Bobby L. Rush v. Barbara A. Bishop and Plummer's Flowers

ca04-392

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA04-392

April 13, 2005

BOBBY L. RUSH APPEAL FROM PERRY COUNTY

CIRCUIT COURT [NO. CV 2002-94]

APPELLANT

V.

BARBARA A. BISHOP and HONORABLE CHRIS PIAZZA,

PLUMMER'S FLOWERS CIRCUIT JUDGE

APPELLEES AFFIRMED

Andree Layton Roaf, Judge

Appellant, Bobby Rush, sued appellees Plummer's Flowers and its employee, Barbara Bishop, for negligence after Bishop rear-ended his truck while she was making a delivery for Plummer's Flowers. Rush sought damages for injuries allegedly sustained during the accident. The jury returned a verdict in favor of appellees, and Rush filed a motion for new trial, which was denied. On appeal, Rush argues that the jury's verdict is not supported by substantial evidence. We affirm.

On February 22, 2001, Rush was involved in an automobile collision in which Bishop rear-ended Rush as he was turning into his body shop. Rush was driving a 1995 Ford pickup truck, and as he began approaching his driveway, Bishop's vehicle struck Rush from behind. Rush testified that he had noticed Bishop about one hundred yards back but did not believe that she would catch up to him before he reached his driveway. He further stated that Bishop's car hit his car twice before knocking him into a tree stump approximately thirty to forty feet away from his driveway. According to Rush, the second impact knocked him unconscious, and, when he regained consciousness, his wife was screaming and attempting to move his foot, which was stuck underneath the truck's clutch pedal. Bishop testified that she saw Rush approximately one-tenth of a mile ahead of her; that he looked as if he were going to make a turn; that she assumed that he would have completed his turn and been out of the road by the time she approached him; that, as she approached his vehicle and realized that Rush was still in the road, she began to apply her brakes and switch lanes, but that she was not able to avoid striking Rush's bumper; that Rush "gassed" his truck and hit the stump; and that her airbag did not deploy.

Rush testified that he exited his truck and walked to Bishop's car to determine whether she was hurt. Bishop stated that she was not hurt; that Rush showed her where his leg was scraped, but stated that he also was not hurt; and that he remarked on the dangerous nature of that section of roadway. However, Rush testified that, shortly after the accident, he experienced some pain and went to the Conway County Hospital. Rush was examined, underwent X-rays, had his leg dressed, and afterward returned to his body shop. He subsequently contacted his family physician, Dr. Hyatt, who prescribed pain medication. Rush testified that he is currently taking five different pain medications and that the pain generates from the back of his skull to his shoulders and down his arms. He further testified that any physical activity results in an inability to move his arms the next day. Rush stated that the last time he saw Dr. Hyatt he received a pain shot, and afterward Dr. Hyatt had to help him get dressed. Rush said that he suffers from headaches and, since the accident, he has not been able to think as well as he once did and has trouble staying focused. Rush testified that, prior to the accident, he had never experienced these types of problems.

Rush also sought treatment from Dr. Frach for his pain. He underwent traction, which provided temporary pain relief, but did not provide long-term relief. Dr. Hyatt subsequently referred Rush to Drs. Wilbur Giles and Todd Ghormley. Rush saw Dr. Giles on May 17, 2001, and he performed an examination and prescribed pain medication and physical therapy. Rush stated that, during his second visit, Dr. Giles recommended that Rush undergo surgery for the injury to his neck. Rush testified that, at that time, he was not amenable to surgery because of the cost associated with the procedure.

Dr. Giles testified that he treated Rush for chronic neck pain, shoulder discomfort, left side discomfort, significant arm pain, headaches, difficulty resting, and occasional numbness in the thigh region. Rush also had a decreased range of motion of his neck and evidence of spasms, some numbness to his left thumb and index finder. Dr. Giles stated that Rush's MRI showed some degenerative disc disease as well as some inflammation. Without medical reports demonstrating otherwise, Dr. Giles stated that he would have to assume that the injuries not related to the degenerative disc disease were a result of the February 22 accident.

