Lively v. Libbey Memorial Physical Medicine Center, Inc., No. 92-398

CourtSupreme Court of Arkansas
Writing for the CourtNEWBERN; HAYS; HAYS
Citation311 Ark. 41,841 S.W.2d 609
Decision Date09 November 1992
Docket NumberNo. 92-398
PartiesKim L. LIVELY, Appellant, v. LIBBEY MEMORIAL PHYSICAL MEDICINE CENTER, INC., Appellee.

Page 609

841 S.W.2d 609
311 Ark. 41
Kim L. LIVELY, Appellant,
v.
LIBBEY MEMORIAL PHYSICAL MEDICINE CENTER, INC., Appellee.
No. 92-398.
Supreme Court of Arkansas.
Nov. 9, 1992.

Page 610

[311 Ark. 43] Wright, Chaney, Berry, & Daniel, Benny M. Tucker, Arkadelphia, for appellant.

Friday, Eldredge & Clark by William M. Griffin, III, Sarah J. Heffley, Little Rock, for appellee.

NEWBERN, Justice.

This is a premises liability case in which the Trial Court granted summary judgment in favor of the premises owner, Libbey Memorial Physical Medicine Center, Inc. (Libbey Memorial). The appellant, Kim Lively, argues the Trial Court erred in determining there were no remaining material issues of fact with respect to whether she was a licensee when she was injured on Libbey Memorial's property and whether Libbey Memorial breached its duty owed to her. We hold there were remaining material issues of fact, and thus we reverse and remand. Ark.R.Civ.P. 56(c).

Evidence before the Trial Court in the form of discovery documents and affidavits revealed these facts. Libbey Memorial is a business in Hot Springs providing medical and exercise services to the public. Its facilities are open to members and non-members for a fee. At the time of the accident Lively was an employee of Libbey Memorial.

Libbey Memorial maintains whirlpool baths powered by jet pumps mounted along the sides of the pool. Intake suction pipes are located below the surface of the water. On a day when she was not working, Lively went to Libbey Memorial to use the whirlpool, and while doing so, her hair was sucked into an intake pipe. Although Lively's hair was fastened to the top of her head, she believed a few strands got loose and were sucked into the pipe. After hearing Lively cry for help, another patron shut off the whirlpool machines. Some of her hair was cut off because it could not be extricated from the suction pipe. She

Page 611

claimed she almost drowned as a result of the incident.

[311 Ark. 44] Lively admitted being aware of a sign in the pool area warning patrons to keep a certain distance away from the whirlpool jets. Although she could not be certain, she believed the sign said to stay ten or fifteen inches away from the jets. She explained, however, that she did not know to keep a distance away from the underwater suction. She stated she was inexperienced in using whirlpools and did not know about the suction pipes located below the surface of the water. There was also evidence of a small sign in the women's dressing room warning women who had long hair to either put their hair up or wear a bathing cap while using the whirlpool. Lively stated she had not seen that warning.

Lively filed suit against Libbey Memorial claiming she was an invitee on the premises at the time of the accident. She alleged Libbey Memorial's negligence caused her to suffer serious injuries and requested $250,000 in compensatory damages. With respect to her punitive damages claim, Lively stated Libbey Memorial was on actual notice that two other, similar incidents had occurred prior to her accident and, despite this knowledge, Libbey Memorial took no action to protect Lively or the general public from injury. She contended this conduct showed "an utter indifference to, and a conscious disregard for, the safety of others," and Lively claimed entitlement to $500,000 in punitive damages.

Libbey Memorial moved for summary judgment on the grounds that Lively was a mere licensee and the complaint did not allege willful or wanton conduct. Libbey Memorial supported its motion with Lively's deposition statement that she did not believe anyone at Libbey Memorial intentionally injured her.

In response, Lively produced the deposition of the president of Libbey Memorial, Dewey Crow, who said allowing employees to use the whirlpool facilities free of charge was a fringe benefit of employment. Lively argued she was an invitee because Libbey Memorial received an economic benefit from her use of the whirlpool. She contended that by offering employees the use of the facilities free of charge, Libbey Memorial was better able to attract and retain employees and minimize out-of-pocket expenses.

The Trial Court stated there was no evidence that Libbey Memorial derived any economic benefit by allowing employees to [311 Ark. 45] use the whirlpool facilities during non-work hours. The use was merely gratuitous. The Trial Court thus held Lively was a licensee and Libbey Memorial owed no duty except to refrain from injuring her through willful or wanton conduct. The Trial Court also recognized that Libbey Memorial owed Lively the duty to warn of hidden dangers if she did not know, or had no reason to know, of the condition or risk involved.

