Pamela Morris v. Justin Keith Griffin

ca04-250

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA04-250

February 23, 2005

PAMELA MORRIS AN APPEAL FROM MISSISSIPPI

APPELLANT COUNTY CIRCUIT COURT

[CV02-116(B)]

V. HON. RALPH WILSON, JUDGE

JUSTIN KEITH GRIFFIN

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

This is an appeal from a personal injury verdict in favor of appellee, Justin Griffin, and from the denial of appellant Pamela Morris's motion for a new trial. Appellant argues that the trial court erred in not granting a new trial because the jury's verdict was not supported by substantial evidence. She further argues that the trial court erred in refusing to instruct the jury that appellee's guilty plea for failure-to-yield was an admission against him, and in refusing to submit her proposed interrogatory to the jury concerning appellee's negligence. We hold that (a) there was substantial evidence to support the jury verdict; (b) the trial court did not abuse its discretion when it refused to issue appellant's proffered instruction on the evidentiary effect of appellee's guilty plea; and (c) the trial court did not abuse its discretion in refusing to submit appellant's proposed interrogatory. Thus, we affirm on all points.

Appellee struck appellant's vehicle on July 2, 1998, near Osceola, Arkansas, as he attempted to leave a gas station and turn left (east). Appellant was traveling west in the inside lane; an ice truck was traveling west in the outside lane, the lane nearest to appellee. Seeing that the ice truck was turning into the same gas station from which he was exiting, appellee attempted to enter the roadway and turn left. As he did, the front fender of his Ford Explorer truck struck appellant's vehicle, a Chevrolet, on the passenger side, causing approximately $7500 in damage to the middle of the vehicle and the back passenger fender.1

Appellant testified that she saw appellee before he pulled out, and that he was looking away from her (west). She testified that she sped up when she saw appellee entering the roadway to avoid having him hit her "head on;" she also testified that she may have hit her brakes. When appellee struck her vehicle, she felt "a real hard bump on the back of my car" or a "hard hit" and heard a "metal scratching." Her vehicle was knocked sideways and into the gas station parking lot.

Appellee was twenty-five years of age at the time of the accident and described himself as an "experienced driver." He admitted at trial that the accident occurred when he struck appellant's car, that appellant was driving properly, and that she had the right of way. Appellee further admitted that he received a citation for failure-to-yield and that he pled guilty to the charge. However, he denied that he failed to keep a proper lookout. Appellee said that if he had known the truck was blocking his view of appellant's vehicle, he would not have attempted to enter the roadway. He maintained that he looked both ways before entering the roadway, but did not see appellant because the ice truck obstructed his vision, and that he did not see her until his vehicle hit hers.

Appellee characterized the accident as a "scraping kind of accident." According to him, the impact did not "really jolt" the truck; the airbags in his vehicle did not deploy; and he was wearing his seatbelt but the seatbelt did not jerk him. Appellee's wife, who was with him when the accident occurred, also testified, stating that she did not see appellant's car until the impact. She said that she was not "thrown about," that she did not hit her head, and that the air bags did not deploy. Neither appellee nor his wife sustained any injuries from the accident.

Brian Jones, the investigating officer, testified that the accident occurred because appellee failed to yield the right-of-way to appellant, in violation of Arkansas Code Annotated § 27-51-603 (Repl. 1994). He stated that he issued appellee a citation for failure to yield the right-of-way. He concluded that appellant did not contribute to the accident. Melissa Cook, the Osceola District Court Clerk, testified that appellee pled guilty to the charge of failure-to-yield. A certified copy of the docket sheet reflecting that disposition was admitted into evidence.

Appellant indicated at the scene that she was uninjured. She did not initially seek medical treatment. However, she testified that after the accident she suffered from pain in her neck and from numbness and tingling in her right hand. She denied that she experienced those symptoms prior to the accident.

Appellant further testified that her damages were $2,137.75 in medical bills and $718.20 for time off work to attend doctors' appointments. She explained that she first experienced pain in her neck "about a week" after the accident; however, in her deposition she testified that the pain began approximately two weeks after the accident. She further testified that the pain "felt much worse" approximately one month after the accident, when she looked up at a bulletin board at work.

