DOLLAR GENERAL CORPORATION DOLGENCORP, LLC, D/B/A DOLLAR GENERAL CADDO TRADING CO., INC. AND RODNEY FAGAN AND JUDY FAGAN v. KAREN ELDER , 2020 Ark. 208 ( 2020 )

Cite as 2020 Ark. 208
SUPREME COURT OF ARKANSAS
No. CV-18-313
Opinion Delivered: May 28, 2020
DOLLAR GENERAL CORPORATION;
DOLGENCORP, LLC, D/B/A DOLLAR APPEAL FROM THE MONTGOMERY
GENERAL; CADDO TRADING CO., COUNTY CIRCUIT COURT
INC.; AND RODNEY FAGAN AND JUDY [NO. CV-13-30]
FAGAN
APPELLANTS HONORABLE JERRY RYAN, JUDGE
V.
AFFIRMED; COURT OF APPEALS’
KAREN ELDER OPINION VACATED.
APPELLEE
COURTNEY RAE HUDSON, Associate Justice
Appellants Dollar General Corporation and Dolgencorp, LLC, d/b/a Dollar
General (collectively “Dollar General”), Caddo Trading Co., Inc., and Rodney Fagan and
Judy Fagan (collectively “the Landlords”), appeal the Montgomery County Circuit Court’s
August 8, 2017 judgment on jury verdict in favor of appellee Karen Elder (“Elder”).1 For
reversal, appellants argue (1) the circuit court erred by not granting their motion for a
directed verdict because Elder failed to prove that the sidewalk she slipped on was
unreasonably dangerous; (2) the circuit court erred by not granting their motion for a
1
Dollar General Corporation and Dolgencorp, LLC, are corporate entities that
operate the Dollar General store where the events giving rise to this appeal occurred.
Caddo Trading Co., Inc., and Rodney Fagan and Judy Fagan represent the owners of the
property on which the Dollar General store is located.
directed verdict because Elder did not prove that the Landlords failed to maintain the
sidewalk outside the store or failed to keep the premises in compliance with the Americans
with Disabilities Act (ADA); (3) the circuit court abused its discretion as a matter of law by
allowing a chiropractor to testify as an expert regarding the causal connection between
Elder’s fall and the treatment provided by other physicians; and (4) the circuit court abused
its discretion by allowing Elder to give causation testimony regarding her treatments that
were not rendered in temporal proximity to the occurrence of the accident. We affirm.
This case began at approximately 4:00 p.m. on June 10, 2010, when Elder, a
registered nurse, went to purchase milk at the Dollar General store in Mt. Ida, Arkansas. It
was raining that day, and the concrete outside was wet when Elder slipped and fell near the
store’s entrance. Fearing that others might slip in the same area, Elder reported her fall to
Pam Bryant, who was the assistant manager of the store. Bryant completed a report. At
that time, Elder had worked as a nurse with the Mt. Ida School District for approximately
nine years.
Elder sought medical treatment the day after her fall, and she subsequently received
treatment from a chiropractor, a neurologist, a neurosurgeon, and an orthopedic surgeon.
Elder eventually underwent neck, back, and shoulder surgery. According to Elder, she has
continuing pain in her neck and back. However, Elder did experience neck and back pain
prior to the accident, and she had seen her chiropractor, Eric Carson, D.C., for treatment
since 2004.
2
Elder filed a complaint against appellants on June 7, 2013, and an amended
complaint on August 15, 2014. In the amended complaint, Elder alleged that she was
injured when she slipped on the wet concrete at the entrance to the Dollar General store.
Elder further alleged that she was a business invitee and that appellants had a duty to use
reasonable care in maintaining their business premises; that appellants knew or should
have known that the rain was causing the concrete at the outside entrance to become
dangerously and unexpectedly slippery; and that if the appellants had used reasonable care
to either post appropriate signs warning of the slippery concrete and/or ensure that mats
were in place outside the entrance, her injury would not have occurred. Elder claimed that
she was permanently disabled because of the fall and that she had sustained and will
continue to sustain pain, medical expenses, permanent impairment, scars and
disfigurement, and loss of earnings. Appellants answered and denied liability.
Less than three weeks before the trial, Elder supplemented her discovery responses
to notify appellants that Carson planned to testify as to the cause of Elder’s injuries, the
reasonableness and necessity of her medical bills, and the permanency of her injuries.
Thereafter, appellants filed a motion in limine in which they sought to exclude any
causation testimony from either Elder or Carson. As to Carson, Dollar General and the
Landlords argued that he was not qualified to provide causation testimony and that his
proposed testimony conflicted with his prior deposition testimony. The circuit court
denied the motion.
