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Razorback Cab of Fort Smith, Inc. v. Amon

Court of Appeals of Arkansas, Division IV

August 24, 2016

RAZORBACK CAB OF FORT SMITH, INC., and MARK NUNEZ APPELLANTS
v.
DANAYE AMON APPELLEE

         APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. CV-2013-906] HONORABLE J. MICHAEL FITZHUGH, JUDGE

          Skinner Law Firm, P.A., by: Jack Skinner, for appellants.

          The Buckley Firm, by: William A. Buckley III, for appellee.

          M. MICHAEL KINARD, Judge

         In this car-accident case, appellants Razorback Cab of Fort Smith and Mark Nunez (collectively "Razorback") appeal from a $50, 000 judgment in favor of appellee Danaye Amon. Razorback argues that the circuit court erred in various rulings during the course of trial. We affirm.

         I. Facts

         The accident occurred on January 15, 2013, at the intersection of Towson Avenue and Fresno Street in Fort Smith. Amon was driving north in the inside lane of Towson when the vehicle in front of her moved left into a center turn lane. Amon continued into the Fresno intersection at the posted speed limit of forty miles per hour. On the other side of the intersection, facing south, Mark Nunez was driving a Razorback Cab minivan and waiting to turn left onto Fresno. He began his turn but did not see Amon coming toward him and collided with her in the middle of the intersection. Amon's vehicle veered right and came to rest after striking a railroad-crossing post.[1]

         Following the accident, Amon was transported by ambulance to the emergency room where she complained of hand, leg, and foot pain. X-rays showed no broken bones or other serious injuries, so Amon was released with anti-inflammatory and pain medications and was instructed to follow up with her primary-care physician. Amon later developed back and neck pain, for which she saw several doctors, including a pain-management specialist; received additional pain medications and muscle relaxers; and visited a chiropractor. By the end of April 2013, Amon's medical doctors had released her from treatment. Her chiropractic treatment continued through April.

         In September 2013, Amon sued Razorback for negligence in connection with the wreck. Razorback defended primarily on the grounds that Amon was partly at fault and that her injuries were exaggerated or preexisting. Following a two-day trial, the jury found Razorback wholly at fault and awarded Amon $50, 000, which included compensation for medical bills, pain and suffering, and vehicular damage. The circuit court entered judgment on the verdict and denied Razorback's motion for a new trial. This appeal followed.

         II. Closing Arguments

         Razorback's first argument is that Amon's counsel made an improper "send-a-message" statement to the jury during trial. A send-a-message statement is one in which the plaintiff in a civil trial asks the jury to award damages for purposes of punishment and deterrence rather than compensation. Such statements are generally prohibited in cases where, like this one, no punitive damages are sought. See Stecker v. First Commercial Trust Co., 331 Ark. 452, 962 S.W.2d 792 (1998).

         The send-a-message issue arose at trial during the rebuttal portion of Amon's closing arguments when her counsel made the following remark:

They [Razorback] are going to keep running until someone catches them and says, it stops here, and that is what I am asking you to do, to step up and let them know that safety matters in Arkansas.

         Razorback objected, noting that the court had granted a motion in limine prohibiting send-a-message statements, and asked that the jury be instructed to disregard the remark. The court declined to do so and instead told Amon's counsel, "Don't go any further than that." Amon's counsel quickly completed his closing argument, and Razorback made no more objections. Following the entry of judgment, Razorback moved for a new trial, which the court denied. Razorback now appeals the court's rulings.

         Our standard of review imposes a heavy burden on Razorback to demonstrate grounds for reversal. We accord wide discretion to the circuit court in controlling, supervising, and determining the propriety of counsel's closing arguments. National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996). We will not reverse a circuit court's ruling regarding a closing argument absent a manifest abuse of discretion. Id. An abuse of discretion occurs when the circuit court acts improvidently or thoughtlessly, without due consideration. Milner v. Luttrell, 2011 Ark.App. 297, 384 S.W.3d 1.

         We cannot say that the circuit court abused its discretion in this instance. The remark by Amon's counsel merely echoed his overriding theme that Razorback was "running" from its responsibilities by blaming Amon for the accident and failing to produce Mr. Nunez as a witness at trial.[2] Moreover, Amon's closing arguments, when viewed in their entirety, can reasonably be viewed as a plea to hold Razorback liable for the accident, rather than a plea to punish Razorback. See Stecker, supra (holding that a plaintiff's argument, when viewed in its entirety, did not constitute a plea for punitive damages); Nishihama v. City and County of San Francisco, 112 Cal.Rptr.2d 861 (Cal.Ct.App. 2001) (holding that an alleged send-a-message argument was less a plea for punitive damages than a plea for a ...


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