Carr. v. Nance
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Cite as 2010 Ark. 497
SUPREME COURT OF ARKANSAS
No.
10-562
Opinion Delivered December
MIKE E. CARR, MICHAEL L. CARR,
C.L. CARR, C.L. CARR, JR., and
TAHOE GAMING, LLC,
APPELLANTS,
VS.
STEWART NANCE and JOHN PRUETT
NANCE,
APPELLEES,
16, 2010
APPEAL FROM THE NEWTON
COUNTY CIRCUIT COURT,
NO. CV-2005-59-1,
HON. ROGER V. LOGAN, JR.,
JUDGE,
AFFIRMED ON DIRECT APPEAL;
REVERSED ON CROSS-APPEAL.
JIM GUNTER, Associate Justice
Appellants, Mike Carr, Michael Carr, C.L. Carr, Jr., C.L. Carr, and Tahoe Gaming,
LLC, appeal a jury verdict in favor of appellees Stewart and Pruett Nance. Appellants argue
that the circuit court erred in (1) denying their motion for judgment notwithstanding the
verdict and (2) giving a jury instruction regarding punitive damages. Appellees cross-appeal
the court’s order of remittitur that reduced Stewart Nance’s compensatory damages from
$400,000 to $233,707.42. This case involves an issue of first impression, of public interest, and
needing clarification and development of the law. Therefore, we have jurisdiction pursuant
to Ark. Sup. Ct. R. 1-2(b)(1), (4), and (5). We affirm on direct appeal and reverse on crossappeal.
Cite as 2010 Ark. 497
In a complaint filed November 2, 2005, appellees filed suit against appellants, alleging
that on September 9, 2005, appellees were riding all-terrain vehicles (ATVs) on property
owned by Westek Corporation, Inc., in Newton County.1 The property was the former site
of the Dogpatch theme park. Mike Carr, believed to be an owner or agent of Westek, had
spoken to the plaintiffs and was aware of their presence on the property. As Pruett was driving
down a defined road, he drove into a steel cable that was strung between two trees. The cable
struck Pruett in the throat, and he was jerked off the ATV. The complaint alleged that
appellants had placed the cable, which was not marked by flags or any other markings, across
the road and that the cable was placed in such a position and height that it could only be
designed to injure a person driving on the road. Appellees contended that appellants had acted
in willful and wanton disregard for Pruett’s safety, that appellants had created a hazard on the
property that was not open and obvious and that created an unreasonable risk of harm, and
that appellants failed to warn Pruett of the danger. Because appellants knew or should have
1
The original plaintiffs in this case were Stewart Nance and Lynn Larson, individually and as
parents of Jon Pruett Nance, and Pruett Nance. The original defendants were Westek
Corporation, Inc., and Mike Carr. The plaintiffs amended their complaint on September 11,
2006, and added Michael Carr, son of Mike Carr; Tahoe Gaming, LLC; Leisuretek, Ltd.; C.L.
Carr; C.L. Carr, Jr.; Ford Carr; Alberta Carr; and John Does 1–50 as defendants. Immediately
prior to trial, the circuit court announced that certain changes in the parties to the litigation
had been made; specifically, the circuit court stated that Lynn Larson was no longer a plaintiff
and that the only remaining defendants were C.L. Carr, Jr., C.L. Carr, Mike Carr, Michael
Carr, and Tahoe Gaming. However, no written order was entered dismissing Lynn Larson
as a plaintiff or dismissing Westek Corporation, Leisuretek, Ltd., Ford Carr, and Alberta Carr
as defendants, and on the first appeal of this case, the appeal was dismissed without prejudice
by this court due to a lack of a final order. Carr v. Nance, 2010 Ark. 25. A final order
dismissing the remaining parties has now been entered, and the appeal is properly before this
court.
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known that such conduct would cause injury, and the conduct proximately caused damages
to appellees, appellees sought compensatory and punitive damages for the personal injuries
suffered by Pruett, medical expenses, and lost wages. Appellants answered and alleged that
appellees were trespassing on the property in Newton County after having been given notice
not to do so. Appellants pled the affirmative defense of comparative negligence.
A trial was held in Newton County on September 16-17, 2008. The relevant
testimony presented at trial included the following. Pruett Nance testified that on the day of
the accident, he was with his dad, Stewart, and his girlfriend, Jessica Voros, and that they
drove four-wheelers over to the Dogpatch property. Pruett testified that when they
approached the property, he let his dad go ahead of him because his dad had to talk to the
caretakers of the property and get permission from them to ride on the property. Stewart
began talking to Mike Carr, and Pruett and Jessica drove around the gravel parking lot and
waited. Pruett testified that a teenager on a moped was also in the parking lot. Pruett finally
made eye contact with his dad, and his dad let him know that it was okay to ride around the
property, specifically toward the train bridge, because that was the direction they usually
went. Pruett testified that he and Jessica headed south and then stopped at a place called
“kissing rocks.” While stopped, he saw the boy on the moped turn and go up a hill and then
come back down. After a few minutes, Pruett and Jessica headed up the same hill on an
asphalt road toward the highway. Pruett testified that he was going up the hill through a grove
of trees, looking toward the highway, when he saw a cable about two feet in front of him.
