Center for America

State Tort Law Profile

State List

 

Arkansas

Last Updated 08/25/2009

Analysis prepared for the Center for America by Shook, Hardy & Bacon L.L.P  

Liability

Joint and Several

Economic Damages

Modified 

Joint liability has been abolished, except in concert of action cases.  If the trial court finds that any defendant's share will not be "reasonably collectible," the remaining defendants' shares shall be adjusted as follows: if a defendant is found to be more than 10% but less than 50% at fault, the court may increase that party's proportionate share up to 10 percentage points; if a defendant is found to be more than 50% at fault, the court may increase that party's proportionate share up to 20 percentage points.

Ark. Code Ann. §§ 16-55-201, 16-55-203.

 

Non-Economic Damages

Modified

See above.

May a Jury Allocate Fault Among All Persons Contributing to an Injury?

No

The Arkansas Supreme Court held the section of the Civil Justice Reform Act of 2003 permitting allocation of fault to nonparties (Ark. Code Ann. § 16-55-202) unconstitutional in Johnson v. Rockwell Automation, Inc., 2009 WL 1218362 (Ark., Apr. 30, 2009).

 

Market Share Liability

No

Jackson v. Anchor Packing Co., 994 F.2d 1295 (8th Cir. 1993).

 

Defenses

Comparative Negligence

Yes, modified

If the plaintiff's fault is less than the fault of the party or parties from whom the plaintiff seeks to recover damages, then the plaintiff is entitled to recover the amount of his damages after they have been diminished in proportion to the degree of his or her own fault.

Ark. Code Ann. § 16-64-122(b).

 

Assumption of Risk

No

The Arkansas Supreme Court determined in Dawson v. Fulton, 745 S.W.2d 617 (Ark. 1988), that following adoption of comparative negligence, assumption of the risk is no longer applicable in Arkansas as a separate theory; see also Ouachita Wilderness Inst., Inc. v. Mergen, 947 S.W.2d 780 (Ark. 1997).

 

Product Misuse

Uncertain

Compliance With 
Government Standards

No

Compliance with standards is admissible as evidence that a product was not defective, but is not a complete defense.

Ark. Code Ann. § 16-116-105(a).

 

Statute of Repose

In some cases

Use of a product beyond its anticipated life by a consumer where the consumer knew or should have known the anticipated life of the product.  Such use may be considered as evidence of fault on the part of the consumer.

Ark. Code Ann. § 16-116-105(c).

 

Government Contractor Defense

In some cases

A contractor who performs work in accordance with a government contract under the direct supervision of the agency, is not liable unless it is negligent in performing under the contract.

Smith v. Rogers Group, Inc., 72 S.W.3d 450 (Ark. 2002).

 

McLawsuits Permitted?

Can a food manufacturer, distributor, seller, or retailer be sued based on an individual's weight gain, obesity, or obesity-related health condition?

No restriction

Compensatory Damages

Is there a statutory limit on economic damages?

No

Ark. Code Ann. § 16-55-212(a).

Is there a statutory limit on non-economic damages?

No

See above.

Is recovery for medical monitoring permitted without physical injury?

Uncertain

Baker v. Wyeth-Ayerst Laboratories Div., 992 S.W.2d 797, 798 n.2 (Ark. 1999) (class certification improper in action where plaintiffs agreed to treat medical monitoring as type of damages instead of separate cause of action); see also In re Pempro, 230 F.R.D. 555, 569 (E.D. Ark. 2005) ("Arkansas has rejected medical monitoring as a cause of action, and questions its availability as a remedy.").

 

Punitive Damages

Is there a statutory limit?

Yes

Punitive damages are limited to $250,000 or three times compensatory damages, not to exceed $1 million.  The limits are to be adjusted for inflation every three years beginning January 1, 2006.

Ark. Code Ann. § 16-55-208.

 

A constitutional challenge was pending at the time of this publication.  See Beverly Enterp., Inc., v. Reaton, No. 08-834 (Ark., Feb. 12, 2009) (appeal transferred to Arkansas Supreme Court on motion).

 

Is there any restriction on imposing multiple punitive damage awards for same conduct?

No

Does the state receive a portion of the punitive damage award?

No

What standard is used?

Clear and convincing evidence

Ark. Code Ann. § 16-55-207.

Procedures

Venue

 

 

Conducive to Abuse - 
Does the statute permit forum shopping?

Unreported

Actions against domestic corporations and foreign corporations that qualify to do business in Arkansas "may be brought in the county in which it is situated or has its principal office or place of business, or in which its chief officer resides."

Ark. Code Ann. § 16-60-104; Cavette v. Ford Motor Credit Co., 545 S.W.2d 612 (Ark. 1977).

