R&L Carriers Shared Services, LLC v. Markley

Cite as 2017 Ark. App. 240

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-16-39

R&L CARRIERS SHARED SERVICES, Opinion Delivered: APRIL 19, 2017
LLC and DEAN WETHINGTON
APPELLANTS APPEAL FROM THE MADISON
COUNTY CIRCUIT COURT
V. [NO. 44CV-2014-029-5]

STUART MARKLEY and MADISON HONORABLE BETH BRYAN,
COUNTY TELEPHONE COMPANY, JUDGE
INC.
APPELLEES
AFFIRMED

LARRY D. VAUGHT, Judge

This is an appeal from a negligence action involving an eighteen-wheeler that hit a

telephone line and injured a worker repairing the line. In this appeal, we consider whether

the worker’s employer can be liable for negligence under the theory of implied indemnity.

We also review several alleged evidentiary errors and decide whether the circuit court erred

by refusing to grant a motion for judgment notwithstanding the verdict (JNOV) or

alternatively for a new trial. We affirm.

I. Background

This case begins with a low-hanging telephone line that stretched across the entry to

Roy’s Body Shop in Madison County, Arkansas. Madison County Telephone Company,

Inc. (MCTC), dispatched its employee Stuart Markley to repair the low-hanging line.

Markley worked from the raised bucket of a work truck to repair the line. He was not
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wearing a safety harness, and he did not put out any warning cones to alert others to his

presence.

During this time, Dean Wethington, in the scope of his employment with R&L

Carriers Shared Services, LLC (R&L), was making a delivery to Roy’s Body Shop in an

eighteen-wheeler. While driving the eighteen-wheeler into the entrance of Roy’s Body

Shop, Wethington’s truck snagged the low-hanging telephone line that Markley was

repairing. This set off a chain of events that left Markley severely injured.

Markley sued Wethington and R&L for negligence and recklessness. R&L and

Wethington responded and alleged comparative fault by Markley. Specifically, they

emphasized Markley’s failure to abide by certain National Electric Safety Code (NESC) and

Occupational Safety and Health Administration (OSHA) regulations as well as Arkansas

statutes. R&L also filed a third-party complaint against MCTC, Roy’s Body Shop, and its

owner, Roy Elsey. 1

In its third-party complaint against MCTC, R&L claimed that MCTC’s negligent

supervision and training of Markley contributed to Markley’s injuries and that MCTC failed

to perform some of its statutory and regulatory responsibilities. MCTC filed a motion to

dismiss R&L’s complaint against it on the basis that, because it had paid workers’-

compensation benefits to Markley, it could not be liable for negligence. R&L responded by

arguing that MCTC could be held liable under the theory of implied indemnity. The

circuit court denied MCTC’s motion to dismiss. At this juncture, MCTC and R&L filed

competing motions for summary judgment on the issue of whether MCTC had an implied

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Roy Elsey and Roy’s Body Shop were dismissed from the case without prejudice.
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duty to indemnify R&L. The circuit court denied MCTC’s motion and took R&L’s

motion under advisement. It also severed the negligence and indemnity claims and

bifurcated the trial.

The issues between R&L, Wethington, and Markley were tried to a jury in July

2015. The jury returned a verdict in favor of Markley, finding that he was 35 percent

negligent and that R&L and Wethington were 65 percent negligent. It found that Markley’s

damages were $570,000, resulting in a judgment against R&L and Wethington in the

amount of $370,500.

Following the entry of the judgment, R&L and Wethington filed a motion for

JNOV or alternatively for a new trial. The motion was based on the premise that the jury’s

verdict was not based on substantial evidence and that the circuit court committed

evidentiary errors. The motion was deemed denied.

MCTC also filed a second motion for summary judgment on the issue of implied

indemnity. R&L’s competing motion was still under advisement. After a hearing, the circuit

court granted MCTC’s motion and found that MCTC did not have a duty to indemnify

R&L. The circuit court also denied R&L’s motion for summary judgment. The circuit

court entered an order and certification of final judgment, and this appeal by R&L and

Wethington followed.

On appeal, R&L and Wethington argue that the circuit court (1) erroneously granted

summary judgment to MCTC, (2) erred in denying their motion for JNOV or a new trial,

and (3) committed evidentiary errors.

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II. Summary Judgment

Summary judgment is appropriate where “the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party is entitled to judgment as

a matter of law.” Ark. R. Civ. P. 56(c). A circuit court’s conclusion on a question of law

is reviewed de novo and is given no deference on appeal. Crafton, Tull, Sparks & Assocs. v.