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The cable had no flags or markings on it. He said he had no time to react and that he drove
right into it. Pruett testified that he was knocked out for a split second, and when he woke
up, he was looking at the sky. He rolled over onto his hands and knees and could tell
something was wrong because he could not breathe and could not move his head or neck
without severe pain. Pruett stated that he was bleeding a lot, coughing, and had a sensation
like he was choking.
Pruett recalled a van ride into town, where an ambulance met him and his father, but
did not remember a helicopter taking him to Springfield. He testified that he woke up in a
hospital in Springfield and could not move. He was wearing a neck brace and had undergone
surgery on the back of his neck. He could not speak for months but was finally able to
whisper in the spring of 2006. He testified that his voice is getting better but that he runs out
of breath quickly and cannot exert himself for very long. He also testified that he cannot move
his head very much and that he has problems with gagging and coughing while eating.
On cross-examination, Pruett testified that he was wearing a helmet when they drove
over to the Dogpatch property, but when he got there he took his helmet off. He also
acknowledged that the manufacturer’s recommendation was that there not be a passenger on
the four-wheeler. He stated that he knew there were some clean-up and construction
activities in progress on the property and that the owners or caretakers of the property were
concerned with vandalism and some trespassing incidents that had occurred. On redirect,
Pruett stated that he had previously overheard a conversation between his dad and Mike Carr,
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and Carr had told his father that it would be “fine” if they came on the property and asked
that they check in with him so he would know they were there.
Jessica Voros testified that, on the day in question, she was riding on the back of
Pruett’s four-wheeler. She testified that she saw the boy on the moped a couple of times, but
that she never saw him with a cable or wire rope in his hand. She testified that when the
accident occurred, she first saw the cable strung between two trees when they were about a
foot away from it. She testified that she woke up after hitting the cable and saw Pruett
throwing up blood, so she ran to get his dad. She stated that she saw Mike Carr arrive at the
scene along with the young man on the moped. She testified that she had bruises, a black eye,
a busted lip, and scratches everywhere. She stated that when they hit the cable, Pruett’s head
hit her head, and she hit her head on the concrete.
Wes Cyrus, Pruett’s cousin, testified that in May 2005, he was riding four-wheelers
on the Dogpatch property with some other family members, including several younger
children. He stated that as they were leaving the park, they were stopped by a man and a
younger-looking kid who was pointing a shotgun at them. Cyrus stated that they were held
there for two hours until the police showed up and that the men explained that they had
problems with trespassers and vandals on the property.
Dean McKnight, a friend of the Nances, testified that Stewart called him the day after
the accident and asked him to pick up his four-wheeler from the scene of the accident and
to take some pictures of the area around where the accident occurred. He testified that some
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brush had been piled up recently and that dirt was being spread over the paved road where
the accident occurred. He also testified that he had previously used cable to barricade roads,
and on cross-examination, he testified that he believed it was an acceptable method for
creating a barricade across a road. On redirect, he clarified that to be safe, some kind of
reflecting metal or caution tape should be put on the cable to indicate its presence. He also
testified that hanging a cable “neck high to a four wheeler” would be dangerous.
Stewart Nance testified that his nephew, Wes Cyrus, told him what happened in May
2005 and that some time after that he met Mike Carr, the person who had stopped Cyrus.
Cyrus told Stewart that Mike had acknowledged that the Nances were not the vandals they
were looking for and that they could come back under certain conditions, namely during the
daytime with notice or permission. Stewart testified that in June, he introduced himself to
Mike and asked if they could visit the property during the day with his permission. Stewart
stated that Mike told him they could. Mike also told him a couple of times that he was having
problems with trespassers and that he would police the property himself if necessary. Stewart
testified that he returned to the property several times, and each time he spoke to Mike Carr
and got permission to be on the property.
Stewart testified that on the day in question, he, Pruett, and Jessica had driven over to
the property and parked in the parking area, where he spoke to Mike Carr and asked for
permission for them to ride. According to Stewart, he and Mike had a very brief conversation,
during which Mike told him that they had done quite a bit of work near the old entrance, and
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if he and his son wanted to look at anything new, that was where they should go. Mike did
not say anything about a hazard on that part of the property. Stewart also testified that he saw
Michael Carr, Mike’s son, get on the moped. At some point, Stewart testified, he indicated
to Pruett that they had permission and that he could go on. A few minutes later, Stewart got
on his four-wheeler and proceeded in the direction Pruett had gone, but Stewart stopped to
look at some of the bulldozing that had been done, and Mike Carr pulled up beside him in
his van. Stewart testified that he and Mike then both proceeded to the swinging bridge, where
they were having a pleasant conversation, until he heard a girl screaming. He could not see
her because she was in a grove of trees, but as she got closer he heard her screaming his name.
He quickly proceeded down the road on his four-wheeler, and as he came around the corner,
he saw Pruett on all fours. Pruett’s four-wheeler was up by the highway against some trees
where a fence had stopped it.
