Delt v. Bowers

• Decision Date: 07 February 2007
• Docket Number: No. CA 06-759.,CA 06-759.
• Citation: 249 S.W.3d 162,97 Ark.App. 323
• Court: Arkansas Court of Appeals
• Parties: Nina DELT and Clarence Delt, Appellants, v. Grant Paddock BOWERS, David Bowers, Minta Jane Bowers, United Automobile Aerospace & Agricultural Implement Workers of America and UAW Local 716, Appellees.

249 S.W.3d 162

97 Ark.App. 323

Nina DELT and Clarence Delt, Appellants, v. Grant Paddock BOWERS, David Bowers, Minta Jane Bowers, United Automobile Aerospace & Agricultural Implement Workers of America and UAW Local 716, Appellees.

No. CA 06-759.

Court of Appeals of Arkansas.

February 7, 2007.

Christian & Byars, by Joe D. Byars, Jr., Fort Smith, for appellants.

Godwin, Morris, Laurenzi & Bloomfield, P.C., by Samuel Morris and Timothy Taylor, Memphis, TN, and Hardin, Jesson & Terry, by: J. Leslie Evitts, III, Fort Smith, for appellees.

JOHN B. ROBBINS, Judge.

Appellants Nina and Clarence Delt appeal, for the second time, the entry of a summary judgment against them in their lawsuit seeking recompense for personal injuries and related damages that Nina and her husband Clarence suffered. On the night of March 25, 2002, Nina was injured as she walked from the strike area of her employer's plant across the street. Nina was struck by a vehicle driven by appellee Grant Paddock Bowers as he drove along South Zero Street in Fort Smith, Arkansas. Appellants filed suit against seventeen-year-old Bowers and his parents (David and Minta Bowers) for his negligence. Appellants also named the national and local union organizations¹ as defendants in the lawsuit, alleging that they were negligent in failing in their duty to ensure her safety as a member of the union participating in the organized strike at the local Trane Corporation plant. The national and local union organizations moved for summary judgment on the basis that they owed no duty to Nina, or alternatively a minimal duty owed to licensees that was not breached. Appellants argued that Nina was an invitee, with a commensurate higher duty owed to her that was breached, or in a special relationship with the unions that had a commensurate duty of reasonable care for her safety. After a hearing on the motion, the trial judge entered summary judgment on behalf of the unions. The trial judge concluded that based upon the undisputed facts, Nina held the status of a licensee, that the unions owed her only a duty not to willfully or wantonly cause harm to her, that there was no allegation of willful or wanton conduct, and that there was no evidence of such conduct whatsoever. The claims against the unions were dismissed, but the pending claims against the driver and his parents remained.

Appellants appealed to our court, and in a per curiam opinion dated April 12, 2006, we dismissed the appeal because the summary judgment did not dismiss all the parties, and it contained a non-compliant Ark. R. Civ. P. 54(b) certificate. See Delt v. Bowers, et al., CA05-1048, 2006 WL 933529 (April 12, 2006). Upon remand, the trial court issued an amended summary judgment order that contained a sufficient Rule 54(b) certificate. The certificate made an express determination that although there remained claims relevant to the Bowers family members, it would serve judicial economy to allow an immediate interlocutory appeal regarding judgment entered in favor of the national and local unions. Particular facts were recited in support of allowing an immediate appeal. A timely notice of appeal followed, and the appeal has returned to our court.

The issue for consideration on appeal is whether the trial court's entry of summary judgment was appropriate. Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Dodson v. Taylor, 346 Ark. 443, 57 S.W.3d 710 (2001). The parties agree that there are no disputed facts with regard to the events leading to the accident. Accordingly, our review must focus on the trial court's application of the law to those undisputed facts. See Youngman v. State Farm Mut. Auto. Ins. Co., 334 Ark. 73, 971 S.W.2d 248 (1998).

In order to prove negligence, there must be a failure to exercise proper care in the performance of a legal duty that the defendant owed the plaintiff under the circumstances surrounding them. Costner v. Adams, 82 Ark.App. 148, 121 S.W.3d 164 (2003). Proof of an accident, with nothing more, is not sufficient to make out a claim for negligence. Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003).

The supreme court has defined "invitee" as "one induced to come onto property for the business benefit of the possessor." Bader v. Lawson, 320 Ark. 561, 564, 898 S.W.2d 40, 42 (1995) (citing Lively v. Libbey Mem'l Physical Med. Ctr., Inc., 311 Ark. 41, 841 S.W.2d 609 (1992); Kay v. Kay, 306 Ark. 322, 812 S.W.2d 685 (1991); Coleman v. United Fence Co., 282 Ark. 344, 668 S.W.2d 536 (1984)). A "licensee" is one who goes upon the premises of another with the consent of the owner for one's own purposes and not for the mutual benefit of oneself and the owner. Id.

A property owner has a duty to exercise ordinary care to maintain his premises in a reasonably safe condition for the benefit of an invitee. Conagra v Strother, 68 Ark.App. 120, 5 S.W.3d 69 (1999). The property owner is liable if he has superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. Slavin v. Plumbers & Steamfitters Local 29, 91 Ark.App. 43, 207 S.W.3d 586 (2005). However, one is not liable to an invitee for physical harm caused by any activity or condition on the land whose danger is known or obvious to the invitee, unless the landowner should anticipate the harm despite such knowledge or obviousness. Van DeVeer v. RTJ, Inc., 81 Ark.App. 379, 101 S.W.3d 881 (2003). The property owner's duty to a licensee is to refrain from injuring the licensee through willful or wanton conduct and, if the licensee is in peril, to warn of hidden dangers if the licensee does not know or has no reason to know of such dangers. Lively, 311 Ark. at 47, 841 S.W.2d at 612. The duty owed to invitees is much broader and encompasses a property owner's liability if he has superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. See AutoZone v. Horton, 87 Ark. App. 349, 192 S.W.3d 291 (2004); see also Restatement (Second) of Torts, § 343A(1) (1965). We conclude that Nina was, at best, a licensee. Therefore, summary judgment was proper.

The facts leading up to the accident are as follows. Nina worked at the Trane facility. She...