Holland v. Cooper, CV–17–657

Decision Date24 January 2018
Docket NumberNo. CV–17–657,CV–17–657
Citation538 S.W.3d 878
Parties Diana HOLLAND, Appellant v. Tom COOPER and Diane Lynn Cooper, Appellees
CourtArkansas Court of Appeals

Law Offices of Phyllis B. Eddins, by: Phyllis B. Eddins, for appellant.

Law Offices of Travis Berry, by: Travis R. Berry, Arkadelphia, for appellees.

ROBERT J. GLADWIN, Judge

Diana Holland appeals the Miller County Circuit Court's order granting summary judgment to appellees Tom and Diane Cooper, finding that the lease agreement between the parties did not require that the Coopers become insurers of the property. On appeal, Holland argues that (1) Arkansas Code Annotated section 18–16–110 (Repl. 2015) requires that the Coopers were liable for Holland's injury; (2) there are genuine issues of material fact in dispute; and (3) the trial court abused its discretion by not allowing Holland to amend her complaint after summary judgment was granted to the Coopers. We affirm.

I. Facts and Procedural History

Holland filed a complaint against the Coopers alleging that she entered into a lease agreement with them for a residence in Texarkana, Arkansas. She claimed that on May 5, 2015, at 10:00 p.m., she smelled smoke and decided to inspect the air-conditioning unit outside. As she walked toward the back of the property, she stepped in a hole and fell, injuring both ankles. She alleged in her complaint that the Coopers, as landlords and owners of the property, undertook responsibility for maintenance of the lawn, including all mowing, and were responsible for her injury. She acknowledged that Arkansas law provides that a landlord is not responsible for damage caused by any defect or disrepair on the premises absent his agreement to maintain or repair the leased premises and a failure to perform the agreement. Ark. Code Ann. § 18–16–110. She alleged that the Coopers had accepted responsibility for mowing and maintaining the yard and that the lease agreement contained the provision that

the agents of the landlord and any contractor or workman authorized by the landlord may enter any duplex ... for the purpose of inspecting the duplex to ascertain whether measures are necessary or desirable to make repairs ... or any other purposes.

Holland alleged that the Coopers either knew or should have known about the hole in the yard; the hole was not open and obvious; it was foreseeable that the hole could cause her to trip or fall causing injury; and the Coopers breached their duty to either use ordinary care to make the condition safe or to warn her of the danger. She alleged that due to the Coopers' negligence, she fractured her left ankle, requiring surgery, and cracked her right ankle bone. She alleged that she had permanent damage and continued to have problems standing and walking. She asked for damages for past, present, and future medical care, treatment, services, and expenses, for suffering and mental anguish, and for permanent injuries.

The Coopers answered her complaint and filed a motion for summary judgment. They alleged that they were not liable under Arkansas law. They also claimed that they had no duty by contract and had not assumed an obligation supported by consideration. The summary-judgment motion was supported with an affidavit of Diane Cooper stating that she and her husband had no knowledge prior to Holland's fall that there were problems with the ground being unlevel in the backyard of the apartments. She stated that they had a lawn service under contract to do the mowing and weed eating around the apartment and that she had told Holland that they handled the mowing of the yard. She stated in her affidavit,

I was never informed by [Holland] or any third party there was a need to make repairs to the backyard. I had no knowledge that there were any problems to the backyard prior to [Holland's] fall. I never agreed to make repairs to the premises because I had no knowledge that repairs were needed. [Holland] never paid any consideration to me or my husband for repairs. She made the monthly lease payments pursuant to our lease agreement, but there was no consideration given to me to support an agreement to make repairs to the backyard. There was never a discussion between me and [Holland] that we would make repairs to the backyard. I never assumed a responsibility to make repairs to the backyard. We have never had complaints even though our grandchildren lived on the property and played in the backyard. We had no knowledge that there was any need for any work to be done on the backyard prior to [Holland's] alleged fall.

