Hurd v. Hurt, CV–16–621

Decision Date12 April 2017
Docket NumberNo. CV–16–621,CV–16–621
Citation519 S.W.3d 710
Parties Ulysses HURD, Appellant v. Bob HURT and Sue Hurt, Appellees
CourtArkansas Court of Appeals

Rogers, Coe & Sumpter, Attorneys, by: Joe M. Rogers, for appellant.

Bart Ziegenhorn, West Memphis, for appellee.

LARRY D. VAUGHT, Judge

After appellant Ulysses Hurd's leased mobile home exploded, causing him personal injury, he filed suit against appellees Bob and Sue Hurt for negligence. The Crittenden County Circuit Court entered an order of summary judgment finding that the Hurts owed no duty to Hurd and dismissed his complaint. On appeal, Hurd argues that the circuit court erred in granting summary judgment because material issues of facts are in dispute on the issues of whether (1) the Hurts assumed a duty to repair the mobile home; (2) the Hurts failed to warn Hurd; (3) the Hurts violated the Arkansas Fire Code; and (4) the caveat-lessee doctrine set forth in Arkansas Code Annotated section 18–16–110 (Repl. 2015) applies. We reverse and remand.

Hurd testified in his deposition that in January or February 2010, he moved into a mobile home at the Broadway Trailer Park that he leased from Bob Hurt. There was no written lease agreement. Hurd and Hurt orally agreed that Hurd would pay monthly rent of $475. Hurd stated that while he lived there, he had asked Hurt to make repairs to the toilet, stove, air conditioner, and shower. Hurd testified that he sometimes saw Bob Hurt make the repairs and at other times the repairs were made while Hurd was at work. Hurd further testified that when he first moved into the home he requested that Bob Hurt repair the refrigerator because it was not cooling properly. When Hurd returned from work, the refrigerator was working.

Hurd testified that the refrigerator problem recurred on August 27, 2010. Hurd said that he woke up that morning around 10:00 a.m. and went to his sister's home for two to three hours. When he returned home, he heard a loud "hysterical" hissing sound. Hurd walked across the street to a furniture store operated by the Hurts and reported the noise to Bob Hurt. Hurd said that he asked Bob Hurt if the hissing sound could cause an explosion, and Hurt said no. Hurt also told Hurd that he (Hurt) put Freon in the bottom of the refrigerator and that the noise should stop by the time Hurd returned from work. Hurd returned home and turned on the gas stove to light a cigarette. The mobile home exploded, and Hurd was severely burned.

It was later determined by the fire marshal that the origin of the fire was the furnace in Hurd's mobile home, which the fire marshal found was "located beside the refrigerator." The flex gas line of the furnace was disconnected, which allowed gas to escape into the mobile home. The gas was ignited when Hurd used the stove.

Hurd filed a negligence suit against the Hurts1 seeking compensatory and punitive damages for the personal injuries he sustained. He alleged that the Hurts failed to maintain the furnace and mobile home in a reasonably safe condition after they had undertaken a duty by their actions to maintain the premises; failed to warn him that the hissing sound could have been gas escaping; and violated the Arkansas Fire Code by allowing the gas line to the furnace to be disconnected.

The Hurts filed a motion for summary judgment, contending that there was no dispute that they did not own the mobile home and that they did not enter into a written lease or any other agreement with Hurd; therefore, they did not owe a common-law, statutory, or contractual duty to him. In response, Hurd argued that there were material facts in dispute about (1) the Hurts' ownership and management of the mobile-home park; (2) the Hurts' assumption of the duty by their conduct to maintain or repair the mobile home; and (3) the Hurts' violation of the Arkansas Fire Code. Hurd also argued that statutory protection of landlords applies only to "the premises," which does not include the disconnected gas line.

An order of summary judgment was entered on March 29, 2016, wherein the circuit court found that "there are no genuine issues of material fact regarding the duty the [Hurts] owed [Hurd]" and that "as a matter of law the [Hurts] owed no duty to [Hurd] in this matter." This appeal followed.

