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Foul Language and Free Speech: Does Being Offended Justify an Arrest?

While most people treat law enforcement officers with respect, there are occasions when a citizen will voice his/her dissatisfaction with law enforcement officers. One such case occurred in Fort Smith, when a driver yelled “f*** you!” through his car window as he passed an Arkansas State Trooper who was performing a traffic stop related to a different vehicle. After the trooper noticed the reaction of two children to the profane language, he promptly tracked down the driver in his vehicle, stopped him, and arrested him for “disorderly conduct.” The driver spent several hours in jail, but was eventually released and all charges against him were dropped. Despite this apparent resolution, questions remained – was the profane language unprotected or protected speech and was his profane yelling actually a violation of Arkansas’s disorderly conduct law?

Following his release, the driver filed a civil rights lawsuit alleging violations of his First Amendment right to free speech and Fourth Amendment right against unreasonable seizure.  In its opinion in Thurairajah v. City of Fort Smith, 2019 U.S. App. LEXIS 16573, __ F.3d __ (8th Cir. 2019), the Eighth Circuit Court of Appeals recognized that “the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out.”  The driver was able to show that (1) his speech was protected; (2) the trooper’s adverse action against him would have a chilling effect on persons wishing to continue in the same type of speech; (3) the motivation for the arrest was at least partially related to the driver’s exercise of a protected activity; and (4) there was no probable cause or arguable probable cause for the arrest.

In this case, the key elements of the analysis related to whether the profane language was considered free speech and whether there was probable cause for an arrest for disorderly conduct.  The protected nature of the speech is clear.  In Thurairajah, the Eighth Circuit Court of Appeals explains that the profane language is in fact protected speech, citing to a Vietnam War era United States Supreme Court opinion finding a jacket with a similarly profane anti-draft message was protected speech.  Furthermore, the Eighth Circuit went on to explicitly confirm that “[c]riticism of law  enforcement officers, even with profanity, is protected speech.”

Although the content of the language is thus clearly protected, the scope and volume of the language could still potentially render it a violation of Arkansas’s disorderly conduct law, as the applicable Arkansas statute penalizes “unreasonable or excessive noise.”  However, in its opinion, the Eight Circuit Court of Appeals highlights the fact that “Arkansas courts have not previously concluded that a two-word yell could violate the disorderly conduct statute’s unreasonable or excessive noise provision.”  In fact, the Court of Appeals cites to one Arkansas case in which “the Arkansas Court of Appeals held that 20 seconds of public shouting involving foul language did not establish disorderly conduct.”  Based upon the applicable facts and the established case law, the Eighth Circuit Court of Appeals held the trooper failed to meet the minimum standard of” arguable probable cause” for the driver’s arrest, acknowledging that the “conduct may have been offensive, but it was not an unreasonable or excessive noise.”  While it may be appropriate for the driver’s mother to wash his mouth out with soap, it was unlawful for the trooper to arrest him for making the profane statement.


Up in Smoke: How an Individual’s Previously Destroyed Will Can Still “Exist” at the Time of His/Her Death.

Generally, the last will and testament of a testator (the individual who makes the will) needs to meet various legal formalities to be valid. However, a testator can revoke his/her will by simply intentionally destroying the will prior to his death. As a result, the validity of a will is questioned when the will is lost or unintentionally destroyed prior to the testator’s death. So what happens when a will is lost/destroyed as a result of a house fire?

The Arkansas Court of Appeals recently addressed this issue in the case of Cunningham v. Dillard, 2019 Ark. App. 177, 2019 Ark. App. 191 (Ark. App. 2019). Prior to his death, Loy Cunningham executed two separate Wills. The first Will (the “2006 Will”) satisfied the necessary formalities of Arkansas law and was executed in 2006. The second Will (the “2010 Will”) also satisfied the necessary formalities and was executed in 2010. In the 2010 Will, Mr. Cunningham specifically revoked the 2006 Will. As a result of a fire at Mr. Cunningham’s residence in 2012, the 2010 Will was either lost or unintentionally destroyed.

