Lloyd v. Pier W. Prop. Owners Ass'n, CV–14–905

Citation470 S.W.3d 293,2015 Ark. App. 487
Decision Date16 September 2015
Docket NumberNo. CV–14–905,CV–14–905
CourtCourt of Appeals of Arkansas
PartiesGary Steve Lloyd, Appellant, v. Pier West Property Owners Association and State Farm Fire & Casualty Company, Appellees.

Jackson Law Firm, PA, Little Rock, by: Jim Jackson ; Cullen & Co., PLLC, by: Tim Cullen ; and Callis L. Childs, PA, Conway, by: Callis Childs, for appellant.

Elliott Law Firm, by: Jeffrey C. Elliott, for appellee.

Opinion

KENNETH S. HIXSON, Judge

Appellant Gary Steve Lloyd was seriously and permanently injured as the result of a fall from a second floor common-area balcony of a condominium building located at 100 Bayou Point in Hot Springs, Arkansas. The property is known as Pier West Condominiums. Lloyd attended a party as a social guest of a friend who leased Unit D–4 in the condominium complex. Lloyd alleged that during the party, the wooden guardrail attached to the second floor balcony collapsed, causing him to fall to the ground below and sustain personal injuries. Lloyd filed suit against appellee, Pier West Property Owners Association (Pier West POA), alleging that Pier West POA was negligent in its installation and maintenance of the balcony railing.1 The trial court granted summary judgment to Pier West POA finding that, as a matter of law, Lloyd's status was that of a licensee, that there was no willful or wanton conduct on the part of Pier West POA, that Lloyd failed to produce evidence that Pier West POA had knowledge of the alleged dangerous condition, and that Lloyd failed to present any evidence of a conscious disregard of the safety of others. Lloyd appeals the entry of summary judgment against him and posits the following arguments for reversal and remand for trial:

(1) That Pier West owed a duty of reasonable care to Lloyd;
(2) That Pier West's assumption of that duty extends to all persons on the property whether an invitee or licensee;
(3) That Pier West's purchase of business liability insurance is further evidence that it assumed a duty of care to third party invitees such as Lloyd; and
(4) That Pier West owed a duty to Lloyd, who was a public invitee.

This appeal returns to us after we ordered supplementation of the record and appellant's addendum to include necessary documents pertinent to our appellate review. Lloyd v. Pier West Prop. Owners Ass'n, et al., 2015 Ark. App. 244, 2015 WL 1761926. Those materials have been provided, and thus we address the merits at this time.

We hold that the trial court correctly determined that Lloyd was a licensee and not an invitee. We disagree with the trial court, however, that there was no evidence to support the existence of a duty owed by Pier West POA to Lloyd.

There are at least three possible sources that could impose a duty of ordinary care on the part of Pier West POA to maintain and repair the balcony to Unit D–4. First, Pier West POA could have the duty to use ordinary care to make the condition safe or to warn a licensee who does not have reason to know of the danger. Second, Pier West POA may have contractually assumed the duty of ordinary care. Third, Pier West POA may have assumed the duty of ordinary care by agreeing to repair and maintain the balcony. We hold that there is evidence in the record that supports that Pier West POA assumed the duty of ordinary care, which renders fact questions remaining on whether it breached that duty and whether it proximately caused Lloyd's damages.

The standard of review that we apply to cases in which summary judgment has been granted is well settled. Our court need only decide if the trial court's grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Moses v. Bridgeman, 355 Ark. 460, 139 S.W.3d 503 (2003). The moving party always bears the burden of sustaining a motion for summary judgment. Id. All proof must be viewed in the light most favorable to the resisting party, and any doubts and inferences must be resolved against the moving party. Id. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id. Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Id. Summary judgment should not be granted when reasonable minds could differ as to the conclusions that can be drawn from the facts presented. Id.

