Lively v. Libbey Memorial Physical Medical Center, Inc., No. 93-1243

CourtSupreme Court of Arkansas
Writing for the CourtDUDLEY
Citation317 Ark. 5,875 S.W.2d 507
PartiesKim L. LIVELY, Appellant, v. LIBBEY MEMORIAL PHYSICAL MEDICAL CENTER, INC., Appellee.
Decision Date09 May 1994
Docket NumberNo. 93-1243

Page 507

875 S.W.2d 507
317 Ark. 5
Kim L. LIVELY, Appellant,
v.
LIBBEY MEMORIAL PHYSICAL MEDICAL CENTER, INC., Appellee.
No. 93-1243.
Supreme Court of Arkansas.
May 9, 1994.

Page 508

[317 Ark. 6] Don P. Chaney, Arkadelphia, for appellant.

William M. Griffin, III, John C. Fendley, Jr., Little Rock, for appellee.

DUDLEY, Justice.

Libbey Memorial Physical Medical Center, Inc., defendant below and appellee on appeal, provides [317 Ark. 7] physical medicine and fitness services to the public. It allows its employees and their families to use its exercise and fitness center as a fringe benefit of employment. Kim Lively, plaintiff and appellant, an employee of Libbey Memorial, was injured on March 26, 1987, an off-work day, while using one of the whirlpools at Libbey Memorial's exercise and fitness center.

On March 23, 1989, just before the worker's compensation statute of limitations expired, Lively filed a claim with the Worker's Compensation Commission. She alleged that her injury arose out of and in the course of her employment.

The Worker's Compensation claim had not been decided when, one year later on March 23, 1990, and just before the tort statute of limitations would have run out, she filed a tort claim in circuit court. She alleged that she was an invitee of Libbey Memorial, that it negligently caused her accident, and that it should be liable for compensatory as well as punitive damages.

On April 16, 1990, her worker's compensation claim was dismissed for failure to request a hearing within six months. On April 3, 1991, she refiled her worker's compensation claim, but on April 24, 1992, an administrative law judge ruled that the second filing was barred by the statute of limitations. In the ruling, the administrative law judge made a specific finding that "at all times, the relationship of employee-employer-carrier existed" between Lively, Libbey Memorial, and its worker's compensation carrier.

Meanwhile, in circuit court on December 2, 1991, the circuit judge had granted Libbey Memorial's motion for summary judgment. The trial court found that there was no evidence that Libbey Memorial derived any economic benefit by allowing employees to use the whirlpool facilities during nonwork hours and that the use of the facilities was merely gratuitous. As a result, the trial court ruled that Lively was a licensee; thus, Libbey Memorial owed no duty to her except to refrain from injuring her through willful or wanton negligence, and since willful or wanton negligence was not pleaded, there was no genuine issue of material fact for a jury. Lively appealed. We reversed the summary judgment because we found that Lively had presented evidence which raised genuine issues of material fact as to whether Lively was a licensee or an invitee and as to whether Libbey Memorial had acted willfully and wantonly. See Lively v. Libbey [317 Ark. 8] Memorial Physical Medicine Ctr., Inc., 311 Ark. 41, 841 S.W.2d 609 (1992).

On June 10, 1993, after the remand, Libbey Memorial filed a second motion for summary judgment, alleging that Lively's exclusive remedy was under the Worker's Compensation Act and that she should be estopped from...

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8 practice notes
  • Gallipo v. City of Rutland, No. 00-217.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • December 21, 2001
    ...if entitled to it. 117 Vt. 94, 98, 85 A.2d 493, 496 (1952) (citations omitted); see also Lively v. Libbey Mem'l Physical Med. Ctr., Inc., 317 Ark. 5, 875 S.W.2d 507, 509 (1994) (party does not "elect between inconsistent remedies when he actually only has one available"); Patrick v. Highbau......
  • VanWagoner v. Beverly Enterprises, No. 97-1355
    • United States
    • Supreme Court of Arkansas
    • July 2, 1998
    ...to a given case. See, e.g. Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257 (1996); Lively v. Libbey Memorial Physical Medical Ctr., Inc., 317 Ark. 5, 875 S.W.2d 507 (1994). This approach, however, is fraught with weaknesses. One practical result of this rule is that the party that acts first......
  • Craig v. Traylor, No. 95-789
    • United States
    • Supreme Court of Arkansas
    • February 12, 1996
    ...jurisdiction in the courts and agency, our cases suggest to the contrary. See, e.g., Lively v. Libbey Memorial Physical Medical Ctr., Inc., 317 Ark. 5, 875 S.W.2d 507 (1994) (indicating that either the Workers' Compensation Commission or the circuit court must determine the applicability of......
  • Travelers Ins. Co. v. Smith, No. 97-415
    • United States
    • Supreme Court of Arkansas
    • July 7, 1997
    ...choice of one, then he is bound by his election and cannot resort to the other remedy. Lively v. Libbey Memorial Physical Medical Ctr., 317 Ark. 5, 9, 875 S.W.2d 507, 509 (1994), citing Gentry v. Jett, 235 Ark. 20, 356 S.W.2d 736 (1962). In the context of this case, an election of remedies ......
  • Request a trial to view additional results
8 cases
  • Gallipo v. City of Rutland, No. 00-217.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • December 21, 2001
    ...if entitled to it. 117 Vt. 94, 98, 85 A.2d 493, 496 (1952) (citations omitted); see also Lively v. Libbey Mem'l Physical Med. Ctr., Inc., 317 Ark. 5, 875 S.W.2d 507, 509 (1994) (party does not "elect between inconsistent remedies when he actually only has one available"); Patrick v. Highbau......
  • VanWagoner v. Beverly Enterprises, No. 97-1355
    • United States
    • Supreme Court of Arkansas
    • July 2, 1998
    ...to a given case. See, e.g. Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257 (1996); Lively v. Libbey Memorial Physical Medical Ctr., Inc., 317 Ark. 5, 875 S.W.2d 507 (1994). This approach, however, is fraught with weaknesses. One practical result of this rule is that the party that acts first......
  • Craig v. Traylor, No. 95-789
    • United States
    • Supreme Court of Arkansas
    • February 12, 1996
    ...jurisdiction in the courts and agency, our cases suggest to the contrary. See, e.g., Lively v. Libbey Memorial Physical Medical Ctr., Inc., 317 Ark. 5, 875 S.W.2d 507 (1994) (indicating that either the Workers' Compensation Commission or the circuit court must determine the applicability of......
  • Travelers Ins. Co. v. Smith, No. 97-415
    • United States
    • Supreme Court of Arkansas
    • July 7, 1997
    ...choice of one, then he is bound by his election and cannot resort to the other remedy. Lively v. Libbey Memorial Physical Medical Ctr., 317 Ark. 5, 9, 875 S.W.2d 507, 509 (1994), citing Gentry v. Jett, 235 Ark. 20, 356 S.W.2d 736 (1962). In the context of this case, an election of remedies ......
  • Request a trial to view additional results

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