Torts - Arkansas Distinctions

Front 1

Limitations on Use of Transferred Intent

Back 1

Transferred intent may also be invoked in Arkansas in intentional misrepresentation actions when a document is intended to be directed to others in addition to the immediate recipient or where it is customary for documents to be relied on by third parties.

Front 2

When Arrests are Privileged (False Imprisonment)

Back 2

A warrantless arrest is permitted if there is probable cause that a suspect shoplifted.

Front 3

"Shoplifting" Detentions

Back 3

By statute, the knowing concealment on one's person, or the person of another, of unpurchased goods or merchandise offered for sale by any store shall give rise to a presumption that the actor took goods with the purpose of depriving the owner.

A person engaging in conduct giving rise to such a presumption may be detained in a reasonable manner and for a reasonable time by a peace officer or merchant.

The activation of an antishoplifting or inventory control device as a result of a person exiting shall constitute reasonable cause for detention in a reasonable manner and for a reasonable time.

Front 4

Intention/Causation Requirement in Bystander Cases (IIED)

Back 4

Arkansas does not recognize a cause of action for IIED when the tortfeasor's actions were directed at a third person.

Front 5

Civil Action for Violation of a Criminal Statute

Back 5

Any person injured or damaged by reason of the conduct of another person that would constitute a felony under Arkansas law may file a civil action to recover damages and attorney's fees based on that conduct.

Front 6

Trespass to Land - Damages

Back 6

Arkansas, by statute, provides for treble (triple of actual) damages for numerous types of trespass involving the injuring, destroying, or carrying away of property of another, including trees, crops, and buildings. Treble damages are unavailable if the defendant had probable cause to believe that he was not trespassing.

Front 7

Consent Implied by Law

Back 7

An Arkansas statute provides that consent will be implied where an emergency exists, and
(1) there is no one immediately available who is authorized or capable of consent; or
(2) there has been a protest or refusal of consent by a person authorized, and there is no other person immediately available to consent, but there has been a subsequent material and morbid change in the condition of the affected person. A court may also give consent in a medical emergency if there has been a refusal of consent and there is no other person immediately available who is capable of consent.

Front 8

Retreat - Self-Defense

Back 8

One cannot use deadly physical force in self-defense if one can avoid the necessity of using that force with complete safety by retreating, except if one was in his dwelling and was not the original aggressor.

Front 9

Liability - Self-Defense and Defense of Others

Back 9

Arkansas provides by statute that no person is civilly liable for actions or omissions intended to protect herself or others from personal injuries during the commission of a felony.

Front 10

Injuries Inflicted in Defense of Felony

Back 10

If one committing a felony is injured or his property damaged, the person who causes such injury or damage shall not be liable for damages, provided that
(1) he did not act with malice,
(2) the felon had not clearly retreated from the felonious activity,
(3) the person causing the injury or damage had not prearranged a trap that would automatically inflict injury or damage, and
(4) the act causing the injury or damage was the result of, or in response to, the commission of the felony.

Front 11

When is defense of others available?

Back 11

Arkansas follows the majority rule, permitting the use of force whenever the actor reasonably believes the aided person would have the right to self-defense.

Front 12

General or Presumed Damages Abolished - Defamation

Back 12

Arkansas has abolished the doctrine of presumed damages in all defamation cases. A plaintiff in a defamation case must prove actual injury to reputation to recover damages.

Front 13

Private Persons and Fault of Defendant - Defamation

Back 13

In a suit by a private person against a media defendant, the standard of care is negligence. No malice need be proved.

Front 14

Qualified Privilege Situations - Defamation

Back 14

Employers and supervisory employees have a qualified privilege under Arkansas law against liability for defamation dealing with matters that affect their business.

Front 15

Third-Party Reliance Problem - Misrepresentation

Back 15

Under an exception to the statutory provision that person not in privity of contract with accountants or attorneys cannot hold them liable for civil damages, a third person may bring an action if the accountant or attorney was aware that a primary intent of the client was that the professional services benefit or influence that particular person, who had been identified in writing to the accountant or attorney.

Front 16

Bad Faith

Back 16

Bad faith is an actionable tort. An insurance company can be held accountable in tort for failure to settle a claim within the policy limits. The claim must include affirmative misconduct by the insurance company without a good faith defense, and the misconduct must be dishonest, malicious, or oppressive, with an attempt to avoid its liability under an insurance policy.

