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Hurd v. Hurt

Court of Appeals of Arkansas, Division II

April 12, 2017

ULYSSES HURD APPELLANT
v.
BOB HURT AND SUE HURT APPELLEES

         APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. 18CV-13-95] HONORABLE THOMAS FOWLER, JUDGE

          Rogers, Coe & Sumpter, Attorneys, by: Joe M. Rogers, for appellant.

          Bart Ziegenhorn, for appellee.

          LARRY D. VAUGHT, JUDGE

         After appellant Ulysses Hurd's leased mobile home exploded, causing him personal injury, he filed suit against appellees Bob and Sue Hurt for negligence. The Crittenden County Circuit Court entered an order of summary judgment finding that the Hurts owed no duty to Hurd and dismissed his complaint. On appeal, Hurd argues that the circuit court erred in granting summary judgment because material issues of facts are in dispute on the issues of whether (1) the Hurts assumed a duty to repair the mobile home; (2) the Hurts failed to warn Hurd; (3) the Hurts violated the Arkansas Fire Code; and (4) the caveat-lessee doctrine set forth in Arkansas Code Annotated section 18-16-110 (Repl. 2015) applies. We reverse and remand.

         Hurd testified in his deposition that in January or February 2010, he moved into a mobile home at the Broadway Trailer Park that he leased from Bob Hurt. There was no written lease agreement. Hurd and Hurt orally agreed that Hurd would pay monthly rent of $475. Hurd stated that while he lived there, he had asked Hurt to make repairs to the toilet, stove, air conditioner, and shower. Hurd testified that he sometimes saw Bob Hurt make the repairs and at other times the repairs were made while Hurd was at work. Hurd further testified that when he first moved into the home he requested that Bob Hurt repair the refrigerator because it was not cooling properly. When Hurd returned from work, the refrigerator was working.

         Hurd testified that the refrigerator problem recurred on August 27, 2010. Hurd said that he woke up that morning around 10:00 a.m. and went to his sister's home for two to three hours. When he returned home, he heard a loud "hysterical" hissing sound. Hurd walked across the street to a furniture store operated by the Hurts and reported the noise to Bob Hurt. Hurd said that he asked Bob Hurt if the hissing sound could cause an explosion, and Hurt said no. Hurt also told Hurd that he (Hurt) put Freon in the bottom of the refrigerator and that the noise should stop by the time Hurd returned from work. Hurd returned home and turned on the gas stove to light a cigarette. The mobile home exploded, and Hurd was severely burned.

         It was later determined by the fire marshal that the origin of the fire was the furnace in Hurd's mobile home, which the fire marshal found was "located beside the refrigerator." The flex gas line of the furnace was disconnected, which allowed gas to escape into the mobile home. The gas was ignited when Hurd used the stove.

         Hurd filed a negligence suit against the Hurts[1] seeking compensatory and punitive damages for the personal injuries he sustained. He alleged that the Hurts failed to maintain the furnace and mobile home in a reasonably safe condition after they had undertaken a duty by their actions to maintain the premises; failed to warn him that the hissing sound could have been gas escaping; and violated the Arkansas Fire Code by allowing the gas line to the furnace to be disconnected.

         The Hurts filed a motion for summary judgment, contending that there was no dispute that they did not own the mobile home and that they did not enter into a written lease or any other agreement with Hurd; therefore, they did not owe a common-law, statutory, or contractual duty to him. In response, Hurd argued that there were material facts in dispute about (1) the Hurts' ownership and management of the mobile-home park; (2) the Hurts' assumption of the duty by their conduct to maintain or repair the mobile home; and (3) the Hurts' violation of the Arkansas Fire Code. Hurd also argued that statutory protection of landlords applies only to "the premises, " which does not include the disconnected gas line.

         An order of summary judgment was entered on March 29, 2016, wherein the circuit court found that "there are no genuine issues of material fact regarding the duty the [Hurts] owed [Hurd]" and that "as a matter of law the [Hurts] owed no duty to [Hurd] in this matter." This appeal followed.

         On appeal, 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 question of fact unanswered. Moody v. Tarvin, 2016 Ark.App. 169, at 2, 486 S.W.3d 242, 243. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. at 3, 486 S.W.3d at 243. Summary judgment should be granted 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. Id., 486 S.W.3d at 243. Once a moving party has established 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., 486 S.W.3d at 243.

         Hurd's first point on appeal is that the circuit court erroneously entered summary judgment in favor of the Hurts based on its finding that they owed no duty to Hurd. Arkansas has recognized the common-law doctrine of caveat lessee[2] for almost a century, and under that rule, unless a landlord agrees with his tenant to repair leased premises, he cannot, in the absence of statute, be compelled to do so or be held liable for repairs. Propst v. McNeill, 326 Ark. 623, 624, 932 S.W.2d 766, 767 (1996); see also Majewski v. Cantrell, 293 Ark. 360, 362, 737 S.W.2d 649, 651 (1987) (stating that a lessor under common law owes no duty of repair of the premises to the lessee but that a landlord who agrees to such repairs can be held liable for them).

         The Arkansas legislature decidedly approved of the caveat-lessee doctrine by enacting Arkansas Code Annotated section 18-16-110 in Act 928 of 2005. Hadder, 2016 Ark.App. 303, at 9, 495 S.W.3d at 633. In section 1 of Act 928 of 2005, explaining the legislative purpose and intent of this statute, our legislature declared that the Arkansas Supreme Court had "properly and correctly interpreted and applied the law and that existing law should not be altered or extended." Hadder, 2016 Ark.App. 303, at 9, 495 S.W.3d at 633-34 (citing Acts of 2005, Act 928, ยง 1(c)(1)). The legislature further declared that the purpose and intent of ...


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