Ruskin Heights, LLC, 2015 Ark. 1, 453 S.W.3d 667. And when the parties agree on the

facts, the appellate court simply determines whether the appellee was entitled to judgment

as a matter of law. Id. When parties file cross-motions for summary judgment, as they did

in this appeal, they essentially agree that there are no material facts remaining, and summary

judgment is an appropriate means of resolving this case. Id.

Our charge is to determine whether the circuit court erred in ruling that MCTC

was not liable to R&L on the basis of implied indemnity. In seeking resolution of this issue,

the parties posed two overarching questions to the circuit court. First, the circuit court

must consider whether there was a special relationship between MCTC and R&L to give

rise to a duty of implied indemnity. If a special relationship exists, the circuit court considers

whether an indemnitee can recover from an indemnitor for the indemnitee’s own

negligence. We focus our review on whether a special relationship existed. Because we

conclude that MCTC did not have a special relationship with R&L, we affirm without

reaching the merits of the second argument raised by the parties.

The Arkansas Workers’ Compensation Act, codified at Arkansas Code Annotated

sections 11-9-101 et seq. (Repl. 2012 & Supp. 2015), provides for the payment of disability

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benefits to workers who suffer an injury in the course of their employment. The Act

provides that an employer cannot be sued or joined by a third party as a joint tortfeasor.

Ark. Code Ann. § 11-9-105. However, there is a recognized exception to the exclusivity

of the workers’-compensation remedy when there is a contract or special relationship

capable of carrying with it an implied obligation to indemnify. Mosley Mach. Co., Inc. v.

Gray Supply Co., 310 Ark. 214, 833 S.W.2d 772 (1992). Implied indemnity is an equitable

remedy. Id. A special relationship may be created by operation of law when statutes or

regulations govern an employer’s conduct. Smith v. Paragould Light & Water Comm’n, 303

Ark. 109, 793 S.W.2d 341 (1990).

R&L argues that OSHA and NESC regulations as well as Arkansas statutes give rise

to a special relationship between it and MCTC. The relevant statutes and regulations placed

several obligations on MCTC. MCTC is required to construct, operate, and maintain its

telephone lines in a safe and reasonable condition. MCTC must also keep its lines free and

clear of roadways and public areas over which they hang. Additionally, MCTC has a duty

to properly supervise and train its employees. However, these statutory and regulatory

duties differ from the duties imposed in cases where our supreme court has held that there

is a special relationship giving rise to an implied duty to indemnify.

Smith v. Paragould Light & Water Commission, 303 Ark. 109, 793 S.W.2d 341 (1990)

and Intents, Inc. v. Southwestern Electric Power Co., 2011 Ark. 32, 376 S.W.3d 435 are

particularly instructive in highlighting the distinction. In Smith, a contractor sought

indemnity from a water commission after an employee had been killed digging a trench to

connect a sewer line. Our supreme court held that the “Tapping of Sewers” statute, codified

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at Arkansas Code Annotated section 14-235-305 (Repl. 1998), which provides that a

municipality shall regulate the terms, time, and manner with which parties may tap sewers,

created a special relationship between the contractor and the water commission. Smith, 303

Ark. at 113, 793 S.W.2d at 343. In Intents, employees injured by voltage from a utility line

sued the utility company, and the utility company sought recovery from the employer of

the injured workers under a theory of implied indemnity. Our supreme court held that the

Work Near High Voltage Lines Act, an act codified at Arkansas Code Annotated section

11-5-307 that requires anyone working near high-voltage lines to notify the utility company

of the work, created a special relationship giving rise to an employer’s implied duty to

indemnify. Intents, 2011 Ark. at 12, 376 S.W.3d at 442.

In each of these cases, the statutes or regulations imposed on the indemnitor a specific

and supervisory duty over the indemnitee. No such relationship exists here. The relevant

statutes and safety regulations that MCTC is said to have violated merely create a duty of

safety to the public and MCTC’s employees. Assuming arguendo that a duty of safety to the

public gave rise to a special relationship between R&L and MCTC, MCTC could

potentially be liable to every member of the public for implied indemnity. Accordingly,

we affirm the circuit court’s grant of summary judgment to MCTC and hold that there was

no special relationship between MCTC and R&L that gave rise to an implied duty to

indemnify.

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III. The JNOV and Motion for New Trial

Here, R&L and Wethington 2 challenge the circuit court’s denial of their motion for

JNOV or alternatively for a new trial. The crux of appellants’ argument is that because

Markley’s damages were not foreseeable, appellants could not have been negligent.

