York v. GALR, LLC

Decision Date01 June 2022
Docket NumberCV-21-290
Citation2022 Ark. App. 287,647 S.W.3d 1
Parties Wesley YORK, Appellant v. GALR, LLC, d/b/a the Summit at Velvet Ridge ; Arnold Grounds Apartment Management & Affordable Housing Specialists, LLC, Appellees
CourtArkansas Court of Appeals

Green & Gillespie, by: Joshua D. Gillespie ; Denton & Zachary, Conway, by: Joe Denton and Justin Zachary ; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellant.

Fuqua Campbell, P.A., by: Chris Stevens and Phil Campbell, Little Rock, for separate appellee GALR, LLC, d/b/a The Summit at Velvet Ridge.

Friday, Eldredge & Clark, LLP, by: Donald H. Bacon, Little Rock and Kiimberly D. Young, for separate appellee Arnold-Grounds Apartment Management & Affordable Housing Specialists, LLC.

PHILLIP T. WHITEAKER, Judge

In this appeal, we are presented with the issue of what duty, if any, an apartment complex and its management company owe to a delivery driver to protect him from the criminal acts of third persons that occur in the parking lot of the premises. We hold, in this instance, that neither the apartment complex nor the management company assumed a duty, either contractually or by their actions, to protect the delivery driver. Accordingly, we affirm.

In December 2019, appellant Wesley York was delivering pizza to an apartment complex in North Little Rock when he was attacked by three men. He lost an eye in the attack. He later filed suit against the three men who allegedly perpetrated the attack,1 the apartment complex to which he was delivering the pizza, and the apartment complex's management company. As to the apartment complex and its management company, York sought damages for negligence, tort of outrage, and as a crime victim pursuant to Arkansas Code Annotated section 16-118-107 (Repl. 2016).

The Pulaski County Circuit Court subsequently dismissed York's amended complaint against the apartment complex and its management company, finding that the complaint failed to state facts upon which relief could be granted. More specifically, the circuit court held that neither the apartment complex nor its management company had any contractual or implied duty toward York, that York was not an invitee on the premises, and that he had failed to plead any facts regarding the apartment complex or its management company participating in any felonious conduct. York now appeals, challenging only the dismissal of the negligence claims against the apartment complex and its management company. He argues on appeal that the circuit court erred in finding that the apartment complex and its management company did not owe him a duty and that he was not an invitee on the premises.2

I. Standard of Review

In reviewing a circuit court's decision on a motion to dismiss under Arkansas Rule of Civil Procedure 12(b)(6), this court treats the facts alleged in the complaint as true and views them in the light most favorable to the plaintiff. Parnell v. FanDuel, Inc. , 2019 Ark. 412, 591 S.W.3d 315. In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Id. at 3, 591 S.W.3d at 318. We look only to the allegations in the complaint and not to matters outside the complaint. Henson v. Cradduck , 2020 Ark. 24, 593 S.W.3d 10. We treat only the facts alleged in the complaint as true but not a plaintiff's theories, speculation, or statutory interpretation. Id. The standard of review for the granting of a motion to dismiss is whether the circuit court abused its discretion. Id. We consider questions of law de novo. Brown v. Towell , 2021 Ark. 60, 619 S.W.3d 17. With this standard in mind, we will review the following facts as alleged by York in his amended complaint and presume them to be true.

II. The Amended Complaint

GALR, LLC (GALR), owns and operates an apartment complex in North Little Rock known as the Summit at Velvet Ridge (the Summit). The Summit is a multifamily low-income housing project subject to the regulations of the U.S. Department of Housing and Urban Development (HUD). Among other requirements, HUD requires that public housing units be "decent, safe, sanitary, and in good repair." GALR also has a HUD Housing Assistance Program (HAP) contract involving the Summit. To fulfill its contractual duty, GALR agreed to provide appropriate management, operation, and maintenance services. Concerning safety, GALR contractually agreed to keep the premises safe and to provide reasonable security from criminal activity in the common areas of the premises (including the cost of security personnel). However, GALR took little to no action to fulfill this duty.

GALR has an extensive history of HUD noncompliance and violations, specifically for failures to provide reasonable security from criminal activity on the premises. In 2017, HUD performed an onsite review of the Summit. HUD issued the Summit an overall unsatisfactory rating. Specifically, HUD found that the Summit had not provided a written security plan and was not sufficiently monitoring or addressing criminal activity, resulting in an increased risk of additional, more serious crimes.

