Ouachita Wilderness Institute, Inc. v. Mergen, 97-354

CourtSupreme Court of Arkansas
Writing for the CourtCORBIN; NEWBERN; GLAZE; BROWN
Citation947 S.W.2d 780,329 Ark. 405
PartiesOUACHITA WILDERNESS INSTITUTE, INC., Appellant, v. Mark MERGEN, Appellee,
Docket NumberNo. 97-354,97-354
Decision Date14 July 1997

Page 780

947 S.W.2d 780
329 Ark. 405
Mark MERGEN, Appellee,
No. 97-354.
Supreme Court of Arkansas.
July 14, 1997.

Page 783

[329 Ark. 410] Robert W. Bishop, Fort Smith, for Appellant.

Michael Hamby, Greenwood, for Appellee.

CORBIN, Justice.

This is an appeal by Appellant Ouachita Wilderness Institute, Inc. ("OWI"), who was found negligent and liable for damages to Appellee Mark Mergen's pickup truck, which had been taken by two juveniles who left OWI without authorization. Our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(a)(15) (as amended by per curiam July 15, 1996). We affirm.

[329 Ark. 411] Facts and Procedural History

Ouachita Wilderness Institute, Inc., operates as a juvenile rehabilitation camp housing juvenile offenders under Ark.Code Ann. § 9-28-203 (Repl.1995), directed by contract with Associated Marine Institute, Inc. ("AMI"), a contractor with the State of Arkansas Department of Human Services, Division of Youth Services. Appellee Mark Mergen, an employee of OWI, serves as an outdoor instructor. While working at OWI on December 24, 1995, Appellee placed his personal keys, which included the keys to his pickup truck, in his coat pocket. Appellee supervised a group of five juveniles while they cleaned the education building. During this time, one of those students took the keys from Appellee's coat pocket while the coat was left in the "team leaders" office, which was not locked. He later returned the key ring to Appellee's coat pocket. Appellee had no knowledge of the fact that his keys were taken.

Later that evening, the juveniles were in the dining hall watching movies. After a friend came to visit, Appellee left the area to submit a request for time off in the administration building next door. Upon his return, he noticed two juveniles were missing. The other supervisor, Cliff Roach, helped in trying to locate them. During the search, Appellee noticed his pickup truck was missing. He checked his key ring and found his truck keys were missing. The two juveniles had taken the pickup truck and were later involved in a high-speed police chase, which terminated when the truck crashed and was totalled. Appellee sued Appellant, AMI, and Eddie Prevost, the Executive Director of OWI. The trial court granted summary judgment to AMI prior to trial. A jury found Appellant negligent and awarded Appellee $26,400.

On appeal, Appellant argues the trial court erred as follows: (1) In failing to grant its motion for directed verdict; (2) in refusing to give its requested jury instruction on assumption of risk; (3) in instructing the jury that the measure of damages included incidental expenses; and (4) in failing to dismiss the complaint on a theory of charitable immunity.

[329 Ark. 412] Motion for Directed Verdict

Appellant argues that the trial court erred in failing to grant its motion for directed

Page 784

verdict on the following bases: (1) Appellee's failure to establish a case of negligence concerning the duty of Appellant to provide a safe workplace for Appellee; (2) Appellee's failure to establish that any negligence of Appellant was the proximate cause of Appellee's damages; and (3) the evidence established Appellee's fault to be greater than fifty percent.

Our standard of review of the denial of a motion for directed verdict is whether the jury's verdict is supported by substantial evidence, which is evidence that goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Southern Farm Bureau Casualty Ins. v. Allen, 326 Ark. 1023, 934 S.W.2d 527 (1996). It is not our province to try issues of fact, we simply review the record for substantial evidence to support the jury's verdict. Id. In determining whether there is substantial evidence, we view the evidence in the light most favorable to the party against whom the verdict is sought and give the evidence its strongest probative force. Id.

To establish a prima facie case in tort, a plaintiff must show that damages were sustained, that the defendant was negligent, and that such negligence was a proximate cause of the damages. Id. Negligence is the failure to do something which a reasonably careful person would do and a negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. Id. While a party can establish negligence by direct or circumstantial evidence, that party cannot rely on inferences based on conjecture or speculation. Id.

