Barker v. Clark

DONALD L. Corbin, Justice.

Appellant Ronnie Barker and Appellee Charles Clark both petition this court for review from a 4-2 decision by the Arkansas Court of Appeals. In Barker v. Clark, 69 Ark. App. 375, 13 S.W.3d 190 (2000), the court of appeals affirmed the decision of the Faulkner County Circuit Court limiting discovery on the issues of Appellee’s driving record and liability insurance, but reversing the trial court’s denial of a jury instruction on the doctrine of res ipsa loquitur and remanding the matter for a new trial. Our jurisdiction of this matter is pursuant to Ark. Sup. Ct. R. 1 — 2(e) (ii). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. Matthews v. Jefferson Hosp. Ass’n, 341 Ark. 5, 14 S.W.3d 482 (2000). We affirm the decision of the trial court.

The record reflects that on the evening of July 21, 1996, a two-by-four piece of plexiglass flew off of Appellee’s truck’s camper shell and struck Appellant’s vehicle, breaking the windshield and damaging the body of the vehicle. Both parties pulled to the side of the road, where Appellant told Appellee what had happened. Appellee denied owning any plexiglass, and stated that he did not know how the plexiglass came to rest on top of his truck’s camper shell. Appellee explained that he lived right off the highway, next to a gas station and lumber yard, and that it was possible that the plexiglass had fallen off of a passing truck and had then been tossed on top of his truck. Police responded to the scene of the accident, and Appellee presented Officer Screeton with a Texas driver’s license. No traffic citations were issued. Appellee ultimately left the scene of the accident with the piece of plexiglass.

Appellant successfully pursued a negligence claim against Appellee in municipal court, and was awarded $1,738.82 in damages. Appellee appealed that decision to the circuit court, and a jury trial was held on February 26, 1999. Prior to the trial, Appellant sought discovery of certain information that he believed to be impeachment evidence. This information included Appellee’s addresses for the last fifteen years; the disclosure of any moving violations of Appellee’s for the last fifteen years; and information related to Appellee’s vehicular insurance for the last fifteen years. Appellant argued that all of this information was relevant for his preparation of cross-examination of Appellee. Appellant pointed out that Appellee’s Texas license had been suspended thirteen years ago, after he received four speeding tickets in one year. Appellant contended that the information about any moving violations was relevant because it could prove that Appellee had a motive for lying to police regarding his ownership of the plexiglass. The trial court ordered Appellee to provide Appellant with the information regarding his addresses for the last fifteen years, and also ordered Appellee to disclose information about any moving violations that involved overloading or failure to secure a load. The trial court denied Appellant’s remaining request.

At trial, Appellant attempted to elicit testimony regarding a computer printout that showed that Appellee’s Texas driver’s license number differed from the number included in the police incident report. Appellant argued that Appellee presented Officer Screeton with a fraudulent driver’s license. The trial court sustained Appellee’s hearsay objection to the introduction of the printout. Appellant also sought a jury instruction on the theory of res ipsa loquitur. The trial court denied the proffered instruction, ruling that the case was a simple negligence action. The jury returned a verdict in favor of Appellee. Appellant then appealed the trial court’s order limiting discovery and its order refusing the res ipsa instruction. The court of appeals affirmed on the evidentiary and discovery issues, but reversed and remanded for a new trial on the issue of res ipsa loquitur. We affirm the trial court’s rulings.

I. Evidentiary Issues

For his first point on appeal, Appellant argues that the trial court abused its discretion when it denied his request for discovery of impeachment evidence. Appellant argues that the information sought was relevant and went to Appellee’s state of mind, credibility, bias, motive, and intent for giving a fraudulent driver’s license. Specifically, Appellant alleged that Appellee had a pecuniary interest in avoiding the filing of an insurance claim against him. We decline to address the pecuniary-interest argument because Appellant failed to obtain a ruling on that issue. The record demonstrates that the trial court simply denied Appellant’s discovery request on the ground that the information sought was irrelevant. It is well settled that the failure to obtain a ruling from the trial court is a procedural bar to our consideration of the issue on appeal. See Ross Explorations, Inc. v. Freedom Energy, Inc., 340 Ark. 74, 8 S.W.3d 511 (2000) (citing Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997); Howard v. Northwest Arkansas Surgical Clinic, 324 Ark. 375, 921 S.W.2d 596 (1996)).

