Ouachita Wilderness Inst. v. Mergen
Annotate this Case
OUACHITA WILDERNESS INSTITUTE v. Mark MERGEN
97-354 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered July 14, 1997
1. Motions -- directed verdict -- review of denial. -- The
standard of review of the denial of a motion for directed
verdict is whether the jury's verdict is supported by
substantial evidence, which is evidence that goes beyond
suspicion or conjecture and is sufficient to compel a
conclusion one way or the other; it is not the supreme court's
province to try issues of fact; it simply reviews the record
for substantial evidence to support the jury's verdict; in
determining whether there is substantial evidence, the
evidence is viewed in the light most favorable to the party
against whom the verdict is sought and is given its strongest
probative force.
2. Torts -- establishment of prima facie case -- negligence
discussed. -- 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; negligence is the failure to
do something that 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; while a party can
establish negligence by direct or circumstantial evidence,
that party cannot rely on inferences based on conjecture or
speculation.
3. Civil procedure -- directed-verdict motion requires specific
grounds -- issue not preserved for review. -- Where appellant
failed to clearly set out the theory of duty in its directed-
verdict motion, the issue was not preserved for appeal; in
order to preserve for appeal the issue of sufficiency of the
evidence, the party moving for a directed verdict must state
the specific ground upon which it seeks such relief; failure
to state the specific grounds for relief in a directed-verdict
motion preclude the supreme court's review of the issue on
appeal; merely stating that the plaintiff failed to establish
a negligence case was not sufficient to apprise the trial
court of the particular proof alleged to be missing.
4. Appeal & error -- no showing that argument was ever presented
to trial court -- arguments raised for first time on appeal
not reached. -- Where the argument pertaining to the Fireman's
Rule was mentioned by appellant for the first time on appeal,
it was not reached; the supreme court will not address
arguments raised for the first time on appeal; the supreme
court summarily disposed of appellant's arguments on the issue
of duty because the abstract did not reflect that the theory
was ever presented to or ruled on by the trial court.
5. Motions -- directed-verdict motion properly denied -- question
of proximate cause existed for jury to decide. -- Where
appellant specifically argued that the evidence failed to
establish that any negligence of appellant was the proximate
cause of damages and that the evidence showed that appellee's
fault was greater than fifty percent, the trial court properly
denied appellant's motion for directed verdict; the existence
of evidence, and all the reasonable inferences therefrom,
created a question for the jury; proximate cause is usually an
issue for the jury to decide, and when there is evidence to
establish a causal connection between the negligence of the
defendant and the damage, it is proper for the case to go to
the jury.
6. Negligence -- comparative fault -- determination of proximate
cause required before fault can be assessed against claiming
party. -- Under Arkansas's comparative fault statute, Ark.
Code Ann. 16-64-122 (Supp. 1995), there must be a
determination of proximate cause before any fault can be
assessed against a claiming party; proximate cause becomes a
question of law only if reasonable minds could not differ;
proximate cause is defined as "that which in a natural and
continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would
not have occurred."
7. Negligence -- when original act eliminated as proximate cause
-- intervening causes and liability discussed. -- The original
act or omission is not eliminated as a proximate cause by an
intervening cause unless the latter is in itself sufficient to
stand as the cause of the injury and the intervening cause
must be such that the injury would not have been suffered
except for the act, conduct, or effect of the intervening
cause totally independent of the acts or omissions
constituting the primary negligence; the mere fact that other
causes intervene between the original act of negligence and
the injury for which recovery is sought is not sufficient to
relieve the original actor of liability if the injury is the
natural and probable consequence of the original negligent act
or omission and is such as might reasonably have been foreseen
as probable; in no case is the connection between an original
act of negligence and an injury broken by an intervening act
of another if a person of ordinary capacity and experience,
acquainted with all the circumstances, could have reasonably
anticipated that the intervening event might, in the ordinary
course of things, follow his act of negligence or if the
negligence is of a character which, according to the usual
experience of mankind, is calculated to invite or induce the
intervention of some subsequent cause; an intervening cause
will not excuse the original misconduct but will be held to be
the result of it; the intervening act or omission of a third
person is not a superseding cause when the original actor's
negligent conduct is a substantial factor in bringing about an
injury, if the actor, at the time of his negligent conduct,
realized that a third person might so act or if the
intervening act is a normal response to a situation created by
the actor's conduct and the manner in which it is done is not
extraordinarily negligent.
