Thigpen v. Polite

David Newbern, Justice,

dissenting. The majority opinion notes that the appellees conceded “liability” in this case. It was more than a concession of “negligence.” One of the elements of the tort of negligence is damages. Dean Prosser stated the distinction as follows:

Negligence, as we shall see, is simply one kind of conduct. But a cause of action founded upon negligence, from which liability will follow, requires more than conduct. The traditional formula for the elements necessary to such a cause of action may be stated briefly as follows:
1.....
4. Actual loss or damage resulting to the interests of another. Since the action for negligence developed chiefly out of the old form of action on the case, it retained the rule of that action, that proof of damage was an essential part of the plaintiffs case. Nominal damages, to vindicate a technical right, cannot be recovered in a negligence action, where no actual loss has occurred. The threat of future harm, not yet realized, is not enough. Negligent conduct in itself is not such an interference with the interests of the world at large that there is any right to complain of it, or to be free from it, except in the case of some individual whose interests have suffered.

As there must be injury or damages to produce liability, a concession of liability is a concession that there was injury or damages.

The only question before the jury should have been the amount of damages, if any, suffered by the appellant. The jury, however, returned a verdict for the appellees (defendants). The majority opinion ignores the problem by saying the trial court’s refusal to grant a new trial “with the implication that he found the verdict not clearly against the preponderance of the evidence” was not an abuse of discretion. There clearly is no question in this case about the preponderance of the evidence on the issue of liability. The jury’s verdict, like the majority opinion, is completely inconsistent with the appellees’ concession of liability.

Our rules permit not only review but appeal of an order denying a motion for new trial. Ark. R. App. P. 2(a)3. If we were deciding whether a new trial should or should not have been granted because the jury misjudged the preponderance of the evidence, the narrower controversy over the impropriety of appellate review of that matter would be implicated. See 11 C. Wright and A. Miller, Federal Practice and Procedure, Civil, § 2818 (1973). Again, that is not the issue here.

In my view, it was an abuse of the trial court’s discretion not to have granted a new trial, given the clear mistake of the verdict for the defendants. The appellees cite Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 26 (1982), for the proposition that when a defendant has admitted “fault” in an accident case it is not improper for the jury to return a verdict for the defendant. That is correct, but there is a difference, as discussed above, in admitting “fault” as opposed to admitting “liability.” More appropriate in this case is the appellant’s citation of Brophy v. Mehaffey & Associates, 252 Ark. 811, 481 S.W.2d 360 (1972), where we upheld the trial court’s action in giving the jury only a plaintiffs verdict form where the defendant had admitted he owed some money to the plaintiff for services, and the only question was the amount.

Ark. R. Civ. P. 59(a) provides:

Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party:
(1) . . . .
(6) the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law
(8) error of law occurring at the trial and objected to by the party making the application ....

The majority attempts to bolster its opinion by pointing out that no objection was made to verdict forms given to the jury. If this appeal were based on denial of a motion for a new trial which was made to seek correction of a specific error on the part of the court, pursuant to Rule 59(a)(8), I could agree. However, the motion for a new trial and this entire appeal are on the ground that it was simply a mistake to reach a result which is patently inconsistent with the appellees’ concession of liability. I could understand the position of the majority better, and I would vote to affirm, had the jury returned a verdict for the appellant but found “0” damages due to the weakness of the appellant’s evidence on the amount of his loss. But here the jury returned a defendants’ verdict altogether. While this may seem to be a highly technical distinction, to me the return of a flat defendants’ verdict showed there was serious confusion either on the part of the jury or the judge or both. In my opinion, it was within the trial judge’s discretion to grant a new trial pursuant to Rule 59(a)(6), and he clearly should have done so.

The majority opinion has focused on the wrong element of Rule 59(a)(6) by discussing whether the verdict was clearly contrary to the preponderance of the evidence. The preponderance of the evidence on the matter of liability became moot when the appellees (defendants) conceded it. The verdict in this case was, in the words of Rule 59(a)(6), “contrary to the law” because the defendants, who had conceded liability, were not entitled to a verdict, Brophy v. Mehaffey and Associates, supra, no matter how indignant the jury may have been.

I respectfully dissent.