The Trial Court reasoned (1) willful or wanton conduct was not pleaded and there was no evidence of such conduct, (2) there were no hidden dangers of which Libbey Memorial was obligated to warn Lively, (3) she had used the whirlpool on numerous occasions prior to the accident, and (4) she was aware of the sign warning patrons to keep a distance from the whirlpool jets.

1. Lively's status

Lively first argues there were material questions of fact as to whether she was an invitee and it was reversible error for the Trial Court to determine she was a licensee as a matter of law. The burden of proving that there is no genuine issue of material fact is upon the summary judgment movant, and all proof submitted must be viewed in...

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23 practice notes
  • Nucor Corp. v. Kilman, No. 03-864.
    • United States
    • Supreme Court of Arkansas
    • June 17, 2004
    ...injury by willful or wanton conduct, and a duty to warn of hidden dangers or risks. Lively v. Libbey Memorial Physical Machine Ctr., Inc., [311 Ark. 41,841 S.W.2d 609 (1992)] supra; King v. Jackson, 302 Ark. 540, 790 S.W.2d 904 (1990). To constitute willful or wanton conduct, there must be ......
  • Boren v. Worthen Nat. Bank of Arkansas, No. 95-930
    • United States
    • Supreme Court of Arkansas
    • May 13, 1996
    ...on the premises as a mere licensee as opposed to a business invitee. See, e.g., Lively v. Libbey Memorial Physical Medicine Ctr., Inc., 311 Ark. 41, 841 S.W.2d 609 (1992). Perhaps [324 Ark. 431] protective action was taken by the bank. But we do not know one way or the other. Thus, it is an......
  • Lloyd v. Pier W. Prop. Owners Ass'n & State Farm Fire & Cas. Co., No. CV-14-905
    • United States
    • Court of Appeals of Arkansas
    • September 16, 2015
    ...purpose for which the property is held open to the public, such as a hospital or library. Lively v. Libbey Mem'l Physical Med. Ctr., Inc., 311 Ark. 41, 841 S.W.2d 609 (1992). A business invitee is invited to enter or remain on the property for a purpose directly or indirectly connected with......
  • Young v. Paxton, No. 93-1334
    • United States
    • Supreme Court of Arkansas
    • April 18, 1994
    ...has recognized that an invitee may be a public invitee or a business invitee. Lively v. Libbey Memorial Physical Medicine Ctr., Inc., 311 Ark. 41, 841 S.W.2d 609 (1992). A business visitor is one who enters or remains on land for a purpose connected with the business dealings of the owner. ......
  • Request a trial to view additional results
23 cases
  • Nucor Corp. v. Kilman, No. 03-864.
    • United States
    • Supreme Court of Arkansas
    • June 17, 2004
    ...injury by willful or wanton conduct, and a duty to warn of hidden dangers or risks. Lively v. Libbey Memorial Physical Machine Ctr., Inc., [311 Ark. 41,841 S.W.2d 609 (1992)] supra; King v. Jackson, 302 Ark. 540, 790 S.W.2d 904 (1990). To constitute willful or wanton conduct, there must be ......
  • Boren v. Worthen Nat. Bank of Arkansas, No. 95-930
    • United States
    • Supreme Court of Arkansas
    • May 13, 1996
    ...on the premises as a mere licensee as opposed to a business invitee. See, e.g., Lively v. Libbey Memorial Physical Medicine Ctr., Inc., 311 Ark. 41, 841 S.W.2d 609 (1992). Perhaps [324 Ark. 431] protective action was taken by the bank. But we do not know one way or the other. Thus, it is an......
  • Lloyd v. Pier W. Prop. Owners Ass'n & State Farm Fire & Cas. Co., No. CV-14-905
    • United States
    • Court of Appeals of Arkansas
    • September 16, 2015
    ...purpose for which the property is held open to the public, such as a hospital or library. Lively v. Libbey Mem'l Physical Med. Ctr., Inc., 311 Ark. 41, 841 S.W.2d 609 (1992). A business invitee is invited to enter or remain on the property for a purpose directly or indirectly connected with......
  • Young v. Paxton, No. 93-1334
    • United States
    • Supreme Court of Arkansas
    • April 18, 1994
    ...has recognized that an invitee may be a public invitee or a business invitee. Lively v. Libbey Memorial Physical Medicine Ctr., Inc., 311 Ark. 41, 841 S.W.2d 609 (1992). A business visitor is one who enters or remains on land for a purpose connected with the business dealings of the owner. ......
  • Request a trial to view additional results

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