8. Negligence -- substantial evidence of appellant's negligence -
- trial court did not err in denying directed-verdict motion.
-- Where there was substantial evidence presented from which
the jury could have concluded that appellant was negligent in
failing to provide a secure storage place for the employees'
personal car keys, especially given the fact that appellant
and its staff were apparently aware of the possibility of
vehicles being taken by the juvenile offenders, as they
secured the keys to appellant's vehicles in a locked cabinet
in a locked office, and where the jury could have reasonably
concluded that the intervening acts of the juveniles in
stealing the truck and wrecking it could reasonably have been
anticipated by appellant such that its negligence was the
proximate cause of appellee's damages, there was substantial
evidence to support the jury's verdict on the issues of
negligence and causation; the trial court committed no error
in denying appellant's directed-verdict motion.
9. Torts -- assumption of risk -- doctrine no longer applicable
in Arkansas as separate theory. -- The theory of assumption of
risk bars recovery when it is shown, as a matter of law, that
a dangerous situation existed which was inconsistent with
plaintiff's safety, that plaintiff knew the dangerous
situation existed and realized the risk of injury, and
plaintiff voluntarily exposed himself to the dangerous
situation which proximately caused his injuries; Arkansas is
a comparative law state; because the jury must compare
negligence pursuant to section 16-64-122, the assumption-of-
risk doctrine is no longer applicable in Arkansas as a
separate theory.
10. Jury -- failure to give assumption-of-risk instruction not
error -- doctrine no longer applicable in Arkansas. -- It is
not error for the trial court to refuse a proffered jury
instruction when the stated matter is correctly covered by
other instructions; each party has the right to have the jury
instructed upon the law of the case with clarity and in such
a manner as to leave no grounds for misrepresentation or
mistake; where the trial court instructed the jury as to
comparative fault, and told them that appellee had the burden
of proving that he had sustained damages, that appellant was
negligent, and that appellant's negligence was a proximate
cause of his injuries, the trial court was not obligated to
give an instruction on assumption of risk where the theory of
recovery was no longer applicable law in Arkansas.
11. Corporations -- not-for-profit corporations and Arkansas
Volunteer Immunity Act discussed -- appellant not entitled to
charitable immunity. -- The Arkansas Volunteer Immunity Act,
Ark. Code Ann. 16-6-101--105 (Repl. 1994), defines
"volunteer agency" as "any volunteer program of all
departments, institutions, and divisions of state government,
community volunteer organization, or any not-for-profit
corporation which has received a 501(c)(3) designation from
the United States Internal Revenue Service, other than one
established principally for the recreational benefit of its
stockholders or members"; while a qualified volunteer is
entitled to immunity, the statute specifically states that
nothing in it shall be construed to limit the liability of any
volunteer agency; accordingly, as a volunteer agency,
appellant was not entitled to immunity under the Arkansas
Volunteer Immunity Act.
12. Torts -- immunity from liability under common-law doctrine of
charitable immunity -- factors. -- Although Arkansas still
recognizes the common-law doctrine of charitable immunity, it
is very narrowly construed; to determine whether an
organization is entitled to charitable immunity, the following
factors are some that are considered: (1) whether the
organization's charter limits it to charitable or eleemosynary
purposes; (2) whether the organization's charter contains a
"not-for-profit" limitation; (3) whether the organization's
goal is to break even; (4) whether the organization earned a
profit; (5) whether any profit or surplus must be used for
charitable or eleemosynary purposes; (6) whether the
organization depends on contributions and donations for its
existence; (7) whether the organization provides its service
free of charge to those unable to pay; and (8) whether the
directors and officers receive compensation.
