Dollar General Corporation v. Elder

          Rehearing Denied January 8, 2020

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          APPEAL FROM THE MONTGOMERY COUNTY CIRCUIT COURT [NO. 49CV-13-30], HONORABLE JERRY RYAN, JUDGE

         Dover Dixon Horne PLLC, by: Todd Wooten and Carl "Trey" Cooper, for appellants.

         The Applegate Firm, PLLC, Maumelle, by: Kayla M. Applegate and Ryan J. Applegate, for appellee.

         OPINION

         RITA W. GRUBER, Chief Judge

          This appeal stems from a $700,000 jury verdict in a slip-and-fall case. In June 2010, Karen Elder slipped and fell on the sidewalk in front of Dollar General in Mount Ida, Arkansas. She later sued Dollar General and the owners of the property it leased for negligence. After a highly contentious jury trial, a Montgomery County Circuit Court jury returned a verdict in Elder’s favor. Dollar General and the owners of the property it leased appealed, and after due consideration, we affirm.

          I. Background

          Appellee Karen Elder went to Dollar General to buy milk. It was raining that day, and while running into the store, Elder slipped and fell on the sidewalk. When Elder got up, she walked into Dollar General and notified employee Pamela Bryant about her fall, and an incident report was taken.

          Before her fall, Elder had an active lifestyle, and she worked as a registered nurse at a local school. However, she also had some preexisting neck and back pain, and she had visited a chiropractor, Dr. Eric Carson, on occasion since 2004.

          In the years that followed her fall, Elder’s lifestyle dramatically changed. She no longer was able to maintain the active

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lifestyle she previously had— including her work as a registered nurse. Elder also sought the care of a chiropractor, a general practitioner, a radiologist, an orthopedic surgeon, a neurologist, and a neurosurgeon. Ultimately, she would undergo shoulder, neck, and back surgeries. She contends that all this medical care was necessitated by her fall.

         In June 2013, Elder sued Dollar General Corporation for negligence. Later, Elder filed an amended and substituted complaint against Dollar General Corporation; Dolgencorp, LLC, d/b/a Dollar General; Miners Village C-Stop, LLC; Caddo Trading Co., Inc.; Rodney Fagan; and Judy Fagan. For practical purposes, Dollar General Corporation and Dolgencorp, LLC (collectively referred to as Dollar General), are corporate entities that own the Dollar General store where the fall occurred. Caddo Trading Co., Inc.; Rodney Fagan; and Judy Fagan (collectively referred to as the Landlords) represent the owners of the land the Dollar General occupied.^[1] Each of these defendants employed the same counsel and mounted a united defense.

          In her amended complaint, Elder alleged she was a business invitee on the premises and sued for negligence asserting that her fall was the proximate cause of severe injuries to her head, neck, and back that required three surgeries and would require treatment for the rest of her life. Elder sought damages, lost wages, and future medical expenses relating to her injuries. Dollar General and the Landlords answered, denying liability.

         Before trial, Dollar General and the Landlords filed a motion in limine seeking to exclude certain evidence. Specifically, they sought to prevent Elder from providing testimony regarding the medical necessity of her treatments. They also sought to prevent Dr. Carson from offering an opinion on whether her slip and fall caused her need for treatment— including surgeries— from medical doctors. They sought to exclude Dr. Carson’s testimony because of what they perceived as a change in course by Elder. Eighteen days before the trial was scheduled to begin, Elder supplemented her discovery responses and notified Dollar General and the Landlords that Dr. Carson would provide his opinion as to the cause of Elder’s neck, back, and shoulder injuries as a result of the fall; the reasonableness and necessity of her medical bills; and the permanency of her injuries. This contradicted Dr. Carson’s deposition testimony wherein he stated that he did not have an opinion regarding the injuries to Elder’s shoulders or nerves as well as his testimony that with the exception of the surgeries Elder underwent for the discectomy and fusion, he had no opinion as to the reasonableness or necessity of any of the other surgeries Elder has had. The circuit court denied the motion in limine.

          A jury trial was held over the course of four days in July 2017. The primary issues were whether the slip and fall was the fault of Dollar General and the Landlords and whether that slip and fall caused the need for all of Elder’s subsequent medical treatment.

          To establish that her fall was Dollar General’s and the Landlords’ fault, Elder presented testimony from Pamela Bryant and Derek Jennings. Bryant, now a former employee of Dollar General, testified that she had seen "about four other people" fall where Elder fell and that she had reported those falls to several Dollar General district

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managers and to landlord Rodney Fagan. Bryant attested that Fagan told her it would be taken care of. She further explained that there was usually a mat outside Dollar General’s entrance. Jennings testified as a safety expert who performed slip-resistance testing on the concrete where Elder fell. Jennings stated that, in his expert opinion, the area where Elder fell was unreasonably dangerous. Both Jennings and Bryant described the concrete outside Dollar General as having a section of smooth, finished concrete that was more slippery than the surrounding concrete.

          Elder sought to establish causation through the testimony of Dr. Carson and herself. Over the objections of Dollar General and the Landlords, Elder testified regarding the medical necessity of her treatments that occurred after her fall. Elder also sought to provide causation testimony through Dr. Carson. Specifically, she intended for Dr. Carson to testify regarding the necessity of her medical treatments and that they were causally related to her fall. Dr. Carson’s qualifications to provide this testimony were sharply disputed.

          When Dr. Carson’s testimony began, Dollar General and the Landlords renewed their objections. The circuit court allowed counsel for Dollar General and the Landlords to voir dire Dr. Carson regarding his qualifications outside the presence of the jury. During voir dire, Dr. Carson explained his educational and practical background in the areas of chiropractic, neurology, and orthopedics. The circuit court ultimately ruled that Dr. Carson was qualified to give expert testimony relating to whether Elder’s fall caused her need for medical care, including shoulder, neck, and back surgeries. Thereafter, counsel for Dollar General and the Landlords requested a continuance, but the circuit court denied the request, and the trial resumed.

          Dr. Carson then testified before the jury. He explained that he had been Elder’s treating chiropractor since 2004. He opined that despite an occasional acute injury, there was no indication that she would have needed treatment beyond chiropractic care before the 2010 fall. Thereafter, he testified that it was his expert opinion that the fall caused her need for medical care, including shoulder, neck, and back surgeries. Dollar General and the Landlords chose not to cross-examine Dr. Carson.

          At the close of Elder’s case-in-chief, Dollar General and the Landlords moved for a directed verdict. They argued that a directed verdict should be granted because Elder failed to present substantial evidence that the sidewalk she slipped and fell on was unreasonably dangerous. They further claimed that a directed verdict in favor of the Landlords should be granted because there was no evidence that the Landlords had failed to comply ...