Jacuzzi Brothers, Inc. v. Todd

875 S.W.2d 67, 316 Ark. 785, 1994 Ark. LEXIS 280
CourtSupreme Court of Arkansas
DecidedMay 2, 1994
Docket93-1288
StatusPublished
Cited by12 cases

This text of 875 S.W.2d 67 (Jacuzzi Brothers, Inc. v. Todd) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jacuzzi Brothers, Inc. v. Todd, 875 S.W.2d 67, 316 Ark. 785, 1994 Ark. LEXIS 280 (Ark. 1994).

Opinions

Donald L. Corbin, Justice.

Appellant, Jacuzzi Brothers, Incorporated, appeals a judgment of the Saline Circuit Court awarding appellee, Floyd L. Todd, damages of $612,500.00 in a slip and fall case. Appellant asserts three points of error in the jury trial. We find merit in the last point, and we modify on condition of remittitur.

Appellee was employed by Little Rock Sheet Metal when he slipped and fell as he exited appellant’s plant on February 20, 1990. Appellee entered appellant’s plant to measure for a new sheet metal job. He returned to the same door he had entered and found it closed, so he exited a red door with an “exit” sign above it. He tripped near the bottom of the concrete stairs that were approximately three feet from the door he exited. A chunk of concrete was missing from one of the steps, and appellee caught his foot in the hole created by the missing concrete. As a result of the fall, appellee suffered a back injury requiring two surgeries and the possibility of a third surgery in the future. Pursuant to the jury verdicts, appellee was awarded $600,000.00 in damages and a separate verdict of $12,500.00 for future surgical expenses. Appellant unsuccessfully moved for a new trial, and this appeal followed.

Appellant first contends the trial court erroneously allowed the interjection of evidence concerning a subsequent remedial measure. At the time of appellee’s fall, there was an “exit” sign on the door he exited, and subsequent to his fall, the sign was removed. Appellant argues the removal of the “exit” sign constitutes a subsequent remedial measure which is inadmissible as proof of negligence under A.R.E. Rule 407. Appellant contends this prejudicial error occurred during cross-examination of Mr. Gale Graham, appellant’s facilities and environmental engineer:

Q Just to be sure. You’re not saying there was' a sign that said emergency exit only, you’re saying you just don’t know?
A Right.
Q You do know that there was a sign at one point in time that said exit?
A Probably was, yeah. There’s evidence there was a sign on the door, okay.
Q Since February 20, 1990, there has been a sign that said exit?
A I didn’t see an exit the other day. I didn’t see a sign on the door that said exit.

Appellant moved for a mistrial after the last question and answer quoted above. Appellee contends this last question was justified impeachment based upon misleading statements Mr. Graham made characterizing the door as an emergency exit door painted red with panic hardware. Apparently, appellee relies on the impeachment exception to Rule 407. However, reliance on the impeachment exception is misplaced. Appellee could have established what he desired — that the door did have an “exit” sign on it as opposed to an- “emergency exit only” sign on the day of appellee’s accident, February 20, 1990, and that Mr. Graham stated in his deposition that the door did in fact have an “exit” sign on it —■ without ever making reference to the status of the door after February 20, 1990.

We agree with appellant that the question relating to the status of the sign on the door after the date of the accident was an improper question for the purpose of proving appellant’s negligence at the time of the accident. A.R.E. Rule 407. The trial court correctly instructed appellee not to proceed with any questions regarding the status of the door after February 20, 1990. However, the trial court, who was in a superior position to judge the effect of the erroneous question on the jury, did not see the error as prejudicial and grounds for a mistrial. We cannot say the trial court abused its discretion in this regard.

The trial court had twice previously sustained objections appellant made regarding subsequent remedial measures, and the judge offered to give the jury a cautionary instruction. Appellant did not accept the trial court’s offer nor did it request the question and answer be stricken. Appellant contends a mistrial is the only remedy appropriate in this instance and that this is the reason it did not accept the trial court’s offer to give the jury a cautionary instruction. We cannot agree that a mistrial was the only appropriate remedy here, given that the trial court had previously sustained appellant’s objections on Rule 407 grounds and was very careful to maintain strict control of the evidence in this regard.

We also cannot agree that Rule 407 is something akin to a privilege, requiring automatic reversal if violated. While we recognize there is a two-pronged rationale for excluding evidence of subsequent remedial measures — the lack of relevance and the public policy of encouraging such measures — the policy consideration merely strengthens the argument for exclusion, but does not require exclusion. Rule 407 remains part of the article on relevance, not part of the article on privileges. See Arkansas Rules of Evidence, Articles IV and V.

A trial court is vested with considerable latitude and discretion when considering a motion for mistrial. Bull Shoals Community Hosp. v. Partee, 310 Ark. 98, 832 S.W.2d 829 (1992). A mistrial is an extreme remedy to be granted only when it is apparent that justice cannot be served by continuing the trial. Morton v. Wiley, 271 Ark. 319, 609 S.W.2d 322 (1980); Rickett v. Hayes, 256 Ark. 893, 511 S.W.2d 187 (1974). Deferring to the trial court’s superior position to judge these matters, we cannot say the error committed here was so egregious to prevent a just and fair trial. A mistrial was therefore not warranted, and we cannot say that reversible error occurred.

Appellant also contends the trial court erred in denying its motion for new trial made on the same grounds as the motion for mistrial. When the primary issue on a motion for new trial is not a question of liability, we sustain the trial court’s denial unless there is a clear and manifest abuse of discretion. See Fisher Trucking, Inc. v. Fleet Lease, Inc., 304 Ark. 451, 803 S.W.2d 888 (1991). We have already determined the trial court did not abuse its discretion in this regard.

As its second argument, appellant contends the trial court erred in refusing its proffered jury instructions on the duties owed to a licensee and trespasser. Appellant objected to the giving of AMI 1104, which instructed the jury that appellee was a business invitee to whom appellant owed the duty of ordinary care to maintain its premises in a reasonably safe condition. Appellant argues there was substantial evidence to support the conclusion that appellee was a business invitee who had crossed the boundary of his invitation and become either a licensee or trespasser. See Daniel Constr. Co. v. Holden, 266 Ark. 43, 585 S.W.2d 6 (1979). Therefore, appellant proffered eight interrogatories along with AMI 1106, which both defined the three classifications of. injured persons along with the corresponding duties owed them by the landowner and instructed the jury to determine appellee’s classification.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

St. Joseph's Mercy Health Center v. Edwards
385 S.W.3d 849 (Court of Appeals of Arkansas, 2011)
Fritz v. Baptist Memorial Health Care Corp.
211 S.W.3d 593 (Court of Appeals of Arkansas, 2005)
E-Ton Dynamics Industrial Corp. v. Hall
115 S.W.3d 816 (Court of Appeals of Arkansas, 2003)
McDaniel v. Linder
990 S.W.2d 593 (Court of Appeals of Arkansas, 1999)
Avery v. Ward
934 S.W.2d 516 (Supreme Court of Arkansas, 1996)
State v. Crittenden County
896 S.W.2d 881 (Supreme Court of Arkansas, 1995)
Johnson v. Gilliland
896 S.W.2d 856 (Supreme Court of Arkansas, 1995)
Irvin v. Irvin
883 S.W.2d 862 (Court of Appeals of Arkansas, 1994)
Jacuzzi Brothers, Inc. v. Todd
875 S.W.2d 67 (Supreme Court of Arkansas, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
875 S.W.2d 67, 316 Ark. 785, 1994 Ark. LEXIS 280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jacuzzi-brothers-inc-v-todd-ark-1994.