Front 17

Damages for Child-Rearing Expenses - Wrongful Birth/Pregnancy

Back 17

Arkansas is in accord with most states and does not permit damages for the child-rearing expenses of a healthy child.

Front 18

Professionals and Duty to Disclose Risks of Treatment - Standards of Conduct

Back 18

By statute, if the plaintiff claims that a medical care provider failed to supply adequate information to obtain the informed consent of the injured person, the plaintiff shall have the burden of proving that the treatment was performed in a nonemergency situation and that the medical care provider did not supply that type of information that would customarily have been given about the treatment.

Front 19

Children Engaged in Adult Activities - Standards of Conduct

Back 19

For the adult standard to apply in Arkansas, the child must be engaged in an activity that is both hazardous and normally engaged in only by adults.

Front 20

Standard of Care in Emergency Situations

Back 20

Arkansas no longer recognizes the sudden emergency doctrine, so no special instruction concerning emergency may be given to the jury.

Front 21

Duty Owed to a Trespasser (Railroad Tracks)

Back 21

By statute all persons running trains have a duty to keep a constant lookout for any persons, including licensees and trespassers, or any property on railroad tracks.

Front 22

Duty Owed to Discovered Trespassers

Back 22

An owner, lessee, or occupant of land does not owe a duty of care to an undiscovered trespasser on the land but can be liable to discovered trespassers for injuries caused by willful or wanton misconduct.

Front 23

"Attractive Nuisance" Doctrine

Back 23

One who maintains upon the premises a condition, instrumentality, machine, or other agency that is dangerous to children of tender years by reason of their inability to appreciate the peril, and that may reasonably be expected to attract children of tender years to the premises, is under a duty to exercise reasonable care to protect them against the dangers of the attraction.

Front 24

"Firefighter's Rule"

Back 24

Provides generally that a professional firefighter may not recover damages from a private party for injuries she sustained during the course of putting out a fire even though the private party's negligence may have caused the fire and injury.

Front 25

Users of Recreational Land

Back 25

Arkansas's statute limiting a landowner's duty to recreational users of land encompasses any activity undertaken for exercise, education, relaxation, or pleasure. Like most states, Arkansas does not apply the statute if the landowner charged a fee for use of the land or maliciously failed to warn of or guard against a dangerous condition or activity.

Front 26

Persons Gathering Farm Products

Back 26

An Arkansas statute provides that there is no cause of action against an owner, tenant, or lessee for injuries to:
(1) a person who is on the land for the purpose of gleaning agricultural or farm products, unless caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee; or
(2) a person (other than an employee or contractor) who is on the land for the purpose of picking and purchasing farm products, unless the injuries were caused by an unreasonable risk of harm and
(1) the owner, tenant, or lessee knew or had reason to know of the condition or risk,
(2) the owner, tenant, or lessee failed to exercise reasonable care to make the condition safe or to warn, and
(3) the injured person did not know or have reason to know of the condition or risk.

Front 27

Duties of a Lessor of Realty

Back 27

Landlord owes no duty of care to his tenant absent a lease provision providing for such duty; hence, landlord owes no duty to protect the tenant from foreseeable criminal acts of others.

Front 28

Duty Regarding Negligent Infliction of Emotional Distress

Back 28

The claim of NIED is not recognized in Arkansas.

Front 29

"Good Samaritan" Statutes

Back 29

Any person licensed as a physician who in good faith lends emergency care or assistance without compensation at the place of an emergency or accident, and who was acting as a reasonable and prudent person would have acted under the circumstances, is not liable for civil damages.

Any person who is not a physician, nurse, or EMT, and who is present at an emergency or accident scene, is not liable for civil damages when she lends emergency assistance, provided she acted in good faith and was acting as a reasonable and prudent person would have acted.

Front 30

Personal Injury - Damages

Back 30

In the absence of a showing of physical injury, a recovery for mental suffering cannot be had in negligence actions. No damages are recoverable for mental anguish over claims for fraud, deceit, or breach of warranty.

Front 31

Punitive Damages

Back 31

To recover punitive damages in Arkansas, the plaintiff must prove, by clear and convincing evidence, that the defendant is liable for compensatory damages and either
(1) knew or ought to have known that his conduct would cause injury and proceeded with malice or in reckless disregard of the consequences, or
(2) intentionally acted to cause injury.

Arkansas caps the amount of punitive damage awards at the greater of (1) $250,000 or (2) three times compensatory damages up to $1 million.
NOTE: The caps do NOT apply to intentional wrongdoing.