3
The jury trial was held from July 24 to July 27, 2017. At issue was whether
appellants failed to maintain the premises in a reasonably safe condition and whether
Elder’s slip and fall caused the need for her medical treatment. Elder testified that she
approached the entry from the right side and that it was misting rain that day. According
to Elder, she was either jogging or slowly running to the entrance to escape the rain when
the next thing she knew, she was lying on the ground. Elder believed that she had been
briefly knocked unconscious. Elder recalled that the area where she fell was slick and that
no mat was present. To establish that the concrete was unreasonably dangerous, Elder
presented testimony from Bryant, the former assistant manager of Dollar General, who
said that the area was slick and that she had seen at least four other people slip there,
although not all of them fell all the way to the ground. Bryant testified that even she
herself had slipped there. Bryant also testified that she had personally alerted three Dollar
General district managers about the issue, along with Rodney Fagan, a landlord. Bryant
recounted that Fagan advised her that it would be “taken care of.” Elder recalled that
Bryant expressed concern that someone would be injured in that area. Elder also
presented expert testimony from Jennings. Jennings testified that he tested the concrete at
the entrance and determined it to be unsafe and probable that an accident would occur.
Both Bryant and Jennings testified that one part of the exterior concrete had a rough finish
and that another part had a smoother finish.
In order to prove that the fall caused her injuries, Elder offered her own testimony
and that of Carson. Elder testified over appellants’ objection that her medical expenses
4
were reasonable and medically necessary. When Elder called Carson, appellants renewed
their objection and argued that Carson was not a medical doctor and was not qualified to
give expert testimony that the treatment the medical doctors provided was causally related
to Elder’s fall. Outside the presence of the jury, the circuit court conducted extensive voir
dire to determine Carson’s qualifications. After voir dire and arguments from counsel, the
circuit court ruled that Carson could give expert testimony that Elder’s injuries and need
for medical care, including her surgeries, were caused by her fall. Thereafter, appellants
moved for a continuance, but the circuit court denied the motion. Carson then testified
before the jury that it was more probable than not that Elder’s symptoms, injuries, and
need for medical treatment were caused by her fall at Dollar General.
At the close of Elder’s case, appellants moved for a directed verdict and argued that
Elder did not introduce substantial evidence that the concrete was unreasonably dangerous
or improperly maintained. The circuit court denied the motion. Appellants then
presented their case. They offered testimony from orthopedic surgeon Owen Kelly, M.D.,
and neurologist Alonzo Burba, M.D. Kelly testified that he believed Elder’s treatment
needs were caused by degenerative conditions. Burba offered no opinion as to the cause of
Elder’s medical issues. Appellants also moved for directed verdict at the conclusion of all
testimony. The circuit court denied that motion as well.
The case was submitted to the jury on interrogatories and it returned a $700,000
verdict. The jury also apportioned liability among the parties and assigned 22.5 percent of
the fault to each Dollar General, Dolgencorp, Caddo Trading Co. Inc, and the Fagans.
5
The jury found Elder to be 10 percent at fault. The $700,000 damages award was reduced
to a judgment totaling $630,000 split equally between the four defendants. The circuit
court entered judgment on the jury verdict on August 8, 2017. Appellants filed a motion
for judgment notwithstanding the verdict or for a new trial that was deemed denied, and
they filed a timely appeal of the judgment. Our court of appeals affirmed, and this court
granted appellants’ petition for review. We consider the appeal as though it was originally
filed in this court. Martin v. Smith, 2019 Ark. 232, 576 S.W.3d 32.
On appeal, appellants argue that (1) the circuit court erred by not granting their
motion for a directed verdict because Elder failed to prove that the sidewalk she slipped on
was unreasonably dangerous; (2) the circuit court erred by not granting their motion for a
directed verdict because Elder did not prove that the Landlords failed to maintain the
sidewalk outside the store or failed to keep the premises in compliance with the ADA; (3)
the circuit court abused its discretion as a matter of law by allowing a chiropractor to testify
as an expert regarding the causal connection between Elder’s fall and the treatment
provided by other physicians; and (4) the circuit court abused its discretion by allowing
Elder to give causation testimony regarding her treatments that were not rendered in
temporal proximity to the occurrence of the accident.
We first consider Elder’s motion for a directed verdict. Our standard of review of
the denial of a motion for directed verdict is whether the jury’s verdict is supported by
substantial evidence. Crawford Cty. v. Jones, 365 Ark. 585, 232 S.W.3d 433 (2006).
Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to
6
compel a conclusion one way or the other. Id. In determining whether there is substantial
evidence, we view the evidence and all reasonable inferences arising therefrom in the light
most favorable to the party on whose behalf judgment was entered. Nat’l Bank of Ark. v.
