Estate of Anderson v. Schwarze Indus. Inc.dissent , 2017 Ark. 248 ( 2017 )

Cite as 2017 Ark. 248
SUPREME COURT OF ARKANSAS
No. CV-17-411
ESTATE OF ANDERSON DALE Opinion Delivered September 14, 2017
WILLIAMS ET AL.
APPELLANTS
V.
DISSENTING OPINION ON DENIAL
SCHWARZE INDUSTRIES, INC., ET OF PETITION FOR REVIEW.
AL.
APPELLEES
JOSEPHINE LINKER HART, Justice
I dissent from the denial of review in this case. Yet again, the court of appeals has
improperly used a procedural bar to avoid considering the merits of an appeal. In my view,
this court should have remanded this case to the court of appeals to review the merits of this
case.
Anderson Dale Williams, a highway department employee, was killed when he was
run over by a highway sweeper. It was proven at trial that the sweeper was not equipped
with simple safety features like parabolic mirrors that would have allowed the driver of the
sweeper to see Mr. Williams. Mr. Williams’s estate sued the manufacturer of the sweeper
in a products-liability case, and the manufacturer prevailed. The estate filed a motion for
judgment notwithstanding the verdict (JNOV), which was denied.
Our preservation jurisprudence requires that, in order to appeal from the denial of a
JNOV, the appellant make a motion for a directed verdict. Willson Safety Products v.
Cite as 2017 Ark. 248
Eschenbrenner, 302 Ark. 228, 788 S.W.2d 729 (1990); Ark. R. Civ. P. 50(b). The purpose
of requiring a directed-verdict motion to preserve a motion for JNOV “is to require a party
testing the sufficiency of the evidence first to submit the question to the trial court, thereby
permitting the court to make a ruling at the conclusion of all the evidence but prior to
verdict, thus preserving the specific question for appeal.” Eschenbrenner, 302 Ark. at 232, 788
S.W.2d at 732. Unquestionably, the estate’s trial counsel accomplished this.
The estate’s trial counsel unquestionably made such a motion as demonstrated by the
following:
THE COURT: Mr. Gibson?
MR. GIBSON: Your Honor, as I have previously stated, the evidence is in a posture
at best for counsel’s motion, there are facts in dispute. And the jury could—The
evidence could support a verdict on all theories, three theories of liability.
And I will address that we have alleged that the sweeper was not fit for its intended
purpose which satisfies the pleading in this case and the proof under that pleading.
Now, I will say this: We think that we have gotten very close to a directed verdict
ourselves on the issue that a convex mirror would have prevented this accident
because their testimony from their expert said it may have. He has not negated our
assertion—
THE COURT: You’ve still got the issue of proximate cause, so you're wrong.
MR. GIBSON: I rest.
THE COURT: Okay.
Okay. I—You know, I have to consider the issues at this time and the evidence in
the light most favorable to the nonmoving party. The nonmoving party would be the
Plaintiff. And in doing that, there are questions of fact on almost everything that’s
been mentioned by the Defendant. And I’m not making a comment concerning the
weight of the evidence, because I’m not required to do that at this time. But I am
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Cite as 2017 Ark. 248
required to consider both the testimony and the circumstantial evidence. And in
doing that, like I did before, I’m denying the motions for directed verdict. That’s the
ruling.
Estate of Williams v. Schwarze Indus., Inc., 2017 Ark. App. 255, 521 S.W.3d 139.
Inexplicably, the court of appeals focused not on the directed-verdict motion itself,
but rather on the prediction of the estate’s trial counsel about whether the case was so strong
that submitting it to the jury was not even necessary—the sentence, “We think that we have
gotten very close to a directed verdict ourselves,” meant exactly that. Instead, the court of
appeals treated that statement as a failure to make a directed-verdict motion. They reasoned
that getting close to making a directed-verdict motion is not the same as making one.
Had the court of appeals considered the context in which the statement was made,
I doubt that it would have made such an obvious error. “We think that we have gotten very
close to a directed verdict ourselves,” which is little more than trial counsel’s irrelevant
prediction about how its proof has come in, was immediately followed by the operant text
of the motion, the statement, “on the issue that a convex mirror would have prevented this
accident because their testimony from their expert said it may have. He has not negated our
assertion.” This directed-verdict motion is wholly consistent with mainstream theories of
products liability, i.e., that the failure to include on a product a low-cost piece of safety
equipment commonly used in the industry renders a product defective and unreasonably
dangerous.
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