In any event, appellant did not seek medical treatment for pain in her neck until August 14, 1998, more than a month after the accident. She visited her family physician, Dr. Charles Swingle, who diagnosed her with inflammation of the neck muscles secondary to the accident. She was ultimately referred to Dr. Rebecca Tuck, a neurologist, who ordered a CT scan of her spine. According to Dr. Tuck's records, appellant relayed to her that she "developed" pain in her neck approximately one week after the accident when she was looking up at a bulletin board at work. Dr. Tuck diagnosed her with muscle strain in her neck and a broad-based mild bulging of her C3-4 disk, secondary to her accident. Dr. Tuck stated in her February 8, 1999 report: "I believe that Ms. Morris suffered a whiplash type muscular injury that has primarily caused the neck pain. She does also have some degenerative changes which frequently may become more symptomatic following the accident." Surgery was not indicated, so appellant was treated with muscle relaxers, pain medication, and physical therapy. She was released from Dr. Tuck's care on September 29, 1999.

Appellant first complained of additional symptoms, pain, numbness, and tingling in her right hand, to Dr. Swingle on December 31, 1998. She testified that the fingers on her right hand were numb and that "[i]t felt like my hand was tied up in knots" and that she experienced "excruciating pain." She stated that once a week her right hand "just goes numb." Dr. Tuck ordered nerve-conduction tests, which ruled out carpal-tunnel syndrome, but she referred appellant to Dr. Clairborne Moseley, an orthopedic doctor, for further testing.

Appellant first saw Dr. Moseley on November 29, 1999. He indicated that, "Ms. Morris comes in to see me about her right wrist and thumb." He noted "right carpal tunnel syndrome symptoms without electrical evidence of carpal tunnel syndrom and "probably early mild arthrosis [degenerative joint disease] at the thumb CMC joint." Upon appellant's follow-up visit on March 2, 2000, Dr. Mosely ordered various blood tests to rule out rheumatic disease.

The final report from Dr. Moseley, dated March 28, 2000, indicated "some inflammation in the body." He further stated that, with regard to appellant's right hand: "These symptoms are more consistent with a very early rheumatic problem than from a traumatic problem, but I have told Mrs. Morris that we do not have a diagnosis of rheumatic disease at this point."

At trial, appellant moved for a directed verdict on the issue of liability, on the theory that there was no dispute as to appellee's negligence, and that the case should be submitted to the jury on the issue of causation and damages alone. The trial court denied the motion. She then asked the trial court to instruct the jury that appellee's guilty plea was an admission that he failed to yield. Appellee's counsel argued that the issuance of such an instruction would constitute an improper comment on the evidence. The trial court refused to submit the instruction.

Appellant also asked the court to submit an interrogatory in which the jury would have been asked whether negligence on appellee's part was the proximate cause of the motor vehicle collision between appellee and appellant. The trial court initially accepted the interrogatory, but subsequently modified it to ask whether negligence on appellee's part was the proximate cause of any damages sustained by appellant. Appellant objected on the ground that the interrogatory, as modified, would preclude a reviewing court from knowing whether the jury determined there was no negligence or whether the negligence was not the proximate cause of her damages. The trial court overruled her objection and the interrogatory, as modified by the court, was submitted to the jury.

The jury returned a verdict in favor of appellee. Appellant subsequently moved for an new trial, asserting that: 1) the verdict was clearly contrary to the preponderance of the evidence; 2) the trial court erred in refusing to offer her requested jury instruction; 3) the trial court erred in refusing to submit the proposed interrogatory. The trial court denied the motion and this appeal followed.