Stewart testified that when he got close, he saw the cable, which he estimated to be
a half-inch-wide cable. He testified that there were no markings or a sign on the cable, which
was strung over a paved, well-defined path, and that it was not strung at the boundary of the
property. He testified that he later determined the height of Pruett’s injury and found that it
was fifty-one or fifty-two inches off the ground. He testified that at that height, a cable would
not stop a four-wheeler, as the handlebars are usually forty-two or forty-three inches in
height. He acknowledged that he had used cables to block a path or a road on his property
by placing the cable at a height designed for a vehicle to run into it and by marking the cable
so others can see it.
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Stewart testified that when Mike Carr arrived on the scene, he was admonishing his
boys for not putting a flag on the cable and telling them to put flags on the other cables. Mike
apologized and said that they should have had a flag on it. Stewart explained that they put
Pruett in Mike’s van and met an ambulance in Harrison, and Pruett was then transported to
the emergency room. According to Stewart, the doctor told him that Pruett’s trachea had
been severed and had retracted down into his lungs, but the medical staff was able to secure
it and stabilize him for transport. Stewart stated that he drove himself to Springfield, where
Pruett was taken by helicopter. The doctors told Stewart that not only was Pruett’s trachea
severed, but his esophagus was severed as well. Pruett was kept in surgery most of the night,
and a few days later, he also underwent surgery to repair his spine. Stewart explained that
Pruett had to use a suction device and a feeding machine during his recovery and that Pruett’s
mother, who lived out of state, stayed with them for two months to help him care for Pruett.
Stewart stated that Pruett still has problems with breathing and has limited movement in his
neck. He testified that he has been responsible for Pruett’s medical bills, which had so far
totalled $233,000. On cross-examination, Stewart testified that he did not think Mike Carr
had intended to hurt Pruett but that he had set a trap for Pruett. He testified that he found
it implausible that a sixteen-year-old boy (meaning Michael Carr) hung the cable just because
he did not know any better.
Michael Carr testified that he began work at the Dogpatch property in May 2005. He
testified that he and his dad both volunteered helping his uncle, C.L. Carr, clean up the
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property, and that his dad was in charge of the project and hired several workers. He stated
that they had problems keeping people off of the property and that he and his dad both spent
time providing security for the property. Michael agreed that most of the problems came from
four-wheelers coming onto the property, and he also agreed that the cable that injured Pruett
was over a blacktop road in a grove of trees and not on the property boundary.
Michael testified that he recalled the incident in May 2005 involving Wes Cyrus, but
he denied pointing a shotgun at him. He testified that they were not using guns to protect the
property, but that he was authorized to do things like hang the cable across the road as an
agent of the property owner. He testified that he carried the cable to the location on his
moped and strung the cable across the road. He recalled the Nances being on the property
that day but denied that he passed Pruett and Jessica while they were stopped at “kissing
rocks.” According to Michael, he put the cable up just seconds before Pruett ran into it. He
was coming down the hill on his moped when Pruett and Jessica were going up the hill, but
he testified that he had no time to warn them about the cable. He testified that he did not
know that the cable was going to harm Pruett, as the cable was at waist height and he
believed that it would be level with the four-wheeler.
Michael testified that when he pulled up to the scene of the accident, his dad and
Stewart were putting Pruett into the van. He testified that he did not remember his dad
yelling at him about putting flags on the cables. He also testified that he could not reconcile
his statement that he hung the cable at three feet with the fact that it made no contact with
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the four-wheeler. He acknowledged that he knew the cable was not marked with flags, that
the cable was not at the boundary of the property, that he knew there were guests on the
property that were driving on the paved roads on the property, and that he knew they were
driving up the hill after he hung the cable. He testified that it occurred to him after he hung
the cable that he ought to mark it with something.
On cross-examination, Michael testified that when he left after putting up the cable,
he was going to get some yellow marking tape or caution tape. He also testified that he had
made the decision to put up the cable on his own and did not talk to anyone about it before
doing so. He explained that when he got to his dad’s van to get the caution tape, he heard
Jessica Voros screaming. His dad and Stewart took off, and he followed them on foot. After
they took Pruett away in the van, he helped Jessica get a ride to the hospital and then took
the cable down so no one else would get hurt. He testified that it did not occur to him at the
time he put the cable up that it might hurt someone, but afterwards he realized that there was
a potential for someone to get hurt and that is why he went to get the caution tape.
Mike Carr’s deposition testimony was also admitted at the trial and portions of the
deposition were read into the record. In his deposition, Mike testified that the Dogpatch
property had been in the Carr family since 1993, and before that it was owned by his mother’s
family. He explained that he did not know who actually held the title to the property, but his
brother, C.L. Carr, was generally in control of the property. He testified that he and his
children, along with some of their friends, began cleaning up the property in June 2005.
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Mike recalled the incident that occurred in May 2005 and stated that he caught several
of the Nances on his property at 11:00 p.m. on four-wheelers. He stated that one of the boys
(referring to Wes Cyrus) tried to run him and his son over with his four-wheeler several
times, and he also stated that Pruett was there, too. Mike explained that he told the boys they
were trespassing and that they should not be there. He also had his son call the police, and the
police explained to the boys that they could leave, but if they came back on the property their
four-wheelers would be confiscated. Mike denied that he or his son had a weapon of any
kind. He stated that he made clear they were not welcome on the property.
