Hadder v. Heritage Hill Manor, Inc.

• Decision Date: 01 June 2016
• Docket Number: No. CV–15–837,CV–15–837
• Citation: 495 S.W.3d 628,2016 Ark. App. 303
• Parties: Sandra Hadder, Appellant v. Heritage Hill Manor, Inc., Appellee
• Court: Arkansas Court of Appeals

2016 Ark. App. 303

495 S.W.3d 628

Sandra Hadder, Appellant

v.Heritage Hill Manor, Inc., Appellee

No. CV–15–837

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered: JUNE 1, 2016

Louis A. Etoch, Helena and Robert S. Tschiemer, Mayflower, for appellant.

Friday, Eldredge & Clark, LLP, Little Rock, by: James M. Simpson and Tory H. Lewis, for appellee.

KENNETH S. HIXSON, Judge

AppellantSandra Hadder filed a complaint in the Circuit Court of Phillips County, Arkansas, seeking damages for personal injuries that she allegedly sustained as the result of a slip and fall in an apartment owned by Heritage Hill Manor, Inc.(“Heritage”).Appellant appeals the entry of summary judgment and the dismissal of her lawsuit against appellee Heritage.

Because there were no material questions of fact remaining and Heritage was entitled to judgment as a matter of law, we affirm the entry of summary judgment.

I.Facts

Appellant's allegations arose from the following summary of the facts, gleaned from the pleadings and affidavits provided by the parties regarding the motion for summary judgment.Heritage is an apartment complex admittedly geared mostly toward elderly retired residents.Heritage allowed the residents to have “sitters” stay with them in the apartments as needed.In February 2014, Ellen Lawrence, an elderly woman who suffered from dementia or Alzheimer's disease, was residing in one of Heritage's ground-floor two-bedroom apartments.Lawrence's apartment number was 108.Lawrence's son had retained the services of four women who alternated “sitting” with Mrs. Lawrence.

In the very early morning hours of February 16, 2014, a water heater located in an upstairs apartment, number 207, leaked water down into Lawrence's apartment.Mary Jane Patterson, one of the four sitters retained by Lawrence's son, was sitting at the time and staying overnight.Patterson got out of bed and slipped and fell allegedly due to the water leaking into Lawrence's apartment.¹Patterson summoned Allen Herd, another apartment resident who lived on the second floor.Herd would perform light maintenance when requested by Heritage in exchange for a discounted monthly apartment rental rate.Herd shut off the valves to the water heater in the upper apartment and began the cleanup in Lawrence's apartment.

Someone contacted one of Lawrence's sons and advised him of the water damage and Ms. Patterson's injuries.The son called appellant, Sandra Hadder, another of the four sitters, at around 4:00 a.m., told her that Patterson had fallen, and asked appellant to come to the apartment to take over sitting duty.Patterson was taken to the hospital; Mrs. Lawrence remained in her apartment.When appellant arrived, she mopped up the water from Lawrence's vinyl kitchen floor.Herd used a shop vacuum to remove water from the living room carpet adjacent to the kitchen.Appellant helped Lawrence's family move Lawrence's belongings to a vacant apartment.

At around 7:00–7:30 a.m., Minnie House, a housekeeper who worked for Heritage, arrived for her scheduled workday.The apartments were each cleaned once per week.House observed Herd, Lawrence's relatives, and appellant moving Lawrence's belongings out of her apartment and into the vacant apartment.House mopped the common-area hallway, set out “Wet Floor” signs, and told everyone to be careful of the wet floor.When Herd left, the living room carpet remained damp.Herd had placed fans in the apartment to circulate the air to aid in drying.

At approximately 9:30 a.m., appellant returned to apartment 108 to retrieve her overnight bag, which she had left in the kitchen.The housekeeper stated that she reminded appellant to “be careful.”Appellant walked a few feet across the living room carpet onto the kitchen floor and then slipped and fell, hurting her right arm, right wrist, and right ankle.Appellant stated that the kitchen floor was dry, but she said that she did not realize that the carpet was still damp.