13. Torts -- appellant not immune from tort liability under
common-law doctrine of charitable immunity -- trial court did
not err in determining that appellant not entitled to
immunity. -- Considering the factors applicable to
organizations under the common-law doctrine of charitable
immunity, the supreme court concluded that appellant was not
entitled to such immunity because appellant's "charter," or
Articles of Incorporation, did not limit the corporation to
eleemosynary purposes; although appellant was exempt from
federal taxation under section 501(c)(3) of the Internal
Revenue Code, there was no information in the record as to
whether its goal was to break even; appellant was almost
exclusively funded by the state and thus not dependent upon
charitable contributions for its funding; the state pays for
the services rendered by appellant to juvenile offenders,
therefore, such services could not be classified as being
"free of charge"; appellant must return any surplus funds to
the state treasury pursuant to Ark. Code Ann. 9-28-212
(Supp. 1995), instead of using the funds for charitable
purposes; and appellant's officers are compensated for their
services to the corporation; in sum, under the totality of the
relevant facts and circumstances, the trial court did not err
in concluding that appellant was not entitled to charitable
immunity under either the common-law doctrine or the Arkansas
Volunteer Immunity Act.
14. Jury -- error may have occurred in giving of erroneous
instruction on damages -- damages awarded were allowable --
any error found harmless. -- Although the trial court may have
erred in instructing the jury that the measure of damages
included incidental damages, the supreme court did not decide
the issue because the total award of damages appeared to
include only the fair market value of appellee's truck, which
was provided for in the AMI damage instruction, loss of use,
and storage expenses, which appellant conceded was allowable;
even though the trial court may have erred in instructing the
jury as to "other" incidental expenses, the error was harmless
because appellee was not awarded any such damages; where the
giving of an erroneous instruction is harmless, the appellate
court will affirm; where no prejudice was shown, the giving of
the incidental damage instruction was harmless error.
Appeal from Sebastian Circuit Court, Greenwood District; John
Holland, Judge; affirmed.
Daily & Woods, P.L.L.C., by: Robert W. Bishop, for appellant.
Walters, Hamby & Verkamp, by: Michael Hamby, for appellee.
Donald L. Corbin, Justice.
This is an appeal by Appellant Ouachita Wilderness Institute,
Inc. ("OWI"), who was found negligent and liable for damages to
Appellee Mark Mergen's pickup truck, which had been taken by two
juveniles who left OWI without authorization. Our jurisdiction is
pursuant to Ark. Sup. Ct. R. 1-2(a)(15) (as amended by per curiam
July 15, 1996). We affirm.
Facts and Procedural History
Ouachita Wilderness Institute, Inc., operates as a juvenile-
rehabilitation camp housing juvenile offenders under Ark. Code Ann.
9-28-203 (Repl. 1995), directed by contract with Associated
Marine Institute, Inc. ("AMI"), a contractor with the State of
Arkansas Department of Human Services, Division of Youth Services.
Appellee Mark Mergen, an employee of OWI, serves as an outdoor
instructor. While working at OWI on December 24, 1995, Appellee
placed his personal keys, which included the keys to his pickup
truck, in his coat pocket. Appellee supervised a group of five
juveniles while they cleaned the education building. During this
time, one of those students took the keys from Appellee's coat
pocket while the coat was left in the "team leaders" office, which
was not locked. He later returned the key ring to Appellee's coat
pocket. Appellee had no knowledge of the fact that his keys were
taken.
Later that evening, the juveniles were in the dining hall
watching movies. After a friend came to visit, Appellee left the
area to submit a request for time off in the administration
building next door. Upon his return, he noticed two juveniles were
missing. The other supervisor, Cliff Roach, helped in trying to
locate them. During the search, Appellee noticed his pickup truck
was missing. He checked his key ring and found his truck keys were
missing. The two juveniles had taken the pickup truck and were
later involved in a high-speed police chase, which terminated when
the truck crashed and was totalled. Appellee sued Appellant, AMI,
and Eddie Prevost, the Executive Director of OWI. The trial court
granted summary judgment to AMI prior to trial. A jury found
Appellant negligent and awarded Appellee $26,400.
