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Weisker v. Harvest Management Sub LLC

Court of Appeals of Arkansas, Division III

April 20, 2016



The Sorey Law Firm, PLLC, by: R. Daniel Sorey, for appellant.

Hardin, Jesson & Terry, PLC, by: Kirkman T. Dougherty, Jeffery W. Hatfield, and Kynda Almefty, for appellee.



Appellant Heather Weisker, as the administrator of her deceased father's estate, appeals the dismissal of her negligence and wrongful-death action against appellee Harvest Management Sub LLC (hereinafter referred to as "Harvest" or its residential facility "Apple Blossom") in the Circuit Court of Benton County, Arkansas. At the close of appellant's case in chief, the trial court granted the appellee's motion for directed verdict. A final order of dismissal followed.[1] Appellant contends that the trial court's grant of the motion for directed verdict was in error and warrants reversal.[2] We disagree and affirm.

The standard of review on appeal from the grant of a motion for directed verdict is well settled. In determining whether a directed verdict should have been granted, we review the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Woodall v. Chuck Dory Auto Sales, Inc., 347 Ark. 260, 61 S.W.3d 835 (2001). A motion for directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Id. Where the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed. Id; see also Buckalew v. Arvest Trust Co., 2013 Ark.App. 28, 425 S.W.3d 819.

What is important here, though, is determining whether a duty was owed by this appellee to the decedent. The question of whether such a duty is owed is one of law, not fact, and never one for the jury. Marlar v. Daniel, 368 Ark. 505, 247 S.W.3d 473 (2007). Duty is a concept that arises out of the recognition that relations between individuals may impose upon one a legal obligation for the other. Id. The law of negligence requires as an essential element that the plaintiff show that a duty of care was owed. Kowalski v. Rose Drugs of Dardanelle, Inc., 2011 Ark. 44, 378 S.W.3d 109. In order to prove negligence, there must be a failure to exercise proper care in the performance of a legal duty that the defendant owed to the plaintiff under the circumstances surrounding them. Marlar, supra. Experts cannot create a duty of care that the law does not otherwise recognize. Bedell v. Williams, 2012 Ark. 75, 386 S.W.3d 493; Young v. Gastro-Intestinal Ctr., Inc., 361 Ark. 209, 205 S.W.3d 741 (2005). A company's practice or policies do not translate into a duty at law. Kroger Co. v. Smith, 93 Ark.App. 270, 218 S.W.3d 359 (2005). Questions of law are reviewed de novo on appeal. Holt v. McCastlain, 357 Ark. 455, 182 S.W.3d 112 (2004).

The salient facts brought out at trial and material to the trial court's ruling are as follows. On November 10, 2010, appellant's father, Edward Randolph, entered into a "Residency and Service Agreement" with a retirement community called Apple Blossom in Rogers, Arkansas, operated by appellee Harvest. In that agreement, which was six pages long, Randolph contracted for a month-to-month apartment rental of Unit 110. Monthly rent included payment of utilities, as well as certain "board, activities, and services as described" in the contract. The contract specified that Apple Blossom would provide three meals per day in the community dining room, and it would provide weekly housekeeping, consisting of light cleaning of the Unit, changing of the bed linens, and laundering of the linens and towels. This cleaning service did not include cleaning that would require moving the personal property of the resident. Nor did the cleaning service include laundering of the resident's personal clothing; community laundry equipment was available for residents to use. The contract specified that Apple Blossom would provide a variety of additional services that would include social events, exercise classes, community activities, and scheduled transportation. Apple Blossom reserved the right to enter each Unit for purposes of cleaning, maintenance and repairs, enforcement of the terms of the contract, and response to emergencies. Each Unit had in it a pull cord for summoning emergency assistance at any time.

Important to this case, the Residency and Service Agreement provided in paragraph ten as follows:

A. Your Capacity for Apartment Living. The Community [Apple Blossom] supports your right to live in the housing of your choice. You should be aware, however, that the Community, its managers, and staff, are not licensed providers of any health care or personal care services. The Community is not authorized to provide, nor does it provide, any health care or personal care services. If you need health care or personal care services, you have the right to secure such services from an outside provider. Any outside providers of health care or personal care services must comply with all of the Community's rules, policies and guidelines (as they may be amended). . . .
B. Release from Responsibility for Your Care. It is your responsibility to provide for your health and personal care needs while living at the Community. You hereby agree to indemnify, hold harmless and release the Community, Harvest Facility Holdings LP, its subsidiaries and affiliates, and its directors, agents and employees, from any liability, cost, or responsibility for injury and damage, including attorneys' fees, arising from your failure to obtain (or the failure of others to furnish) appropriate health or personal care services, and from all injury and damage which could have been avoided or reduced if such services had been obtained or furnished.

Randolph entered into a separate addendum to the Residency and Service Agreement to permit him to have his dog in his Unit. The addendum noted that Randolph would be responsible for his pet's personal needs such as exercise, feeding, and collection/disposal of any pet waste in and about the Unit and on the community property. The addendum further recited that if Randolph became unable to care for his pet's personal needs, then he would be required to find alternative housing and accommodations for his dog.

Randolph was a long-time smoker and an Army veteran who served in the Vietnam War. Randolph was routinely treated at the VA in Fayetteville, and he retained his own truck to drive himself to and from doctor appointments. He was diagnosed with post-traumatic-stress disorder, depression, and chronic pain due to traumatic injuries to his feet. Randolph was overweight, and he used a cane when he walked. His medical records indicated that he was urged by his doctor to quit smoking although Randolph was not ready to quit, and the doctor tried to control his high blood pressure with oral medications. He was also prescribed antidepressant and high-cholesterol medication.

Randolph requested the nurse of his primary care physician, Dr. Marlan L. Rhame, to fill out a form stating a reason why he needed help with meal preparation at his new apartment. Dr. Rhame filled out the form, indicating that Randolph needed a cane to walk; that he could feed himself, bathe himself, and tend to his own other hygiene needs; that he was not bedridden; that he was able to sit up; that he was not blind; that he was able to travel and leave home without assistance, including driving up to sixty miles to see his doctor; but that he required assisted living care in preparing meals because he was unable to stand to cook. The final question on the form asked, "In your opinion, are there other pertinent facts which would show [Randolph's] need for aid and attendance of another person, e.g., inability to protect oneself from the hazards of environment, properly dress oneself (buttons, zippers, socks), poor balance, memory loss, ...

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