concluding that damages awarded included only fair market value, rendering an erroneous instruction on incidental expenses harmless
How later courts described this case
- concluding that damages awarded included only fair market value, rendering an erroneous instruction on incidental expenses harmless
- holding that public-benefit corporation was not entitled to charitable immunity
Written by the judges who cited it.
The opinion
David Newbern, Justice, dissenting. This is a negligence case. The majority opinion rejects the sufficiency-of-the-evidence argument of Ouachita Wilderness Institute, Inc., on the ground that no argument on “duty” was presented to the Trial Court. The directed-verdict motion contained this sentence: “The plaintiff has failed to establish a negligence case.” Negligence is nothing other than the violation of a duty to act or not to act in a certain way.
In other words, “duty” is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same — to conform to the legal standard of reasonable conduct in the light of apparent risk.
W. Keeton, D. Dobbs, R. Keeton, and D. Owen, Prosser & Keeton on Torts, p. 356 (5th Ed. 1984). It was enough for the Institute to question whether the facts proven amounted to negligence. It was for the jury to decide whether the actions of the Institute were, what “a reasonably careful person . . . would not do under circumstances similar to those shown by the evidence in this case.” AMI 301.
The problem, however, is that the Trial Court declined to give a jury instruction patterned on Ark. Code Ann. § 16-64-122 (c) (Supp. 1995). That subsection, found in our basic comparative fault statute, provides: “The word ‘fault’ as used in this section includes 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.” [Emphasis supplied.] We no longer allow an “assumption of risk” instruction which would inform the jury that if the plaintiff assumed the risk the defendant is not liable. Rogers v. Kelly, 284 Ark. 50 , 679 S.W.2d 184 (1984). That does not mean, however, that in applying the statutory comparative fault scheme the jury should not be informed that “fault” includes “risk assumed.” Thus informed, the jury can intelligently compare the fault of the parties.
The Institute’s proffered instruction number 11 was, “When I use the word ‘fault’ in these instructions, I mean negligence and assumption of risk.” That was a proper instruction which should have been given. The refusal to give it was prejudicial to the Institute’s case.
I respectfully dissent.