Sharon Bell v. James Misenheimer
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DIVISIONS III & IV
JUDGE KAREN R. BAKER
CA07-1132
June 4, 2008
SHARON BELL
APPELLANT
APPEAL FROM THE COLUMBIA
COUNTY CIRCUIT COURT
[NO. CV-06-28-4]
v.
HONORABLE CAROL
ANTHONY, JUDGE
JAMES MISENHEIMER
CRAFTON
APPELLEE
REVERSED & REMANDED
Appellant Sharon Bell challenges a jury verdict in favor of appellee James Misenheimer
brought by Ms. Bell for damages from a car accident. She asserts that there was no evidence to
support the circuit court’s instruction to the jury on comparative fault and that she is entitled to a new
trial. Her argument has merit; accordingly, we reverse and remand for a new trial.
On December 12, 2005, Ms. Bell was driving down Powell Street in Taylor, Arkansas, with
the purpose of attending her aunt’s funeral. Mr. Misenheimer was attending the same funeral. Both
drivers were seeking places to park their vehicles when the accident occurred. Mr. Misenheimer
testified that he had pulled into a driveway with the intention of backing out and going to a parking
space that he had seen. He stated that he did not see Ms. Bell because her car was lower than the cars
parked beside the highway which blocked his vision of her car. He explained that he was easing very
slowly back into the highway, when the impact occurred. He confirmed that the impact was “pretty
hard,” but that the only damage to his truck was the left rear corner of his bumper. Ms. Bell’s car
suffered considerably more damage, including a broken axle.
In asserting that the comparative-fault instruction was proper, Mr. Misenheimer relies upon
his testimony that Ms. Bell exited her vehicle after the accident and said that “she was looking to the
left to find a parking place in front of the church and didn’t see [Mr. Miseheimer’s vehicle].” At trial,
Ms. Bell disputed the assertion that she was looking to the left when the accident occurred. In her
testimony, she also stated that she did not see Mr. Misenheimer because of the cars that were parked
along the road that obscured her vision of him. Mr. Misenheimer relies upon Ms. Bell’s testimony
that she “never saw Mr. Misenheimer,” and her statement that “I wasn’t looking directly beside me,”
to support his argument that Ms. Bell failed to maintain a proper look out while Mr. Misenheimer
was doing everything that a reasonably careful person would do under the circumstances. He further
asserts that Ms. Bell admitted fault at the scene.
Instructions should be based on the evidence in the case, and instructions submitting matters
on which there is no evidence or stating only abstract legal propositions should not be given. Davis
v. Davis, 313 Ark. 549, 856 S.W.2d 284 (1993). On the other hand, it is error to exclude a requested
instruction if there is evidence which supports its utilization. Parker v. Holder, 315 Ark. 307, 314, 867
S.W.2d 436, 439 (1993). For an instruction on comparative fault to be warranted, it is necessary for
there to be evidence that the plaintiff’s actions were a proximate cause of her damages. Skinner v. R.J.
Griffin & Co., 313 Ark. 430, 433, 855 S.W.2d 913, 915 (1993). When reasonable minds can only
conclude that there was no evidence of proximate cause, the instruction is improper. Id. In cases
where it is nearly impossible to prove prejudice, the giving of the improper instruction is sufficient
to require a new trial. Id. at 435, 855 S.W.2d at 916.
Furthermore, the issue of duty is always one for the trial court and not the jury. Bader v.
Lawson, 320 Ark. 561, 898 S.W.2d 40 (1995); Little Rock & Ft. S. Ry. Co. v. Henson, 39 Ark. 413
(1882) (holding that in every civil case, where negligence is the issue, it is the duty of the court, when
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the evidence is all in, to sift it and determine as a matter of law whether it involves negligence or
not). If the court finds that no duty of care is owed, the negligence count is decided as a matter of
law, and summary judgment or a directed verdict is appropriate. D.B. Griffin Warehouse, Inc. v.
Sanders, 336 Ark. 456, 463– 64, 986 S.W.2d 836, 840 (1999); Dunn v. Westbrook, 334 Ark. 83, 971
S.W.2d 252 (1998); Smith v. Hansen, 323 Ark. 188, 196, 914 S.W.2d 285, 289 (1996). See also, First
Commercial Trust Co. v. Lorcin Eng'g, Inc., 321 Ark. 210, 213, 900 S.W.2d 202, 203 (1995); Lawhon
Farm Supply, Inc. v. Hayes, 316 Ark. 69, 71, 870 S.W.2d 729, 730 (1994); Keck v. American
Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983).
To affirm this case would require us to find that, as a matter of law, Ms. Bell had a duty to
anticipate that Mr. Misenheimer would fail to yield the right-of-way. A motorist traveling in the
highway has no duty to assume that one entering the highway will fail to yield. Arkansas law requires
the driver of a vehicle about to enter or cross a highway from a private road or driveway to yield the
right-of-way to all vehicles approaching on the highway. Ark. Code Ann. § 27-51-603 (Repl. 1994).