I. Sufficiency of the Evidence/Motion for New Trial

The test for determining whether the evidence supporting a verdict was adequate is the same as the test for determining whether the trial court's denial of a motion for new trial based on sufficiency of the evidence was proper: whether the verdict was supported by substantial evidence. Ballentine v. Sparkman, 327 Ark. 180, 937 S.W.2d 647 (1997) (jury verdict); Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003)(denial of motion for new trial). Substantial evidence is evidence that passes beyond mere suspicion or conjecture and is of sufficient force and character that it will with reasonable and material certainty compel a conclusion one way or another. Ballentine v. Sparkman, supra. We first affirm the trial court's denial of appellant's motion for a new trial because substantial evidence supported the jury's verdict.

During the hearing on the motion for new trial, the trial court expressed mild surprise at the verdict. However, the court explained from the bench that there was substantial evidence from which the jury could have determined that either appellee was not liable (negligent) or that the damages allegedly sustained by appellant were not proximately caused by appellee's negligence, stating:

But I think the first complaint was a week in fact I wrote that in my notes: "The description of injuries began a week after the accident, the hand and back of neck." I think she also did say that in one part of her testimony it was two weeks and I think another time she said one month. There was evidence that these injuries to her might have been caused by rheumatism consistent with early rheumatism, rather than trauma. There was some evidence that she had been sleeping wrong and had been looking up at billboards, I think, at work.

Another thing the jury could have relied on is [sic] the photographs of the vehicle. I mean, it didn't show much damage to the vehicle and it only looked like slight contact. Again, there was no immediate complaint of pain or injury. And I realize this is self-serving, but the defendant's wife indicated that neither she nor her husband was injured, and that the impact was so slight the air bags did not even deploy.

And I think the jury could have looked at that in reaching its decision.

So I'm not prepared to substitute my view of the evidence, or substitute what I would have done to that of the jury....

Appellant's argument is simply that because there was no issue of comparative negligence on her part, and because appellee admitted that he caused the accident by pulling into her lane of traffic, no jury could have concluded that appellee kept a proper lookout. We disagree. While it is not clear whether the jury found that appellee was not negligent or found that any negligence was not the proximate cause of appellant's symptoms, we affirm on either basis.

Appellant relies on Dovers v. Stephenson Oil Co., 81 Ark. App. 92, 98 S.W.3d 462 (2003), because in that case we determined that a fair-minded jury could not have determined that the defendant was free from negligence where his vehicle struck the plaintiff's vehicle from the rear, and thus, we determined that the jury's verdict was not supported by substantial evidence.2 However, our decision was subsequently reversed by the Arkansas Supreme Court in Dovers v. Stephenson Oil Co., 354 Ark. 695, 128 S.W.3d 805 (2003). The supreme court rejected the argument that the plaintiff was entitled to a directed verdict merely because it was not disputed that she was struck from behind. Despite testimony from the investigating officer that the accident was caused by defendant being inattentive and following too closely, the supreme court reasoned that it was within the jury's discretion to find that the defendant was not negligent. Thus, rather than further appellant's argument, Dovers, supra, demonstrates that the jury in her case was not required to find that appellee was negligent even though it was undisputed that he caused the accident.

Further, the jury could have found that appellant's complaints were not caused by the accident. Appellant did not see a doctor until more than five weeks after her injury occurred and she inconsistently reported the onset of her symptoms. In addition, as the trial court noted, the airbags did not deploy and the damage to the vehicles appeared to be slight, from which the jury could have inferred that the impact was not severe enough to have caused appellant's problems.

It is true that the medical evidence, if accepted by the jury, would support a finding that appellant's neck condition was related to the accident. However, a jury may accept or reject any part of a witness's testimony. Patterson v. Odell, 322 Ark. 394, 909 S.W.2d 648 (1995). Accordingly, the jury was not required to believe that appellant did not experience any symptoms in her neck before the accident; nor was it required to believe the medical diagnoses. For the above reasons, we hold that substantial evidence supported the jury's verdict and, therefore, that the trial court did not err in denying appellant's motion for a new trial on that ground.

