State of Arkansas Retail and Hospitality Compendium of Law

STATE OF ARKANSAS RETAIL AND HOSPITALITY COMPENDIUM OF LAW

Prepared by Thomas G. Williams Quattlebaum, Grooms, Tull & Burrow PLLC 111 Center Street Little Rock, AR 72201 Tel: (501) 379-1700 Email: [email protected] www.qgtb.com

2018

TABLE OF CONTENTS

THE ARKANSAS JUDICIAL SYSTEM

A. Arkansas State Courts 1. Supreme Court 2. Court of Appeals 3. Circuit Courts B. District Courts 1. State District Courts 2. Local District Courts C. Arkansas Federal Courts D. Arkansas State Court Venue Rules 1. Real Property 2. Cause a. Recovery of Fines, Penalties, or Forfeitures b. Actions Against Public Officers c. Actions Upon Official Bonds of Public Officers 3. Government Entities or Officers a. Actions on Behalf of the State b. Actions Involving State Boards, State Commissioners, or State Officers c. Actions Against the State, State Boards, State Commissioners, or State Officers d. Other Actions 4. Actions Against Turnpike Road Companies 5. Contract Actions Against Non-resident Prime Contractors or Subcontractors 6. Actions Against Domestic or Foreign Sureties 7. Medical Injuries 8. All Remaining Civil Actions E. Arkansas Civil Procedure 1. State Court Rules a. No Pre-suit Notice Requirement b. Arkansas Rules of Civil Procedure c. Service of Summons 2. Federal Court Rules a. Federal Rules of Civil Procedure and Local Rules b. Service of Process c. Filing and Serving Documents d. Motion Requirements F. Statute of Limitations and Repose 1. Statute of Limitations a. Action in Contract b. Action in Tort, Personal Injury c. Action in Tort, Wrongful Death d. Actions to Enforce Written Contracts

e. Actions to Enforce Unwritten Contracts f. Uniform Contribution Among Joint Tortfeasors Act g. Recovery of Wages or Liquidated Damages Due to Employer’s Discrimination h. Employment Discrimination i. Worker’s Compensation Claim on Account of Death j. Worker’s Compensation Claim for Disability k. Fraud l. Actions Against Sheriffs or Coroners m. Actions on the Official Bonds of Sheriffs or Coroners n. Arkansas State Claims Commission o. Actions for Indemnity Arising from an Agreement p. Actions on Unwritten Obligations or Liabilities q. Production Liability Actions r. Legal Malpractice Actions s. Actions for Taking or Injuring Goods or Chattels t. Actions for Trespass on Land u. Actions for Wrongs Done to the Person or Property of Another v. Improper Acts Preventing Commencement of Actions w. Actions for Medical Injury, Including Wrongful Death x. Actions for Wrongful Death (Excluding Medical Negligence) y. Other Tort Actions 2. Statute of Repose

PREMISES LIABILITY AND NEGLIGENCE CLAIMS

A. Trespasser 1. Definition of Trespasser 2. Duty Owed by an Owner to a Trespasser B. Licensee 1. Definition of Licensee 2. Duty Owed by an Owner to a Licensee C. Invitee 1. Definition of Invitee 2. Duty Owed by an Owner to an Invitee D. Foreign Substance on Premises Floor E. Open and Obvious Not a Complete Bar F. Landlords

NEGLIGENCE

A. Comparative Fault / Contributory Negligence B. General Common Law Duty C. Contractual Liability

D. Joint and Several Liability E. Vicarious Liability 1. Employer/Employee 2. Independent Contractor 3. Joint Enterprise 4. Qualified Volunteer 5. Parent for Torts of Minor Children a. Destruction of Property b. Signor of Minors Driving Application c. Permitting Minor to Drive F. Assumption of Risk 1. General Rule 2. No Assumption of Risk Where Employer Acted in Contravention of Safety Statute

ARKANSAS’S WRONGFUL DEATH STATUTE

A. Introduction B. Who May Bring a Wrongful Death Action C. Venue D. Who May Recover E. Damages in a Wrongful Death Action 1. General Rule 2. Punitive Damages 3. Exceptions F. Defenses 1. Statutes of Limitation 2. Comparative Fault 3. Several Liability 4. Increased Share when Compensatory Damages Are Not Reasonably Collectable G. Other Issues 1. Day in the Life Videos 2. Dead Man’s Statute

DAMAGES

A. Punitive Damages 1. Punitive Damages Generally 2. Standard for Punitive Damages 3. Insurability of Punitive Awards 4. Punitive Damages Caps B. Damages Allowed in Personal Injury Cases 1. Past Medical Bills 2. Future Medical Bills 3. Hedonic Damages

4. Increased Risk of Harm 5. Disfigurement 6. Loss of Normal Life 7. Disability 8. Past Pain and Suffering 9. Future Pain and Suffering 10. Loss of Society 11. Loss of Income, Wages, and Earnings 12. Proof of willful and Wanton Conduct 13. Caps on Damages C. Collateral Source Rule D. Last Clear Chance Doctrine E. Mitigation F. Pre- and Post-Judgment Interest 1. Pre-Judgment Interest 2. Post-Judgment Interest 3. Attorneys’ Fees 4. Costs G. Income Tax H. Unique Damages Issues In Arkansas I. Minor Settlements

DRAM SHOPS IN ARKANSAS

A. Dram Shop Act B. Commercial Sale C. Clearly Intoxicated D. Sale to Minors E. Alcoholic Beverage Retailers

THE ARKANSAS JUDICIAL SYSTEM A. Arkansas State Courts

1. Supreme Court

The Arkansas Supreme Court, the State’s highest court of appellate review, is comprised of seven (7) justices. Each justice is elected in a state-wide non-partisan election and serves for a term of eight (8) years. The Court has jurisdiction over all appeals from the Court of Appeals. Additionally, the Court has jurisdiction over any appeal involving the following matters: (i) interpretation or construction of the Constitution of Arkansas; (ii) criminal appeals where the death penalty or life imprisonment has been imposed; (iii) petitions for quo warranto, prohibition, injunction, or mandamus directed to the state, county, or municipal officials or to the circuit courts; (iv) elections and election procedure; (v) the discipline of attorneys-at-law or the power of the Supreme Court to regulate the practice of law; (vi) the discipline and disability of judges; (vii) second or subsequent appeals of appeals that have been decided by the Supreme Court; and (viii) appeals required by law to be heard by the Supreme Court.

2. Court Of Appeals

The Arkansas Court of Appeals is comprised of eleven (11) justices and divided into seven (7) judicial districts and four (4) divisions. Each judge is elected in a district-wide non-partisan election and serves for a term of eight (8) years. The jurisdiction of the Court of Appeals is determined by the Supreme Court. Ark. Sup. Ct. R. 1-2. There is no right to appeal the decision of the Court of Appeals to the Supreme Court.

3. Circuit Courts

Arkansas Circuit Courts consist of five (5) subject matter divisions: criminal, civil, probate, domestic relations, and juvenile. There are twenty-three (23) judicial circuits served by 121 judges, and a circuit court in each of the State’s 75 counties. Each circuit court judge is elected in a circuit-wide non-partisan election and serves for a term of six (6) years.

B. District Courts

Arkansas District Courts come in two varieties: State District Courts; and Local District Courts.

1. State District Courts

There are 26 State District Courts served by 38 judges elected to four-year terms. State District Courts have territorial jurisdiction over judicial districts established by the Arkansas General Assembly that are either city, county, or district wide; and

subject matter jurisdiction over misdemeanors and violations of state law and local ordinances, and preliminary felony cases and civil cases involving contracts, damage and recovery of personal property in matters less than $25,000.

2. Local District Courts

There are 58 Local District Courts served by 72 judges elected to four-year terms. Local District Courts have territorial jurisdiction as established by the Arkansas General Assembly (usually county wide); and subject matter jurisdiction over misdemeanors and violations of state law and local ordinances, and preliminary felony cases and civil cases involving contracts, damage and recovery of personal property in matters less than $5,000.

C. Arkansas Federal Courts

Arkansas is divided into two (2) judicial districts known as the Eastern and Western Districts of Arkansas. The Eastern District is divided into five (5) divisions: Northern, Eastern, Jonesboro, Western, and Pine Bluff. The Western District is divided into six (6) divisions: El Dorado, Fort Smith, Harrison, Texarkana, Fayetteville, and Hot Springs. There are eleven (11) courts within the State located in Batesville, Helena, Jonesboro, Little Rock, Pine Bluff, El Dorado, Fort Smith, Harrison, Texarkana, Fayetteville, and Hot Springs.

D. Arkansas State Court Venue Rules

1. Actions for:

a. the recovery of real property,

b. the partition of real property,

c. the sale of real property under a mortgage, lien, or other encumbrance or charge, and

d. an injury to real property must be brought in the county in which the subject of the action, or some part thereof, is situated. Ark. Code Ann. § 16-60-101.

2. Actions for the following causes must be brought in the county where the cause, or some part thereof, arose:

a. An action for the recovery of a fine, penalty, or forfeiture imposed by a statute, except that where the offense for which the claim is made was committed on a watercourse or road which is the boundary of two (2) counties, the action may be brought in either of them;

b. An action against a public officer for an act done by him or her in virtue or under color of his or her office, or for a neglect of official duty; and

c. An action upon the official bond of a public officer, except as provided in §§ 16-106-101 and 16-106-104. See Ark. Code Ann. § 16-60-102.

3. The following actions must be brought in the county in which the seat of government is situated:

a. All civil actions in behalf of the state, or which may be brought in the name of the state, or in which the state has or claims an interest, except as provided in § 16-106-101;

b. All actions brought by state boards, state commissioners, or state officers in their official capacity, or on behalf of the state, except as provided in § 16- 106-101;

c. All actions against the state and all actions against state boards, state commissioners, or state officers on account of their official acts, except that if an action could otherwise be brought in another county or counties under the venue laws of this state, as provided in § 16-60-101 et seq., then the action may be brought either in Pulaski County or the other county or counties; and

d. All other actions required by law to be brought in Pulaski County. See Ark Code Ann. § 16-60-103.

4. An action against a turnpike road company may be brought in any county in which any part of the road of the defendant lies. Ark. Code Ann. § 16-60-117.

5. Contract actions by a resident subcontractor, supplier, or materialman against a prime contractor or subcontractor who is a nonresident of this state or who is a foreign corporation may be brought in the county in which the plaintiff resided at the time the cause of action arose. Ark. Code Ann. § 16-60-114.

6. An action brought in this state by or in behalf of an insured or beneficiary against a domestic or foreign surety on a contractor’s payment or performance bond may be brought in the county in which the loss occurred, of the insured’s residence at the time of loss, or of the beneficiary's residence at the time of loss. Ark. Code Ann. § 16-60-115.

7. Any action for medical injury brought under Ark. Code Ann. § 16-114-201, et seq., against a medical care provider shall be filed in the county in which the alleged act or omission occurred. Ark. Code Ann. § 16-55-213(e).

8. All remaining civil actions must be brought in the county in which a substantial part of the events or omissions giving rise to the claim occurred, the county in which an individual defendant resided, or the county in which the plaintiff resided. If the plaintiff or defendant is an entity other than an individual, then the action may be brought in the county where the entity had its principal office in this state at the time of the accrual of the cause of action. Ark. Code Ann. § 16-55-213(a).

E. Arkansas Civil Procedure

1. State Court Rules

a. Generally, there is no pre-suit notice requirement; however, a contractor may not obtain a materialmen’s lien unless the contractor gives the notice set forth in Ark. Code Ann. § 18-44-15(c) to the owner of the property before supplying any materials for fixtures. Ark. Code Ann. § 18-44-15.

b. State court civil procedure is governed by Arkansas Rules of Civil Procedure 1 through 86. The Arkansas Rules generally track the organizational structure of the Federal Rules and have adopted many portions of the Federal Rules.

c. Service of Summons

(i) A person may be served by personal service, by leaving a copy of the summons and complaint at the person’s dwelling place or usual place of abode with a person residing therein who is at least 14 years of age, or delivering a copy of the summons and complaint to an agent authorized by appointment or law to receive service of summons. A person may also be served by mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee. Ark. R. Civ. P. 4(d).