On appeal, Appellant argues the trial court erred as follows:
(1) In failing to grant its motion for directed verdict; (2) in
refusing to give its requested jury instruction on assumption of
risk; (3) in instructing the jury that the measure of damages
included incidental expenses; and (4) in failing to dismiss the
complaint on a theory of charitable immunity.
Motion for Directed Verdict
Appellant argues that the trial court erred in failing to
grant its motion for directed verdict on the following bases: (1)
Appellee's failure to establish a case of negligence concerning the
duty of Appellant to provide a safe workplace for Appellee; (2)
Appellee's failure to establish that any negligence of Appellant
was the proximate cause of Appellee's damages; and (3) the evidence
established Appellee's fault to be greater than fifty percent.
Our standard of review of the denial of a motion for directed
verdict is whether the jury's verdict is supported by substantial
evidence, which is evidence that goes beyond suspicion or
conjecture and is sufficient to compel a conclusion one way or the
other. Southern Farm Bureau Casualty Ins. v. Allen, 326 Ark. 1023,
934 S.W.2d 527 (1996). It is not our province to try issues of
fact, we simply review the record for substantial evidence to
support the jury's verdict. Id. In determining whether there is
substantial evidence, we view the evidence in the light most
favorable to the party against whom the verdict is sought and give
the evidence its strongest probative force. Id.
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. Id.
Negligence is the failure to do something which a reasonably
careful person would do and 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. Id. While
a party can establish negligence by direct or circumstantial
evidence, that party cannot rely on inferences based on conjecture
or speculation. Id.
Appellant first argues that the employer in this case owed no
duty to Appellee. Appellee claimed that Appellant was negligent
and should have provided a secure place for Appellee's keys,
provided more supervision for its juveniles, locked the gate on the
premises, and immediately notified the state police after the
students were found to be missing. Appellant argues that there is
no law creating a duty for employers to perform these acts.
Appellant also argues that the Fireman's Rule applies in this
case, as the risk is one in which the employee has a duty to
accept. The Fireman's Rule (also known as the professional-rescuer
doctrine) generally provides that a professional firefighter may
not recover damages from a private party for injuries the fireman
sustained during the course of putting out a fire even though the
private party's negligence may have caused the fire and injury.
Waggoner v. Troutman Oil Co., Inc., 320 Ark. 56, 894 S.W.2d 913
(1995). The Fireman's Rule has been justified based on public
policy considerations, because the purpose of the firefighting
profession is to confront danger. Id. Public policy would be
violated if a citizen was said to invite private liability merely
because he happened to create a need for public services. Id.
Although Appellant's assertion that it had no duty to protect
Appellee's property may have merit, we do not decide the issue
because Appellant failed to clearly set out the theory of duty in
its motion for directed verdict. At trial, Appellant did not elect
to put on a defense. At the conclusion of Appellee's case,
Appellant's counsel stated:
Defendants move for directed verdict, and I'm going
to follow it with reasons, your Honor. The plaintiff has
failed to establish a negligence case. The plaintiff has
failed to establish that any possible negligence was a
proximate cause of the plaintiff's damages. The evidence
clearly establishes, as a matter of law, there was an
intervening cause which caused the damages to Plaintiff's
vehicle. Finally, the evidence establishes that the
plaintiff's fault was greater than fifty percent.
Rule 50(a) of the Arkansas Rules of Civil Procedure provides
in part that "[a] motion for a directed verdict shall state the
specific grounds therefor." The purpose of this requirement is to
assure that the specific ground for a directed verdict is brought
to the trial court's attention. Stacks v. Jones, 323 Ark. 643, 916 S.W.2d 120 (1996). In order to preserve for appeal the issue of
sufficiency of the evidence, the party moving for a directed
verdict must state the specific ground upon which it seeks such
relief. Houston v. Knoedl, 329 Ark. 91, ___ S.W.2d ___ (1997);
Stroud Crop, Inc. v. Hagler, 317 Ark. 139, 875 S.W.2d 851 (1994).
