Turner v. Stewart

Eloise TURNER v. Calvin STEWART

97-227                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered October 9, 1997


1.   Pleading -- amendment -- trial court's discretion. -- Although
     amendment of pleadings is encouraged, the trial court is
     vested with broad discretion in allowing or denying
     amendments. 

2.   Pleading -- amendment -- objection. -- Under Ark. R. Civ. P. 15, a
     party may amend his pleadings at any time without leave of the
     court; if, however, the opposing party files a motion
     objecting to the amendment, the trial court must determine
     whether prejudice would result to that party or if the case
     would be unduly delayed by the amendment.

3.   Pleading -- amendment -- determination of prejudice. -- An important
     consideration in determining prejudice is whether the party
     opposing the motion will have a fair opportunity to defend
     after the amendment; a party should be allowed to amend his
     pleading absent proof of prejudice, and the failure of the
     opposing party to seek a continuance is a factor to be
     considered in determining whether prejudice was shown.

4.   Pleading -- amendment -- when allowed. -- Where neither a continuance
     is requested nor a demonstration of any prejudice resulting
     from an amendment is shown, the amendment should be allowed. 
     

5.   Pleading -- amendment -- trial court did not err in allowing. -- Where
     appellant did not request a continuance or demonstrate that
     she would be prejudiced or that undue delay would result if
     the court should allow an amendment to appellee's answer, the
     trial court, by applying Ark. R. Civ. P. 15, did not abuse its
     discretion in finding that the amended answer did not
     prejudice appellant; accordingly, it was not error for the
     trial court to allow the amendment.

6.   Torts -- comparative fault -- affirmative defense. -- Comparative fault
     is an affirmative defense.

7.   Torts -- comparative fault -- determination of proximate cause necessary. -
     - Under the express language of Arkansas Code Annotated  16-
     64-122 (Supp. 1995), there must be a determination of
     "proximate cause" before any "fault" can be assessed against
     the claiming party.

8.   Torts -- proximate cause discussed. -- Proximate cause is a cause
     that, in a natural and continued sequence, produces damage,
     and without which the damage would not have occurred; while
     the question of proximate cause is usually a question for the
     jury, when the evidence is such that reasonable minds cannot
     differ, the issue becomes a question of law to be determined
     by the trial court.

9.   Torts -- comparative fault -- not error for trial court to instruct jury
     on. -- Where the jury could have concluded that appellant did
     not use good judgment, was negligent, and was partly at fault
     for her injuries, having entered appellant's yard despite the
     presence of "Beware of the Dog" signs in the front yard,
     having approached the front door, and having walked around to
     the side of the house where she had seen an unfamiliar dog;
     where there was also evidence that could have supported the
     jury's finding that appellant's injuries were proximately
     caused by her running from appellee's dog rather than from the
     dog's attack; and where, from the evidence presented, the jury
     could have disbelieved that appellant was attacked and
     determined that her injuries were a result of her fall, it was
     not error for the trial court to instruct the jury on
     comparative fault.

10.  Evidence -- sufficiency of -- factors on review. -- When reviewing the
     sufficiency of the evidence, the appellate court reviews the
     evidence and all reasonable inferences arising therefrom in
     the light most favorable to the party on whose behalf judgment
     was entered; the verdict will be affirmed if there is
     substantial evidence to support it; substantial evidence is
     evidence that passes beyond mere suspicion or conjecture and
     is of sufficient force and character that it will, with
     reasonable and material certainty, compel a conclusion one way
     or the other.

11.  Negligence -- licensee defined -- appellant was licensee. -- A
     "licensee" is one who goes upon the premises of another with
     the consent of the owner for one's own purposes and not for
     the mutual benefit of oneself and the owner; appellant was a
     licensee allowed onto the premises of appellee to retrieve
     card tables that appellee had agreed to loan her.

12.  Negligence -- duty -- always question of law. -- The question of the
     duty, if any, owed by one person to another is always a
     question of law and never one for the jury.

13.  Negligence -- duty owed licensee -- what constitutes willful or wanton
     conduct. -- A landowner owes a licensee the duty to refrain from
     injuring him or her through willful or wanton conduct; to
     constitute willful or wanton conduct, there must be a course
     of action which shows a deliberate intention to harm or utter
     indifference to, or conscious disregard of, the safety of
     others; if, however, a landowner discovers a licensee is in
     peril, he or she has a duty of ordinary care to avoid injury
     to the licensee; the duty takes the form of warning a licensee
     of hidden dangers if the licensee does not know or have reason
     to know of the conditions or risks involved. 