(ii) A domestic or foreign corporation, partnership, limited liability corporation, or any unincorporated association subject to suit may be served by delivering a copy of the summons and complaint to an officer, partner other than a limited partner, managing or general agent, or any agent authorized by appointment or by law to receive service of summons. A domestic or foreign corporation, partnership, limited liability corporation, or any unincorporated association subject to suit may also be served by mail addressed to one of the individuals identified above to be served with a return receipt requested and delivery restricted to the addressee. Service on the registered agent of a corporation or other organization may be made by certified mail with a return receipt requested. Ark. R. Civ. P. 4(d).

(iii) Service may also be made by mailing a copy of the summons and the complaint by first-class mail, postage prepaid, to the person to be served, together with two copies of a notice and acknowledgement conforming substantially to a form adopted by the Supreme Court and a return envelope, postage prepaid, addressed to the sender. The court shall order the payment of the costs of personal service by the person served if such person does not complete and return the notice and acknowledgement of receipt of summons within twenty days after mailing. Ark. R. Civ. P. 4(d)(8)(B).

(iv) Service may be made on a defendant whose whereabouts are unknown by publication of a warning order. Ark. R. Civ. P. 4(f).

2. Federal Court Rules

a. Civil procedure in Arkansas Federal District Courts is governed by the Federal Rules of Civil Procedure and the Local Rules of the United States District Court for the Eastern and Western Districts of Arkansas.

b. Service of Process. Service of Process by certified mail on a defendant other than the United States or any of its officers or agencies must be made in accordance with Rule 4 of the Arkansas Rules of Civil Procedure. Local Rule 4.1.

c. Filing and Serving Documents

(i) A document may be filed and served by electronic means authorized by the CM/ECF Administrative Manual approved by the court. Local Rules 5.1 and 5.2.

(ii) Providing Notice of Electronic Filing through the court’s transmission facilities constitutes service of the filed document on each party to the case who is registered as a Filing User; however, unregistered parties must be served documents as required by the Federal and Local Rules of Procedure. Local Rule 5.2.

(iii) A document must be filed within seven days of the date Service of the document was provided. Local Rule 5.4.

d. Motion Requirements

(i) A motion to amend a pleading must be accompanied by a copy of the proposed amendment and state what exactly is being amended by the proposed amendment. Any amendment must reproduce the entire pleading as amended and may not incorporate any earlier pleading by reference. Local Rule 5.5(e). (ii) A motion requesting a continuance, an extension of time, or leave to do untimely act must state that the movant has contacted each adverse party regarding the motion and whether the adverse party or parties opposes the motion. Local Rule 6.2(b).

(iii) All motions must be accompanied by brief containing relevant facts and applicable law except for motions requesting extensions of time, leave to supplement or amend a pleading, appointment of a guardian ad litem, or substitution of a party or attorney. Local Rule 7.2(a), (d).

(iv) Responses to pleadings must be filed within 14 days; a reply to a response to a motion for summary judgment must be filed within 7 days. Local Rule 7.2(b).

(v) Motions for temporary restraining orders or preliminary injunctions, and motions to dismiss, will not be considered unless set forth in a separate pleading and brief. Local Rule 7.2(e).

(vi) All motions seeking to compel discovery and motions for protective order must contain a state that the parties have conferred in good faith on the issue(s) in dispute and were unable to resolve their disagreement. Local Rule 7.2(g).

(vii) All motions for summary judgment must be accompanied by separate a statement of the material facts the movant contends there is no genuine dispute to be tried. A response to a motion for summary judgment must be accompanied by a separate state of material facts which the non-movant contends are genuinely disputed. Local Rule 56.1(a), (b).

F. Statute of Limitations and Repose

1. Statute of Limitations

a. Action in Contract. No action in contract, whether oral or written, to recover damages caused by any deficiency in the design, planning, supervision, or observation of construction or the construction or repair of

any improvement to real property or for injury to real or personal property caused by such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision, or observation of construction or the construction or repair of the improvement more than five (5) years after substantial completion of the improvement. Ark. Code Ann. § 16-56-112(a). b. Action in Tort, Personal Injury. No action in tort or contract, whether oral or written, sealed or unsealed, to recover damages for personal injury or wrongful death caused by any deficiency in the design, planning, supervision, or observation of construction or the construction and repairing of any improvement to real property shall be brought against any person performing or furnishing the design, planning, supervision, or observation of construction or the construction and repair of the improvement more than four (4) years after substantial completion of the improvement. Ark. Code Ann. § 16-56-112(b)(1). c. Action in Tort, Wrongful Death. In the case of personal injury or an injury causing wrongful death, which injury occurred during the third year after the substantial completion, an action in tort or contract to recover damages for the injury or wrongful death may be brought within one (1) year after the date on which injury occurred, irrespective of the date of death, but in no event shall such an action be brought more than five (5) years after the substantial completion of construction of such improvement. Ark. Code Ann. § 16-56-112(b)(2). d. Actions to enforce a written contract, obligation, duty, or right, except those to which Ark. Code Ann. § 4-4-111 is applicable, must be commenced within five (5) years after the cause of action accrues. However, partial payment or written acknowledgement of default shall toll this statute of limitations. Ark. Code Ann. § 16-56-111. e. All actions founded on any contract, obligation, or liability not in writing, expressed or implied, shall be commenced within three (3) years after the cause of action accrues. Ark. Code Ann. § 16-56-105. This statute has been interpreted to include actions based on negligence. Shelter Ins. Co. v. Arnold, 57 Ark. App. 8, 12-13, 940 S.W.2d 505, 506-07 (1997). f. The Uniform Contribution Among Joint Tortfeasors Act gives a defendant sued by an injured party the right to seek contribution from a third party that is or may be liable to the defendant, thereby holding each tortfeasor liable for his own share. See Ark. Code Ann. § 16-61-201 et seq. A claim for contribution is conditional, and the defendant “is not required to wait until he has paid the judgment to implead in the primary action other persons who are or may be jointly liable for the tort.” Martin Farm Enters., Inc. v. Hayes, 320 Ark. 205, 208, 895 S.W.2d 535, 537 (1995). Thus, a defendant may

wait to bring an action for contribution as long as the statute of limitations applicable to the underlying claim —the claim supporting contribution— has not expired. See Newbern and Watkins, 2 Arkansas Practice Series: Civil Practice and Procedure § 17.2, 365 (4th ed. 2006). g. Any action to recover wages and liquidated damages based on an employer’s discrimination in the payment of wages between the sexes must be commenced within two (2) years of the accrual thereof and not afterwards. Ark. Code Ann. § 11-4-611(c). h. Any action based on employment discrimination of the Arkansas Civil Rights Act shall be brought within one (1) year after the alleged employment discrimination occurred or within ninety (90) days of receipt of a “Right to Sue” letter or a notice of “Determination” from the United States Equal Employment Opportunity commission concerning the alleged unlawful employment practice, whichever is later. Ark. Code Ann. § 16- 123-107(c)(3). i. A worker’s compensation claim for compensation on account of death shall be barred unless filed with the Arkansas Worker’s Compensation Commission within two (2) years of the date of such death. Ark. Code Ann. § 11-9-702(a)(3). j. A worker’s compensation claim for compensation for disability on account of an injury other than an occupational disease and occupational infection shall be barred unless filed with the Arkansas Worker’s Compensation Commission with two (2) weeks from the date of the compensable injury. Ark. Code Ann. § 11-9-702(a)(1). k. The statute of limitations on actions for fraud is three (3) years. See Ark. Code Ann. § 16-56-105. l. All actions against sheriffs and coroners upon any liability incurred by them by doing any act in their official capacity or by the omission of any official duty, except for escapes, shall be brought within two (2) years after the cause of action has accrued and not thereafter. All actions against sheriffs or other officers for the escape of any person imprisoned on civil process shall be commenced within one (1) year from the time of escape, and not thereafter. Ark. Code Ann. § 16-56-109. m. Actions on the official bonds of sheriffs and coroners shall be commenced within four (4) years after the cause of action shall accrue, and not afterward. A certified copy of the bond shall be evidence in all suits brought on the bond. No suit shall be brought on any bond of a constable after the expiration of four (4) years from its date. Ark. Code Ann. § 16-56-110.

13 n. No claim may be considered and allowed by the Arkansas State Claims Commission unless it has been filed with the director of the commission as provided by this subchapter within the period allowed by law for the commencement of an action for the enforcement of the same type of claim against a private person. Ark. Code Ann. § 19-10-209. o. An action for indemnity arising from an agreement is governed by the same statute of limitation as any other action on a written contract: five (5) years. Ray & Sons Masonry Contractors, Inc. v. U.S. Fid. & Guar. Co., 353 Ark. 201, 216, 114 S.W.3d 189, 198 (2003). However, if a potential claim for indemnity is based on an unwritten contract, equitable indemnity, or a right incidental to the written contract, a three-year statute of limitation applies. See Ark. Code Ann. § 16-56-105(1),(3) (stating unwritten or implied contracts and actions “founded on any contract or liability, express or implied” are governed by three-year statute of limitations); Larson Mach., Inc. v. Wallace, 268 Ark. 192, 213, 600 S.W.2d 1, 12 (1980) (“The basis for the right to indemnity in a case where there is no express contract therefore is liability upon an implied contract or quasi-contract.”). p. All product liability actions shall be commenced within three (3) years after the date on which the death, injury, or damage complained of occurs. Ark. Code Ann. § 16-116-103. q. All actions for legal malpractice shall be commenced within three (3) years after the cause of action accrues. Ark. Code Ann. § 16-57-105. r. All actions for taking or injuring goods or chattels shall be commenced within three (3) years after the cause of action accrues. Ark. Code Ann. § 16-56-105(6). s. All actions for trespass on land shall be commenced within three (3) years after the cause of action accrues. Ark. Code Ann. § 16-56-105(4). t. For wrongs done to the person or property of another, an action may be maintained against a wrongdoer, and the action may be brought by the person injured or, after his or her death, by his or her executor or administrator against the wrongdoer or, after the death of the wrongdoer, against the executor or administrator of the wrongdoer, in the same manner and with like effect in all respects as actions founded on contracts. Ark. Code Ann. § 16-62-101(a)(1). u. If any person, by leaving the county, absconding, or concealing himself, or by any other improper act of his own, prevents the commencement of any action specified in this act, the action may be commenced within the times respectively limited after the commencement of the action shall have ceased to be so prevented. Ark. Code Ann. § 16-56-120.

v. All actions for medical injury, including wrongful death, shall be commenced within two (2) years after the cause of action accrues. Ark. Code Ann. § 16-114-203(a). If a plaintiff serves written notice of intention to file an action for medical injury within thirty (30) days prior to the expiration of the applicable statute of limitations, the statute of limitations shall be tolled for ninety (90) days only if the following conditions are met: (1) the written notice shall be served by certified mail, return receipt requested, upon the medical care provider alleged to have caused the medical injury; (2) the written notice shall include the following: (a) the plaintiff's full name, date of birth, present address, address at the time of treatment at issue, and social security number; (b) the date or dates of the treatment in question and a summary of the alleged wrongful conduct; and (c) the names and addresses of the known medical care providers relating to the alleged injury; and (3) an authorization to release medical records signed by the plaintiff, which shall authorize the medical care provider alleged to be liable to obtain pertinent medical records, shall be attached to the notice. Ark. Code Ann. § 16-114-212(a).

w. All actions for wrongful death, except for those caused by medical negligence, shall be commenced within three (3) years after the death of the person alleged to have been wrongfully killed. If a nonsuit is suffered, the action shall be brought within one (1) year from the date of the nonsuit without regard to the date of the death of the person alleged to have been wrongfully killed. Ark. Code Ann. § 16-62-102(c).

x. All actions in tort not included in Ark. Code Ann. §§ 16-56-104, -105, -108, and -109 shall be commenced within five (5) years after the cause of action has accrued. Ark. Code Ann. § 16-56-115.

