Frank Hill v. Central Arkansas Equipment & Supply, Inc., Central Arkansas Maintenance, Inc., and Deere & Company

DIVISION IV

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

KAREN R. BAKER, JUDGE

CA01-834

February 20, 2002

FRANK HILL AN APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT

V. NO. CV2000-4376

CENTRAL ARKANSAS EQUIPMENT HONORABLE JOHN C. WARD,

& SUPPLY, INC., CENTRAL CIRCUIT JUDGE

ARKANSAS MAINTENANCE, INC.,

and DEERE & COMPANY

APPELLEES AFFIRMED

This case involves products-liability and negligence issues. Appellant Frank Hill was injured in August 1999 while driving a tractor and a rotary cutter (commonly referred to as a "bush hog") combination for his employer, appellee Central Arkansas Maintenance, Inc. (CAM), which had a contract with the State of Arkansas to mow along portions of the interstate and state highways. The tractor and bush hog rolled over as appellant was cutting grass along Interstate 30 in Pulaski County. Appellee Central Arkansas Equipment & Supply, Inc. (CAE), had sold the equipment to CAM several years before appellant's accident. The tractor and bush hog were manufactured by Deere & Company (John Deere). After the accident, appellant was taken to a hospital where, approximately five hours later, a urine specimen was taken from him at the direction of CAM's workers' compensation carrier. His urine sample tested positive for marijuana and cocaine. Appellant filed suit against CAE, CAM, and John Deere, alleging negligence and products-liability claims. CAM was later dismissed as a defendant because appellant's exclusive remedy against it was a workers' compensation claim. At the conclusion of appellant's case at trial, the circuit judge granted appellees' motions for directed verdict. Appellant brings this appeal from that decision. We hold that appellant failed to establish his products-liability and negligence claims against John Deere and CAE.

Standard of Review

In reviewing a directed verdict, we view the evidence in the light most favorable to the party against whom the verdict was granted and give it its highest probative value, taking into account all reasonable inferences deducible from it. Nicholson v. Simmons First Nat'l Corp., 312 Ark. 291, 849 S.W.2d 483 (1993).

Facts

Appellant testified at trial that he was mowing along a very steep incline when he first saw his tractor's wheels come off the ground and then saw the bush hog wings rising up; after that, the tractor and bush hog rolled over with him twice, seriously injuring him. He stated that he had seen the same thing happen to another worker and added that, one year before this accident, a similar event had happened to him in the same area but he had been able to stop that tractor from rolling over. He said that it had not occurred to him that he should exercise caution on this slope even though he had almost had an accident there the year before. Appellant testified that, when the accident occurred, the tractor's joystick control was in the "float position," which he described as being in the middle of the joystick. Appellant agreed that a tractor and bush hog need not be defective to slide down a steepslope. He stated that he did not know how the accident had happened and admitted that he had not checked the hydraulic fluid on the tractor before he began mowing. Several times, appellant admitted that he could not point to anything that was wrong with the tractor or bush hog that would cause the wing to rise by itself.

Bobby Leming, who owns CAM and CAE, testified that CAE maintained and serviced the tractors and bush hogs for CAM. He stated that CAE's agreement with John Deere provided that CAE would offer training and instruction in the safe operation of the equipment and that it had done so when the equipment was sold to CAM several years earlier. Mr. Leming testified that Mr. Smith, appellant's supervisor, was responsible for instructing each driver in the proper use of the equipment. Further, Mr. Leming testified that appellant had been incorrect as to the location of the "float position" on the tractor's joystick control and that, instead of the middle position, as appellant stated, it is actually in the forward position.

Mr. Smith testified that the wings on some bush hogs had risen for no apparent reason on several occasions in the past. Robert Hogan and David Murdock testified that, while driving a tractor and bush hog for CAM, the wings on the equipment had risen without their having moved the joystick. They stated that, to their knowledge, the problem had not been fixed with those tractors. Neither witness, however, professed to have any information about the condition of appellant's tractor or bush hog. Mr. Murdock added that he did not know what had caused the wings on appellant's bush hog to rise and said he could not say if he had used the same tractor in the past.

The Products-liability Claim

In his complaint, appellant alleged that John Deere and CAE were strictly liable under the Arkansas Products Liability Act of 1979 for supplying defective equipment that was unreasonably dangerous. To recover under a strict-liability theory, a plaintiff must prove, inter alia, that the defendant supplied the product in a defective condition that rendered it unreasonably dangerous and that the defective condition was the proximate cause of the plaintiff's harm. See Ark. Code Ann. § 4-86-102(a) (Repl. 1996); E.I. Du Pont de Nemours & Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983). The doctrine of strict liability does not change the burden of proof as to the existence of a flaw or defect in a product, but it does do away with the necessity of proving negligence in order to recover for injuries resulting from a defective product. Williams v. Smart Chevrolet Co., 292 Ark. 376, 730 S.W.2d 479 (1987).