Front 32

Imputed Contributory Negligence - Husband and Wife

Back 32

There is a community of interest between the husband and wife, in the nature of a joint enterprise, with regard to the care and supervision of their children. In a wrongful death action in which one parent of a deceased minor child is found contributorily negligent, the award of damages to the nonnegligent parent should be reduced by that amount of negligence attributed to the other parent, but the innocent parent is entitled to recover some damages even if the negligent parent's fault was 50% or greater.

Front 33

Express Assumption of Risk - Defense to Negligence

Back 33

Exculpatory clauses are disfavored under Arkansas law and will not be upheld unless they specifically and unambiguously define the negligence for which liability is to be avoided.

Front 34

"Partial" Comparative Negligence

Back 34

Arkansas has by statute adopted a "comparative fault" system. Liability is determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party or parties from whom the claiming party seeks to recover damages. The fault of tortfeasors who are not a party to the litigation is not included in this calculation.

If the fault chargeable to a party claiming damages is less serious than the fault chargeable to the party or parties from whom the claiming party seeks to recover damages, the claiming party can recover the amount of his damages after they have been diminished in proportion to the degree of his own fault. In other words, a plaintiff may not recover if her fault was equal to or greater than the defendants' total fault.

Front 35

Multiple Defendants - Comparative Negligence

Back 35

Arkansas follows the majority "combined comparison" approach: If the plaintiff's negligence is less than 50% of all the co-defendants, he is entitled to recover from each or all of them as joint tortfeasors even though plaintiff's negligence equals or exceeds that of a particular co-defendant.

Front 36

Assumption of Risk - Comparative Negligence

Back 36

Since Arkansas is a comparative fault state, assumption of risk is not a complete bar to recovery but is simply a matter to be considered in deciding fault.

Front 37

Harm to Other Animals - Liability for Animals

Back 37

Arkansas provides a right of action where a dog kills or injures other domesticated animals.

Front 38

Effect of Government Safety Standards - Products Liability

Back 38

Compliance by a manufacturer or supplier with any statute or administrative regulation existing at the time a product was manufactured, and prescribing standard of design, inspection, testing, manufacture, labeling warning, or instructions for use of a product, shall be considered as evidence that the product is not in an unreasonably dangerous situation.

Front 39

Scientifically Unknowable Risks - Products Liability

Back 39

An Arkansas statute provides that, in determining the liability of the manufacturer, the state of scientific and technological knowledge available to the manufacturer or supplier at the time the product was placed on the market, rather than at the time of the injury, may be considered as evidence. This provision is not applicable to an action based on express warranty or misrepresentation.

Front 40

Nature of Damages Recoverable - Strict Tort Liability

Back 40

Arkansas follows the minority rule that mere "economic loss" is recoverable in a products liability action, as long as the plaintiff has established that the product was "unreasonably dangerous."

Front 41

Privity - Warranties

Back 41

While Arkansas has adopted the narrowest version of UCC section 2-318, another Arkansas statute provides that lack of privity between the plaintiff and defendant is not a defense in breach of warranty cases.

Front 42

Automobile Owner for Driver - Vicarious Liability

Back 42

By statute, the negligent or willful misconduct of a child under 18 driving a car will be imputed to the parent if the parent signed the application of the minor for a driver's permit or license, or if the parent permitted the child to drive.

Front 43

Parent for Child - Vicarious Liability

Back 43

By statute, parents of a minor under 18 who lives with them are liable for up to $5,000 for the child's malicious or willful destruction of real or personal property. Also, the parent or legal guardian having custody of an unemancipated minor over six and under 18 who takes possession of any goods with the intent of converting the goods shall be subject to civil damages and penalties.

Front 44

Tavernkeepers - Vicarious Liability

Back 44

Under Arkansas's recently enacted Dramshop Act, which supersedes prior case law, a retailer who sells alcoholic beverages to one who the retailer knows or should know is a minor or a clearly intoxicated adult may be held liable for subsequent injuries caused by the buyer to third persons. Liability is expressly limited to licensed alcoholic beverage retailers - social hosts and other providers are excluded from liability.

Front 45

Statutory Limitations on Joint and Several Liability

Back 45

Arkansas by statute has abolished joint and several liability for actions for personal injury, medical injury, property damage, and wrongful death. Liability in such actions is several only, allocated in proportion to each defendant's percentage of the total amount of the plaintiff's damages. In assessing the percentage of fault, the trier of fact is to consider the fault of everyone who contributed to the alleged injury, whether a party to the suit or not. The statute provides for consideration of the fault of the nonparties and for an increase, according to a prescribed formula, in the percentage of multiple defendants' several shares if any defendant's share is not reasonably collectible. A party remains liable for the fault of another if both the party and the other were acting in concert or the other was acting as the party's agent or servant.