2. Statute of Repose

The statute of repose applicable to construction actions is governed by Ark. Code Ann. § 16-56-112. No action in contract to recover damages caused by any deficiency in the design, planning, supervision, or observation of construction or the construction and repair of any improvement to real property or for injury to real or personal property caused by such deficiency, shall be brought more than five (5) years after substantial completion of the improvement. No action in tort or contract to recover damages for personal injury or wrongful death caused by any deficiency in the design, planning, supervision, or observation of construction or the construction and repairing of any improvement to real property more than four (4) years after substantial completion of the improvement. In the case of personal injury or wrongful death occurring during the third year after the substantial completion, an action in tort or contract to recover damages for the injury or wrongful death may be brought within one (1) year after the date on which injury occurred, but in no event shall such an action be brought more than five (5) years

15 after the substantial completion of construction of such improvement. The foregoing limitations shall also apply to any action for damages caused by any deficiency in surveying, establishing, or making the boundaries of real property, the preparation of maps, or the performance of any other engineering or architectural work upon real property or improvements to real property. Ark. Code Ann. § 16-56-112.

PREMISES LIABILITY AND NEGLIGENCE CLAIMS

The duty owed by a premises owner to one who comes onto the property varies depending upon the status of the person as a trespasser, licensee, or invitee. Below is a discussion of these three categories of persons who come onto the property of another and the respective duties owed by a premises owner. For a discussion of the development of a claim for premises liability, see Moses v. Bridgeman, 355 Ark. 460, 139 S.W.3d 503 (2003) (identifying the person’s status, establishing the duty owed, and determining whether the duty was breached); Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994); Lively v. Libbey Memorial Physical Medicine Center, Inc., 311 Ark. 41, 841 S.W.2d 609 (1992).

A. Trespasser

1. Definition of Trespasser

A trespasser is a person who enters upon the premises of another without the consent of the owner and without an invitation, either express or implied. See Arkansas Model Jury Inst. 1107; see also Coleman v. United Fence Co., 282 Ark. 344, 668 S.W.2d 536 (1984). Once the owner becomes aware of the trespasser’s presence, the owner’s duty of care becomes the same as that for a licensee: not to willfully or wantonly injure the person. See Knight v. Farmers’ & Merchants’ Gin Co., 159 Ark. 423, 252 S.W.30, 33 (1923).

2. Duty Owed By An Owner To A Trespasser

The owner of property has no duty to trespassers on his land as long as he is unaware of their presence. Ark. Code Ann. § 18-60-108(a) (codifying common law rule); Southwestern Bell Telephone Co. v. Davis, 247 Ark. 381, 386, 445 S.W.2d 505, 507 (1969). At that point, there is still no general duty of care owed to trespassers, only a minimal duty not to cause injury by “willful or wanton misconduct.” Ark. Code Ann. § 18-60-108(a); Southwestern Bell Telephone Co. v. Davis, 247 Ark. 381, 386, 445 S.W.2d 505, 507 (1969).

Willful or wanton misconduct is more than mere negligence. A course of conduct is willful or wanton when it is deliberate and intentional, or when it shows utter indifference or a conscious disregard for others’ safety. Young v. Paxton, 316 Ark. 655, 661, 873 S.W.2d 546, 550 (1994). Conduct will also be considered willful or wanton when the actor “knows or should know . . . that his conduct will naturally and probably result in bodily harm and continues in such conduct in reckless disregard of the consequences.” Ken’s Discount Bldg. Materials, Inc. v. Meeks, 95 Ark. App. 37, 40-41, 233 S.W.3d 176, 179 (2006).

This standard is high and often not met. For example, parents, who had no reason to know that their child would throw an out of control party which resulted in injuries to one of the guests, did not act willfully or wantonly. Maneth v. Tucker, 72 Ark. App. 141, 147, 34 S.W.3d 755, 759 (2000). Also, property owners, who 17

allowed six children to swim in their pool with only one adult present who could swim, did not act willfully or wantonly. Moses v. Bridgeman, 355 Ark. 460, 471, 139 S.W.2d 503, 509 (2003). Owners of a trampoline did not act willfully or wantonly by letting neighbor children jump on their trampoline, even though one jumped off and fractured her arm and dislocated her shoulder. Bader v. Lawson, 320 Ark. 561, 563, 898 S.W.2d 40, 42 (1995).

B. Licensee

1. Definition of Licensee

“A licensee is one who goes upon the premises of another with the consent of the owner for one’s own purposes and not for the mutual benefit of oneself and the owner.” Lively v. Libbey Memorial Physical Medicine Center, Inc., 311 Ark. 41, 45, 841 S.W.2d 609, 611-12 (Ark. 1992); Tucker v. Sullivan, 307 Ark. 440, 821 S.W.2d 470 (1991). The owner’s consent may be express or implied. See Gann v. Parker, 315 Ark. 107, 865 S.W.2d 282 (1993); Arkansas Model Jury Inst. 1107.

Social visitors are considered licensees even though there may be a mutual benefit between the two parties. Slavin v. Plumbers & Steamfitters Local 29, 91 Ark. App. 43, 46, 207 S.W.3d 586, 588 (2005). For example, a woman, who was invited to live with a man and even paid some bills, was not an invitee, but merely a social guest for the purposes of premises liability. Tucker v. Sullivan, 307 Ark. 440, 444, 821 S.W.2d 470, 471 (1991). Similarly, a dinner guest, who brought food and cigarettes and provided emotional support, was merely a licensee invited to socialize at the owner’s home and not an invitee. Heigle v. Miller, 332 Ark. 315, 320-21, 965 S.W.2d 116, 119 (1998).

2. Duty Owed By An Owner To A Licensee

As with a trespasser, an owner is under no duty to inspect the property to determine whether it is safe. See Webb v. Pearson, 244 Ark. 109 424, S.W.2d 145 (1968). Also similar to the duty owed to trespassers, an owner owes a duty to known licensees, or those that reasonably should be known, not to injure them through willful or wanton conduct. Lively, 841 S.W.2d at 612; AMI 1103. Owners are under an enhanced duty to use reasonable and ordinary care to avoid injury to a licensee discovered in a position of peril. King v. Jackson, 302 Ark. 540, 541-42, 790 S.W.2d 904, 905 (1990). Owners must also warn licensees about unreasonably dangerous conditions, which are known to the owner, but not patently obvious to the licensee. Maneth v. Tucker, 72 Ark. App. 141, 145, 34 S.W.3d 755, 758 (2000); AMI 1103.

C. Invitee

1. Definition of Invitee

An invitee enters the property with the permission of the owner, for a purpose connected with an activity of the owner, and for the mutual benefit of both parties. See Shrum v. Southern Farm Casualty Ins. Co., 312 Ark. 151, 848 S.W.2d 395 (1993); Slavin v. Plumbers & Steamfitters Local 29, 91 Ark. App. 43, 45, 207 S.W.3d 586, 588 (2005); Arkansas Model Jury Inst. 1107. There are generally two types of invitees: public and business. Slavin, 91 Ark. App. at 45, 207 S.W.3d at 588. Public invitees are invited onto the property only “for a purpose for which the property is held open to the public.” Id. Business invitees may enter the property for purposes related to the business dealings of the owner. Id. Business invitees only enjoy that status to the extent that they remain in the “portion of the building in which [they have] a legitimate errand.” See Daniel Const. Co. v. Holden, 266 Ark. 43, 48, 585 S.W.2d 6, 9 (1979). A related doctrine is that of the implied invitee, which requires an affirmative act by the landowner to induce another to enter the premises. See Dorton v. Francisco, 309 Ark. 472, 833 S.W.2d 362 (1992). Note that “[a] tenant is not an invitee on her landlord’s premises but has a right equal to that of the landlord to exclusive possession of the property.” Glasgow v. Century Property Fund XIX, 299 Ark. 221, 222, 772 S.W.2d 312, 312 (1989).

2. Duty Owed By An Owner To An Invitee

“A property owner has a duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees.” Wilson v. J. Wade Quinn Co., Inc., 330 Ark. 306, 308, 952 S.W.2d 167, 169 (1997). The owner will be subject to liability if he or she knows, or would discover through reasonable care, a condition that involves an unreasonable risk of harm that invitees either would not discover or will not protect themselves against, and the owner does not use reasonable care to protect the invitee from the danger. See AutoZone v. Horton, 87 Ark. App. 349, 353, 192 S.W.3d 291, 295 (2004) (internal quotation omitted). An invitee can recover from an owner for failure to use ordinary care if the invitee can show that (1) the premises was defective; (2) the owner created the defect, or the defect was apparent to a reasonable owner who should have then warned the invitee; and (3) the defect caused the injury. See Gann v. Parker, 315 Ark. 107; 865 S.W.2d 282 (1993).

The owner’s duty of care can be extended beyond his property lines if the owner has actual or constructive knowledge of a dangerous defect. Ollar v. Spakes, 269 Ark. 488, 493, 601 S.W.2d 868, 870 (1980). Negligence will arise in this situation if the owner learns or should have learned of a dangerous condition on adjacent property and either fails to warn the invitees of the danger or fails to correct it. Id., 601 S.W.2d at 870-71.

D. Foreign Substance On Premises Floor

A property owner can be held liable for an invitee’s slip-and-fall on a foreign substance (including water) on the owner’s premises’ floor. To prevail on a slip-and-fall claim, a plaintiff must prove that (1) the foreign substance was on the floor as a result of the owner’s negligence, or (2) the owner knew of its presence, or should have known of its presence due to the length of time the foreign substance was there, and failed to exercise ordinary care to remove it. See Conagra, Inc. v. Strother, 340 Ark. 672, 677, 13 S.W.3d 150, 153 (2000) (citing Ark. Model Jury Instr., Civil AMI 1105).

E. Open And Obvious Not A Complete Bar Under the “Obvious Danger Rule,” “any duty owed by an owner or occupier of land to a business invitee ends if the plaintiff knows of the danger.” Jenkins v. International Paper Co., 318 Ark. 663, 670, 887 S.W.2d 300, 304 (1994). Whether the plaintiff knew of the risk is a question of fact. Kuykendall v. Newgent, 255 Ark. 945, 947, 504 S.W.2d 344, 345 (1974). However, this rule is not always a complete bar to recovery. The owner’s duty to protect invitees from known dangers remains when the invitee must face the danger as a practical matter as part of his or her job. Jenkins, 318 Ark. at 670, 887 S.W.2d at 304; Carton v. Missouri Pac. R. Co., 798 S.W.2d 674 (Ark. 1990); Kuykendall v. Newgent, 255 Ark. 945, 948, 504 S.W.2d 344, 346 (Ark. 1974).

F. Landlords The general rule is that a landlord will not be liable for injuries to tenants, employees of tenants, or invitees, unless there is “an express agreement or assumption of duty by conduct.” Propst v. McNeill, 326 Ark. 623, 628, 932 S.W.2d 766, 769 (1996); Ark. Code Ann. § 18-16-110. The agreement must be supported by consideration. See Stalter v. Akers, 303 Ark. 603, 607, 798 S.W.2d 428, 430 (1990) (explaining that a gratuitous promise to repair is insufficient to impose liability). Further, liability only attaches if the landlord does not act in a reasonable manner in the performance of this duty. Ark. Code Ann. § 18-16- 110.

Absent an agreement to the contrary, a landlord does not have a duty to maintain common areas used by the tenants. Glasgow v. Century Property Fund XIX, 299 Ark. 221, 772 S.W.2d 312 (1989) (snow and ice near a hot tub); Kilbury v. McConnell, 246 Ark. 528, 532, 438 S.W.2d 692, 694 (1969) (no duty to remove temporary hazards like ice and snow); Joseph v. Riffel, 186 Ark. 418, 418, 53 S.W.2d 987, 989 (1932) (no duty to install guard rails or danger signs).

