Court rejects appeal in case involving Evergreen Packaging

The Arkansas Court of Appeals on Wednesday rejected the appeal of a woman who was struck by a vehicle at work and argued that a circuit judge was wrong when she dismissed one of the parties named in the original lawsuit.

Alissa Virgil was an employee of Evergreen Packaging. In May, 2009, Virgil was struck by a pickup driven by Keith Morgan, who also worked for Evergreen, while crossing a walkway to reach the employee parking lot. Morgan was driving his personal vehicle at the time.

Virgil filed suit against Morgan, alleging negligence, then added Evergreen as a defendant, alleging that it was liable for Morgan’s conduct. Another amended complaint alleged that Evergreen was directly liable because it allowed Morgan to use his personal vehicle that was not equipped with an audible backup alarm.

Responding to the lawsuit, Evergreen moved to dismiss most of the complaint, arguing that Virgil had failed to establish facts showing that Evergreen had a legal requirement for personal vehicles to be equipped with a backup alarm or that there was any law prohibiting the company from allowing an employee to use his personal vehicle on company property.

Circuit Judge Jodi Raines Dennis granted Evergreen’s motion for summary judgment on the direct liability issue, ruling that under Arkansas law, in order for Evergreen to be directly liable to Virgil, there must be proof that the company knew, or should have known that failing to equip vehicles with backup alarms would subject people on company property to an unreasonable risk of harm.

The case later went to trial and the jury found for Morgan and Evergreen, resulting in Virgil filing a motion for a new trial, which was turned down.

In its ruling, the Court of Appeals said it first considered whether Virgil filed a notice of appeal in a timely manner, and since she did not cite any error during the trial or object at that time to the granting of partial summary judgment for Evergreen, it would not consider that part of her appeal.

The second issue the appellate court considered was whether Virgil motion raised the proper grounds for a new trial. The court noted that throughout her appeal, Virgil was arguing that there were facts the jury should have heard on the question of Evergreen’s direct liability, but none of those arguments suggested that the partial summary judgment affected her right to a fair trial on the question of Morgan’s liability or Evergreen’s vicarious liability.

“Because Virgil failed to allege an appropriate basis for a new trial under Rule 59, however, her post-trial motion did not extend the time for filing notice of appeal … therefore, her notice of appeal filed April 10, 2013 was untimely,” Appeals Court Judge Phillip T. Whitaker said in the ruling. “We therefore lack the jurisdiction to consider the merits of her appeal.”