River Crossing Partners, LLC, 2011 Ark. 475, 385 S.W.3d 754. A motion for directed
verdict should be denied when there is a conflict in the evidence, or when the evidence is
such that fair-minded people might reach a different conclusion. Id.
Appellants first argue that they were entitled to a directed verdict because Elder
failed to prove that the wet concrete presented an unreasonably dangerous condition.
There is no dispute that Elder was an invitee. In Arkansas, a property owner has a duty to
exercise ordinary care to maintain the premises in a reasonably safe condition for the
benefit of invitees. Dye v. Wal-Mart Stores, Inc., 300 Ark. 197, 777 S.W.2d 861 (1989). The
basis of a defendant’s liability under this rule is superior knowledge of an unreasonable risk
of harm of which an invitee, in the exercise of ordinary care, does not know or should not
know. Jenkins v. Hestand’s Grocery, Inc., 320 Ark. 485, 898 S.W.2d 30 (1995). An owner’s
duty to warn an invitee of a dangerous condition applies only to defects or conditions such
as hidden dangers, traps, snares, pitfalls and the like, in that they are known to the owner
but not to the invitee and would not be observed by the latter in the exercise of ordinary
care. Ethyl Corp. v. Johnson, 345 Ark. 476, 49 S.W.3d 644 (2001). An Arkansas landowner
generally does not owe a duty to an invitee if a danger is known or obvious. Kuykendall v.
Newgent, 255 Ark. 945, 504 S.W.2d 344 (1974).
7
With these authorities in mind, we turn to the evidence adduced at trial, which
demonstrated that the concrete’s texture was not uniform. Jennings, Elder’s safety expert,
testified that the smoother area of the concrete created the potential for an accident.
According to Jennings, a slip-resistant mat or a slip-resistant coating could have been used
to reduce the risk. Additionally, Bryant testified that she and other people had slipped
there. She further confirmed that a mat was not always in place outside the entrance.
Bryant told Elder that usually a cart was placed in the area to prevent falls but that it had
been brought inside because of the rain and that someone had forgotten put a mat in
place. This testimony provides substantial evidence that the concrete presented an
unreasonably dangerous condition.
Elder also introduced substantial evidence that appellants were aware of this
condition. Bryant testified that she personally notified three Dollar General district
managers and that she also told Rodney Fagan. As a result, we hold that substantial
evidence exists that appellants were aware of the dangerous condition. This conclusion,
however, does not end the inquiry. As stated previously, a landlord generally has no duty
to warn an invitee of a known or obvious danger. Appellants argue that the danger was
obvious because it is common knowledge that concrete may become slippery when it is wet
and because Elder herself could have seen that the concrete was wet. Thus, appellants
argue that the danger was not “hidden.” In support of their argument, appellants cite
Jennings’s testimony that his evaluation of the concrete included a visual inspection and
8
argue that Elder should have noticed the danger just as Jennings did. Appellants contend
that we should be guided by Jenkins, 320 Ark. 485, 898 S.W.2d 30.
This reliance is misplaced. In Jenkins, the plaintiff alleged that she slipped in the
middle of an incline that had been built to aid carts and wheelchairs in negotiating the
curb between the store and the parking lot. Evidence before the circuit court revealed that
the condition had existed for twenty-nine years and that the store had served between
3,000 and 4,000 customers per year without incident. The circuit court granted summary
judgment in favor of the grocery store. The court concluded that Jenkins had presented no
evidence that the condition was dangerous or an unreasonable risk and that there was no
evidence that the store owners were aware that the ramp constituted an unreasonable risk
to its invitees. Jenkins, 320 Ark. 485, 898 S.W.2d 30. In contrast, here, Elder presented
evidence that multiple people had slipped on the smooth concrete and that both Dollar
General and the Landlords had been notified of the danger. Likewise, although Jennings
performed a visual evaluation of the concrete as part of his investigation, an expert’s
trained eye that is looking with 20/20 hindsight for dangerous conditions cannot be
equated to a customer who casually enters a store and may be less concerned with
evaluating the surface characteristics of the concrete walkway than with avoiding a collision
with other customers entering or leaving the store. Further, Rodney Fagan testified that he
had seen the concrete and that it did not look slippery to him. Finally, Elder testified that
she had entered the store multiple times before and had never noticed the differences in
the concrete’s texture. Viewing the evidence in the most favorable light to Elder, as we
9
must, see River Crossing Partners, 2011 Ark. 475, 385 S.W.3d 754, we conclude that
substantial evidence supports the jury’s verdict and affirm on this point.