A "defective condition" is a condition that renders a product unsafe for reasonably foreseeable use and consumption. Ark. Code Ann. § 16-116-102(4) (1987). A product is "unreasonably dangerous" if it is dangerous to an extent beyond that which would be contemplated by the ordinary and reasonable user, assuming the ordinary knowledge of the community or similar users as to its characteristics, propensities, risks, dangers, and proper and improper uses, as well as any special knowledge, training, or experience possessed by the user or which he was required to possess. See Ark. Code Ann. § 16-116-102(7) (1987). The plaintiff still has the burden of proving that a defendant has sold a product that he should not have sold and that it caused his injury. Williams v. Smart Chevrolet Co., supra. The mere possibility that this may have occurred is not enough, and there must beevidence from which the jury may reasonably conclude that it is more probable than not. Id. Appellant presented no direct evidence of a defect in the equipment. The mere fact of an accident, standing alone, does not make out a case that the product was defective. Id. However, the addition of other facts tending to show the defect existed before the accident may be sufficient. Higgins v. General Motors Corp., 287 Ark. 390, 699 S.W.2d 741 (1985). Under appropriate circumstances, a user's testimony alone may be sufficient evidence. Id. The burden, however, remains on the plaintiff to prove that the product was sold in a defective condition and that it was unreasonably dangerous. Farm Bureau Ins. Co. v. Case Corp., 317 Ark. 467, 878 S.W.2d 741 (1994); see also O'Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997).

Common sense dictates that a tractor and bush hog can turn over on a steep incline absent a defect. Therefore, we must examine the evidence to see whether appellant negated other causes of the accident. At trial, appellant's witnesses stated that there could have been other causes for the accident, such as the degree of the incline, appellant's possible mispositioning of the joystick, the tractor's speed, an improper wheel alignment, appellant's possible lack of attention, and the wetness of the grass. Appellant did not negate these other possible causes of the accident. It is clear that he failed to prove the existence of a defect when the tractor and bush hog left John Deere or when CAE supplied them to CAM. Accordingly, he did not establish a prima facie case of products liability against either appellee. We hold that the circuit judge did not err in directing a verdict on those claims.

The Negligence Claim

Appellant also asserted negligence claims against both appellees. He contended in his complaint that CAE was negligent in failing to properly maintain and service the tractor and bush hog, failing to properly supervise and train appellant, and failing to warn appellant of the danger of cutting on a steep incline. Appellant alleged that John Deere had been negligent in the design, manufacturing, assembling, and installing of the tractor and bush hog hydraulic system and in failing to properly inspect the tractor and bush hog.

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. J. E. Merit Constructors, Inc. v. Cooper, 345 Ark. 136, 44 S.W.3d 336 (2001); Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997); Pollard v. Union Pac. R.R., 75 Ark. App. 75, 54 S.W.3d 559 (2001). Negligence is the failure to do something that 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. Ouachita Wilderness Inst. v. Mergen, supra. While a party can establish negligence by direct or circumstantial evidence, that party cannot rely on inferences based on conjecture or speculation. Id.

Duty is a concept that arises out of the recognition that relations between individuals may impose upon one a legal obligation for the other. Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997). The question of what duty, if any, is owed by one person to another is always a question of law. Heigle v. Miller, 332 Ark. 315, 965 S.W.2d 116 (1998). Appellant argues that, because Mr. Smith, appellant's supervisor with CAM, also workedfor CAE, CAE had a duty to train him in the safe handling of the tractor and bush hog and to warn him about the steepness of the slope, and that the question of Mr. Smith's agency for CAE should have gone to the jury. We cannot agree.

An agency relationship is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control and that the other consents so to act. Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985). Ordinarily, agency is a question of fact to be determined by the trier of fact, but where the facts are undisputed, and only one inference can reasonably be drawn from them, it becomes a question of law. Id.

Appellant presented no evidence that, in the circumstances leading up to the accident, Mr. Smith was acting on behalf of CAE in supervising appellant's mowing along the interstate. In our view, appellant failed to raise a jury question on this issue. Accordingly, appellant failed to prove that CAE had a duty to supervise him.

Also, there is no duty to warn of a danger when the dangerous defect is open and obvious. Forrest City Mach. Works, Inc. v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981). Appellant's and his witnesses' testimony left no doubt that a tractor and bush hog are in danger of rolling over on a steep incline and that appellant was fully aware of that risk. Thus, he failed to establish that CAE had a duty to warn him.

Further, appellant failed to establish any breach of CAE's duty to maintain and service the tractor and bush hog, because he produced no evidence that they were in a defective condition when he used them on the day of the accident. Although his witnesses testified that some tractors and bush hogs owned by CAM had experienced problems withtheir wings, appellant failed to show that any such problems had occurred in the past with this particular equipment.

Appellant, therefore, did not establish a prima facie case of negligence on the part of CAE.

The Remaining Claims

Appellant also argues that the trial judge erred in refusing to grant a mistrial after a juror made remarks that appellant characterizes as evidence of the juror's prejudice. This case, however, was decided on directed verdict and was not submitted to the jury. Therefore, any decision we might render on this issue would be moot. With few exceptions not applicable here, we will not address moot issues. See Dillon v. Twin City Bank, 325 Ark. 309, 924 S.W.2d 802 (1996).

Appellant's argument that evidence of his positive test for marijuana and cocaine five hours after the accident was irrelevant, inadmissable, and prejudicial also fails. Appellant failed to establish the elements of his causes of action against appellees; thus, he suffered no prejudice by the admission of this evidence. Unless the appellant demonstrates prejudice, we will not reverse. Lucas v. Grant, 61 Ark. App. 29, 962 S.W.2d 388 (1998).

Finally, appellant argues that the trial judge erred in failing to sanction appellees' attorney for his ex parte contact with Clint Evans, the emergency medical technician who took appellant's urine specimen for the drug test, and that this witness should have been excluded from testifying at trial pursuant to Arkansas Rule of Evidence 503. However, Mr. Evans did not testify because a directed verdict was entered at the conclusion of appellant'scase. Thus, appellant suffered no prejudice by the trial court's refusal to bar this witness from testifying.

Affirmed.

Robbins and Neal, JJ., agree.