Masterson v. Stambuck

• Decision Date: 17 July 1995
• Docket Number: No. 94-1326,94-1326
• Citation: 321 Ark. 391,902 S.W.2d 803
• Parties: Mary Francis MASTERSON, Administratrix of the Estate of Archie M. Masterson, Jr., Deceased et al., Appellants, v. David M. STAMBUCK, Jr. et al., Appellees.
• Court: Arkansas Supreme Court

Page 803

902 S.W.2d 803

321 Ark. 391

Mary Francis MASTERSON, Administratrix of the Estate of Archie M. Masterson, Jr., Deceased et al., Appellants, v. David M. STAMBUCK, Jr. et al., Appellees.

No. 94-1326.

Supreme Court of Arkansas.

July 17, 1995.

Woodson D. Walker, Steven R. Smith, Marquis E. Jones, Paul E. Harrison, James Bruce McMath, Little Rock, for appellants.

Robert W. Henry, Conway, for appellees.

HOLT, Chief Justice.

This consolidated interlocutory appeal and cross-appeal involves claims for wrongful death arising out of a single incident. On June 6, 1990, Louis D. Macon, a City of Conway sanitation employee, was driving a garbage truck occupied by two other sanitation employees, Archie Masterson and Calvin H. McCray, on Blaney Hill Road, in Faulkner County, Arkansas, when a vehicle driven by separate defendant David M. Stambuck crossed the center line and struck the truck head on. The truck went off the road, striking a utility pole on the right-of-way which broke and fell on the cab of the truck. The pole was owned, installed, and maintained by appellee and cross-appellant Conway Corporation. Messrs. Masterson, Macon and McCray received fatal injuries as a result of the accident.

The Estates of Messrs. Macon, Masterson, and McCray brought separate suits for wrongful death, which included claims against Conway Corporation on the grounds that it was negligent in maintaining its utility pole too close to the highway in violation of standards allegedly recommended by American Association of State Highway and Transportation officials. Conway Corporation responded by filing motions on the pleadings and motions to be dismissed as a party defendant claiming both governmental and charitable immunity. Thereafter, the Estate of Louis Macon amended its complaint, asserting an alternative argument that Conway Corporation had violated the Arkansas Civil Rights Act of 1993, codified at Ark.Code Ann. § 16-123-105(a) (Supp.1993), by depriving Mr. Macon of his life, to which Conway Corporation responded by filing a separate motion to dismiss.

All three cases were consolidated and submitted on affidavits and other documentary evidence to the trial court, who ordered that Conway Corporation be dismissed as a party defendant on the grounds that it was an arm of the City of Conway and acted in a governmental capacity, and was therefore immune from tort liability. In doing so, the trial court made further findings that Conway Corporation was not immune from liability in tort as a qualified charitable corporation and that the Arkansas Civil Rights Act was inapplicable to the matters at hand.

The court designated its order as final and appealable pursuant to Ark.R.Civ.P. 54(b), specifically finding that the parties and the courts would be subjected to two lengthy jury trials should its order be reversed on appeal, which would cause great hardship in time and expense and thus a great injustice upon all parties concerned. The appellants filed separate notices of appeal and Conway Corporation filed a notice of cross-appeal; thereafter, this court granted Conway Corporation's motion to consolidate the cases for purposes of appeal.

The appellants' arguments are as follows: (1) that the trial court erred in granting Conway Corporation's motion to dismiss, as Conway Corporation is not entitled to governmental immunity under Ark.Code Ann. § 21-9-301 (1987) as an arm of the City of Conway; (2) that the trial court erred in granting Conway Corporation's motion to dismiss on the grounds that Conway Corporation has governmental immunity under Ark.Code Ann. § 21-9-301, as such an application of the statute violates Article 2, section 13 of the Arkansas Constitution, which provides that there should be no wrong without a remedy; (3) thatgovernmental immunity contravenes the rights guaranteed by the Fifth Amendment to the United States Constitution; (4) that Conway Corporation waived its purported governmental immunity; and (5) that the trial court erred in dismissing the claim for relief against Conway Corporation based on Arkansas's Civil Rights Act of 1993. On cross-appeal, Conway Corporation asserts that the trial court erroneously ruled that it is not immune from liability for tort as a qualified charitable organization. We reverse the trial court's finding on the first issue, as the facts reflect that Conway Corporation is not entitled to governmental immunity under Ark.Code Ann. § 21-9-301 (1987), and affirm its ruling on cross-appeal that Conway Corporation is not entitled to charitable immunity. In so holding, it is unnecessary to address the remaining arguments of the parties.