In describing this duty to yield placed upon the driver in the context of an approach to an
intersection, our supreme court explained:
We have held that the statutory obligation to yield the right of way at a stop intersection,
imposed upon the unfavored driver, is not discharged by a mere stop but extends to the entire
passage across the favored highway, and that the favored driver using a through highway is
not required to slow down at an intersection or bring his vehicle under such control as to be
able to stop, upon the assumption that an unfavored driver will fail in his duty.
Shroeder v. Johnson, 234 Ark. 443, 447, 352 S.W.2d 570, 572 (1926) (quoting with approval Ness v.
Males, 201 Md. 235, 93 A.2d 541, 543). Similarly, the driver to whom the one attempting to gain
access from a driveway must yield, has no obligation to assume that the driver seeking access will not
yield.
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Under our comparative-fault statute, Ark. Code Ann. § 16-64-122 (Supp. 2003), the fault
of a plaintiff in a personal-injury case is compared to the defendant's fault. If the plaintiff's fault is less
than the defendant's, the plaintiff may recover damages from the defendant after the damages have
been diminished in proportion to the plaintiff's own fault. If the plaintiff's fault is greater than or equal
to the defendant's, then the plaintiff is not entitled to recover damages. The “fault” to be compared
under the statute must be a proximate cause of the plaintiff's damages. See generally Ouachita Wilderness
Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997); Skinner v. R.J. Griffin & Co., 313 Ark. 430,
855 S.W.2d 913 (1993); Kubik v. Igleheart, 280 Ark. 310, 657 S.W.2d 545 (1983). Because
comparative fault is an affirmative defense, the burden is on the defendant to prove that the plaintiff
was at fault. See Rodgers v. CWR Constr., Inc., 343 Ark. 126, 33 S.W.3d 506 (2000); Young v. Johnson,
311 Ark. 551, 845 S.W.2d 510 (1993).
In arguing this case, Mr. Misenheimer relies on his testimony that Ms. Bell admitted fault at
the scene immediately after the accident, an allegation that Ms. Bell denied at trial. The credibility
issue regarding an admission of fault is irrelevant to the analysis because Ms. Bell had no duty to Mr.
Misenheimer. Many years ago our supreme court explained the irrelevance of a party’s admission of
fault:
Appellant next contends that the court below should have admitted the testimony of Jesse
Smith. The appellant’s attorney asked Smith this question: “Jesse, who was at fault?” and it
is argued that Smith would have answered that he was willing to say that he was at fault. This
question was not proper, and the court did not err in excluding it.
While the evidence shows that Smith, as well as the driver of the other truck, was at fault, yet
this was the very question to be determined by the jury, and not by the witness. Witnesses
testify as to facts, and whether any one is negligent, or in the exercise of care, is a question
for the jury. The witness testifies as to facts, and the jury draws the conclusion.
Dermott Grocery & Commission Co. of Eudora v. Meyer, 193 Ark. 591, 595–96, 101 S.W.2d 443,
445–46 (1937). See generally CJS EVIDENCE § 514 (holding that a witness cannot be permitted to state
his inference as to the assumption of risk, or as to the existence of contributory negligence, even
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though the witness is the actor himself (footnotes omitted)). Accordingly, Mr. Misenheimer’s
reliance on his testimony is irrelevant to the determination of whether Ms. Bell had a duty that she
failed to perform and that her failure was the proximate cause of her damages.
Because Ms. Bell had no duty to anticipate Mr. Misenheimer’s failure to yield, the trial court
erred in giving the comparative-fault instruction. There is no substantial evidence that appellant failed
to do something that a reasonably careful person would do or did something that a reasonably careful
person would not do under the circumstances, which is the definition of negligence. See Marx v.
Huron Little Rock, 88 Ark. App. 284, 291, 198 S.W.3d 127, 132 (2004); Ethyl Corp. v. Johnson, 345
Ark. 476, 49 S.W.3d 644 (2001). We cannot say that the court's inclusion of a negligence comparison
to the jury did not have a prejudicial impact on the outcome of the case. Cf. Little Rock Elec. Contrs.,
Inc. v. Okonite Co., 294 Ark. 399, 744 S.W.2d 381 (1988). With a general verdict returned by the
jury, we cannot determine that the error in giving a comparative fault instruction was harmless. Young
v. Johnson, 311 Ark. 551, 557–58, 845 S.W.2d 510, 514 (1993).
Accordingly, we reverse and remand for a new trial.
BIRD, GLOVER, and HEFFLEY, JJ., agree.
GLADWIN and GRIFFEN, JJ., dissent.
