Balentine v. Sparkman

• Decision Date: 03 February 1997
• Docket Number: No. 96-196,96-196
• Citation: Balentine v. Sparkman, 937 S.W.2d 647, 327 Ark. 180 (Ark. 1997)
• Parties: Berniece BALENTINE, Appellant, v. Lisa SPARKMAN, et al., Appellees.
• Court: Arkansas Supreme Court

Page 647

937 S.W.2d 647

327 Ark. 180

Berniece BALENTINE, Appellant, v.Lisa SPARKMAN, et al., Appellees.

No. 96-196.

Supreme Court of Arkansas.

Feb. 3, 1997.

Margaret M. Newton, Mel Sayes, Little Rock, for appellant.

Comer Boyett, Jr., Searcy, J. Russell Green, Heber Springs, for appellees.

Odell Pollard, Searcy, for cross-appellant.

IMBER, Justice.

This cause of action arose out of a traffic accident that occurred on May 19, 1990, in Heber Springs, Arkansas, during which a station wagon owned by Berniece Balentine and driven by Billy Sparkman collided with a Jeep driven by Jerry Howell.

On the evening of May 19, 1990, Lisa and Billy Sparkman were visiting Berniece Balentine, who is Lisa Sparkman's grandmother.While at the Balentine residence, Billy Sparkman thought he observed lightning strike a relative's home.Lisa, Billy, and Ms. Balentine decided to drive to the home to determine if the lightning had caused any damage.Because it was dark and raining, Ms. Balentine asked Billy Sparkman to drive her station wagon, and he complied.

Billy drove the station wagon a few blocks before stopping at the intersection of Highway 25 and Scott streets.Billy asked the passengers if they detected any oncoming traffic.Ms. Balentine and Lisa told Billy that the intersection was clear.Billy drove the station wagon halfway into the intersection when it was struck in the rear passenger door by a Jeep driven by Jerry Howell.Lisa Sparkman was knocked unconscious and suffered permanent brain damage.

At trial, Ms. Balentine and Billy Sparkman testified that Howell was driving the Jeep without his headlights on, and that he did not turn on his lights until seconds before impact.However, Howell and an eyewitness told the jury that Howell did indeed have his headlights on as he approached the intersection.Immediately after the collision, Howell overheard Billy Sparkman crying and exclaiming that the accident was his fault.

Ms. Balentine and Billy Sparkman testified that Billy had not been drinking alcohol the night of the accident.Likewise, a police officer and two other witnesses testified that they did not detect the presence of alcohol on any of the parties to the accident.However, Howell, an eyewitness, and Howell's two sisters claimed that they detected alcohol on Billy Sparkman's breath, that he staggered, and that his speech was slurred.

The jury found that at the time of the accident Billy Sparkman was acting as Berniece Balentine's agent, that Balentine had negligently entrusted Sparkman with the operation of the station wagon, and that Lisa Sparkman, Billy Sparkman, and Berniece Balentine were engaged in a joint enterprise.Furthermore, the jury apportioned fault as follows: Lisa Sparkman(injured party) 0%, Jerry Howell(driver of the Jeep) 0%, Billy Sparkman(driver of the station wagon) 45%, and Berniece Balentine(owner of the station wagon) 55%.Hence, Billy Sparkman and Berniece Balentine were held legally responsible for the $250,000 in damages suffered by Lisa Sparkman.

Immediately after the jury rendered its verdict, Balentine made a motion for a judgment notwithstanding the verdict and a motion for a new trial.Both were denied, and Balentine appeals.Although the jury completely exonerated Jerry Howell of any liability for the accident, he cross-appealed alleging three trial errors.

1.Negligent Entrustment/AMI 609 Jury Instructions.

For her first argument on appeal, Berniece Balentine alleges that the trial judge erred in a) denying her motion for a directed verdict on the issue of negligent entrustment, b) instructing the jury on negligent entrustment, and c) rejecting her motion for a judgment notwithstanding the verdict.These arguments are essentially a challenge to the sufficiency of the evidence, and thus should be considered together.See, Medlock v. Burden, 321 Ark. 269, 900 S.W.2d 552(1995).

When reviewing the sufficiency of the evidence, this court reviews the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered.Anselmo v. Tuck, 325 Ark. 211, 924 S.W.2d 798(1996).The verdict will be affirmed if there is substantial evidence to support it.Medlock, supra.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.