The standard of review of the denial of a motion for JNOV is whether the jury’s

verdict is supported by substantial evidence. Stewart Title Guar. Co. v. Am. Abstract & Title

Co., 363 Ark. 530, 537, 215 S.W.3d 596, 601 (2005). Similarly, the standard of review of

the denial of a motion for new trial on the issue of liability is whether the jury’s verdict is

supported by substantial evidence. Pearson v. Henrickson, 336 Ark. 12, 983 S.W.2d 419

(1999). Substantial evidence goes beyond suspicion or conjecture and is sufficient to compel

a conclusion one way or the other. Ethyl Corp. v. Johnson, 345 Ark. 476, 49 S.W.3d 644

(2001).

To sustain an action for negligence, there must be proof “that the defendant owed a

duty to the plaintiff, that the defendant breached that duty, and that the breach was the

proximate cause of the plaintiff’s damages.” Lloyd v. Pier W. Prop. Owners Ass’n, 2015 Ark.

App. 487, at 4, 470 S.W.3d 293, 297. Negligence occurs “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.” White River Rural Water

Dist. v. Moon, 310 Ark. 624, 626, 839 S.W.2d 211, 212 (1992). Foreseeability is a necessary

component of negligence. Ethyl Corp., supra. The actor need not foresee the particular

2
For the remaining points on appeal, we refer to R&L and Wethington as appellants.
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injury that occurs, but foreseeability requires that the harm be “within the range of

probability as viewed by the ordinary man.” Id. at 482, 49 S.W.3d at 648.

Appellants argue that there was no indication to Wethington that someone would

be injured by his attempt to drive under the low-hanging line. We disagree. Although

Wethington testified that he did not see Markley until after the accident had occurred and

that the evidence showed that there were no warnings to indicate that work was being done

to the line, there is substantial evidence to establish that Wethington foresaw danger.

Wethington admitted seeing a low-hanging line and understood it was possible that

someone could be hurt if the line became caught on his truck. Wethington also admitted

seeing the bucket truck. Although the precise harm that resulted may not have been

foreseeable to Wethington, there was substantial evidence of an appreciable risk of harm.

Accordingly, we affirm the circuit court’s denial of the motion for JNOV or alternatively

for a new trial.

IV. Evidentiary Errors

Appellants also challenge three evidentiary rulings made by the circuit court. They

argue that the circuit court erred by (1) excluding testimony about Markley’s receipt of

workers’-compensation benefits, (2) not allowing the introduction of the deposition

testimony of Joe Shrum, and (3) allowing testimony that Markley’s hypothetical compliance

with safety-harness regulations would have led to more serious injuries or even death. In

reviewing these alleged evidentiary errors, our court will not overturn an evidentiary ruling

absent clear error or a manifest abuse of discretion. Kapach v. Carroll, 2015 Ark. App. 466,

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468 S.W.3d 801. Additionally, an erroneous evidentiary ruling is not grounds for reversal

absent a showing of prejudice. Id.

A. Workers’-Compensation Benefits

First, appellants contend that the circuit court erred by refusing to allow them to

question Markley about his workers’-compensation benefits. Generally, “the collateral-

source rule prohibits the admissibility of evidence showing that an injured person received

payments from another source.” Wal-Mart Stores, Inc. v. Kilgore, 85 Ark. App. 231, 239,

148 S.W.3d 754, 759 (2004). However, testimony regarding collateral sources may be

introduced to rebut testimony that one was compelled by financial necessity to return to

work prematurely or to forgo additional medical care or to impeach testimony that one paid

his or her own medical expenses. Id. at 240, 148 S.W.3d at 760. “When a party testifies

about his or her financial condition in a false or misleading manner, he or she opens the

door for the introduction of evidence which might otherwise be inadmissible under the

collateral source rule.” Babbitt v. Quik-Way Lube & Tire, Inc., 313 Ark. 207, 210, 853

S.W.2d 273, 275 (1993).

Appellants argue that Markley opened the door to questions about his workers’-

compensation benefits. The relevant testimony occurred when Markley was asked whose

idea it was for him to return to work. He replied that it was his idea to return to work

because he was going to have bills to pay. Appellants claim that Markley’s statement fits

squarely into the exception allowing collateral-source testimony when one testifies that

financial necessity required that he or she return to work.

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Markley responds by arguing that this statement was too vague for the exception to

apply, and we agree. The circuit court is in the best position to judge whether testimony

indicated that Markley was compelled by financial necessity to return to work prematurely

and whether it was misleading. Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997). With

this standard in mind, we hold that the circuit court did not abuse its discretion by refusing

to allow this questioning.