The Landlords also raise an issue specific to them. According to the Landlords, the
circuit court erred by not directing a verdict in their favor because Elder did not introduce
any evidence that they failed to maintain the concrete outside the store or that they failed
to keep the premises in compliance with the ADA. Arkansas Code Annotated section 18-
16-110 (Repl. 2015) provides that
[n]o landlord or agent or employee of a landlord shall be liable to a tenant or a
tenant’s licensee or invitee for death, personal injury, or property damage
proximately caused by any defect or disrepair on the premises absent the landlord’s:
(1) Agreement supported by consideration or assumption by conduct of a
duty to undertake an obligation to maintain or repair the leased premises; and
(2) Failure to perform the agreement or assumed duty in a reasonable
manner.
The Landlords therefore argue that they cannot be liable for Elder’s injuries unless
they agreed to maintain the property. The Landlords were lessors of the real estate for
Dollar General pursuant to a written lease. Thus, we look to the lease provisions to
determine the Landlord’s duty. The lease provides in relevant part:
6. MAINTENANCE: Lessor represents and warrants that (1) the Demised
Premises are well built, properly constructed, structurally safe and sound; (2) during
the term of this Lease and any renewals hereof, it will so maintain them; and, (3)
the Demised Premises conform to all applicable Requirements of the Americans
with Disabilities Act of 1990, as amended, Pub. L. 101-336, 42 U.S.C. 12101 et seq.
Lessor shall maintain at its cost and expense in good condition and shall perform all
necessary maintenance, repair, and replacement to the exterior of the premises
including, but not limited to, the roof, all paved areas, foundation, floors, walls, all
10
interior and exterior utility lines and pipes, and all other structural portions of the
building during the term of this Lease and any renewal periods.
Although Elder presented no evidence of an ADA violation, that is not the issue in
this case. The key question is whether the Landlords maintained the premises in “good
condition” as the lease requires. The Landlords argue that Elder presented no evidence
that the property was not maintained. Contrary to the Landlords’ argument, Elder
presented substantial evidence that the Landlords failed to maintain the exterior of the
premises in good condition. Jennings testified that part of the concrete was smooth and
likely to become slick when wet. According to Jennings, if a mat was not used in that area,
a slip-resistant coating could have been applied to the concrete for minimal cost. Bryant
had slipped there herself and had seen others slip there as well. Bryant reported the
problem to Rodney Fagan, and he told her that it would be fixed. Viewing the evidence in
the most favorable light to Elder, we conclude that substantial evidence supports the jury’s
verdict and affirm on this point.
We next turn to the causation testimony that Carson and Elder offered. Elder must
show a causal nexus between her injuries and appellants’ negligence. Wheeler v. Bennett,
312 Ark. 411, 849 S.W.2d 952 (1993). Elder presented her own and Carson’s testimony
to prove this nexus. Appellants argue that neither witness should have been allowed to
present this type of testimony and that the circuit court erred by allowing it.
We first consider Carson’s testimony. Appellants argue that the circuit court
abused its discretion when it allowed Carson to testify that Elder’s treatment needs were
11
caused by her fall. Appellants argue that this error was compounded because the circuit
court did not grant their motion for a continuance to allow them to re-depose Carson after
he provided supplemental discovery responses that they allege were inconsistent with his
earlier deposition testimony.
Appellants first challenge to Carson’s testimony is that the circuit court erred by not
granting their motion for a continuance. They sought the continuance to re-depose
Carson after Elder supplemented her discovery responses and stated that Carson planned
to testify that Elder’s fall caused the need for her future medical care. Appellants assert
that Carson’s supplemental opinion was effectively an “ambush.”
The rule is settled that the grant or denial of a motion for continuance is within the
sound discretion of the circuit court, and that court’s decision will not be reversed absent
an abuse of discretion amounting to a denial of justice. City of Dover v. City of Russellville,
346 Ark. 279, 57 S.W.3d 171 (2001). We have stated that an abuse of discretion is a high
threshold that does not simply require error in the circuit court’s decision but requires that
the circuit court act improvidently, thoughtlessly, or without due consideration. Hurt-
Hoover Investments, LLC v. Fulmer, 2014 Ark. 461, 448 S.W.3d 696. An appellant must
show prejudice from the denial of a continuance, and when a motion is based on a lack of
time to prepare, we will consider the totality of the circumstances; the burden of showing
prejudice is on the appellant. City of Dover, 346 Ark. 279, 57 S.W.3d 171.
Elder provided her supplemental discovery responses on July 5, 2017. On July 13,
appellants filed a motion in limine in which they sought to exclude Carson’s proposed
12
causation testimony. They did not move for a continuance or argue that they needed
additional time to take another deposition. The trial began on July 24, and the circuit
court entered an order that day denying the motion in limine. At trial, appellants renewed
their objection to Carson’s offering causation testimony. After extensive voir dire, the
circuit court determined that Carson was qualified to give causation testimony. Once the
circuit court made that determination, appellants moved for a continuance. After hearing
arguments from counsel, the circuit court declined to continue the case and noted that the
case had been going on for four years and that a continuance at that point would have the
effect of a mistrial. Considering the totality of the circumstances, we are not convinced
that the circuit court acted improvidently, thoughtlessly, or without due consideration in
denying a continuance. Therefore, the circuit court did not abuse its discretion in denying
the continuance.