GRIFFEN, J., dissenting.
“It is the duty of a driver of a motor vehicle to keep a lookout for other vehicles or persons on the street or
highway. The lookout required is that which a reasonably careful driver would keep under circumstances
similar to those shown by the evidence in this case.”
— AMI Civ. 901(A) (2008)
One of the first things that new drivers are taught is to always keep their eyes on the road.
Not only is it a good way to avoid accidents, it is the law. The majority’s decision chips away at
that fundamental rule, as it has the practical effect of declaring that a driver has no duty to keep a
proper lookout if another vehicle fails to yield the right of way. I cannot embrace this decision.
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Therefore, I must respectfully dissent.
As the majority opinion states, the accident occurred as both parties were attempting to
look for a parking space. Bell was driving down Powell Street as Misenheimer was pulling from a
driveway. Both claimed that they were hit by the other driver. The key testimony for the purpose
of this appeal was from Misenheimer: “[Bell] said she was looking to the left to find a parking
place in front of the church house and she didn’t see me. Obviously, that’s what caused the
accident. She said it was her fault.” While Bell denied making this statement, she admitted that
her vision was obscured by the cars parked along the street and that she did not see Misenheimer
prior to the impact. After the close of evidence, the jury was given the comparative-fault
instruction that is the subject of this appeal.
Arkansas Code Annotated section 16-64-122(a) (Repl. 2005) instructs that in any
personal-injury or property-damage action where injury is predicated on fault, liability shall be
determined by comparing the plaintiff’s fault to the defendant’s fault. The definition of “fault”
includes “any act, omission, [or] conduct . . . which is a proximate cause of any damages sustained
by any party.” Ark. Code Ann. § 16-64-122(c). A party is entitled to a jury instruction when it is
a correct statement of the law and there is some evidentiary basis for giving the instruction. Barnes
v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003). However, a comparative-fault instruction should
not be submitted to the jury absent evidence that the plaintiff failed to do something a reasonably
prudent person would do or did something a reasonably prudent person would not do under the
circumstances. Skinner v. R&J Griffen & Co., 313 Ark. 430, 855 S.W.2d 913 (1993); Marx v.
Huron Little Rock, 88 Ark. App. 284, 198 S.W.3d 127 (2004).
The majority writes that Bell had no duty to anticipate Misenheimer’s failure to yield and
that, because she had no such duty, the circuit court erred in giving the comparative-fault
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instruction. True, as a driver pulling out of a driveway, Misenheimer was required to yield to
oncoming traffic. See Ark. Code Ann. § 27-51-603 (Repl. 1994). Also true, it is not an act of
negligence to assume, until the contrary is or reasonably should be apparent, that every other
person will use ordinary care and obey the law. See AMI Civ. 602 (2008); Southwestern Ry. Co. v.
Evans, 254 Ark. 762, 497 S.W.2d 692 (1973). However, the failure of one driver to yield the
right-of-way does not excuse another driver’s failure to keep a proper lookout. See AMI Civ.
901(A). A proper lookout implies being watchful of one’s own vehicle as well as the movement
of other things seen. Wingate Taylor-Maid Transp., Inc v. Baker, 310 Ark. 731, 840 S.W.2d 179
(1992); Cobb v. Atkins, 239 Ark. 151, 388 S.W.2d 8 (1965).
Further, the right-of-way does not give a driver the right to abandon caution when
traversing the roadway. The “right-of-way” is merely “the privilege of the immediate use of the
highway.” Ark. Code Ann. § 27-49-211 (Repl. 1994). Once a driver has the right-of-way, he or
she still “must continue to use ordinary care to avoid injury or damage to himself/herself or
others.” AMI Civ. 909; cf. AMI Civ. 902 (2008) (noting that, while the vehicle in front has a
right to use the highway superior to any vehicle traveling behind it, the driver of the forward
vehicle still has an obligation to use ordinary care and to obey the rules of the road).
Here, the circuit court gave a comparative-fault instruction in the face of testimony that
Bell was looking somewhere other than at the road when the accident occurred. While she had
no duty to anticipate that another vehicle would fail to yield, she still had the duty to keep a
proper lookout for other vehicles in an effort to avoid injury to herself or other vehicles. Had Bell
kept a proper lookout, this accident could have possibly been avoided. This alleged breach of duty
warranted the jury instruction on comparative fault.
If any teenager in this country were involved in an accident, few parents would refrain
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from admonishing the young driver if he or she was not paying attention to the road at the time
of the accident. Today, the majority has excused such careless behavior. Because the circuit court
properly gave the comparative-fault instruction in the face of evidence that Bell was not keeping a
proper lookout, I would affirm. Because a majority of my colleagues hold to the contrary, I must
respectfully dissent.
I am authorized to state that Judge GLADWIN joins in this dissent.
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