14.  Negligence -- substantial evidence supported jury's verdict in favor of
     appellee dog owner. -- Where the pertinent question was whether
     appellee knew his dog was vicious prior to the date of the
     incident, and there was substantial evidence that appellee had
     no knowledge that the dog was vicious, the supreme court
     concluded that there was substantial evidence to support the
     jury's verdict in favor of appellee.


     Appeal from Miller Circuit Court; Philip B. Purifoy, Judge;
affirmed.
     Richard N. Dodson, for appellant.
     Dunn, Nutter, Morgan & Shaw, by: W. David Carter and Christie
G. Adams, for appellee.
     
     Donald L. Corbin, Justice.
     Appellant Eloise Turner appeals the judgment of the Miller
County Circuit Court in favor of Appellee Calvin Stewart and his
wife Denise Stewart.  Jurisdiction of this appeal is properly in
this court pursuant to Ark. Sup. Ct. R. 1-2(a)(15).  Appellant
raises three points on appeal:  (1) Appellee was improperly allowed
to amend his answer without making a showing of sufficient reasons
why he should be allowed to amend; (2) the trial court erred in
submitting a jury instruction on comparative fault; and (3) there
was no substantial evidence to support the jury's finding.  We find
no merit and affirm.
     The record reveals the following relevant facts.  On July 29,
1989, Appellant called Appellee to borrow some card tables. 
Appellee agreed to loan her the tables and Appellant stated she
would come by Appellee's house to get them.  When Appellant arrived
at Appellee's home, Appellee was outside in the side yard with his
dog, a male Rottweiler named Thunder.  Appellant went to the front
porch and rang the bell several times.  While on the porch,
Appellant saw the dog looking at her from around the side of the
house.  When no one came to the door, Appellant decided to go
around to this same side of the house where she heard water
running.  When she reached the side of the house, Appellant saw
Appellee and his dog.  
     Appellant testified at trial that after talking briefly with
Appellee, Appellee called Thunder's name and the dog started in her
direction.  She stated that she turned her back and ran from the
dog toward the front of the house.  She stated that Thunder jumped
on her and bit her left arm and that she fell to the ground.  She
stated that she received injuries to her right shoulder and a wound
to her left arm.  Appellee, on the other hand, stated that he did
not see the dog jump on Appellant.  He testified that he saw
Thunder running in Appellant's direction, as she was going around
the corner.  He stated that he then called Thunder and the dog
returned to the side of the house.  After putting the dog away,
Appellee indicated that he took Appellant inside the house to look
at her injuries.  Appellee asked Appellant if she had seen the dog
and inquired as to why she did not stay inside her car and honk for
him to come out of the house.  Appellee then took Appellant to the
hospital, where Appellant stated to hospital personnel that her
injuries were a result of falling while running from a dog.
     On August 1, 1989, Appellee brought Thunder to Dr. Cynthia
Pfluger, the dog's veterinarian, for shots.  At that time,
Dr. Pfluger advised that the dog should be castrated or undergo
obedience training due to what Dr. Pfluger's observation of the
dog's aggressive tendencies.  Dr. Pfluger also testified that on
July 1, 1989, less than one month before the incident in question,
Denise Stewart had called and advised that Thunder had bitten her
mother, Verneener Stewart.  Dr. Pfluger stated that she then
recommended to quarantine the dog.  At trial, however, Mrs. Stewart
denied that Thunder had bit her mother; instead, she stated that
the dog had merely scratched her mother's face while he was chasing
a cat.  Verneener Stewart testified that she did not remember the
incident.  At the close of Appellant's case, the trial court
entered a directed verdict in favor of Denise Stewart.  After
deliberation, the jury returned a verdict in favor of Appellee.
                         Amended Answer
     Appellant asserts that the trial court erred when allowing
Appellee to amend his answer to an amended complaint.  Appellant
