Page:McQuay v. Guntharp.pdf/8

Rh   in refusing to dismiss the action as being barred by the one-year statute of limitations. This court agreed with the trial court's ruling that the claim was one for negligence founded on an implied liability growing out of a special relationship, that of proprietor-invitee, which may be brought within three years. This court rejected the defendant's citation to the prior decision of McAlister v. Gunter, 164 Ark. 611, 262 S.W. 636 (1924), in which this court held that an action for shooting and wounding the plaintiff was barred by the one-year statute of limitations. In distinguishing that holding from the facts of the case before it, the Jefferson court stated that "[t]he effect of our holding in that case was that an assault and battery was the only cause of action relied upon by the plaintiff, and that no special relationship, like that of proprietor-invitee asserted here, was alleged or proved." Jefferson, 225 Ark. at 305, 280 S.W.2d at 886. In concluding that the claim was not barred by the statute of limitations, this court relied on the, general principle that where two statutes of limitations may apply, the longest of the two is ordinarily applied.

[9] Notwithstanding the way in which Appellants have pleaded their claim, Appellees argue that the gist of this case is a claim for battery and not one of outrage. Relying on Turner v. Baptist Medical Ctr., 275 Ark. 424, 631 S.W.2d 275 (1982), Appellees state that the alleged mental distress is merely an element of damage resulting from the wrongful touching, which consti.tutes a battery. Appellees contend in the alternative that the claim is one for medical injury and, as such, is governed by the two-year statute of limitations found in section 16-114-203. Although Appellees raised the issue of the applicability of the statute of limi.tations pertaining to medical injury in their motion to dismiss, the record does not reflect that the trial court ever ruled on the issue. As such, we do not address the argument on appeal. See Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997).

Appellants respond by arguing that the Turner case dealt mainly with the tort of false imprisonment and can be distinguished on the particular facts of that case. They argue that the holding in Jefferson, 225 Ark. 302, 280 S.W.2d 884, supports their position, as there is a special relationship between a doctor and a patient, and the outrage lies in the doctor's violation of the trust