took his daughter, Joyce Stacks, to Freeway Ford, Lincoln Mercury and purchased a used 1987 BMW. The car was marked “AS IS - NO WARRANTY.” Prior to the purchase, McClard and Stacks did not take the car to a mechanic of their choice to have it checked out, although testimony was established that they were advised that they could do so. Testimony was in dispute as to whether or not a Freeway Ford salesman had assured McClard and the Stacks that the car had not been wrecked. However, they later learned that it was a “Texas salvage” vehicle that had sustained major body and mechanical damage and had been repaired. As a result, they filed suit against Freeway Ford for misrepresentation alleging that at the time of the sale, the salesman had assured them that the car had never been wrecked.

During the discussion of jury instructions, Freeway Ford tendered the following non-AMI jury instruction, which was based on Brookside Village Mobile Homes v. Meyers, 301 Ark. 139, 782 S.W.2d 365 (1990). Even though the instruction overlapped with AMI 405, Freeway Ford contended that it incorporated a different burden of misrepresentation that is not provided in 405. The instruction given was as follows:

The burden of proving misrepresentation requires not only a showing that plaintiffs were without knowledge of the facts, but that ascertainment of undisclosed facts were not within reach of plaintiffs diligent attention and observation.

McClard and Stacks objected, claiming that the subject-matter of the proffered AMI instruction was covered by AMI 405, which states:

Plaintiffs claim damages from defendant and have the burden of proving each of five essential propositions: First, that they have sustained damages; second, that a false representation of facts was made by defendant; third, that defendant knew or believed that the representation was false, or did not have sufficient basis with information to make it; fourth, that defendant intended to induce plaintiffs to act in reliance upon the misrepresentation; and fifth, plaintiffs justifiably relied upon the representation and as a result sustained damages. If you find from the evidence in this case that each of these propositions has been proved, then your verdict should be for plaintiffs; but if, on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for defendant.

In short, the trial court saw fit, despite the requirements in AMI 405 that the plaintiffs prove they “justifiably relied” upon the alleged misrepresentation, to instruct that “ascertainment of undisclosed facts were not within reach of plaintiffs’ diligent attention and observation.” The trial court concluded its remarks by stating that “the AMI instructions have not fully and adequately covered the necessary law.”

One need only look at the facts of the Brookside Village Mobile Homes case to see why that statement of the law was appropriate there but so inappropriate here. Ms. Meyers selected a mobile home and lot and moved in. She defaulted on payments. Brookside Village Mobile Homes sued to recover past due payments. Ms. Meyers counterclaimed alleging deceit. The contract she entered with Brookside Village Mobile Homes described the unit as a “Liberty” model, but it was in fact a “Champion.” The name “Champion” appeared on the front of the mobile home as well as on a plaque inside it. Those are the facts which gave rise to our statement that proof of fraud requires a showing that “the ascertainment of the undisclosed fact was not within the reach of the purchaser’s diligent attention or observation.” Here, rather than having a sign on the car in two places that it was a “salvage” vehicle, we have evidence that a representative of Freeway Ford told McClard and Stacks the car had not been wrecked. The evidence of an opportunity for “ascertainment of the undisclosed fact” was said to have been “within reach of the purchaser’s diligent attention or observation” because these purchasers could have taken the car to a mechanic for inspection.

It is obvious to this court that the approval of the additional instruction means that such emphasis can be placed on this opportunity to inspect that a jury can be led to conclude that, when a seller would allow the prospective buyer to have a car inspected by a mechanic, then the seller may say whatever it pleases about the car with impunity. That has to be wrong.

Arkansas Model Jury Instruction 405 accurately stated the law, and thus there should have been no embellishment upon it. Dorton v. Francisco, 309 Ark. 472, 833 S.W.2d 362 (1992). The mere fact that the addition may have accurately stated the law does not make giving it to the jury appropriate. Wal-Mart Stores v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991).

While the language we used in deciding the Brookside Village Mobile Homes case was. entirely appropriate to that decision, it was not used in an instruction by the trial court in that case, and it might have been inappropriate in that context. It certainly was inappropriate here because it placed undue emphasis on one aspect of the evidence in the face of AMI 405 which covered it adequately.

McClard and Stacks also petitioned this court for costs and attorney’s fees arguing that Freeway Ford’s inclusion of the testimony of Nigel Peete, Wayne Bailey, Joyce Stacks and James McClard as well as the transcript of the hearing on McClard’s Motion for New Trial in the record were unnecessary to the determination of the issue before this court because of a stipulation as to certain evidence presented at trial.