NEGLIGENCE

A. Comparative Fault / Contributory Negligence

1. The Arkansas comparative fault statute, Arkansas Code Annotated § 16-64-122, provides that in all actions for damages for personal injuries, wrongful death, or injury to property in which recovery is predicated upon fault, liability shall be determined by comparing the fault chargeable to the claiming party with the fault chargeable to the party or parties from whom the claiming party seeks to recover damages. “Fault” is defined as “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.” ARK. CODE ANN. § 16-64-122(c).

2. If the fault of the plaintiff is 50% or more, the plaintiff is not entitled to any recovery. ARK. CODE ANN. § 16-64-122(b)(2). If the fault of the plaintiff is less than the aggregate fault of the defending parties, then the plaintiff may recover damages after they have been diminished in proportion to the degree of his own fault. ARK. CODE ANN. §16-64-122(b)(1).

3. The plaintiff’s comparative fault must be pleaded as an affirmative defense, and the defendant bears the burden of proving comparative fault. ARK. R. CIV. P. 8(c); Rodgers v. CWR Constr., Inc., 343 Ark. 126, 131, 33 S.W.3d 506, 509 (2000).

4. To warrant a jury instruction on comparative fault, there must be evidence that the plaintiff’s actions were a proximate cause of his or her damages. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 433, 855 S.W.2d 913, 915 (1993). It is within the province of the jury to pass upon the conflicts in, and the weight of, the testimony and evidence. If there is any substantial evidence to support the jury’s apportionment of fault, the judgment will be affirmed on appeal. Mo. Pac. R.R. Co. v. Biddle, 293 Ark. 142, 148-148A, 732 S.W.2d 473, 477 (1987).

5. The fault of the plaintiff is considered in a strict product liability action seeking damages for personal injuries. Elk Corp. of Ark. v. Jackson, 291 Ark. 448, 455, 725 S.W.2d 829, 833 (1987). Comparative fault is applicable in professional malpractice actions. Reliance Nat’l Indem. Co. v. Jennings, 189 F.3d 689, 694 (8th Cir. 1999). The comparative fault statute is not applicable in a suit alleging breach of an implied warranty of merchantability and seeking the replacement cost of defective goods and incidental damages. Little Rock Elec. Contractors, Inc. v. Okonite Co., 294 Ark. 399, 401-02, 744 S.W.2d 381, 382 (1988). Similarly, the doctrine of comparative fault is inapplicable to a claim for damages for economic loss. E.D. Smith & Sons, Ltd. v. Ark. Glass Container Corp., 236 F.3d 920, 921 (8th Cir. 2001). Comparative fault is not applicable in intentional tort actions. Kellerman v. Zeno, 64 Ark. App. 79, 89, 983 S.W.2d 136, 141 (1998).

6. If parties are involved in a joint venture or joint enterprise, the fault of one may be imputed to the other for the purpose of comparative fault. Pittman v. Frazer, 129

F.3d 983, 986 (8th Cir. 1997); Neal v. J. B. Hunt Transp., Inc., 305 Ark. 97, 100- 01, 805 S.W.2d 643, 645 (1991). A joint enterprise exists when the parties have (1) a community of interest in the object and purpose of an undertaking and (2) a right to direct and control the movements of each other in regard to the common undertaking. Neal, 305 Ark. at 101, 805 S.W.2d at 645. Similarly, the family relationship and the community of interest between spouses in regard to care and supervision of their children imputes the fault of one parent to the other. See Stull v. Ragsdale, 273 Ark. 277, 280-81, 620 S.W.3d 264, 267 (1981). The imputation does not apply between divorced parents. E-Ton Dynamics Indus. Corp. v. Hall, 83 Ark. App. 35, 41, 115 S.W.3d 816, 820 (2003).

7. A child’s negligence is not imputed to her parents. Nonetheless, when a parent sues for damages on his own behalf and on behalf of a minor child, “the child’s contributory negligence may be asserted against the parent.” Kirkendoll v. Hogan, 267 Ark. 1083, 1087, 593 S.W.2d 498, 499 (1980).

8. Traditionally, “phantom” parties, such as employers who were not named parties in the lawsuit, were excluded from the comparative fault analysis. Robertson v. Norton Co., 148 F.3d 905, 909 (8th Cir. 1998) (relying upon express language in Arkansas Code Annotated § 16-64-122(a)). Moreover, Arkansas law does not allow a plaintiff to aggregate the fault of a settling party in the comparative fault analysis. NationsBank, N.A. v. Murray Guard, Inc., 343 Ark. 437, 36 S.W.3d 291 (2001). With the passage of the Civil Justice Reform Act of 2003, which is codified at ARK. CODE ANN. § 16-55-201 et seq., the Arkansas General Assembly attempted to dramatically change the law of comparative fault in Arkansas. The Act’s so- called “empty chair provision” provides that, “[i]n assessing percentages of fault, the fact finder shall consider the fault of all persons or entities who contributed to the alleged injury or death or damage to property, tangible or intangible, regardless of whether the person or entity was or could have been named as a party to the suit.” ARK. CODE ANN. § 16-55-202(a).

9. The Supreme Court of Arkansas declared the “empty chair” provision unconstitutional in Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, at 10, 308 S.W.3d 135, 142. The appellate court held that Arkansas Code Annotated § 16-55-202(b), which allowed the negligence or fault of a nonparty to be considered by the jury if the defendant filed a “pleading” giving notice of the nonparty allegedly at fault, was “procedural” in nature in violation of the separation of powers doctrine and the powers specifically prescribed to the Supreme Court by Amendment 80 of the Arkansas Constitution. Johnson, 2009 Ark. 241, at 9, 308 S.W.3d at 141-42. The Supreme Court explained that, because ARK. CODE ANN. § 16-55-202(b) was unconstitutional, subsection (a), which allowed the jury to consider the fault of nonparties, “falls as well, as it is dependent on (b).” Id.

10. In ProAssurance Indem. Co., Inc. v. Metheny, the Arkansas Supreme Court held that it was not error for a trial court to refuse a jury instruction that required the jury

to apportion liability to nonparties who had settled with the plaintiffs. 2012 Ark. 461, at 17, 425 S.W.3d 689, 699.

11. In Reed v. Malone’s Mechanical, Inc., a federal district court explained that the plaintiff’s fault is compared only with the fault of parties from whom the plaintiff seeks to recover damages. 854 F. Supp. 2d 636, 645 (W.D. Ark. 2012) (citing Hiatt v. Mazda Motor Corp., 75 F.3d 1252 (8th Cir. 1996)). If the plaintiffs’ fault is less than 50% in comparison to the parties from whom the plaintiff seeks damages, the finder of fact must then allocate fault among all defendants – including third-party defendants from whom a defendant seeks contribution. Id. at 644 (harmonizing the Civil Justice Reform Act, ARK. CODE ANN. § 16-55-201 et seq. and the Uniform Contribution Among Tortfeasors Act, ARK. CODE ANN. § 16-61-202 et seq.).

B. General Common Law Duty

1. Negligence in Arkansas is “a failure to exercise proper care in the performance of a legal duty which the defendant owed the plaintiff under the circumstances surrounding them.” Marlar v. Daniel, 368 Ark. 505, 508, 247 S.W.3d 473, 476 (2007).

2. The question of whether the defendant owed a duty to the plaintiff and what that duty was is always a question of law for the court. Lawhon Farm Supply Inc. v. Hayes, 316 Ark. 69, 71, 870 S.W.2d 729, 730 (1994).

3. A defendant has a duty to guard against only those risks it can reasonably foresee. The defendant does not, however, have to be able to reasonably foresee “the exact or precise harm that occurred, or the specific victim of the harm.” Coca-Cola Bottling Co. of Memphis, TN v. Gill, 352 Ark. 240, 254-55, 100 S.W.3d 715, 724 (2003).

4. The operator of premises does not have a duty to guard against “merely possible” harm. To create a duty, the harm must be likely or probable. Ethyl Corp. v. Johnson, 345 Ark. 476, 482, 49 S.W.3d 644, 648 (2001).

C. Contractual Liability

1. Indemnity arises by virtue of a contract and holds one liable for the acts or omissions of another over whom he has no control. East-Harding, Inc. v. Horace A. Piazza & Assocs., 80 Ark. App. 143, 148, 91 S.W.3d 547, 550 (2002). The language imposing indemnity and the nature of the losses to be indemnified must be stated in clear, unequivocal, and certain terms. Capel v. Allstate Ins. Co., 78 Ark. App. 27, 38, 77 S.W.3d 533, 540.

2. Contribution requires that a tortfeasor pay or discharge the common liability or pay more than his or her pro rata share of liability. ARK. CODE ANN. § 16-61-202 (2012). In contrast, indemnity shifts the entire loss from one tortfeasor to another

party who should instead bear the entire loss. Mo. Pac. R.R. Co. v. Star City Gravel Co., 452 F. Supp. 480, 481-82 (E.D. Ark. 1978).

3. The construction and legal effect of a written contract for indemnity are to be determined by the court as a question of law, except where the meaning of the language depends on disputed extrinsic evidence. Ark. Rock & Gravel Co. v. Chris- T-Emulsion Co., 259 Ark. 807, 809, 536 S.W.2d 724, 726 (1976).

4. Indemnity agreements are construed strictly against the party seeking indemnification, except those between business entities following knowing negotiations. Potlatch Corp. v. Mo. Pac. R.R. Co., 321 Ark. 314, 321, 902 S.W.2d 217, 222 (1995).

5. If the indemnitor’s liability is for “damages” or “losses,” the indemnitee cannot recover upon a mere showing that he has incurred liability but must show that he has suffered actual loss by payment or satisfaction of judgment. Larson Mach., Inc. v. Wallace, 268 Ark. 192, 214-15, 600 S.W.2d 1, 13 (1980). Terms such as “liability” or “claim” have different meanings in indemnity law, and the indemnitor’s obligation may accrue at other times. See Jones v. Sun Carriers, Inc., 856 F.2d 1091, 1094-95 (8th Cir. 1988).

6. The person seeking indemnity may do so in a cross-claim, third-party pleading, or an independent, subsequent action. See Larson Mach., Inc. v. Wallace, 268 Ark. 192, 214, 600 S.W.2d 1, 14 (1980).

7. Attorneys’ fees can be recovered in claims for breach of contract. ARK. CODE ANN. § 16-22-308.

8. A contract that indemnifies a party against his own negligence is not contrary to the public policy of Arkansas. Mo. Pac. R.R. Co. v. Winburn Tile Mfg. Co., 461 F.2d 984, 987 (8th Cir. 1972). However, a provision that indemnifies a party for its own negligence must be expressed in clear and unequivocal terms and to the extent that no other meaning can be ascribed to the provision. Chevron U.S.A., Inc. v. Murphy Exploration & Prod. Co., 356 Ark. 324, 330, 151 S.W.3d 306, 310 (2004).

9. In the absence of an express contract, the basis for the right to indemnity rests upon a contract implied in law. See Larson Mach., Inc. v. Wallace, 268 Ark. 192, 213, 600 S.W.2d 1, 12 (1980). Ultimately, as with other contracts implied in law, it rests upon the basic restitutionary principle of fairness that one who is compelled to pay money that another should have paid is entitled to recover the sums paid. See Martin Farm Enters., Inc. v. Hayes, 320 Ark. 205, 209, 895 S.W.2d 535, 537 (1995). An indemnitee who relies upon an implied covenant cannot recover by merely showing that he actually incurred liability or suffered loss; it must be further shown that the loss resulted from payment of a judgment or other payment under compulsion rather than as a volunteer. Carpetland of N. W. Ark., Inc. v. Howard, 304 Ark. 420, 424, 803 S.W.2d 512, 514 (1991). A party who reaches a voluntary

settlement may be entitled to equitable indemnity upon showing: (1) that the settling party faced exposure to a judgment, (2) the advisability of reaching a settlement, and (3) the reasonableness of the settlement amount. Id. at 423, 803 S.W.2d at 514.

