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Johnson & Johnson v. First National Bank
Citations: 268 Ark. 726; 594 S.W.2d 870; 1980 Ark. App. LEXIS 1162Docket: CA 79-215
Court: Court of Appeals of Arkansas; February 27, 1980; Arkansas; State Appellate Court
The circuit judge granted a new trial after a jury verdict favored the defendants-appellants, citing issues stemming from the case's removal to federal court. The court determined that the appellees, who had moved to reinstate a defendant, Thompkins, were estopped from arguing the trial judge erred in granting the new trial since their actions initiated the alleged error. The judge’s decision to order a new trial was based solely on this reinstatement issue. Furthermore, the appellees contended that the judge failed to instruct the jury on ultrahazardous activity; however, the court found insufficient evidence to support this claim based on the supreme court’s definition of ultrahazardous activity. The case involved Eli Esau, who was injured after an explosion related to gas escaping from the appellant’s plant while he was working on a ladder. Despite the complexities of jurisdiction, the court concluded that the appellees' motion to reinstate Thompkins caused the confusion and that the new trial order was erroneous due to the estoppel against the appellees. The appellate court thus reversed the order for a new trial. The court addressed a cross-appeal concerning the refusal to instruct on ultrahazardous activity and strict liability. The appellees argued that the court erred in this refusal, while the appellants claimed there was insufficient evidence to classify the use and storage of carbon disulfide (CS2) as an ultrahazardous activity. The court referenced the definition of ultrahazardous activity from *Zero Wholesale Gas v. Stroud*, which requires that an activity involves a significant risk of serious harm that cannot be mitigated by the utmost care, and must be uncommon in nature. In the case at hand, an employee of Chickopee accidentally released CS2 into a storm sewer, causing an explosion. An expert for the appellees labeled CS2 as dangerous and uncommon but failed to demonstrate that the risks could not be eliminated with utmost care or to provide concrete examples of serious harm associated with its use. The court noted that while CS2 may be uncommon, the use of such gases in industrial settings is not. The court highlighted the importance of the activity being both very dangerous and out of place to satisfy the second part of the ultrahazardous activity definition. Ultimately, the court concluded that the appellees did not produce sufficient evidence to support a jury question regarding the ultrahazardous nature of CS2. Although the appellants could be found negligent for the gas escape, the judgment was reversed and remanded based on the jury's verdict.