The “stipulations” filed by McClard and Stacks were filed contemporaneously with the notice of appeal in the Saline County Circuit Court and were captioned “Stipulations for Appeal.” This document bears only the signature of counsel for appellant. A stipulation is a “name given to any agreement made by the attorneys engaged on opposite sides of a cause (especially if in writing) regulating any matter incidental to the proceedings or trial, which falls within their jurisdiction.” Black’s Law Dictionary 1269 (5th ed. 1979). The “stipulations” filed by McClard and Stacks were not signed by both sides. Absent agreement between the attorneys to stipulate, Freeway Ford was within its rights to supplement the record if appropriate.

Under the circumstances of this case, we do not feel that Freeway Ford’s supplementation of the record was unnecessary or inappropriate. Accordingly, the motion for costs and related attorney’s fee is denied.

Reversed and remanded.

Hays, Corbin and Brown, JJ., dissent.

Robert L. Brown, Justice,

dissenting. I would affirm this case.

The trial judge instructed the jury on what the term, justifiable reliance, meant in the context of this case. He explained that he did so because the AMI instructions did not fully and adequately cover the necessary law. He then looked to one of our recent cases, Brookside Village Mobile Homes v. Meyers, 301 Ark. 139, 782 S.W.2d 365 (1990), and used our holding there to clarify the term. He instructed the jury that justifiable reliance meant that the ascertainment of undisclosed facts was not within the reach of the plaintiffs diligent attention and observation.

The actions of the trial judge were not error. On the contrary, the judge defined a term for the jury more completely, which had to be helpful to a panel of lay people. Neither party contends that the instruction was not a correct statement of the law. Despite this, the majority writes 1) that the instruction unduly emphasized the element of justifiable reliance; and 2) that while it may have been a correct statement of the law in Brookside, it was not appropriate to use the Brookside language to instruct the jury in this case. I strongly disagree with both conclusions.

Adoption of the Model Instructions by per curiam order in 1965 represented a watershed event in jurisprudence in the state. Thjs court unequivocally endorsed those instructions and fixed a policy mandating that the AMI instruction be used “unless the trial judge finds that it does not accurately state the law.” In the present case, an additional instruction was given. Far from emphasizing the justifiable-reliance element, the additional instruction supplemented AMI 405 and further defined an essential term for the jury.

Unlike the majority, I do not believe that the facts of this case render inapposite the instruction at issue. True, in Brookside the issue was whether the buyer should have been put on notice and checked whether she was buying a Champion mobile home or a Liberty mobile home. Here, though, the buyers were purchasing a used car “as is.” There is no dispute that the buyers had ample opportunity to test drive the car and have a mechanic of their choosing check it over. Whether the buyers were diligent in ascertaining if the used car had been previously wrecked was a jury question. So was the issue in Brookside: was the buyer diligent in determining what brand of mobile home he was buying?

We run a dangerous risk if we treat the Model Instructions as a procrustean bed with all the rigidity and inflexibility that the metaphor suggests. Additional instructions are helpful on occasion, and the trial judge must have some discretion in these matters. Otherwise, the AMI instructions become a Napoleonic Code, fixed, immobile, and absolute.

This court has often affirmed the decision of trial judges in refusing to give an instruction which supplemented an AMI instruction. See Dorton v. Francisco, 309 Ark. 472, 833 S.W.2d 362 (1992); Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991); Newman v. Crawford Constr. Co., 303 Ark. 641, 799 S.W.2d 531 (1990); Pineview Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989); James v. Bill C. Harris Constr. Co., 297 Ark. 435, 763 S.W.2d 640 (1989). We have also reversed a trial judge who added an element of damage to an AMI instruction without explanation. Bruns v. Bruns, 290 Ark. 347, 719 S.W.2d 691 (1986). We have not reversed a trial judge who supplemented an AMI instruction by explaining a term and giving reasons for doing so. In fact, we have said in one case that a trial court’s remarks were overbroad in declaring that the parties were confined to the use of AMI instructions only, “since modifications of the AMI or other instructions may be given under appropriate circumstances.” Blankenship v. Burnett, 304 Ark. 469, 472, 803 S.W.2d 539, 541 (1991).

I fear that the majority is now on a course where soon the giving of a non-AMI instruction will be presumed error. That must not occur. Trial judges must have some discretion in this area, though the discretion should be exercised sparingly.

I respectfully dissent.

Hays and Corbin, JJ., join.