Reason: I attest to the accuracy and integrity of this document Date: 2021-06-15 20: Cite as 2020 Ark. App. 203 15:28 Foxit ARKANSAS COURT OF APPEALS PhantomPDF DIVISION I Version: 9.7.5 No. CV-19-586
ERICA GRAY, AS PARENT AND OPINION DELIVERED: April 1, 2020 NATURAL GUARDIAN OF B.B., A MINOR APPEAL FROM THE LEE COUNTY APPELLANT CIRCUIT COURT [NO. 39CV-17-30]
V. HONORABLE CHRISTOPHER W. MORLEDGE, JUDGE
MARIANNA HOUSING AFFIRMED AUTHORITY APPELLEE
ROBERT J. GLADWIN, Judge
Erica Gray (Gray), acting as next friend and guardian of her minor daughter, B.B.,
appeals the summary-judgment order entered by the Lee County Circuit Court in favor of
the Marianna Housing Authority (MHA), finding that it owed no duty to B.B., a third-grade
student, who was seriously injured when she fell into an open water main that was covered
by leaves. We affirm.
I. Facts and Procedural History
On December 16, 2016, B.B. was walking from school with two friends to her aunt’s
house. Her aunt, Dorthy Branscomb (Branscomb), was a tenant of the MHA, and she often
watched B.B. after school. Located within the MHA’s property was a water main, which was
a portion of property that the Marianna Water & Sewer Department (Water Department)
exclusively owned, controlled, inspected, and maintained. The Water Department admittedly had the duty to inspect the water main, including ensuring the water main’s lid remained
closed and locked—and it alone had possession of the keys to the lock.
For at least a year, B.B. had walked this path to Branscomb’s home, and she knew of
the water main’s location. B.B. and Gray described the water main as something like a “hole.”
Gray believed the water main was a known hazard—one she would think people would
know about and avoid. Gray explained that is why she never warned B.B. of it.
The day before the accident, and allegedly at all other times, B.B. saw the water main
with its lid closed. But on December 16, the water main’s lid was off, and leaves had fallen
on the water main. None of the parties knew the lid was missing or for how long. B.B.
testified that she “forgot about the hole” and was not watching her step because she was
distracted while talking with her friends about a Christmas party at school. She stated that
had she remembered the water main was there and not been distracted she would have
avoided this path. But that day B.B. strayed from the public sidewalk running along the
MHA’s property, eventually stepping and falling into the open water main, causing her
injuries.
Gray brought her complaint in negligence, and her amended complaint included
claims against both the City of Marianna, Arkansas, and the MHA. Gray took a voluntary
nonsuit without prejudice as to the city following proof that the Water Department was part
of the city, which had no insurance; accordingly, only the MHA remained as a defendant.
At the hearing, plaintiff ’s counsel argued that B.B. was a public invitee; that the water
main was public property; and that the MHA allowed children to cross the property daily
because it did nothing to keep them out—with neither fencing nor signage. Counsel
2 submitted that B.B. did not have to prove a benefit to her presence on the land as a public
invitee and claimed that the MHA knew she was on the property because children cross it
daily after school. Counsel argued that even if B.B. was a licensee, the MHA owed B.B. a
duty because it knew children crossed its land and had a duty to warn of hidden dangers,
citing Arkansas Model Jury Instruction-Civil 1103.
Counsel argued that whether the water-main hole was open and obvious is a factual
question. Further, he noted that B.B. forgot about the hole because she was excited and
talking about the Christmas party—accordingly, he argued that a factual question exists about
whether B.B. forgot about the water main. Regardless, counsel maintained that the MHA
had a duty to warn because of the existence of a hidden defect and that B.B. might forget it
was there.
Counsel for the MHA argued that the area in question is not a public setting to which
B.B. would be an invitee and that the water main is entirely controlled and owned by the
Water Department. Counsel stressed that the water main is located within a utility easement;
that B.B. was a licensee who knew of the water-main hole; and that there was no duty to
warn because there was no hidden danger.
The circuit court granted summary judgment and entered its order on April 18, 2019,
which states in its entirety:
1. That B.B. testified that she knew of the presence of the alleged hole on the premises, which property was exclusively owned by the Marianna Water & Sewer Department.
2. That B.B. was a licensee while she was on the Defendant’s property because she was a social guest of her aunt, a tenant of the Marianna Housing Authority, and provided no benefit to the Defendant.
3 3. That Plaintiff failed to allege in her complaint any willful or wanton conduct against the Defendant.
4. That the presence of B.B., a licensee, was not known to Defendant in order to impose a duty upon Defendant.
5. That although Defendant did not know of B.B.’s presence, whether Defendant had such knowledge was immaterial because B.B.’s claims arise from a condition located on property owned exclusively by the Marianna Water & Sewer Department.
