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Tree v. Fought

Supreme Court of Arkansas

May 11, 2017

JAMES TREE AND CRANE SERVICE, INC., AND ROGER WILLIAMS APPELLANTS
v.
TERRI FOUGHT APPELLEE

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, TWELFTH DIVISION [NO. 60CV-08-10413] HONORABLE ALICE GRAY, JUDGE.

          Watts, Donovan & Tilley, P.A., by: Michael McCarty Harrison and Jim W. Tilley, for appellant.

          Chaney Law Firm, P.A., by: Don P. Chaney, Nathan P. Chaney, and S. Taylor Chaney; and Moffitt & Phillips, by: Brandon Moffitt, for appellee.

          COURTNEY HUDSON GOODSON, Associate Justice.

         Appellants James Tree and Crane Service, Inc., and Roger Williams (collectively, "James Tree") appeal from the Pulaski County Circuit Court's order granting appellee Terri Fought's motion for a new trial. For reversal, James Tree argues that the circuit court abused its discretion in granting Fought's motion for a new trial and in setting aside the jury's unanimous verdict in favor of James Tree. This case is on review from the Arkansas Court of Appeals, and our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(e) (2016). We affirm the circuit court and vacate the court of appeals' opinion.

         On June 26, 2007, Fought was stopped at a red light in her Toyota Prius when she was rear-ended by a Mack truck operated by Williams and owned by James Tree. Williams left the scene of the accident, but Fought followed him and obtained the truck's license-plate number.

         Fought filed suit against James Tree and a John Doe defendant on September 22, 2008, in connection with injuries that were allegedly caused by the accident. She amended her complaint on several occasions, and her fourth amended complaint was filed on June 13, 2013, substituting Williams for the John Doe defendant. Fought alleged that Williams was negligent in causing the automobile collision and that she had suffered damages for permanent bodily injuries, past and future medical expenses, past and future pain and suffering, loss of earning capacity, past and future mental anguish, and expenses to assist her and her family in their home. She also included a claim for civil action by a crime victim, asserting that Williams's failure to remain at the scene was a felony entitling her to additional damages. Fought's husband, Rick, also alleged a loss-of-consortium claim, which was voluntarily dismissed prior to trial.

         The seven-day jury trial began on September 16, 2013. Little Rock Police Officer Edwin Brown testified that he was dispatched to the hit-and-run accident. Brown indicated that the damage to Fought's vehicle consisted of a fist-sized dent, which was one-quarter of one inch to one-inch deep, on the tailgate, in addition to minor damage to the bumper. He testified that Fought did not tell him she was injured at that time but that it was common for motor-vehicle-accident victims to later discover that they are injured after the adrenaline has dissipated.

         Jesse David Wall, a retired physics professor, testified that the Mack truck involved in the accident weighed nearly 34 tons, that it was traveling at approximately five miles per hour, that Fought's vehicle experienced an acceleration of 6.9 times the acceleration due to gravity after it was hit by the truck, and that the forces on Fought amounted to 8.5 times the acceleration due to gravity.

         Dr. Steven Bennett, a chiropractor in Little Rock, testified that Fought first sought treatment from him on June 27, 2007, the day after the wreck. He stated that Fought suffered sprains and strains of the cervical and lumbar spine from the accident and that she also complained of headaches. Dr. Bennett testified that there were no degenerative changes present on the x-ray and that the DMX machine, which is a motion x-ray, revealed multiple torn ligaments. He stated that torn ligaments do not heal and that these injuries were permanent. He indicated that the frequency of Fought's need for treatment following the accident fluctuated because she often aggravated her condition while performing daily activities. According to Dr. Bennett, Fought had reached maximum medical improvement in May 2008, and in 2010, he assigned her a 25 percent impairment rating to the whole body due to her neck injuries caused by the accident. Dr. Bennett testified that he had provided six years of chiropractic treatment to Fought, which totaled $20, 408, and that Fought continued to see a chiropractor in Memphis, where she now lived.

         Victoria Powell testified that she had prepared a life-care planning document detailing the medical expenses and other care that Fought would require in the future. This document, which was admitted into evidence, listed a total of $398, 970.87 for Fought's life-care plan.

         Fought testified that the force of the vehicular collision pushed her car halfway into the intersection and that she was shocked and angry when she saw the driver of the truck leave the scene. She stated that she began to experience pain in her neck and a headache shortly after the wreck. Fought indicated that she was very stiff and sore and that she still had a headache the next morning. She went to see Dr. Bennett that day, and he prescribed muscle relaxers and anti-inflammatories. Fought testified that she sought treatment with Dr. Bennett on a daily basis for the first few weeks after the wreck because she was in pain and was having muscle spasms. She stated that she gradually began feeling better, and after several months, she required only bi-weekly treatment from Dr. Bennett. Fought realized after one year that she was not going to further improve and that the pain would never completely disappear. Fought testified that when she experiences flare-ups, she suffers from extreme neck pain and debilitating headaches. After Fought and her family moved to Memphis in 2010, she began seeing a new chiropractor, Dr. Richard Wyse, whom she continued to see for adjustments to her C1 vertebrae. She described the treatment as a "gentle tap" behind her ear, and she stated that it provides her with immediate relief. Fought provided a list of her past medical bills related to the accident that totaled $35, 491.

         Fought also testified to the drastic changes in her life since the accident. She stated that she must take medication to sleep and that she sleeps in a recliner. She further testified that her injuries negatively impact her ability to perform household chores and participate in activities with her children. Fought indicated that it is difficult to physically manage her nine-year-old autistic son, who now lives with her parents, and that she often experiences a flare-up after caring for him. In addition to her own testimony, Fought also presented testimony from family and friends to support her claim that she continues to experience pain and physical limitations due to the accident.

         On behalf of the defense, Dr. Harry Smith, a radiologist who engages in injury-causation analysis, testified. He concluded from the damage to Fought's vehicle that James Tree's truck was traveling no faster than three miles an hour and that the force that Fought experienced was less than "3 g's." According to Dr. Smith, the impact from the crash was "between a sneeze and a jostle." He testified that all of Fought's radiologic images were normal for her age, with only degenerative changes noted. Smith denied that there was any evidence of torn ligaments from the accident. However, Dr. Smith agreed that there was medical evidence that the impact had caused her to suffer sprains and strains, as noted by Dr. Bennett after his initial examination. Outside of those soft tissue injuries, Dr. Smith stated that there is nothing wrong with Fought's spine. He testified ...


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