Plaintiffs may bring lawsuits against foreign corporations not registered to do business in Arkansas "in any county in which there may be property of or debts owing to the defendant." 

Ark. Code Ann. § 16-60-108.

In personal injury actions "where the accident which caused the injury or death occurred outside this state, shall be brought in the county in this state where the person injured or killed resided at the time of injury or in any county in which the defendant, or one (1) of several defendants, resides or is summoned."

Ark. Code Ann. § 16-60-112(c); Forest City Mach. Works Inc. v. Colvin, 521 S.W.2d 206 (Ark. 1975). 

When a court finds that, in the interest of substantial justice, the action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any conditions that may be just.

Ark. Code Ann. § 16-4-101(D); Life of Am. Ins. Co. v. Baker-Lowe-Fox Ins. Marketing, Inc., 873 S. W. 2d 537 (Ark. 1994).

 

Class Actions

Is there a right to an immediate appeal of class certification?

Yes

Ark. R. App. Proc. 2(a)(9).

Appeal Bonds

Does the amount of the required bond place undue pressure on the defendant to settle rather than appeal?

No

The maximum appeal bond that may be required in any civil action under any legal theory is limited to $25 million, regardless of the amount of the judgment. 

Ark Code Ann. § 16-55-214.

 

Evidence

Has the state adopted Daubert, which requires the judge  to act as a "gatekeeper" against unreliable expert testimony in civil actions?

Yes

Farm Bur. Mut. Ins. Co. v. Foote, 14 S.W.3d 512 (Ark. 2000).

 Private Lawsuits Under Consumer Protection Statutes

Must each individual plaintiff show that he or she relied on the allegedly unfair or deceptive practice at issue?

Causation

A plaintiff must suffer actual damage or injury as a result of violation of Act.

Ark. Code Ann. § 4-88-113(f).

What is the level of scienter (intent) required of a defendant?

Not addressed

Are class actions permitted?

Yes

Are statutory damages (an amount set by statute) provided for even if a plaintiff cannot show an actual economic injury?

No

Actual damages only. 

Ark. Code Ann. §§ 4-88-113(f).

Does the plaintiff automatically receive treble (triple) damages regardless of the intent of the defendant? 

No

Elderly or disabled individuals may recover punitive damages, in addition to actual damages.

Ark Code Ann. § 4-88-204.

Does every prevailing plaintiff receive attorneys' fees and costs?

Yes

Ark. Code Ann. § 4-88-113(f).

Is conduct authorized by or in compliance with a state or federal statute or regulation exempt from the act? 

Yes

“This chapter does not apply to: (1) Advertising or practices which are subject to and which comply with any rule, order, or statute administered by the Federal Trade Commission….”

Ark. Code Ann. § 4-88-101(1).

 

 Jury Service

Automatic exemptions and disqualifications based on occupation eliminated?

Yes

Are the grounds for obtaining an excuse from service closely defined?

No

A person may be excused from jury service “when the state of his health or that of his family reasonably requires his absence, or when, for any reason, his own interests or those of the public will, in the opinion of the court, be materially injured by his attendance.”  

Ark. Code Ann. § 16-31-103.

 

May jurors automatically postpone and reschedule service?

No

Is a juror's employment and leave time adequately protected during service?

Yes

An employer may not subject an employee to discharge, loss of sick leave, loss of vacation time, or any form of penalty on account of his or her absence from employment by reason of jury duty, if the employee gave the employer reasonable notice of the jury service obligation.  Violation is a Class A misdemeanor.

Ark. Code Ann. § 16-31-106.

 

Is there a limit on the frequency of jury service?

Yes

Citizens are required to serve no more than once every two years.

Ark. Code Ann. § 16-31-104(a).

 

Is the length of service limited to no more than one day or one trial?

No

No petit juror shall be required to report for jury duty on more than 10 days or for more than a 4-month period.

Ark. Code Ann. § 16-31-104.

 

Juror per diem

$15-50

Compensation is set at $50 each day for persons selected and seated as members of a grand jury or petit jury.  If an eligible person is excused or otherwise not selected and seated as a juror, compensation is not less than $15 each day.

Ark. Code Ann. § 16-34-103.

 

Is additional compensation available on lengthy trials?

No

Is the potential penalty for nonappearance sufficient to encourage participation?

No

A person who fails to respond to a summons may be fined not less than $5 nor more than $500, and may be held in contempt of court.

Ark. Code Ann. § 16-32-106(d).

 

Problem Jurisdictions

None reported

 

 

 

This analysis provides a brief overview of the law.  It is not a substitute for consulting with an attorney and is not intended to provide legal advice.  If you know of developments that are more recent than those reflected above, please send an email to LegalReform@lawexec.com.  Original material © 2009 Center for America.