Bussey v. Bearden

384 S.W.3d 41, 2011 Ark. App. 353, 2011 Ark. App. LEXIS 389
CourtCourt of Appeals of Arkansas
DecidedMay 11, 2011
DocketNo. CA 10-895
StatusPublished
Cited by1 cases

This text of 384 S.W.3d 41 (Bussey v. Bearden) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bussey v. Bearden, 384 S.W.3d 41, 2011 Ark. App. 353, 2011 Ark. App. LEXIS 389 (Ark. Ct. App. 2011).

Opinion

DAVID M. GLOVER, Judge.

^Teresa and Robert Bussey appeal from the grant of summary judgment in favor of appellees, Melvin and Mural Bearden, d/b/a M & M Bearden and Bearden Rentals (Beardens). The summary judgment did not affect the remaining defendants, Lester Ray Thomas and Misty Michelle Barnes, a fact which ordinarily would render the judgment not final and appealable. However, in an amended Rule 54(b) certificate, the trial court made the requisite findings of fact under Arkansas Rule of Civil Procedure 54(b), and we conclude that we have jurisdiction to hear this appeal.

The Busseys filed a negligence complaint against the Beardens, as well as Thomas and Barnes, seeking damages for injuries inflicted upon Teresa Bussey by Thomas when Teresa was inside her father-in-law’s (Larry Bussey’s) apartment to feed his cat in his absence. The | ^apartment was owned by the Beardens. Defendants Thomas and Barnes lived in the apartment next door. Upon learning that Larry was going to be out of town, Thomas and Barnes concocted a plan to enter Larry’s apartment, through a common attic, in order to steal items from the apartment. Thomas was inside the apartment for that purpose when Teresa entered to feed the eat. When she discovered Thomas’s presence, he brutally attacked her. Thomas and Barnes are currently serving prison sentences for this offense, but the Busseys also named them as defendants in this civil action. The theory of the Busseys’ negligence action against the Beardens was that, as landlords of Larry’s apartment, they breached a duty to protect apartment guests by allowing a dangerous attic-design feature “to remain for years without notifying tenants of the dangerous condition or taking any measures to protect tenants and their guests from the risk of criminal activity that the attic design promoted.”

On March 26, 2010, the Beardens filed a motion for summary judgment. In it, they contended that they were entitled to summary judgment “because as a matter of law, Teresa Bussey was not an invitee and the Beardens, as landlords, owed no duty to the plaintiffs to protect her from a criminal act by a third party.” Following a hearing on the motion, the trial court entered its June 9, 2010 order, granting summary judgment to the Beardens. This appeal followed, with the Busseys contending: 1) the lease agreement and actions by the Beardens created a duty obligating them to address the latent safety problems posed by the attic design, 2) the Beardens breached their duty by failing to protect Teresa Bussey from foreseeable | ¡¡criminal acts, 3) the trial court’s summary judgment was based upon authority that is factually distinguishable. We affirm the trial court’s decision.

Standard of Review

In Rubber & Gasket Company of America v. Zimmerman, 2011 Ark. App. 273, at 3, 2011 WL 1425032, our court set forth the appropriate standard of review for challenges to the entry of summary judgment:

Our standard of review is well established. Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Gentry v. Robinson, 2009 Ark. 634, 361 S.W.3d 788. On appeal, we determine if summary judgment was appropriate based on whether the eviden-tiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Summary judgment is not proper where the evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Id.

The question of whether a duty exists on the part of a landlord is always a question of law and never one for the jury. Hall v. Rental Mgmt., Inc., 323 Ark. 143, 913 S.W.2d 293 (1996).

Discussion

Since the third point is essentially an extension of the first point, we address both points together. The Busseys divide their first point into two subpoints, contending that the Beardens created a duty obligating them to protect Teresa Bussey by agreement and by conduct. We disagree with both contentions. For their third point, the Busseys attempt to distinguish two cases in which landlords were held to have no duty to protect tenants/guests from criminal acts. The cases are Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994), and Lacy v. Flake & Kelly Management, Inc., 366 Ark. 365, 235 S.W.3d 894 (2006). We do not find the distinctions noted by the Busseys convincing.

To put the Busseys’ first subpoint into the historical context of Arkansas landlord/tenant law, our supreme court’s explanation in Bartley v. Sweetser, 319 Ark. 117, 120-22, 890 S.W.2d 250, 251-52 (1994), is helpful:

Arkansas landlord/tenant law has its own history that bears on the issue before us in this case. Since 1932, Arkansas has adhered to the general rule that, as between a landlord and tenant, the landlord is under no legal obligation to a tenant for injuries sustained in common areas, absent a statute or agreement. See Glasgow v. Century Property Fund XIX, 299 Ark. 221, 772 S.W.2d 312 (1989); Knox v. Gray, 289 Ark. 507, 712 S.W.2d 914 (1986); Kilbury v. McConnell, 246 Ark. 528, 438 S.W.2d 692 (1969); Joseph v. Riffee [Riffel], 186 Ark. 418, 53 S.W.2d 987 (1932). Consistent with the foregoing principle is the general and common law rule that a landlord does not owe a tenant or social guest a duty to protect the tenant or guest from criminal acts. Pippin v. Chicago Housing Authority, 78 Ill.2d 204 [35 Ill.Dec. 530], 399 N.E.2d 596 (1979); Morgan v. 253 E. Delaware Condo. Ass’n, 231 Ill.App.3d 208 [171 Ill.Dec. 908], 595 N.E.2d 36 (1992); 52 C.J.S. Landlord and Tenant § 545 (1968); American Law of Landlord and Tenant 4.14 (1980 and Supp.1994); 43 A.L.R.3d 331 (1972 and Supp.1994) (Landlord’s obligation to protect tenant against criminal activities of third persons); see also 65th Center, Inc. v. Copeland, 308 Ark. 456, 825 S.W.2d 574 (1992) (court said that a landowner is not liable for the negligent act of a third party, when the landowner had no control over the person who committed the act and the act was not committed on his account); contra Kline v. 1500 Mass. Ave. Apt. Corp., 141 App.D.C. [U.S.App.D.C.] 370, 439 F.2d 477, 43 A.L.R.3d 311 (1970); American Law of Landlord and Tenant 4.15 (1980 and Supp.1994).

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Bluebook (online)
384 S.W.3d 41, 2011 Ark. App. 353, 2011 Ark. App. LEXIS 389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bussey-v-bearden-arkctapp-2011.