Beginning December 14, 2001, Rush began treatment with Dr. Daniel W. Fowler III, a licensed chiropractor, for acute pain on the left part of his neck, low back pain, and problems with his shoulder. He testified that, when a person is involved in a rear-end collision, the neck and body hyper-extend backward, which usually injures the cervical and lumber regions of the body. As of April 2002, Rush was continuing to experience acute pain, and Dr. Fowler recommended that he see a pain specialist or a neurosurgeon. After reviewing the neurosurgeon's report, Dr. Fowler stated that, on a scale of one to ten, Rush was experiencing level eight pain, which is a high level of pain, to his low back and left shoulder area. Dr. Fowler also reviewed three reports of MRI studies taken of Rush's head, cervical, and lumbar regions of the body. The MRI, according to Dr. Fowler, showed annular bulges at Rush's L3, L4, L5, and problems at L5 and S1. The MRI studies also showed central disc protrusion at C3-4. These problems, Dr. Fowler stated, are consistent with a rear-end collision. He also stated that while an annular bulge is not a herniation, it can be caused by trauma and does cause pain. Because there was no medical evidence indicating that Rush suffered an injury before the date of the accident, or showing that he suffered from arthritis, Dr. Fowler attributed the annular bulges to the February 22 collision. Fowler also opined that Rush had suffered a permanent impairment as a result of the February 22 accident.

Although Rush testified that he is no longer able to work, stand for more than ten to fifteen minutes, and participate in activities such as hunting, horseback riding, walking, gardening, and building houses, he admitted that he had been observed on a surveillance tape working at his body shop. He also denied ever being involved in another automobile accident; however, he later admitted that he had been in two accidents after the February 22 incident, but claimed that he suffered no injuries, and admitted being involved in a rear-end collision in 2000. Rush admitted that he had gone on vacation, had been fishing, and had operated a hydraulic lift at his body shop, and performed the repairs to his truck himself.

The jury returned a general verdict in favor of Bishop, and Rush filed a motion for new trial, which was denied. Rush brings this timely appeal from the denial of this motion for new trial.

Rush argues that the jury's verdict was clearly contrary to the preponderance of the evidence and law, and that the trial court erred by not granting a new trial pursuant to Arkansas Rule of Civil Procedure 59(a)(6). The standard of review for a motion for new trial based on the ground that the verdict is clearly against the preponderance of the evidence, see Ark. R. Civ. P. 59(a)(6) (2004), depends on whether the motion was granted or denied. Depew v. Jackson, 330 Ark. 733, 957 S.W.2d 177 (1997). If the motion was granted, then the standard of review is abuse of discretion. Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d (1994); Razorback Cab of Fort Smith, Inc. v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993); Worthington v. Roberts, 304 Ark. 551, 803 S.W.2d 906 (1991); Wilson v. Kobera, 295 Ark. 201, 748 S.W.2d 30 (1988); Lamons v. Croft, 290 Ark. 341, 719 S.W.2d 426 (1986). On the other hand, if the motion was denied, then the trial court's denial of the motion for new trial will be affirmed if there is any substantial evidence to support the verdict. Depew, supra. See also Bearden v. J.R. Grobmeyer Lumber Co., 331 Ark. 378, 961 S.W.2d 760 (1998); McWilliams, supra; Wilson, supra.

Because Rush's motion was denied, the applicable standard of review in this case is the substantial evidence standard, and the evidence is viewed in the light most favorable to Plummer's Flowers and Bishop, appellees in the case. Schafer v. McGhee, 286 Ark. 113, 689 S.W.2d 537 (1985). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or another without resorting to mere conjecture and speculation. Depew, supra.

Before discussing the merits of Rush's argument, we note that we cannot tell why the jury returned a defendant's verdict because a general verdict form was used. Our appellate courts have stated, "We cannot determine, and we will not speculate, upon which theory the general verdict of negligence was premised." See Union Pacific R.R. Co. v. Barber, 356 Ark. 268, 293, 149 S.W.3d 325, 341 (2004). When special interrogatories concerning liability or damages are not requested, our appellate courts are left in the position of not knowing the basis for the jury's verdict, and it will not question nor theorize on appeal about the jury's findings. Hyden v. Highcouch, Inc., 353 Ark. 609, 110 S.W.3d 760 (2003). In this case, we cannot determine on which basis the jury returned its verdict, but, as discussed below, we conclude that substantial evidence supports the jury's verdict.

In Dovers v. Stephens Oil Co., Inc., 354 Ark. 695, 128 S.W.3d 805 (2003), the appellant brought a negligence action against the appellee for damages arising out of a rear-end collision. The jury returned a defendant's verdict, and Dovers filed a motion for new trial, asserting that the jury's verdict was not supported by substantial evidence. Her motion was denied, and Dovers appealed the trial court's decision, asserting that the denial of her motion was erroneous because the jury's verdict was not supported by substantial evidence. In support of her position, Dovers argued that Gulley had been negligent in following her vehicle too closely or in failing to pay attention to the road. Gulley testified that he had been attentive and was not following Dovers too closely.

