MIC v. Barrett

Robert L. Brown, Justice, dissenting. This case turns on a unique set of circumstances. The appellant, MIC d/b/a Burger King, offered an instruction, AMI 1106, which concerns premises liability of an owner and was fundamentally inappropriate for the fact situation at hand. The appellee, Bryan Barrett, sought to modify AMI 1106, over MIC’s objection, to include MIC employees and, thus, add the element of vicarious liability. The trial judge allowed the modification. MIC then proffered an unmodified AMI 1106 as the instruction which should have been given.

AMI 1106, either modified or unmodified, should not have been given in this case. It relates to premises liability of the owner and is appropriate for such matters as hidden defects on the premises, slip-and fall accidents, and the like. It is patently incorrect for situations where an owner’s former employee injures an invitee or licensee by negligent conduct. We have made this distinction in our case law. See, e.g., Tatum v. Rester, 241 Ark. 1059 , 412 S.W.2d 293 (1967); Linxwiler v. El Dorado Sports Center, Inc., 233 Ark. 191 , 343 S.W.2d 411 (1961). Yet, it was MIC that offered the erroneous instruction originally.

Complicating matters further is the fact that we do not have a complete record of objections made on instructions in this case. The record was settled after trial. It is clear, however, that MIC did not object to AMI 1106’s being given in the first place because it offered the same instruction and then proffered it for the record. MIC only objected to the instruction in its amended form.

The problem that confronts us is that the trial judge never was apprised that a fundamentally erroneous instruction was at issue here. Rather, the argument made by MIC, according to the settled record, was that AMI 1106 was appropriate to safety of the premises, but only as it related to the liability of the owner — not to its employees. Barrett countered that liability in this case had to include the negligence of MIC employees. Thus, a modification to include a vicarious liability element was included. Barrett argued our case of Catlett v. Stewart, 304 Ark. 637 , 804 S.W.2d 699 (1991) to the trial judge, but that case turned on the duty of ordinary care owed to patrons of a restaurant and had nothing to do with premise liability or AMI 1106.

We have recently said that we will presume prejudice when an erroneous instruction is given at trial which is used to decide a case. Skinner v. R.J. Griffin & Co., 313 Ark. 430 , 855 S.W.2d 913 (1993). But we have also made it a fundamental precept for appeals on instructions that an appellant must make an argument before the trial judge, telling the judge why the instruction was wrong, in order to preserve the point for appeal. Viking Ins. Co. v. Jester, 310 Ark. 317 , 836 S.W.2d 371 (1992). Here, MIC maintained to the trial judge that AMI 1106 was appropriate for this case but only with regard to the owner’s duty to keep the premises safe. That was wrong. Moreover, MIC did not make the precise distinction between an owner’s liability for physical defects on the premises under AMI 1106 and the duty of ordinary care that a restaurant owner and its employees owe to patrons under standard principles of negligence. Because the trial judge did not consider this distinction for the reason that it was not specifically presented to him in that form, we cannot use it as the basis for reversal in this case.

Though it appears that error occurred in the trial of this case and that the error must be presumed prejudicial, we must remain constant and adhere to our foundation principle that we will not scour the record for grounds to reverse but will do so only on the basis of issues presented to the trial judge for consideration. Here, the predicate for the majority’s reversal was not raised to the trial judge.

Accordingly, I would affirm this case.

Glaze, J., joins.