dissenting. The joint-enterprise doctrine has been criticized of late as an anachronism, see W. Page Keeton, et. al., Prosser and Keeton on the Law of Torts § 72 at 521 (5th ed. 1984) (“The courts should be expected to continue to narrow the scope of the doctrine to ameliorate its rigors.”), and I agree with the majority opinion that this court should reexamine our adherence to the doctrine at the next appropriate opportunity.
Where I take issue with the majority is over the question of whether the existence of a joint enterprise should be decided in this case by summary judgment as a matter of law. Clearly, our caselaw supports the proposition that the existence of a joint enterprise is ordinarily a question of fact for the jury. See, eg., Neal v. J.B. Hunt Transp., Inc., 305 Ark. 97, 101, 805 S.W.2d 643, 645 (1991). As the majority points out, “[t]o find that a joint enterprise existed, Arkansas law requires only a showing of: (1) a common object and purpose of the undertaking; and (2) an equal right to direct and govern the movements and conduct of each other in respect to the common object and purpose of the undertaking.” Lovell v. Brock, 330 Ark. 206, 211, 952 S.W.2d 161, 163-164 (1997) (citing RLI Ins. Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991)). I agree that the first element is undisputed and established as a matter of law in this case. In my view, however, the issue of equal right to control is in dispute.
The majority concludes that the deposition testimony of Yant and Woods establishes as a matter of law that “every person in the car had an equal right to direct and govern the movements and conduct of each other in respect to the common object and purpose of the undertaking.” I disagree. It is true that Yant and Woods testified that everyone was equal, but there was additional testimony that does not support that equality. Manifestly, the threesome had no common rules regarding driving hours, route, or who would drive at what times. When Woods opted to drive, she simply took over the wheel and was left to her own devices, without control by the other two. Yant testified that he “[had] no idea how it happened that Ms. Woods drove next. I definitely did not tell her to drive.” He added regarding the other two, “you don’t boss them; they don’t boss you.” Woods testified that regarding the three participants, “you don’t ever say you’re going to do 200 [miles] each or whatever.” All of this seems to fly in the face of an “equal right to direct and govern movements,” when one of them was driving. Rather, it appears that whoever was driving was in control. In my opinion, this testimony establishes an issue of fact to be resolved by the jury over what degree of control each of the participants had over the course of the trip back to Conway.
I would reverse and remand for a trial. For these reasons, I respectfully dissent.
Corbin, J., not participating. Imber, J., joins.