The supreme court considered Schaefer, supra, which states:

It is undisputed appellant's vehicle was struck from the rear by the appellee's vehicle. Appellant assumes from that fact alone the jury was obligated to return a verdict in her favor. This is not our law. A plaintiff must prove that she sustained an injury, that the defendant was negligent, and that the negligence of the defendant was the proximate cause of her injuries.

Schaeffer, 286 Ark. at 114-15, 689 S.W.2d at 538. The Schaeffer court also stated:

Where the sufficiency of the evidence to support a verdict is the issue on appeal, the standard of review is whether the verdict is supported by substantial evidence. Obviously in appeals from a verdict for the defendant the rule cannot always be read literally, as the defendant may have introduced little or no proof, yet the jury found against the plaintiff. It makes little sense in such cases for the appellant to argue the strict application of the rule, insisting that a reversal is required because the defendant's proof failed to meet the substantial evidence test. The evident fact is the plaintiff failed to convince the jury, or fact finder, of an essential element of proof. That seems to have been the case with this jury, it simply did not think the defendant was negligent, or that the plaintiff's injuries were proximately caused by the negligence, if any. Thus, the lack of substance is not with the defendant's proof, but with the plaintiff's.

Id. at 115, 689 S.W.2d at 538. (Emphasis added.) In Webb v. Bouton, 350 Ark. 254, 262, 85 S.W.3d 885, 889-90 (2002), our supreme court also stated:

We have noted that generally, a defense verdict will always be supported by substantial evidence because the plaintiff had the burden of proof and the jury is the sole judge of credibility of witnesses and the weight and value of the evidence.

Furthermore, it is incumbent on the plaintiff to make out the case stated in his complaint and the jury is not required to believe the plaintiff's evidence, even if the defendant offers no evidence. Dover; supra. In addition, no matter how strong the evidence of a party, who has the burden of proof, he is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise. Webb, supra.

We find that substantial evidence supports the jury's verdict. The mere fact that Rush was rear-ended is not sufficient to prove negligence. Rush, as the plaintiff, had the burden of proof in this case. Accordingly, Rush had the burden of proving that Bishop was negligent, that he suffered injuries, and that Rush's negligence was a proximate cause of his injuries. Taking these one at a time, we find that the jury's verdict is supported by substantial evidence.

In support of his position that Bishop negligently rear ended his car, Rush points to these facts presented during the trial: (1) that it was a clear day and nothing was obstructing the road or Bishop's view; (2) that Bishop stated that she saw Rush in the road; (3) that Bishop paid for Rush's damages to his truck, which demonstrates her admission of liability, and that evidence was submitted to the jury without objection; (4) Bishop offered no proof of misconduct on Rush's part, nor did she demonstrate that Bishop contributed to the accident; and (5) the only evidence Bishop offered to show that the accident was not her fault was her testimony that Rush had time to complete his turn and that she did her best not to hit Rush's vehicle and Rush's comment that the site of the accident was dangerous.

Rush's argument is misguided. First, although Rush submitted evidence to the jury in an attempt to demonstrate that Bishop was negligent, the jury was not required to believe this testimony. Second, Bishop had no burden of proof in this case, and therefore, Rush's assertions that she failed to prove that she was not negligent or that he was negligent is not consistent with our law. It was within the sound province of the jury to believe or disbelieve the evidence submitted by Rush even if Bishop had offered no evidence.

Second, Rush contends that the jury could not have reasonably concluded that he sustained absolutely no injuries where he submitted evidence of $15,000 in medical bills and testimony in the form of medical opinion that his injuries were the result of the February 22 accident. Although both Drs. Fowler and Giles testified that Rush apparently had some injury consistent with a trauma, the jury was not required to believe any witness's testimony. Moreover, the jury's failure to award nominal damages is not sufficient to warrant reversal. In this case, it was shown that Bishop sustained some minor injury to his leg. In Thigpen v. Polite, 289 Ark. 514, 516-17, 712 S.W.2d 910, 912 (1986), the supreme court stated, "But when there is no property right to be vindicated by nominal damages, the issue being negligence only, the jury's failure to award nominal damages is not reversible error." (citing Harlan v. Curbo, 250 Ark. 610, 466 S.W.2d 459 (1971)).

Finally, the jury could have found that the accident was not the proximate cause of all of Rush's injuries. Here, Rush testified that he had never been in an automobile accident before but conceded on cross-examination that he had been involved in a collision in 2000 and two accidents following his accident with Bishop. Although he maintained that he was not injured in any of the other accidents, the jury was not required to believe this testimony and could have inferred that Rush's injuries were the result of other accidents.

Accordingly, we affirm the trial court's denial of the motion for new trial because substantial evidence supports the jury's verdict.

Affirmed.

Bird and Glover, JJ., agree.