We turn next to appellants’ argument that the circuit court erred by allowing
Carson’s causation testimony. According to appellants, Carson, as a chiropractor, was not
qualified to give testimony that Elder’s fall was the cause of her treatment. Rule 702 of the
Arkansas Rules of Civil Procedure provides that
[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise.
The test of qualification as an expert is whether, on the basis of the witness’s qualifications,
he or she has knowledge of the subject at hand which is beyond that of ordinary persons.
13
Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995).2 Whether an expert witness is
qualified to testify at trial falls within the sound discretion of the circuit court. Fryar v.
Touchstone Physical Therapy, Inc., 365 Ark. 295, 229 S.W.3d 7 (2006). The circuit court’s
discretion is not absolute, however, in that a decision to exclude the testimony of an expert
witness will be reversed where the circuit court has abused its discretion. Id. We have said
that “the appellant bears the burdensome task of demonstrating that the trial court abused
its discretion.” Collins v. Hinton, 327 Ark. 159, 164, 937 S.W.2d 164, 167 (1997).
Appellants do not challenge Carson’s ability to testify to the necessity of his own treatment
of Elder but contend that Carson’s causation testimony regarding procedures that medical
doctors performed conflicts with the holding of Hardy v. Bates, 291 Ark. 606, 727 S.W.2d
373 (1987). We disagree. In Hardy, a chiropractor was questioned as an expert medical
witness. However, when he was questioned about an injured person’s disability, the court
sustained an objection to the chiropractor’s qualification to do so. In affirming, this court
said,
The general rule concerning expert medical testimony by chiropractors, stated
above, limits the testimony of a chiropractor to matters within the scope of the
profession and the practice of chiropractic, hence a chiropractor can testify only
about permanent disabilities which are within the scope of his field, the same as any
other medical expert. Here, a foundation was not laid to show the scope of the
chiropractor’s field and, therefore, we are unable to say from the record before us
that the trial judge abused his discretion.
Id. at 608, 727 S.W.2d 374.
2
The General Assembly has defined a chiropractor as a “physician.” Ark. Code
Ann. § 17-81-102(5) (Repl. 2018).
14
Appellants argue that Hardy demonstrates that a chiropractor may not testify as to
the causal need for surgical procedures that a chiropractor may not perform. However,
they read too much into Hardy. The problem in Hardy was that “a foundation was not laid
to show the scope of the chiropractor’s field[.]” Hardy, 291 Ark. at 608, 727 S.W.2d at
374. Therefore, the circuit court in that case did not abuse its discretion in prohibiting the
chiropractor from offering testimony regarding an injured person’s permanent disability.
In contrast to the situation in Hardy, in this instance a proper foundation was laid to show
the scope of Carson’s field. The circuit court conducted extensive voir dire before it ruled
that Carson could offer expert causation testimony. In voir dire, the circuit court heard
that Carson’s medical training consisted of 210 orthopedic hours and 320 hours of
neurology. According to Carson, the training is very similar to that of a medical doctor.
Carson testified that he had done human dissections and was trained to treat all joints of
the body. He explained that he took pharmacology classes and that he understood how
medication affected the body and how an injection could be preferable to an oral dose. He
also exhibited a knowledge of Elder’s surgical procedures. He attested that he had treated
hundreds of patients with traumatic injuries over his career. Carson acknowledged that
the treatment he offers differs from those of medical doctors and that he is not qualified to
perform surgical procedures. He conceded that he would defer to treating physicians as to
the need for their treatments. However, Carson did testify that he is qualified to make
diagnoses of injuries and that he regularly refers his patients to other medical professionals
if he believes different treatment is warranted. If a proper foundation is not laid, the
15
causation testimony of a chiropractor may be inadmissible. Here, however, in light of
Carson’s voir dire testimony regarding his education and experience, the circuit court did
not abuse its discretion in finding that Carson could provide causation testimony. Indeed,
Carson had treated Elder since 2004 and was uniquely qualified to testify as to the causal
connection between her fall and her subsequent medical procedures because he was
familiar with her condition both before and after her fall. Carson’s specific training and
his expertise were relevant to the weight a jury might give to his testimony, but the circuit
court did not abuse its discretion when it allowed him to provide causation testimony.
