DOLLAR GENERAL CORPORATION; DOLGENCORP, LLC, D/B/A DOLLAR GENERAL; CADDO TRADING CO., INC.; RODNEY FAGAN AND JUDY FAGAN APPELLANTS
KAREN RENEE ELDER APPELLEE
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, by: Kayla M. Applegate and Ryan J.
Applegate, for appellee.
W. 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 Elder's favor. Dollar General and the owners
of the property it leased appealed, and after due
consideration, we affirm.
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, Elder's 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. 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.
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
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
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.
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
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.
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.
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 with any of their duties required by the
lease with Dollar General. The circuit court denied the
their defense, Dollar General and the Landlords presented
testimony from Dr. Owen Kelly and Dr. Alonzo Burba. Dr. Kelly
is an orthopedic surgeon who testified that Elder's
surgery was the result of longstanding conditions and was not
caused by the fall. Dr. Burba is a neurologist who testified
that he evaluated Elder and could not say within a reasonable
degree of medical certainty what caused Elder's injuries
after the fall. At the conclusion of Dr. Burba's
testimony, Dollar General and the Landlords renewed their
motion for a directed verdict, which was again denied.
case was submitted to the jury on interrogatories, and the
jury returned a $700, 000 verdict. The jury found that all
parties were at fault. It allocated 10 percent fault to
Elder. The jury found each of the remaining parties-Dollar
General Corporation; Dolgencorp, LLC; Caddo Trading Co.,
Inc.; and Judy and Rodney Fagan-to be 22.5 percent
responsible. The jury verdict was reduced to judgment.
Thereafter, Dollar General and the Landlords filed a motion
for judgment notwithstanding the verdict and a motion for new
trial, which were deemed denied.
General and the Landlords filed a timely notice of appeal. On
appeal, Dollar General and the Landlords contend that the
circuit court erred by (1) failing to grant a directed
verdict because Elder did not prove that the sidewalk was
unreasonably dangerous; (2) failing to grant a directed
verdict because Elder did not prove that the Landlords failed
to maintain the sidewalk; (3) allowing Dr. Carson to testify
as an expert regarding the causal connection between
Elder's fall and the treatment provided by medical
doctors; and (4) allowing Elder to give causation testimony.