Failure to state the specific grounds for relief in a directed-
verdict motion precludes this court's review of such issue on
appeal. Stacks, 323 Ark. 643, 916 S.W.2d 120. Merely stating that
the plaintiff failed to establish a negligence case is not
sufficient to apprise the trial court of the particular proof
alleged to be missing.
The argument pertaining to the Fireman's Rule is also
mentioned by Appellant for the first time on appeal. We will not
address arguments raised for the first time on appeal. Love v.
State, 324 Ark. 526, 922 S.W.2d 701 (1996). If a particular theory
is not presented at trial, the theory will not be reached on
appeal. Angle v. Alexander, 328 Ark. 714, ___ S.W.2d ___ (1997).
We thus summarily dispose of appellant's arguments on the issue of
duty because the abstract does not reflect that such theory was
ever presented to or ruled on by the trial court.
Appellant did, however, specifically argue that the evidence
failed to establish that any negligence of Appellant was the
proximate cause of damages and that the evidence showed that
Appellee's fault was greater than fifty percent. When the
existence of evidence, and all the reasonable inferences therefrom,
created a question for the jury, the trial court properly denied
appellant's motion for directed verdict. McGraw v. Weeks, 326 Ark.
285, 930 S.W.2d 365 (1996). Proximate cause is usually an issue
for the jury to decide, and when there is evidence to establish a
causal connection between the negligence of the defendant and the
damage, it is proper for the case to go to the jury. Id. Arkansas
is a comparative fault state, as provided in Ark. Code Ann. 16-
64-122 (Supp. 1995), and this case proceeded under that theory.
Under the comparative fault statute, there must be a determination
of proximate cause before any fault can be assessed against a
claiming party. Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257
(1996). Proximate cause becomes a question of law only if
reasonable minds could not differ. Id. Proximate cause is defined
as "that which in a natural and continuous sequence, unbroken by
any efficient intervening cause, produces the injury, and without
which the result would not have occurred." Id. at 370, 915 S.W.2d
at 260 (quoting Williams v. Mozark Fire Extinguisher Co., 318 Ark.
792, 888 S.W.2d 303 (1994)).
The original act or omission is not eliminated as a proximate
cause by an intervening cause unless the latter is in itself
sufficient to stand as the cause of the injury and the intervening
cause must be such that the injury would not have been suffered
except for the act, conduct, or effect of the intervening cause
totally independent of the acts or omissions constituting the
primary negligence. State Farm Mut. Auto. Ins. Co. v. Pharr, 305
Ark. 459, 808 S.W.2d 769 (1991). The mere fact that other causes
intervene between the original act of negligence and the injury for
which recovery is sought is not sufficient to relieve the original
actor of liability if the injury is the natural and probable
consequence of the original negligent act or omission and is such
as might reasonably have been foreseen as probable. Id. In no
case is the connection between an original act of negligence and an
injury broken by an intervening act of another if a person of
ordinary capacity and experience, acquainted with all the
circumstances, could have reasonably anticipated that the
intervening event might, in the ordinary course of things, follow
his act of negligence or if the negligence is of a character which,
according to the usual experience of mankind, is calculated to
invite or induce the intervention of some subsequent cause. Id.
An intervening cause will not excuse the original misconduct but
will be held to be the result of it. Id. Moreover, the
intervening act or omission of a third person is not a superseding
cause when the original actor's negligent conduct is a substantial
factor in bringing about an injury, if the actor, at the time of
his negligent conduct, realized that a third person might so act or
if the intervening act is a normal response to a situation created
by the actor's conduct and the manner in which it is done is not
extraordinarily negligent. Id.