Finally, appellants argue that the circuit court erred when it allowed Elder to testify
to the necessity of her medical treatment. A circuit court has some discretion in
determining whether a nonexpert witness, usually the injured party, has laid a sufficient
foundation to testify about the reasonableness of treatment or the causal relationship. Bell
v. Stafford, 284 Ark. 196, 680 S.W.2d 700 (1984). Arkansas Code Annotated section 16-
46-107(a) provides that
[u]pon the trial of any civil case involving injury, disease, or disability, the patient, a
member of his family, or any other person responsible for the care of the patient
shall be a competent witness to identify doctor bills, hospital bills, ambulance
service bills, drug bills, and similar bills for expenses incurred in the treatment of
the patient upon a showing by the witness that such bills were received from a
licensed practicing physician, hospital, ambulance service, pharmacy, drug store, or
supplier of therapeutic or orthopedic devices, and that such expenses were incurred
in connection with the treatment of the injury, disease, or disability involved in the
subject of litigation at trial.
Notably, appellants did not contest the reasonableness of Elder’s treatment. They
did argue that the treatments were not causally related to the injuries Elder sustained, and
16
they insist that allowing Elder’s causation testimony was erroneous. Reasonableness of
treatment and necessity of treatment are different issues. We discussed the difference in
Avery v. Ward, 326 Ark. 829, 934 S.W.2d 516 (1996):
Our decisions recognize a distinction between proof of reasonableness and proof of
necessity. We have held that evidence of expense incurred in good faith is some
evidence that the charges were reasonable. However, evidence of expense incurred
alone is not sufficient to show that charges were causally necessary. Yet, the
testimony of the injured party alone, in some cases, can provide a sufficient
foundation for the introduction of medical expenses incurred. For example, if a
litigant suffered a specific injury in an accident and was immediately taken to a
hospital emergency room for treatment of only that specific injury, the injured
party’s testimony would be sufficient to establish the necessity of the medical
expense as a result of the accident. However, expert testimony would normally be
required to prove the necessity of the expense when. . . expenses for hospital tests
were incurred many months after the accident, none of the physicians in attendance
immediately after the accident referred the litigant either to the admitting doctor or
to the hospital, and the expenses on their face do not appear to be related to the
accident.
Id. at 833, 934 S.W.2d at 519 (quoting Bell, 284 Ark. at 199, 680 S.W.2d at 702–03).
Much of Elder’s treatment, including her surgeries, occurred more than a year after
her fall. Thus, Elder’s testimony, standing alone, cannot establish that the necessity of the
treatment was causally related to her fall, and the circuit court erred by allowing her
testimony in this regard. However, Carson’s testimony did provide a causal link, and
Elder’s testimony was therefore cumulative. Even when evidence is erroneously admitted,
we will not reverse without a showing of prejudice. Bedell v. Williams, 2012 Ark. 75, 386
S.W.3d 493. Because Carson’s testimony, standing alone, was sufficient to establish the
causal necessity of Elder’s treatment, there was no prejudice in the admission of Elder’s
causation testimony, and we affirm.
17
Affirmed; court of appeals’ opinion vacated.
HART, WOOD, and WOMACK, JJ., dissent.
JOSEPHINE LINKER HART, Justice, dissenting. I dissent. First, there was no risk or
potential harm in this case that should not have been known or obvious to the plaintiff at
the time of her fall. An outdoor sidewalk, wet from falling rain, is not an unreasonably
dangerous condition. Second, the testimony from the plaintiff’s chiropractor regarding the
cause of treatment by other medical doctors simply went too far. The chiropractor was the
only expert who supplied testimony regarding causation, but that testimony covered
surgeries and procedures that he had no involvement with and that were outside his area of
expertise. Furthermore, the defendants should have received a continuance when the
plaintiff disclosed that the chiropractor would be supplying this testimony. Under oath at
his deposition, the chiropractor specifically denied that he would testify as to the cause of
any medical treatment provided to the plaintiff by other physicians. Then, two weeks
before trial, the chiropractor did an about-face to the effect that he would be opining as to
the cause of all those other medical treatments. Allowing this was erroneous and amounts
to trial by ambush. I would reverse for any of these reasons.
I. Unreasonably Dangerous Condition
An Arkansas property owner has a duty to exercise ordinary care to maintain a
premises in a reasonably safe condition for the benefit of invitees. Dye v. Wal-Mart Stores
Inc., 300 Ark. 197, 198, 777 S.W.2d 861, 862 (1989) (directed verdict in slip and fall case
affirmed on appeal). An invitee is one who visits “for a purpose connected with the
18
business dealings of the owner.” Young v. Paxton, 316 Ark. 655, 660, 873 S.W.2d 546, 549
(1994). An Arkansas landowner generally does not owe a duty to an invitee if a danger is
known or obvious. Kuykendall v. Newgent, 255 Ark. 945, 947, 504 S.W.2d 344, 345 (1974)
(citing William L. Prosser, Handbook on the Law of Torts, § 61 (4th ed. 1971); 2 Fowler v.
