Wheeler v. Phillips Development Corp., 97-187

Decision Date07 July 1997
Docket NumberNo. 97-187,97-187
Citation947 S.W.2d 380,329 Ark. 354
PartiesRebecca WHEELER, Appellant, v. PHILLIPS DEVELOPMENT CORPORATION and Evergreen Four Limited Partnership, Appellees.
CourtArkansas Supreme Court

W. Christopher Paul, Jonesboro, for Appellant.

P. Sanders Huckabee, Jonesboro, for Appellees.

THORNTON, Justice.

Appellant Rebecca Wheeler was injured when she stepped on a rock that was on the sidewalk of her apartment community, which is owned by appellees Phillips Development Corporation and Evergreen Four Limited Partnership. Freda Morris Hulen, the apartment manager, was operating a weedeater in the vicinity at the time. Appellant, who is a diabetic and legally blind, filed a complaint alleging that appellees had a duty of care to keep the premises safe because it is occupied primarily by elderly, handicapped, and disabled persons. She alleged that Ms. Hulen knew or should have known that the rock was on the sidewalk and that appellees, through their agent, breached their duty of care to her in failing to keep the sidewalk clear of dangerous objects.

Appellees moved for summary judgment, denying that they owed her a higher duty of care than that of a landlord to a tenant, and arguing that appellant had failed to present a genuine issue of material fact on the allegation of negligence. An affidavit by Ms. Hulen accompanied the motion, stating that she had not caused a rock to be on the sidewalk, and that she was unaware of any rocks on the sidewalk.

In her response to the motion, appellant argued that Ms. Hulen's statement that it was her duty to manage the apartments and maintain the lawn, stating further that "I mow, weedeat, and then clean off the sidewalk" created a genuine issue of material fact as to whether appellees had assumed a duty to keep the area safe. Appellant offered in support of her motion an affidavit from Leo Roger Cox, who stated that he saw Ms. Hulen operating the weedeater ten to fifteen feet from the sidewalk where appellant was injured, that Ms. Hulen knew or should have known that the rock was there, and that Ms. Hulen was the only person he saw in the area. Appellant also stated in her own affidavit that Ms. Hulen knew or should have known that the rock was there. However, appellant did not offer any lease agreement, ground rules, or any other document or evidence to reflect that appellees had assumed a higher standard of care for their tenants than applicable to a normal landlord-tenant relationship. The evidence offered in response to appellee's motion for summary judgment failed to raise a genuine issue of material fact as to whether appellees assumed a duty to keep the common areas safe, and we agree with the ruling of the trial court.

It is appropriate to sustain a grant of summary judgment if the record before the trial court "shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Tullock v. Eck, 311 Ark. 564, 567, 845 S.W.2d 517, 519 (1993); Ark. R. Civ. P. 56(c). Appellees, as movant for summary judgment, bear the burden of showing that there is no issue of material fact. Gleghorn v. Ford Motor Credit Co., 293 Ark. 289, 737 S.W.2d 451 (1987). All evidence must be viewed in light most favorable to appellant, as she is the party resisting the motion, and she...

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  • Young v. Gastro-Intestinal Center, Inc.
    • United States
    • Arkansas Supreme Court
    • March 24, 2005
    ...motion. The question of whether a duty is owed is always a question of law and never one for the jury. Wheeler v. Phillips Dev. Corp., 329 Ark. 354, 947 S.W.2d 380 (1997). The Center was under a duty of ordinary care to provide for Young as his condition reasonably required. Regions Bank & ......
  • Hadder v. Heritage Hill Manor, Inc.
    • United States
    • Arkansas Court of Appeals
    • June 1, 2016
    ...Rule of Civil Procedure 56 must show specifically that there is a genuinely disputed issue of material fact. Wheeler v. Phillips Dev. Corp., 329 Ark. 354, 947 S.W.2d 380 (1997). Conclusory allegations are insufficient to create a fact issue in a summary-judgment situation. Sundeen v. Kroger......
  • Wilson v. Rebsamen Ins., Inc., 97-14
    • United States
    • Arkansas Supreme Court
    • December 4, 1997
    ...there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. Wheeler v. Phillips Dev. Corp., 329 Ark. 354, 947 S.W.2d 380 (1997); Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997). In making this determination, we review the evidence ......
  • Park Plaza Mall CMBS, LLC v. Kimberly Marie Powell Individually And
    • United States
    • Arkansas Court of Appeals
    • January 24, 2018
    ...tenant is not an invitee but has a right equal to that of the landlord to exclusive possession of the property. Wheeler v. Philips Dev. Corp., 329 Ark. 354, 947 S.W.2d 380 (1997). In addition, Arkansas has long adhered to the rule that a landlord has no duty to protect a tenant from crimina......
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