Dollar Gen. Corp. v. Elder

• Decision Date: 28 May 2020
• Docket Number: No. CV-18-313,CV-18-313
• Citation: Dollar Gen. Corp. v. Elder, 2020 Ark. 208, 600 S.W.3d 597 (Ark. 2020)
• Parties: DOLLAR GENERAL CORPORATION; Dolgencorp, LLC, d/b/a Dollar General; Caddo Trading Co., Inc. ; and Rodney Fagan and Judy Fagan, Appellants v. Karen ELDER, Appellee
• Court: Arkansas Supreme Court

2020 Ark. 208

600 S.W.3d 597

DOLLAR GENERAL CORPORATION; Dolgencorp, LLC, d/b/a Dollar General; Caddo Trading Co., Inc. ; and Rodney Fagan and Judy Fagan, Appellants

v.Karen ELDER, Appellee

No. CV-18-313

Supreme Court of Arkansas.

Opinion Delivered: May 28, 2020

Rehearing Denied July 23, 2020

Dover Dixon Horne PLLC, by: Todd Wooten and Carl "Trey" Cooper, for appellants.

The Applegate Firm, PLLC, Maumelle, by: Kayla M. Applegate and Ryan J. Applegate, for appellee.

COURTNEY RAE HUDSON, Associate Justice

Appellants Dollar General Corporation and Dolgencorp, LLC, d/b/a Dollar General (collectively "Dollar General"), Caddo Trading Co., Inc., and Rodney Fagan and Judy Fagan (collectively "the Landlords"), appeal the Montgomery County Circuit Court's August 8, 2017 judgment on jury verdict in favor of appellee Karen Elder ("Elder").¹ For reversal, appellants argue (1) the circuit court erred by not granting their motion for a directed verdict because Elder failed to prove that the sidewalk she slipped on was unreasonably dangerous; (2) the circuit court erred by not granting their motion for a directed verdict because Elder did not prove that the Landlords failed to maintain the sidewalk outside the store or failed to keep the premises in compliance with the Americans with Disabilities Act (ADA); (3) the circuit court abused its discretion as a matter of law by allowing a chiropractor to testify as an expert regarding the causal connection between Elder's fall and the treatment provided by other physicians; and (4) the circuit court abused its discretion by allowing Elder to give causation testimony regarding her treatments that were not rendered in temporal proximity to the occurrence of the accident. We affirm.

This case began at approximately 4:00 p.m. on June 10, 2010, when Elder, a registered nurse, went to purchase milk at the Dollar General store in Mt. Ida, Arkansas. It was raining that day, and the concrete outside was wet when Elder slipped and fell near the store's entrance. Fearing that others might slip in the same area, Elder reported her fall to Pam Bryant, who was the assistant manager of the store. Bryant completed a report. At that time, Elder had worked as a nurse with the Mt. Ida School District for approximately nine years.

Elder sought medical treatment the day after her fall, and she subsequently received treatment from a chiropractor, a neurologist, a neurosurgeon, and an orthopedic surgeon. Elder eventually underwent neck, back, and shoulder surgery. According to Elder, she has continuing pain in her neck and back. However, Elder did experience neck and back pain prior to the accident, and she had seen her chiropractor, Eric Carson, D.C., for treatment since 2004.

Elder filed a complaint against appellants on June 7, 2013, and an amended complaint on August 15, 2014. In the amended complaint, Elder alleged that she was injured when she slipped on the wet concrete at the entrance to the Dollar General store. Elder further alleged that she was a business invitee and that appellants had a duty to use reasonable care in maintaining their business premises; that appellants knew or should have known that the rain was causing the concrete at the outside entrance to become dangerously and unexpectedly slippery; and that if the appellants had used reasonable care to either post appropriate signs warning of the slippery concrete and/or ensure that mats were in place outside the entrance, her injury would not have occurred. Elder claimed that she was permanently disabled because of the fall and that she had sustained and will continue to sustain pain, medical expenses, permanent impairment, scars and disfigurement, and loss of earnings. Appellants answered and denied liability.

Less than three weeks before the trial, Elder supplemented her discovery responses to notify appellants that Carson planned to testify as to the cause of Elder's injuries, the reasonableness and necessity of her medical bills, and the permanency of her injuries. Thereafter, appellants filed a motion in limine in which they sought to exclude any causation testimony from either Elder or Carson. As to Carson, Dollar General and the Landlords argued that he was not qualified to provide causation testimony and that his proposed testimony conflicted with his prior deposition testimony. The circuit court denied the motion.