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, at 2, 486 S.W.3d 242, 243. 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. at 3, 486 S.W.3d at 243. Summary judgment should be granted only 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. Id. , 486 S.W.3d at 243. 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. , 486 S.W.3d at 243.

Hurd's first point on appeal is that the circuit court erroneously entered summary judgment in favor of the Hurts based on its finding that they owed no duty to Hurd. Arkansas has recognized the common-law doctrine of caveat lessee2 for almost a century, and under that rule, unless a landlord agrees with his tenant to repair leased premises, he cannot, in the absence of statute, be compelled to do so or be held liable for repairs. Propst v. McNeill , 326 Ark. 623, 624, 932 S.W.2d 766, 767 (1996) ; see also Majewski v. Cantrell , 293 Ark. 360, 362, 737 S.W.2d 649, 651 (1987) (stating that a lessor under common law owes no duty of repair of the premises to the lessee but that a landlord who agrees to such repairs can be held liable for them).

The Arkansas legislature decidedly approved of the caveat-lessee doctrine by enacting Arkansas Code Annotated section 18–16–110 in Act 928 of 2005. Hadder , 2016 Ark. App. 303, at 9, 495 S.W.3d at 633. In section 1 of Act 928 of 2005, explaining the legislative purpose and intent of this statute, our legislature declared that the Arkansas Supreme Court had "properly and correctly interpreted and applied the law and that existing law should not be altered or extended." Hadder , 2016 Ark. App. 303, at 9, 495 S.W.3d at 633–34 (citing Acts of 2005, Act 928, § 1(c)(1)). The legislature further declared that the purpose and intent of the act was to codify the existing Arkansas common-law rule. Id. , 495 S.W.3d at 634 (citing Acts of 2005, Act 928, § 1(c)(2)). The statute states 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.

Ark. Code Ann. § 18–16–110.

In this case, the facts are undisputed that there was no written lease or proof of any other agreement or contractual undertaking creating a legal duty on the part of the Hurts to maintain or repair Hurd's mobile home.3 The only other means to attach a duty would be through an assumption by conduct of a duty to maintain or repair the leased premises. One who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all. Hadder , 2016 Ark. App. 303, at 9, 495 S.W.3d at 634.

Hurd argues that there is a question of fact on the issue of whether the Hurts assumed by conduct the duty to maintain or repair Hurd's mobile home. He cites Hurst v. Feild , 281 Ark. 106, 661 S.W.2d 393 (1983) ; Majewski v. Cantrell, supra ; and Thomas v. Stewart , 347 Ark. 33, 60 S.W.3d 415 (2001) in support of his position. In these three cases, the evidence was undisputed that the parties had not entered into written lease agreements; however, there was evidence in each case that the landlord/sublessor agreed to make repairs and/or made repairs to the leased premises, and such evidence...

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3 cases
  • Holland v. Cooper, CV–17–657
    • United States
    • Arkansas Court of Appeals
    • January 24, 2018
    ...landlords assumed by their conduct the duty to maintain or repair precluded a grant of summary judgment to them in Hurd v. Hurt , 2017 Ark. App. 228, 519 S.W.3d 710. In doing so, we stated,Arkansas has recognized the common-law doctrine of caveat lessee for almost a century, and under that ......
  • Bush v. Bush Mach. & Tractor, Inc.
    • United States
    • Arkansas Court of Appeals
    • May 17, 2023
    ...whom the motion was filed, and any doubts and inferences must be resolved against the moving party. Hurd v. Hunt, 2017 Ark.App. 228, 519 S.W.3d 710. Once the moving party has established a prima facie case showing entitlement to summary judgment, the opposing party must meet proof with proo......
  • Altenbaumer v. Southland Mgmt. Corp.
    • United States
    • Arkansas Court of Appeals
    • May 6, 2020
    ...to the party against whom the motion was filed, and any doubts and inferences must be resolvedagainst the moving party. Hurd v. Hunt, 2017 Ark. App. 228, 519 S.W.3d 710. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof w......

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