In the present case, the jury found that Balentine negligently entrusted her station wagon to Billy Sparkman.To establish negligent entrustment under Arkansas law, the plaintiff must show that: 1) the entrustee was incompetent, inexperienced, or reckless; 2) the entrustor knew or had reason to know of the entrustee's conditions or proclivities; 3) there was an entrustment of the chattel; 4) the entrustment created an appreciable risk of the harm to the plaintiff and a relational duty on the part of the defendant; and 5) the harm to the plaintiff was proximately or legally caused by the negligence of the defendant.Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306(1996);Mann v. Orrell, 322 Ark. 701, 912 S.W.2d 1(1995).On appeal, Balentine alleges that there was insufficient evidence to support the jury's finding on the first and second elements of negligent entrustment.

a. The entrustee was incompetent.

First, Balentine claims that there was insufficient evidence to support the jury's finding that Billy Sparkman was incompetent, or in this case, intoxicated at the time of the accident.As mentioned above, several witnesses asserted that Sparkman smelt of liquor, staggered, and slurred his speech; while several other witnesses claimed that he did not appear intoxicated.This court has repeatedly held that it is the sole province of the jury to determine the credibility of the witnesses and the weight of their testimony.Russell v. Colson, 326 Ark. 112, 928 S.W.2d 794(1996).Therefore, the jury was free to believe the witnesses who claimed that Sparkman was intoxicated over those who alleged that he was not.

Citing City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562(1995), Balentine next argues that Sparkman's mere consumption of alcohol did not establish that he was driving in a negligent manner.Although Balentine's assertion of the law is correct, her application to the facts at hand is erroneous.In Cameron, the defendant crashed his car into a traffic pole owned by the City of Little Rock.Id.The officer who arrived at the scene of the accident testified that Cameron smelled of alcohol and registered a .05 percent blood-alcohol level.Id.On appeal, we held that the mere fact that Cameron had been drinking alcoholic beverages was not sufficient evidence to establish negligence.Id.Specifically, we explained that:

there was no evidence that Cameron was intoxicated or otherwise impaired at the time of the accident or that his liquor consumption either evidenced a lack of reasonable care on Cameron's part or caused the wreck in any way.In sum, we agree that the City's proof does not give rise to an inference of negligence but only to conjecture and speculation.

Id.(emphasis added).

This case is distinguishable from Cameron in that in addition to showing that Sparkman had consumed alcohol, the witnesses also declared that he staggered and slurred his speech.Therefore, it was reasonable for the jury to conclude that Sparkman's consumption of alcohol had impaired his physical abilities, and more importantly, his ability to operate the vehicle in a reasonable manner.Thus, we find that there was sufficient evidence to support the jury's conclusion that Sparkman negligently operated the station wagon.

b. The entrustor knew of the incompetence.

Balentine also attacks the jury's finding of the second element of negligent entrustment that the entrustor knew or had reason to know of the entrustee's incompetence.At trial, Billy Sparkman explained to the jury that prior to the accident he was at Balentine's home, and that they drove only a few blocks before they entered the intersection where the accident occurred.

It is well settled that a jury is allowed to draw upon their common knowledge and experience in reaching a verdict from the facts proven at trial.Robinson v. State, 317 Ark. 17, 875 S.W.2d 837(1994).Moreover, it is appropriate for the jury to draw reasonable inferences from the facts presented at trial.Anselmo, supra.Hence, we find that the jury could have reasonably inferred that if Sparkman was intoxicated at the time of the accident, he would have also exhibited similar physical signs of intoxication moments before the accident when Balentine entrusted him with the operation of her car.Thus, we find that there was sufficient evidence to support the jury's conclusion that Balentine negligently entrusted the station wagon to Sparkman.In view of this finding, we likewise hold that the trial court did not err in instructing the jury on negligent entrustment.

2.Motion for Mistrial.

For her next argument on appeal, Balentine asserts that she should have been granted a mistrial when Howell's attorney repeatedly referred to evidence excluded by the trial court about the alleged presence of beer containers in the station wagon at the time of the accident.

This court has repeatedly held that a mistrial is a drastic remedy which should only be used when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when fundamental fairness of the trial itself has been manifestly affected.Peeler v. State, 326 Ark. 423, 932 S.W.2d 312(1996).The trial court has wide discretion in granting or denying a motion for a mistrial and absent an abuse the decision will not be disturbed.Id.Finally, a mistrial will only be granted where any possible prejudice could not have been removed by an admonition to the jury.Id.

During a pretrial conference, it was...