CITY OF LITTLE ROCK, ARKANSAS; STUART THOMAS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE FOR THE CITY OF LITTLE ROCK; WAYNE BEWLEY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ASSISTANT CHIEF OF POLICE FOR THE CITY OF LITTLE ROCK; LAURA MARTIN, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS COMMUNICATIONS CENTER MANAGER FOR THE CITY OF LITTLE ROCK; LINDA WILSON, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS COMMUNICATIONS ADMINISTRATOR FOR THE CITY OF LITTLE ROCK; SHARON MARTIN, IN HER OFFICIAL CAPACITY AS SHIFT SUPERVISOR FOR THE CITY OF LITTLE ROCK; ALAN CATE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS COMMUNICATIONS SHIFT SUPERVISOR FOR THE CITY OF LITTLE ROCK; MARQUITA DOOLEY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS EMERGENCY COMMUNICATIONS TRAINER FOR THE CITY OF LITTLE ROCK; CANDACE MIDDLETON, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS COMMUNICATIONS CALL TAKER FOR THE CITY OF LITTLE ROCK; KAREN GRIMM, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS COMMUNICATIONS SYSTEM SPECIALIST FOR THE CITY OF LITTLE ROCK; GREGORY L. SUMMERS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS FIRE CHIEF FOR THE CITY OF LITTLE ROCK; ROBERT SHARP, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS FIRE CAPTAIN FOR THE CITY OF LITTLE ROCK; FRANK SCOTT AND EDDIE RHINE, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS FIREFIGHTERS FOR THE CITY OF LITTLE ROCK; AND LITTLE ROCK AMBULANCE AUTHORITY D/B/A METROPOLITAN EMERGENCY MEDICAL SERVICES APPELLANTS
DAYONG YANG, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF LE YANG, DECEASED APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO.
60-CV-13-3115] HONORABLE TIMOTHY DAVIS FOX, JUDGE.
IN PART; REVERSED AND REMANDED IN PART.
Friday, Eldredge & Clark, LLP, by: Edie R. Ervin, for
appellant MEMS. Thomas M. Carpenter, Office of the City
Attorney, for appellant City of Little Rock.
Woods, P.A., by: Bruce McMath, Charles Harrison, and Carter
C. Stein, for appellee.
JOSEPHINE LINKER HART, Associate Justice.
question raised in this appeal is whether the appellants, the
City of Little Rock, Arkansas (the "City"), its
employees, and Little Rock Ambulance Authority, doing
business as Metropolitan Emergency Medical Services
("MEMS"), may assert the affirmative defense of
statutory immunity provided for by Arkansas Code Annotated
§ 21-9-301 (Supp. 2015), in the lawsuit filed by Dayong
Yang, as special administrator of the estate of his deceased
child, Le Yang. At issue is whether, in view of the evidence
presented by the parties regarding insurance coverage, the
circuit court properly denied summary judgment on Yang's
negligence claims against appellants. We affirm in part and
reverse and remand in part.
third amended complaint and petition for declaratory
judgment, Yang sued the appellants for the alleged
mishandling of a 911 call by an employee of the City, Candace
Middleton, that had been made by Yang's wife, Jinglei Yi,
on January 14, 2013, seeking rescue services when Yi lost
control of her vehicle and drove into a retaining pond.
Dayong Yang alleged in his complaint that Le Yang died of
pneumonia complicated by the anoxic encephalopathy that
occurred in the near-drowning event. In his complaint, Yang
made several claims of negligence. In their answer, the City
and its employees asserted as an affirmative defense that it
was entitled to the statutory immunity provided for in
Arkansas Code Annotated § 21-9-301. MEMS, which is an
emergency medical health-care facilities board created by the
City, filed a motion to dismiss asserting that as part of the
City, it is also entitled to statutory immunity. In his
response to MEMS's motion to dismiss, Yang attached
insurance policies showing that MEMS held a commercial
general liability policy with a limit of $1 million and a
commercial-liability umbrella policy with a limit of $2
City and its employees filed a motion for summary judgment,
again asserting that it was entitled to statutory immunity on
Yang's negligence claims against them. At the hearing on
the motion MEMS orally moved to join the motion. While
granting summary judgment on some claims, in its order the
circuit court denied summary judgment on Yang's
negligence claims against the City and against the employees
in their official capacities only. In denying summary
judgment, the circuit court concluded, "As questions of
fact remain on these claims, they should proceed to
trial." The circuit court also noted that during the
hearing, MEMS had adopted the City's "municipal
immunity argument regarding Yang's negligence claims
against it." The circuit court denied summary judgment
on "Yang's negligence claims against MEMS on all
claims not covered by insurance." The circuit court
again concluded, "As questions of fact remain on these
claims, they should proceed to trial." This
interlocutory appeal followed.
court has jurisdiction to hear the statutory-immunity issue
pursuant to Rule 2(a)(10) of the Arkansas Rules of Appellate
Procedure-Civil, which provides that "[a]n order denying
a motion to dismiss or for summary judgment based on the
defense of sovereign immunity or the immunity of a government
official" is an appealable order. Where the refusal to
grant a summary-judgment motion has the effect of determining
that the appellant is not entitled to immunity from suit, an
interlocutory appeal is permitted because the right of
immunity from suit is effectively lost if a case goes to
trial. City of Malvern v. Jenkins, 2013 Ark. 24, at
6, 425 S.W.3d 711, 715. However, we do not hear on appeal any
issue other than whether the circuit court erred in denying
summary judgment on the issue of immunity. Id., 425
S.W.3d at 715. The issue of whether a party is immune from
suit is purely a question of law and is reviewed de novo on
appeal. City of Fayetteville v. Romine, 373 Ark.
318, 321, 284 S.W.3d 10, 13 (2008).
immunity is set out in Arkansas Code Annotated section
21-9-301, which provides as follows:
(a)It is declared to be the public policy of the State of
Arkansas that all counties, municipal corporations, school
districts, special improvement districts, and all other
political subdivisions of the state and any of their boards,
commissions, agencies, authorities, or other governing bodies
shall be immune from liability and from suit for damages
except to the extent that they may be covered by liability
(b)No tort action shall lie against any such political
subdivision because of the acts of its agents and employees
Arkansas Code Annotated section 21-9-301 grants immunity to
the City, its employees, and MEMS, except to the extent that
they may be covered by liability insurance. Repking v.
Lokey, 2010 Ark. 356, at 11, 377 S.W.3d 211, 220. This
provision protects employees against suits in their official
and individual capacities. Blevins v. Hudson, 2016
Ark. 150, at 6, 489 S.W.3d 165, 169. However, when a
defendant pleads an affirmative defense of immunity, that
defendant must plead and prove no liability coverage under
this section for purposes of summary judgment.
Repking, 2010 Ark. 356, at 12, 377 S.W.3d at 220.
appeal, the City argues that the circuit court erred in
denying summary judgment on the claims of negligent hiring,
negligent training, negligent supervision, negligent
retention, negligent maintenance of the CAD system, negligent
staffing, and negligent performing of rescue services. The
City argues that the circuit court erred in failing to grant
summary judgment on these ...