Harper and Fleming James, The Law of Torts § 27.13 (1956); Restatement (Second) of Torts
§ 343A (1965)); accord Dye, 300 Ark. at 198, 777 S.W.2d at 862.
An owner’s duty to warn an invitee of a dangerous condition applies only to defects
or conditions that are hidden dangers, such as traps, snares, pitfalls and the like—hazards
which are known to the owner-invitor but not known to the invitee and would not be
observed by the latter in the exercise of ordinary care. Ethyl Corp. v. Johnson, 345 Ark. 476,
481, 49 S.W.3d 644, 648 (2001); Jenkins v. Hestand’s Grocery, 320 Ark. 485, 487, 898
S.W.2d 30, 31 (1995) (no duty or liability for owner because hazard not known or hidden);
Kroger Co. v. Smith, 93 Ark. App. 270, 275, 218 S.W.3d 359, 363 (2005); Kuykendall, 255
Ark. at 947, 504 S.W.2d at 345. A slip-and-fall by an invitee on an owner’s premises does
not in itself give rise to an inference of negligence as a matter of law. Black v. Wal-Mart
Stores, 316 Ark. 418, 419, 872 S.W.2d 56, 57 (1994) (collecting cases); accord Dye, 300 Ark.
at 198, 777 S.W.2d at 862. “[I]n virtually every case involving a fall, the plaintiff will
describe a floor as slick or slippery, and this alone is not sufficient to support a case for
negligence.” Id. at 421, 872 S.W.2d at 58.
To sum up, in a slip-and-fall case, the plaintiff bears the burden of proving that
there was a dangerous condition, known to the owner of the premises, and hidden from or
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not obvious to the plaintiff. Importantly, the premises owner’s duty does not extend to
dangers that should have been obvious or known to the plaintiff.
In this case, testimony regarding the circumstances of the plaintiff’s fall came from
the plaintiff herself, a store employee, and the plaintiff’s expert witness. The plaintiff was
running through the rain toward the defendants’ store in her “flip-flops or tennis shoes”
when she, according to her testimony, slipped and fell on the concrete sidewalk outside the
door.
The store employee testified that she had seen four other people “slip” on the
concrete outside the door in the six years she worked there, though it is not clear from the
employee’s testimony if those others actually fell to the ground. Likewise, this testimony
lacked any specificity as to the circumstances of those other “slips,” such as whether the
person was walking or running, whether the person was wearing high heels or loose-shoe
strings, whether it was raining, etc. There was no specific evidence relating the cause of
those slips or their relationship to the sidewalk. This is important because the mere fact
that someone slips and falls does not give rise to even an inference of negligence on the
part of the defendant. Black, supra. The store employee also testified that the right side of
the concrete outside the store’s door (which is where she saw Karen fall, according to her
testimony) appeared smoother and slicker than the concrete on the left side of the door.
But this supports the open and obvious nature of the claimed defect.
Finally, the plaintiff’s expert witness, who performed slip-resistance testing on the
concrete outside the store’s door, testified as follows:
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The results of my testing showed that there were, areas of at or below low
tread -- the low tread reactions. Some moderate slip resistance, or tread
reactions, and it also showed that there was some areas that had high
reactions as well … It is correct that none of the areas tested had low traction. I
do not know the exact place Ms. Elder fell. I don’t know how much water
was on the concrete when she fell.
(Emphases added.)
Overall, even giving the evidence its full weight in favor of the plaintiff, it does not
establish the existence of an unreasonably dangerous condition. If there was a risk of harm
here, then the risk should have been known or obvious to the plaintiff. In the plaintiff’s
situation, what would she know through reasonable exercise of ordinary care? She ought
to know that rain makes things wet. She ought to know that wetness could make surfaces,
such as walkways, slicker. And she ought to know that a given spot on a walkway surface
(whether it be a street, a parking lot, or a sidewalk) might be slicker or rougher than a
different spot on that same surface. One can only wonder how many miles of different
outdoor walkways there are in this country, and those walkways do not become
“unreasonably dangerous conditions” simply because it starts to rain.
With all due respect to Elder, the risk of harm at the time of her fall should have
been known or obvious to her. That the defendants may have been told of others who
slipped in the same place (under conditions we know nothing about) would not change
this conclusion. Under the law, that means Elder cannot recover damages from the
defendants. Not every case features an injury that is compensable, and in my view, this is
such a case.
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II. Chiropractor’s Testimony
I also dissent from the majority’s conclusion that the circuit court did not err in
admitting the medical-causation opinions of Dr. Carson. “Not every doctor can qualify as
an expert in every given case.” Travelers Ins. Co. v. Wilson, 28 S.W.3d 42, 48 (Tex. Ct. App.