6. That Defendant had no duty to warn B.B. of an open and obvious danger.
7. That Defendant had no duty to warn B.B. of a condition located on property not owned by the Defendant.
8. That for the aforementioned reasons, and those given orally from the bench at the conclusion of the March 19, 2019 hearing, Defendant Marianna Housing Authority’s Motion for Summary Judgment is hereby GRANTED, and all of Plaintiff’s claims against Defendant Marianna Housing Authority should be and hereby are DISMISSED WITH PREJUDICE.
Gray filed a timely notice of appeal on April 26.
II. Standard of Review and Applicable Law
Summary judgment is granted by a circuit court when “no genuine issues of material
fact exist requiring litigation and . . . the moving party is entitled to judgment as a matter of
law.” Duran v. Sw Ark. Elec. Coop. Corp., 2018 Ark. 33, at 5, 537 S.W.3d 722, 726. Although
the evidence must be viewed most favorably to the nonmoving party, “[o]nce the moving
party has established a prima facie entitlement to summary judgment, the opposing party
must meet proof with proof and demonstrate the existence of a material issue of fact.” Hadder
v. Heritage Hill Manor, Inc., 2016 Ark. App. 303, at 7–8, 495 S.W.3d 628, 633. The opposing
party cannot “rest on the mere allegation of her pleadings; instead, her response by affidavits
or other evidence . . . must show specifically that there is a genuinely disputed issue of
4 material fact.” Id. “Conclusory allegations are insufficient to create a fact issue in a summary-
judgment situation.” Id.
To prevail on a claim of negligence, Gray must prove that the MHA owed a duty to
B.B., that the MHA breached that duty, and that the breach was the proximate cause of B.B.’s
injuries. Duran, 2018 Ark. 33, at 6, 537 S.W.3d at 726. “Duty arises out of the recognition
that the relation between individuals may impose upon one a legal obligation for the benefit
of another.” Id. Whether a duty is owed is always a question of law and never one of fact for
the jury. Hope Med.
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Reason: I attest to the accuracy and integrity of this document Date: 2021-06-15 20: Cite as 2020 Ark. App. 203 15:28 Foxit ARKANSAS COURT OF APPEALS PhantomPDF DIVISION I Version: 9.7.5 No. CV-19-586
ERICA GRAY, AS PARENT AND OPINION DELIVERED: April 1, 2020 NATURAL GUARDIAN OF B.B., A MINOR APPEAL FROM THE LEE COUNTY APPELLANT CIRCUIT COURT [NO. 39CV-17-30]
V. HONORABLE CHRISTOPHER W. MORLEDGE, JUDGE
MARIANNA HOUSING AFFIRMED AUTHORITY APPELLEE
ROBERT J. GLADWIN, Judge
Erica Gray (Gray), acting as next friend and guardian of her minor daughter, B.B.,
appeals the summary-judgment order entered by the Lee County Circuit Court in favor of
the Marianna Housing Authority (MHA), finding that it owed no duty to B.B., a third-grade
student, who was seriously injured when she fell into an open water main that was covered
by leaves. We affirm.
I. Facts and Procedural History
On December 16, 2016, B.B. was walking from school with two friends to her aunt’s
house. Her aunt, Dorthy Branscomb (Branscomb), was a tenant of the MHA, and she often
watched B.B. after school. Located within the MHA’s property was a water main, which was
a portion of property that the Marianna Water & Sewer Department (Water Department)
exclusively owned, controlled, inspected, and maintained. The Water Department admittedly had the duty to inspect the water main, including ensuring the water main’s lid remained
closed and locked—and it alone had possession of the keys to the lock.
For at least a year, B.B. had walked this path to Branscomb’s home, and she knew of
the water main’s location. B.B. and Gray described the water main as something like a “hole.”
Gray believed the water main was a known hazard—one she would think people would
know about and avoid. Gray explained that is why she never warned B.B. of it.
The day before the accident, and allegedly at all other times, B.B. saw the water main
with its lid closed. But on December 16, the water main’s lid was off, and leaves had fallen
on the water main. None of the parties knew the lid was missing or for how long. B.B.
testified that she “forgot about the hole” and was not watching her step because she was
distracted while talking with her friends about a Christmas party at school. She stated that
had she remembered the water main was there and not been distracted she would have
avoided this path. But that day B.B. strayed from the public sidewalk running along the
MHA’s property, eventually stepping and falling into the open water main, causing her
injuries.
Gray brought her complaint in negligence, and her amended complaint included
claims against both the City of Marianna, Arkansas, and the MHA. Gray took a voluntary
nonsuit without prejudice as to the city following proof that the Water Department was part
of the city, which had no insurance; accordingly, only the MHA remained as a defendant.
