{ "id": 1753635, "name": "Linda Ann ELROD v. G & R CONSTRUCTION COMPANY", "name_abbreviation": "Elrod v. G & R Construction Co.", "decision_date": "1982-02-16", "docket_number": "81-104", "first_page": "151", "last_page": "158", "citations": [ { "type": "official", "cite": "275 Ark. 151" }, { "type": "parallel", "cite": "628 S.W.2d 17" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "261 Ark. 351", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678914 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/261/0351-01" ] }, { "cite": "30 Ark. L. Rev. 288", "category": "journals:journal", "reporter": "Ark. L. Rev.", "year": 1976, "opinion_index": 0 }, { "cite": "214 Ark. 657", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724522 ], "weight": 2, "year": 1949, "opinion_index": 0, "case_paths": [ "/ark/214/0657-01" ] }, { "cite": "378 F. 2d 171", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2025855 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/f2d/378/0171-01" ] }, { "cite": "232 Ark. 615", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1693999 ], "weight": 2, "year": 1960, "opinion_index": 1, "case_paths": [ "/ark/232/0615-01" ] }, { "cite": "251 Ark. 1036", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1633285 ], "weight": 2, "year": 1972, "opinion_index": 1, "case_paths": [ "/ark/251/1036-01" ] }, { "cite": "171 S.E. 2d 330", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 1 }, { "cite": "7 NC App. 84", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548228 ], "year": 1969, "opinion_index": 1, "case_paths": [ "/nc-app/7/0084-01" ] }, { "cite": "261 Ark. 351", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678914 ], "weight": 2, "year": 1977, "opinion_index": 1, "case_paths": [ "/ark/261/0351-01" ] }, { "cite": "378 F. 2d 171", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2025855 ], "year": 1967, "opinion_index": 1, "case_paths": [ "/f2d/378/0171-01" ] } ], "analysis": { "cardinality": 636, "char_count": 12915, "ocr_confidence": 0.839, "pagerank": { "raw": 1.7758008825173444e-07, "percentile": 0.7127622112331645 }, "sha256": "53684665289ff6fd31e6b7b29599ef21113ff651ab2892aa3746ae6c4f11c839", "simhash": "1:1664a0e6700703f6", "word_count": 2119 }, "last_updated": "2023-07-14T22:26:14.502720+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Purtle, Dudley and Hays, JJ., dissent.", "Adkisson, C.J., not participating.", "Purtle and Dudley, JJ., join." ], "parties": [ "Linda Ann ELROD v. G & R CONSTRUCTION COMPANY" ], "opinions": [ { "text": "John S. Cherry, Jr., Special Chief Justice.\nPlaintiff appeals from a jury verdict awarding her $5,000.00 compensatory damages and $1,000.00 punitive damages. She raises two issues on appeal. First, she urges reversal of the trial Court\u2019s refusal to allow her to go to the jury on two separate theories of recovery, i.e., respondeat superior and negligent entrustment. Second, she urges reversal of the trial Court\u2019s refusal to grant her motion for mistrial following an allegedly improper question of a witness by defense counsel. We affirm the trial Court\u2019s decision to allow the plaintiff to proceed on only the theory of respondeat superior, but reverse on other grounds.\nAt the time of the accident giving rise to this lawsuit, plaintiff, operator of a passenger vehicle, was stopped in a line of traffic that had developed because of a malfunctioning traffic light. Apparently, traffic was stopped in all directions and motorists were proceeding in-turn through the intersection. When it was plaintiff\u2019s turn to proceed, she moved forward too cautiously to suit the driver immediately behind her. Lemon Dye, who was immediately to plaintiff\u2019s rear, was operating a tractor-trailer owned by appellee and either pushed or struck plaintiff\u2019s vehicle from the rear with sufficient force to move it into the intersection so that Dye could effect a left turn. After striking or pushing plaintiff\u2019s vehicle into the intersection, Dye left the scene of the accident. However, a witness to the accident followed Dye to appellee\u2019s place of business. The witness advised G 8c R\u2019s superintendent of that accident and the superintendent and the witness went to the accident scene.\nPlaintiff, Linda Ann Elrod, sued Dye\u2019s employer, G & R Construction Company, for personal injuries. Plaintiff\u2019s complaint, as amended, sought recovery against G 8c R on two theories of liability and sought both compensatory and punitive damages under each theory. Plaintiff alleged that G 8c R was vicariously liable for Dye\u2019s negligent acts and willful and wanton conduct committed during the course and scope of his employment thereby entitling plaintiff to recover both compensatory and punitive damages. Plaintiff further alleged that she was entitled to compensatory and punitive damages against G 8c R because it either negligently or willfully and wantonly entrusted Dye with a motor vehicle to operate while employed by G 8c R.