Following Mr. Cunningham’s death in 2016, his daughter, who was the primary beneficiary of the 2006 Will, through a Trust, filed a petition to probate the 2006 Will. Less than two weeks later, Connie, a woman who lived with the testator during the last years of his life, filed a petition to prove the existence and validity of the missing 2010 Will. The main dispute between the parties was whether Connie could satisfy a key requirement for proving the validity of a lost/destroyed will under Ark. Code Ann. § 28-40-302 – namely, a beneficiary seeking to prove the validity of a lost/destroyed will must prove that the will was “in existence at the time of the death of the testator . . .” Mr. Cunningham’s daughter argued that it was impossible for Connie to satisfy this requirement because the parties had stipulated that the 2010 Will was destroyed by a fire in 2012 and, thus, there was no document in existence at the time of Mr. Cunningham’s death. However, Connie argued that the she only needed to prove that the 2010 Will was not intentionally destroyed and thus had a “legal existence” at the time of Mr. Cunningham’s death. The trial court found in favor of Connie and held that the 2010 Will was valid and enforceable.

On appeal, the Arkansas Court of Appeals noted that if a will is not produced after the testator’s death, it is presumed to have been revoked by the testator prior to his death. However, the Arkansas Court of Appeals held that such a presumption can be overcome if the proponent of the lost will proves that the will was not revoked or cancelled during the decedent’s lifetime. Adopting the “legal existence” standard proposed by Connie and due to the parties’ stipulation that the 2010 Will was accidentally lost or destroyed as a result of a house fire, the trial court concluded that Mr. Cunningham did not revoke or cancel the 2010 Will during his lifetime. The Arkansas Court of Appeals accepted the trial court’s determination that Connie proved the 2010 Will was not intentionally destroyed. In addition, it confirmed that under Arkansas law only “legal existence” is necessary to satisfy the requirement that a will be in existence at the time of the testator’s death. Accordingly, if a will is lost or even destroyed by a fire, a beneficiary may still be able to prove the validity of the will.


No Good Deed Goes Unpunished: When Trying to Help a Little Hurts a Lot

A landlord who had no legal obligation to do so, voluntarily fixed a trailer tenant’s refrigerator. Later that day, the tenant blew himself up lighting a cigarette because of a disconnected gas line in the trailer. Though the landlord in the first place had no obligation to repair the refrigerator, the possibility that he may have impacted the gas line when he did so, made him potentially liable for all those damages– perhaps best that the landlord had left well enough alone and let the tenant repair his own refrigerator!

Under Arkansas law, Arkansas Code Annotated §18-16-110, a landlord is not liable to a tenant for death, personal injury, or property damage caused by any defect or disrepair on the premises, unless landlord by specific agreement has agreed to correct or repair any such defects or disrepair, or the landlord has assumed, by conduct, a duty to maintain or repair the premises. In Hurd v. Hurt, 2017 Ark. App. 228, the landlord had no written leases with his tenants, but from time to time undertook at a tenant’s request, to make repairs. Consistent with that practice, at the tenant’s request, the landlord repaired the tenant’s refrigerator and later that day, the tenant in lighting a cigarette blew himself up. The cause of the explosion was determined to be a disconnected gas line. The landlord had not been requested to review or repair the gas line. However, the court ruled that since the landlord had undertaken to repair the refrigerator, he was obliged to do so in a reasonable manner, and whether that repair broke the gas line and that was an unreasonable effort to repair the refrigerator were questions that should be decided by the jury, rather than automatically exculpate the landlord. Had the landlord simply declined to make any repairs for the tenants, he would have had no liability for the gas line explosion, regardless of how it was caused.


Not Red Handed: When A Gun is Found 20 Yards From a Suspect in an Unlocked Shed.