At the hearing, plaintiff ’s counsel argued that B.B. was a public invitee; that the water
main was public property; and that the MHA allowed children to cross the property daily
because it did nothing to keep them out—with neither fencing nor signage. Counsel
2 submitted that B.B. did not have to prove a benefit to her presence on the land as a public
invitee and claimed that the MHA knew she was on the property because children cross it
daily after school. Counsel argued that even if B.B. was a licensee, the MHA owed B.B. a
duty because it knew children crossed its land and had a duty to warn of hidden dangers,
citing Arkansas Model Jury Instruction-Civil 1103.
Counsel argued that whether the water-main hole was open and obvious is a factual
question. Further, he noted that B.B. forgot about the hole because she was excited and
talking about the Christmas party—accordingly, he argued that a factual question exists about
whether B.B. forgot about the water main. Regardless, counsel maintained that the MHA
had a duty to warn because of the existence of a hidden defect and that B.B. might forget it
was there.
Counsel for the MHA argued that the area in question is not a public setting to which
B.B. would be an invitee and that the water main is entirely controlled and owned by the
Water Department. Counsel stressed that the water main is located within a utility easement;
that B.B. was a licensee who knew of the water-main hole; and that there was no duty to
warn because there was no hidden danger.
The circuit court granted summary judgment and entered its order on April 18, 2019,
which states in its entirety:
1. That B.B. testified that she knew of the presence of the alleged hole on the premises, which property was exclusively owned by the Marianna Water & Sewer Department.
2. That B.B. was a licensee while she was on the Defendant’s property because she was a social guest of her aunt, a tenant of the Marianna Housing Authority, and provided no benefit to the Defendant.
3 3. That Plaintiff failed to allege in her complaint any willful or wanton conduct against the Defendant.
4. That the presence of B.B., a licensee, was not known to Defendant in order to impose a duty upon Defendant.
5. That although Defendant did not know of B.B.’s presence, whether Defendant had such knowledge was immaterial because B.B.’s claims arise from a condition located on property owned exclusively by the Marianna Water & Sewer Department.
6. That Defendant had no duty to warn B.B. of an open and obvious danger.
7. That Defendant had no duty to warn B.B. of a condition located on property not owned by the Defendant.
8. That for the aforementioned reasons, and those given orally from the bench at the conclusion of the March 19, 2019 hearing, Defendant Marianna Housing Authority’s Motion for Summary Judgment is hereby GRANTED, and all of Plaintiff’s claims against Defendant Marianna Housing Authority should be and hereby are DISMISSED WITH PREJUDICE.
Gray filed a timely notice of appeal on April 26.
II. Standard of Review and Applicable Law
Summary judgment is granted by a circuit court when “no genuine issues of material
fact exist requiring litigation and . . . the moving party is entitled to judgment as a matter of
law.” Duran v. Sw Ark. Elec. Coop. Corp., 2018 Ark. 33, at 5, 537 S.W.3d 722, 726. Although
the evidence must be viewed most favorably to the nonmoving party, “[o]nce the moving
party has established a prima facie entitlement to summary judgment, the opposing party
must meet proof with proof and demonstrate the existence of a material issue of fact.” Hadder
v. Heritage Hill Manor, Inc., 2016 Ark. App. 303, at 7–8, 495 S.W.3d 628, 633. The opposing
party cannot “rest on the mere allegation of her pleadings; instead, her response by affidavits
or other evidence . . . must show specifically that there is a genuinely disputed issue of
4 material fact.” Id. “Conclusory allegations are insufficient to create a fact issue in a summary-
judgment situation.” Id.
To prevail on a claim of negligence, Gray must prove that the MHA owed a duty to
B.B., that the MHA breached that duty, and that the breach was the proximate cause of B.B.’s
injuries. Duran, 2018 Ark. 33, at 6, 537 S.W.3d at 726. “Duty arises out of the recognition
that the relation between individuals may impose upon one a legal obligation for the benefit
of another.” Id. Whether a duty is owed is always a question of law and never one of fact for
the jury. Hope Med. Park Hosp. v. Varner, 2019 Ark. App. 82, at 5, 568 S.W.3d 818, 822. The
legal question of duty is reviewed de novo. Id. If the court finds that no duty is owed,
summary judgment is appropriate. Duran, 2018 Ark. 33, at 7, 537 S.W.3d at 727.
III. Discussion
Gray submits that the MHA, through its agents, servants, or employees knew that B.B.
and other children walked on its property daily, and accordingly, it had a duty to warn of a
hidden danger, irrespective of whether B.B. was a licensee or invitee. Gray claims that under
either standard, there was a duty of care about which a jury should hear. Despite the circuit
court’s concluding there was no duty, Gray submits that a jury might have found that the
duty was violated and that the failure to warn was a proximate cause of B.B.’s injuries.
