Heigle v. Miller, 97-652

• Decision Date: 19 March 1998
• Docket Number: No. 97-652,97-652
• Citation: 965 S.W.2d 116,332 Ark. 315
• Parties: Eileen HEIGLE, Appellant, v. Jimmie D. MILLER, Appellee.
• Court: Arkansas Supreme Court

Page 116

965 S.W.2d 116

332 Ark. 315

Eileen HEIGLE, Appellant, v. Jimmie D. MILLER, Appellee.

No. 97-652.

Supreme Court of Arkansas.

March 19, 1998.

Brad A. Cazort, Little Rock, John K. Shamburger, Fairfield Bay, for Appellant.

Todd Williams, Jonesboro, for Appellee.

CORBIN, Justice.

This is a premises liability case. Appellant Eileen Heigle appeals the judgment of the Cleburne County Circuit Court granting summary judgment to Appellee Jimmie D. Miller. On appeal, Appellant asserts that the trial court erred (1) in finding that Appellant was a licensee rather than an invitee in Appellee's home; (2) in applying the wrong standard of care to her negligence claim; and (3) in granting summary judgment when there were genuine issues of material fact to be adjudicated. Our jurisdiction of this appeal is pursuant to Ark. Sup.Ct. R. 1-2(a)(15), as it presents questions involving the law of torts. ¹ We find merit to Appellant's second point, and we reverse.

The undisputed facts are as follows. Appellant had been invited by Appellee to come over to Appellee's house for dinner and to spend the night. Appellee was essentially home bound, having to take care of her eighty-year-old husband who suffered from deteriorating health conditions, including incontinence and poor eyesight. As a result of his health problems, Appellee's husband frequently urinated on the bathroom floor, in his attempts to relieve himself. On the night in question, Appellant was injured when she slipped on Appellee's bathroom floor, which had been wet with urine. Appellee was asleep when the accident occurred. Appellee normally kept a piece of carpet on the bathroom floor to help prevent the floor from being slick with urine when her husband went to the restroom. Periodically, the carpet was not in the bathroom, as it was being cleaned and allowed to air out for several days. The carpet had been taken up a day or two prior to the date that Appellant fell. Appellant alleged in her complaint that Appellee was negligent for failing to warn her of the slick condition, despite Appellee's knowledge of it.

The trial court granted Appellee's motion for summary judgment, finding that Appellant was a licensee in Appellee's home and that, as a result, the duty of care owed to Appellant was to refrain from injuring her through willful or wanton conduct or to warn of hidden dangers where the licensee does not know or has no reason to know of the conditions or risks involved. The trial court analyzed the claim as a "slip and fall" case, ruling that Appellant must prove either (1) that the presence of a substance upon the premises was the result of Appellee's negligence, or (2) that the substance was on the floor for such a length of time that Appellee knew or should have known of its presence and failed to use ordinary care to remove it. The trial court found that, while it was undisputed that the bathroom floor was wet, Appellant did not present any proof that the liquid was negligently placed there or allowed to remain there. The trial court found further that there was no evidence showing that anyone had fallen previously or that Appellee had knowledge that the bathroom floor was wet prior to Appellant's entering the room that night and falling. Additionally, the trial court determined that there was no proof of a breach of a duty to warn Appellant of any hidden dangers.

Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Where reasonable minds could differ as to the conclusions they could draw from the facts presented, summary judgment should not be granted. Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994). The burden of sustaining a motion for summary judgment is the responsibility of the moving party. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Pugh, 327 Ark. 577, 940 S.W.2d 445. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.

I. Appellant's Status

For her first point for reversal, Appellant argues that the trial court erred in ignoring the law set out in AMI 1106 and thereby failing to recognize her status as an invitee rather than a licensee. She contends that she was invited to Appellee's home and that her visit there on that evening was for a purpose mutually beneficial to both of them. She asserts that Appellee received several benefits from her visit, namely that she brought Appellee food and cigarettes and provided an emotional benefit to Appellee by serving as an outlet for her need to socialize with someone other than her husband. Appellant contends that the trial court erred in classifying her as a licensee instead of an invitee. We disagree.

This 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 Memorial Physical Medicine 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. This court has declined to expand the "invitee" category beyond that of a public or business invitee to one whose presence is primarily social. See Bader, 320 Ark. 561, 898 S.W.2d 40; Tucker v. Sullivan, 307 Ark. 440, 821 S.W.2d 470 (1991).

In Tucker, 307 Ark. 440, 821 S.W.2d 470, this court was faced with the question of whether the meaning of "mutual benefit," as used in the definition of "invitee," should be extended to include situations in which the primary purpose of the invitation is social. There, Tucker lived in Sullivan's house and was engaged to marry him. During that time, Tucker was severely burned in an accident at Sullivan's home. Tucker filed suit against Sullivan, alleging that he failed to use ordinary care to maintain the premises in a reasonably safe condition, and that he knew of the danger caused by the proximity of the gasoline to the unguarded gas dryer, but failed to warn her. Sullivan argued that Tucker was a licensee, as she was either a tenant on the premises or a social guest. In holding that the definition of "invitee" should not be extended to such social situations, this court stated that, even assuming Sullivan had extended an invitation to Tucker to live with him, "courts usually require a showing that the invitee's 'presence on the land was, actually or apparently, desired by the defendant, generally for some purpose other than social intercourse.' " Id. at 444, 821 S.W.2d at 472 (quoting 62 Am.Jur.2d Premises Liability § 89 (1990)). This court held that Tucker was properly categorized as a licensee, as there was no evidence that they had contemplated anything other than a social arrangement; the fact that Tucker paid some bills and living expenses was "merely incidental to the romantic relationship," as there was no indication that she was obligated to do so. Id.

Similarly, in Bader, 320 Ark. 561, 898 S.W.2d 40, this court held that a child who was injured while playing on her neighbor's trampoline was not an invitee because her presence on the neighbor's property was primarily social. The plaintiff, the child's father, had argued that the child was an invitee due to the fact that the two families often entertained each other and that, from time to time, each family had looked after the children of the other, thus conferring some economic benefit on one another. Relying on Tucker, this court declined to extend the definition of "invitee" to a social situation.

Here, the facts demonstrate that Appellant was a licensee in Appellee's home. The primary purpose of her presence on that occasion was social; she had been invited there for dinner and to spend the evening. That she brought some food and cigarettes to Appellee was merely incidental to her social purpose of visiting a friend. Moreover, the fact that her social visit was emotionally beneficial to Appellee does not alter the nature of the relationship between the two women or Appellant's purpose for going to Appellee's home on the night in question. We thus agree with the trial court's finding that Appellant was a licensee. We now turn to the issue of the duty of care owed to Appellant.

II. Duty of Care

Appellant argues that even if she were properly classified as a licensee, the trial court erred in applying the wrong standard of care. We agree.

The question of the duty owed by one person to another is always a question of law and never one for the jury. Bader, 320 Ark. 561, 898 S.W.2d 40. A landowner owes a licensee the duty to refrain from injuring him or her through willful or wanton conduct. Id. Where, however, the landowner discovers that a licensee is in peril, he or she has a duty of ordinary care to avoid injury to the licensee. Id. This duty takes the form of warning a licensee of hidden dangers if the licensee does not know or have reason to know of the conditions or risks involved. Id. Here, Appellant concedes that the facts of this case do not support a finding that Appellee acted willfully or wantonly in causing her injuries; instead, she argues that Appellee knew of the recurring condition that made the bathroom floor particularly unsafe, but she failed to warn Appellant of the danger.

On the subject of hidden dangerous conditions, Professors Prosser and Keeton have written:

The theory usually advanced...