II. Jury Instruction

Appellant also argues that the trial court erred in not issuing her proffered instruction indicating that appellee's guilty plea was an admission against his interest. A party is entitled to a jury instruction when it is a correct statement of the law, and where there is some basis in the evidence to support giving the instruction. Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003). When instructions are requested that do not conform to Arkansas Model Instructions (AMI), they should be given only when the trial judge finds that the model instructions do not contain an essential instruction or do not accurately state the law applicable to the case. Id. The AMI are to be used as a rule, and non-model instructions should only be used when a model instruction cannot be modified. Id. Furthermore, it is not error for the trial court to refuse a proffered jury instruction when the stated matter is correctly covered by other instructions. Id. We will not reverse a trial court's refusal to give a proffered instruction unless there was an abuse of discretion. Id. We hold there was no abuse of discretion on the facts of this case.

Citing to McCorkle Farms, Inc. v. Thompson, 79 Ark. App. 150, 84 S.W.3d 884(2002)(reversing where the trial court failed to instruct the jury that violation of an administrative rule was evidence of negligence), and to Harbor v. Campbell, 235 Ark. 492, 360 S.W.2d 758 (1962) (holding that a plea of guilty for a traffic violation for the identical traffic mishap is a an admission or a declaration against interest), appellant argues that the trial court committed reversible error in failing to instruct the jury that appellee's guilty plea was an admission against interest. She maintains that such an instruction was warranted to rebut appellee's assertion that the accident was unavoidable because his view was obstructed. She further maintains that the instruction was necessary to allow her to present her theory of the case, and that it was necessary to instruct the jury on the law of the case in such a manner as to leave no basis for misrepresentation or mistake. McCrory v. Johnson, 296 Ark. 231, 755 S.W.2d 566 (1988); Williams v. Ark. State Highway Comm'n, 21 Ark. App. 98, 730 S.W.2d 245 (1987).

It is true that a plea of guilty to a traffic accident is admissible in a subsequent civil action as a declaration against interest. Patterson v. Odell, supra; Harbor, supra. However, the Arkansas Supreme Court has not yet discussed a litigant's entitlement to a specific jury instruction regarding such a guilty plea. We agree with appellee that there appears to be no authority that would require a trial court to issue the instruction as proposed by appellant.

Moreover, the trial court did not err in denying the non-model instruction because the issue was covered by a model instruction. See Barnes v. Everett, supra; Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991). Appellant presented evidence that appellee pled guilty to failure-to-yield; the trial court issued an instruction based on AMI 903, informing the jury that violation of the failure-to-yield statute was evidence of negligence.

Nor do we see how appellant was prevented from presenting her theory of the case. That appellee caused the accident was made abundantly clear by appellant's testimony, appellee's own admission of the same, the investigating officer's testimony, and by the evidence offered by the clerk demonstrating that appellee pled guilty to failure-to-yield. This case is unlike McCorkle Farms case because the jury here was properly instructed as to the effect of the violation of the failure-to-yield statute - that the violation is evidence of negligence that was to be considered by the jury in reaching its verdict.

Finally, the jury instruction was properly excluded because it seems likely it would have confused the jury. The jury could have interpreted the instruction to mean that a presumption of negligence had been established, which would contradict the instruction stating that appellee's failure-to-yield was merely evidence of negligence. Accordingly, we affirm the trial court's denial of appellant's motion for a new trial based on its refusal to instruct the jury that appellee's guilty plea was an admission against his interest.3

III. Interrogatory

The final issue is whether the trial court erred in modifying appellant's proposed interrogatory. It is within the trial court's discretion whether to submit a case to the jury on a general verdict or on interrogatories. Ark. R. Civ. P. 49(a); Hough v. Cont'l Leasing, Corp., 275 Ark. 340, 630 S.W.2d 19 (1982). The form of the special verdicts submitted to the jury is also within the trial court's discretion. See Ark. R. Civ. P. 49(b). We affirm because the interrogatories submitted by the trial court were proper.

The original interrogatories submitted by appellant were as follows:

1. Did you find from a preponderance of the evidence that there was negligence upon the part of Justin Griffin [sic] which was a proximate cause of the motor vehicle collision between Justin Griffin and Pamela Morris?

