DOLLAR GENERAL CORPORATION; Dolgencorp, LLC, d/b/a Dollar General; Caddo Trading Co., Inc.; Rodney Fagan and Judy Fagan, Appellants
Karen Renee ELDER, Appellee
Rehearing Denied January 8, 2020
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
FROM THE MONTGOMERY COUNTY CIRCUIT COURT [NO. 49CV-13-30],
HONORABLE JERRY RYAN, JUDGE
Dixon Horne PLLC, by: Todd Wooten and Carl "Trey"
Cooper, for appellants.
Applegate Firm, PLLC, Maumelle, by: Kayla M. Applegate and
Ryan J. Applegate, for appellee.
GRUBER, Chief Judge
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 Elders favor. Dollar General and the owners of
the property it leased appealed, and after due consideration,
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.
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.
years that followed her fall, Elders lifestyle dramatically
changed. She no longer was able to maintain the active
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.
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. Each of these defendants employed the
same counsel and mounted a united defense.
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,
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. Carsons 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 Elders 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. Carsons
deposition testimony wherein he stated that he did not have
an opinion regarding the injuries to Elders 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.
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 Elders subsequent medical
establish that her fall was Dollar Generals 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
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
Generals 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.
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. Carsons
qualifications to provide this testimony were sharply
Dr. Carsons 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 Elders 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.
Carson then testified before the jury. He explained that he
had been Elders 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.
close of Elders 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 ...