New Maumelle Harbor v. Rochelle, 98-1485

• Decision Date: 10 June 1999
• Docket Number: No. 98-1485,98-1485
• Citation: 338 Ark. 43,991 S.W.2d 552
• Parties: NEW MAUMELLE HARBOR, a/k/a Jolly Rogers Marina, Appellant, v. Mac ROCHELLE, Appellee.
• Court: Arkansas Supreme Court

Page 552

991 S.W.2d 552

338 Ark. 43

NEW MAUMELLE HARBOR, a/k/a Jolly Rogers Marina, Appellant, v. Mac ROCHELLE, Appellee.

No. 98-1485.

Supreme Court of Arkansas.

June 10, 1999.

Barber, McCaskill, Jones & Hale, P.A., by: R. Kenny McCulloch and Michelle B. Miller, Little Rock, for Appellant.

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

DONALD L. CORBIN, Justice.

This is a negligence case involving a fire on a boat dock. Appellant New Maumelle Harbor, a/k/a Jolly Rogers Marina, appeals the order of the Pulaski County Circuit Court granting summary judgment in favor of Appellee Mac Rochelle. We have jurisdiction of this tort case pursuant to Ark. Sup.Ct. R. 1-2(g). On appeal, Appellant argues that the trial court erred in granting summary judgment because there are material issues of fact yet to be resolved. We find merit to Appellant's argument, and we reverse.

On or about January 30, 1998, a fire occurred at the Jolly Rogers Marina. On that same date, Appellee had entered into a rental agreement with the marina to store his boat in slip number twelve of boat dock number three. Appellant alleged in its complaint that the fire started in slip twelve of boat dock number three as a direct result of Appellee's negligent use of a battery charger. Specifically, Appellant alleged that Appellee (1) operated the battery charger in an improper manner; (2) left the charger unattended for an extended period of time; and (3) failed to use ordinary care for the safety and protection of Appellant's property. Appellant sought damages in excess of $100,000.

Appellee filed a motion for summary judgment, asserting that Appellant's claim against him was based only on speculation and conjecture. Particularly, Appellee asserted that Appellant's expert witness, insurance investigator Gerald Alsup, had determined only possible, rather than probable, causes of the fire. Appellee asserted further that Alsup's sworn statements revealed that he had no reason to believe that any act or omission by Appellee caused the fire. Appellee also relied on statements from Roger Nesuda, the owner of the marina, and Carlton C. Wright, another investigator, in which they indicated a lack of knowledge as to the cause and origin of the fire. Nesuda stated that he had no knowledge of what started the fire other than the opinion of Alsup. Wright stated that there was not enough evidence available to determine where the fire started or what started the fire; however, he agreed with Alsup that the fire started in the eastern two-thirds of dock number three. The trial court granted summary judgment, and this appeal followed.

This court has frequently stated the guidelines for reviewing the granting of a motion for summary judgment:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.

Sublett v. Hipps, 330 Ark. 58, 62, 952 S.W.2d 140, 142 (1997) (quoting Milam v. Bank of Cabot, 327 Ark. 256, 261-62, 937 S.W.2d 653, 656 (1997)). Once a moving party establishes prima facie entitlement to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a genuine issue of material fact. Id.

Negligence is defined as the failure to do something that a reasonably careful person would do, or the doing of something that a reasonably careful person would not do, under the circumstances. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998). To establish a prima facie case of negligence, a plaintiff must prove that he sustained damages, that the defendant was negligent, and that such negligence was a proximate cause of the damages. Sublett, 330 Ark. 58, 952 S.W.2d 140. "To constitute negligence, an act must be one from which a reasonably careful person would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner." Wallace, 331 Ark. at 67, 961 S.W.2d at 715 (citing AMI Civil 3 rd 301). It is not necessary that the actor foresee the particular injury that occurred, only that the actor reasonably foresee an appreciable risk of harm to others. Id. Proximate cause may be shown from circumstantial evidence, and "such evidence is sufficient to show proximate cause if the facts proved are of such a nature and are so connected and related to each other that the conclusion therefrom may be fairly inferred." Id. (citing White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992)). The standard to be applied in deciding whether summary judgment is appropriate is whether there is evidence sufficient to raise an issue of fact on the claim. Id. Thus, we need only decide if the pleadings and evidentiary documents raise issues of fact concerning whether Appellee's acts or...