Turning now to the issue of relevancy, Ark. R. Evid. 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” This court has held that the trial court’s findings regarding relevancy of evidence are entitled to great weight, and will not be reversed absent an abuse of discretion in this matter. Travelers Ins. Co. v. Smith, 338 Ark. 81, 991 S.W.2d 591 (1999); Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999). Here, the information sought about Appellee’s prior traffic violations or problems with insurance were in no way relevant to the issue of whether Appellee was negligent in this instance. Moreover, the trial court correctly ruled that information related to Appellee’s liability insurance could not be introduced into evidence. See Hively v. Edwards, 278 Ark. 435, 646 S.W.2d 688 (1983) (holding that evidence of liability insurance ordinarily excluded because of its lack of relevance).

Appellant also argues that it was error for the trial court to preclude Officer Screeton from testifying about a computer printout that showed Appellee’s Texas driver’s license number differed from the number included in the police incident report. The trial court ruled that such testimony amounted to inadmissable hearsay evidence. The printout was not offered into evidence, and the officer asked to testify about the printout was not the person who compiled the information. We have held that a trial court is accorded wide discretion in evidentiary rulings, and will not be reversed on such rulings absent a manifest abuse of discretion. See Kail v. State, 341 Ark. 89, 14 S.W.3d 878 (2000). Accordingly, we cannot say that the trial court abused its discretion.

II. Res Ipsa Loquitur

For his second point on appeal, Appellant contends that the trial court erred in refusing to submit a jury instruction on the theory of res ipsa loquitur. The following instruction was proffered by Appellant:

In addition to the rules of law I have just stated with respect to ordinary care and negligence there are situations in which a jury may, but is not required to, draw an inference of negligence from the manner in which the alleged property damage occurred.
Ronnie Barker asserts that this case involves such a situation, and therefore he has the burden of proving each of the two essential propositions:
First: That the alleged property damage was attributable to the plexiglass coming off of the truck camper shell which was under the exclusive control of Charles Clark.
Second: That in the normal course of events, no property damage would have occurred if Charles Clark had used ordinary care while the plexiglass on the truck camper shell was under his exclusive control.
If you find that each of these two propositions has been proved by Ronnie Barker, then you are permitted, but not required, to infer that Charles Clark was negligent.

A party is entitled to a jury instruction when it is a correct statement of the law and there is some basis in the evidence to support the giving of the instruction. Zearley, 337 Ark. 125, 992 S.W.2d 67; Coca-Cola Bottling Co. v. Priddy, 328 Ark. 666, 945 S.W.2d 355 (1997); Parker v. Holder, 315 Ark. 307, 867 S.W.2d 436 (1993). We will not, however, reverse a trial court’s refusal to give a proffered instruction unless there was an abuse of discretion. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998); Priddy, 328 Ark. 666, 945 S.W.2d 355.

In order for the doctrine of res ipsa loquitur to be applicable, there are four essential elements that must be established: (1) the defendant owes a duty to the plaintiff to use due care; (2) the accident is caused by the thing or instrumentality under the control of the defendant; (3) the accident that caused the injury is one that, in the ordinary course of things, would not occur if those having control and management of the instrumentality used proper care; and (4) there is absence of evidence to the contrary. National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996); Schmidt v. Gibbs, 305 Ark. 383, 807 S.W.2d 928 (1991).