...

2. If you have answered Interrogatory No. 1 yes, please fix the amount of money which you find from a preponderance of the evidence will reasonably and fairly compensate Pamela Morris for any of the following four elements of damages sustained that you find were proximately caused by the negligence of Justin Griffin.

...

[Interrogatories 2.a. and 2.b. concerned the nature, extent and duration of any injury and the reasonable expense of any necessary medical care, treatment and services received.] (Emphasis added.)

The trial court originally accepted these interrogatories, but subsequently modified the first interrogatory to read:

1. Did you find from a preponderance of the evidence that there was negligence upon the part of Justin Griffin which was a proximate cause of any damages sustained by Pamela Morris? (Emphasis added.)

Appellant asserts that case law required her to propose Interrogatory # 1 so that it would be possible to ascertain whether the jury found for appellee because it determined that he was not negligent or because it determined that his negligence was not the cause of appellant's damages. Tyson Foods, Inc. v. Davis, 347 Ark. 566, 66 S.W.3d 568 (2002); Garrett v. Brown, 319 Ark. 662, 893 S.W.2d 784 (1995). She also argues that the trial court's failure to accept her interrogatory prevents this court from determining whether the jury's finding was correct and that therefore, the jury's finding is not supported by substantial evidence. Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988).

Appellant's argument is not persuasive. In Tyson Foods, Inc. supra, and Sterling Drug, Inc. v. Oxford, supra, the plaintiffs asserted numerous theories of liability, and the Arkansas Supreme Court refused to question or theorize regarding the basis of the jury's findings because there was no request for special interrogatories concerning liability or damages. By contrast, here there was only one theory of liability (negligence) and the proper interrogatories were submitted. Further, in Garrett v. Brown, supra, the jury returned a verdict for the plaintiffs who were injured in a motor vehicle accident and the trial court denied the defendants' request for a new trial based on grossly inadequate damages. The Arkansas Supreme Court affirmed because the defendants did not submit interrogatories requesting that the jury allocate the damage award.

Here, the only real issues for the jury were whether the appellee was negligent and, if so, whether that negligence was the proximate cause of appellant's damages. Contrary to appellant's argument, the interrogatory submitted by the trial court does not prevent us from determining whether the jury's verdict was proper. Unlike the interrogatories submitted in Garrett v. Brown, supra, the interrogatories submitted here separately accounted for each element of damage that appellant was requesting. The interrogatory, as modified by the trial court, was a correct statement of the law because it first asks the jury to determine whether there was any negligence that was the proximate cause of her damages; if so, the remaining interrogatories addressed the determination of damages.

Thus, the interrogatories submitted in the instant case addressed each of the elements required to be proven in a negligence case: liability, damages, and proximate cause. These elements of proof were further reflected in AMI 203, governing the burden of proof in a negligence claim, which was also submitted to the jury. It is true that we cannot ascertain whether the jury found that appellee was not negligent or whether he was negligent but his negligence was not the proximate cause of appellant's damages. This is of no moment, however, because for the reasons previously stated, we affirm on either ground.

Finally, the interrogatory proposed by appellant would have posed the danger of allowing the jury to reach the issue of damages merely by finding that appellee caused the collision (which was not at issue), without first finding that he was negligent in such a manner that was the proximate cause of any damages. Given that appellee's conduct in causing the accident was merely evidence of negligence, and was not a presumption of the same, appellant's requested interrogatory would have been an improper statement of the law. Therefore, the trial court properly denied her motion for new trial based on its refusal to submit it.

Affirmed.

Robbins and Roaf, JJ., agree.

1 Appellant's property damages were not at issue in this case.

2 Appellant actually cites this case in support of her contention that the trial court erred in not submitting her interrogatory. However, if this case applies at all, it seems to apply in the context of her sufficiency of the evidence argument.

3 Appellee also argues that had the trial court provided the instruction, it would have violated Arkansas Constitution Article 7 § 23, which prohibits judges from making improper comments on the evidence. Because we affirm for other reasons, we do not address this issue.