DAVIS NURSING ASSOCIATION D/B/A DAVIS LIFE CARE CENTER APPELLANT
GRACIE NEAL AS PERSONAL REPRESENTATIVE OF JOHNNY NEWBORN AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF JOHNNY NEWBORN APPELLEE
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.
DAN KEMP, CHIEF JUSTICE
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.
Facts and Procedural History
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.
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.
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.
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.
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.
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.