Gray acknowledges that whether there is a duty is a question of law, but she notes
that it also depends on whether the MHA knew of B.B.’s presence on the property and
whether the hazard was “open and obvious.” Gray asserts that these are factual questions and
required a jury trial. Gray also claims that it was no defense that the danger was created by
another because the water main was located on the MHA’s land. Gray submits that at most,
5 the MHA granted an easement to the Water Department but still owned the land, while the
Water Department owned the physical equipment in the water-main hole.
We hold that the circuit court did not err in finding that the MHA owed no duty to
inspect, maintain, or issue warnings about a condition located on property exclusively owned,
inspected, and maintained by the Water Department.
In premises-liability claims, liability cannot attach to the defendant unless the
defendant owns or occupies the property that allegedly caused the plaintiff ’s injury. This
principle applies to invitees. See Varner, 2019 Ark. App. 82, at 5, 568 S.W.3d at 822. The above
applies equally to licensees. See Heigle v. Miller, 332 Ark. 315, 319, 965 S.W.2d 116, 119 (1998);
Bader v. Lawson, 320 Ark. 561, 564, 898 S.W.2d 40, 42 (1995).
It is undisputed that the water main was not owned or maintained by the MHA—
the Water Department admitted it “had exclusive ownership and control of the water main
at issue.” It also admitted it “exclusively maintained the water main at issue.” According to
the Water Department, its employees are charged with the duty of inspecting the water main.
Specifically, the Water Department acknowledged that it checked the water main once a
month to read the meter as well as to ensure the lid was closed and locked. Moreover, the
keys to that lock were solely in the Water Department’s possession.
Because the MHA established a prima facie entitlement to summary judgment with
this evidence, Gray could not “rest on the mere allegation of her pleadings; instead, her
response by affidavits or other evidence . . . must show specifically that there is a genuinely
disputed issue of material fact.” See Hadder, 2016 Ark. App. 303, at 7–8, 495 S.W.3d at 633.
Gray failed to produce evidence refuting these admissions, and in her brief before this court,
6 Gray continues to disregard this evidence and to assert that the MHA owned the property
at issue. Gray’s brief is devoid of any supporting legal authority that the MHA owed B.B. a
duty to inspect, maintain, or warn of a condition located on property owned by a third party.
See Lakeside Nursing & Rehab. Ctr., Inc. v. Rufkahr, 2019 Ark. App. 142, 572 S.W.3d 461
(holding this court will not consider arguments unsupported by convincing argument or
sufficient citation to legal authority).
We recently affirmed an award of summary judgment in a factually similar case. In
Havner v. Northeast Arkansas Electric Cooperative, 2017 Ark. App. 111, at 4–5, 514 S.W.3d 490,
493, the appellant was injured in a motorcycle accident when a vehicle traveling in front of
him “caught a low-hanging cable strung across the road and pulled the cable down.” Id. at
1–2, 514 S.W.3d at 492. The appellee owned the pole to which the cable was attached;
however, a third party owned the cable. Id. The circuit court granted appellee’s motion for
summary judgment, and on appeal, this court found it was “undisputed that [appellee] was
not the owner of the cable.” Id. at 5, 514 S.W.3d at 493. Rather, appellee’s “only connection
with the cable is that the cable was attached to its poles.” Id. We rejected the appellant’s
theory that appellee had a “duty to inspect, maintain, and repair the cable,” which belonged
to a third party. Id. Instead, the court held that appellee “owed no duty to” appellant under
the circumstances and affirmed the order granting summary judgment. Id.
Given the undisputed facts, the MHA was neither the owner nor the occupant of the
property at issue—specifically the water-main hole into which B.B. fell. As in Havner, the
necessary connection of ownership or occupancy of the property causing B.B.’s alleged
injuries is missing. See Havner, 2017 Ark. App. 111, at 4–5, 514 S.W.3d at 493. When viewed
7 in conjunction with the Water Department’s admission that its employees had the sole duty
to inspect and maintain the water main and associated property, we hold that the MHA did
not owe B.B. a legal duty to inspect, maintain, or repair the Water Department’s property. See
id. Accordingly, the circuit court correctly determined that summary judgment in favor of
the MHA was proper. Id.; see also Duran, 2018 Ark. 33, at 6–7, 537 S.W.3d at 726–27.
Affirmed.
SWITZER and MURPHY, JJ., agree.
Robert S. Tschiemer, for appellant.
Friday, Eldredge & Clark, LLP, by: William M. Griffin III and Kyle D. Kennedy, for
appellee.