Fuqua v. Flowers

• Decision Date: 07 July 2000
• Citation: 341 Ark. 901,20 S.W.3d 388
• Court: Arkansas Supreme Court

341 Ark. 901

20 S.W.3d 388

Jannetta L. FUQUA and Beverly Hayes v. Dan FLOWERS

00-230

SUPREME COURT OF ARKANSAS

July 7, 2000, Opinion Delivered

McHenry & McHenry Law Firm, by: Connie Grace and Donna McHenry, for appellants.

Robert L. Wilson and Mark J. Whitmore, for appellees.

Tom Glaze, Justice. CORBIN, J., not participating.

Tom Glaze, Justice. This appeal arises from the trial court's dismissal of a complaint filed by Jannetta Fuqua and Beverly Hayes against Dan Flowers, Director of the Arkansas State Highway and Transportation Department, Francis Jones, a district sign foreman for the Department, and the Department itself (collectively referred to as ASHTD or the Department). Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(1), as the appeal asks us to interpret the sovereign immunity provisions of the Arkansas Constitution. We find no error, and we affirm the trial court's decision.

The facts underlying this case are straightforward. Fuqua and Hayes were driving on Arkansas State Highway 124 in Conway County about 9:50 p.m. on August 26, 1995. Fuqua had never driven on Highway 124 before, and she was unfamiliar with the road. As they approached the intersection of Highway 124 and Highway 9, there was no stop sign present, so Fuqua continued through the intersection. Unfortunately, however, Highway 124 was supposed to have a stop sign, and as Fuqua crossed Highway 9, her car was struck by one driven by Stephanie Ward. Fuqua and Hayes were both seriously injured, and Fuqua, who was six months pregnant, suffered a miscarriage.

The missing stop sign had been reported to the Arkansas State Highway and Transportation Department two days earlier, on August 24, by Tim Honeycutt, crew leader for that area. Earlier in the day on August 26, at approximately 12:20 that afternoon, there had been another accident at that same intersection.

Fuqua and Hayes filed suit against the Department in Pulaski County Circuit Court, alleging that the failure of the Department to replace the stop sign amounted to the tort of outrage, and asserting that the defendants' actions constituted wanton and reckless disregard, "equivalent to malice," of the plaintiffs' safety. The defendants moved to dismiss the lawsuit pursuant to Ark. R. Civ. P. 12(b)(1) and (6), stating that the trial court lacked subject matter jurisdiction because of sovereign immunity and that the plaintiffs had failed to state a claim for relief. After a hearing, the trial court dismissed the complaint, finding that sovereign immunity barred the suit.

This court reviews a trial court's decision on a motion to dismiss by treating the facts alleged in the complaint as true and viewing them in the light most favorable to the plaintiff. King v. Whitfield, 339 Ark. 176, 5 S.W.3d 21 (1999); Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994). Significantly, a trial judge must look only to the allegations in the complaint to decide a motion to dismiss. Id.; see also Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992).

The Arkansas Constitution, art. 5, § 20, expressly forbids suits against the state by declaring that "the State of Arkansas shall never be made defendant in any of her courts." In addition, when a suit is filed against employees of the state,Ark. Code Ann. § 19-10-305(a) (Supp. 1999) provides them with immunity from civil liability for non-malicious acts occurring within the course of their employment. Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986). To determine whether a suit against a state agency or a state employees is in reality a suit against the State, the court has employed the standard set out inPage v. McKinley, 196 Ark. 331, 118 S.W.2d 235 (1938):

Where a suit is brought against an officer or agency with relation to some matter in which defendant represents the state in action and liability, and the state, while not a party to the record, is the real party against which relief is sought so that a judgment for plaintiff, although nominally against the named defendant as an individual or entity distinct from the state, will operate to control the action of the state or subject it to liability, the suit is in effect one against the state and cannot be maintained without its consent.

Beaulieu, 288 Ark. at 398, 705 S.W.2d at 881 (quoting Page, supra).

Fuqua and Hayes sued the Department, an agency of the State, and Flowers and Jones in their capacities as employees of the State; as plaintiffs, they sought damages in the amount of $ 100,000 each. Thus, there can be no question that this is a suit against the State, its officers and employees.

As already discussed, however, sovereign immunity presents a complete bar to suits against the State. See Cross v. Arkansas Livestock & Poultry Comm'n, 328 Ark. 255, 943 S.W.2d 230 (1997) (doctrine of sovereign immunity is "rigid and . . . may be waived only in limited circumstances"), and, under § 19-10-305(a), state officers and employees are statutorily protected by sovereign immunity. More particularly, this court has held that such officers and employees acting without malice within the course and scope of their employment are immune from an award of damages in litigation. Grine v. Board of Trustees, 338 Ark. 791, 2 S.W.3d 54 (1999). Thus, for a plaintiff to counter an assertion of sovereign immunity, he or she must allege sufficient facts in his or her complaint to support the claim of malicious conduct by the defendant. Newton v. Etoch, 332 Ark. 325, 965 S.W.2d 96 (1998). It is this exception for malicious acts on which Fuqua and Hayes attempted to base their complaint, as they alleged that the Department knew, or should have known, that its failure to replace the stop sign could naturally and foreseeably result in death or serious bodily injury through automobile accidents.

This court, however, has defined malice as something more: "It is true that in law malice is not necessarily personal hate. It is rather an intent and disposition to do a wrongful act greatly injurious to another." Satterfield v. Rebsamen Ford, Inc., 253 Ark. 181, 185, 485 S.W.2d 192, 195 (1972); see also Stine v. Sanders, 66 Ark. App. 49, 987 S.W.2d 289 (1999). Malice is also defined as "the intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will imply an evil intent. . . . A conscious violation of the law . . . which operates to the prejudice of another person. A condition of the mind showing a heart . . . fatally bent on mischief." Black's Law Dictionary, 956-57 (6th ed. 1990). Although the complaint alleges an evil intent in the acts or omissions of the Department, a bare allegation of willful and wanton conduct will not suffice to prove malice. Beaulieu, 288 Ark. at 399, 705 S.W.2d at 882.

Further, the two women seem to have modeled their complaint after tort-of-outrage language alleged in Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992), in which this court held that intentional torts overcome the immunity extended to State officers and employees. The court in Deitsch stated that summary judgment was improper in an outrage suit against a school district because the complaint "recited more than mere conclusory allegations[.]" Deitsch, 309 Ark. at 406, 833 S.W.2d at 762. In that case, a group of plaintiffs including teachers and students filed a complaint alleging outrage and negligence against the Rogers School District # 30 and the school board, alleging that the school knew or should have known of the presence of friable asbestos in Westside Elementary School, and failed and refused to correct the condition and to protect the students and staff from the dangers of exposure. The school district moved for summary judgment, contending that they were statutorily immune from suit, and the trial court granted the motion.

This court disagreed and reversed the trial court, based on the facts as alleged in the plaintiffs' complaint. The plaintiffs inDeitsch had asserted that the school knew of the presence of asbestos and of specific rules and regulations regarding its removal, and they cited the particular federal and state standards dealing with that subject. Further, the complaint stated that the school had "knowingly misrepresented and/or concealed the dangerous asbestos condition . . . in order to induce the school employees and students to attend and work at the school."...