Right out of law school I worked as a law clerk for Justice David Newbern on the Arkansas Supreme Court. “Law Clerk” is an odd name for the job. You are basically an assistant for the judge: reading briefs filed in appeals, fact checking to the court record, and researching case law. Judge Newbern was a great teacher with a warm and generous personality. The other law clerks working for him were smart and fun. It was wonderful working in his office.
Being a law clerk is a great experience for someone right out of school. You learn how the court works and get some practical lessons regarding appeals. A lot of appeals are fairly routine, dealing with common legal questions. Occasionally you get an appeal that presents a landmark legal question, or interesting facts. On a rare occasion you get an appeal that has both. On an even rarer occasion such a case creates spirited debate in the court.
In the summer of our first term we were presented with that unicorn of an appeal: Sanders v. Mincey, 317 Ark. 398 (1994). Surprisingly, the issue presented was a matter of “first impression” meaning the court had never considered it before: which was whether the owner of a flock of guineas[1] should be liable for causing a car wreck while they are wandering around.
On a foggy, spring morning, Ms. Sanders was driving on Highway 5 in Baxter County. Ms. Mincey owned 10 guineas that roamed freely since her horse damaged their pen almost a year earlier. As Ms. Sanders entered the curve in front of Ms. Mincey’s home, 3 guineas cross her path and she braked to avoid them. Her car struck 2 guineas, skidded out of control and struck another car. Fortunately, aside from the guineas, no one was seriously injured.
Ms. Sanders sued Ms. Mincey for damages, claiming Ms. Mincey should have kept the guineas from roaming freely to prevent this type of accident. The jury agreed with Ms. Sanders and awarded her $35,000.
However, the trial judge threw out the jury’s decision, stating no reasonable person could find the guineas in this matter caused the accident.
This appeal created a spirited debate about just how dangerous guineas can be. Like chickens, they are not aggressive, and are prone to roam freely looking for food. Given this habit, they will wander into the road. For those of us that grew up in the city, the matter seemed pretty straight forward. Any animal that will wander into the road needs to be contained, as it is obvious this could result in an accident. To us the jury’s decision was correct.
For those at the court that grew up in rural areas, that conclusion was ignorant. To them, everyone knows a guinea will wander into the road, it happens all the time. And if you come upon a guinea in the road, everyone knows you don’t try and avoid it – you just run through them. This faction of the court was bolstered not only by the trial judge’s decision to throw out the jury’s verdict, but also by the trial testimony of the attending State Trooper. In the officer’s opinion Ms. Sanders caused her own accident because she should have never attempted to avoid hitting the birds.
Ted Botner, our fellow law clerk, was from El Dorado and grew up around rural areas. In his mind, the trial judge was correct and any decision otherwise would result in a grave miscarriage of justice. Ted wasn’t content to state this in a memo to Judge Newbern. He took the unheard of step for a law clerk to visit with each Supreme Court Judge to lobby for justice. When I asked him why this was so important to him, he looked at me with disbelief: “everyone knows you just run over them! Everyone knows you don’t stop for a guinea!”
While Ted’s efforts weren’t enough to carry the day, he certainly educated all of us, and earned our respect for his determination. And despite his efforts, Sanders v. Mincey makes it clear that under Arkansas law it is the bird owner, and not the guinea, that is responsible for the bird’s actions.[i]
[1] For those of you wondering (like I was when I first saw this case), a guinea is a bird, similar to a chicken. Any other reference is completely inappropriate.
[i] For you lawyers out there, the Court’s decision avoided the more difficult issue presented by this appeal, which was whether court erred in concluding that Ms. Mincey’s decision to shoot the flock immediately after the accident was inadmissible evidence on the grounds it was a subsequent remedial measure.
Hokiejackson 
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