Appellant argues that Appellee's keys were taken, not through
any fault of Appellant, but because Appellee left them in a coat
pocket that was accessible to the juveniles at OWI. Appellant also
argues that the fact that two juveniles were able to leave OWI was
not the proximate cause of the juveniles damaging Appellee's truck,
as they did not gain control of the vehicle until they had the
keys. Moreover, Appellant asserts that Appellee was aware that OWI
was a rehabilitation camp for juvenile offenders with no cells, no
bars, and no weapons to help prevent unauthorized departures.
Additionally, Appellant maintains that Appellee was negligent, as
he was a supervisor of the juveniles on the night in question, but
left the area, leaving one other supervisor to watch twenty-six
juveniles, at which time the two juveniles fled.
In viewing the testimony in a light most favorable to
Appellee, there was evidence from which the jury could have found
Appellant negligent. The testimony revealed questions concerning
insufficient staff at OWI. James Coulverhouse, the interim
Executive Director of OWI, admitted that OWI failed to keep
sufficient staff to supervise the juveniles on the night in
question. The evidence also revealed the fact that employees were
not provided a place for the safe keeping of their personal
belongings, while the keys for the OWI vehicles were locked in a
cabinet in an office that was also locked and inaccessible to the
juveniles. In addition, the testimony reflected that the gate that
provides access to the facility was not locked on the night in
question.
In short, there was substantial evidence presented from which
the jury could have concluded that Appellant was negligent in
failing to provide a secure storage place for the employees'
personal car keys, especially given the fact that Appellant and its
staff were apparently aware of the possibility of vehicles being
taken by the juvenile offenders, as they secured the keys to OWI
vehicles in a locked cabinet in a locked office. Furthermore, the
jury could have reasonably concluded that the intervening acts of
the juveniles in stealing the truck and wrecking it could
reasonably have been anticipated by Appellant such that its
negligence was the proximate cause of Appellee's damages. We thus
conclude there was substantial evidence to support the jury's
verdict on the issues of negligence and causation, and that the
trial court committed no error in denying Appellant's motion for a
directed verdict.
Assumption of Risk
Appellant argues that the trial court erred in failing to give
Appellant's requested instruction on assumption of risk. The
theory of assumption of risk bars recovery when it is shown as a
matter of law, that a dangerous situation existed which was
inconsistent with plaintiff's safety, that plaintiff knew the
dangerous situation existed and realized the risk of injury, and
plaintiff voluntarily exposed himself to the dangerous situation
which proximately caused his injuries. Capps v. McCarley & Co.,
260 Ark. 839, 544 S.W.2d 850 (1976). As noted previously, Arkansas
is a comparative fault state. This court determined in Dawson v.
Fulton, 294 Ark. 624, 745 S.W.2d 617 (1988), that because the jury
must compare negligence pursuant to section 16-64-122, the doctrine
of assumption of the risk is no longer applicable in Arkansas as a
separate theory.
It is not error for the trial court to refuse a proffered jury
instruction when the stated matter is correctly covered by other
instructions. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982). Each party has the right to have the jury instructed
upon the law of the case with clarity and in such a manner as to
leave no grounds for misrepresentation or mistake. Dorton v.
Francisco, 309 Ark. 472, 833 S.W.2d 362 (1992). The trial court
here instructed the jury as to comparative fault, and that appellee
had the burden of proving that he had sustained damages, that
Appellant was negligent, and that Appellant's negligence was a
proximate cause of his injuries. The trial court was thus not
obligated to give an instruction on assumption of risk when such
theory of recovery is no longer applicable law in Arkansas.
Charitable Immunity
Appellant asserts that the trial court erred in failing to
dismiss the complaint against Appellant as it is entitled to
charitable immunity. We disagree. The Arkansas Volunteer Immunity
Act, Ark. Code Ann. 16-6-101--105 (Repl. 1994), defines
"volunteer agency" as "any volunteer program of all departments,
institutions, and divisions of state government, community
volunteer organization, or any not-for-profit corporation which has
received a 501(c)(3) designation from the United States Internal
Revenue Service, other than one established principally for the
recreational benefit of its stockholders or members[.]" Section
16-6-104(c) provides that while a qualified volunteer is entitled
to immunity, "[n]othing in this chapter shall be construed to limit
the liability of any volunteer agency." Accordingly, as a
volunteer agency, Appellant is not entitled to immunity under the
Arkansas Volunteer Immunity Act.