The phrase “caught red handed” is often used in police dramas to describe a suspect in possession of a key piece of evidence that leads to a conviction. However, in many real criminal investigations the evidence of a crime is more nuanced and may depend upon circumstantial evidence to support a claim of constructive possession. For instance, in the recent case of Bradley v. State, 2018 Ark. App. 586 (Ark. App. 2018), the Circuit Court convicted a suspect of illegal possession of a firearm, despite the fact that the suspect did not have physical possession of the firearm at the time he was arrested. However, that conviction was subsequently reversed on appeal.

In Bradley, the defendant was convicted of being a felon in possession of a firearm in violation of Ark. Code Ann. § 5-73-103(c)(1)(A). Prior to Bradley’s conviction for that offense, the Circuit Court dismissed five separate charges related to Bradley’s alleged actions on the night he was arrested. All of the charges stemmed from an alleged domestic disturbance at a house in Little Rock. On the night of the alleged incident, the police responded to a 911 call and found various individuals in the house, including an older teenager. The suspect was arrested in the backyard, approximately 20 yards from a metal shed that was located next to the backdoor. About the time of the suspect’s arrest, one of the police officers located a loaded Glock semiautomatic pistol inside the metal shed. The suspect subsequently identified the Little Rock house as his address on a Miranda form.

In Arkansas, “[a] conviction for violating section 5-73-103(a)(1) may be based on actual or constructive possession. Bradley, 2018 Ark. App. at *7. “To constructively possess contraband means knowing it is present and having control over it.” Id. “Control and knowledge can be inferred from the circumstances . . .” Id. at 7-8 (finding it necessary that the item be “found in a place that is immediately and exclusively accessible to the accused . . .”). The Arkansas Court of Appeals determined that the Circuit Court had improperly applied the standard by accepting circumstantial evidence of constructive possession that “did not foreclose, beyond speculation and conjecture, every other reasonable hypothesis of [the defendant’s] guilt.” Id. at 9. The Circuit Court had previously concluded that the prosecution had met its burden of proof, “based upon proof that the Glock firearm located in the rear of the defendant’s residence . . . was located in an area from which the defendant was seen by police officers to have been fleeing or running. It was located in close proximity in time from the time that the defendant was being pursued. It was located in an open space, in an area near where defendant was apprehended.”

Evaluating the circumstantial evidence, the Arkansas Court of Appeals noted that: (1) the police officers admitted that multiple people had access to the house and the shed where the gun was found; (2) no witness had explained the defendant’s relationship to the people in the house; (3) the prosecution did not present evidence that the defendant had a property interest in the house, nor did it provide evidence that he paid utility bills for the house; (4) the prosecution did not link the defendant to the gun through fingerprint analysis, ownership records, or testimony regarding the defendant having a history of prior gun ownership/use; (5) there was no testimony regarding who used the storage shed, the purposes of that use, and the period of time it had been used;(6) the gun was located approximately 20 yards from the defendant, outside of the house, in an open box, in an unlocked shed; and (7) “the police officers did not recover any personal items that may have linked [the defendant] to the metal shed, the gun, or the house.” Id. at 9-12. Based upon these deficiencies, the Arkansas Court of Appeals held that there had not been “substantial evidence to support the conviction . . .” and reversed the conviction.

While it is possible to use constructive possession to prove a crime has occurred, it is difficult to accomplish. Whenever possible, it is better to catch the suspect “red handed.”


How Hostile Must I Be To Acquire Ownership By Adverse Possession?

To prove ownership of land by adverse possession, one must show possession of the disputed property continuously for seven years and that the possession has been actual, open, notorious, continuous, hostile and exclusive, and accompanied with an intent to hold the property against the true owner. However, a recent decision by the Arkansas Court of Appeals shows that the element of hostility is now viewed by an objective, rather than a subjective, standard, which should make it easier for one claiming ownership by adverse possession to prove his claim.

Garland Gilmore filed suit against Sean and Kim Collier to quiet title to a disputed strip of property. Both Gilmore and the Colliers acquired their respective titles from a common predecessor, Lyn and Myrtle Holder. Mr. Gilmore testified at the trial that when he purchased his property in 1972, he was told by Mr. Holder that he was buying all of the land up to a then-existing fence, which enclosed the property where Mr. Holder lived (and which the Colliers now own). The fence was later removed, but Mr. Gilmore actively farmed the disputed strip of land up to where the fence used to be for more than 40 years. The Colliers maintained that the descriptions in the deeds control and that the boundary line should conform to the deeds and not to Holder’s and Gilmore’s understanding of where the boundary line was located.

