Tucker v. Sullivan, 91-274

• Decision Date: 23 December 1991
• Docket Number: No. 91-274,91-274
• Citation: 821 S.W.2d 470,307 Ark. 440
• Parties: Kimberly TUCKER, Appellant, v. James SULLIVAN, Appellee.
• Court: Arkansas Supreme Court

Page 470

821 S.W.2d 470

307 Ark. 440

Kimberly TUCKER, Appellant, v. James SULLIVAN, Appellee.

No. 91-274.

Supreme Court of Arkansas.

Dec. 23, 1991.

James Gerard Schulze, Little Rock, for appellant.

Mel Sayes, Little Rock, for appellee.

HOLT, Chief Justice.

This is a tort case, certified to us from the court of appeals, in which we are again faced with differentiating between the status of one who is an "invitee" and one who is merely a "licensee."

On July 4, 1989, the appellant, Kimberly Tucker, was severely burned in an accident at the home of her fiance, James Sullivan, the appellee. Ms. Tucker had been residing with Mr. Sullivan since mid-May of that year. Ms. Tucker alleged that as she was washing and drying clothes, she kicked over a gas can, spilling gasoline on her jeans. Realizing what she had done, she decided to go and change; before doing so, however, she started the dryer. Ms. Tucker failed to realize the dryer was a gas dryer, which had an open flame near her feet. The guard plate had been removed. The gasoline ignited, causing severe injuries.

Ms. Tucker filed suit against Mr. Sullivan, alleging he failed to use ordinary care to maintain the premises in a reasonably safe condition, and that he knew of the danger caused by the proximity of the gasoline to the unguarded gas dryer, but failed to warn her.

Mr. Sullivan moved for partial summary judgment, asking the trial court to declare that, at the time of the accident, Ms. Tucker was a licensee on the premises. Mr. Sullivan's theory was that Ms. Tucker was either a tenant on the premises, since she paid bills and living expenses, or a social guest, and, under either classification, she would be deemed a licensee, rather than an invitee, under Arkansas law.

The trial court granted Mr. Sullivan's motion, finding that since Ms. Tucker's living arrangement with Mr. Sullivan was for social purposes, she could not be considered an invitee. This holding resulted in the dismissal of Ms. Tucker's ordinary negligence claim since a landowner owes only a duty to refrain from injuring a licensee through wanton and willful conduct. The trial court found, as a matter of law, that Mr. Sullivan's conduct did not rise to this level. The parties proceeded to trial on the issue of Mr. Sullivan's duty to warn Ms. Tucker and the jury was instructed on this issue in accordance with the duty owed a licensee. A verdict was returned in favor of Mr. Sullivan.

Ms. Tucker now appeals, claiming the trial court erred in granting Mr. Sullivan's motion for partial summary judgment and in instructing the jury that she was a licensee as a matter of law. We affirm.

In considering Mr. Sullivan's motion for partial summary judgment, the trial court had before it briefs from both parties, the pleadings, and Ms. Tucker's deposition. Summary judgment, like a mistrial, is an extreme remedy, and should only be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Morris v. Valley Forge Ins. Co., 305 Ark. 25, 805 S.W.2d 948 (1991).

The facts before trial were essentially undisputed. Ms. Tucker explained in her deposition that she met Mr. Sullivan at the Day's Inn Hotel, where Mr. Sullivan was working as a security guard. At the time, Ms. Tucker was receiving psychiatric treatment and was on leave from a North Little Rock hospital. She and Mr. Sullivan developed a friendship and he visited her in the hospital. Ms. Tucker stated that, following her discharge, "[Mr. Sullivan] asked me to live with him if I didn't have anywhere else to live. But he did invite me to come into his home."

Ms. Tucker subsequently moved in with Mr. Sullivan in May, 1989, and the two became engaged to be married. Ms. Tucker testified Mr. Sullivan quit his job soon after she moved in, and that she paid all of their living expenses, including the house payment and utilities. Mr. Sullivan also stated Ms. Tucker paid all of the living expenses, in his motion for partial summary judgment.

Ms. Tucker argues that because her living arrangement with Mr. Sullivan inured to his benefit, she should be considered an invitee. She cites the court to one of the alternative portions of AMI 1106, which recites the distinction between "licensee" and "invitee." "A licensee is a person who goes upon the premises of another with the consent of the owner for his own purposes and not for the mutual benefit of himself and the owner." (Emphasis added.) The "mutual benefit" language is included as part of the definition of "invitee." The question is whether we should extend the meaning of "mutual benefit", in classifying a person as an invitee, to include situations in which the primary purpose of the "invitation" is social. The trial court refused to do so and we agree.

Although we have not previously been confronted with a factual situation of this nature, we have cited, with approval, Dean Prosser's definition of an invitee as "one induced to come onto property for the business benefit of the possessor." Kay v. Kay, 306 Ark. 322, 812 S.W.2d 685 (1991); Coleman v. United Fence Co., 282 Ark. 344, 668 S.W.2d 536 (1984).

Other courts and scholars, in conferring upon a visitor the status of "invitee," have also looked to the "business" relationship between the possessor and the visitor. "One entering premises...