The jury trial was held from July 24 to July 27, 2017. At issue was whether appellants failed to maintain the premises in a reasonably safe condition and whether Elder's slip and fall caused the need for her medical treatment. Elder testified that she approached the entry from the right side and that it was misting rain that day. According to Elder, she was either jogging or slowly running to the entrance to escape the rain when the next thing she knew, she was lying on the ground. Elder believed that she had been briefly knocked unconscious. Elder recalled that the area where she fell was slick and that no mat was present. To establish that the concrete was unreasonably dangerous, Elder presented testimony from Bryant, the former assistant manager of Dollar General, who said that the area was slick and that she had seen at least four other people slip there, although not all of them fell all the way to the ground. Bryant testified that even she herself had slipped there. Bryant also testified that she had personally alerted three Dollar General district managers about the issue, along with Rodney Fagan, a landlord. Bryant recounted that Fagan advised her that it would be "taken care of." Elder recalled that Bryant expressed concern that someone would be injured in that area. Elder also presented expert testimony from Jennings. Jennings testified that he tested the concrete at the entrance and determined it to be unsafe and probable that an accident would occur. Both Bryant and Jennings testified that one part of the exterior concrete had a rough finish and that another part had a smoother finish.

In order to prove that the fall caused her injuries, Elder offered her own testimony and that of Carson. Elder testified over appellants’ objection that her medical expenses were reasonable and medically necessary. When Elder called Carson, appellants renewed their objection and argued that Carson was not a medical doctor and was not qualified to give expert testimony that the treatment the medical doctors provided was causally related to Elder's fall. Outside the presence of the jury, the circuit court conducted extensive voir dire to determine Carson's qualifications. After voir dire and arguments from counsel, the circuit court ruled that Carson could give expert testimony that Elder's injuries and need for medical care, including her surgeries, were caused by her fall. Thereafter, appellants moved for a continuance, but the circuit court denied the motion. Carson then testified before the jury that it was more probable than not that Elder's symptoms, injuries, and need for medical treatment were caused by her fall at Dollar General.

At the close of Elder's case, appellants moved for a directed verdict and argued that Elder did not introduce substantial evidence that the concrete was unreasonably dangerous or improperly maintained. The circuit court denied the motion. Appellants then presented their case. They offered testimony from orthopedic surgeon Owen Kelly, M.D., and neurologist Alonzo Burba, M.D. Kelly testified that he believed Elder's treatment needs were caused by degenerative conditions. Burba offered no opinion as to the cause of Elder's medical issues. Appellants also moved for directed verdict at the conclusion of all testimony. The circuit court denied that motion as well.

The case was submitted to the jury on interrogatories and it returned a $700,000 verdict. The jury also apportioned liability among the parties and assigned 22.5 percent of the fault to each Dollar General, Dolgencorp, Caddo Trading Co. Inc., and the Fagans. The jury found Elder to be 10 percent at fault. The $700,000 damages award was reduced to a judgment totaling $630,000 split equally between the four defendants. The circuit court entered judgment on the jury verdict on August 8, 2017. Appellants filed a motion for judgment notwithstanding the verdict or for a new trial that was deemed denied, and they filed a timely appeal of the judgment. Our court of appeals affirmed, and this court granted appellants’ petition for review. We consider the appeal as though it was originally filed in this court. Martin v. Smith , 2019 Ark. 232, 576 S.W.3d 32.

On appeal, appellants argue that (1) the circuit court erred by not granting their motion for a directed verdict because Elder failed to prove that the sidewalk she slipped on was unreasonably dangerous; (2) the circuit court erred by not granting their motion for a directed verdict because Elder did not prove that the Landlords failed to maintain the sidewalk outside the store or failed to keep the premises in compliance with the ADA; (3) the circuit court abused its discretion as a matter of law by allowing a chiropractor to testify as an expert regarding the causal connection between Elder's fall and the treatment provided by other physicians; and (4) the circuit court abused its discretion by allowing Elder to give causation testimony regarding her treatments that were not rendered in temporal proximity to the occurrence of the accident.

We first consider Elder's motion for a directed verdict. Our standard of review of the denial of a motion for directed verdict is whether the jury's verdict is supported by substantial evidence. Crawford Cty. v. Jones , 365 Ark. 585, 232 S.W.3d 433 (2006). Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Id. 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...