dissenting. I must respectfully dissent because the majority affirms liability for negligence in the absence of any evidence that Coca-Cola was negligent. The majority’s analysis of liability appears to be an application of a hybrid of strict liability, the doctrine of res ipsa loquitur, and general negligence.
Liability may not be based simply upon the existence of an injury. The majority appears to believe that Fred Gill’s injuries could have been avoided simply by the inexpensive addition of a redundant grounding system. That may be true, but that is not how this case was pled, or tried, and further, no credible or admissible evidence exists in this case to show Coca-Cola was under a duty to provide a redundant grounding system.
This case against Coca-Cola was based in negligence and lacks substantial evidence of proximate cause. The case also fails for a lack of proof of a duty. I also must dissent from the holding that a pleading withdrawn by nonsuit is not admissible against the nonsuiting party for purposes of impeachment. A pleading withdrawn by nonsuit is no less credible than a pleading withdrawn for some other purpose.
Facts
There is no dispute that Gill was seriously injured when he suffered the electrical shock. Gill was asked to set up the trader by Principal Steve Daniel. Gill had previously performed this task. Daniel testified he plugged in the electrical cord in the shed after Gill fed the cord out a hole in the trailer. According to Daniel’s testimony, he later saw Gill, sensed Gill was in trouble, and went to his aid. By the time Daniel reached Gill, Gill was propped up against the trader. Daniel testified that he was knocked on the ground by a shock when he touched Gid. Daniel then testified that he touched the trailer and was again shocked, and he then unplugged the electrical cord. The evidence is that the electrical wiring in the shed was in very poor condition, did not meet code, and the that circuit used for the trailer was not grounded.
We know that Gill was shocked by current flowing from the trailer through him and into the ground. There is no evidence to show that the current could have come from anywhere but the cord plugged in by Daniel in the high school shed. However, there is no evidence of how the current was passed to the trailer body. There was no credible or admissible evidence to show that the electricity passed from the cord to the trailer body or that the electricity passed by some other means into the trailer body. The Gills did not plead or argue res ipsa loquitur. Neither res ipsa loquitur nor strict liability is applicable. Thus, the Gills had to prove what caused the electrical shock, but they did not do so.
Duty
The majority states that the question is not whether a defendant could have reasonably foreseen the exact or precise harm that occurred, or the specific harm, but rather it is only necessary that the defendant be able to reasonably foresee an appreciable risk of harm to others. The majority then states that Gill, as well as members of the public would be expected to come in contact with the trailer. That is all true and a correct statement of the law. However, the majority then states that there was evidence that Coca-Cola had changed the power cord from a two Plug 50 amp to a 15 amp cord. The majority does not state when that change was made or how it has any impact in this case. The majority then concludes:
As in Jordan, where the defendant’s asserted lack of knowledge of the contents of the purse that he tossed across a crowded room did not exempt him from owing a duty of ordinary care to the patrons of the bar, Coca-Cola’s lack of knowledge that Fordyce Fligh School’s electrical outlet in the shed was defectively grounded does not defeat its duty, under these facts, to take ordinary, prudent precautions to protect Mr. Gill, including an auxiliary grounding system. Not only did Coca-Cola fail to install an auxiliary grounding system for the trailer, but it failed to test the grounding system in the shed to assure that it was operational.
The majority’s reliance on Jordan v. Adams, 259 Ark. 407, 533 S.W.2d 210 (1976) is misplaced. In Jordan, this court found that it was a culpably negligent act to throw a purse 26 feet across an area where people were dining and drinking. The court also noted that Jordan had known his girlfriend for a year, and that he knew she often carried a pistol. Therefore, the jury could conclude Jordan was aware the purse might well contain a pistol. This court then went on to say that it was foreseeable that an injury might result from throwing the purse, and it noted that glasses were broken. The issue in Jordan was foreseeability, and this court concluded that injury from throwing the purse was foreseeable and that the tortfeasor need not foresee the exact manner of injury.
Apparently, Jordan is cited for the proposition that for liability to attach, it is only necessary that the tortfeasor foresee an appreciable risk of harm to others by his or her action. Thus, in the present case, the majority holds that providing the trailer was a negligent act and that the exact manner in which the electricity made its way into the trader body need not be shown. In Jordan, there was a negligent act in throwing the purse. In the present case, there is no negligent act in providing the trailer. Trailers had been provided for many years. What the majority is really holding is that the trailer was a dangerous instrumentality and providing the trailer subjected Coca-Cola to strict liability. That theory was not pled or tried.