To establish ownership of property by adverse possession, one must show that he has had actual, open, notorious, continuous, hostile and exclusive possession of the disputed property for seven years, along with an intent to hold the property against the true owner. At the trial, Mr. Gilmore testified that he has always believed that the property he was farming belonged to him and that it was not his intention to “take” the property from anyone. The Colliers argued that this testimony showed that Mr. Gilmore’s use was not a hostile use, but was a permissive use. If one uses someone else’s property with permission, he cannot show the hostile intent necessary for adverse possession.

The Court of Appeals concluded that Gilmore’s act of farming the disputed tract for decades was enough to “establish an intent to hold against, and not in subordination to, the true owner’s rights.” The fact that Gilmore subjectively believed he was farming up to the true property line – which would seemingly eliminate the element of hostility – was deemed unimportant. Instead, the Court focused on Gilmore’s objective behavior. Applying an objective, rather than a subjective, view of intent, the Court found that Gilmore’s possession was “hostile” because “it was to an extent greater than the deed anticipated; and his conduct was not subordinate to Holder’s property interests or done with Holder’s permission.” Collier v. Gilmore, 2018 Ark. App. 549 (November 14, 2018).

This case signals Arkansas’s shift towards what the Court of Appeals described as the “trending” majority view that in adverse possession cases, the element of hostility will be determined by the parties’ behaviors and not by inquiring into a claimant’s subjective intent. So, even if you only intended to possess up to the true property line, if you actually possess property beyond that line and can establish the other necessary elements, your adverse possession claim should succeed. This new interpretation of the law also puts a heavy obligation on all landowners to know where their legal boundaries lie and to enforce those against a neighbor’s apparently non-hostile use. In other words, if your neighbor is mowing, gardening, playing on or otherwise using property inside your boundary, even though only smiling quietly at you as he does it, he is maturing his claim to your property.


Child’s Severe Burns From Space Heater Do Not Result In Landlord Liability For Failed Heating System.

A landlord had a duty to provide heat to his tenant’s residence and knew that the furnace was broken. Yet, the landlord was held to have no liability when his tenant’s nine-year old granddaughter suffered extensive burns after her dress came in contact with a space heater being used to heat the home. Why? It was not reasonably foreseeable that the landlord’s breach of his duty to provide heat would result in burn injuries from a space heater.

The outcome in Robinson v. Willis, 2018 Ark. App. 542 (November 7, 2018) may seem harsh. Nonetheless, it is consistent with principles of tort law which have been in place in the State of Arkansas for many years. In the Robinson case, Brandy Robinson was staying with her grandmother, Barbara Robinson, on December 23, 2011 in a residence Ms. Robinson leased from landlords James Willis and Marion Starks. The heating system on the property did not work and Ms. Robinson was using space heaters to heat the home. Brandy’s dress caught fire when it came in contact with one of the space heaters, causing her to suffer extensive burns. Brandy’s mother filed suit against the landlords (as well as against the manufacturer and seller of the space heater). She claimed that the landlords breached their duty to provide heat by not fixing the broken furnace, causing the need to purchase space heaters, which then resulted in Brandy’s dress catching fire and causing serious burns.

The trial court granted a summary judgment in favor of the landlords and the Arkansas Court of Appeals affirmed. The case turned on the concept of foreseeability. Even though the landlords admitted that they had a duty to repair the heating system, and even though they acknowledged that it was foreseeable that their tenant might buy a space heater when the heating system did not work, the court stated, “It does not follow, however, that it was also foreseeable Barbara’s grandchild would suffer burn injuries from the use of such space heaters.” The Court emphasized that a defendant is under no duty to guard against risks it cannot reasonably foresee, saying “Harm that is merely possible is not necessarily reasonably foreseeable.” The Court explained that when the voluntary acts of human beings intervene between the defendant’s act and the plaintiff’s injury, the question is always: Was the third person’s conduct sufficiently foreseeable to make the defendant’s act a negligent one?” In this case, the court concluded that reasonable minds could not foresee that Brandy would suffer burn injuries from the use of a space heater.