D. Joint And Several Liability

1. At common law, if two individuals commit independent tortious acts causing separate and distinct injuries to an innocent party, the plaintiff must establish the damages due to the wrong of each defendant; the liability of each is several, not joint, and the defendants are separately liable for the damages caused by their separate wrongs. Troop v. Dew, 150 Ark. 560, 234 S.W. 992, 994 (1921); Bill C. Harris Constr. Co. v. Powers, 262 Ark. 96, 108, 554 S.W.2d 332, 337 (1977).

2. At common law, joint liability among defendants for separate acts of negligence exists in two instances: (1) where there is a common design, purpose, or concert of action in the commission of the separate acts, or (2) when the separate acts of negligence are concurrent in time and place, and unite in setting in operation a single force that produces the injury. Troop v. Dew, 150 Ark. 560, 234 S.W. 992, 994 (1921).

3. Separate acts of negligence concurring in time and place to produce a single injury historically supported the joint and several liability of the defendants for all resulting damage. McGraw v. Weeks, 326 Ark. 285, 288, 930 S.W.2d 365, 367 (1996). Tortfeasors engaged in a joint enterprise were also jointly and severally liable. A joint enterprise exists when the parties have (1) a community of interest in the object and purpose of an undertaking and (2) a right to direct and control the movements of each other in regard to the common undertaking. Neal v. J. B. Hunt Transp., Inc., 305 Ark. 97, 101, 805 S.W.2d 643, 645 (1991).

4. The Civil Justice Reform Act of 2003 dramatically changed the longstanding law of joint and several liability in Arkansas. Since its passage, in any action for personal injury, medical injury, property damage, or wrongful death, the liability of each defendant for compensatory or punitive damages is several only. ARK. CODE ANN. § 16-55-201(a) (2014). Each defendant is liable only for the damages allotted to that defendant based on that defendant’s percentage of fault, and a separate judgment is awarded against that defendant for that amount. ARK. CODE ANN. § 16-55-201(b) (2014).

5. The Civil Justice Reform Act gives limited authority to the trial court to increase the share against a defendant when the amount of compensatory damages for which a separate defendant is liable is not reasonably collectable. ARK. CODE ANN. § 16- 55-203(a)(1)-(2) & (b) (2014). This provision provides for a partial reallocation of the share that cannot be collected, and it applies only to the fault shares of named defendants. ARK. CODE ANN. § 16-55-203(a)(2)-(3) (2014). A defendant whose several share has been increased and who has discharged the obligation to pay the

increased several share has a right of contribution from the defendant whose several share was determined by the court to be not reasonably collectible. ARK. CODE ANN. § 16-55-203(a)(5) (2014).

6. Under the Civil Justice Reform Act, traditional joint and several liability continues in two situations: (1) when the tortfeasors acted in concert with a conscious agreement to pursue a common plan or design to commit an intentional tort and actively took part in that intentional tort, and (2) if the other person or entity was acting as an agent or servant of the party. ARK. CODE ANN. § 16-55-205(a) (2014).

7. The Arkansas appellate courts have not yet discussed theories developed in other jurisdictions that essentially permit the plaintiff to show his damages and then shift the burden of apportionment to the defendants, such as alternative liability, concert of action, enterprise liability, and market-share liability. The courts that have made note of these theories have found that Arkansas retains the traditional requirement of proximate cause in all tort cases. See Jackson v. Anchor Packing Co., 994 F.2d 1295, 1303 (8th Cir. 1993); Davis v. DuPont, 729 F. Supp. 652, 652 (E.D. Ark. 1989).

8. When defendants have joint or several liability in tort for the same injury to person or property, then the right of contribution exists pursuant to the Uniform Contribution Among Joint Tortfeasors Act, ARK. CODE ANN. §§ 16-61-201, et seq. If a joint tortfeasor has by payment discharged the common liability or has paid more than his pro rata share thereof, he is entitled to a money judgment for contribution. ARK. CODE ANN. § 16-61-202(b) (2014). The right of contribution is not limited to money damages but also includes the right to an allocation of fault as among all joint tortfeasors. ARK. CODE ANN. § 16-61-202(c) (2012).

9. Under the Arkansas statute, the issue of contribution may be raised in several ways: (1) by cross-claim against co-defendants; (2) by third-party complaint; or (3) by filing a separate action. See ARK. CODE ANN. § 16-61-207 (2012). Even if it is not asserted until later, the substantive cause of action for contribution arises at the time of the underlying tort. Union Pac. R.R. Co. v. Mullen, 966 F.2d 348, 350-51 (8th Cir. 1992).

10. Arkansas permits either the trial judge or the jury to make apportionment. See Wheeling Pipe Line, Inc. v. Edrington, 259 Ark. 600, 602, 535 S.W.2d 225, 226 (1976); Shultz v. Young, 205 Ark. 533, 169 S.W.2d 648, 651 (1943). If the verdict forms presented to the jury permit it to apportion liability among joint tortfeasors, any error is waived by the lack of objection. Wheaton Van Lines, Inc. v. Williams, 240 Ark. 280, 287, 399 S.W.2d 258, 262 (1966).

11. A joint tortfeasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tortfeasor whose liability to the injured person is not extinguished by the settlement. ARK. CODE ANN. § 16-61-202(d) (2014).

12. Similarly, a release given by the injured party to one joint tortfeasor does not discharge the other joint tortfeasors unless the release so provides. ARK. CODE ANN. § 16-61-204(a) (2014). A release by the injured person of a joint tortfeasor does not relieve the released tortfeasor from liability to make contribution to another joint tortfeasor unless the release is given before the right of the other joint tortfeasor to secure a money judgment for contribution has accrued and provides for a reduction, to the extent of the pro rata share of the released joint tortfeasor, of the injured person’s damages recoverable against all other joint tortfeasors. ARK. CODE ANN. § 16-61-204(b) (2014).

13. When the injured person releases a joint tortfeasor, the injured person’s damages recoverable against all the other joint tortfeasors shall be reduced by the greatest of the following: (1) the amount of the consideration paid for the release; (2) the pro rata share of the released joint tortfeasor’s responsibility for the injured person’s damage; or (3) any amount or proportion by which the release provides that the total claim shall be reduced. ARK. CODE ANN. § 16-61-204(c) (2014).

14. When the injured person releases a joint tortfeasor, the remaining defendants are entitled to a determination by the finder of fact of the released joint tortfeasor’s pro rata share of responsibility for the injured person’s damages. ARK. CODE ANN. § 16-61-204(d) (2014).

15. “Mary Carter” agreements are both discoverable and admissible into evidence. Firestone Tire & Rubber Co. v. Little, 276 Ark. 511, 514, 639 S.W.2d 726, 728 (1982).

16. A third-party tortfeasor may not seek contribution against an employer that satisfied a workers’ compensation claim by the plaintiff. W. M. Bashlin Co. v. Smith, 277 Ark. 406, 423, 643 S.W.2d 526, 534 (1982).

E. Vicarious Liability

Vicarious liability is the imposition of liability on one person for the actionable conduct of another based on the relationship between the parties.

1. Employer/Employee

a. Arkansas follows the doctrine of respondeat superior. Under the doctrine of respondeat superior, an employer is liable for the foreseeable tortious acts of an employee committed within the scope of his employment at the time of the incident.” Regions Bank & Trust, N.A. v. Stone County Skilled Nursing Facility, Inc., 73 Ark. App. 17, 21, 38 S.W.3d 916, 919 (Ct. App. 2001). The scope of employment includes acts that are done with the “object and purpose of the enterprise,” acts that are incidental to the employee’s duties, and acts that benefit the employer. Id.

b. An employer is not liable for acts of the employee that are strictly personal under respondeat superior. See Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997) (radiology technician who performed a sexual act on a patient while conducting an ultrasound of the patient’s abdomen was not acting within course and scope of employment); Regions Bank & Trust, 73 Ark. App. at 21, 38 S.W.3d at 919 (nurse’s aide at a long-term-care facility who sexually assaulted a patient was not acting within the course and scope of employment).

c. Even if the employee’s act was against company policy, or was not authorized or ratified by the employer, the employer is liable if the employee’s intentional tort was “not unexpectable in view of the duties of the servant.” B & F Engineering, Inc. v. Cotroneo, 309 Ark. 175, 183, 830 S.W.2d 835, 840 (1992) (acts of intoxicated driver who caused accident while driving a company truck were imputed to employer); Life & Cas. Ins. Co. of Tenn. v. Padgett, 241 Ark. 353, 355, 407 S.W.2d 728, 729 (1966) (reversing summary judgment in favor of employer where jury could reasonably find that disputes over collection of money are of such common occurrence that agent beating insured with wooden club was not unforeseeable in course of collecting insurance premiums). See also Gordon v. Planters & Merchants Bancshares, Inc., 326 Ark. 1046, 1058, 935 S.W.2d 544, 551 (1996) (bank was liable under respondeat superior for causing a charge-back against customer’s account); Midwest Buslines, Inc. v. Johnson, 291 Ark. 304, 724 S.W.2d 453 (1987) (common carrier was liable for wrongful ejection of passenger by its driver); Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972) (auto dealership was liable for turning back of odometer by its salesman).

2. Independent Contractor An employer is generally not responsible for the negligence of its independent contractor. However, courts have been willing to find that if an employer of an independent contractor goes beyond certain limits in directing, supervising, or controlling the performance of the work, the employer may be liable for the torts of the independent contractor under the theory of respondeat superior. Blankenship v. Overholt, 301 Ark. 476, 478, 786 S.W.2d 814, 815 (1990). Arkansas courts employ a totality-of-the-circumstances test to determine whether the relationship between an employer and independent contractor is really one of master-servant sufficient to impose vicarious liability. Id. at 479; 786 S.W.2d at 815. An employer may also be held vicariously liable for the negligence of an independent contractor when engaged in inherently dangerous work. McCorkle Farms, Inc. v. Thompson, 79 Ark. App. 150, 162, 84 S.W.3d 884, 891 (2002).

3. Joint Enterprise Arkansas also imposes vicarious liability on the basis of joint enterprise. Ark. Model Jury Instr., Civil AMI 712. In order to find that a joint enterprise exists, Arkansas law requires that there is both a common object and purpose of the undertaking and an equal right to direct and govern the movements and conduct of each person in respect to the common object and purpose of the undertaking. Arkansas courts have been willing to apply the concept of joint enterprise to permit vicarious liability in the context of motor-vehicle operations. Reed v. McGibboney, 243 Ark. 789, 422 S.W.2d 115 (1967). However, Arkansas courts have also shown somewhat of an aversion for the concept of joint enterprise in other contexts, and have carefully scrutinized the second prong of the inquiry. See, e.g., Lovell v. Brock, 330 Ark. 206, 952 S.W.2d 161 (1997) (acquaintances of cabin owner who paid fee to stay in cabin during hunting season were not engaged in joint enterprise to impose vicarious liability when owner fatally shot hunter).

4. Qualified Volunteer Arkansas statutorily protects a “qualified volunteer” from vicarious liability for the negligence of another in connection with or as a consequence of that person’s volunteer activities. Ark. Code Ann. § 16-6-104. A “qualified volunteer” is defined as “any person who of free will provides goods or services without financial compensation to or through any volunteer agency in connection with a volunteer program.” Ark. Code Ann. § 16-6-103.

