Wallace v. Broyles

• Decision Date: 15 January 1998
• Docket Number: No. 97-170,97-170
• Citation: 331 Ark. 58,961 S.W.2d 712
• Parties: , 332 Ark. 189, 124 Ed. Law Rep. 739 Jacqueline WALLACE, Individually and as the Administrator of the Estate Of Larry Shannon Wright, Appellant, v. J. Frank BROYLES, Individually; Dean Weber, Individually; James Woody Woodell, Individually; Harp's Food Stores, Inc., Dr. John P. Park, Dr. Tom Philip Coker, Dr. Tom Patrick Coker, Dr. Walter "Duke" Harris, and Ozark Orthopaedic Sports Medicine Clinic, Ltd., Appellees.
• Court: Arkansas Supreme Court

Page 712

961 S.W.2d 712

331 Ark. 58, 332 Ark. 189, 124 Ed.

Law Rep. 739

Jacqueline WALLACE, Individually and as the Administrator of the Estate Of Larry Shannon Wright, Appellant, v. J. Frank BROYLES, Individually; Dean Weber, Individually James Woody Woodell, Individually; Harp's Food Stores Inc., Dr. John P. Park, Dr. Tom Philip Coker, Dr. Tom Patrick Coker, Dr. Walter "Duke" Harris, and Ozark Orthopaedic Sports Medicine Clinic, Ltd., Appellees.

No. 97-170.

Supreme Court of Arkansas.

Jan. 15, 1998.

Opinion Denying Rehearing March 5, 1998.

Joey McCutcheon, Fort Smith, Gary L. Richardson, Chad R. Richardson, Tulsa, for Appellant.

Constance G. Clark, Walter B. Cox, Woody Bassett, Fayetteville, Angela Jegley, Assistant Attorney General, Jeffrey A. Bell, Associate General Counsel, Little Rock, for Appellees.

GLAZE, Justice.

Shannon Wright was a varsity football player at the University of Arkansas who died of a self-inflicted gunshot wound on October 13, 1993. Shannon's mother, Jacqueline Wallace, filed suit on March 10, 1995, and an amended complaint on May 11, 1995, against the nine defendant-appellees, alleging that their negligent, wilful, wanton and malicious acts caused Shannon's death. ¹

In her complaint, Wallace alleged that controlled substances were stored and dispensed from the Broyles Athletic Complex without a proper registration from the Drug Enforcement Agency (DEA). Wallace asserted that, through the DEA registration of defendant-appellee Dr. John Park, defendant-appellee Dean Weber and others placed orders for Tylenol # 3, Darvocet and other drugs through defendant-appellees James Woodell and Harp's Food Stores, and they had these controlled substances delivered to the athletic department at the University. Wallace further alleged that, over a fifteen-month period between November 1992 and January 1994--relevant to when and immediately after Shannon played football--the Arkansas State Police and DEA conducted an audit of these controlled substances purchased by the athletic department. Their audit was alleged to reveal that 13,079 dosage units had been purchased and dispensed, but only 3,352 dosage units could be documented and accounted for. Wallace also charged that the controlled substances were kept in an unlocked metal cabinet in the athletic training room and that University employees and athletes obtained controlled substances from the athletic department without prescriptions, labels, instructions or warnings as to dangers or side effects. Wallace's complaint further alleged that defendant-appellees Drs. Tom Philip Coker, Tom Patrick Coker, and Walter Harris, through defendant-appellee Ozark Orthopaedic Clinic, authorized Weber to dispense controlled drugs to athletes; they kept no accurate records on the dosage units dispensed; and they failed to attend rehabilitation sessions of injured athletes.

Wallace further claimed that the foregoing improper dispensing of controlled substances took place even though, as early as June 1992, the NCAA had issued guidelines to defendant-appellees Frank Broyles, Director of Athletics, and Dean Weber, Head Athletic Trainer, providing that physicians could not delegate the authority to dispense prescription medications to athletic trainers. Even though these guidelines and warnings concerning possible dangers to athletes were given to University personnel, Wallace alleged no action was taken to avoid those dangers or to comply with the guidelines. Wallace specifically stated that Broyles and Weber knew or should have known of the potential harm to the athletes, but instead they proceeded with conscious indifference to the possibility of injury to student athletes and others.

