Pace v. Davis

394 S.W.3d 859, 2012 Ark. App. 193, 2012 WL 723228, 2012 Ark. App. LEXIS 300
Court of Appeals of Arkansas·Decided March 7, 2012·No. No. CA 11-720·Published·Cited by 4 cases

Opinion

LARRY D. VAUGHT, Chief Judge.

| TAppellant Royce Pace appeals the order of the Lawrence County Circuit Court granting summary judgment in favor of appellee Dean Davis. The trial court dismissed Royce’s claims for negligent en-trustment, negligence, and punitive damages. On appeal, Royce argues that the trial court erred in granting summary judgment because there were genuine issues of material fact on those claims. We affirm.

The complaint filed by Royce on January 21, 2009, tells the story of a love triangle among Royce, his ex-girlfriend Ki-ala Downing, and Kiala’s fiancé Michael Davis (Dean Davis’s son). According to Royce’s complaint, on January 2, 2009, while Kiala and Michael were engaged, Royce and Kiala engaged in consensual sex. On January 8, 2009, Royce received text messages and phone calls from Michael asking Royce to meet to talk. Later that evening, Royce reluctantly agreed to meet Michael at a boat landing on the Spring River.1 |2When Royce arrived, Michael was standing outside of his truck. Royce pulled up next to Michael and rolled down his driver’s side window. Michael then threw a bottle inside Royce’s vehicle and began striking Royce in the face, breaking his nose and lacerating his face. As Royce drove away, Michael went to his vehicle, retrieved a nine-millimeter handgun, and fired two shots at Royce. One of the bullets struck Royce behind his right ear. Royce sought medical treatment immediately, and Michael was apprehended by law enforcement soon thereafter.

Royce’s complaint alleged causes of action against Michael and Kiala for assault and battery and sought punitive damages.2 Royce filed an amended complaint on August 4, 2009, adding Dean as a defendant. Against Dean, Royce asserted negligence and negligent-entrustment causes of action for giving Michael the gun he used to shoot Royce. On June 17, 2010, Royce filed a second amended complaint against Michael and Dean, alleging negligence against Michael, negligence and negligent entrustment against Dean, and punitive damages against both.3

In September 2010, Dean filed a motion for summary judgment. Dean admitted that approximately six months prior to the shooting, he gave a gun to his son for protection ^because Michael had voiced some concern about his safety at the apartment he lived in at college. However, Dean argued that there were no facts supporting the allegation that Michael was incompetent, inexperienced, or reckless or that Dean knew or should have known that his son was incompetent, inexperienced, or reckless; therefore, he owed no duty to Royce as a matter of law. Dean also argued that Royce’s punitive-damages claim should be dismissed as a matter of law because it could not be supported by a negligence cause of action. Following a hearing, the trial court granted Dean’s motion for summary judgment stating, “the issue here is whether there is proximate cause.” On May 19, 2011, an order was entered by the trial court dismissing Royce’s claims against Dean with prejudice. It is from this order that Royce appeals.

Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Collins v. Morgan, 92 Ark.App. 95, 101, 211 S.W.3d 14, 19 (2005). The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. Id,., 211 S.W.3d at 19. We no longer refer to summary judgment as a “drastic” remedy and now simply regard it as one of the tools in a trial court’s efficiency arsenal. Id., 211 S.W.3d at 19. Once 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. Id., 211 S.W.3d at 19-20. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. at 101-02, 211 S.W.3d at 19-20. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. at 102, 211 S.W.3d at 20.

Royce first argues that the trial court erred in granting Dean’s motion for summary judgment on his negligent-entrustment claim. He argues that the evidence shows that Michael was an “underage,” “immature,” “troubled young man” with “a history of violence” with his fiancée; drug-abuse problems; and “a history of psychiatric illness,” including “counseling for depression and anxiety.” Royce further argues that Dean knew or should have known of his son’s problems; therefore, Dean was negligent when he gave Michael a gun and told him to use it for protection.

There are no cases in Arkansas addressing the issue of negligent entrustment of a firearm. However, on many occasions our courts have considered the negligent en-trustment of an automobile. In this context, we have held that the elements of negligent entrustment are (1) the entrus-tee was incompetent, inexperienced, or reckless; (2) the entrustor knew or had reason to know of the entrustee’s conditions or proclivities; (3) there was an en-trustment of the chattel; (4) the entrustment created an appreciable risk of harm to the plaintiff and a relational duty on the part of the defendant; and (5) the harm to the plaintiff was proximately or legally caused by the negligence of the defendant. Mills v. Crone, 63 Ark.App. 45, 49, 973 S.W.2d 828, 831 (1998).

No duty arises on the part of the entrustor in the absence of facts supporting the incompetence, inexperience, or recklessness of the entrustee and the en-trustor’s knowledge |5of the incompetence, inexperience, or recklessness. The first element of negligent entrustment must be established first and, “[a]bsent evidence of the [entrustee’s] incompetence as a driver before the accident, there could be no basis for a trial court’s finding that factual discrepancies existed regarding allegations” of negligent entrustment. Ponder v. Gorman, 94 Ark.App. 159, 162, 227 S.W.3d 428, 430 (2006). Proof of the en-trustee’s incompetence or recklessness may be made by introducing evidence of his general reputation or evidence of specific acts. Ark.-La. Lumber Co. v. Causey, 228 Ark. 1130, 1133, 312 S.W.2d 909, 911 (1958); see also Henry Woods, Negligent Entrustment: Evaluation of a Frequently Overlooked Source of Additional Liability, 20 Ark. L.Rev. 101 (1966).

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Pace v. Davis, 394 S.W.3d 859, 2012 Ark. App. 193, 2012 WL 723228, 2012 Ark. App. LEXIS 300 (Ark. Ct. App. 2012).

394 S.W.3d 859 (Pace v. Davis) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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