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.
Buckley Firm, by: William A. Buckley III, for appellee.
MICHAEL KINARD, Judge
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.
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.
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.
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.
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).
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.
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.
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.
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. 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 ...