Garner v. Kees, 92-234

• Decision Date: 08 March 1993
• Docket Number: No. 92-234,92-234
• Citation: Garner v. Kees, 848 S.W.2d 423, 312 Ark. 251 (Ark. 1993)
• Court: Arkansas Supreme Court
• Parties: Willie May GARNER; Dovie Nowlin; Nyla Beard and Mary Belle Anderson, Appellants, v. Stafford G. KEES, Jr.; Southern Nursing Home, A Partnership; Barbara Crowder; Sandra Enlow; and Janice Roark, Appellees.

Page 423

848 S.W.2d 423

312 Ark. 251

Willie May GARNER; Dovie Nowlin; Nyla Beard and Mary Belle Anderson, Appellants, v.Stafford G. KEES, Jr.; Southern Nursing Home, A Partnership; Barbara Crowder; Sandra Enlow; and Janice Roark, Appellees.

No. 92-234.

Supreme Court of Arkansas.

March 8, 1993.

Bell & Associates, Harvey L. Bell, John M. Belew, Little Rock, for appellants.

Matthews, Sanders, Liles & Sayes, Marci Talbot Liles, Little Rock, for appellees.

HAYS, Justice.

This is the appeal from a verdict in favor of the defendants in a suit for the tort of outrage.The appellants are four daughters of Mrs. Mamie Ashlock, deceased.Appellees are the Southern Nursing Home, its owner, administrator, director of nursing and dietary manager.

The lawsuit giving rise to this appeal was brought by daughters of Mamie Ashlock and by her estate.Mrs. Ashlock was a patient at the defendant nursing home when she died.She was admitted to the nursing home on December 3, 1987, and died on April 6, 1988.Because she was a diabetic, Mrs. Ashlock was limited in her intake of sugar.

Appellants originally brought an action against appellees for, a) wrongful death based on the fact that sugar packets were found by the daughters in pockets of Mrs. Ashlock's wheelchair, b) negligence in the treatment of Mrs. Ashlock while she was a patient at the nursing home, c) breach of the contract providing for the care, and d) for the tort of outrage.The named defendants were Stafford Kees, the owner of the nursing home, Barbara Crowder, the head nurse, Sandra Enlow, the dietician, Janice Roark, the nursing home administrator, and the nursing home itself.The trial court granted a motion to dismiss for lack of venue for all causes of actions except the tort of outrage and the case proceeded to trial on the remaining cause of action.

The basis of the claim of outrage was that when Sandra Enlow and Barbara Crowder had visited the funeral home, Ms. Enlow placed a sugar packet in Mrs. Ashlock's casket.Ms. Enlow claimed she did this out of affection for Mrs. Ashlock because Mrs. Ashlock always wanted real sugar instead of the "Sweet'n Low"she was allowed to have.Enlow explained that she and Mrs. Ashlock had a continuing dialogue regarding real sugar versus the "pink stuff."Appellants claimed this act was malicious and caused them severe distress.A jury found in favor of the defendants.Appellants have appealed from the judgment entered on the verdict, challenging three evidentiary rulings by the trial judge.Finding no error, we affirm the judgment.

A motion in limine was filed by appellees regarding evidence appellants intended to introduce concerning alleged wrongful acts by the nursing home staff against patients.The trial judge preliminarily ruled that any alleged mistreatment of patients other than Mrs. Ashlock or occurring prior to her admittance into the home would not be admissible.Only conduct toward Mrs. Ashlock and her family would be allowed, but appellants could proffer any evidence they wished to introduce at trial and he would make a final ruling at that time.

Appellees had alleged Sandra Enlow placed the sugar packet in the coffin out of affection, and appellants were allowed to introduce evidence of treatment of Mrs. Ashlock to rebut this motive.Appellants claim on appeal that tendered exhibits one through six should also have been allowed under A.R.E. Rule 404(b).Rule 404(b) provides:

Other Crimes, Wrongs, or Acts.Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that they acted in conformity therewith.It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Appellants' exhibits have a common failing.These documents concern patients other than Mrs. Ashlock and were written during a time when she was not a patient.They are simply not relevant to any type of motive on the part of the staff regarding Mrs. Ashlock or her family.Evidence allowed under Rule 404(b) must be relevant and its probative value must outweigh the danger of unfair prejudice.These exhibits, 1, 3, 4, 5, and 6, lack relevance and would only serve to inflame the jury.

Only one exhibit, number 2, was written during Mrs. Ashlock's stay at the home.It is a letter, dated February 4, 1988, from Mr. Kees (the owner) to Dr. Don Howard(the medical director) informing him that another doctor had been selected for many of the patients.The letter was admitted into evidence except for one line stating that "I am not going to allow the nursing home to be found out of compliance," which was deleted.Arguably, the entire letter lacks relevance, but certainly the deletion of the quoted excerpt cannot be seriously challenged.As appellees point out, the nursing home was found to be in noncompliance in March of 1987, almost a year before Mrs. Ashlock was admitted as a patient.The overall problem with these exhibits is that they were remote in time, did not concern Mrs. Ashlock or the appellants and were clearly prejudicial.It appears the appellants were attempting to introduce evidence of the nursing home's mistreatment and dereliction in the care of its patients in order to generally discredit the appellees.It was not an abuse of the trial court's discretion to disallow the proffered evidence.At issue were Sandra Enlow's attitude and actions toward Mrs. Ashlock and her family.None of the exhibits contained any allegations regarding Sandra Enlow...