Furthermore, Appellant is similarly not immune from tort
liability under the common-law doctrine of charitable immunity. In
Masterson v. Stambuck, 321 Ark. 391, 902 S.W.2d 803 (1995), this
court recently admonished that although we still recognize the
common-law doctrine of charitable immunity, it is to be very
narrowly construed. To determine whether an organization is
entitled to charitable immunity, we provided in Masterson the
following illustrative, but not exhaustive, list of factors:
(1) [W]hether the organization's charter limits it to
charitable or eleemosynary purposes; (2) whether the
organization's charter contains a "not-for-profit"
limitation; (3) whether the organization's goal is to
break even; (4) whether the organization earned a profit;
(5) whether any profit or surplus must be used for
charitable or eleemosynary purposes; (6) whether the
organization depends on contributions and donations for
its existence; (7) whether the organization provides its
service free of charge to those unable to pay; and (8)
whether the directors and officers receive compensation.
Id. at 401, 902 S.W.2d at 809 (footnote omitted).
Considering those factors, we conclude that Appellant is not
entitled to charitable immunity for several reasons. First,
Appellant's "charter," or Articles of Incorporation, do not limit
the corporation to eleemosynary purposes; in fact, there is no
statement of purpose in the Articles of Incorporation other than
the designation that OWI is a "Public-Benefit Corporation."
Second, although Appellant is exempt from federal taxation under
section 501(c)(3) of the Internal Revenue Code, there is no
information in the record as to whether its goal is to break even.
Moreover, Appellant is almost exclusively funded by the state and
thus not dependent upon charitable contributions for its funding.
Likewise, the state pays for the services rendered by Appellant to
juvenile offenders, therefore, such services cannot be classified
as being "free of charge." Furthermore, Appellant concedes that it
must return any surplus funds to the state treasury pursuant to
Ark. Code Ann. 9-28-212 (Supp. 1995), instead of using the funds
for charitable purposes. Finally, Appellant's officers are
compensated for their services to the corporation. In sum, under
the totality of the relevant facts and circumstances, the trial
court did not err in concluding that Appellant is not entitled to
charitable immunity under either the common-law doctrine or the
Arkansas Volunteer Immunity Act.
Incidental Expenses
Appellant argues that the trial court erred in instructing the
jury that the measure of damages included incidental damages. The
trial court instructed the jury that in awarding damages to
Appellee it could consider:
The difference in the fair market value of his truck
immediately before and immediately after the occurrence
plus a reasonable amount for loss of use and other
incidential [sic] expenses; such as storage fee.
We do not decide this issue because the total award of damages
of $26,400 appears to include only the fair market value of
Appellee's truck, which is provided for in the AMI damage
instruction, loss of use, and storage expenses, which Appellant
conceded was allowable. Thus, even though, arguably, the trial
court may have erred in instructing the jury as to "other"
incidental expenses, the error was harmless because Appellee was
not awarded any such damages. Where the giving of an erroneous
instruction was harmless, the appellate court will affirm. Skinner
v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993). No
prejudice was shown, therefore, the giving of the incidental damage
instruction was harmless error.
Affirmed.
Newbern, Glaze, and Brown, JJ., dissent.
David Newbern, Justice, dissenting.
This is a negligence case. The majority opinion rejects the
sufficiency-of-the-evidence argument of Ouachita Wilderness
Institute, Inc., on the ground that no argument on "duty" was
presented to the Trial Court. The directed-verdict motion
contained this sentence: "The plaintiff has failed to establish a
negligence case." Negligence is nothing other than the violation
of a duty to act or not to act in a certain way.
In other words, "duty" is a question of whether the defendant
is under any obligation for the benefit of the particular
plaintiff; and in negligence cases, the duty is always the
same -- to conform to the legal standard of reasonable conduct
in the light of apparent risk.