5. Parent For Torts Of Minor Children The general rule in Arkansas is that a parent is not liable for the torts of his minor solely on the basis of the parental relationship. In order to hold a parent vicariously liable for the torts of the child, there must be some element of participation by the parent or some specific statutory basis. Bonner v. Surman, 215 Ark. 301, 303, 220 S.W.2d 431, 433 (1949). However, Arkansas courts are willing to impute liability to the parent based on the acts of the child where: (1) the parent has the opportunity and ability to control the minor; (2) the parent has knowledge of the minor’s tendency to commit acts that could normally be expected to cause injury to others; and (3) the parent thereafter fails to exercise reasonable means of controlling the minor. Bieker v. Owens, 234 Ark. 97, 99, 350 S.W.2d 522, 524 (1961). Parents may also be vicariously liable for the tortious conduct of their minor children under the following statutory provisions: a. Destruction Of Property Parents of a minor under the age of eighteen (18) who is living with the parents may be vicariously liable for an amount up to $5,000.00 who “shall maliciously or willfully destroy, damage, or deface real, personal, or mixed property.” Ark. Code Ann. § 9-25-102.

b. Signor Of Minor’s Driving Application A person who signs the application of a minor (under eighteen (18) years of age) for an instruction permit, learner’s license, intermediate driver’s license, or a motor-driver cycle or motorcycle license is vicariously liable for any damages caused by the minor’s negligence or willful misconduct when driving a motor vehicle upon a highway. Ark. Code Ann. §27-16- 702. c. Permitting Minor To Drive A person may also be held vicariously liable, if certain elements are met, establishing that such person permitted a minor to drive and the minor’s operation of a motion vehicle proximately caused damages. Ark. Model Jury Instr., Civil AMI 802 and 804. See also Garrison v. Funderbunk, 262 Ark. 711, 716-17, 561 S.W.2d 73, 75-76 (1978).

F. Assumption Of Risk

1. General Rule

a. Assumption of the risk by the injured party is no longer a complete bar to recovery, but instead is simply one more element to be assessed in analyzing fault under Arkansas’s principles of modified-comparative fault. Ark. Code Ann. § 16-64-122(b)(2) (“The word ‘fault’ as used in this section includes any . . . risk assumed . . . which is a proximate cause of any damages sustained by any party.”). W.M. Bashlin Co. v. Smith, 277 Ark. 406, 415, 643 S.W.2d 526, 531 (1982). The question of assumption of risk is generally one for the jury.

b. In order for a court to permit an assumption-of-risk instruction, the defendant must show that the plaintiff was aware of the specific risk that caused his or her injury, not just general risks inherent in the activity. See, e.g., Simmons v. Frazier, 277 Ark. 452, 642 S.W.2d 314 (1982) (trial court did not err in refusing assumption-of-risk instruction where plaintiff knew it was dangerous to sleep on the highway, but did not know of specific danger that defendant’s truck would back along the highway and hit him).

c. Although Arkansas courts embrace this subjective standard, they have also demonstrated a willingness to hold that the openness and obviousness of the danger is sufficient to establish the knowledge element of assumption of risk in certain situations. Larson Mach., Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980):

Of course, [the plaintiff] could be said to have assumed the risk as a matter of law if the danger was so obvious or apparent that knowledge and appreciation thereof should be imputed to him . . . . One cannot be heard to say that he did

not know of a dangerous condition that was so obvious that it was apparent to those of ordinary intelligence.

2. No Assumption Of Risk Where Employer Acted In Contravention Of Safety Statute

Arkansas specifically provides by statute that assumption of risk is not an available defense for an employer corporation where the violation of any statute enacted for the safety of employees contributed to the injury or death of the employee. Ark. Code Ann. § 11-8-105.

ARKANSAS’S WRONGFUL DEATH STATUTE

A. Introduction

Arkansas’s wrongful death statute, Ark. Code Ann. § 6-62-102, applies whenever the death of a person (or unborn child as defined in Ark. Code Ann. § 5-1-102) is caused by wrongful act, neglect, or default.

B. Who May Bring A Wrongful Death Action

Arkansas allows for a wrongful death action to be brought by and in the name of the personal representative of the deceased. If there is no personal representative, then the action shall be brought by the heirs at law of the deceased person. Ark. Code. Ann. § 16- 62-102(b). The identity of heirs at law is determined by Ark. Code Ann. §§ 28-9-214, 215.

C. Venue

Venue is proper in the county (i) in which a substantial part of the events giving rise to the claim occurred, (ii) in which an individual defendant resided at the time of the event giving rise to the claim (or had its principal office); or (iii) in which the plaintiff resided at the time of the event giving rise to the claim (or had its principal office). Ark. Code Ann. § 16-55-213(a)(1)-(3). See Wright v. Centerpoint Energy Resources, Inc., 372 Ark. 330, 276 S.W.3d 253 (2008). To the extent it differs, venue may also be proper under Arkansas’s old venue statute, which provides that venue is proper in wrongful death actions (i) where the accident occurred, or (ii) where the decedent resided at the time of his or her death. Ark. Code Ann. § 16-60-112(a), (b). If the accident occurred outside of the state, then venue is proper in the county where the decedent resided at the time of the injury or in any county in which one or more defendants resides or is summoned. Ark. Code Ann. § 16- 60-112(c).

D. Who May Recover

Generally, the hierarchy of recovery under the wrongful death statute is a surviving spouse, children, father, mother, or siblings of a deceased. Ark. Code. Ann. § 6-62-102(d).

E. Damages In A Wrongful Death Action

1. General Rule:

In wrongful death cases, damages include just compensation for traditional pecuniary injuries and also includes damages for a spouse’s loss of the services and companionship of a deceased spouse and any mental anguish resulting from the death, to the surviving spouse and beneficiaries of the deceased person. Ark. Code Ann. § 16-62-102(f). Damages can also include the decedent’s pain and suffering. New Prospect Drilling Co. v. First Commercial Trust, N.A. 332 Ark. 466, 966 S.W.2d 233 (1998).

2. Punitive Damages:

Punitive damages may be awarded in wrongful death actions in Arkansas. Ark. Code Ann. § 16-55-201(a). An award of punitive damages is justified only where the evidence indicates that the defendant acted wantonly in causing the injury or with such a conscious indifference to the consequences that malice may be inferred. Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992).

3. Exceptions:

Arkansas law does not recognize damages for loss of the decedent’s enjoyment of life in wrongful death actions. Bailey v. Rose Care Center, a Div. of C.A.R.E., Inc., 307 Ark. 14, 817 S.W.2d 412 (1991). Children do not have claims for loss of consortium because of the wrongful death of a parent. Gray v. Suggs, 292 Ark. 19, 728 S.W.2d 148 (1987).

F. Defenses

1. Statutes of Limitation:

a. General – All actions for wrongful death, except for those caused by medical negligence, shall be commenced within three (3) years after the death of the person alleged to have been wrongfully killed. If a nonsuit is suffered, the action shall be brought within one (1) year from the date of the nonsuit without regard to the date of the death of the person alleged to have been wrongfully killed. Ark. Code Ann. § 16-62-102(c).

b. Medical Injury – All actions for medical injury, including wrongful death, shall be commenced within two (2) years after the cause of action accrues. Ark. Code Ann. § 16-114-203(a).

c. Construction/Design – No action in tort or contract, whether oral or written, sealed or unsealed, to recover damages for personal injury or wrongful death caused by any deficiency in the design, planning, supervision, or observation of construction or the construction and repairing of any improvement to real property shall be brought against any person performing or furnishing the design, planning, supervision, or observation of construction or the construction and repair of the improvement more than four (4) years after substantial completion of the improvement. Ark. Code Ann. § 16-56-112(B)(1). However, in the case of personal injury or an injury causing wrongful death, which injury occurred during the third year after the substantial completion, an action in tort or contract to recover damages for the injury or wrongful death may be brought within one (1) year after the date on which injury occurred, irrespective of the date of death, but in no event shall such an action be brought more than five (5)

years after the substantial completion of construction of such improvement. Ark. Code Ann. § 16-56-112(B)(2).

2. The Arkansas comparative fault statute, Ark. Code Ann. § 16-64-122, provides that in all actions for damages for personal injuries, wrongful death, or injury to property in which recovery is predicated upon fault, liability shall be determined by comparing the fault chargeable to the claiming party with the fault chargeable to the party or parties from whom the claiming party seeks to recover damages. “Fault” is defined as “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.” Ark. Code Ann. § 16-64-122(c).

3. In any action for personal injury, medical injury, property damage, or wrongful death, the liability of each defendant for compensatory or punitive damages is several only. Ark. Code Ann. § 16-55-201(a). Each defendant is liable only for the damages allotted to that defendant based on the defendant’s percentage of fault, and a separate judgment is awarded against that defendant for that amount. Ark. Code Ann. § 16-55-201(b).

4. However, the trial court has limited authority to increase the share against a defendant when the amount of compensatory damages for which a defendant is liable is not reasonably collectable. Ark. Code Ann. § 16-55-203(a)(1)-(2) & (b). This provision provides for a partial reallocation of the share that cannot be collected, and it applies only to the fault shares of named defendants. Ark. Code Ann. § 16-55-203(a)(2)-(3). A defendant whose several share has been increased and who has discharged the obligation to pay the increased several share has a right of contribution from the defendant whose several share was determined by the court to be not reasonably collectible. Ark. Code Ann. § 16-55-203(a)(5).

G. Other Issues

1. Day in the Life Videos:

A “Day in the Life” video is evidence frequently used in personal injury and wrongful death actions to reflect what a day in the life of a particular person is like. The admission and relevancy of such videos is a matter within the discretion of the trial court. A trial court is given broad discretion in determining the admissibility and will not be reversed merely because a videotape is inflammatory and cumulative of other evidence if the videotape’s probative value outweighs any prejudice. Elk Corp. of Ark. v. Jackson, 291 Ark. 448, 725 S.W.2d 829 (1987).

2. Dead Man’s Statute:

The Dead Man’s Statute was repealed in Arkansas in 1976 when Arkansas adopted the revised Uniform Rules of Evidence. Since its repeal, courts determine the admissibility and proof of the deceased’s words and dealings on the basis of its relevance and reliability, just as the admissibility of all unprivileged evidence is determined. Estate of Sabbs v. Cole, 57 Ark. App. 179, 944 S.W.2d 123 (1997) (citing dissenting opinion).

DAMAGES

A. Punitive Damages

1. Punitive Damages Generally

Punitive damages do not depend on the underlying theory or cause of action, but instead rest on the defendant’s conduct. See Gilmer v. Walt Disney Co., 915 F. Supp. 1001 (W.D. Ark 1996). Punitive damages are appropriate when the defendant acts with malice. Satterfield v. Rebsamen Ford, Inc., 253 Ark. 181, 485 S.W.2d 192 (1972). In tort, a plaintiff must generally establish that the defendant “intentionally pursued a course of conduct for the purpose of causing injury or damage.” See Arkansas Model Jury Instructions–Civil, AMI 2218. Punitive damages may be awarded if a defendant acts with such willfulness, wantonness, or conscious indifference to consequences that malice can be inferred. Wallace v. Dustin, 284 Ark. 318, 681 S.W.2d 375 (1984). The Arkansas Supreme Court has allowed punitive damages when the plaintiff has demonstrated a reckless disregard for the rights and safety of others. Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992). Negligence alone, no matter how gross, is never enough to support punitive damages. Nat’l Bank of Commerce v. McNeill Trucking Co., Inc., 309 Ark. 80, 828 S.W.2d 584 (1992).

2. Standard For Punitive Damages

Arkansas has stated the following standard for reviewing a claim of excessive punitive damages:

We consider the extent and enormity of the wrong, the intent of the party committing the wrong, all the circumstances, and the financial and social condition and standing of the erring party. Punitive damages are a penalty for conduct that is malicious or perpetrated with the deliberate intent to injure another. When punitive damages are alleged to be excessive, we review the proof and all reasonable inferences in the light most favorable to the appellees, and we determine whether the verdict is so great as to shock the conscience of this court or to demonstrate passion or prejudice on the part of the trier of fact. It is important that the punitive damages be sufficient to deter others from comparable conduct in the future. The conscious indifference of the alleged wrongdoer to the wrong committed is a pertinent factor in assessing punitive damages.

Union Pacific R.R. Co. v. Barber, 356 Ark. 268, 300–01, 149 S.W.3d 325, 346 (2004) (quoting Advocat Inc. v. Sauer, 353 Ark. 29, 50-51, 111 S.W.3d 346, 358 (2003)).

3. Insurability Of Punitive Awards

Punitive damages arising out of an intentional tort are not insurable. However, punitive damages arising out of accident are insurable. See S. Farm Bureau Cas. Ins. Co. v. Daniel, 246 Ark. 849, 440 S.W.2d 582 (1969).