Although couched in terms of negligence, the majority actually apphes strict liability. The majority wants Coca-Cola to be hable for injuries arising from the use of a dangerous instrumentality. There is a duty on the part of a person in charge of a dangerous instrumentality to protect against the danger if the person knew or should have known of the danger. Benson v. Schuler Drilling Co., 316 Ark. 101, 871 S.W.2d 552 (1994). Black’s Laiv Dictionary notes that a dangerous instrumentality may serve as the basis for strict liability where an instrument is:
so inherently dangerous that it may cause serious bodily injury or death without human use or interference.
Black’s Law Dictionary, 399 (7th ed. 1999). There is no doubt that the shed may have posed such a danger. The circuit that supplied the electricity to the trailer was ungrounded. Anyone touching an outlet in that circuit stood a danger of suffering injury. However, the trailer cannot be a dangerous instrumentality on its own. It took human involvement to bring about the injury. The trailer had to be plugged into the defective shed before the electricity found its way into the trailer. To hold, as the majority does, that the duty to provide ordinary care required testing the shed and supplying a redundant grounding system without any evidence that to failing to do so breached the standard of care in the industry is to apply strict liability. Strict liability is inapplicable in this case.
Negligence
Liability in this case was based upon negligence. To prove negligence in Arkansas, the plaintiff must show a failure to exercise proper care in the performance of a legal duty which the defendant owed the plaintiff under the circumstances. Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997). The plaintiff must also show that he or she suffered damages proximately caused by the defendant’s negligence. Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995). Underlying negligence is the broad principle of law that states that where there is fault there is liability, but where there is no fault there is no liability. Missouri Pacific R.R. Co. v. Horner, 179 Ark. 321, 15 S.W.2d 994 (1929); Choctaw, O. & G. R. Co. v. Jones, 77 Ark. 367, 92 S.W. 244 (1906). Long ago in Missouri Pacific, this court stated:
There are many injuries to persons and property for which the law furnishes no redress, and proof of injury alone, without proof of negligence causing the injury, does not entitle one to recover. One is entitled to recover for negligence only when the negligence complained of causes the injury.
Missouri Pacific, 179 Ark. at 325.
Two acts of negligence are alleged. The first relates to the cord. The second relates to a back-up grounding system. In asserting both alleged acts of negligence, the Gills rely upon the testimony of Jimmy Clark as an expert witness and as a lay witness.
The Gills rely heavily on Clark’s testimony in attempting to establish the alleged negligent act in supplying a defective cord. They also rely upon Clark to establish that providing a trailer with a defective cord would be a negligent act. That may be an appropriate question for an expert on electricity. However, the Gills also rely on Clark’s testimony to establish that the cord was defective, which is nothing more than speculation. Clark had no knowledge of the trailer or the cord at the time of the injury.
An examination of Clark’s testimony makes it immediately clear that he has utterly no evidence to offer on the state of the cord or trailer at the time Gill suffered the electrical shock. Clark did not see the trailer while it was still at the school and cannot offer any testimony as to its condition at the time of the injury. Clark could testify as to the condition at the time he later saw the trailer. The only testimony with regard to the condition of the cord at the time of the injury came from Edward McMillan, the electrician called to the scene by Fordyce High School. Mr. Macmillan testified that he examined the cord and tested it, finding there was no problem. The next best testimony to Mr. Macmillan’s testimony was the testimony of James Jordan of Coca-Cola’s maintenance crew. Jordan’s testimony was that cords in the trailers were changed when needed, and the cord in trailer #308 might have been changed at some time, but there was no testimony that it was changed, or most significantly, what the condition of the cord was on the day of the accident.
Clark only saw the trailer later, and based upon his observation of the cord, he concluded that the cord appeared new. Because he concluded the cord was new, Clark then concluded the cord had been changed after the accident. There was no evidence to show that the cord was changed after the accident. However, because Clark speculated that the cord was new, he then speculated further that the cord caused the accident. Clark’s testimony is obviously nothing more than his musings about what likely happened. That is not evidence of anything. He stated:
My feeling was at the time, and of course I said that nobody can tell for sure, but my feeling at the time that it most probably, and I said it at deposition that it was 95% probable that it was the cord. That something in the cord — those cords are run over by vehicles and if they’re old and have been smashed a number of times, the insulation in them is going to give way.
