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Marx v. Huron Little Rock11/10/2004
let seat ring. Bumpers are the small items attached to the underside of the seat upon which the seat rests against the toilet rim. According to Durbin, bumpers provide stability to the seat. Durbin could not explain the missing bumper, and he said that he did not remember it being missing when he placed the toilet seat in the box. However, Durbin stated that a missing bumper would justify replacing the entire toilet-seat assembly.
At the close of the evidence, appellant asked the trial court to direct a verdict on the issue of comparative fault and to reject appellee's jury instruction on comparative fault. The trial court denied the directed-verdict motion and instructed the jury on comparative fault using both AMI Civil 206 and 2101 (2004). Appellant also asked the court to instruct the jury on res ipsa loquitur using AMI Civil 610 (2004). The trial court declined to do so. The jury was then instructed on negligence, proximate cause, premises liability, comparative fault, and damages. Following deliberations, the jury rendered a general verdict in favor of appellee. The verdict was reduced to judgment, and appellant filed a timely notice of appeal.
Appellant argues first that the trial court erred in denying her motion for a directed verdict and in instructing the jury on comparative fault because there was no evidence that she was negligent. We agree that reversal is warranted on this point.
The directed-verdict issue and the jury-instruction issue can be discussed simultaneously because they involve the same point, i.e., whether the question of appellant's negligence should have been submitted to the jury. When reviewing a denial of a motion for directed verdict, we determine whether the jury verdict is supported by substantial evidence. J.E. Merit Constr., Inc. v. Cooper, 345 Ark. 136, 44 S.W.3d 336 (2001). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Superior Fed. Bank v. Mackey, 84 Ark. App. 1, 129 S.W.3d 324 (2003). We review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered, and when the evidence and inferences create a jury question, we will determine that the trial court properly denied the defendant's motion for directed verdict. J.E. Merit Constr., Inc. v. Cooper, supra. As for the trial court's giving of the jury instruction, we employ the abuse-of-discretion standard. See Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001).
Under our comparative-fault statute, Ark. Code Ann. ยง 16-64-122 (Supp. 2003), the fault of a plaintiff in a personal-injury case is compared to the defendant's fault. If the plaintiff's fault is less than the defendant's, the plaintiff may recover damages from the defendant after the damages have been diminished in proportion to the plaintiff's own fault. If the plaintiff's fault is greater than or equal to the defendant's, then the plaintiff is not entitled to recover damages. The "fault" to be compared under the statute must be a proximate cause of the plaintiff's damages. See generally Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997); Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993); Kubik v. Igleheart, 280 Ark. 310, 657 S.W.2d 545 (1983).
Because comparative fault is an affirmative defense, the burden is on the defendant to prove that the plaintiff was at fault. See Rodgers v. CWR Constr., Inc., 343 Ark. 126, 33 S.W.3d 506 (2000); Young v. Johnson, 311 Ark. 551, 845 S.W.2d 510 (1993). If the defendant fails to
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