Rick's Pro Dive 'N Ski Shop, Inc. v. Jennings-Lemon

Decision Date04 March 1991
Docket NumberJENNINGS-LEMO,A,No. 90-312,90-312
Citation803 S.W.2d 934,304 Ark. 671
PartiesRICK'S PRO DIVE 'N SKI SHOP, INC., Appellant, v. Cindyppellee.
CourtArkansas Supreme Court

David S. Mitchell, Robert M. McHenry, Little Rock, for appellant.

Darryl E. Baker, Little Rock, for appellee.

HOLT, Chief Justice.

The appellee, Cindy Jennings-Lemon, enrolled in the appellant, Rick's Pro Dive 'N Ski Shop's (Rick's) underwater diving course. While participating in the course, Jennings-Lemon became extremely cold and apparently had to get out of the water and her diving gear in order to avoid danger of hypothermia. She allegedly sustained injury to her neck when one of Rick's agents "ripped off" the mask and headpiece to her wetsuit.

Jennings-Lemon brought suit in Pulaski County Circuit Court for personal injury and negligence. Rick's moved for summary judgment on the basis of an exculpatory agreement, signed by Jennings-Lemon, that purportedly released Rick's from all liability for any potential acts of negligence. The trial court denied the motion and the case was tried to a jury, resulting in a verdict in favor of Jennings-Lemon.

Rick's now brings this appeal, asserting as its sole point of error, that the trial court erred in denying its motion for summary judgment. We dismiss the appeal as the denial of Rick's motion for summary judgment is not reviewable.

As an initial matter, we must address the issue of reviewability on our own initiative since it was not raised by the parties. We have held that the question of whether an order is final and, therefore, subject to appeal, is a jurisdictional question that we ourselves raise. Ark. Sav. & Loan v. Corning Sav. & Loan, 252 Ark. 264, 478 S.W.2d 431 (1972); Associates Fin. Servs. Co. of Okla., Inc. v. Crawford County Memorial Hosp., Inc., 297 Ark. 14, 759 S.W.2d 210 (1988). By the same analysis, the question of whether we can review a prior interlocutory order is likewise jurisdictional and, furthermore, is dispositive in this appeal. We thus raise it sua sponte.

The denial of a motion for summary judgment is not an appealable order. Malone & Hyde, Inc. v. West & Co. of LA, Inc., 300 Ark. 435, 780 S.W.2d 13 (1989). Furthermore, we have said that such an order is not subject to review on appeal, even after a trial on the merits. Henslee v. Kennedy, 262 Ark. 198, 555 [304 Ark. 673] S.W.2d 937 (1977); American Physicians Ins. Co. v. Hruska, 244 Ark. 1176, 428 S.W.2d 622 (1968); Widmer v. Ft. Smith Veh. and...

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20 cases
  • Murphy Oil Usa v. Unigard Security Ins.
    • United States
    • Arkansas Supreme Court
    • December 6, 2001
    ...for summary judgment do not lie. See, e.g., Ball v. Foehner, 326 Ark. 409, 931 S.W.2d 142 (1996); Rick's Pro Dive `N Ski Shop, Inc. v. Jennings-Lemon, 304 Ark. 671, 803 S.W.2d 934 (1991). 4 The appellees argue that at one point in this extensive litigation Murphy Oil contended the language ......
  • McElroy v. Grisham
    • United States
    • Arkansas Supreme Court
    • June 10, 1991
    ...for summary judgment is not subject to review on appeal, even after a trial on the merits. See Rick's Pro Dive 'N Ski Shop, Inc. v. Jennings-Lemon, 304 Ark. 671, 803 S.W.2d 934 (1991). In addition, the appellees' failure to cite any legal authority in support of this argument further merits......
  • Nucor Holding Corp. v. Rinkines
    • United States
    • Arkansas Supreme Court
    • October 7, 1996
    ...appeal in workers' compensation cases. We, therefore, dismiss the appeal for lack of finality. See Rick's Pro Dive 'N Ski Shop, Inc. v. Jennings-Lemon, 304 Ark. 671, 803 S.W.2d 934 (1991). We note in this regard that Nucor's immunity argument is grounded on the exclusive-remedy provision of......
  • Bps, Inc. v. Parker
    • United States
    • Arkansas Supreme Court
    • June 28, 2001
    ...for summary judgment is denied, since further evidence may be supplied at trial." Ball, supra (quoting Rick's Pro Dive `N Ski Shop, 304 Ark. 671, 673, 803 S.W.2d 934, 935 (1991)). BPS, however, maintains that it is not appealing from a denial of summary judgment but from that part of the ci......
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