4. Punitive Damages Caps

Under the CJRA, a cap was placed on punitive damages; however, in Bayer CropScience LP v. Schafer, the Arkansas Supreme Court ruled ARK. CODE ANN. § 16-55-208 of the CJRA unconstitutional under article 5, section 32 of the state constitution, finding that “precedents firmly establish that article 5, section 32 bestows upon the General Assembly the power to limit the amount of recovery only in matters arising between employer and employee.” 2011 Ark. 518 (citing Stapleton v. M.D. Limbaugh Constr. Co., 333 Ark. 381, 969 S.W.2d 648 (1998)).

B. Damages Allowed In Personal Injury Cases

1. Past Medical Bills

A plaintiff is entitled to recover the reasonable expense of any necessary medical care incurred in the past. Arkansas applies the collateral source rule which allows a plaintiff to recover for those bills paid by insurance. Pursuant to ARK. CODE ANN. § 16-55-212(b), the General Assembly purportedly reversed the collateral source rule; however, this statute has been ruled unconstitutional by the Arkansas Supreme Court. See Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135. Accordingly, plaintiffs can “blackboard” all medical bills incurred provided they are fair and reasonably related to the injury at issue.

2. Future Medical Bills

A plaintiff is entitled to recover the reasonable expense of future medical care that is reasonably certain to be required in the future. Recovery of future medical bills will be reduced to present day value.

3. Hedonic Damages

Arkansas divides hedonic damages into two categories: “loss of life,” and “loss of enjoyment of life.” Loss-of-life damages are those damages for the loss of life that begins at death and runs forward until the end of life expectancy. Loss-of- enjoyment-of-life damages are pre-death damages. See Durham v. Marberry, 356 Ark. 481, 491, 156 S.W.3d 242, 247–48 (2004). Arkansas law recognizes both forms of hedonic damages. Loss-of-life damages are an independent element of damages. ARK. CODE ANN. § 16-62-101(b) (2012) (“In addition to all other elements of damages provided by law, a decedent’s estate may recover for the decedent’s loss of life as an independent element of damages.”). See further, “We

hold that an estate seeking loss-of-life damages pursuant to section 16-62-101(b) must present some evidence, that the decedent valued his or her life, from which a jury could infer and derive that value and on which it could base an award of damages. While the Estate urges that mere proof of life and then death is sufficient, we disagree. That being said, we do not suggest that the evidence required by limited to direct evidence, as circumstantial evidence may certainly be used as well.” One Nat. Bank v. Pope, 372 Ark. 208, 214, 272 S.W.3d 98, 103 (Ark. 2008).

4. Increased Risk Of Harm

Arkansas has not specifically addressed the issue of increased risk of harm. The Arkansas Supreme Court has stated that it will consider adopting a cause of action for lost chance of survival in a medical malpractice case. Holt ex rel. Estate of Holt v. Wagner, 344 Ark. 691, 697, 43 S.W.3d 128, 132 (2001).

5. Disfigurement

Arkansas recognizes disfigurement as an element of damages.

6. Loss Of Normal Life

Arkansas recognizes loss of normal life as an element of damages.

7. Disability

Arkansas law recognizes that a disability may cause a loss of earning capacity, which is compensable.

8. Past Pain And Suffering

Arkansas recognizes past pain and suffering as a compensable element of damages. Pain and suffering can be inferred from the serious nature of the injury, and mental anguish can be inferred from the extent of physical pain. There are no definite rules or standards to measure compensation for pain and suffering. The extent of medical expenses is not a controlling factor. Arkansas allows plaintiffs to use a per diem basis to justify an award of pain and suffering. Arkansas does not, however, allow for an attorney to ask the jurors to put themselves in the shoes of the plaintiffs.

9. Future Pain And Suffering

Arkansas allows for a plaintiff to recover for pain and suffering that is reasonably certain to be experienced in the future, provided that the evidence establishes with a reasonable degree of certainty that the future pain and suffering will occur. Awards for future pain and suffering are not reduced to present value.

10. Loss Of Society

Arkansas law allows for claims of loss of consortium between a husband and wife. The spouse is entitled to damages to fairly compensate him or her for the reasonable value of any loss of the services, society, companionship, and marriage relationship. White v. Mitchell, 263 Ark. 787, 568 S.W.2d 216 (1978). Claims for loss of consortium are derivative and must accompany an award to the injured partner. Children do not have claims for loss of consortium. Gray v. Suggs, 292 Ark. 19, 728 S.W.2d 148 (1987). Arkansas also allows for a wrongful death action to be brought by a surviving spouse, children, father, mother, or siblings of a deceased. ARK. CODE ANN. § 16-62-102 (2012).

11. Loss Of Income, Wages, And Earnings

Arkansas allows a plaintiff to recover for loss of income, wages, and earnings. Motivation, post-injury income, credibility, demeanor, and a multitude of other factors are matters to be considered in claims for wage-loss-disability benefits in excess of permanent-physical impairment. Henson v. General Elec., 99 Ark. App. 129, 257 S.W.3d 908 (2008).

12. Proof Of Willful And Wanton Conduct

Arkansas courts, in applying the comparative fault statute, relate willful and wanton misconduct with a degree of negligence and will not regard such misconduct as something over and beyond or apart from a negligence concept. Billingsley v. Westrac Co., 365 F.2d 619, 623 (8th Cir. 1966).

13. Caps On Damages

In 2003, the Arkansas General Assembly enacted The Civil Justice Reform Act (“CJRA”), ARK. CODE ANN. § 16-55-201 et seq., which applies to causes of action accruing on or after March 25, 2003. Under the CJRA, there is no cap on compensatory awards. However, the CJRA provides that “[a]ny evidence of damages for the costs of any necessary medical care, treatment, or services received shall include only those costs actually paid by or on behalf of the plaintiff or which remain unpaid and for which the plaintiff or any third party shall be legally responsible.” ARK. CODE ANN. § 16-55-212(b) (2012). This provision of the CJRA has been attacked as an unconstitutional violation of separation of powers in that it purportedly reversed the collateral source rule. See, e.g., Burns v. Ford Motor Co., 549 F.Supp.2d 1081 (2008).

The Arkansas Supreme Court in Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135, answered certified questions from the United States District Court for the Eastern District of Arkansas and held that ARK. CODE ANN. § 16-55- 202 and ARK. CODE ANN. § 16-55-212(b) were unconstitutional. More specifically, the Court stated that “[b]ecause the nonparty provision is procedural, it offends the

principle of separation of powers and the powers specifically prescribed to this court by amendment 80. Accordingly, we hold that ARK. CODE ANN. § 16-55-202 violates separation of powers under article 4, § 2, as well as amendment 80, § 3 of the Arkansas Constitution.” Id. at 141. As for ARK. CODE ANN. § 16-55-212(b), the Court determined it promulgated a rule of evidence and “[b]ecause rules regarding the admissibility of evidence are within our province, we hold that the medical-costs provision also violates separation of powers under article 4, § 2 and amendment 80, § 3 of the Arkansas Constitution and, therefore, is unconstitutional.” Id. at 142.

C. Collateral Source Rule

1. The collateral source rule provides that benefits received by a plaintiff from a source wholly independent of, and collateral to, the defendant do not reduce the damages recoverable from the defendant. Younts v. Baldor Electric Co., 310 Ark. 86, 832 S.W.2d 832 (1992). For example, a plaintiff’s recovery from the tortfeasor is not limited or offset by the amounts or services, if any, the plaintiff receives from his insurance company for property damages or medical bills, from his employer for lost pay, or from his church or neighbors for meals or childcare.

2. There are, however, four instances where evidence of collateral income may be admissible:

a. To discredit the plaintiff’s testimony that financial need compelled him to return to work prematurely or to skip required medical care;

b. To impeach his testimony that he paid his own medical bills;

c. To rebut his testimony that he had not worked; and

d. To demonstrate that the plaintiff had attributed his injuries to a cause, such as illness, for which the defendant was not responsible.

Evans v. Wilson, 279 Ark. 224, 650 S.W.2d 569 (1983).

D. Last Clear Chance Doctrine

The “last clear chance” doctrine provides generally that the plaintiff who negligently subjects himself or herself to a risk of harm may recover when the defendant discovers or could have discovered the plaintiff's peril had he or she exercised due diligence, and thereafter fails to exercise reasonable care to avoid injuring the plaintiff. The last clear chance doctrine has been subsumed by the adoption of Arkansas’s comparative negligence statutes. See England v. Costa, 364 Ark. 116, 122, 216 S.W.3d 585, 589 (2005); Miller v. Hometown Propane Gas, Inc., 86 Ark. App. 189, 167 S.W.3d 172 (2004).

E. Mitigation

In Arkansas, a party cannot recover damages for a wrong, even if it is legally attributable to and proximately caused by another party, if the resulting damages could have been avoided or reduced. An injured party who fails to promptly seek medical attention may be barred from recovering those injuries that could have been prevented. Mitigation is an affirmative defense and the burden of proving that the plaintiff failed to exercise reasonable care to avoid or reduce damages is on the defendant. See Arkansas Model Jury Instructions–Civil, AMI 2230; Jones v. McGraw, 374 Ark. 483, 288 S.W.3d 623 (Ark. 2008).

F. Pre- And Post-Judgment Interest

1. Pre-Judgment Interest

Pre-judgment interest is only awarded in Arkansas when the amount of damages is definitely ascertainable by mathematical computation, or if the evidence furnishes data that make it possible to compute the amount without reliance on opinion or discretion. Woodline Motor Freight, Inc. v. Troutman Oil Co., Inc., 327 Ark. 448, 938 S.W.2d 565 (1997). Even when the amount is ascertainable, the inability to determine the time of the injury bars an award of pre-judgment interest. Mitcham v. First State Bank of Crossett, 333 Ark. 598, 970 S.W.2d 267 (1998). Pre- judgment interest is generally held to be capped at 6% when no rate of interest has been agreed upon by the parties. Killiam v. Tex. Oil & Gas Corp., 303 Ark. 547, 798 S.W.2d 419 (1990).

2. Post-Judgment Interest

Post-Judgment interest is awarded by statute at a rate of 10% per annum but not to exceed the maximum interest under the Arkansas Constitution, Article 19, § 13. See ARK. CODE ANN. § 16-65-114 (2012). The Arkansas Constitution limits interest to federal primary credit rate. Pakay v. Davis, 367 Ark. 421, 241 S.W.3d 257 (2006).

3. Attorneys’ Fees

Arkansas follows the “American Rule” that each litigant must pay his or her own attorneys’ fees. Fee shifting is not allowed unless expressly authorized by statute. McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998). While negligence cases are governed by the American Rule, the Arkansas General assembly has provided for the award of attorneys’ fees in cases for breach of contract. See ARK. CODE ANN. § 16-22-308 (2012).

4. Costs

The Arkansas Rules of Civil Procedure provide that costs shall be allowed to the prevailing party if the court so directs, unless a statute or rule makes an award mandatory. ARK. R. CIV. P. 54(d)(1) (2012). Costs are limited to the following: filing fees and other fees charged by the clerk; fees for service of process and subpoenas; fees for the publication of warning orders and other notices; fees for interpreters appointed under Rule 43; witness fees and mileage allowances as provided in Rule 45; fees of a master appointed pursuant to Rule 53; fees of experts appointed by the court pursuant to Rule 706 of the Arkansas Rules of Evidence; and expenses, excluding attorney’s fees, specifically authorized by statute to be taxed as costs. ARK. R. CIV. P. 54(d)(2) (2012). The award of costs is within the discretion of the trial court. Zhan v. Sherman, 323 Ark. 172, 913 S.W.2d 776 (1996).

Arkansas Rule of Civil Procedure also allows for the taxation of costs in the event a party declines an offer of judgment and receives a verdict less favorable than that offered at trial. See ARK. R. CIV. P. 68 (2012). Under an offer of judgment, costs included reasonable litigation expenses, excluding attorneys’ fees. This language has been interpreted to include such matters as attorneys’ meals and travel expenses, outside consultants retained, preparation of trial exhibits, and office expenses directly related to the litigation. ARK. R. CIV. P. 68 (Reporter’s Notes).

