Franke v. Clinton William Holland Revocable Trust Uad Aug. 9, 2010

• Decision Date: 01 September 2021
• Docket Number: No. CV-20-331,CV-20-331
• Parties: Kalob FRANKE, Appellant v. CLINTON WILLIAM HOLLAND REVOCABLE TRUST UAD AUGUST 9, 2010; and Clinton William Holland, Individually and as Trustee of Clinton William Holland Revocable Trust UAD August 9, 2010, Appellees
• Court: Arkansas Court of Appeals

2021 Ark. App. 310

633 S.W.3d 772

Kalob FRANKE, Appellant

v.CLINTON WILLIAM HOLLAND REVOCABLE TRUST UAD AUGUST 9, 2010; and Clinton William Holland, Individually and as Trustee of Clinton William Holland Revocable Trust UAD August 9, 2010, Appellees

No. CV-20-331

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered September 1, 2021

Lacy Law Firm, Jonesboro, by: Brandon W. Lacy ; Henry Law Firm, PLC, Jonesboro, by: Megan Henry ; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellant.

Friday, Eldredge & Clark, LLP, Little Rock, by: Michael McCarty Harrison and Kimberly D. Young, for appellees.

ROBERT J. GLADWIN, Judge

Kalob Franke appeals the Pope County Circuit Court's March 16, 2020 order granting summary judgment to appellees, Clinton William Holland Revocable Trust UAD August 9, 2010 (Trust), and Clinton William Holland, individually and as trustee of the Trust. The circuit court dismissed Franke's negligence claims, and Franke argues on appeal that the court erred in finding that appellees owed him no duty of care as a matter of law. We affirm.

I. Facts

The Trust owns an event venue located on Highway 64 in Clarksville, Arkansas. Holland, as owner and trustee of the Trust, rented the property to Laquarius Jackson, and they verbally agreed that Jackson would pay $1000 for twenty-four-hour use of the property for a party on October 20, 2018. Jackson paid a $500 deposit, and they agreed that Jackson would be responsible for any damage done to the property and that he would return it in a clean condition. Jackson had rented the property for parties four other times with no incidents of violence. Hundreds of people, including Franke, attended Jackson's October 20 party, during which one or more guns were fired into the crowd. Franke was shot twice and severely injured.

On February 11, 2019, Franke filed a complaint against appellees alleging that he is paralyzed as a result of his injuries and that Holland, as owner and trustee, is responsible. He claimed,

[Holland] authorized the event to take place at this location and, in fact, received consideration in exchange for permitting this event to take place. Despite knowing of the event, and despite knowing the number of likely patrons that would attend, that the attendees included underage persons, and that alcohol would be consumed on site during the event, [Holland] did not ensure that adequate security was provided or that patrons or attendees were warned of the possible dangers associated with the lack of security at the site.

Franke alleged negligence based on (1) failure to use ordinary care to maintain the premises in a reasonably safe condition and to protect the patrons from reasonably foreseeable injury at the hands of other patrons, and (2) failure to warn that the venue was not safe.¹ He sought damages for medical expenses; pain, suffering, and mental anguish; lost earnings and lost earning capacity; scars and disfigurement; caretaking expenses; and punitive damages.

Appellees responded collectively, denying liability. On November 4, they filed a motion for summary judgment arguing for dismissal.² Appellees attached to their motion a transcript of Holland's deposition stating that he had rented the property to Jackson, there were no records other than the receipts for payment, and there was no agreement other than that Jackson would be responsible for any damage and that the property had to be returned clean by noon the next day. Holland had no rule about alcohol, and he said that "if they rent it, it's theirs." He said that law enforcement had never been called to any event in the past and that no one had been injured at any previous event. He said that Jackson always returned the property in a clean condition and that he never found bottles on the property after Jackson's events. He said that he was not aware of any security having been hired and that he had not interviewed, hired, or trained any security personnel. Appellees also attached a transcript of Franke's deposition wherein he described having been shot while dancing at the party on October 20. Jackson stated that he heard numerous gunshots after he had been shot. Jackson had attended several events at the venue in the past, and he had never before seen or heard of any violence at the venue.

In their brief, appellees argued that they did not owe Franke a duty under the doctrine of caveat lessee and that they had not expressly accepted responsibility for third-party criminal activity.³ They argued that they did not assume a duty to provide security and that the "prior similar incidents test" is not applicable because Franke was not Holland's invitee. Alternatively, they argued that even if Franke was an invitee, Holland did not owe him a duty to protect against an unforeseeable criminal attack.