Furthermore, we hold that any error that could have stemmed from this ruling was

rendered harmless by later events at trial. Based on later testimony, the circuit court issued

a cautionary instruction to the jury that it was not to reduce Markley’s damages based on

worker’s-compensation benefits received. With this instruction, any potential prejudice

that resulted from Markley’s testimony was cured.

B. Joe Shrum’s Deposition Testimony

Next, appellants focus their attention on whether the circuit court abused its

discretion by refusing to allow the introduction of the deposition testimony of Joe Shrum,

the owner and president of MCTC. Appellants filed a motion in limine seeking to introduce

Shrum’s deposition testimony after their attempts to subpoena him were unsuccessful.

Appellants’ motion in limine was brought to the attention of the circuit court and discussed,

but the circuit court did not rule on the motion. Instead, the circuit court announced that

it would not be inclined to grant the motion but instructed appellants to direct it to caselaw

supporting their position. The issue was never addressed again, and no ruling was made.

The failure to obtain a ruling from the circuit court on an issue precludes appellate review

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of the issue. Meador v. Total Compliance Consultants, Inc., 2013 Ark. 22, 425 S.W.3d 718.

Accordingly, we summarily affirm the exclusion of Shrum’s deposition testimony.

C. Hypothetical Compliance with Safety Regulations

As a final evidentiary challenge, appellants argue that the circuit court abused its

discretion by allowing testimony that, hypothetically, had Markley complied with safety

regulations, his injuries would have been worse. This testimony was offered by Markley,

Dr. Luke Knox, and MCTC’s OSHA consultant Kim Shelton. Appellants contend that this

testimony was improperly admitted because it was too speculative and prejudicial.

We begin by considering Markley’s testimony. When questioned by appellants on

cross-examination, Markley testified that he was glad he had not been wearing his harness

because Shelton told him that wearing it could have resulted in his death or much more

severe injuries. Appellants elicited the allegedly speculative and prejudicial testimony from

Markley and failed to object to it when elicited. Because an appellant may not complain of

an erroneous action of a circuit court on appeal if he or she has induced or acquiesced in

that action, we affirm the introduction of Markley’s testimony. Riley v. State Farm Mut.

Auto. Ins. Co., 2011 Ark. 256, at 10, 381 S.W.3d 840, 847.

Next, we turn our attention to Dr. Luke Knox’s testimony. Dr. Knox testified that

if Markley had worn his safety harness, Markley would have sustained a whip injury and

that his death would have been likely. Dr. Knox served as an expert witness in this case,

and because he was qualified as an expert, he was qualified to respond to hypothetical

questions and render opinion testimony. Garst v. Cullum, 291 Ark. 512, 726 S.W.2d 271

(1987).

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An important consideration is whether Dr. Knox was qualified as an expert on this

precise issue. Appellants contend that, although he was an expert, he was not qualified to

opine on this subject. Dr. Knox was voir dired on his qualifications to provide this type of

testimony, and Dr. Knox explained that, based on his years of practice, he was an expert in

the mechanics of injury. Understanding that the circuit court has broad discretion in

evidentiary matters and that the relative weakness and strength of the factual underpinning

of his opinion goes to the weight and credibility rather than admissibility, we hold that the

circuit court was within its discretion to allow this testimony. Ark. State Highway Comm’n

v. Schell, 13 Ark. App. 293, 683 S.W.2d 618 (1985).

Finally, we consider Kim Shelton’s testimony. Shelton testified that, had Markley

been wearing a harness, he would have catapulted. Markley contends that Shelton’s

testimony does not apply to the error alleged by appellants, and we agree. Appellants argue

that the circuit court erred by allowing testimony that Markley’s injuries would have been

worse if he had been wearing a safety harness, and Shelton did not offer testimony regarding

the extent of his injuries. Furthermore, we acknowledge that “[e]videntiary error is harmless

if the same or similar evidence is otherwise introduced at trial.” Williams v. Sw. Bell Tel.

Co., 319 Ark. 626, 631, 893 S.W.2d 770, 773 (1995). Any error arising out of the admission

of Shelton’s testimony was not prejudicial because of our holding that the circuit court did

not err by admitting similar testimony through Markley and Dr. Knox.

Affirmed.

GRUBER, C.J., and GLADWIN, J., agree.

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Kutak Rock LLP, by: Niki Cung and Ashley Welch Hudson, for appellants.

Mason Law Firm, PLC, by: G. Chadd Mason; and Gunn Kieklak Dennis LLP, by:

Jennifer Lloyd, for appellee Stuart Markley.

Munson, Rowlett, Moore and Boone, P.A., by: Mark S. Breeding and Beverly A. Rowlett,

for appellee Madison County Telephone, Inc.

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