J.E. Merit Constructors, Inc. v. Cooper

44 S.W.3d 336, 345 Ark. 136, 2001 Ark. LEXIS 339
CourtSupreme Court of Arkansas
DecidedMay 31, 2001
Docket01-194
StatusPublished
Cited by27 cases

This text of 44 S.W.3d 336 (J.E. Merit Constructors, Inc. v. Cooper) 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
J.E. Merit Constructors, Inc. v. Cooper, 44 S.W.3d 336, 345 Ark. 136, 2001 Ark. LEXIS 339 (Ark. 2001).

Opinion

Tom Glaze, Justice.

We assume jurisdiction of this tort case pursuant to Ark. R. Sup. Ct. 1-2(g) in order to achieve a fair allocation of the appellate workload. Appellant J. E. Merit Constructors, Inc. (Merit) raises eight points for reversal of a jury award in the amount of $150,000.00 in favor of appellee Louise Cooper, who sued Merit, alleging L. K. Webb, an employee of Merit’s, negligently caused serious injuries to Cooper’s face and left jaw.

Taking Merit’s points in the order presented, we first consider its argument that the trial court erred in denying Merit’s motion for directed verdict. Specifically, Merit submits that Cooper failed to present substantial evidence to show negligence or to prove mental anguish and future medical expenses. When reviewing a denial of a motion for directed verdict, we determine whether the jury verdict is supported by substantial evidence. Pettus v. McDonald, 343 Ark. 507, 36 S.W.2d 745 (2001). Moreover, we review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered, and when the evidence and inferences create a jury question, we determine the trial court properly denied the defendant’s motion for directed verdict. See Ouachita Wilderness Institute v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997).

Affirmed.

The crux of Merit’s first argument is that Cooper’s negligence case, at best, was built on speculation rather than substantial evidence. In reviewing the evidence in Cooper’s favor, as we must, we reject Merit’s argument. Cooper’s case in chief showed that, on July 20, 1994, she was driving her car north on Highway 79 past Albermarle’s plant. Her son Doug Cooper was a passenger. As they passed the plant, they saw a man operating a bush hog tractor mowing the plant’s property alongside the highway. Doug saw the operator drive the tractor into a ditch, causing gravel and rocks to be thrown out from underneath the bush hog, and as a result, a rock flew through Cooper’s open window, striking Cooper’s left jaw. Doug was required to take control of his mother’s car, and after stopping it, he got out to examine the bush hog. He saw the bush hog had no deflector shield or guard on it, and he brought this fact to the attention of the operator, who identified himself as L. K. Webb, an employee of Merit. The Merit company maintained the plant property for Albermarle. After the incident and Doug’s talk with Webb, Webb looked at Cooper’s face and acknowledged her face was swollen. Doug then took his mother to the Magnolia Hospital Emergency Room where Cooper was treated and released the same day. After Cooper returned home that day, Joe Millett, a supervisor at Merit, visited Cooper and confirmed that Webb was an employee of Merit, and was mowing grass at the time of the incident. Cooper also permitted Millett to take possession of the rock that had hit her and was still in Cooper’s car. When Cooper’s case finally went to trial, she not only presented the foregoing evidence, but also she introduced proof that to operate a bush hog without a protective shield, as Merit and its employee Webb were doing on July 20, was negligence.

While Merit cross-examined Cooper and her witnesses and offered evidence to counter Cooper’s case, its version of the events is not controlling. However, as previously mentioned, the crux of Merit’s argument on appeal is that Cooper’s case bearing on negligence, at best, was built on speculation. To support its argument, Merit argues that Cooper’s claim was based on Webb’s operating a “yellow” bush hog at the time of the incident, but the proof showed Merit used Albermarle’s bush hog, which was “green” and had a protective shield.

To establish a prima facie case in tort, a plaintiff must show that damages were sustained, that the defendant was negligent, and that such negligence was a proximate cause of the damages. Mergen, 329 Ark. at 412 (citing Southern Farm Bur. Cas. Ins. v. Allen, 326 Ark. 1023, 934 S.W.2d 527 (1996)). From the foregoing, it is clear that there was sufficient evidence of Cooper’s damages, Merit’s negligence, and the link between the two. Despite Merit’s placing of undue weight on the color of the bush hog, there was considerable evidence shown to the jury for it to believe Webb — Merit’s employee — was the one driving the bush hog that caused a rock to hit Cooper when she drove by. The resolution of factual issues, such as the color of the bush hog in this case, is a question for the jury, see, e. g., Smith v. Prudential Property & Cas. Ins., 340 Ark. 225, 10 S.W.3d 846 (2000), and this court will uphold a jury’s findings if there is any substantial evidence to support them. Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995).

We next turn to Merit’s contention that Cooper’s evidence was insufficient to establish that Merit’s negligence caused Cooper’s mental anguish and medical expenses. We disagree. Cooper testified at length as to her pain and the “cryo-freeze” procedures she had to endure to gain relief from the pain. Dr. Robert Valentine, an anesthesiologist and pain management specialist, stated that Cooper suffered from “atypical trigeminal neuralgia,” which would be consistent with having sustained a blunt trauma. He further said that Cooper would require cryo-freeze procedures well into the future. Dr. David Redding, a neurosurgeon to whom Dr. Valentine referred Cooper, indicated that no surgical procedures could help her pain in the long run. Dr. Susan Samlaska, whom Cooper saw before going to Dr. Valentine, treated her with trigger point injections that only gave her partial relief. Presented with this substantial evidence, the jury concluded that Cooper had suffered mental anguish, and would continue to incur medical expenses in the future. Therefore, we conclude that the trial court did not err in denying Merit’s motion for directed verdict.

Merit’s second point on appeal is that the trial court erred in excluding photographs it took of a green bush hog that it claimed was the one owned by Albermarle and was being used by Merit at the time of the accident. Merit had sought to introduce these photos into the record during a pretrial conference on May 4, 2000. At that time, Cooper’s counsel noted that Merit’s attorneys had first furnished photographs of a bush hog on April 3, 2000; prior to that time, based on earlier discovery responses, Merit had led Cooper to believe that nobody knew where the bush hog was located. Later responses by Merit indicated that it had known where the bush hog was for some time and had never told Cooper. Defense counsel got permission from Albermarle to photograph a bush hog in February of 2000. After Merit took the pictures of the bush hog, which had been sandblasted and painted in the years since the July 20, 1994, incident, Albermarle sold the machine at auction before Cooper could examine it. The trial court ruled that Merit could not introduce the photographs into evidence, but did allow Merit to display the photos to witnesses during the course of the trial.

Questions regarding the admissibility of evidence are matters entirely within the trial court’s discretion, and such matters will not be reversed absent an abuse of that discretion.

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Bluebook (online)
44 S.W.3d 336, 345 Ark. 136, 2001 Ark. LEXIS 339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/je-merit-constructors-inc-v-cooper-ark-2001.