I. Direct appeal--Governmental immunity

The Estates of Archie Masterson, Louis Macon, and Calvin McCray assert that the trial court erred in granting Conway Corporation's motion to be dismissed as a party defendant inasmuch as it was an arm of the City of Conway, and thus immune from liability for actions in tort pursuant to Ark.Code Ann. § 21-9-301 (1987). Before addressing the merits of this argument, we note that the trial court considered matters outside of the parties' complaints to reach its conclusions, and for this reason, we treat the trial court's ruling as the granting of summary judgment. If matters outside the pleadings are presented and not excluded by the court, the motion to dismiss will be treated as one for summary judgment. Rankin v. Farmers Tractor & Equip. Co., 319 Ark. 26, 888 S.W.2d 657 (1994). See also Ark.R.Civ.P. 12(b) and (c).

We review motions for summary judgment as follows: (1) summary judgment is a remedy that should be granted only when it is clear that there is no genuine issue of material fact to be litigated; (2) the burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed in a light most favorable to the party resisting the motion; (3) any doubts and inferences must be resolved against the moving party; (4) the burden in a summary judgment proceeding is on the moving party and cannot be shifted when there is no offer of proof on a controverted issue; and (5) when the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing genuine issue as to a material fact. Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995).

The question before us is whether the trial court properly granted Conway Corporation's motion to dismiss, which we treat as a motion to grant summary judgment, in favor of Conway Corporation on the grounds that it was entitled to immunity under Act 165 of 1969, codified at Ark.Code Ann. § 21-9-301 (1987). On cross-appeal, the issue presented to us is whether the trial court erred in ruling that Conway Corporation was not immune from liability for tort as a qualified charitable organization.

Arkansas Code Annotated § 21-9-301 (1987) reads as follows:

It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state shall be immune from liability for damages. No tort action shall lie against any subdivision because of the acts of their agents and employees.

(Emphasis added.) In an answer to requests for admissions, Conway Corporation admitted that it is not a political subdivision, yet it maintains that it is entitled to governmental immunity under this statute on the basis that it is an "arm" of the City of Conway. Obviously, we find no language in this statute which provides that a municipal corporation may extend its tort immunity to its so-called "arm." The basic rule of statutory construction is to give effect to the intent of the legislature, and when a statute is clear, it is given its plain meaning; the legislative intent is gathered from the plain meaning of the language used. Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995), citing Pugh v. St. Paul Fire & Marine Ins. Co., 317 Ark. 304, 877 S.W.2d 577 (1994). The statute provides for tort immunity for "all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions." Conway Corporation does not fall within any of these enumerated categories, nor does the statute provide immunity for "arms" of municipal corporations or the other named entities.

We disagree with Conway Corporation that we have previously resolved this issue in its favor in Conway Corp. v. Construction Eng'rs, Inc., 300 Ark. 225, 782 S.W.2d 36 (1989). In fact, we specifically declined the invitation to decide whether Conway Corporation was entitled to governmental immunity under section 21-9-301, while holding that contracts let by Conway Corporation were exempt from requirements that public improvement contracts be awarded to the lowest bonded bidder pursuant to Ark.Code Ann. § 19-11-403 and 404 (1987). We stated, in dicta, as follows:

Although the Conway Corporation is not, strictly in name, a utility commission, that is what it is; it performs the same duties as a commission in managing and operating a municipal waterworks.

300 Ark. at 230, 782 S.W.2d 36.

Following our comments in Conway Corp. v. Construction Eng'rs, Inc., supra, we recognize that Conway Corporation performs the same duties as a utility commission. Yet, when we look at the Corporation's articles of incorporation, we note that it was "organized for benevolent purposes and especially for the promotion of education and aiding educational institutions in the City of Conway," and that it was authorized to adopt laws and regulations for the corporation not inconsistent with its articles. Thereafter, the City of Conway granted Conway Corporation a franchise to operate an electrical plant facility within the City of Conway. By its own admission, Conway Corporation was created to operate Conway's electrical system for the stated purpose of providing financial assistance to...