relies on ARCP Rules 6(b) and 12(a) in arguing that Appellee failed
to set forth sufficient reasons showing the necessity for an
extension of time to file his answer.  Appellee asserts that ARCP
Rule 15 provides that amendment of pleadings should be allowed
unless prejudice or undue delay is shown by the party opposing the
amendment.  
     The record reflects that after an amended complaint alleging
strict liability was filed by Appellant on January 26, 1990,
Appellee did not respond within twenty days as required by Rule 15. 
Appellant argues that but for the amended answer filed on March 22,
1990, Appellee would have been in default and Appellant would have
been entitled to a partial summary judgment.  On March 30, 1990,
the trial court entered an order granting Appellee's motion to file
the amended answer, stating that Appellant would not be prejudiced
by the amended answer.  The question before us is whether the trial
court abused its discretion in allowing the amended answer to be
filed.
     Although amendment of pleadings is encouraged, the trial court
is vested with broad discretion in allowing or denying amendments. 
Kay v. Economy Fire & Casualty Co., 284 Ark. 11, 678 S.W.2d 365
(1984).  Arkansas Rule of Civil Procedure 15(a) provides in part:
     [A] party may amend his pleadings at any time without
     leave of the court.  Where, however, upon motion of an
     opposing party, the court determines that prejudice would
     result or the disposition of the cause would be unduly
     delayed because of the filing of an amendment, the court
     may strike such amended pleading or grant a continuance
     of the proceeding.  A party shall plead in response to an
     amended pleading within the time remaining for response
     to the original pleading or within 20 days after service
     of the amended pleading, whichever period is longer,
     unless the court otherwise orders.
Under Rule 15, a party may amend his pleadings at any time without
leave of the court.  If, however, the opposing party files a motion
objecting to the amendment, the trial court must determine whether
prejudice would result to that party or if the case would be unduly
delayed by the amendment.  Webb v. Workers' Compensation Comm'n,
286 Ark. 399, 692 S.W.2d 233 (1985).  An important consideration in
determining prejudice is whether the party opposing the motion will
have a fair opportunity to defend after the amendment.  Pineview
Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924
(1989).  A party should be allowed to amend his pleading absent
proof of prejudice, and the failure of the opposing party to seek
a continuance is a factor to be considered in determining whether
prejudice was shown.  Webb, 286 Ark. 399, 692 S.W.2d 233.  Where
neither a continuance was requested nor a demonstration of any
prejudice resulting from an amendment was shown, the amendment
should be allowed.  Id.  
     In this case, Appellant did not request a continuance or
demonstrate that she would be prejudiced or that undue delay would
result if the court should allow the amendment.  By applying Rule
15, the trial court did not abuse its discretion in finding that
the amended answer did not prejudice Appellant.  Accordingly, it
was not error for the trial court to allow the amendment.
                        Comparative Fault
     Appellant argues that the trial court erred in submitting to
the jury an instruction on comparative fault.  Appellant argues
that the comparative negligence instruction should not have been
given because there was no showing that Appellant proximately
caused the dog's attack.  Appellee replies that the question to be
asked is whether Appellant's actions could have proximately caused
her injuries.  Comparative fault is an affirmative defense. 
Arkansas Code Annotated  16-64-122 (Supp. 1995) provides in
pertinent part:  
          (a)  In all actions for damages for personal
     injuries . . . in which recovery is predicated upon
     fault, liability shall be determined by comparing the
     fault chargeable to a claiming party with the fault
     chargeable to the party . . . from whom the claiming
     party seeks to recover damages. 

          . . . .