Interestingly, although Arkansas cases often state that foreseeability is a question for the jury, not the court, to decide, the Robinson court did not allow the issue of foreseeability to go to a jury and instead decided the case as a matter of law. Thus, this case may now make it easier for defendants to have foreseeability issues determined by courts in summary judgment proceedings. You might wonder, “How was it not foreseeable that if the heat failed, the tenants would have to use alternative, inapt, and perhaps dangerous methods to avoid freezing to death?” But, that was the final decision of the Court and it stands as precedent for future decisions.


Making Bad Decisions Leads to More Bad Decisions: Meth Use Does Not Invalidate Consent to a Police Search.

Methamphetamine is an insidious drug that can cause serious turmoil in the lives of its users. That point is exemplified in the recent case of Dye v. State, 2018 Ark. App. 545 (Ark. App. 2018), in which a methamphetamine user consented to a police search of his house, while he was under the influence of the drug.

On the night at issue in that case, a police officer came across two vehicles on a road near an industrial park that was on private property. He was patrolling the area due to reports of trespassing on private property. After approaching the vehicles, the officer noticed an occupant with a hand full of cash and a black pouch full of loose baggies between the seats.

After additional patrol cars arrived, one of the occupants of the vehicles fled the scene on foot. When asked about where the fleeing person might have gone, the remaining person told the officers that the fleeing man was staying with him at his house. He consented to a search of the house, both verbally and in writing, and gave his key to the house to the officers. The officers later admitted that during his conversation with police, the man’s “speech was slurred, his eyes were glassy, and he was unsteady on this feet.” They concluded that he was under the influence of a narcotic. Despite the man’s condition at the time of his consent, the officers searched the home and within five minutes they discovered a shotgun, shotgun shells, spoon containing crystal methamphetamine, glass pipe, straws containing a powdery substance, and pit bull mix dog. Based upon the evidence, the man was subsequently convicted of possession of methamphetamine, possession of drug paraphernalia, and being a felon in possession of a firearm.

The man appealed his conviction, arguing the consent obtained by the officers was invalid due to the man being under the influence of drugs at the time the consent was allegedly given. Arkansas Rule of Criminal Procedure 11.1 puts the burden on the state to prove by clear and positive evidence that consent to a search was freely and voluntarily given and that there was no duress or coercion. In this case, both the trial court and the Arkansas Court of Appeals agreed that the state had met its burden, based upon the testimony of the officers that the man understood what was going on, consented to the search of his house, gave the officers his key to this house, and voluntarily advised the police about some of the items found in the house.

The man’s methamphetamine use not only subjected him to criminal prosecution, it also appears to have impacted his judgment to the point that he voluntarily gave the police the keys to his house and the evidence necessary to convict him. Some bad decisions, such as methamphetamine use, have a cascade effect that leads to more bad decisions. As appropriately stated in the pop-culture anti-drug television campaigns of the 1980s, “This is your brain on drugs. Any questions?”

No Noise Ordinance In Your Community? Fire Away!

Owners of land surrounding a shooting range constructed by an American Legion Post on a 40 acre tract in rural Arkansas County filed suit to stop the operation of the range, arguing that noise from the range constituted a nuisance. In a 4-3 decision, the Arkansas Supreme Court sided with the shooting range because no local noise ordinance was in effect. The dissenting justices would have ruled differently, but for the same reason – because no local noise ordinance was in effect.