In Franke's responsive brief, he argued that caveat lessee does not apply to this case and that his claim is for ordinary negligence and not premises liability.⁴ He claimed that the relaxed duty applicable to a landowner to protect from criminal acts cannot apply to a case wherein the landowner concedes that no criminal act occurred, and even if it did, appellees violated that duty.

After a hearing on January 28, 2020, the circuit court granted appellees’ motion for summary judgment, dismissing Franke's complaint with prejudice against appellees.⁵ Relying on Bartley v. Sweetser , 319 Ark. 117, 890 S.W.2d 250 (1994), the circuit court held that appellees owed no duty to protect Franke from the criminal act of a third party and reasoned as follows:

The Arkansas Supreme Court first analyzed whether a landlord owes "a duty to provide reasonable security from foreseeable criminal acts" against a tenant or social guest in Bartley [, supra ]. There, the plaintiff tenant had been raped by two men, one of whom was also a tenant in the same apartment complex. On appeal, the Supreme Court affirmed summary judgment in favor of the landlords. The Court first acknowledged longstanding Arkansas law that the landlord is under no legal obligation to a tenant for injuries sustained on the premises, absent a statute or agreement. Id. at 251. The Court then stated that the general rule is that "a landlord does not owe a tenant or social guest a duty to protect the tenant or guest from criminal acts." Id. The Court cited favorably the following justifications for this rule:

Judicial reluctance to tamper with the common law concept of the landlord-tenant relationship, the notion that the act of a third person in committing an intentional tort or crime is a superseding cause of harm to another ...; the often times difficult problem of determining foreseeability of criminal acts; the vagueness of the standard which the landlord must meet; the economic consequences of the imposition of the duty; and the conflict with public policy allocating the duty of protecting citizens from criminal acts to the government rather than the private sector.

Id. at 252. Relying on the Arkansas Supreme Court's lengthy history of imposing "no legal obligation upon a landlord for a tenant's injury on the premises unless a duty is imposed by statute or agreement," the Court concluded that the landlords had not untaken the responsibility to protect its tenants from the possible criminal acts of third parties. Id. "In sum, a landlord, under Arkansas law, is not the insurer of the safety of tenants or others upon the premises." Id.

The circuit court also held that appellees had no duty to protect Franke under Boren v. Worthen National Bank , 324 Ark. 416, 921 S.W.2d 934 (1996), because Boren addressed the duty owed by a bank to its own customers, not the duty owed by a landlord to a tenant. The court found that even if Boren were applicable, it would not establish a duty for appellees in this case. Boren established three tests for "determining whether a duty of care is owed by financial institutions to protect ATM users against the criminal acts of third parties": (1) specific harm; (2) totality of the circumstances; and (3) prior similar incidents. Id. at 425–28, 921 S.W.2d at 940–41. The circuit court noted that the Arkansas Supreme Court specifically declined to adopt the totality-of-the-circumstances test. Id. at 427–28, 921 S.W.2d at 941. The circuit court concluded that, even if Boren were applicable, the evidence was insufficient to establish a duty under "specific harm" or "prior similar incidents." The order states:

The Specific Harm test does not impose a duty because there is no evidence the [appellees] were "aware of the imminent probability of specific harm" to [Franke] by the unknown assailant or assailants who opened fire into the crowd at the party. The Prior Similar Incidents Test does not impose a duty because there were no prior incidents. To the contrary, the undisputed evidence was that [appellees] had rented the event venue to the same party (Jackson) four separate times before the event at which the shooting occurred, and there were never any reports of weapons, shootings, or violence of any kind.

From this order, Franke filed a timely notice of appeal, and this appeal followed.

II. Standard of Review

This court recently set forth the standard of review for summary judgment in a negligence action as follows:

A circuit court will grant summary judgment only when it is apparent that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to judgment as a matter of law. Muccio v. Hunt , 2016 Ark. 178, 490 S.W.3d 310. The burden shifts to the opposing party once the moving party establishes a prima facie entitlement to summary judgment; the opposing party must demonstrate the existence of a material issue of fact. Id. After reviewing the evidence, the circuit court should deny summary judgment if, under the evidence, reasonable minds could reach different conclusions from the same undisputed facts. Id. All proof submitted must be viewed most favorably to the party

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