Front 46

Release

Back 46

In accordance with the majority of states, Arkansas provides that a release by the injured person of one joint tortfeasor does not relieve him from liability to make contribution to another joint tortfeasor unless
(1) the release is given before the right of the other tortfeasor to secure a money judgment for contribution has accrued, and
(2) the release provides for a reduction, to the extent of the pro rata share of the released tortfeasor, of the injured person's damages recoverable against all the other tortfeasors.

Front 47

Comparative Contribution

Back 47

Arkansas has adopted the Uniform Contribution Among Tortfeasors Act. Where there is such a disparity of fault among joint tortfeasors as to render inequitable an equal distribution among them of the common liability by contribution, the relative degrees of fault of the joint tortfeasors shall be considered in determining their pro rata shares for contribution among themselves.

Front 48

Wrongful Death - Measure of Recovery

Back 48

Arkansas now permits recovery for the wrongful death of a viable fetus under the survival and wrongful death statute.

Front 49

Parent-Child Immunity

Back 49

An unemancipated minor child has no right of action for negligence against a parent or person standing in loco parentis for the tort of such parents or person.

Front 50

State Governments - Tort Immunity

Back 50

The state is immune from suit. The state's sovereign immunity extends to actions for declaratory relief. Immunity does not apply when a state agency's action is illegal or when a state agency officer refuses to perform a purely ministerial task required by statute.

Front 51

Municipalities - Tort Immunity

Back 51

All counties, municipal corporations, school districts, and all other political subdivisions of the state are immune from liability except to the extent that they may be covered by liability insurance. Also, all political subdivisions must carry automobile liability insurance or be self-insured.

An injured person has a direct cause of action against the insurer to the extent of the insurance coverage for any cooperative nonprofit organization, any municipality, any agency of the state, or any school district not subject to suit for tort.

Front 52

Immunity of Public Officials and Contractors

Back 52

A state employee may be held liable for an act done in the performance of his duties as a state employee to the extent the employee carries liability insurance. Under the "acquired immunity" doctrine, a contractor who performs in accordance with the terms and specifications of its contract with a government agency and under direct supervision of the agency is not liable for damages resulting from that performance. The contractor remains liable, however, for damages from performing the contract negligently.

Front 53

Charitable Immunity

Back 53

A public charity is not immune from suit or from having judgment entered against it, but such judgment may not be executed against the charity's property.

Generally, no member of any board, commission, agency, authority, or other governing body of any governmental entity, and no member of the board of directors of a nonprofit corporation, shall be held personally liable for damages resulting from
(1) any negligent act or omission of an employee of the nonprofit corporation or governmental entity, or
(2) any negligent act or omission of another director or member of the governing body of the governmental entity.

The same immunity is extended to any athletic official during the officiating of an interscholastic, intercollegiate, or any other amateur athletic contest being conducted under the auspices of a nonprofit or governmental entity. No official is personally liable in any civil action for damages to a player, participant, or spectator as a result of his acts or omission arising out of officiating, except for malicious, willful, wonton, or grossly negligent acts.

Front 54

Volunteer Immunity

Back 54

Under the Arkansas Volunteer Immunity Act, volunteers generally are not liable for damages for personal injury or property damages sustained by reason of the volunteer's services if the volunteer worked without financial compensation to or through a volunteer agency. Exceptions include bad faith or gross negligence of the volunteer and liability to the extent of insurance policy coverage.

Also, any person or entity who, at the request of any city, county, or state agency, supplies specialized equipment or personnel in response to an emergency shall not be liable for any civil damages for good faith acts or omissions, provided that the services or equipment were provided without compensation and at the place of the emergency.

Front 55

Statutes of Limitations

Back 55

There are one-year statutes of limitation for assault, battery, false imprisonment, and slander.

There is a two-year statute of limitations for medical malpractice. Except for cases involving minors or foreign objects left in the body, the limitations period for a medical malpractice action begins to run from the date the malpractice occurred, not the date the injury manifested itself.

There are three-year statutes of limitation for personal injury actions in general, wrongful death based on torts other than medical malpractice, sexual abuse of a minor that is not discovered until after the injured person reaches majority, products liability actions, libel, conversion, trespass to land, and the taking or injuring of any goods.