Noise generated from a shooting range constructed by an American Legion Post in southeast Arkansas prompted neighboring landowners on three sides, including two businesses, to file a lawsuit claiming that noise from the range interfered with the use and enjoyment of their land so as to constitute a legal nuisance. The case required an interpretation of Ark. Code Ann. §16-105-502, a statute which states that a person operating a sport shooting range will not be subject to civil or criminal liability for noise or noise pollution resulting from the operation of the range if the range “is in compliance with noise control ordinances of local units of government that applied to the sport shooting range and its operation at the time the sport shooting range was constructed and began operation.” It was undisputed that there was no noise control ordinance if effect when the Legion’s range began operation. The circuit court found that because there was no local noise ordinance in existence, the range was entitled to immunity from suit under the statute.

The landowners appealed to the Arkansas Supreme Court and lost. In 3 Rivers Logistics, Inc. v. Brown-Wright Post No. 158, 2018 Ark. 91 (March 15, 2018), a four-justice majority of the Court concluded that because no local noise control existed at the time the shooting range began operation, “the Legion was in compliance with local noise control ordinances” and the circuit court was correct in finding that the Legion was entitled to immunity. Interestingly, it was for precisely the same reason – because no local noise ordinance existed – that three justices dissented. Their interpretation of the statute was that a local noise ordinance controlling how much noise is acceptable must be in place in order for a shooting range to enjoy the immunity granted by the statute. The dissenting justices stated that if the legislature intended for the statute to immunize a shooting range even when there is no noise ordinance that would apply, it would have simply said so.

Will shooting ranges that become operational when where there in no local noise control ordinance in effect be forever immune from nuisance suits, as the dissenting opinion suggests? Time will tell. For now, though, it is clear that range owners and their customers need not worry about a neighbor’s noise complaints if no local noise ordinance was in effect when the range opened for business.


To Catch a Catfish: A Woman’s Impersonation of a Deceased Romantic Rival Provided Sufficient Proof of Murder

“Catfishing” is a well known phenomenon in modern society in which a person adopts the digital identity of a real person, or even a non-existent person, on social media and/or other digital platforms, as a means of deceiving someone for romantic, financial, or other fraudulent purposes. An imposter in Nebraska took this practice to a whole new level, when she murdered her romantic rival and then adopted that person’s digital identity for nearly four years in an effort to cover up the murder.

In 2012, Cari Farver was casually dating a man named David Kroupa. Mr. Kroupa had recently broken off a relationship with a woman named Shanna Golyar. Ms. Golyar made multiple attempts to resume the relationship with Mr. Kroupa, including interrupting one of his dates with Ms. Farver, a woman that Mr. Kroupa had only recently started dating. Shortly thereafter, Ms. Farver’s vehicle was vandalized. A couple of days later, Cari Farver went missing.

Although Farver’s body was never found, approximately four years later, Shanna Golyar was charged with Farver’s murder. Following her conviction, Golyar appealed to the Nebraska Supreme Court to seek to have her conviction overturned, because she believed“the evidence was insufficient to support the convictions . . .” Ms. Golyar emphasized that no body or murder weapon were produced at trial.

However, prior to charging Ms. Farver, investigators were able to find digital forensic evidence proving that for a period of approximately four years after Ms. Farver went missing Ms. Golyar had utilized Ms. Farver’s Facebook account, email account, and text messages to adopt Ms. Farver’s digital identity. Using Ms. Farver’s accounts and phone, she sent a message breaking up with Mr. Kroupa, unfriended Mr. Kroupa on Facebook, sent multiple messages to Farver’s family members and friends, sent a message to Farver’s employer to quit her job, sent harassing messages to Mr. Kroupa and his other love interests, and sent harassing messages to herself. Ms. Golyar also created a myriad of false accounts, impersonating other individuals to further her scheme.

In early December of 2015, Ms. Golyar went to police in an attempt frame Amy Flora, the mother of Mr. Kroupa’s children, asserting that she had received harassing messages from Ms. Flora and that she believed Ms. Flora was also the actual source of the “harassing” messages ostensibly sent by Farver. A few days later, Ms. Golyar provided the police with additional harassing messages that she claimed came from Ms. Flora. Later that same day, Ms. Golyar shot herself in the leg. When the police arrived, Ms. Golyar alleged that Ms. Flora was the one who shot her. Using imposter email accounts, Ms. Golyar continued to send emails, purportedly from Ms. Flora. These emails included harassing comments and Ms. Flora’s supposed admissions regarding the murder of Ms. Farver, an arson at Ms. Golyar’s residence, and the shooting of Ms. Golyar.

