Moses v. Bridgeman

• Decision Date: 18 December 2003
• Docket Number: No. 03-603.,03-603.
• Citation: 139 S.W.3d 503,355 Ark. 460
• Parties: Donald MOSES, Administrator of the Estate of Donganell Moses v. Clyde BRIDGEMAN, Jr., and Dorothy Bridgeman.
• Court: Arkansas Supreme Court

139 S.W.3d 503

355 Ark. 460

Donald MOSES, Administrator of the Estate of Donganell Moses v. Clyde BRIDGEMAN, Jr., and Dorothy Bridgeman.

No. 03-603.

Supreme Court of Arkansas.

December 18, 2003.

Appeal from the Circuit Court, Jefferson County, H.A. Taylor, J Ramsay, Bridgforth, Harrelson & Starling, LLP, by: William M. Bridgforth and J. Jarrod Russell, Pine Bluff, for appellant.

Huckabay, Munson, Rowlett & Moore, P.A., by: Julia L. Busfield, Little Rock, for appellees.

RAY THORNTON, Justice.

This appeal arises from an order by the Jefferson County Circuit Court granting summary judgment in favor of appellees, Clyde and Dorothy Bridgeman, in a negligence action concerning the drowning of twelve-year-old Donganell Moses. Appellant, Donald Moses, the administrator of the estate of Donganell Moses and Donganell's father, appeals the trial court's grant of summary judgment. We affirm on the basis that the Bridgemans as the property owners did not breach their duty of care to the child as a licensee.

On June 5, 1999, the Bridgemans invited several relatives to their house to make plans for a family reunion. Eight adults and five or six children were present, including twelve-year-old Donganell Moses, and his mother, Beverly Frye. After the family's meeting, the children expressed a desire to swim in appellees' swimming pool. The pool is an underground residential swimming pool. Mrs. Bridgeman provided life jackets and other swim gear to the children. Mrs. Bridgeman testified in deposition that she gave Donganell a life jacket with adjustable straps that could be worn by either an adult or a child.

Mrs. Bridgeman further testified that she asked the parents of the children if the children knew how to swim. Both Donganell and his grandmother told Mrs. Bridgeman that he could swim.

While swimming, Donganell continued to take off his life jacket, but Mrs. Bridgeman and Donganell's grandmother insisted that he wear it. Donganell swam and dove in the deep end of the pool while wearing a life jacket. Mrs. Bridgeman testified that Donganell wore two or three different life jackets that afternoon. The adults talked and later noticed that Donganell was submerged underwater without his life jacket. After several unsuccessful attempts to retrieve the child with poles and nets, Mrs. Bridgeman called 911. Paramedics arrived on the scene and removed the child from the pool. Donganell died as a result of drowning.

Donganell's mother, Beverly Frye, testified that Mrs. Bridgeman was adamant about the children keeping their life jackets on. Mrs. Bridgeman testified that she was not a good swimmer, and that the other adults who were present could not swim.

On August 17, 2001, appellant filed a complaint against the Bridgemans for the wrongful death of Donganell, pursuant to Ark.Code Ann. § 16-62-102 (1987). In the complaint, appellant alleged negligence for allowing Donganell to enter their swimming pool knowing he could not swim, allowing Donganell to enter their swimming pool knowing that there was no person present on the premises who was capable of rescuing the child in the event that he needed assistance, failing to supervise Donganell after he entered the swimming pool, failing to warn Donganell of the depth of the water, failing to warn Donganell and his mother of the risk of harm that none of the adults could swim, failing to anticipate the behavior of Donganell, failing to use reasonable care under the circumstances, failing to provide appropriate safety mechanisms to prevent the drowning of persons in their pool, and failing to take safety precautions necessary to prevent Donganell from drowning.

Appellant filed an amended complaint in which he requested one million dollars in compensatory and punitive damages, respectively. In a second amended complaint, appellant pled in the alternative that in the event that Donganell was not an invitee on the Bridgeman's property, he was a licensee that imposed upon the Bridgemans a duty to use care for his safety that included not causing him harm by willful and wanton conduct.