Mike testified that he did not recall ever meeting Stewart or Pruett Nance prior to the
day of the accident. He testified that on that day, Stewart pulled up on a four-wheeler and
came over to speak to him, while Pruett was riding his four-wheeler around the parking lot
and “cutting doughnuts.” Mike testified that Stewart began speaking to him, but that he
immediately began walking toward his van because he wanted to go over to where Pruett was
and tell him to stop what he was doing. Mike stated that Stewart did ask if they could ride on
the property, but that he never answered yes or no. Mike explained that Stewart got back on
his four-wheeler while he drove toward Pruett. At that point, Pruett and Jessica left the area
on the four-wheeler, and according to Mike, they knew he was pursuing them. He drove
through the property looking for them, and several minutes later, he saw Stewart stopped at
the swinging bridge. Mike pulled up and talked to him for just a minute, and that was when
they heard Jessica screaming. Mike stated that he had been following them in order to get
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them off the property and that Pruett had been evading him. He also stated that when he was
sitting at the swinging bridge, his son Michael had approached and asked him for some
caution tape. Mike testified that at the time, he did not know his son had put up the cable.
He reiterated that Stewart and Pruett Nance did not have permission to be on the property
and that he did not recall ever previously giving them permission to be on the property. But
he acknowledged that he had never actually told the Nances to leave the property that day.
C.L. Carr, Sr., testified as to the ownership of the property and acknowledged that
the property, which had been bought by GAC Investments, Inc., in 1995, was then assigned
to Leisuretek Limited, a corporation owned by Ford Carr, C.L.’s brother. He also testified
that the property was eventually deeded to Tahoe Gaming, LLC, a corporation owned by
C.L. Carr, Jr. He testified that he did not tell Mike what to do on the property, but that he
did give him checks written on Leisuretek’s bank account to pay for materials for the cleanup.
At the conclusion of this testimony, the defense asked for a directed verdict on all the
issues raised in the complaint. The defense asserted that the plaintiffs had failed to meet their
burden of proof under the Arkansas Recreational Use Statute, codified at Arkansas Code
Annotated section 18-11-301 et seq., which generally grants a landowner immunity from
liability to persons entering the landowner’s property for recreational purposes. However, an
exception to this immunity exists “for malicious, but not mere negligent, failure to guard or
warn against an ultra-hazardous condition, structure, personal property, use or activity actually
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known to the owner to be dangerous.” Ark. Code Ann. § 18-11-307(1) (Repl. 2003). So,
for the plaintiffs to prevail, they were required to prove (1) that a failure to guard or warn
occurred; (2) that the failure to guard or warn was malicious; (3) that a malicious failure to
guard or warn occurred in relation to an ultra-hazardous condition; and (4) that the ultrahazardous condition was actually known to the owner to be dangerous. The defense
contended that the plaintiffs had failed to prove these elements, and argued specifically that
there was no malice demonstrated and that the cable was not an ultra-hazardous condition or
structure. The defense also asserted that the plaintiffs had failed to exercise reasonable care to
avoid injury. The court, however, found that there was evidence that supported the elements
of the cause of action and therefore denied the motion for directed verdict.
The defense then called Russ Rasnic, a mechanical engineer, to testify. Rasnic testified
that he was asked to conduct a forensic examination of the accident. While acknowledging
that he did not examine the trees until three years after the accident, he testified that he
observed two distinct marks that were indicative of where the cable was strung between the
trees. Based on the location of those marks, he pulled a tape measure between the two marks
and stretched it taut, and the height of the cable at the center of the road was forty-six inches,
which was consistent with Michael’s testimony that he placed the cable at what he thought
was waist height. Allowing for some sag in the cable, Rasnic testified that the height of the
cable was between forty-two and forty-six inches. Rasnic also testified that Jessica’s presence
on the back of the four-wheeler had an effect on the significance of Pruett’s injuries, because
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when he hit the cable, he stopped, but she was still traveling forward and pushed into the back
of him.
At the close of all the evidence, the defense renewed its motion for directed verdict.2
The court then discussed jury instructions with counsel, and the defense objected to an
instruction on punitive damages, arguing that this was a statutory cause of action and there
was nothing in the statute providing for punitive damages. The defense asserted that the
instruction alluded to the “willful and wanton” language with regard to malice, which was
not appropriate in this case. The court decided the instruction would be read to the jury and
included in the instruction both the standard for punitive damages and the required elements
under § 18-11-307(1) to establish liability.
The jury returned a verdict in favor of appellees, awarding Pruett $100,000 in
compensatory damages and $150,000 in punitive damages. The jury awarded Stewart
$400,000 in compensatory damages. Appellants filed a motion seeking remittitur and asserting
that the proof adduced at trial established that Stewart’s compensatory damages totaled
$233,762.22.3 The circuit court granted the motion for remittitur and reduced Stewart’s
compensatory damages to $233,707.42. The circuit court entered a judgment on October 21,
2008.
