Bishop v. Tariq, Inc.
Decision Date | 27 July 2011 |
Docket Number | No. CA 10–492.,CA 10–492. |
Citation | 384 S.W.3d 659,2011 Ark. App. 445 |
Parties | Jerri L. BISHOP, Individually and as Administratrix of the Estate of Guy Douglas Bishop, Deceased, Appellant v. TARIQ, INC., and Joe Fisher, Appellees. |
Court | Arkansas Court of Appeals |
OPINION TEXT STARTS HERE
Tony L. Wilcox, Scott J. Lancaster and Jeffrey O. Scriber, Jonesboro, Nicholas Lincoln Rogers, Little Rock, for appellant.
Michael Lynn Alexander and Rick Behring, Jr., Little Rock, for appellees.
[Ark. App. 1]Appellant Jerri Bishop filed this wrongful-death action after her husband drowned in a hotel swimming pool. A Pulaski County jury found in favor of the hotel's owner and manager, appellees Tariq, Inc., and Joe Fisher, leading to this appeal. For reversal, Mrs. Bishop argues that the circuit court erred in 1) excluding evidence that the hotel violated a state regulation requiring a lifeline between the pool's shallow and deep ends; 2) prohibiting evidence of other regulatory violations after hotel's counsel “opened the door” to such evidence during trial; 3) instructing the jury on comparative fault; and 4) denying a new trial after hotel's counsel made improper comments during closing arguments. The hotel cross-appeals[Ark. App. 2]from the denial of its motion for a directed verdict. We find merit in appellant's first point and reverse and remand on that ground. Our holding renders the cross-appeal moot.
Mr. and Mrs. Bishop and their eight-year-old son Steven were guests at the hotel. On the afternoon of March 27, 2008, Mr. Bishop and his son went swimming in the hotel's indoor pool. A security video depicted the two of them entering the shallow end after Mr. Bishop had looked into the deep end for several seconds. Upon entering the water, Mr. Bishop swam the length of the pool and returned to the shallow end. Mrs. Bishop was in the pool area in street clothes and eventually exited through a door leading to another part of the hotel. Mr. Bishop then put his son on his back and began walking toward the middle of the pool. At about the mid-point, he began to swim toward the deep end with his son on his back. There was no rope or lifeline across the center of the pool delineating the shallow and deep ends. After a few strokes, Mr. Bishop experienced some type of distress and began to thrash about in the water. His distress continued for a full minute until Mrs. Bishop rushed back into the pool area and ran toward a ring buoy mounted on a post. She attempted to unwind the rope attached to the buoy, but the amount of rope was too short, and the ring did not reach Mr. Bishop when she threw it. She then unwound additional rope and again threw the buoy into the pool. Young Steven swam to the ring and grabbed his father, and Mrs. Bishop pulled them to poolside. She held Mr. Bishop out of the water while Steven ran for help.
[Ark. App. 3]Mr. Bishop was later taken to a hospital, where he remained alive for three days before being pronounced dead. The record does not reveal the cause of his distress in the pool; however, his death certificate listed drowning as the cause of death.
On September 2, 2008, Mrs. Bishop sued the hotel for negligence, asserting that the hotel had violated numerous state swimming-pool regulations, including: 1) failing to report Mr. Bishop's drowning within seventy-two hours of its occurrence; 2) failing to provide proper depth markers in the pool; 3) failing to provide a lifeline between the shallow and deep ends of the pool; 4) failing to provide readily accessible life-saving equipment.1 The hotel answered, denying any negligence but stating that the regulatory violations, if any, did not proximately cause Mr. Bishop's death. The hotel also pled the defense of comparative fault.
Before trial, the hotel moved in limine to exclude evidence of the alleged regulatory violations, arguing that such evidence was irrelevant and more prejudicial than probative.Ark. R. Evid. 401 & 403. 2 The circuit court granted the motion as to the post-accident reporting, depth-marker, and lifeline regulations, apparently concluding that a violation of those regulations would be irrelevant to the issues in the case. But the court denied the motion as to the remaining regulation, which required the hotel to provide “readily accessible and [Ark. App. 4]conspicuously mounted” lifesaving equipment consisting of one shepherd's crook and one ring buoy. As the result of the court's ruling, Mrs. Bishop proceeded to trial solely on the theory that the hotel was negligent in failing to place the shepherd's crook in a conspicuous location and failing to make the ring buoy readily accessible.
At trial, Mrs. Bishop testified that she lost precious seconds in her attempt to rescue her husband because the rope on the ring buoy was wound too tightly. She also said that she did not notice the shepherd's crook, which photographs revealed was lying on a table with pool towels. An Arkansas Department of Health employee similarly testified that the crook was not conspicuously mounted and that the ring buoy was not readily accessible. Additionally, hotel manager Joe Fisher testified that he preferred that the rope on the ring buoy be loose enough to lift and throw all at once rather than having to be unwound, as Mrs. Bishop had to do. By contrast, the hotel presented testimony from a pool inspector and a forensic engineer that the crook and ring buoys were in compliance with state regulations. The hotel also elicited testimony that it had “exceeded” state regulatory requirements by providing two ring buoys at the pool rather than one. Mrs. Bishop objected that the hotel's claim of excessive compliance “opened the door” to evidence of other regulatory violations, which had been excluded in limine. The court's ruling in limine stood.
At the close of the evidence, the court instructed the jury on comparative fault over Mrs. Bishop's objection. The jury returned a general verdict in favor of the hotel, and this appeal and cross-appeal followed.
[Ark. App. 5]On direct appeal, Mrs. Bishop argues that the circuit court erred in excluding evidence of the hotel's failure to install a lifeline separating the shallow and deep ends of the pool. We review a trial court's decision to exclude evidence for an abuse of discretion. McCoy v. Montgomery, 370 Ark. 333, 259 S.W.3d 430 (2007). Applying that standard, we conclude that the circuit court incorrectly excluded evidence of the lifeline violation.
Relevant evidence means “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.” Ark. R. Evid. 401. It is enough if the evidence reasonably shows that a fact is slightly more probable than it would appear without the evidence. Dooley v. Cecil Edwards Constr. Co., 13 Ark.App. 170, 681 S.W.2d 399 (1984). Here, the absence of a state-mandated lifeline had a tendency to make the hotel's liability for Mr. Bishop's death more probable. The violation of a government regulation is evidence of negligence. See C.J. Horner, Inc. v. Moore, 268 Ark. 1019, 597 S.W.2d 857 (Ark.App.1980). Further, as the trial court recognized, the purpose of a lifeline is to demarcate the shallow and deep ends of the pool and to provide a swimmer with something to grasp onto if necessary. Both of those considerations were pertinent to the issue of proximate cause in this case.
Proximate cause is generally a question of fact for the jury. Mitchell v. Ramsey, 2011 Ark. App. 9, 381 S.W.3d 74. Mrs. Bishop could reasonably have argued to the jury that her husband's foray into the deep end of the pool while carrying his son on his back could have been impeded or...
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