On May 21, 2002, the Bridgemans filed a motion for summary judgment, pursuant to Ark. R. Civ. P. 56(c), arguing that landowners do not have a duty to supervise their guests' children or to warn them of obvious dangers, and in the alternative, that appellant's claims are barred by the Arkansas Recreational Use Statute, Ark.Code Ann. §§ 18-11-301 et seq. (1987), because it was undisputed that Donganell and his mother were not charged a fee.

On May 28, 2002, appellant filed his response to the Bridgemans' motion for summary judgment. Attached to the response was the deposition testimony of Mrs. Bridgeman.

On June 17, 2002, the Bridgemans filed an answer to the second amended complaint, requesting that the Bridgemans be awarded summary judgment and that appellant's complaint be dismissed.

After a hearing on the matter, appellant was given additional time for discovery to determine if there were any factual issues. After a second hearing, the trial court granted the Bridgemans' motion for summary judgment and dismissed the complaint with prejudice. Appellant brings his appeal from this order granting summary judgment. We affirm the trial court.

In Parker v. Perry, 355 Ark. 97, 131 S.W.3d 338 (2003), we articulated the standard of review that we apply to cases in which summary judgment has been granted. We wrote:

In reviewing summary-judgment cases, this 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. The moving party always bears the burden of sustaining a motion for summary judgment. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. 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 as to any material fact and that the moving party is entitled to a judgment as a matter of law.

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. However, if a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence.

Id. We have further stated that summary judgment should not be granted when reasonable minds could differ as to the conclusions that can be drawn from the facts presented. Shackelford v. Patterson, 327 Ark. 172, 936 S.W.2d 748 (1997).

First, appellant argues that genuine issues of material fact remain as to whether the Bridgemans owed Donganell the duty to exercise reasonable and ordinary care. He also contends that the Bridgemans breached that duty.

The duty of care to a licensee is a matter of law, and in determining the duty owed by the Bridgemans, we first must determine Donganell's status at the Bridgeman home. In Arkansas, a social visitor is regarded as a licensee of the property owner. Heigle v. Miller, 332 Ark. 315, 965 S.W.2d 116 (1998). In Heigle, we stated:

A "licensee" is one who goes upon 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. This court has declined to expand the "invitee" category beyond that of a public or business invitee to one whose presence is primarily social.

Id. (citations omitted).

Here, Donganell was considered a social guest of the Bridgemans because he was invited by them to attend the family meeting and to swim afterward. Because Donganell was considered a licensee, the law imposes a specific duty of care owed by the Bridgemans to Donganell.

In negligence actions, the plaintiff must show that a duty was owed and that the duty was breached. Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994). The duty of care owed to a licensee was explained in Heigle, supra, where we stated:

The question of the duty owed by one person to another is always a question of law and never one for the jury. A landowner owes a licensee the duty to refrain from injuring him or her through willful or wanton conduct. Where, however, the landowner discovers that a licensee is in peril, he or she has a duty of ordinary care to avoid injury to the licensee. This 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.

Id. (citations omitted).

In Young, supra, we further noted:

To constitute willful or wanton conduct, there must be a deliberate intention to harm or an utter indifference to, or conscious disregard of, the safety of others. This court has stated, however, that the duty to warn does not extend to obvious dangers or risks that the licensee should have been expected to recognize.

Id. (citations omitted).

Appellant contends that the Bridgemans breached the duty of care owed to Donganell by allowing "five to six children to swim in their residential swimming pool with the knowledge that not one single adult present could swim with sufficient skill to rescue a drowning child." However, there is no evidence that the Bridgemans breached their duty of care by acting willfully or wantonly to cause Donganell's injury. Under Young, supra, there must be a "deliberate intention to harm or an utter indifference to, or conscious disregard of, the safety of others." Id.

Here, the actions of Mrs. Bridgeman indicate that she in fact was extremely cautious to preserve the safety of the children in the pool. Mrs. Bridgeman testified in her deposition that she provided life jackets to the children and insisted that they wear them. At deposition, the following colloquy took place:

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