FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CV-2015-59-2]
HONORABLE GARY ARNOLD, JUDGE
Matthews, Sanders & Sayes, by: Mel Sayes, for appellant.
Brad Hendricks Law Firm, by: Mattheew E. Hartness; and Robert
S. Tschiemer, for appellee.
BRANDON J. HARRISON, Judge
Harris appeals the Saline County Circuit Court's denial
of his motion for summary judgment. He argues that the circuit court erred in
finding that he was not entitled to immunity pursuant to Ark.
Code Ann. § 21-9-301 (Supp. 2015). We affirm the circuit
is an officer with the Little Rock Police Department K-9 Unit
and was assigned a canine officer named Ammo in October 2012.
As part of his duties, Harris was required to house Ammo at
his private residence in Saline County, and he and Ammo were
required to be available on a twenty-four-hour, on-call basis
to assist other officers as needed. In August 2014, Norman
Beth, Harris's neighbor, was doing yard work at his home
when he was bitten on the leg by Ammo, who had escaped from
Harris's backyard. Harris was not home at the time of the
January 2015, Beth filed a complaint against Harris alleging
negligence and strict liability for housing an animal known
to have dangerous tendencies. Beth sought compensatory and
punitive damages for the injuries to his leg. Harris
responded by denying the allegations in their entirety and by
affirmatively pleading qualified immunity.
2015, Harris moved for summary judgment, arguing that there
were no genuine issues of material fact and that he was
entitled to immunity pursuant to Ark. Code Ann. §
It is declared to be the public policy of the State of
Arkansas that all counties, municipal corporations, school
districts, public charter schools, 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 insurance.
argued that this immunity is extended to a municipality's
employees for acts of negligence committed in their offical
capacities and that he was acting in his official capacity
for the Little Rock Police Department by maintaining Ammo at
his residence and remaining on call twenty-four hours a day.
In support, he cited Autry v. Lawrence, 286 Ark.
501, 696 S.W.2d 315 (1985), which confirmed that Ark. Stat.
Ann. § 12-2901 (now codified as Ark. Code Ann. §
21-9-301) immunized city employees when they were accused of
negligence in the performance of their official duties.
response, Beth argued that § 21-9-301 was inapplicable
because Harris was not acting in his official capacity when
the incident occurred. Beth asserted that he had never
alleged Harris was liable in his official capacity, but even
if he had, Harris's home was covered by a homeowner's
insurance policy, which Beth attached as an exhibit. So
Harris would be immune from liability only "to the
extent that [he] may be covered by liability insurance."
Harris replied that "the issue of insurance is not that
provided to Defendant Harris in his individual capacity but
that provided to him through the City of Little Rock in his
official capacity, " so the homeowner's policy was
circuit court held a summary-judgment hearing in October
2015, during which Harris continued to argue that one of his
ongoing job duties was to care for and secure the dog on his
property, so he was acting in his official capacity. He also
reasserted that the insurance coverage to which the statute
refers is the insurance coverage on the municipality and
stated, "So in this particular case, obviously the City
of Little Rock is not participating here. There's no
insurance coverage exception for this particular
instance." Beth responded that it was not the intent of
the statute to give blanket immunity to municipal employees
for their negligence. He also denied that Harris was acting
within the course and scope of his employment and that a
factual question existed as to whether Harris had actually
secured Ammo in his kennel that day. Instead, Harris was sued
"as a private individual for having an inherently
dangerous animal on his property, an attack dog, and not
having it secured and allowing it to get out and attack
neighbors. . . . [T]he fact that he is an employee of the
Little Rock Police Department doesn't change the
oral ruling, the circuit court found that this was a question
of law and that Harris's argument was compelling.
Nonetheless, the court ruled that the statute did not provide
immunity in this case, because if it did, "there is
absolutely in my mind no way that the Defendant could be
liable for whatever that dog did anytime, anywhere. I
can't believe that's what the statutes were intended
to do and, therefore, the Motion for Summary Judgment is
denied." In its written order denying summary judgment,
the court found that "the defendant is not entitled to
immunity, [and] that Ark. Code Ann. [§] 21-9-301 and the
holding in Autry v. Lawrence, 286 Ark. 501, 696
S.W.2d 315 (1985) do not apply." Harris timely
judgment is to be granted by a circuit court only 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. Sykes v. Williams, 373 Ark. 236,
239-40, 283 S.W.3d 209, 213 (2008). Once a 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. After
reviewing undisputed facts, summary judgment should be denied
if, under the evidence, reasonable minds might reach
different conclusions from those undisputed facts.
Id. On appeal, we determine if summary judgment was
appropriate based on whether the evidentiary items presented
by the moving party in support of its motion leave a material
question of fact unanswered. Id. This court views
the evidence in a light ...