Roeder v. United States

• Decision Date: 10 April 2014
• Docket Number: No. CV–13–955.,CV–13–955.
• Parties: Theresa ROEDER, as the Administratrix of the Estate of Esther Kay Roeder, Deceased, and on Behalf of the Wrongful Death Beneficiaries of Esther Kay Roeder; Tara Roeder, as the Administratrix of the Estate of Bruce Wayne Roeder, and on Behalf of the Wrongful Death Beneficiaries of Bruce Wayne Roeder; and Tara Roeder, as the Administratrix of the Estate of Deborah Busby Roeder, and on Behalf of the Wrongful Death Beneficiaries of Deborah Busby Roeder, Petitioners v. UNITED STATES of America; James S. Watson, in his Individual and Official Capacity; Gloria Maples Chrismer, in her Individual and Official Capacity; Normal L. Wagoner, in his Individual and Official Capacity; James B. Kozik, in his individual and Official Capacity; and John Does 1–5, in their Individual and Official Capacity, Respondents.
• Court: Arkansas Supreme Court

2014 Ark. 156
432 S.W.3d 627

Theresa ROEDER, as the Administratrix of the Estate of Esther Kay Roeder, Deceased, and on Behalf of the Wrongful Death Beneficiaries of Esther Kay Roeder; Tara Roeder, as the Administratrix of the Estate of Bruce Wayne Roeder, and on Behalf of the Wrongful Death Beneficiaries of Bruce Wayne Roeder; and Tara Roeder, as the Administratrix of the Estate of Deborah Busby Roeder, and on Behalf of the Wrongful Death Beneficiaries of Deborah Busby Roeder, Petitioners
v.
UNITED STATES of America; James S. Watson, in his Individual and Official Capacity; Gloria Maples Chrismer, in her Individual and Official Capacity; Normal L. Wagoner, in his Individual and Official Capacity; James B. Kozik, in his individual and Official Capacity; and John Does 1–5, in their Individual and Official Capacity, Respondents.

No. CV–13–955.

Supreme Court of Arkansas.

April 10, 2014.

[432 S.W.3d 629]

Trammell Piazza Law Firm, PLLC, by: Melody H. Piazza, Little Rock and M. Chad Trammell, Texarkana; and Appellate Solutions, PLLC, by: Deborah Truby Riordan, for petitioners.

Conner Eldridge and Deborah Fennel Groom, U.S. Attorney's Office; and Stuart F. Delery, Mark B. Stern, and Daniel J. Lenerz, U.S. Department of Justice, for respondents.

Richard Mays Law Firm, PLLC, by: Richard H. Mays, for amicus curiae Aaron Sultz, as Special Administrator of the Estate of Eric Wayne Sultz, deceased, and on Behalf of the Statutory Wrongful Death Beneficiaries of Eric Wayne Sultz.

Ayres, Warren, Shelton & Williams, LLC, by: Lee H. Ayres and Jason W. Poe, for amici curiae Candice Smith et al. and Kerri Basinger et al.

JIM HANNAH, Chief Justice.

This case involves a question of law certified to this court by the United States District Court for the Western District of Arkansas, Hot Springs Division, in accordance with Arkansas Supreme Court Rule 6–8 (2013) and accepted by this court on November 7, 2013. See Roeder v. United States, 2013 Ark. 451, 430 S.W.3d 667. The certified question is:

Whether “malicious” conduct, under Arkansas Code Annotated section 18–11–307(1) (Repl.2003), includes conduct in reckless disregard of the consequences from which malice may be inferred.

We answer in the affirmative.

The following facts were provided in the federal district court's certification order. This is one of eleven similar cases filed in federal district court ¹ arising from the deaths of campers who died in a tragic flood incident in June 2010 at the Albert Pike Recreation Area (“APRA”). ² Some of these campers were camping in Loop D, which is a section of the APRA designated for RV use. Others were camping upstream from Loop D, along Road 512 in the Ouachita National Forest. In the early morning hours of June 11, 2010, heavy rainfall in Montgomery County caused a rapid rise in the Little Missouri River and its tributaries. A flash flood occurred when the river overran its banks into Loop D and the surrounding areas of the APRA. According to the United States Geological Service, the Little Missouri River rose

[432 S.W.3d 630]

over twenty feet between 2:00 a.m. and 5:30 a.m. Twenty people perished in the flood.