          (c)  The word "fault" as used in this section 
     includes any act, omission, . . . which is a proximate
     cause of any damages sustained by any party.
Under the express language of the statute, there must be a
determination of "proximate cause" before any "fault" can be
assessed against the claiming party.  Skinner v. R.J. Griffin &
Co., 313 Ark. 430, 855 S.W.2d 913 (1993); Baker v. Morrison, 309
Ark. 457, 829 S.W.2d 421 (1992).  Proximate cause is a cause which,
in a natural and continued sequence, produces damage, and without
which the damage would not have occurred.  Id.  While the question
of proximate cause is usually a question for the jury, when the
evidence is such that reasonable minds cannot differ, the issue
becomes a question of law to be determined by the trial court.  Id. 
     In Ambort v. Nowlin, 289 Ark. 124, 709 S.W.2d 407 (1986), the
trial court's instruction to the jury that it must determine
whether appellant was at fault in the incident wherein appellees'
dog bit him, was supported by the evidence.  This court held that
the judge was correct in submitting the case to the jury on the
basis of comparative fault, rather than on the theory of strict
liability.  There was a fact question as to whether appellant was
a trespasser or a licensee when he was bitten by appellees' dog,
since he was on private property and had not been expressly invited
there.  There was also a fact question as to whether appellant was
guilty of negligence in approaching the fenced yard on private
property with two dogs, which were barking and causing him
apprehension.  This court concluded that although an owner can be
held strictly liable in such instances, if there is an issue of the
plaintiff's negligence or other fault, the plaintiff's recovery may
be diminished by the doctrine of comparative fault. 
     Just as in Ambort, the jury in this case could have concluded
that Appellant did not use good judgment, was negligent, and was
partly at fault for her injuries.   Appellant entered the yard
despite the presence of "Beware of the Dog" signs in the front
yard, approached the front door, and walked around to the side of
the house where she had seen an unfamiliar dog.  There was also
evidence that could have supported the jury's finding that
Appellant's injuries were proximately caused by her running from
the dog, rather than from the dog's attack.  From the evidence
presented, the jury could have disbelieved that Appellant was
attacked and determined that her injuries were a result of her
fall.  Accordingly, it was not error for the trial court to
instruct the jury on comparative fault.
                      Substantial Evidence
     Appellant argues that the jury's verdict in favor of Appellee
was not supported by substantial evidence.  When reviewing the
sufficiency of the evidence, the appellate court reviews the
evidence and all reasonable inferences arising therefrom in the
light most favorable to the party on whose behalf judgment was
entered.  Balentine v. Sparkman, 327 Ark. 180, 937 S.W.2d 647
(1997).   The verdict will be affirmed if there is substantial
evidence to support it.  Id.  Substantial evidence is evidence that
passes beyond mere suspicion or conjecture and is of sufficient
force and character that it will, with reasonable and material
certainty, compel a conclusion one way or the other.  Id.
     Appellant asserts that Appellee knew that the dog was a
vicious animal due to its previous history and the circumstances
surrounding the incident in question.  She asserts that she was a
licensee on Appellee's property, and that Appellee thus owed a duty
to her to exercise ordinary care to avoid injury to her.  Appellant
additionally points out that there was also a Texarkana city
ordinance that she argues Appellee violated by allowing the dog
outside the fenced area and that this violation should have also
supported a verdict for Appellant.
     A "licensee" is one who goes upon the premises of another with
the consent of the owner for one's own purposes and not for the
mutual benefit of oneself and the owner.  Bader v. Lawson, 320 Ark.
561, 898 S.W.2d 40 (1995).   Appellant was a licensee allowed onto
the premises of Appellee to retrieve the card tables.  The question
of the duty, if any, owed by one person to another is always a
question of law and never one for the jury. Id.  A landowner owes
a licensee the duty to refrain from injuring him or her through
willful or wanton conduct. Id.  To constitute willful or wanton
conduct, there must be a course of action which shows a deliberate
intention to harm or utter indifference to, or conscious disregard
of, the safety of others.  Id.  If, however, a landowner discovers
a licensee is in peril, he or she has a duty of ordinary care to
avoid injury to the licensee.  Id.  The duty takes the form of
warning a licensee of hidden dangers if the licensee does not know
or have reason to know of the conditions or risks involved. Id.
     Here, the jury was instructed on the duty owed to a licensee
and on the Texarkana ordinance.  The pertinent question was whether
Appellee knew his dog was vicious prior to the date of this
incident.  There was substantial evidence that Appellee had no
knowledge that the dog was vicious.  In fact,  Appellee's wife
testified that she had no knowledge of the dog attacking anyone. 
She stated that the dog had previously scratched her mother when
the dog was going towards a cat.  Appellee's mother-in-law
Verneener Stewart testified that she had never been bitten by the
dog.  The veterinarian, while recommending obedience training or
castration, only established that the dog was aggressive around the
office for shots or checkups.  Appellee testified that to his
knowledge, the dog had never bitten or attacked anyone prior to
this incident.  We thus conclude that there was substantial
evidence to support the jury's verdict.
     Affirmed.