In order to prevail on a claim of negligence, the plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach was the proximate cause of the plaintiff's damages. Branscumb v. Freeman, 360 Ark. 171, 200 S.W.3d 411 (2004). The first issue in deciding whether there was actionable negligence is whether Pier West POA owed any duty to Lloyd, and if so, what duty is owed. Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994). Duty is a concept that arises out of the recognition that the relationship between individuals may impose on one a legal obligation for the other. Yanmar Co. v. Slater, 2012 Ark. 36, 386 S.W.3d 439. The question of the duty owed by one person to another is always a question of law and never one for the jury. Kowalski v. Rose Drugs of Dardanelle, Inc., 2011 Ark. 44, 378 S.W.3d 109 ; Moses v. Bridgeman, 355 Ark. 460, 139 S.W.3d 503 (2003). We review questions of law de novo. Gulfco of La. v. Brantley, 2013 Ark. 367, 430 S.W.3d 7.

The first possible source of the imposition of duty of ordinary care arises as a duty to a licensee. In Arkansas, for purposes of premises liability, there are three basic categories of persons present on another's property who may allege injury against the landowner: trespasser, licensee, and invitee. Arkansas courts adhere to common law distinctions between the duties owed to these three categories of persons. Baldwin v. Mosley, 295 Ark. 285, 748 S.W.2d 146 (1988). When determining whether a visitor qualifies as either an invitee or licensee, it is important to look to the purpose of the visit and the property owner's invitation. Slavin v. Plumbers & Steamfitters Local 29, 91 Ark. App. 43, 207 S.W.3d 586 (2005).

A licensee is one who goes on 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. Heigle v. Miller, 332 Ark. 315, 965 S.W.2d 116 (1998). Our supreme court has generally held that a primarily social guest is a licensee. Id. An invitee, in contrast, is one induced to come onto property for the business benefit of the possessor.

Bader v. Lawson, 320 Ark. 561, 898 S.W.2d 40 (1995). There are two types of invitees: public and business. A public invitee is invited to enter or remain on the property as a member of the public for a 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 the business dealings of the possessor of the property. Id. Our supreme court has declined to expand the definition of invitee beyond that of a public or business invitee to one whose presence is primarily social. Heigle, supra ; Bader, supra. As stated above, we hold that the trial court was correct in its determination that Lloyd was a licensee. There remain no disputed questions of fact on this issue, nor is there any other reasonable conclusion to be drawn except that Lloyd was a licensee. We reject Lloyd's argument that he was a public invitee.

A landowner owes a licensee the duty to refrain from injuring him through willful or wanton conduct, except that where the landowner discovers that a licensee is in peril, he has a duty of ordinary care to avoid injury to the licensee. Bader, supra. That 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. Heigle v. Miller, 332 Ark. 315, 965 S.W.2d 116 (1998). To constitute willful or wanton conduct, there must be deliberate intention to harm or an utter indifference to, or conscious disregard of, the safety of others. Young v. Paxton, supra. The duty to warn, however, does not extend to obvious dangers or risks that the licensee should have been expected to recognize. Id. If, however, the landowner knows or has reason to know of a condition on the premises that is not open and obvious and which creates an unreasonable risk of harm to licensees, then it is under a duty to use ordinary care to make the condition safe or to warn those licensees who do not know or have reason to know of the danger. AMI–Civ. 1103. Heigle v. Miller, supra.

The second possible source of the imposition of a duty of ordinary care arises where a party contractually assumes the duty to maintain or repair premises. In Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994), our supreme court noted that since 1932, we have adhered to the rule that a landlord is under no legal obligation to a tenant for injuries sustained in common areas, absent a statute or agreement. Similarly, in Majewski v. Cantrell, 293 Ark. 360, 362, 737 S.W.2d 649, 651 (1987), our supreme court stated that Majewski was correct that a lessor, under the common-law rule that Arkansas follows, owes no duty of repair of the premises to the lessee; but it is also true that a landlord, who agrees to such repairs, can be held liable for making those repairs in a negligent fashion. Majewski expanded the discussion, holding that a landlord is subject to liability for physical harm caused to the tenant and others, upon the leased...

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