2
There was no specific ruling by the circuit court on this renewed motion for directed verdict;
however, under Ark. R. Civ. P. 50(e), the motion is deemed denied for purposes of appellate
review.
3
The amount of total medical bills introduced at trial was $233,707.42.
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Appellants subsequently filed a motion for judgment notwithstanding the verdict,
alleging that the evidence was insufficient to support the verdict. Specifically, appellants
argued that appellees failed to present evidence of malice, the existence of an ultra-hazardous
condition, or that Mike E. Carr and Michael L. Carr were acting as agents of C.L. Carr and
C.L. Carr, Jr. The circuit court entered an order denying the motion, and appellants filed a
timely, joint notice of appeal. As previously mentioned, however, the appeal was dismissed
without prejudice by this court due to a lack of a final order, because there was no written
order entered dismissing Lynn Larson as a plaintiff or dismissing Westek Corporation,
Leisuretek, Ltd., Ford Carr, and Alberta Carr as defendants. On March 15, 2010, the circuit
court entered an order of dismissal as to these parties, and appellants filed a notice of appeal
on March 24, 2010. Appellees filed a notice of cross-appeal on March 31, 2010.
I. Sufficiency of the Evidence
For their first point on appeal, appellants argue that the circuit court erred in denying
their motion for judgment notwithstanding the verdict because appellees failed to prove the
required elements under Ark. Code Ann. § 18-11-307(1). Specifically, appellants assert that
appellees failed to present substantial evidence of malicious intent, an ultra-hazardous
condition, or knowledge on the part of the landowner. Our standard of review for a denial
of a motion for judgment notwithstanding the verdict is well settled:
[I]n reviewing the denial of a motion for [judgment notwithstanding the verdict], we
will reverse only if there is no substantial evidence to support the jury’s verdict, and
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the moving party is entitled to judgment as a matter of law. Substantial evidence is that
which goes beyond suspicion or conjecture and is sufficient to compel a conclusion
one way or the other. It is not our place to try issues of fact; rather, we simply review
the record for substantial evidence to support the jury’s verdict. In determining
whether there is substantial evidence, we view the evidence and all reasonable
inferences arising therefrom in the light most favorable to the party on whose behalf
judgment was entered. A motion for directed verdict should be denied when there is
a conflict in the evidence, or when the evidence is such that fair-minded people might
reach different conclusions.
ConAgra Foods, Inc. v. Draper, 372 Ark. 361, 364, 276 S.W.3d 244, 247–48 (2008) (internal
citations omitted).
A. Malicious Intent
Appellants first argue that, in considering a landowner’s failure to warn, the recreational
user’s negligent conduct must also be considered. Appellants cite Roten v. United States, 850
F. Supp. 786 (W.D. Ark. 1994), as recognizing the inconsistency in requiring a landowner
to take extra precautionary measures to guard or warn against a condition on the property
when it is the recreational user’s own negligent conduct that causes the user’s injuries. In
Roten, the decedent fell to his death off of a cliff at night in a national recreational area, but
the court found that the National Park Service had not maliciously failed to warn against an
ultra-hazardous condition known by the Service to be dangerous concerning the cliffs. The
court found that the placement of additional warning signs in the area would have provided
no more or better warning than the decedent’s own sensory perceptions in viewing the cliffs
in the daylight prior to his fall. The court also found that
if the defendant were required to install such guard rails or fences along the high cliffs
of White Rock the said obvious purposes of the Recreational Use Statute would be
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defeated and frustrated, not because defendant would otherwise be held to be acting
maliciously, but because those using the recreational areas were being negligent and
irresponsible in their use of the area.
Id. at 794. Appellants urge that this language supports a finding that Pruett’s injuries were
caused by his own negligent conduct and not by a failure on the part of appellants.
Specifically, appellants argue Pruett was negligent in not wearing a helmet, riding with a
passenger on his four-wheeler, and not keeping a proper look-out.
Appellants also discuss a couple of other federal cases that have touched on the meaning
of “malice” in the context of a recreational use statute. In Carlton v. Cleburne County,
Arkansas, 93 F.3d 505 (8th Cir. 1996), the victims of a bridge collapse sued a nearby resort for
negligence, alleging that the resort had failed to warn them of an ultra-hazardous danger. The
resort was granted summary judgment, and the appellate court affirmed. The court noted that,
under Arkansas law, “malice” is inferred where “the negligent party knew, or had reason to
believe, that his act of negligence was about to inflict injury, and that he continued in his
course with a conscious indifference to the consequences.” Id. at 511 (quoting Stein v. Lukas,
308 Ark. 74, 78, 823 S.W.2d 832, 834 (1992)). The court held that there had been no facts
offered to support a finding that the resort had maliciously failed to warn, because there was
no evidence that the resort knew the bridge was about to collapse yet continued its course of
conduct with a conscious indifference to the consequences.
Appellants also cite to Cudworth v. Midcontinent Communications, 380 F.3d 375 (8th Cir.
