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Koch v. Northport Health Services of Arkansas3/24/2005
e to the facts at hand. Instead, the federal regulation is merely evidence of the types of considerations that should bear on the reasonable person. Consequently, under AMI Civ. 4th 601, actions in violation of the regulations can be evidence of negligence to be considered along with the other facts and circumstances in the case. Thus, in this case, the fact that there were other instructions detailing the various standards of care for claims of negligence and medical malpractice would not have been relevant to the issue of whether AMI Civ. 4th 601 should have been submitted to the jury.
Appellees' second contention is that the AMI Civ. 4th 601 instruction was abstract and not relevant to the facts of the case. In support of that proposition, they only cite to cases where the statute or regulation in question was unquestionably irrelevant to the undisputed facts at hand. For example, in Harkrider v. Cox, 230 Ark. 155, 321 S.W.2d 226 (1959), the defendant in a case involving a car accident objected to instructions pertaining to the obligation to slow down around hills, intersections and other road hazards. This court held the instruction to be erroneous because the facts of the case did not suggest the presence of any hills or other road hazard. In CRT, Inc. v. Dunn, 248 Ark. 197, 451 S.W.2d 215 (1970), the plaintiff was injured when her car slipped on oil spilled from the defendant's tanker. The trial court gave an instruction noting that an Arkansas statute provided that " o vehicle shall be driven or moved on any highway unless such vehicle is so constructed or loaded as to prevent any of its load from dropping, shifting, leaking, or otherwise escaping therefrom." Id. The court held that, for such an instruction to be proper, "there must first be some evidence that the spillage was caused either by the construction or the loading." Id. In both cases, the instruction was not proper because there was no evidence suggesting a violation of the statute. Here, the appellant presented evidence suggesting that the appellees' care and treatment of Ms. Doss may not have complied with the requirements of the CFR provisions, such as adequate nutrition, care for wounds, and prevention and treatment of pressure sores. Accordingly, we hold that the circuit court did not err in submitting AMI Civ. 4th 601 to the jury.
Affirmed in part, reversed and remanded in part.
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