Plaintiffs, Theresa Roeder, as the Administratrix of the Estate of Esther Kay Roeder, deceased, and on behalf of the wrongful death beneficiaries of Esther Kay Roeder; Tara Roeder, as the Administratrix of the Estate of Bruce Wayne Roeder, and on behalf of the wrongful death beneficiaries of Bruce Wayne Roeder; and Tara Roeder, as the Administratrix of the Estate of Deborah Busby Roeder, and on behalf of the wrongful death beneficiaries of Deborah Busby Roeder (collectively referred to as “Roeder”), filed suit in federal district court against defendants, the United States of America; James S. Watson, in his individual and official capacity; Gloria Maples Chrismer, in her individual and official capacity; Norman L. Wagoner, in his individual and official capacity; James B. Kozik, in his individual and official capacity; and John Does 1–5, in their individual and official capacity (collectively referred to as the “United States” or the “government”), pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671–2680, alleging that the negligence of the United States Forest Service caused the death of several campers who were camping in or near the APRA.³ The United States asserted that subject-matter jurisdiction was lacking under the FTCA because the Arkansas Recreational Use Statute (“ARUS” or the “Act”), codified at Arkansas Code Annotated sections 18–11–301 to –307, provides the government with immunity. Generally, the ARUS provides immunity from liability to landowners who make their property available for the recreational use of others, except when (1) the landowner charges the person entering the land for recreational use, or (2) when the landowner maliciously fails to guard or warn against an ultrahazardous condition, structure, use, or activity actually known to the landowner to be dangerous. Ark.Code Ann. § 18–11–307. Roeder alleged that the United States was not immune from liability because it maliciously failed to warn or guard against an ultrahazardous condition of which it knew to be dangerous.

The meaning of “malicious” as used in the ARUS is at issue. Roeder contended that malicious conduct includes conduct committed in reckless disregard of the consequences, from which malice may be inferred. The United States contended that malicious conduct is limited to situations involving actual malice or a desire to harm another. Concluding that there was no controlling precedent interpreting the meaning of “malicious,” as it is used in the ARUS, the federal district court certified to this court the question of whether “malicious” conduct, under Arkansas Code Annotated section 18–11–307(1) includes conduct in reckless disregard of the consequences from which malice may be inferred.

The certified question presents an issue of statutory construction. The cardinal rule of statutory construction is to effectuate the legislative will. E.g., Woodrome v. Daniels, 2010 Ark. 244, at 8, 370 S.W.3d 190, 194. Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id., 370 S.W.3d at 194. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id., 370 S.W.3d at 194. We

[432 S.W.3d 631]

construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. Id., 370 S.W.3d at 194.

The word “malicious” is not defined in the ARUS. “Malicious,” as defined by Webster's Third New International Dictionary 1367 (3d ed.2002), means “given to, marked by, or arising from malice.” Black's Law Dictionary defines “malice” as “[t]he intent, without justification or excuse, to commit a wrongful act,” the “reckless disregard of the law or of a person's legal rights,” and “[i]ll will; wickedness of heart.” Black's Law Dictionary 1042 (9th ed.2009). Thus, according to Black's, “malicious” conduct could include, as Roeder contends, conduct in reckless disregard of the consequences from which malice may be inferred, or, as the United States contends, “malicious” conduct could be limited to situations involving “actual malice” or a desire to harm another. Given that “malicious” is open to more than one construction, we conclude that Arkansas Code Annotated section 18–11–307(1) is ambiguous. See, e.g., Smith v. ConAgra Foods, Inc., 2013 Ark. 502, at 3, 431 S.W.3d 200, 202 (stating that a statute is considered ambiguous if it is open to more than one construction). When a statute is ambiguous, we discern legislative intent by examining the whole act. See, e.g., Woodrome, 2010 Ark. 244, at 8, 370 S.W.3d at 195. We reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id., 370 S.W.3d at 195. We also look to the legislative history, the language, and the subject matter involved. Id., 370 S.W.3d at 195.

The ARUS was first enacted in 1965 “to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” Act of Feb. 12, 1965, No. 51, § 1, 1965 Ark. Acts 165, 166 (originally codified at Ark. Stat. Ann. §§ 50–1101 to –1106). To achieve this purpose, the Act limited the liability of landowners in two ways. First, the Act established that, except as specifically recognized or provided,

an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.

Act of Feb. 12, 1965, No. 51, § 3, 1965 Ark. Acts 165, 166; currently codified at Ark.Code Ann. § 18–11–304. Second, the Act provided that, with some exceptions,

...