In describing the doctrine of res ipsa loquitur, this court has stated:

The doctrine of res ipsa loquitur was developed to assist in the proof of negligence where the cause of an unusual happening connected with some instrumentality in the exclusive possession and control of the defendant could not be readily established by the plaintiff. The theory was that since the instrumentality was in the possession of the defendant, justice required that the defendant be compelled to offer an explanation of the event or be burdened with a presumption of negligence.

Reece v. Webster, 221 Ark. 826, 829, 256 S.W.2d 345, 347 (1953). This presumption is limited to situations where the defendant’s negligence has been substantially proven. See Coca-Cola Bottling Co. v. Hicks, 215 Ark. 803, 223 S.W.2d 762 (1949). In fact, there, this court said: “To make certain that the injury has not been caused by somebody else, through some intervening negligence, it is ordinarily required that the instrumentality causing injury have been in defendant’s exclusive possession and control up to the time of the plaintiff’s injury.” Id. at 807-08, 223 S.W.2d at 765.

The proffered instruction in the instant action argued that the both the truck’s camper shell and the sheet of plexiglass were under Appellee’s exclusive control. There is no doubt that the truck’s camper shell was under the exclusive control of Appellee at the time of the accident. There was no proof, however, that the plexiglass, which was the instrumentality in this case, was under the exclusive control of Appellee. In denying the proposed instruction, the trial court stated that the doctrine was not applicable, as the element of exclusive control was missing here. The trial court explained that there were other reasonable theories that could take the plexiglass out of Appellee’s control.

This court has held that it will not apply the doctrine of res ipsa loquitur when all other responsible causes, such as the conduct of the plaintiff or third persons, are not sufficiently eliminated. Gann v. Parker, 315 Ark. 107, 865 S.W.2d 282 (1993); Hicks, 215 Ark. 803, 223 S.W.2d 762. In other words, this court has consistently held that the element of exclusive control is essential to proving a case under a theory of res ipsa loquitur. See Earnest v. Joe Works Chevrolet, Inc., 295 Ark. 90, 746 S.W.2d 554 (1988) (lack of exclusive control of the instrumentality precluded any application of the doctrine of res ipsa loquitur); Phillips v. Elwood Freemen Co., 294 Ark. 548, 745 S.W.2d 127 (1988) (denial of res ipsa loquitur instruction proper where there was no evidence that an instrumentality under the control of the appellee was the only possible cause of the appellant’s injuries); Transit Homes, Inc. v. Bellamy, 282 Ark. 453, 671 S.W.2d 153 (1984), overruled on other grounds, 314 Ark. 8, 858 S.W.2d 680 (1993) (doctrine of res ipsa loquitur should be applied when the evidence shows that the defendant alone was in control of the object causing the loss); Brantley v. Stewart Bldg. & Hdwr. Supp., 274 Ark. 555, 626 S.W.2d 943 (1982) (res ipsa loquitur doctrine is not applicable where there was no evidence that the instrumentality was under the exclusive control of the appellee).

Finally, we are unpersuaded by Appellant’s contention that the element of exclusive control is not essential to this doctrine. Appellant’s reliance on this court’s decision in Stalter v. Coca-Cola Bottling Co. of Ark., 282 Ark. 443, 669 S.W.2d 460 (1984), to support his contention is misleading. He cites Stalter for the proposition that the control requirement is not always equivalent to exclusive control. At issue in that case, however, was the negligence of multiple defendants. In that opinion, this court noted that when there are multiple defendants, no one defendant will maintain exclusive control, but that fact does not preclude a theory of res ipsa loquitur. Based on a review of this court’s prior treatment of the doctrine of res ipsa loquitur, it appears that the trial court correctly denied Appellant’s proffered instruction.

Because we affirm the rulings of the trial court, it is not necessary for us to address Appellant’s final argument that the trial court erred in refusing to allow Appellant to amend his complaint to add a claim for punitive damages.

Affirmed on direct appeal; court of appeals reversed.

Brown and Thornton, JJ., dissent.