JOAN TILLMAN BELCHER, SPECIAL ADMINISTRATRIX of THE ESTATE of CORNELIUS TILLMAN, DECEASED, APPELLANT
JERRY DENTON, APPELLEE
APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, THIRD DIVISION [NO. 60CV-12-3452] HONORABLE CHRIS PALMER, JUDGE
The Law Offices of Peter Miller, P.A., by: Jessica Virden, for appellant.
W. Lee Tucker, PLLC, by: W. Lee Tucker, for appellee.
WAYMOND M. BROWN, Judge
Joan Tillman Belcher, Special Adminstratrix of the Estate of Cornelius Tillman, appeals the June 19, 2014 judgment of the Pulaski County Circuit Court finding that Tillman was forty-nine point nine percent (49.9%) at fault in causing his own death and reducing the $7, 612 judgment by that percentage. On appeal, appellant argues that (1) there was no evidence that Tillman was negligent, and, therefore, the issue of his negligence should not have been submitted to the jury; (2) the jury instructions and verdict form given to the jury were improper; and (3) the damages awarded by the jury were insufficient and failed to take into account all elements of the injury proven. We affirm.
This case arose from a fatal pedestrian collision. Jerry Denton was driving through Wrightsville, Arkansas,  at approximately 5:00 a.m. on June 2, 2011, when he fatally struck Tillman. Belcher, as special administratrix of Tillman's estate, brought a negligence action against Denton seeking damages for wrongful death as well as punitive damages. The central dispute at the jury trial was whether Denton crossed the center line into the southbound lane and struck Tillman. Belcher filed a motion in limine four days before the jury trial to prevent D
enton from arguing comparative fault to the jury. The court addressed the motion at the beginning of trial on June 10, 2014. The court denied the motion, and the trial proceeded as scheduled.
Joe Weare testified that he lived close to where the accident occurred on June 2, 2011, and that a surveillance camera at his home captured images before and after the accident. He stated that once he learned of the accident, he informed police officers that his camera may have captured at least part of the accident. He testified that he copied short video clips from his computer's hard drive and placed them onto a CD for the police. Weare stated that his camera caught Tillman walking down the street on June 2, 2011, at 5:00:56 a.m. He said that the next clip, at 5:01:26 a.m., showed the light of Denton's vehicle coming northbound a few seconds after Tillman walked out of view.
On cross-examination, Weare stated that his camera had a motion sensor. He testified that his camera captured Denton's vehicle as it passed in front of the camera at 5:01:34 a.m. He stated that the vehicle passed the camera again at 5:02:33 a.m.
On redirect, Weare stated that Denton's vehicle was caught in segments between 5:01:44 and 5:02:09, turning around and coming back. He testified that the final segment showed Denton traveling back in the direction he was originally going beginning at 5:02:21 a.m.
Trooper First Class Robert Middleton of the Arkansas State Police testified that he was dispatched to a pedestrian accident on June 2, 2011, on Highway 365 just south of 145th Street. He stated that upon arrival, he was shown Tillman's body. He also stated that items were scattered along the road that appeared to belong to Tillman. Middleton indicated that as part of his investigation, he noted and measured the location of the debris, Tillman's body, and where he believed the vehicle was. He stated that he concluded that Denton, who was traveling north, crossed the southbound lane and struck Tillman with the left front of his vehicle. Middleton opined that Tillman was thrown approximately 140 feet north from the area of impact.
On cross-examination, Middleton testified that he had not changed his opinion that Tillman was struck in the southbound lane. He conceded that he was not an accident reconstructionist. Upon further questioning, Middleton stated that it was possible for the debris to end up where it was if Denton was in the northbound lane close to the center line. Additionally, he stated that it was also possible that Denton was in the northbound lane the whole time.
Special Agent Joe Pickett of the Arkansas State Police testified that he worked in the criminal investigation division. He stated that he got involved in the case in his capacity as a criminal investigator because the case was initially a hit-and-run involving a fatality. He said that when he arrived at the scene, Denton was in the back of a Pulaski County deputy's car. Denton told Pickett that he remained in the northbound lane the entire time and that he believed he had struck an animal or something. According to Pickett, Denton stated that he turned around to see what he had struck and could not locate anything. Denton then continued to Walmart. Pickett stated that he was approached by Weare while at the scene and informed that the accident may have been captured on camera. He stated that Weare provided Trooper Stacy Sims with the video clips, but that he (Pickett) had reviewed them. Pickett testified that his main goal was to determine whether Denton crossed the center line. He stated that he concluded that Denton had crossed the center line at some point; however, he said that he could not determine the exact area of impact due to the lack of evidence at the scene.
On cross-examination, Pickett stated that he was unable to determine in which lane the impact took place. He said his dilemma was whether or not Denton's vehicle touched or crossed the center line. He testified that he could not say that Denton's left tire crossed the center line.