In deposition testimony, Holland said that she had told Ms. Cooper that she was unable to take care of the yard and that she asked if the Coopers took care of the yard, and Ms. Cooper said, "Yes, don't worry about it, we take care of the maintenance and the yard." She also said that the photographs of the yard that were introduced at the deposition were taken by her daughter on May 6, 2015, the day after the injury.

Holland said that when she was injured, she was talking to her sister on the phone. She said that she walked outside the front door for fresh air and there was a full moon, it was very bright out, and there was light from the windows and street. She could see the ground and the air-conditioning unit, so she walked down to the unit to smell for smoke. She smelled none, so she continued to walk toward the back of the yard to see if anyone was there smoking. When she did, she "felt air under [her] left foot and a snap and [she] was on the ground screaming." She said she had never been in the yard before that night and that she had seen someone mowing the yard at times. She said,

Even if I'd had a flashlight, I don't think I would have seen the hole because the grass was growing up so it all looked even to me. [My daughter] even had a hard time finding it in the daytime because the grass was growing up and it looked level.

She also said that she had not asked for the hole to be repaired because she had not known the hole was there. She said that she had depended on the Coopers to do anything on the grounds that needed to be done and that they should have warned her about the hole.

In the deposition testimony of Michael Pennington, he stated that he had owned Pennington Lawn Care since 1998 and had done work for the Coopers. He said that he used a commercial riding lawn mower and mowed the Coopers' rental properties every ten days. He said that several kids from church or high school worked for him, that they began to mow the property at issue in March 2015, and that they would mow, weed eat, blow, and pick up trash and limbs in the yard. He did not recall if he had done the mowing at this location, but said that he more than likely had.

At the March 2, 2017 hearing on summary judgment, Holland's attorney argued that, because there were scalp marks on one side of the hole where Holland fell, Pennington must have known about the hole, and that his knowledge, as the Coopers' agent, was imputed to the Coopers, making them liable for Holland's injury. The trial court granted summary judgment to the Coopers at the conclusion of the hearing, and the order was filed on March 14, 2017.

On March 3, 2017, Holland filed an amended complaint, adding to her prayer for damages that she sought medical benefits from Shelter Insurance, the Coopers' insurance carrier on the property. She alleged that the benefits were "no fault" and payable to a person injured on the property, but Shelter had not paid. The trial court would not consider her amended complaint, stating in a March 13, 2017 email, "It is not appropriate to amend pleadings after a final decision in a case is made. This case is concluded except for appeal." Holland filed a notice of appeal on April 12, 2017, and this appeal followed.

II. Standard of Review and Applicable Law

On appeal, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material question of fact unanswered. Moody v. Tarvin , 2016 Ark. App. 169, 486 S.W.3d 242. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Summary judgment should be granted only when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Id. Once a moving party has established prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id.

Arkansas Code Annotated section 18–16–110 provides as follows:

No landlord or agent or employee of a landlord shall be liable to a tenant or a tenant's licensee or invitee for death, personal injury, or property damage proximately caused by any defect or disrepair on the premises absent the landlord's:
(1) Agreement supported by consideration or assumption by conduct of a duty to undertake an obligation to maintain or repair the leased premises; and
(2) Failure to perform the agreement or assumed duty in a reasonable manner.

The Arkansas Supreme Court held that a landlord had no duty to remove hazards from common areas in the absence of an assumption of that duty in a lease in Wheeler v. Phillips Development Corp. , 329 Ark. 354, 947 S.W.2d 380 (1997). Therein, the supreme court stated as follows:

A tenant is not an invitee on her landlord's premises but has a right equal to that of the landlord to exclusive possession of the property. Glasgow v. Century Property Fund XIX , 299 Ark. 221, 772 S.W.2d 312 (1989). Since 1969, when we decided Kilbury v. McConnell , 246 Ark. 528, 438 S.W.2d 692 (1969), we have adhered to what is known as the Massachusetts rule; that is, that a landlord has no duty to a tenant to remove hazards from common areas unless such terms are spelled out in the lease. Id. ; see also Bartley v. Sweetser , 319 Ark. 117,
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