Appellant sued Heritage for negligence in its installation and maintenance of the upstairs water heater; in its failure to adhere to its duty to rope off or keep persons out of the dangerous wet area; and in its permitting appellant to walk on the wet floor.Appellant also alleged that Heritage was an assisted living facility with heightened responsibilities under Arkansas law.Heritage moved for summary judgment contending that it was not an assisted living facility but rather an apartment complex; that the negligence claim was barred by the doctrine of caveat lessee, meaning that no duty was owed to appellant as an apartment tenant's guest; that it did not assume any legal duty to appellant; that even assuming that a legal duty existed, there was no breach; and that there was no duty because this was an open and obvious danger.Heritage appended the deposition testimony of its apartment manager, Joanne Franklin, who stated that Heritage is “an apartment complex geared mostly for elderly, retired.Also some professional people live there.That's basically it.Private pay people.”The manager swore that Heritage was “not at all” an assisted living facility but it was rather just an apartment complex where residents were permitted to have sitters.Heritage also appended the relevant deposition testimony of Herd, House, and appellant.

At the hearing on the motion for summary judgment, appellee restated the doctrine of caveat lessee (also known as “tenant beware”) to support the notion that no duty was owed to the tenant's guest in this instance.Appellee cited to Arkansas Code Annotated section 18–16–110 as the legislature's specific adoption and approval of the caveat lessee doctrine.Appellee also stated that there was no lease but only a month-to-month rental of these apartments, meaning that there was no contractual undertaking of a duty here.

Appellant responded that Heritage was in fact an assisted living facility with attendant statutory and regulatory obligations.Appellant cited to Arkansas Code Annotated section 20–10–1703(1)(A)(Repl.2014), defining “assisted living facility” as a residential facility that undertakes to provide assisted living services for a period exceeding twenty-four hours to more than three adult residents.Appellant cited to section 20–10–1703(3), defining “assisted living services” as “housing, meals, laundry, socialization, transportation, one (1) or more personal services, and limited nursing services.”Appellant presented (1) a Facebook page describing Heritage as a “Retirement & Assisted Living Facility,”(2) a page from www.assistedliving.com reciting that Heritage is “an assisted living facility” that provides activities at “their location,”(3) a general liability insurance declarations page describing the insured's business as “Lessor's Risk for Nursing Homes,” and (4) a printed page from the Phillips County chamber of commerce member directory in its “Extended Care”section, stating that Heritage was an “apartment building” that provided one meal a day and weekly housekeeping.Appellant's attorney stated to the trial court that discovery was ongoing and that testimony at trial would reveal the true nature of Heritage's identity.Appellant added that Heritage had attempted to clean up the water leak, thereby imposing an assumption of duty to perform in a nonnegligent manner.

In response, appellee stated that appellant had already deposed all the relevant persons connected to Heritage, questioning what discovery could remain.Heritage appended to its response the portion of the Facebook page appellant had omitted, which recited: “This Page is created based on what people who use Facebook are interested in.It's not affiliated with or endorsed by anything associated with Heritage Hill Manor.”Heritage also appended the disclaimer on www.assistedliving.com that appellant omitted, which stated, “If you represent Heritage Hill Manor and would like to claim your listing, please contact us.”Heritage's attorney argued that there was no evidence of Heritage's endorsement of the chamber of commerce publication and noted that the insurance policy contained only a general business description of unknown origin.²Furthermore, Heritage asserted that none of the materials provided by appellant sufficed as evidence that Heritage fit within the statutory definition of “assisted living facility,” which requires provision of multiple specific services to assisted-living residents.Appellee argued that it had shown the unreliable quality and inadmissibility of appellant's documents.Appellee pointed instead to the admissible deposition testimony provided by Heritage's manager stating that it was an apartment complex and not an assisted living facility.Appellee again stated that Heritage had not assumed any duty, and appellee asked that summary judgment be issued.

The trial court entered summary judgment.The trial court found that there existed no material issue of fact on whether Heritage was an assisted living facility because the only supportive evidence that it was came from “internet postings of unknown origin” that were “not reliable,” and further that the manager's sworn testimony was unequivocal.The trial court found this case to fall within the general rule of no liability on the landlord of this apartment complex.The trial court found that there was no evidence of any contractual undertaking nor was there any assumption of a duty in the repair of the premises.The trial court concluded by stating that even if there was a duty at law, there was no evidence of a breach of that duty to appellant.

This appeal followed, and appellant contends that the trial court erred in dismissing her complaint.Appellant argues that summary judgment was improper for a number of reasons: (1) there were unresolved factual issues on whether Heritage was an assisted living facility; (2)Arkansas Code Annotated section 18–16–110 was inapplicable because the defective hot water heater was located in a different...