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Marx v. Huron Little Rock11/10/2004
satisfy this burden, a directed verdict on comparative fault in favor of the plaintiff is appropriate. See Young v. Johnson, supra.
Appellant contends that there was no evidence of any negligence on her part beyond speculation and conjecture, and she cites Young v. Johnson, supra, in support of her argument. In Young, the plaintiff was traveling south on a one-lane road when she saw the defendant's headlights coming toward her. She slowed down and pulled over to the right side of the road as far as she could but was nevertheless struck by the defendant, who testified that he was looking for a dropped cigarette at the time of the collision. The plaintiff asked the trial court for a directed verdict on comparative fault, which was denied. On appeal, the supreme court held that a directed verdict should have been granted because any conclusion that the plaintiff was negligent would have been "highly speculative and conjectural and, thus, is not substantial." Young v. Johnson, supra, at 557, 845 S.W.2d at 513.
Appellee contends that there was evidence of appellant's negligence, in that appellant was an elderly person who was using the toilet seat to put on pantyhose while resting her feet on a slick tile floor. Appellee cites Turner v. Stewart, 330 Ark. 134, 952 S.W.2d 156 (1997), in support of its argument. In Turner, the plaintiff visited the defendant's home, which had a "beware of dog" sign in the front yard. The plaintiff went onto the front porch but got no answer when she rang the doorbell. While on the porch, she saw the defendant's Rottweiler looking at her from the side of the house. She then went to the side of the house and saw the defendant with the dog. She spoke with the defendant briefly, after which the defendant called his dog. When the dog started toward them, the plaintiff ran. The dog jumped on the plaintiff and bit her. At trial, the plaintiff objected to the trial court's instructing the jury on comparative fault. On appeal, that instruction was upheld by the supreme court because the jury could have concluded that the plaintiff had not used good judgment in entering the yard despite the "beware of dog" sign or in walking around the side of the house where she had seen an unfamiliar dog and further that her injuries could have been caused by her running from the dog.
Upon reading the cases cited by the parties and several other cases on the subject of whether a jury should have considered a plaintiff's comparative fault, see Garrett v. Brown, 319 Ark. 662, 893 S.W.2d 784 (1995); Skinner v. R.J. Griffin & Co., supra; Wingate Taylor-Maid Transp. v. Baker, 310 Ark. 731, 840 S.W.2d 179 (1992), we have determined that the facts in the case at bar are most like those in Young v. Johnson, supra, the case relied upon by appellant. As in Young, there is no substantial evidence that appellant failed to do something that a reasonably careful person would do or did something that a reasonably careful person would not do under the circumstances, which is the definition of negligence. See Ethyl Corp. v. Johnson, 345 Ark. 476, 49 S.W.3d 644 (2001). Also, as in Young, any insinuation that appellant was negligent and contributed to her own injuries is conjecture. It is not uncommon for people to sit on toilet lids to perform various tasks, and there is no evidence that appellant slipped on the floor or fell onto the seat, as appellee speculates. Further, this case differs from the case that appellee cites, Turner v. Stewart, because in Turner, there was substantial evidence that the plaintiff engaged in behavior that contributed to her own injuries. We therefore conclude that the trial court should have granted appellant's motion for a directed verdict on comparative fault and sh
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