JAMES TREE AND CRANE SERVICE, INC., AND ROGER WILLIAMS APPELLANTS
TERRI FOUGHT APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT, TWELFTH DIVISION [NO.
60CV-08-10413] HONORABLE ALICE GRAY, JUDGE.
Donovan & Tilley, P.A., by: Michael McCarty Harrison and
Jim W. Tilley, for appellant.
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.
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.
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.
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.
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.
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.
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
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.
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
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.
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 ...