2004), which applied North Dakota law but presents a situation somewhat factually similar
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to the case at bar. In Cudworth, a snowmobile rider was injured when he collided with a rope
barrier, which was partially obscured by a snowdrift, that the defendant had strung across its
property boundary. The district court granted summary judgment in favor of the defendants,
and the Eighth Circuit agreed that the defendants were immune from liability under North
Dakota’s recreational use statute (which is worded similarly to the Arkansas statute).
Specifically, the district court concluded that “malicious” conduct required proof of actual
malice or evil intent, but the appellants urged a more broad definition that also encompassed
“presumed malice” which exists “where the defendant’s conduct amounts to a reckless
disregard of the rights of others.” Id. at 381. The Eighth Circuit disagreed and found that if
the legislature had intended to allow liability for presumed malice or reckless disregard in the
recreational use immunity statute, it would have stated so.
Likewise, because no Arkansas court has yet interpreted the meaning of “malicious”
in § 18-11-307(1), appellants urge this court to interpret the statute according to its “plain
meaning” and find that the legislature only intended the statute to apply to actual malice,
meaning the intentional doing of a wrongful act without justification or excuse, as opposed
to implied malice. And, appellants argue, in this case there was no actual malice proven.
Specifically, appellants dispute that the height of the cable can be used as evidence of malice,
as it was only intended to prevent access to portions of the property and was not intended to
harm anyone. Appellants argue that appellees’ contention that the cable was a “trap” is mere
suspicion or conjecture and that the evidence presented at trial might prove negligence, at
best, but not malicious intent.
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In response, appellees argue the converse of appellants’ argument: appellees argue that
if the legislature wanted to limit the exception to immunity to situations involving “actual
malice,” then it would have used that term in the statute. To illustrate, appellees cite several
statutes in which the term “actual malice” is used. E.g. Ark. Code Ann. § 5-26-502(e); § 1213-303(e). Appellees urge that this court should interpret “malicious” in the recreational use
statute as including inferred malice, as the Eighth Circuit did in Carlton, supra. Appellees also
note that this interpretation of malice is the same as that used in Ark. Code Ann. § 16-55-206,
which explains the standard for an award of punitive damages under the Civil Justice Reform
Act. Finally, appellees contend that under either an inferred malice or an actual malice
standard, there was substantial evidence to support the jury’s finding of malice in this case.
We affirm on this point. First, any question regarding Pruett’s contributory negligence,
if any, was a question for the jury. Second, as explained at length by the circuit court in its
order denying the motion for judgment notwithstanding the verdict, “[t]here was evidence
from which, under the circumstances, it could have been determined that there was
knowledge of the hazard and opportunity to warn and that it was not done; that there was
malicious failure to warn.” The jury was not instructed as to the meaning of “malicious,” and
because this case was submitted to the jury under a general verdict form, this court can only
speculate on how the jury defined “malicious.” When a jury’s verdict is rendered on a general
verdict form, it is a finding upon the whole case; this court will not speculate on what the jury
found where a general jury verdict is used. Union Pac. R.R. Co. v. Barber, 356 Ark. 268, 293,
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149 S.W.3d 325, 341 (2004) (“When special interrogatories concerning liability or damages
are not requested, and this court is left in the position of not knowing the basis for the jury’s
verdict, we will neither question nor theorize about the jury’s findings.”). Furthermore, as we
have no specific ruling below on the correct statutory interpretation of “malicious,” we
decline to address the issue at this time.
B. Ultra-hazardous Condition
In this case, the jury was instructed that a condition is ultra-hazardous if it (1) cannot
be performed without a risk of serious harm to the person or another, regardless of any
precautions taken; and (2) does not normally occur in that community. On appeal, appellants
argue that there was no substantial evidence presented that the use of a cable to limit access
to the property was an ultra-hazardous condition or activity. Appellants assert that the usage
of a cable for such a purpose does not necessarily involve a risk of serious harm, because any
such risk can be eliminated by the exercise of due care on the part of the landowner. Michael
Carr testified that he was going to retrieve caution tape to attach to the cable at the time the
accident occurred; thus, appellants contend that if he had had sufficient time to flag the cable,
“the accident would have been unlikely to occur.” Also, appellants argue, there was evidence
presented that it is common practice to install cables as barriers to prevent entry upon land.
Stewart Nance’s friend, Dean McKnight, and Stewart himself testified that they had
previously used cable to prevent access to property. Therefore, the use of the cable in this case
cannot be considered an ultra-hazardous activity or condition.
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In response, appellees argue that whether the hazard can be eliminated by reasonable
efforts and whether it is a common practice are not relevant considerations. But this argument
is unavailing, considering that those considerations track the meaning of ultra-hazardous as
defined by the jury instruction, which appellees did not object to below. Appellees also cite
cases from other jurisdictions that support a finding that stringing an unmarked cable in such
a way is a dangerous and ultrahazardous activity. See, e.g., Seeholzer v. Kellstone, 610 N.E.2d
594 (Ohio Ct. App. 1992) (reversing grant of summary judgment to landowner where driver
of recreational vehicle was injured when he struck cable strung across pathway on landowner’s
property).