Clark’s testimony amounts to nothing more than assumptions based upon assumptions. He assumes that the cord was replaced where there are no facts showing that the cord was replaced after the accident. He assumes that the reason the cord was replaced was because it was old. Clark then further assumes that the old cord was frayed, and that it had been run over by vehicles and damaged. Clark in addition then assumes that the old cord was frayed to the point that the wires were uninsulated and bare. He then finally assumes those bare wires made contact with the trailer charging the trailer body with electricity. There is no evidence to support any of these conclusions. The evidence was the trailer body was charged when Gill touched it and suffered an electrical shock. There was no evidence of how the trailer body became charged with electricity. To the contrary, Macmillan, who was the only witness who examined the cord at the scene, testified that the cord was not defective. That is the only real evidence on the condition of the cord. The directed-verdict motion should have been granted on this issue rather than forcing the jury to impermissibly decide whether to accept Macmillan’s testimony on the condition of the cord or Clark’s speculation. A jury verdict may not be based on speculation. First Elec. Coop. Corp. v. Pinon, 277 Ark. 424, 642 S.W.2d 301 (1982).
Nonetheless, the majority buys into this rank speculation stating that Clark “went on to testify as an expert witness who was qualified by virtue of his experience, that the old cord might have been damaged and that this might have caused the electrical short to the trailer.” Twice, the majority uses the word “might” in one sentence. That the majority is compelled to use “might” simply confirms that Clark’s testimony is nothing more than inadmissible conjecture. What underlies the majority’s opinion is the assumption that because the trailer belonged to Coca-Cola, and was provided by Coca-Cola, it is more likely that Coca-Cola was responsible for the condition that caused the trailer body to be charged with electricity than it was that Gill was responsible for the condition. In its reasoning, the majority slides into the temptation to apply “the thing speaks for itself doctrine.” See Gain v. Parker, 315 Ark. 107, 112, 865 S.W.2d 282 (1993). This is the res ipsa loquitur doctrine. Res ipsa loquitur was not pled or argued in this case.
However, a discussion of res ipsa loquitur also shows that the majority is in error because the doctrine supplies the sort of inference the majority stretches to find. The presumption supplied by res ipsa loquitur is limited to situations where the defendant’s negligence has been substantially proven. Barker v. Clark, 343 Ark. 8, 33 S.W.3d 476 (2000). See also Coca-Cola Bottling Co. v. Hicks, 215 Ark. 803, 223 S.W.2d 762 (1949). Though not stated, the majority opinion assumes the negligence of Coca-Cola was substantially proven simply because they provided the trailer. The argument under res ipsa loquitur would be that Coca-Cola’s liability is substantially proven because it would be most likely that Coca-Cola created whatever condition existed in the trailer that caused it to be charged. However, in this case, the thing does not speak for itself. To apply the doctrine of res ipsa loquitur, the event must be one which ordinarily does not occur in the absence of negligence, and one where all other possible causes of injury such as the conduct of the plaintiff or others are sufficiently eliminated. Gain, supra. To meet the requirements of res ipsa loquitur, the instrumentality, in this case the charged trailer, must be in the exclusive possession and control of the defendant. Barker, supra. That was not the case here where the trailer was delivered to the high school and Gill and others were setting up the trailer. Negligence had to be proven, and it was not.
The Gills offered no credible evidence of how the trailer body became charged. Macmillan testified that his examination and testing of the cord at the scene revealed no problems. The cord supplied the electricity to the trailer, but that alone does not mean that the cord itself charged the trailer body. The trailer body might have been charged by something Gill brought inside the trailer and plugged in that belonged to the school district. Was the district using hot plates or other electrical appliances? Was Gill using a drill motor in setting up the trailer? Did Gill make modifications to the set up inside the trailer? Gill might have done something in setting up the trailer that brought some electrical wire other than the cord in contact with the trailer body.
The majority seems to conclude that somehow unfounded speculation by experts can magically coalesce to constitute substantial evidence proving that a short in the cord was the cause of the accident. The testimony provided by experts, such as Clark’s testimony that there was a 100% possibility of a short in the cord that he never examined, Peter Reynold’s testimony that the cord was the weakest point in electrical equipment, and Lonnie Buie’s testimony that the cord could undergo significant wear and tear simply supply possibilities, but do not constitute admissible evidence. The only credible evidence was that of Macmillan’s testimony that in testing and examining the cord, he found no problems.
Surely justice ought not be meted out based on percentage chances, but that is precisely what was done in this case. Clark’s testimony given the greatest leeway possible amounts to nothing more than Clark’s subjective guess on what might have been the most likely cause, and that guess is directly contrary to the only credible evidence provide by Macmillan that there was no problem with the cord. Clark offered no credible evidence of the condition of the cord or evidence that the trailer body was charged by the cord. The Gills offered no evidence on how the trailer body became charged. The trial court erred first in admitting Clark’s testimony over the objection that Clark could only speculate on the condition of the cord. The trial court then erred again in failing to grant a directed verdict. The evidence in this case simply does not support the jury’s verdict. As this court stated in First Elec. Coop.:
Conjecture and speculation, however plausible, cannot be permitted to supply the place of proof. Glidwell, Adm’r. v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S.W.2d 4 (1948). We stated in Kapp v. Sullivan Chevrolet Co., 234 Ark. 395, 353 S.W.2d 5 (1962), that judgments based on speculation and conjecture will not be allowed to stand.