On redirect, Pickett stated that based on the physical evidence, it was his belief that Denton's vehicle crossed into the southbound lane at some point. However, he testified on recross that he could not say whether Denton's vehicle crossed into the southbound lane before or after impact.
Denton was initially questioned by Belcher's attorney. Denton testified that he was an airplane enthusiast and that he had been at the flying field in Wrightsville before the accident. He stated that he left the field a little before 5:00 a.m. on June 2, 2011, to go purchase some butter from Walmart in order to be able to prepare pancakes and French toast for some of his associates. He said that he traveled north through Wrightsville and that as he approached the liquor store, he moved over and looked toward the liquor store to make sure no one was on the side of the road. According to Denton, the impact occurred as he resumed looking forward. He stated that he looked in his rearview mirror but did not see anything. He then turned around at the car wash and went back to try to see what he had hit. He said that he thought he had hit an animal because he did not see anything. He testified that he then continued to Walmart. He stated that he was able to see that his vehicle was heavily damaged when he got out of the car at Walmart. Denton contended that he did not see Tillman's cane, white hat, or anything else to suggest that he had hit a pedestrian. He testified that he returned to the flying field going back the way he had come and still did not see anything. He stated that he subsequently learned that the police were in the area where he believed he had struck an animal and decided to drive back. He testified that when he returned, he learned that Tillman had been struck and killed by a vehicle. Denton stated that when he struck Tillman, he jerked his wheel to the right and looked at his left mirror because the impact took place on the left. He said that he did not realize that the mirror was broken at that time. Denton stated that even though he only had approximately two-and-a-half hours of sleep before getting up to go to Walmart, he was not tired and did not drift from his side of the road.
Upon examination by his attorney, Denton stated that both of his eyes were wide open as he drove through Wrightsville the morning of June 2, 2011. He said that he remained in the northbound lane the entire time and that impact took place in the northbound lane. He stated that he did not believe that he had hit anyone because he had not seen anyone on the road. He testified that he turned around but that there was nothing to indicate what he hit. He stated that he did not look hard for what he hit because he had already told himself that it was a deer.
William Howard Ford testified that he was employed by EFI Global and that he was accredited in accident reconstruction though ACTAR. He stated that he was hired by Belcher's attorney to investigate the accident involving Denton and Tillman. He stated that based on his investigation, he was able to determine the area of impact and that Denton had crossed the center line. He said that Tillman was walking at a rate of approximately 1.6 miles per hour at the time of the accident. He testified that he determined the area of impact based upon Denton's and Tillman's speed and the place where they both met. He stated that based on this information, he was able to determine that Tillman had made it about 75 to 80 feet from where he was captured on camera at the time of impact. Ford stated that at some point Denton had to cross the center line because that is the only way to explain the angle of his vehicle when it was first captured in the video clip. According to Ford, Tillman had crossed over to the other side of the road when he was hit because that was the only way Denton's vehicle could have hit Tillman on the left side. Ford stated that the evidence indicated that Denton crossed the center line.
On cross-examination, Ford admitted that he had billed appellant about $5, 000 for his services at the time of the trial. He testified that he charges $185 an hour for his services. He said that Denton's vehicle was a couple of feet over the center line at the time of impact. He conceded that he did not know the point of impact because that would be too precise. He stated that he did not know how far across the road Tillman had gotten before impact. He said that it was a mystery as to why Tillman crossed the road at the time he did. He further stated,
A vehicle coming around that curve is about 900 feet away. And a pedestrian or someone standing on the road, they should be able to see that vehicle coming around the curve. Forty-five miles per hour is 66 feet per second. That's about 15, 17 seconds away. It's a mystery why Mr. Tillman crossed the road. I don't think we all know what happened out there.
On redirect, Ford stated that he was only able to determine the general area of impact within a couple of inches of where Denton's vehicle was at the time of impact. He said that Tillman would have had to be walking at a rate of 4.4 miles per hour in order for the original point of impact to be correct; however, he stated that it was clear that Tillman was walking at a rate of only 1.6 miles per hour.
Belcher testified that she was Tillman's sister and the administratrix of his estate. She stated that his funeral cost $7, 612. She stated that Tillman worked as a farmer most of his life, and that he was unemployed at the time of his death. She said that Tillman grew up in Wrightsville and that everyone knew him as Uncle Connie. She stated that he was disabled and suffered from gout, which was why he used a cane. She said that Tillman loved baseball caps and just loved living. Belcher stated that Tillman did not own a car so he usually rode the bus. She said that she also picked him up and took him where he needed to go. She stated that Tillman was pretty independent. She testified that Tillman maintained a relationship with his family. According to Belcher, Tillman went to the Deluxe Liquor Store every day to visit and socialize ...