\nIn Chambers immediately prior to trial, G 8c R admitted that at the time of the accident complained of, Dye was its employee acting within the course and scope of his employment and further that G 8c R would be liable for any compensatory and/or punitive damages which the jury found plaintiff was entitled to recover. Following this admission, G 8c R moved to dismiss those portions of plaintiff\u2019s Amended Complaint which it sought to recover on the theory of negligent entrustment or willful and wanton entrustment. The Court granted this motion to dismiss as to plaintiff\u2019s second theory of recovery. Plaintiff made an offer of proof outside the hearing of the jury which offer consisted of Dye\u2019s traffic record over the last four years. The record indicated that Dye had been involved in some six motor vehicle accidents, two of which resulted in personal injury. The record also indicated that Dye had citations for failure to yield and unsafe operation of a vehicle unrelated to the accidents mentioned above. Dye\u2019s motor vehicle record did not indicate whether his negligence was the cause of any of the accidents referred to therein.\nFollowing argument of counsel, the trial Judge ruled that when the employer admits agency, course and scope of employment, and concedes liability for any damages which might be awarded for either the negligence or willful and wanton conduct of the employee, plaintiff could not pursue a separate claim of negligent or willful and wanton entrustment. Plaintiff recovered a jury verdict for $5,000.00 compensatory damages and $1,000.00 punitive damages.\nWhen a defendant denies liability, no problem is encountered by allowing a plaintiff to proceed under two consistent theories of recovery such as respondeat superior and negligent entrustment. Breeding v. Massey, 378 F. 2d 171 (8th Cir. 1967); Ozan Lumber Co. v. Neeley, 214 Ark. 657, 217 S.W. 2d 341 (1949). However, when defendant admits liability under one of plaintiff\u2019s theories of recovery such as respondeat superior, difficulties do arise and the authorities are divided on the issue whether plaintiff should be allowed to proceed on one or both theories. See Woods, Negligent Entrustment Revisited, 30 Ark. L. Rev. 288 (1976); 74 Am. Jur. 2d, Automobiles and Highway Traffic, \u00a7 643 (1980). In view of this Court\u2019s holding in Kyser v. Porter, 261 Ark. 351, 548 S.W. 2d 128 (1977), we are inclined to follow the majority view which allows plaintiff to proceed on only one theory of recovery in cases where liability has been admitted as to one theory of recovery. In Kyser, plaintiff sought to recover from the parents of a minor who permitted their son to operate a vehicle and plaintiff based his claim upon both statutory liability of a parent pursuant to Ark. Stat. Ann. \u00a7 75-315 (Repl. 1979) and negligent entrustment. Though there was no claim for punitive damages, parents conceded liability under 75-315 and the Court prohibited plaintiff from pursuing his theory of negligent entrustment. Plaintiff\u2019s tender of the driving record of the minor was excluded and we said:\nOur cases hold that a negligent entrustor, though guilty of a separate tort, is only liable to a third party for his entrustee\u2019s negligence, if any. (cases cited) Thus, in the case at bar, had the appellant been allowed to present any available evidence on this theory of negligent entrustment to the jury, the end result could only have been established, at best, that the [defendant] was liable, . . .\nAppellant argues that Kyser does not control because in that case, the Court was not presented with a claim for punitive damages. While appellant concedes that while Kyser represents a majority view, she urges that when a claim for punitive damages is made in connection with negligent entrustment, more Courts are accepting the view that plaintiff be allowed to proceed on both theories even when liability has been admitted.\nThe fact that appellee in this case admitted liability for both compensatory damages that might be awarded for its employee\u2019s negligent acts and punitive damages that might be awarded for its employee\u2019s willful and wanton misconduct distinguishes it from all those cases cited wherein both theories of recovery were allowed to be presented to the jury.\nIn this case, plaintiff was given the right to pursue her claim in its entirety, i.e., claims for both compensatory and punitive damages. Further in this case, plaintiff was allowed to introduce all proof that bore directly on her entitlement to recover both compensatory and punitive damages and the only evidence the trial court rejected was the prior driving-record of G 8c R\u2019s employee, Dye. The potential problems and possible prejudice that could be created by the introduction of a prior bad driving record in our view outweigh any possible advantages. Moreover, for plaintiff in this case to have been entitled to punitive as well as compensatory damages from G 8c R on the theory of negligent entrustment plaintiff would have had to have proved that G 8c R not only negligently entrusted the vehicle to Dye, but also that G 8c R had willfully and wantonly entrusted the accident vehicle to Dye. Even in light of Dye\u2019s prior bad driving record, we can only surmise that in some of those instances, he may have negligently operated his motor vehicle. There is nothing in the record or in the offer of proof consisting of Dye\u2019s prior bad driving record which would have put the employer on notice or conceivably enabled the employer to foresee that Dye would commit a willful and wanton act or possibly an intentional act.