Davis Nursing Association v. Neal

          APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CV-13-217] HONORABLE JODI RAINES DENNIS, JUDGE

          Anderson, Murphy & Hopkins, by: David A. Littleton and Mark D. Wankum; and Brockman, Norton & Taylor, by: C. Mac Norton, for appellant.

          Reddick Moss, PLLC, by: Robert W. Francis, for appellee.

          JOHN DAN KEMP, CHIEF JUSTICE

         A Jefferson County Circuit Court jury found that appellant Davis Life Care Center (DLCC), a long-term care facility, was not entitled to charitable immunity. DLCC appeals the judgment entered on the jury's verdict and the denial of its motion for new trial. For reversal, DLCC contends that (1) the circuit court improperly submitted the question of charitable immunity to the jury, (2) the circuit court inadequately instructed the jury on charitable immunity, and (3) the jury's verdict was clearly contrary to the preponderance of the evidence and contrary to the law on charitable immunity. We reverse and remand.^[1]

         I. Facts and Procedural History

         Johnny Newborn resided at DLCC from May 18, 2011, until his death on December 6, 2011. After his death, appellee Gracie Neal, Newborn's sister, was appointed as personal representative of his estate for the purpose of pursuing a personal-injury, wrongful-death action.

         On April 25, 2013, Neal sued DLCC on behalf of the estate of Johnny Newborn alleging (1) negligence, (2) medical malpractice, (3) breach of the admission agreement, (4) violations of the Long-Term Care Facility Residents' Rights Act, and (5) breach of the provider agreement. Neal alleged that while in DLCC's care, Newborn sustained numerous injuries, including multiple bedsores, improper catheter care that led to the erosion of his penis, multiple urinary-tract infections, skin tears, poor hygiene that contributed to the development and worsening of pressure sores, malnutrition, dehydration, aspiration, and ultimately, death. She sought compensatory and punitive damages, attorneys' fees, and costs.

         Subsequently, DLCC filed a motion for summary judgment claiming entitlement to charitable immunity. The circuit court granted the motion, and Neal appealed. See Neal v. Davis Nursing Ass'n, 2015 Ark.App. 478, 470 S.W.3d 281. After conducting a de novo review and considering the charitable-immunity factors articulated in Masterson v. Stambuck, 321 Ark. 391, 902 S.W.2d 803 (1995), the court of appeals concluded that reasonable persons could reach different conclusions based on the undisputed facts presented. Neal, 2015 Ark.App. 478, at 4-8, 470 S.W.3d at 283-86. Accordingly, the court of appeals reversed and remanded the case to the circuit court for further proceedings. Id. at 8, 470 S.W.3d at 286.

         After remand, DLCC moved for bifurcation of the proceedings. DLCC asserted that (1) the circuit court should hear evidence and determine whether DLCC is entitled to charitable immunity and (2) only if the circuit court rules that DLCC is not entitled to charitable immunity should the case proceed to a jury trial on the issues of liability and damages. Neal opposed both the bifurcation of the trial and the submission of the immunity question to the circuit court. Ultimately, the circuit court granted DLCC's request for bifurcation but ordered that the question of DLCC's immunity would be submitted to a jury. Specifically, the circuit court ruled,

First, the issue of charitable immunity will be presented to the jury on interrogatories. If the defendant is found to be entitled to the defense of charitable immunity, an order of dismissal will be entered. If the defendant is found not to be entitled to the defense of charitable immunity, the remaining issues will be presented to the jury.

         On November 15-17, 2016, a jury trial was held to determine whether DLCC was entitled to charitable immunity. At the close of evidence, the circuit court instructed the jury on the applicable law. The primary instruction given was based on the Masterson factors. The circuit court declined to give five instructions proffered by DLCC that included language gleaned from cases involving charitable immunity. The case was submitted to the jury on a single interrogatory: "Do you find from a preponderance of the evidence that Defendant Davis Nursing Association d/b/a Davis Life Care Center is entitled to the affirmative defense of charitable immunity?" The jury returned a verdict with the answer "No." The circuit court entered judgment on the jury's verdict. Thereafter, DLCC filed a motion for new trial. The motion was deemed denied.

         DLCC appealed the circuit court's judgment and the denial of the motion for new trial to the court of appeals. DLCC contended that (1) the circuit court improperly submitted the question of charitable immunity to the jury, (2) the circuit court inadequately instructed the jury on charitable immunity, and (3) the jury's verdict was clearly contrary to the preponderance of the evidence and contrary to the law on charitable immunity. The court of appeals affirmed. Davis Nursing Ass'n v. Neal, 2018 Ark.App. 413, 560 S.W.3d 485. Davis filed a petition for review with this court, and we granted the petition. When we grant a petition for review, we consider the appeal as though it had originally been filed in this court. E.g., Roberts v. Roberts, 2009 Ark. 567, 349 S.W.3d 886.

         II. Chari ...