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
Tom Glaze, Justice, dissenting. I disagree with the majority that Ouachita Wilderness Institute failed “to clearly set out the theory of duty in its motion for directed verdict.” The basic law of negligence is that there must be a determination of what duty, if any, is owed before factual issues of breach, proximate cause, and damages can be determined. See First Commercial Trust Co. v. Lorcin Eng’g, Inc., 321 Ark. 210 , 900 S.W.2d 294 (1995); Keck v. American Employment Agency, Inc., 279 Ark. 294 , 652 S.W.2d 2 (1983). Clearly by arguing to the trial court that Mergen failed to establish a negligence case, OWI was challenging Mergen’s burden to first establish what duty, if any, OWI owed to Mergen as a matter of law. 1
The threshold inquiry in a negligence case is whether the defendant owes a legal duty to the plaintiff. Here, then, the initial issue to decide is whether OWI, as owner and operator of the juvenile rehabilitation camp, owed any duty to employee Mergen to protect him from the illegal activities of the juveniles. If no duty was proved owed to Mergen, OWI’s directed verdict motion should have been granted.
In Keck v. American Employment Agency, Inc., 279 Ark. 294 , 652 S.W.2d 2 (1983), the court stated the rule that one ordinarily is not liable for the acts of another unless a special relationship exists. 279 Ark. at 300 . This court in First Commercial Trust Co. v. Lorcin Eng’g, 321 Ark. 210, 215 , 900 S.W.2d 202, 204 (1995), adhered to the more exact rule that, in general, no liability exists in tort for harm resulting from the criminal acts of third parties, although liability for such harm sometimes may be imposed on the basis of some special relationship between the parties, citing employer to employee as an example. See also 57A Am.Jur. 2d, Negligence, §§ 105, 109 (1989). Further, even when a special relationship exists, a duty to protect another from a criminal act may not be imposed unless the harm is foreseeable. Keck, 279 Ark. 294 , 652 S.W.2d 2 .
My review of the record reflects that Mergen fell short of his burden showing that OWI owed him a duty to protect his truck key from theft. Mergen presented no evidence that OWI should have foreseen that the boys would steal his truck key from his jacket pocket. In fact, Mergen testified that he had previously left his keys in his jacket or coat unattended without incident, even though Mergen stated that he knew there was a risk in doing so. OWI had the right to assume Mergen would exercise some care for his personal property. Finally, except for a brief reference to the break-in of a box where OWI had kept its motor-pool keys at one time, Mergen presented no evidence of any criminal activity occurring at OWI sufficient to place OWI on notice that employees’ personal property was not safe from criminal acts by the juveniles. Because Mergen failed to carry this elementary burden, I would reverse.
Brown, J., joins this dissent. The majority also holds OWI was required to object to AMI 305(b), the duty of care instruction, before OWI could preserve its legal-duty argument on appeal. However, OWI preserved its duty-owed argument when it raised its directed verdict motion, arguing Mergen’s evidence failed to prove OWI was negligent.