Through their investigation of Ms. Golyar’s allegations, the police were able to confirm that all of the messages originated from Ms. Golyar. Police also discovered digital images tied to Ms. Golyar’s phone that included tattoos on Ms. Farver’s body and Ms. Farver’s vehicle. Moreover, the investigation uncovered digital evidence that placed Ms. Golyar in proximity to various criminal acts and tied her to the imposter accounts. On appeal, the Nebraska Supreme Court upheld Ms. Golyar’s murder conviction, based upon the digital forensic evidence, finding “circumstantial evidence associated with the victim’s disappearance can be sufficient to establish the death.” State v. Golyar, 301 Neb. 488 (Neb. 2018). While Ms. Golyar may have thought that she had gotten away with the perfect murder, by disposing of the body and the murder weapon, her digital footprints associated with her catfishing provided the proof necessary to tie her to the murder. Sometimes facts truly are stranger than fiction.

Emotional Distress Without Physical Injury = No Lawsuit.

At 2 a.m., a drunk driver crashes through your house while you sleep. You aren’t physically injured, but the incident dredges up memories of a past accident which claimed the life of your mother and daughter and now you have nightmares and trouble concentrating. Do you have a claim against that driver? Arkansas courts say “No.”

In Holman v. Flores, 2018 Ark. App. 298 (May 9, 2018), the Arkansas Court of Appeals was asked to recognize the tort of negligent infliction of emotional distress as a viable claim under Arkansas law. Rick Holman, his wife, Joy, four of their children, and a friend of their daughter’s were asleep in the Holman home at 2:40 a.m. when Anna Marie Flores, believed to be intoxicated, drove a vehicle into the home, causing damage. Rick suffered no physical injuries as a result of the incident. However, he claimed emotional distress because he said that it rekindled memories of a 1999 wreck in which he drove up on the burning remains of an accident in which his mother, his 18-month old daughter, and his nephew were burned to death and his oldest daughter remained in a coma for 30 days. Rick said that he now saw his mother’s vehicle every night in his dreams, his mind would race at night, and not a day went by when he did not think about the 1999 accident.

The Court of Appeals refused to recognize the tort of negligent infliction of emotional distress, stating that the Arkansas Supreme Court has declined to recognize the cause of action and that it is bound to follow Supreme Court precedent. In Dowty v. Riggs, 2010 Ark. 465, 385 S.W.3d 117 (2010), the Arkansas Supreme Court explained that if there is no physical injury, then there can be no recovery for mental or emotional pain and anguish because such an injury is thought to be too remote, uncertain, and difficult to ascertain. On the other hand, when a physical injury is suffered, mental pain and anguish may be considered because they are so intimately connected and too difficult to separate. The Dowty court acknowledged that the majority of jurisdictions in the United States do allow recovery for the negligent infliction of emotional distress and it stated that advances in the understanding of the effects of emotional trauma might cause the court to rethink its rejection of such claims and to re-visit the issue in the future. However, the Dowty court found that the facts before it (where the plaintiff witnessed her husband being shot in the arm and was forced to grab her child and flee the scene as gunshots continued to be fired) did not warrant the creation of a new tort.

Rick Holman was hoping that his case would be the one which would cause the Court of Appeals to re-visit Dowty. Instead, the Court of Appeals concluded that Dowty remains the law in Arkansas. The dismissal of Mr. Holman’s claim was affirmed. It is a virtual certainty, however, that plaintiffs’ attorneys will continue to file lawsuits making claims of negligent infliction of emotional distress, hoping that the particular facts of their case will convince our highest courts that such claims should be recognized and their lawsuits allowed to proceed.