G. Income Tax

A court may not instruct a jury that the plaintiff’s recovery for personal injury is tax free. However, the measure of damages for a wage loss is the gross amount of wages. Taxes, Social Security, retirement contributions or other withholdings may not be used to reduce a plaintiff's recovery for lost wages. Taxation is not a material issue to the determination of damages. Cates v. Brown, 278 Ark. 242, 248, 645 S.W.2d 658, 661-62 (1983).

H. Unique Damages Issues In Arkansas

1. When the jury’s verdict is rendered on a general verdict form, it is an indivisible award. The Arkansas appellate courts will not speculate on what the jury found where a general jury verdict is used. Therefore, when special interrogatories concerning liability or damages are not requested, the appellate courts will neither question nor theorize about the jury’s findings. As a result, a general verdict will be upheld if it can be supported by any claim in the case. Union Pacific R.R. Co. v. Barber, 356 Ark. 268, 293, 149 S.W.3d 325, 341 (2004).

2. “A damages award is not a lottery ticket; the amount of damages must be supported by substantial evidence. If evidence does not support the amount awarded, and the amount is sufficiently excessive in relation to the evidence presented at trial that it shocks the conscience of the appellate court, then we must order remittitur or

remand for a new trial.” Vaccaro Lumber v. Fesperman, 100 Ark. App. 267, 267 S.W.3d 619 (2007).

I. Minor Settlements

Settlements involving minors that exceed $5,000 require the establishment of a guardianship for the minor and then, upon application to the court, obtaining a court order approving any such settlement. ARK. CODE ANN. § 28-65-502. See also Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (Ark. App. 1981) (holding that a parent has no power to authorize a settlement of a minor’s tort claim without court approval).

“On petition of the guardian of the estate, the court, if satisfied that the action would be in the interest of the ward and his or her estate, may make an order authorizing the settlement or compromise of any claim by or against the ward or his or her estate, whether arising out of contract, tort, or otherwise, and whether arising before or after the appointment of the guardian.” ARK. CODE ANN. § 28-65-318(a). “A settlement of a tort claim against a ward made by or in behalf of the guardian of the estate shall be binding, if otherwise valid, without authorization or approval by the court.” ARK. CODE ANN. § 28-65-318(b). “A discharge, acquittance, or receipt given by a guardian of the estate for any claim other than one arising out of tort shall be valid in favor of any person who takes it in good faith, but the guardian shall assume the burden of establishing that any compromise not previously approved by the court was made in the interest of the ward and his or her estate and shall be liable to his or her ward if he or she or his or her estate is injured thereby.” ARK. CODE ANN. § 28-65-318(c).

DRAM SHOPS IN ARKANSAS

A. Dram Shop Act

In Arkansas, the “Dram Shop Act” was created by the General Assembly in Act 1596 of 1999 and codified at Arkansas Code Annotated § 16-126-101 et seq.1 The General Assembly passed Act 1596 in response to decisions rendered by the Arkansas Supreme Court in Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997) and Jackson v. Cadillac Cowboy, Inc., 337 Ark. 24, 986 S.W.2d 410 (1999).2 For decades before the codification of the Dram Shop Act, Arkansas courts declined to recognize dram shop civil liability for service of alcohol to intoxicated adults or minors.3 In Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997), however, the Arkansas Supreme Court modified this common-law rule and held that a licensed vendor’s violation of Arkansas Code Annotated § 3-3-202 (Repl. 1996), which prohibited the sale of alcohol to minors, was evidence of negligence to be submitted to a jury.4 The Supreme Court concluded that the Arkansas General Assembly had assigned a high duty of care to licensed alcohol vendors.5

Subsequently, in Jackson v. Cadillac Cowboy, Inc., 337 Ark. 24, 986 S.W.2d 410 (1999) (“Cadillac Cowboy I”), the Arkansas Supreme Court held that alcohol vendors can be held liable for negligence if they sell alcoholic beverages to intoxicated persons who cause injury to third persons.6 In response to their decision in Cadillac Cowboy I, the Arkansas General Assembly passed Act 1596 of 1999. Arkansas Code Annotated § 16-126-101 provides:

The General Assembly finds and determines that it needs to clarify and establish its legislative intent regarding the sale of alcoholic beverages as addressed by the Arkansas Supreme Court in Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997), and Jackson v. Cadillac Cowboy, Inc., 337 Ark. 24, 986 S.W.2d 410 (1999).7

The Dram Shop Act only applies to the commercial sale of alcoholic beverages and imposes civil liability on alcoholic beverage retailers who knowingly sell alcohol to a minor or a “clearly intoxicated” person or who reasonably should have known the person was “clearly intoxicated” or a minor at the time of the sale.8 To establish a cause of action under Arkansas’s Dram Shop Act for the sale of alcohol to a “clearly intoxicated” person, the plaintiff is required to prove: (1) first, that the defendant sold alcoholic beverages to the intoxicated person; (2) second, that the defendant knew or reasonably should have known that the intoxicated person was so

1 Sluder v. Steak & Ale of Little Rock, Inc., 361 Ark. 267, 206 S.W.3d 213 (2005). 2 Id. 3 Id. 4 Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997). 5 Id. 6 Jackson v. Cadillac Cowboy, Inc., 337 Ark. 24, 986 S.W.2d 410 (1999). 7 Ark. Code Ann. § 16-126-101. 8 Ark. Code Ann. §§ 16-126-103, 16-126-104. 44 obviously intoxicated at the time of the sale that he or she presented a clear danger to others; and (3) third, that such sale was a proximate cause of the plaintiff’s damages.9

To establish a cause of action under the Dram Shop Act for the sale of alcohol to a minor, the plaintiff must prove: (1) first, that the defendant sold alcoholic beverages to the minor, who was a minor at the time of the sale; (2) second, that the defendant knew or reasonably should have known that the minor was a minor; and (3) third, “that such knowing was a proximate cause of [the plaintiff’s] damages.”10 The Arkansas General Assembly expressly stated that it is the consumption, rather than the furnishing, of any alcoholic beverage that constitutes the “proximate cause” of injuries or property damage under the Dram Shop Act.11

B. Commercial Sale

A cause of action brought under the Dram Shop Act is one of purely statutory creation and in derogation of the common law. As a result, Arkansas courts construe the statutes that comprise the Dram Shop Act strictly.12 A commercial sale of alcohol is required before Arkansas courts will impose liability under the Dram Shop Act, as the relevant statutes speak of an alcoholic beverage retailer knowingly selling alcoholic beverages to a clearly intoxicated person or minor. “To interpret the statute to create a cause of action where there was no buyer-seller relationship . . . would be to pass beyond the limitations of the statute and would constitute a policy decision.”13 In Mason v. Chenal Country Club, the Court of Appeals of Arkansas determined that a country club was not liable under the state Dram Shop Act for providing each table of ten at a fundraiser two bottles of open wine at no additional cost because there was no evidence that a “sale” occurred because there was no established buyer-seller relationship between the country club and the fundraiser attendees.14 If there is no commercial sale, then there is no liability under the Dram Shop Act.

C. Clearly Intoxicated

As previously discussed, liability under the Dram Shop Act only arises if an alcoholic beverage retailer knowingly sold alcoholic beverages to a person who was clearly intoxicated at the time of such sale or under circumstances where the retailer reasonably should have known the person was clearly intoxicated at the time of the sale.15 A person is “clearly intoxicated” for purposes of the Dram Shop Act when he or she is so “obviously” intoxicated to the extent that, at the time of such sale, he or she presents a “clear danger” to others.16

9 Arkansas Model Jury Instructions—Civil 1902 (2015). 10 Arkansas Model Jury Instructions—Civil 1901 (2015). 11 Ark. Code Ann. § 16-126-105. 12 Mason v. Chenal County Club, 2010 Ark. App. 180 (Ark. Ct. App. 2010). 13 Id. at 4-5. 14 Id. 15 Ark. Code Ann. § 16-126-104. 16 Cadillac Cowboy, Inc. v. Jackson, 347 Ark. 963, 69 S.W.3d 383 (2002). 45

Arkansas courts have permitted proof of “clear intoxication” to be established by circumstantial evidence such as eyewitness and opinion testimony. Arkansas courts have, for example, allowed proof of intoxication to be established by circumstantial evidence such as eyewitness testimony in DWI cases.17 Opinion testimony regarding intoxication is generally admissible.18 This is also true for actions brought under the Dram Shop Act. In Cadillac Cowboy, Inc. v. Jackson, the Arkansas Supreme Court determined that opinion testimony from police officers who pulled a driver over was sufficient to establish, in an action against a club owner, that the driver was clearly intoxicated during the time he was being served alcohol at the club, even though the club manager and bartenders testified the driver was not clearly intoxicated.19

D. Sale to Minors

Arkansas Code Annotated § 16-126-103 prohibits the commercial sale of alcoholic beverages to minors. The Dram Shop Act expands liability for a third person’s damages caused by the minor’s intoxication to include “knowingly [selling]” alcohol. It is also expanded to include situations where the retailer “reasonably should have known such purchaser was a minor . . . .”20 This liability arises out of the public policy of the State of Arkansas to protect minors as a special class of citizens from the adverse consequences of alcohol consumption.21 Furnishing alcohol to minors is a punishable criminal offense in Arkansas, in which a first offense constitutes a misdemeanor and the second offense constitutes a felony.22

E. Alcoholic Beverage Retailers

Liability under the Dram Shop Act applies to “alcoholic beverage retailers” who conduct commercial sales of alcohol to clearly intoxicated persons or minors. In Archer v. Sigma Tau Gamma Alpha Epsilon, Inc., the Supreme Court of Arkansas determined that a college fraternity chapter that charged an admission fee for a party at which food, alcohol, and entertainment was provided was not an “alcoholic beverage retailer” for purposes of the Dram Shop Act.23 The court admitted that, while the Dram Shop Act itself does not define “alcoholic beverage retailers,” the Arkansas Alcoholic Beverage Control Division defined the term as “any person who holds a permit under any alcoholic beverage control law of the State of Arkansas to sell at retail controlled beverages to consumers only.”24 The court applied this definition of “alcoholic beverage retailers” to the Dram Shop Act and held that the fraternity chapter did not meet this definition simply because it charged an entry fee to its party.25 Thus, the Dram Shop Act is only applicable against “alcoholic beverage retailers” that hold a permit under any “alcoholic beverage control law” of the State of Arkansas to “sell at retail controlled beverages to consumers only.”

17 See, e.g., Blair v. State, 103 Ark. App. 322, 288 S.W.3d 713 (Ark. Ct. App. 2008). 18 Mace v. State, 328 Ark. 536, 944 S.W.2d 830 (1997). 19 Cadillac Cowboy, Inc. v. Jackson, 347 Ark. 963, 69 S.W.3d 383 (2002). 20 Ark. Code Ann. § 16-126-103. 21 Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997). 22 Ark. Code Ann. § 3-3-202. 23 Archer v. Sigma Tau Gamma Alpha Epsilon, Inc., 2010 Ark. 8, 362 S.W.3d 303 (2010). 24 Id. 25 Id. 46

This Compendium outline contains a brief overview of certain laws concerning various litigation and legal topics. The compendium provides a simple synopsis of current law and is not intended to explore lengthy analysis of legal issues. This compendium is provided for general information and educational purposes only. It does not solicit, establish, or continue an attorney-client relationship with any attorney or law firm identified as an author, editor or contributor. The contents should not be construed as legal advice or opinion. While every effort has been made to be accurate, the contents should not be relied upon in any specific factual situation. These materials are not intended to provide legal advice or to cover all laws or regulations that may be applicable to a specific factual situation. If you have matters or questions to be resolved for which legal advice may be indicated, you are encouraged to contact a lawyer authorized to practice law in the state for which you are investigating and/or seeking legal advice.