Kelley v. National Union Fire Insurance

937 S.W.2d 660, 327 Ark. 329, 1997 Ark. LEXIS 84
CourtSupreme Court of Arkansas
DecidedFebruary 17, 1997
Docket96-999
StatusPublished
Cited by19 cases

This text of 937 S.W.2d 660 (Kelley v. National Union Fire Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelley v. National Union Fire Insurance, 937 S.W.2d 660, 327 Ark. 329, 1997 Ark. LEXIS 84 (Ark. 1997).

Opinion

Robert L. Brown, Justice.

This is a slip-and-fall case in which the trial court granted summary judgment in favor of appellees National Union Fire Insurance Company of Pittsburgh (NUFI) for Little Rock National Airport (Airport) and Floors & More, Inc. Because we conclude that issues of material fact remain to be decided, we reverse the summary judgment and remand the case for further proceedings.

Appellants Elaine Kelley and Marissa Kelley, by her mother and next friend, filed their complaint against the Airport alleging that injuries were suffered and damages incurred as a result of the negligence of the Airport and Floors & More. According to their amended complaint, on July 19, 1994, Elaine Kelley was carrying her daughter, Marissa, age 11 months, after they exited an airplane at the Little Rock Airport. While walking down the main concourse, Elaine Kelley stepped onto ceramic tile. Her feet went out from under her, and she fell, causing injury to herself and to her daughter. Kelley alleged “[t]hat the ceramic tile in front of gate (six) 6 was covered in construction dust, causing the floor to become unexpectedly slippery.” She further alleged that Floors & More had been performing construction work on the concourse. Kelley asserted that the Airport was negligent in failing to clean up the dust that had been on the floor for a sufficient amount of time for Airport personnel to know of its existence. She prayed for damages in the amount of $5,000 for injuries to Marissa’s lip, front teeth, and gums. On her own behalf, she alleged injuries to her hip, back, leg, a tooth, and “shock to her entire nervous system” and asked for damages in excess of $50,000.

NUFI answered on behalf of the Airport and also admitted that a fall occurred but denied any negligence on the part of its insured. NUFI affirmatively pled comparative fault and filed a cross-claim against Floors & More for contribution or indemnity. Floors & More answered, and it, too, admitted that a fall had occurred but denied any negligence. It claimed that any dust on the floor was due to deficient maintenance by the Airport and affirmatively pled that the condition of the floor was an open and obvious danger. It denied NUFI’s cross-claim.

Discovery ensued followed by motions for summary judgment. Floors & More moved for summary judgment on the basis that Elaine Kelley had failed to show that any alleged dust on the floor was the result of Floors & More’s negligence. The company relied on Kelley’s admission in her deposition that she did not personally observe dust on the floor but was informed of the dust by another passenger. Floors & More further contended that even if the dust existed, Kelley failed to prove negligence on its part because there had not been any construction in the area for four days before the accident, and the area had been swept and vacuumed since that time.

Floors & More also attached the affidavit of Dan Billingsley, the president of the company, in support of its motion. Billingsley stated under oath that his crew was last present at the airport on July 15, 1994 — four days before the accident — and on that date, the crew was laying carpet at the opposite end of the terminal from where the accident occurred. The tile crew last worked in that same area on July 8, 1994, according to Billingsley. Billingsley averred that Floors & More cleaned the area after construction on each of those days and that the Airport maintenance crew continually swept and vacuumed the construction area and the remainder of the Airport. He further stated that Floors & More did not receive any complaints or hear of any falls from July 8, 1994 to July 19, 1994.

NUFI filed its own motion for summary judgment and contended that Kelley failed in her deposition to establish either the presence of a substance on the new tile or that the substance had been on the tile for such a length of time that the defendants reasonably should have known of its presence.

In response to the two summary-judgment motions, Kelley asserted that Floors & More had admitted that there was a substance on the floor, thereby rendering summary judgment inappropriate. In addition, she submitted several items of proof with her response to establish that dust was on the tile floor and that Floors & More had routinely failed to clean around its construction site. Her proof included her own deposition; the affidavit of her sister Melinda Frint, which referred to a “gritty” substance on the tile; Floors & More’s contract with the Airport where the company agreed to keep the work area and surrounding area clean; a letter from the architect to Floors & More dated February 15, 199[4], regarding cleanliness in the concourse; 1 preconstruction meeting minutes dated March 3, 1994, concerning the dust problem; a letter from the architect to Floors & More dated April 28, 1994, regarding dust in the main concourse; a photograph dated July 25, 1994, depicting a sign that said “PARDON OUR DUST While We Improve Your Airport;” a letter dated August 8, 1994, stating that tape and dirt remained in the concourse; and the affidavit of Little Rock Police Officer Richard Jordan, who averred that he was made aware by the other Airport patrons of the slippery condition of the new tile that was being installed.

The trial court conducted a hearing on the motions. At the conclusion of the hearing, the trial court observed that there was no evidence of what caused Kelley to fall and that for a jury to decide in her favor would be commensurate with imposing strict liability. An order of summary judgment was subsequently entered.

I. Summary Judgment

Kelley argues on appeal that the trial court erred in granting summary judgment and in concluding that there was no evidence of the cause of her accident. Our standards for reviewing summary judgments and slip-and-fall cases have been often stated. Summary judgment should be granted only when it is clear that there is no genuine issue of material fact to be litigated. Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995); Hickson v. Saig, 309 Ark. 231, 828 S.W.2d 840 (1992). The burden of proving that there is no genuine issue of material fact is upon the movant — in this case NUFI and Floors & More — and all proof submitted must be viewed in a light most favorable to the party resisting the motion. Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994). Any doubts and inferences must be resolved against the moving party. Brumley v. Naples, supra; Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994). When the movant makes a prima facie showing of entitlement, the respondent — here, Kelley — must meet proof with proof by showing that a genuine issue exists as to a material fact. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992).

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Bluebook (online)
937 S.W.2d 660, 327 Ark. 329, 1997 Ark. LEXIS 84, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelley-v-national-union-fire-insurance-ark-1997.