APPEAL FROM THE PHILLIPS COUNTY CIRCUIT COURT [NO. CV-14-144] HONORABLE RICHARD L. PROCTOR, JUDGE
Louis A. Etoch and Robert S. Tschiemer, for appellant.
Friday, Eldredge & Clark, LLP, by: James M. Simpson and Tory H. Lewis, for appellee.
KENNETH S. HIXSON, Judge
Appellant Sandra Hadder filed a complaint in the Circuit Court of Phillips County, Arkansas, seeking damages for personal injuries that she allegedly sustained as the result of a slip and fall in an apartment owned by Heritage Hill Manor, Inc. ("Heritage"). Appellant appeals the entry of summary judgment and the dismissal of her lawsuit against appellee Heritage. Because there were no material questions of fact remaining and Heritage was entitled to judgment as a matter of law, we affirm the entry of summary judgment.
Appellant's allegations arose from the following summary of the facts, gleaned from the pleadings and affidavits provided by the parties regarding the motion for summary judgment. Heritage is an apartment complex admittedly geared mostly toward elderly retired residents. Heritage allowed the residents to have "sitters" stay with them in the apartments as needed. In February 2014, Ellen Lawrence, an elderly woman who suffered from dementia or Alzheimer's disease, was residing in one of Heritage's ground-floor two-bedroom apartments. Lawrence's apartment number was 108. Lawrence's son had retained the services of four women who alternated "sitting" with Mrs. Lawrence.
In the very early morning hours of February 16, 2014, a water heater located in an upstairs apartment, number 207, leaked water down into Lawrence's apartment. Mary Jane Patterson, one of the four sitters retained by Lawrence's son, was sitting at the time and staying overnight. Patterson got out of bed and slipped and fell allegedly due to the water leaking into Lawrence's apartment. Patterson summoned Allen Herd, another apartment resident who lived on the second floor. Herd would perform light maintenance when requested by Heritage in exchange for a discounted monthly apartment rental rate. Herd shut off the valves to the water heater in the upper apartment and began the cleanup in Lawrence's apartment.
Someone contacted one of Lawrence's sons and advised him of the water damage and Ms. Patterson's injuries. The son called appellant, Sandra Hadder, another of the four sitters, at around 4:00 a.m., told her that Patterson had fallen, and asked appellant to come to the apartment to take over sitting duty. Patterson was taken to the hospital; Mrs. Lawrence remained in her apartment. When appellant arrived, she mopped up the water from Lawrence's vinyl kitchen floor. Herd used a shop vacuum to remove water from the living room carpet adjacent to the kitchen. Appellant helped Lawrence's family move Lawrence's belongings to a vacant apartment.
At around 7:00-7:30 a.m., Minnie House, a housekeeper who worked for Heritage, arrived for her scheduled workday. The apartments were each cleaned once per week. House observed Herd, Lawrence's relatives, and appellant moving Lawrence's belongings out of her apartment and into the vacant apartment. House mopped the common-area hallway, set out "Wet Floor" signs, and told everyone to be careful of the wet floor. When Herd left, the living room carpet remained damp. Herd had placed fans in the apartment to circulate the air to aid in drying.
At approximately 9:30 a.m., appellant returned to apartment 108 to retrieve her overnight bag, which she had left in the kitchen. The housekeeper stated that she reminded appellant to "be careful." Appellant walked a few feet across the living room carpet onto the kitchen floor and then slipped and fell, hurting her right arm, right wrist, and right ankle. Appellant stated that the kitchen floor was dry, but she said that she did not realize that the carpet was still damp.
Appellant sued Heritage for negligence in its installation and maintenance of the upstairs water heater; in its failure to adhere to its duty to rope off or keep persons out of the dangerous wet area; and in its permitting appellant to walk on the wet floor. Appellant also alleged that Heritage was an assisted living facility with heightened responsibilities under Arkansas law. Heritage moved for summary judgment contending that it was not an assisted living facility but rather an apartment complex; that the negligence claim was barred by the doctrine of caveat lessee, meaning that no duty was owed to appellant as an apartment tenant's guest; that it did not assume any legal duty to appellant; that even assuming that a legal duty existed, there was no breach; and that there was no duty because this was an open and obvious danger. Heritage appended the deposition testimony of its apartment manager, Joanne Franklin, who stated that Heritage is "an apartment complex geared mostly for elderly, retired. Also some professional people live there. That's basically it. Private pay people." The manager swore that Heritage was "not at all" an assisted living facility but it was rather just an apartment complex where residents were permitted to have sitters. Heritage also appended the relevant deposition testimony of Herd, House, and appellant.
At the hearing on the motion for summary judgment, appellee restated the doctrine of caveat lessee (also known as "tenant beware") to support the notion that no duty was owed to the tenant's guest in this instance. Appellee cited to Arkansas Code Annotated section 18-16-110 as the legislature's specific adoption and approval of the caveat lessee doctrine. Appellee also stated that there was no lease but only a month-to-month rental of these apartments, meaning that there was no contractual undertaking of a duty here.
Appellant responded that Heritage was in fact an assisted living facility with attendant statutory and regulatory obligations. Appellant cited to Arkansas Code Annotated section 20-10-1703(1)(A) (Repl. 2014), defining "assisted living facility" as a residential facility that undertakes to provide assisted living services for a period exceeding twenty-four hours to more than three adult residents. Appellant cited to section 20-10-1703(3), defining "assisted living services" as "housing, meals, laundry, socialization, transportation, one (1) or more personal services, and limited nursing services." Appellant presented (1) a Facebook page describing Heritage as a "Retirement & Assisted Living Facility, " (2) a page from www.assistedliving.com reciting that Heritage is "an assisted living facility" that provides activities at "their location, " (3) a general liability insurance declarations page describing the insured's business as "Lessor's Risk for Nursing Homes, " and (4) a printed page from the Phillips County chamber of commerce member directory in its "Extended Care" section, stating that Heritage was an "apartment building" that provided one meal a day and weekly housekeeping. ...