Appellant first argues that the employer in this case owed no duty to Appellee. Appellee claimed that Appellant was negligent and should have provided a secure place for Appellee's keys, provided more supervision for its juveniles, locked the gate on the premises, and immediately notified the state police after the students were found to be missing. Appellant argues that there is no law creating a duty for employers to perform these acts.

[329 Ark. 413] Appellant also argues that the Fireman's Rule applies in this case, as the risk is one in which the employee has a duty to accept. The Fireman's Rule (also known as the professional-rescuer doctrine) generally provides that a professional firefighter may not recover damages from a private party for injuries the fireman sustained during the course of putting out a fire even though the private party's negligence may have caused the fire and injury. Waggoner v. Troutman Oil Co., Inc., 320 Ark. 56, 894 S.W.2d 913 (1995). The Fireman's Rule has been justified based on public policy considerations, because the purpose of the firefighting profession is to confront danger. Id. Public policy would be violated if a citizen was said to invite private liability merely because he happened to create a need for public services. Id.

Although Appellant's assertion that it had no duty to protect Appellee's property may have merit, we do not decide the issue because Appellant failed to clearly set out the theory of duty in its motion for directed verdict. At trial, Appellant did not elect to put on a defense. At the conclusion of Appellee's case, Appellant's counsel stated:

Defendants move for directed verdict, and I'm going to follow it with reasons, your Honor. The plaintiff has failed to establish a negligence case. The plaintiff has failed to establish that any possible negligence was a proximate cause of the plaintiff's damages. The evidence clearly establishes, as a matter of law, there was an intervening cause which caused the damages to Plaintiff's vehicle. Finally, the evidence establishes that the plaintiff's fault was greater than fifty percent.

Rule 50(a) of the Arkansas Rules of Civil Procedure provides in part that "[a] motion for a directed verdict shall state the specific grounds therefor." The purpose of this requirement is to assure that the specific ground for a directed verdict is brought to the trial court's attention. Stacks v. Jones, 323 Ark. 643, 916 S.W.2d 120 (1996). In order to preserve for appeal the issue of sufficiency of the evidence, the party moving for a directed verdict must state the specific

Page 785

ground upon which it seeks such relief. Houston v. Knoedl, 329 Ark. 91, 947 S.W.2d 745 (1997); Stroud Crop, Inc. v. Hagler, 317 Ark. 139, 875 S.W.2d 851 (1994). Failure to state the specific grounds for relief in a directed verdict [329 Ark. 414] motion precludes this court's review of such issue on appeal. Stacks, 323 Ark. 643, 916 S.W.2d 120. Merely stating that the plaintiff failed to establish a negligence case is not sufficient to apprise the trial court of the particular proof alleged to be missing.

The argument pertaining to the Fireman's Rule is also mentioned by Appellant for the first time on appeal. We will not address arguments raised for the first time on appeal. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). If a particular theory is not presented at trial, the theory will not be reached on appeal. Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). We thus summarily dispose of appellant's arguments on the issue of duty because the abstract does not reflect that such theory was ever presented to or ruled on by the trial court.

Appellant did, however, specifically argue that the evidence failed to establish that any negligence of Appellant was the proximate cause of damages and that the evidence showed that Appellee's fault was greater than fifty percent. When the existence of evidence, and all the reasonable inferences therefrom, created a question for the jury, the trial court properly denied appellant's motion for directed verdict. McGraw v. Weeks, 326 Ark. 285, 930 S.W.2d 365 (1996). Proximate cause is usually an issue for the jury to decide, and when there is evidence to establish a causal connection between the negligence of the defendant and the damage, it is proper for the case to go to the jury. Id. Arkansas is a comparative fault state, as provided in Ark.Code Ann. § 16-64-122 (Supp.1995), and this case proceeded under that theory. Under the comparative fault statute, there must be a determination of proximate cause before any fault can be assessed against a claiming party. Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257 (1996). Proximate cause becomes a question of law only if reasonable minds could not differ. Id. Proximate cause is defined as "that which in a natural and...

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