Finally, Wallace alleged that Shannon sustained a severe shoulder injury during a football game on September 11, 1993, which later resulted in his undergoing extensive physical therapy treatments and taking heavy dosages of Darvocet supplied by University personnel and others without advice or warning of the drug's potentially dangerous side effects or of dangerous interactions with other drugs. Wallace's complaint concluded with allegations asserting that Broyles's and Weber's conduct, which proximately caused Shannon's death, was negligent, malicious, wilful and wanton, because among other things, they knew of the illegal dispensing of drugs in the athletic training room and knew of its danger to athletes. Wallace further concluded that Drs. Park, Tom Philip Coker, Tom Patrick Coker, Harris and the Ozark Orthopaedic Clinic were negligent in illegally dispensing narcotics with dangerous side effects, and that Shannon One year after the filing of Wallace's amended complaint, the appellee doctors and the Ozark Orthopaedic Clinic filed a motion for summary judgment wherein they claimed no credible evidence existed upon which a jury could find Shannon had consumed any Darvocet prior to his suicide on October 13, 1993. Moreover, they claimed that Joe T. Barnes, a toxicologist, determined that there was no evidence that Shannon had any Darvocet or other drug except alcohol in his system at the time of his death. The appellee doctors asserted it was undisputed that Shannon, upset over breaking up with his girlfriend, Kit Carson, committed suicide after consuming large quantities of alcohol. Finally, the doctors submitted an affidavit given by Dr. Don McMillan, Chairman of the University Pharmacy and Toxicology Department, wherein McMillan averred that, based upon Barnes's test, no Darvocet was found in Shannon's body at the time of death. McMillan opined no depressive effect could have been present from Darvocet even if the drug had been consumed by Shannon prior to the forty-eight-hour period preceding his death.

was given and he consumed such drugs, causing his death.

One day after the doctors filed the motion for summary judgment, Woodell and Harp's Food Stores filed theirs, also claiming that there was no evidence that Shannon had taken Darvocet prior to his suicide or that any of the defendants had provided Darvocet to Shannon. Subsequently, Broyles and Weber separately filed motions for summary judgment that essentially adopted the defenses asserted in the earlier summary judgment motions. Broyles added that, under Ark.Code Ann. § 19-10-305(a) (Repl.1994), he is a state employee and immune from suit and civil liability for damages, from acts or omissions, other than malicious acts or omissions, occurring within the course and scope of his employment, except to the extent that he may be covered by liability insurance. Because he had no liability insurance coverage, Broyles asserted he was statutorily immune from suit and liability. In his summary judgment motion, Weber also adopted the defenses contained in the other defendants' motions, but like Broyles, claimed statutory immunity. However, because Weber conceded having insurance coverage, he claimed immunity except to the extent of his coverage.

On October 18, 1996, the circuit court undertook review of the defendant-appellees' motions for summary judgment, plaintiff-appellant's responses, along with the parties' respective, numerous pleadings, affidavits, depositions and exhibits, and after doing so granted the defendant-appellees' motions. First, the trial court dismissed suit with prejudice against Broyles, finding him to be a state employee who enjoyed statutory immunity from tort liability, since he had no insurance coverage and there was no evidence of malicious acts or conduct on Broyles's part. Second, the court found Weber a state employee and, as such, immune from suit, since there was no evidence of malice on his part. However, because Weber had liability insurance, the court found suit could lie against Weber to the extent of his insurance coverage, provided there was evidence showing he had been negligent. The circuit court next dismissed with prejudice the plaintiff-appellant's suit against all defendant-appellees, finding no evidence of negligence and stating its reasons as follows:

(1) There is no evidence before the court upon which reasonable minds could differ that [Shannon] consumed any significant amount of Darvocet prior to his suicide on October 13, 1993.

(2) There is no evidence before the court upon which reasonable minds could differ that Darvocet, even if consumed by [Shannon], caused or contributed to [his] suicide on October 13, 1993.

(3) There is no evidence before the court upon which reasonable minds could differ that any act or omission of any of the defendants caused or contributed to [Shannon's] suicide on October 13, 1993.

We initially point out the trial court's use of the wrong standard when deciding to grant summary judgment. As discerned from the foregoing findings, the trial court determined there was no evidence upon which reasonable minds could differ that Shannon consumed any significant amount of Darvocet prior to Shannon's suicide, or In its oral findings, the trial court also said that there is no evidence of any malice, and if there is any evidence, reasonable minds could not differ as to the conclusions to be drawn that there was no malice shown. (Emphasis added.) In addition, the trial court further held that "there is no evidence, sufficient evidence, to show that the actions of the defendants proximately caused [Shannon's] suicide because there is no evidence that reasonable minds could differ to the fact that he was using Darvocet at the time of his suicide, which was the proximate cause of that suicide." The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1992). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a...