In its order denying the motion for judgment notwithstanding the verdict, the circuit
court stated:
It does not appear that stretching a well-marked cable of a reasonable height across a
road in an area where it is reasonably visible to persons traveling the road is an
ultrahazardous activity and it appears that such action is done commonly. But here,
substantial evidence provides a basis for finding that maintaining a cable like the one
claimed to have been installed, under the circumstances shown, is not a matter of
common usage and necessarily involved a risk of serious harm to the person of Pruett
Nance or any others who might be riding on the road under the conditions as then
existed. From the record it appears that it could be found that ordinary care would
have reduced the risk of harm, but, under the circumstances presented, it would not
eliminate it.
We agree with this analysis. It was not the hanging of a cable per se that constituted the ultrahazardous activity, but the hanging of an unmarked cable at a dangerous height in an area in
which the landowner knows there are people traveling on four-wheelers. Therefore, we
affirm on this point.
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C. Agency Relationship
Finally, appellants argue that appellees failed to present substantial evidence of the
existence of an agency relationship between Mike and Michael Carr and the other appellants.
Specifically, appellants assert that there was no evidence offered to show that Mike or Michael
Carr were employees or agents of Tahoe Gaming, LLC. Appellants also argue that C.L. Carr
and C.L. Carr, Jr., are not personally liable for the obligations of Tahoe Gaming because
appellees did not seek to pierce the corporate veil.
However, appellants failed to raise this argument during the trial and only did so for
the first time in their motion for judgment notwithstanding the verdict. A motion for
judgment notwithstanding the verdict is technically only a renewal of the motion for directed
verdict made at the close of the evidence; therefore, it cannot assert a ground not included in
the directed-verdict motion. Advanced Envtl. Recycling Techs., Inc. v. Advanced Control Solutions,
Inc., 372 Ark. 286, 275 S.W.3d 162 (2008). Any arguments made in a motion for judgment
notwithstanding the verdict that were not made in the motion for directed verdict may not
be taken up on appeal; the arguments made in the directed-verdict motion are controlling.
Id. Therefore, we find that this argument is not preserved for this court’s review.
II. Jury Instruction
As explained above, appellants objected to the instruction on punitive damages,
arguing that this was a statutory cause of action and that there was nothing in the statute
providing for punitive damages. Appellants also argued that the statute allows liability only for
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“malicious” failure to warn, but that the instruction alluded to the “willful and wanton”
language with regard to malice, which was not appropriate in this case. The court decided that
the instruction would be read to the jury and included in the instruction both the standard
for punitive damages and the required elements to establish liability under § 18-11-307(1).
On appeal, appellants again assert that the court erred in giving the punitive damages
instruction, arguing that it was “misleading and confusing to the jury and provided an
inappropriate standard for the imposition of punitive damages in light of the malice required”
under the recreational use statute. A party is entitled to a jury instruction when it is a correct
statement of the law and when there is some basis in the evidence to support giving the
instruction. Vidos v. State, 367 Ark. 296, 239 S.W.3d 467 (2006). We will not reverse a circuit
court’s decision to give an instruction unless the court abused its discretion. Id.
In support of their argument, appellants cite to Wal-Mart Stores, Inc. v. Binns, 341 Ark.
157, 15 S.W.3d 320 (2000). In Binns, an employee filed negligent prosecution, abuse of
process, and malicious prosecution claims against her employer. The jury returned a verdict
in the employee’s favor on the abuse of process and malicious prosecution claims and awarded
her $750,000 in compensatory damages and $2,000,000 in punitive damages. On appeal, WalMart argued that the court had erred in instructing the jury to award punitive damages if they
found that Wal-Mart had “intentionally pursued a course of conduct for the purpose of causing
damage.” Id. at 164, 15 S.W.3d at 325 (emphasis in original). Wal-Mart argued that the use
of this instruction created an inconsistent standard for awarding punitive damages when the
underlying tort involves malice. This court agreed and explained that
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the underlying claim of malicious prosecution (which could have formed the sole basis
for the challenged punitive-damages award), requires that the plaintiff prove intent and
a spirit of ill will, hatred, or revenge. However, the jury instruction submitted
inconsistently permits an award based on a lesser degree of scienter, merely proof that
the defendant intentionally pursued a course of conduct for the purpose of causing
damage.
Id. at 164–65, 15 S.W.3d at 325. Thus, this court held that the court had erred in submitting
the instruction and reversed.
Appellants assert that a similar situation is presented in the case at bar. Arkansas Code
Annotated section 18-11-307(1) allows recovery only when there has been “malicious, but
not mere negligent, failure to guard or warn against an ultra-hazardous condition . . . actually
known to the owner to be dangerous.” But under the jury instruction given, appellants argue,
the jury was allowed to award punitive damages if it found liability under the statute and it
found that “the Defendants knew or ought to have known, in light of the surrounding
circumstances, that their conduct would naturally and probably result in injury and that they
continued such conduct with malice in reckless disregard of the consequences from which
malice may be inferred.” Alternatively, the jury could award punitive damages if it found that
the defendants “intentionally pursued a course of conduct for the purpose of causing injury.”
Appellants argue that the statute makes no reference to presumed malice, reckless disregard,
or mere intentional conduct, and instructing the jury to award punitive damages under these
“lesser standards” was error.