\nWe affirm the trial Court dismissing that portion of the Amended Complaint which sought to recover on negligent entrustment or willful and wanton entrustment adhering to the holding in Kyser and join the majority of courts that have dealt with this problem. However, we reverse the trial Court on the second issue raised by appellant.\nThe defense attorney, while questioning a witness who was a passenger in the plaintiff\u2019s car during the accident, said: \u201cI believe you settled your case for two thousand dollars.\u201d The plaintiff moved for a mistrial. The trial Court denied the motion and, instead, admonished the jury. The remark was uncalled for and undoubtedly prejudiced the plaintiff\u2019s case. The excuse is that the plaintiff opened the door by questioning the witness about the extent of her injuries. The door certainly was not opened enough to permit such a statement by defense counsel. It was a statement rather than a question and the defendant\u2019s purpose was obvious \u2014 the jury was meant to infer that $2,000.00 would be enough for the plaintiff. Offers of compromise or settlement are not admissible. Ark. Stat. Ann. \u00a7 28-1001, Rule 408 (Repl. 1979); 2 Weinstein\u2019s par. 408 [06] (1981).\nThe trial Court should have granted plaintiff\u2019s motion for a mistrial. Realizing that declaration of a mistrial is a drastic step, we feel that in this case no admonition of the jury by the Court would have been sufficient to eliminate any possible prejudice which might have resulted to plaintiff by the statement referring to the offer of settlement.\nReversed and remanded.\nPurtle, Dudley and Hays, JJ., dissent.\nAdkisson, C.J., not participating.", "type": "majority", "author": "John S. Cherry, Jr., Special Chief Justice." }, { "text": "Steele Hays, Justice,\nconcurring in part, dissenting in part. I disagree with that part of the majority opinion which denies to the plaintiff the right to introduce evidence of the driving history of an employee where punitive damages against the employer is an issue. The majority opinion purports to follow the majority view \u201cwhich allows the plaintiff to proceed on only one theory of recovery in cases where liability has been admitted as to one theory of recovery.\u201d But that does not reach the issue of this case at all. That issue was settled, sensibly, in Kyser v. Porter, 261 Ark. 351, 548 S.W. 2d 128 (1977). Butin Kyser, only compensatory damages were sought. Here the plaintiff is claiming punitive damages from the employer, based on allegations of wanton misconduct by the employer, so how can he be denied the opportunity to prove those allegations?\nWhere there is a valid claim against an employer, a parent or other entrustor for punitive damages in the wanton entrustment of a dangerous instrumentality to someone incompetent to justify that trust, the injured party is entitled to have the evidence supporting that theory submitted to the jury, if the evidence is such that reasonable minds could reach differing results. The exact issue presented here was decided affirmatively by United States District Judge Gordon E. Young in a thoughtful and well-reasoned opinion which the Court of Appeals for the Eighth Circuit upheld. See Breeding v. Massey, 378 F. 2d 171 (1967). To the same effect see Plummer v. Henry, 7 NC App. 84, 171 S.E. 2d 330 (1969). Both the District Court and the Court of Appeals in Breeding, after reviewing Arkansas decisions in the general fields of negligent entrustment and punitive damages expressed the conviction that the Arkansas Supreme Court would, if presented with the question, permit the issue of punitive damages to be submitted to the jury. We are not bound by those assumptions, of course, but the merit of their reasoning deserves at least the attention of the majority opinion.\nThe result reached here cannot be justified by the argument that a plaintiff cannot complain if he is compensated for all the damages caused by an employee, including punitive damages, for willful and wanton misconduct. The error of that lies in the rationale for punitive damages: such damages are recoverable in appropriate cases not to compensate the injured party but to exemplify the conduct of the wrongdoer. The purpose is to deter others from like conduct. Ray Dodge v. Moore, 251 Ark. 1036, 479 S.W. 2d 518 (1972); Dunaway v. Troutt, 232 Ark. 615, 339 S.W. 2d 613 (1960).\nThe effect of this decision is that no matter how culpable the conduct of one who entrusts to another the means of injury to third persons, such entrustor cannot incur direct liability for punitive damages and can prevent evidence of wanton misconduct from being considered by the jury by the simple expediency of admitting agency or entrustment. I can see no logic in this holding.\nPurtle and Dudley, JJ., join.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Steele Hays, Justice," } ], "attorneys": [ "Jacoway ir Sherman, by: William F. Sherman, for appellant.", "Laser, Sharp ir Huckabay, P.A., for appellee." ], "corrections": "", "head_matter": "Linda Ann ELROD v. G & R CONSTRUCTION COMPANY\n81-104\n628 S.W. 2d 17\nSupreme Court of Arkansas\nOpinion delivered February 16, 1982\nJacoway ir Sherman, by: William F. Sherman, for appellant.\nLaser, Sharp ir Huckabay, P.A., for appellee." }, "file_name": "0151-01", "first_page_order": 159, "last_page_order": 166 }