As a result of this onsite review, HUD issued certain directives to the Summit. First, it determined that the Summit must reassess how it addressed crime, both proactively and reactively. HUD, therefore, directed the Summit to perform an assessment of the number and types of criminal activity that were occurring at the property as well as the effectiveness of the safety measures currently in place. Second, HUD directed the Summit to implement a corrective action plan to improve the safety at the property and decrease the amount of criminal activity that is occurring onsite. The corrective action plan was to include specific measures regarding how criminal activity would be prevented, monitored, and addressed as well as the frequency of any proposed actions, with the roles and/or partnerships of key participants—owner/agent, residents, community groups, and the North Little Rock Police Department—specified. The corrective action plan could also include a plan for regularly obtaining and reviewing police reports with the apartment complex, taking appropriate lease-enforcement action based on resident- or unit-specific information in police reports; periodic resident meetings to encourage safety and neighborhood-watch-like activities; regularly scheduled dialogue and meetings between management, residents, and the local police; and/or the procurement of a paid patrol service.

Arnold Grounds Apartment Management and Affordable Housing Specialists, LLC (AGAM), is a management company specializing in the management of low-income and affordable housing. In March 2018, GALR contracted with AGAM for the management of the Summit. GALR and AGAM took actions3 and assumed a duty to implement and enforce an effective safety plan at the Summit to improve safety at the property and decrease the amount of significant criminal activity occurring on site.

In October 2019, AGAM obtained a security proposal for the Summit from Total Security Concepts, LLC, d/b/a Signal 88 Security of Little Rock (Total Security). The proposal included monitoring for a variety of site-specific property violations, such as trespassing, vandalism, criminal activity, and all other client concerns. GALR agreed to and signed the agreement.

On December 14, 2019, York was delivering a pizza to the Summit apartments. While in the parking lot of the apartment complex, York was robbed at gunpoint by a group of masked or partially masked assailants. The parking lot of the apartment complex is a common area possessed and controlled solely by GALR. No other entity or individual, including tenants of the Summit apartments, are authorized to exercise any control over the parking lot where York was attacked. GALR and AGAM knew that York and other food-delivery drivers were on the premises.

GALR and AGAM were fully aware that criminal activity, including violent criminal activity, was occurring at the apartment complex. Between January 1, 2014, and December 14, 2019, the North Little Rock Police Department was called to the Summit apartment complex approximately 4700 times. GALR and AGAM or their agents personally called the police to report criminal activity on the premises more than fifty times in the five years preceding the attack on York.

III. Analysis

Assuming the foregoing facts are true, the issue becomes whether GALR and AGAM owe a duty, either contractually or by assumption, to York to prevent the criminal attack by third persons. The issue of whether a duty exists—and what duty exists—is a question of law. Yanmar Co., Ltd. v. Slater , 2012 Ark. 36, 386 S.W.3d 439.

A. Contractual Duty

The first issue to be decided is whether GALR or AGAM had a contractual duty to protect York from the criminal acts of a third party. York contends that GALR and AGAM had a contractual duty to protect him as a result of their agreement to be bound by HUD regulations and in the overall HAP contract.

In his amended complaint, York alleged that GALR contractually agreed with HUD to provide decent, safe, and sanitary housing in its maintenance and operation of the Summit. As part of its agreement to accept HUD funding, he asserted that GALR contractually agreed to keep the premises safe and to provide reasonable security from criminal activity in the common areas of the premises but took little to no actions to fulfill this duty.

Even assuming his allegations are true, his argument fails. He argues that the HAP contract between HUD and GALR creates a duty. However, York failed to attach the contract to his amended complaint and failed to specifically identify what provisions, if any, contractually obligate GALR and AGAM to protect third parties from criminal attacks. Accordingly, York has failed to state any facts to indicate how the HAP contract extends a duty to...

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    ... ... not consider matters outside the four corners of the ... complaint, and all the allegations in the complaint are to be ... taken as true. York v. GALR, LLC, 2022 Ark.App. 287, ... at 3, 647 S.W.3d 1, 4. Arkansas Rule of Civil Procedure ... 12(b)(6) also requires that if matters outside the ... ...

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