Opinion
For Opinion See: 293 Ark. 401, 738 S.W.2d 404.
HICKMAN, Justice, concurring in part, dissenting in part.
I agree with the majority's decision except for that part which strikes the chancellor's award of $1,000 damages. If one reviews a record backwards, that is, contrary to accepted principles of appellate review, one could perhaps conclude that the chancellor's finding was wrong.
But, our job is not to see if it was wrong; rather we look to see if there is any way to uphold it. We are bound to consider the evidence in a light most favorable to the appellee. E.I. DuPont Nemourss&sCo. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983).
The appellee proved that it cost $4,600 to repave his parking lot. While spillage of gasoline and diesel fuel by the appellant did not cause all of this damage, undoubtedly it was the main cause of the parking lot's deterioration. The appellee testified as follows:
I didn't say the occurrences in February, 1984 and December, 1984 and January 16, 1985 were the only reasons I had my parking lot repaved. I said it caused certain areas to come up there. I'm not saying it caused 100% of it. I'm sure it had some damages already. I'm not saying that's what blowed the whole parking lot. I did say it helped a lot to do that....
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The defendants had to re-cover their parking lot after this fire incident. They re-covered their parking lot the same time, the same day I re-covered mine. That was on November 6, 1985. I covered it with hot mix. It is a two inch covering. Whoever did my lot, they did theirs the same date. I filled some, tried to repair it, to put some concrete in or, I bought some "cold mix" like they rework the highway with, that fills holes, but the water and stuff coming down through there just kept it spewed up all the time. I finally just sealed it. It was a while after I moved in and started running the grocery store that I did any work on the parking lot. After I had bought the store, it had one little hole in it. That's what I'm talking about, refixing it. It wasn't any major cost like this was or anything. I didn't do anymore work to it until I had it resurfaced.
I had some diesel running over it in December, 1984. It was about a year later in November, 1985, when I had it resurfaced. It just went to falling apart. After the spills went across it, I noticed it. I didn't notice it the next day. It's a pretty busy place. There is quite a lot of traffic. It just starts peeling a little. You're there working every day. You don't notice it. The first thing you know, you look out there and there's a big hole. I'd say after the first spill, I started noticing it disintegrating about a month or two later ...
Mark Lambert, an employee of the asphalt company that resurfaced the parking lot, testified as follows:
... I think you would have to determine how long the diesel and gas were in contact with the hot mix. The longer it's on there, the more damage it's going to do. There is no question that diesel and gas would be detrimental to the hot mix. I would say within a year or so, you would know if any deterioration was to become obvious.
The diesel or gas dissolves and washes away tar in the hot mix, the asphalt cement.
The trial judge could easily have concluded that at least $1,000 of the cost of repaving was attributable to the negligence of the appellant. I would, therefore, affirm the award.
HAYS, J., joins.