Johnson v. M.S. Development Co.

386 S.W.3d 46, 2011 Ark. App. 542, 2011 Ark. App. LEXIS 601
CourtCourt of Appeals of Arkansas
DecidedSeptember 21, 2011
DocketNo. CA 11-246
StatusPublished
Cited by5 cases

This text of 386 S.W.3d 46 (Johnson v. M.S. Development Co.) 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
Johnson v. M.S. Development Co., 386 S.W.3d 46, 2011 Ark. App. 542, 2011 Ark. App. LEXIS 601 (Ark. Ct. App. 2011).

Opinion

LARRY VAUGHT, Chief Judge.

| lAppellant Amanda Johnson appeals the order of summary judgment entered by the Jefferson County Circuit Court in favor of appellees M.S. Development Company, LLC and Magic Springs Development Company, LLC, both f/k/a Magic Springs Development Co., LLC, and both d/b/a Magic Springs & Crystal Falls (Magic Springs). Johnson raises one argument on appeal — that the trial court erred in dismissing her complaint based on its finding that, as a matter of law, the doctrine of res ipsa loquitur was not applicable. We affirm.

On May 18, 2007, Johnson, along with her boyfriend Danny (now her husband) and her sister Sarah went to the water-park at Magic Springs. Soon after arriving, they decided to ride the High Sierra Slide Tower waterslide. It is an enclosed structure, and riders slide down it while sitting in inner tubes provided by Magic Springs. Johnson and |2Panny decided to ride together. Danny carried a double-rider inner tube to the top of the slide. Johnson sat in the front, while Danny sat in the back. When the attendant told them it was their turn to go, Johnson said that she and Danny grabbed the bars at the top of the waterslide to pull themselves forward and down into the slide. As they made their descent, they held onto the handles on the inner tube. According to Johnson’s deposition testimony, after the second turn, they traveled too high up the side of the slide and when they entered the next turn they flipped over and fell out of the inner tube. Johnson injured her face when it struck the bottom of the slide.

On May 7, 2009, Johnson filed a complaint against Magic Springs and later filed an amended complaint. In the latter, Johnson alleged that the waterslide was under the exclusive control of Magic Springs at the time of her injuries. She also alleged that Magic Springs was negligent (in operating an unreasonably dangerous waterslide that was defectively designed and in failing to adequately warn Johnson of the dangers of the waterslide) and that its negligence was the proximate cause of her injuries.

Magic Springs filed a motion for summary judgment contending that Johnson’s amended complaint should be dismissed because there was no evidence of negligence on the part of Magic Springs and no evidence that any negligence of Magic Springs was the proximate cause of Johnson’s injuries. Additionally, Magic Springs argued that it did not have exclusive control of the inner tube upon which Johnson was riding at the time of her injuries; therefore, to the extent that Johnson alleged the application of the doctrine of res ipsa loquitur, the doctrine did not apply. After a hearing, the trial court granted the motion for summary judgment, finding:

|sl. The fact that an accident occurred is not evidence of negligence.
2. [Magic Springs] did not have exclusive control of the instrumentality that [Johnson] alleged caused her injuries. Therefore, the doctrine of res ipsa loquitur [sic] is inapplicable under the circumstances of this case.
3. [Johnson] offered no other evidence that [her] injuries were proximately caused by the negligence of [Magic Springs]. Consequently, an essential element of [Johnson’s] claims is not supported by credible evidence, and her claims should be dismissed with prejudice.

Johnson filed a timely appeal from the order. Her sole argument on appeal is that the trial court erred in granting summary judgment to Magic Springs because there are questions of fact on the issue of whether res ipsa loquitur applied.1

Our standard of review is well settled in cases involving the grant of summary judgment:

In reviewing summary judgment cases, this court need only decide if the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. The moving party always bears the burden of sustaining a motion for summary judgment. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof showing a material issue of fact. However, if a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the non-moving party presents the court with any countervailing evidence.

Myers v. Cooper Clinic, P.A., 2011 Ark. App. 435, at 9, 384 S.W.3d 622, 627.

|4The doctrine of res ipsa loquitur was developed to assist in the proof of negligence where the cause is connected with an instrumentality in the exclusive control of a defendant. Schubert v. Target Stores, Inc., 2010 Ark. 466, at 6, 369 S.W.3d 717, 720. It applies where the evidence of the true cause is available to the defendant but not to the plaintiff. Id., 369 S.W.3d at 720. The doctrine, when applicable, allows the jury to infer negligence from the plaintiffs evidence of circumstances surrounding the occurrence. Id., 369 S.W.3d at 720.

In the words of Mr. Justice Holmes, res ipsa loquitur is “merely a short way of saying that, so far as the court can see, the jury, from their experience as men of the world, may be warranted in thinking that an accident of this particular kind commonly does not happen except in consequence of negligence, and that therefore there is a presumption of fact, in the absence of explanation or other evidence which the jury believe, that it happened in consequence of negligence in this case.” (Citation omitted). This is the kind of inference that jurors commonly are allowed to make from circumstantial evidence, the only difference being that, when res ipsa loquitur applies, the circumstantial evidence from which the inference is drawn is the fact of the injury itself, plus the few obvious facts which surround the injury but do not clearly explain how it happened.

Marx v. Huron Little Rock, 88 Ark.App. 284, 292, 198 S.W.3d 127, 133 (2004) (citing Coca-Cola Bottling Co. v. Hicks, 215 Ark. 803, 807, 223 S.W.2d 762, 764-65 (1949)).

To invoke the doctrine of res ipsa loquitur, a plaintiff must show that (1) the defendant owes a duty to the plaintiff to use due care;2 (2) the accident is caused by the thing or instrumentality under the control of the defendant; (3) the accident which caused | sthe injury is one that, in the ordinary course of things would not occur if those having control and management of the instrumentality used proper care; and (4) there is an absence of evidence to the contrary. Schubert, at 6-7, 369 S.W.3d at 720-21.

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Cite This Page — Counsel Stack

Bluebook (online)
386 S.W.3d 46, 2011 Ark. App. 542, 2011 Ark. App. LEXIS 601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-ms-development-co-arkctapp-2011.