W. Keeton, D. Dobbs, R. Keeton, and D. Owen, Prosser & Keeton on
Torts, p. 356 (5th Ed. 1984). It was enough for the Institute to
question whether the facts proven amounted to negligence. It was
for the jury to decide whether the actions of the Institute were,
what "a reasonably careful person ... would not do under
circumstances similar to those shown by the evidence in this case."
AMI 301.
The problem, however, is that the Trial Court declined to give
a jury instruction patterned on Ark. Code Ann. 16-64-122(c)
(Supp. 1995). That subsection, found in our basic comparative
fault statute, provides: "The word `fault' as used in this section
includes any act, omission, conduct, risk assumed, breach of
warranty, or breach of any legal duty which is a proximate cause of
any damages sustained by any party." [Emphasis supplied.] We no
longer allow an "assumption of risk" instruction which would inform
the jury that if the plaintiff assumed the risk the defendant is
not liable. Rogers v. Kelly, 284 Ark. 50, 679 S.W.2d 184 (1984).
That does not mean, however, that in applying the statutory
comparative fault scheme the jury should not be informed that
"fault" includes "risk assumed." Thus informed, the jury can
intelligently compare the fault of the parties.
The Institute's proffered instruction number 11 was, "When I
use the word `fault' in these instructions, I mean negligence and
assumption of risk." That was a proper instruction which should
have been given. The refusal to give it was prejudicial to the
Institute's case.
I respectfully dissent.
Tom Glaze, Justice, dissenting.
I disagree with the majority that Ouachita Wilderness
Institute failed "to clearly set out the theory of duty in its
motion for directed verdict." The basic law of negligence is that
there must be a determination of what duty, if any, is owed before
factual issues of breach, proximate cause, and damages can be
determined. See First Commercial Trust Co. v. Lorcin Eng'g, Inc.,
321 Ark. 210, 900 S.W.2d 294 (1995); Keck v. American Employment
Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). Clearly by
arguing to the trial court that Mergen failed to establish a
negligence case, OWI was challenging Mergen's burden to first
establish what duty, if any, OWI owed to Mergen as a matter of
law.
The threshold inquiry in a negligence case is whether the
defendant owes a legal duty to the plaintiff. Here, then, the
initial issue to decide is whether OWI, as owner and operator of
the juvenile rehabilitation camp, owed any duty to employee Mergen
to protect him from the illegal activities of the juveniles. If no
duty was proved owed to Mergen, OWI's directed verdict motion
should have been granted.
In Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983), the court stated the rule that one ordinarily is
not liable for the acts of another unless a special relationship
exists. 279 Ark. at 300. This court in First Commercial Trust Co.
v. Lorcin Eng'g, 321 Ark. 210, 215, 900 S.W.2d 202, 204 (1995),
adhered to the more exact rule that, in general, no liability
exists in tort for harm resulting from the criminal acts of third
parties, although liability for such harm sometimes may be imposed
on the basis of some special relationship between the parties,
citing employer to employee as an example. See also 57A Am.Jur.
2d, Negligence, 105, 109 (1989). Further, even when a special
relationship exists, a duty to protect another from a criminal act
may not be imposed unless the harm is foreseeable. Keck, 279 Ark.
294, 652 S.W.2d 2.
My review of the record reflects that Mergen fell short of his
burden showing that OWI owed him a duty to protect his truck key
from theft. Mergen presented no evidence that OWI should have
foreseen that the boys would steal his truck key from his jacket
pocket. In fact, Mergen testified that he had previously left his
keys in his jacket or coat unattended without incident, even though
Mergen stated that he knew there was a risk in doing so. OWI had
the right to assume Mergen would exercise some care for his
personal property. Finally, except for a brief reference to the
break-in of a box where OWI had kept its motor-pool keys at one
time, Mergen presented no evidence of any criminal activity
occurring at OWI sufficient to place OWI on notice that employees'
personal property was not safe from criminal acts by the juveniles.
Because Mergen failed to carry this elementary burden, I would
reverse.
Brown, J., joins this dissent.
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