2000). Allowing Dr. Carson to testify that the fall Elder experienced at Dollar General
necessitated the surgeries to her neck, back, and shoulder, which took place months and
years later, was in error. Dr. Carson had no role in these procedures, and they were
outside his area of expertise. If the plaintiff wanted to establish causation between her fall
and these procedures, then the plaintiff should have called as witnesses the specialists who
performed those procedures.
It was speculative at best for Dr. Carson to testify that it was the plaintiff’s fall at
Dollar General which caused her to need the surgeries performed by these other specialists.
Causation between the plaintiff’s fall and her subsequent surgeries was a disputed element
of the plaintiff’s case. The plaintiff’s chiropractic records establish that she had been
experiencing the same pains she attributed to the fall at trial for years predating the fall at
Dollar General. In fact, one May 5, 2009 report alone establishes that the plaintiff was
experiencing pain in her neck, middle back, low back, and shoulder that day. Note that
the plaintiff testified that she experienced no shoulder pain until after the fall at Dollar
General on June 10, 2010. The May 5, 2009 report provided that she had been
experiencing these symptoms for “years” and that she rated her pain that day as an “8” out
of 10. Other observations contained in Dr. Carson’s records from that same date
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(connecting the plaintiff’s symptoms to a “sprain” and a “strain”) suggest trauma that
predates the fall. In other words, Dr. Carson’s own medical records undercut his
testimony that the fall at Dollar General is what necessitated the plaintiff’s subsequent
surgeries performed by other specialists.
As the majority writes, Dr. Carson received training in orthopedics and neurology
as part of his chiropractic curriculum. However, Dr. Carson’s training did not include any
sort of surgical residency, and he has never performed any surgeries. Indeed,
neurosurgeons’ and orthopedic surgeons’ training and experience are not synonymous. As
Dr. Carson testified during voir dire, chiropractors provide different treatment than
medical doctors. Chiropractors’ treatment focuses on physical medicine, like spinal
manipulation, muscle stimulation, and disc decompression; whereas neurosurgeons’ and
orthopedic surgeons’ treatment may include prescription medications and surgery.
Thus, given his training and experience, Dr. Carson could make certain neurologic
and orthopedic diagnoses. But it was reversible error for the circuit court to allow him to
relate his diagnoses to the reasonableness of the surgeries rendered and prescriptions given
by her medical doctors, or to causally relate those surgeries to her fall. See Structural Pres.
Sys., Inc. v. Petty, 927 A.2d 1069 (D.C. 2007) (treating chiropractor unable to testify as to
necessity of physical therapy because she could not prescribe physical therapy on her own
authority); Sebroski v. United States, 111 F. Supp. 2d 681 (D. Md. 1999) (chiropractor not
qualified to testify as to the necessity of an MRI because such test is beyond his expertise
and training); Brodersen v. Sioux Valley Mem. Hosp., 902 F. Supp. 931 (N.D. Iowa 1995)
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(physicians unable to testify as to standard of care of a chiropractor). Other jurisdictions
have recognized this and emphasized the importance of limiting chiropractor testimony to
their area of expertise. “The district court sufficiently limited Dr. Reilly (chiropractor) to
his treatment of Kudabeck and the conclusions he drew from his treatment and expertise.”
Kudabeck v. Kroger, 338 F.3d 856 (8th Cir. 2003) (explaining the district court did not allow
the chiropractor to testify that he based his conclusions on the reports of other physicians
and that it prevented him from testifying as to his opinion of the patient’s MRI) See also
Moreno v. Ingram, 454 S.W.3d 186 (Tex. Ct. App. 2014) (holding that chiropractor was not
qualified to testify as to non-chiropractic medical expenses nor could he give testimony
concerning matters because he was not “qualified by training, education, or statute to
perform the procedures himself and that he did not make the decisions whether to
undertake the treatment”).
This error was compounded by the fact that the defendants were denied a
continuance after the plaintiff’s late (two weeks before trial) disclosure that Dr. Carson
would be testifying about causation, when he had specifically averred during his deposition
that he would offer no such testimony at trial. Causation was a necessary (and disputed)
element of the plaintiff’s case, and the plaintiff offered no other expert testimony as to a
causal connection between the plaintiff’s fall and these subsequent procedures. The
defendants should have been afforded the opportunity to re-depose Dr. Carson, and the
denial of this opportunity was prejudicial.
I dissent.
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WOOD and WOMACK, JJ., join this opinion.
Dover Dixon Horne PLLC, by: Todd Wooten and Carl “Trey” Cooper, for appellants.
The Applegate Firm, PLLC, by: Kayla M. Applegate and Ryan J. Applegate, for appellee.
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