In response, appellees contend that there was no error in the instruction because
implied malice is allowed under the statute, thus the standard for imposing punitive damages
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is the same standard for finding malice under the statute. Appellees also point out that § 1811-307 states that “[n]othing in this subchapter limits in any way liability which otherwise
exists” for malicious failure to guard or warn, so regardless of which definition of “malicious”
is used, punitive damages is an available remedy if liability is found under the statute.
While appellants contend that the jury instruction allowed the jury to award punitive
damages under a lesser standard, akin to Binns, the situation in this case is distinguishable. In
Binns, the jury instruction included an “intentional” standard, which was a lesser standard than
that required for a finding of malicious prosecution. But in this case, the “higher” standard
found in the statute itself was made a part of the instruction, thus eliminating the problem that
was present in Binns. Regardless of the other language included in the instruction, the jury
was still instructed that it first had to find that the defendants had acted with malicious intent
under the language of section 18-11-307(1) in order to award punitive damages. Thus, we
find no abuse of discretion on this point and affirm.
III. Cross-Appeal
On cross-appeal, appellees assert that the circuit court erred in granting appellants’
motion for remittitur. We review the issue of remittitur de novo. See Advocat, Inc. v. Sauer,
353 Ark. 29, 111 S.W.3d 346 (2003). Where an award of damages is alleged to be excessive,
this court reviews the proof and all reasonable inferences most favorably to the appellee and
determines whether the verdict is so great as to shock the conscience of the court or
demonstrate passion or prejudice on the part of the trier of fact. Id. Remittitur is appropriate
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when the compensatory damages awarded are excessive and cannot be sustained by the
evidence. Id. The standard of review in such a case is that appropriate for a new trial motion,
i.e., whether there is substantial evidence to support the verdict. Id.
In its order granting the motion for remittitur, the circuit court noted that Stewart
Nance had testified that his only claim was for the medical bills that he had paid on Pruett’s
behalf. And, during closing arguments, plaintiffs’ counsel reiterated that all they were asking
for was damages to cover the amount of medical bills. Further, there was no evidence
presented to show the value of any services rendered or any expenditures made by Stewart
beyond the $233,707.42 in medical bills. Considering all these factors, the court found that
the $400,000 damages verdict in favor of Stewart was grossly excessive and lacked a sufficient
evidentiary basis.
Appellees argue that, while there was no proof offered of the monetary value of the
services rendered by Stewart in his care of Pruett, the jury was instructed that it should
compensate Stewart for “the reasonable expense of any necessary medical care, treatment, and
services received, including transportation and board and lodging expenses necessarily incurred
in securing such care, treatment, or services on behalf of Pruett Nance.” Clearly, by awarding
Stewart $400,000, the jury decided to compensate Stewart for his transportation, lodging, and
the value of his caretaking activities for Pruett during Pruett’s recuperation. Appellees also
note that appellants did not object to the above instruction, which they argue is a “waiver of
any complaint that insufficient evidence existed to support awarding for these amounts.”
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Appellees also argue that, contrary to the circuit court’s opinion, they were not required to
present proof of the value of all those services to recover for them. Furthermore, appellees
assert that neither Stewart’s testimony that he was only seeking damages for medical expenses,
nor his counsel’s statement during closing argument, should be construed as precluding the
jury from considering the caretaking efforts by Stewart and awarding him accordingly.
In response, appellants first deny that their remittitur argument was waived by failure
to object to the jury instruction on compensatory damages. Appellants argue that the jury
instruction was not at issue; the issue was whether there was sufficient evidence to support the
jury’s award. Appellants cite to this court’s case law stating that damages must be proven with
specificity, namely in terms of dollars and cents. Appellants assert that, even assuming that the
excess award was to cover Stewart’s expenses for transportation, lodging, and caretaking,
which is unclear considering the jury rendered only a general verdict, appellees presented no
evidence of his transportation and lodging costs or the value of caretaking services. Appellants
contend that appellees presented and asked for compensation only for the medical bills, and
any award in excess of that was properly remitted.
First, we agree with appellants that their argument on this point has not been waived.
Appellants’ argument was not that there was an error in the instruction; the argument was that
there was no evidence to support an award in excess of Stewart’s medical bills. Second,
appellants are correct that this court has stated that the plaintiff must present proof that would
enable the jury to fix damages in dollars and cents, and damages will not be allowed which
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are speculative, resting only upon conjectural evidence or the opinion of the parties. Mine
Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 780 S.W.2d 543 (1989). But this court has
also stated that in those instances where damages simply cannot be proven with exactness,
when the cause and existence of damages have been established by the evidence, recovery will
not be denied merely because the damages cannot be determined with exactness. Id.
Considering the above law and our standard of review for grants of remittitur, we find
that the jury was entitled to award damages for the caretaking activities undertaken by Stewart
as well as other costs and that the verdict given was not so great as to shock the conscience
of the court or demonstrate passion or prejudice on the part of the jury. We therefore reverse
the order granting remittitur and remand for the circuit court to reinstate the original
compensatory-damages award of $400,000.
Affirmed on direct appeal; reversed on cross-appeal.
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