First Elec. Coop., 277 Ark. at 428-29. Conjecture and speculation is precisely what underlies the verdict in this case.
To state that Clark’s qualifications to testify on the issue of the cord and redundant grounding systems were dubious is an understatement. In Farm Bureau Mutual Insurance. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000), this court stated:
In Daubert, 509 U.S. 579, the petitioners urged the Court to dispose of the test established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which provided that “expert opinion based on a scientific technique is inadmissible unless the technique is ‘generally accepted’ as rehable in the relevant scientific community.” 509 U.S. at 584. They contended that the Frye test had been superseded by the adoption of the Federal Rules of Evidence. The Court agreed and estabhshed the following inquiry to be conducted by the trial court:
Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be apphed to the facts in issue.
Id. at 592-93 (footnotes omitted).
Farm Bureau, 341 Ark. at 115-16. The trial court did not apply the above requirements in the present case. Rather, the trial court concluded simply that Clark was current in his field. It is unclear what Clark’s field was. Clark was some sort of electrical person within the structure of Alcoa, but what that translates to in the outside world was never made clear. It is likely Clark was qualified to testify as an expert in some limited regard, perhaps with regard to electrical practices at Alcoa in the 1960’s, but he should not have been allowed free license to speculate as he was in this case.
The majority notes that Clark expressed opinions on conductivity and grounding. Clark characterized the issues in this case as “elementary.” He also stated, “It’s such a simple matter.” Yet his opinions were not based in fact. The injury done to the credibility of the trial by the introduction of Clark’s speculation and assumptions based upon assumptions so outweighs any slight value of his testimony on conductivity and grounding as to make his presence prejudicial to the trial. That metal and human beings conduct electricity is such common knowledge that it is difficult to see-how expert testimony is required on the subject. Injury by electrical shock has been a subject in the decisions of this court for many, many years. See Presley v. Actus Coal Co., 172 Ark. 498, 289 S.W. 474 (1927). As a matter of common experience and knowledge the average person knows that what is in a light socket can kill. Grounding is also hardly a novel concept. The question is whether the untrained layman would be qualified to intelligently determine the issue. Maxwell v. State, 279 Ark. 423, 652 S.W.2d 31 (1983).
Had Clark been qualified to testify about the standard of care in use and maintenance of the type of trailer at issue, or had he been able to offer testimony about the standard of care in the industry regarding use of redundant grounding in trailers of this sort, he might have been helpful. He offered only his subjective opinions about what would be safe, not what the standard was.
An expert is presented to a jury as someone the jury can trust and rely on, someone who has more knowledge than the jury does. However, as this court has stated, where an expert is allowed to draw an inference the jury should make, or in this case to provide speculation in lieu of evidence, the jury is presented information “gift-wrapped with the fabric of expert scientific opinion.” Maxwell, supra. That is what was done in this case. The jury was not presented with evidence that Gill suffered the electrical shock'because of a defect in the cord, but rather was presented with unfounded speculation by an expert that cast no light on how the trailer body came to be charged with electricity. That the jury relied upon Clark and returned a verdict against Coca-Cola is hardly surprising.
Clark’s opinions on secondary grounding systems are no more credible than his testimony on the cord. Clark has not been employed in a field remotely involving electricity in over thirty years. Even when he was employed, his position was not one that required he be a licensed electrician. In negligence, an expert is expected to provide the jury with information on the standard of care in the industry. See Nationshank v. Murray Guard, 343 Ark. 437, 36 S.W.3d 291 (2001). In the context of this case, Clark would be expected to inform the jury of what other in the industry do with respect to redundant grounding. No such evidence was supplied. The question was whether Coca-Cola was behaving as a reasonably careful person would do under the circumstances. Ethyl Corp. v. Johnson, 345 Ark. 476, 49 S.W.3d 644 (2001). The jury was not provided with evidence on this issue. Instead, the jury was told:
Q. Jimmy do you have an opinion with reference to the safety of Coca-Cola in not putting this ground on this trailer?
A. Do I have an opinion about the safety of it?
Q. Yes, sir.
A. Well, it should have been there. I mean, the' ground should have been there. The ground rod and the wire from the rod over to the — to the — whatever — what do you call that what we’ve been talking about? Well, from this vehicle here because it had wheels on it through a wire hooked to the frame and to the ground rod, it should have been there. It was designed for it. I understand at one time they used that and they just quit using it.
Whether the trailer ever had a redundant ground was a matter of contention in the case, and as with much of his testimony, Clark conveniently concluded without any basis in fact that there had been such a system on the trailer in this case. The above testimony is not expert testimony. It provides the jury with nothing regarding standard of care in the industry. Had Clark testified that the industry does or does not use a redundant grounding system as a standard, his opinion might have been helpful. Rather, his opinion is merely a personal opinion by Clark that it would have been safer with a redundant grounding system. If Clark concluded one redundant system made it safer, presumably he would have opined that a second redundant grounding system would make it even safer and guard against someone pulling up or running over the first redundant system. Ten redundant grounding systems would obviously increase safety even more, but the question is whether Coca-Cola was negligent and Clark’s opinions on redundant grounding do not cast any light on negligence.
The trial court erred in allowing Clark to testify over objection about issues of which he knew nothing.
Waymatic Crossclaim
I also must respectfully disagree with the majority’s holding that a pleading is exempted from use in impeachment where the action was nonsuited. The majority cites Belz-Burrows, L.P. v. Cameron Construction. Co., 78 Ark. App. 84, 78 S.W.3d 126 (2002), as a case it looks to in determining that allegations in pleadings that were nonsuited may not be used for impeachment. I must note that the court of appeals stated:
However, there is a significant difference between the admissibility of a withdrawn pleading and the admissibility of the fact that a nonsuit was taken. The admissibility of a withdrawn pleading rests on the fact that it is considered an admission and is inconsistent with the present position of the party who filed it. When a party states a fact in a pleading, he is averring that it is true; therefore, if at trial he takes a position contrary to the one taken in the pleading, a clear inconsistency is revealed. The same reasoning does not necessarily apply to the taking of a nonsuit. Unlike a pleading, a nonsuit is not defined by its content; it does not necessarily express a statement or assert a position. A pleader who takes a nonsuit does not necessarily admit that his suit has no basis; rather, a nonsuit is often taken for other reasons, such as settlement or trial strategy.
Belz-Burrows, 78 Ark. App. at 91-92. What was at issue in BelzBurrows was whether the fact that there had been a nonsuit could be used to infer the claim was dropped because there was no merit to the claim. Admission of a pleading was not at issue. It is by a pleading that the party is impeached. The court of appeals decision provides simply that the fact a nonsuit has been taken does not necessarily imply anything about a position taken as opposed to a pleading which is an averment of the truth of what was asserted. A nonsuit may be taken for a number of reasons that have nothing to do with the validity of the claim. Therefore, the court of appeals distinguished a nonsuit from a pleading, which is correct.
In Dodson v. Allstate Insurance. Co., 345 Ark. 430, 47 S.W.3d 866 (2001), this court discussed an attempt by Dodson to admit a filed and dismissed pleading of a party opponent. In Dodson, the court held that the pleading was admissible at trial as impeachment evidence to show that contrary to Allstate’s position at trial, Allstate had earlier asserted that Dodson had been involved in wrongdoing. Similarly in the present case, Coca-Cola wishes to use a pleading that was effectually withdrawn by a nonsuit to show that a party is now taking a different position than earlier, and that the pleading is admissible impeachment evidence under Ark. R. Evid. 613 (2002).
Belz-Burrows is not on point. The majority asserts that no authority is cited by Coca-Cola in support of its assertion it should be able to use nonsuited allegations for impeachment. The majority states it is aware of no supporting authority. The majority need look no further than Dodson, which stands for the proposition that withdrawn pleadings are admissible for purposes of impeachment. Coca-Cola simply attempts to impeach the Gills with a pleading as allowed under Dodson. There is no difference between a withdrawn pleading and a nonsuited pleading. Both include allegations that are admissible. The majority argues that allowing admission of withdrawn pleadings against settling parties may discourage settlement. Allowing a nonsuiting party to exempt its pleadings from use in trial encourages less than candid behavior. It is one thing to allow alternative pleading where a plaintiff may be unsure of just how the injury was inflicted, but it is quite another to encourage a litigant to knowingly file contradictory pleadings as a matter of strategy. It is where a plaintiff is unsure that alternative pleading is proper. See e.g., George v. Jefferson Hosp. Ass’n., 337 Ark. 206, 987 S.W.2d 710 (1999).
I would reverse and remand.
Corbin and Thornton, JJ., join this dissent.