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Powell v. ISC North, LLC

Court of Appeals of Arkansas, Divisions III & IV

June 21, 2017

BRYAN L. POWELL, IN HIS CAPACITY AS SPECIAL ADMINISTRATOR OF THE ESTATE OF AALYAH JERWAN, DECEASED, ANDJELINA LEWIS, IN HER CAPACITY AS SPECIAL ADMINISTRATRIX OF THE ESTATE OF AALYAH JERWAN, DECEASED APPELLANTS
v.
ISC NORTH, LLC, ET AL. APPELLEES

         APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72-15-1495] HONORABLE DOUG MARTIN, JUDGE

          Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks; Robinson Law Firm, L.L.C., by: Jon P. Robinson; and Masri Law Firm, L.L.C., by: Ziad Masri, for appellants.

          Friday, Eldredge & Clark, LLP, by: Clifford W. Plunkett, for appellees.

          DAVID M. GLOVER, Judge

         This appeal arises from the trial court's summary judgment against consolidated complaints filed on behalf of the estate of a young girl who drowned in a pond located in Washington County. We affirm the dismissal.

         On September 1, 2012, Aalyah Jerwan drowned in a retention pond located on private property. She was twelve years old at the time. Two lawsuits were filed with respect to Aalyah's death-one by Special Administratrix Jelina Lewis (CIV-2015-1485-4) and the other by Special Administrator Bryan L. Powell (CIV-2015-1495-1). The original complaints were filed in August 2015 against ISC North, LLC; ISC South, LLC; Joe Edwards; Joe Edwards, as trustee of the Joe Edwards Revocable Trust, as amended and restated u/t/d November 5, 2007; and several other named defendants. The complaints were virtually identical and alleged the defendants were responsible for the wrongful death of Aalyah. The complaints were based on the attractive-nuisance doctrine and negligence. The administrators of Aalyah's estate subsequently moved to consolidate the two cases, and the court allowed it.

         On October 19, 2015, after the consolidation order had been entered, the defendants answered the complaint and moved to dismiss the case pursuant to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure. They contended the complaint failed to state a claim upon which relief could be granted because a pond is not an attractive nuisance under Arkansas law, and as a result, there was no legal duty owed to Aalyah. They further asserted that any cause of action would be barred by landowner immunity under Arkansas Code Annotated section 18-11-305 (Repl. 2015).

         On November 16, 2015, the administrators amended their complaint to allege that a partially submerged truck-bed liner located at the edge of the pond had created a trap or hidden inherent danger and that defendants were negligent in placing the truck-bed liner there, or at least in allowing the submerged truck-bed liner to remain in the pond, when they knew or should have known that children went onto the property and played in and around the pond where the truck-bed liner was located. On the same date, the administrators responded to the defendants' motion to dismiss. They submitted supporting documents (photographs of the pond and truck-bed liner, a police report, and defendants' answers to requests for admission), explained how they had stated claims for which relief could be granted under Arkansas law, and stated that a jury should determine any unanswered material fact questions that this case presented.

         On November 24, 2015, the defendants filed an answer and moved to dismiss the amended complaint pursuant to Rule 12(b)(6). They argued that "because a pond and truck bed liner are not attractive nuisances under Arkansas law, " and "[i]n addition, any cause of action is barred by landowner immunity" pursuant to Arkansas Code annotated section 18-11-305, the case should be dismissed.

         On December 7, 2015, the administrators responded to the motion to dismiss the amended complaint, essentially reasserted their position that whether the truck-bed liner functioned as a trap or hidden danger was a question for the jury, and explained why the recreational-use immunity statute did not apply.

         On January 14, 2016, the trial court dismissed the amended complaint, "after having reviewed the pleadings and briefs filed by the parties, based on the reasons set forth in the motion and supporting briefs." This appeal followed, with the administrators contending the trial court erred in dismissing their consolidated complaints because genuine issues of disputed material facts existed regarding the application of the attractive-nuisance doctrine and the alleged negligence of appellees; they also contested whether the recreational-use statute could apply under these circumstances. We affirm the dismissal.

         According to the facts alleged in the pleadings and exhibits the administrators submitted with their responses to the motions to dismiss, on the day Aalyah drowned, she was playing "tag" with other children on and around a truck-bed liner that was partially submerged in the retention pond. She was "tagged" by a playmate, fell in the deeper water surrounding the liner, and drowned. The pond was located in a vacant lot about 700 feet from the apartment complex where Aalyah lived in Springdale, Arkansas. According to the administrators' theory of the case, Aalyah and the other children were attracted to the truck-bed liner, and the "bed liner conveyed a definitive message, and that message was incorrect, misleading and deadly to Aalyah, " i.e., that the pond was shallower near the bed liner than it actually was. Aalyah's body was recovered from the pond in six to seven feet of water approximately fifteen feet north of the spot on the south bank where the truck-bed liner was located. According to a police report, which was not objected to when submitted in response to the motion to dismiss, there were footprints around the area where the truck-bed liner was located, and the water near the liner was muddier than the rest of the pond.

         The administrators alleged that the defendant landowners negligently allowed a partially submerged truck-bed liner to remain in the pond, creating the illusion that the pond was shallower than it really was, and that Aalyah was not aware of the hazardous condition and ultimately fell into the deep area and drowned. As we have mentioned, they asserted liability based on the attractive-nuisance doctrine and general negligence.

         The summary disposal of this case was initiated with a Rule 12(b)(6) motion. The order of dismissal merely states: "[A]fter having reviewed the pleadings and briefs filed by the parties, based on the reasons set forth in the motion and supporting briefs, the court finds that the Motion to Dismiss Amended Complaint should be and hereby is granted." The parties agree, however, that the Rule 12(b)(6) motion was converted to an issue of summary judgment because the trial court was also presented with evidentiary items that were not expressly excluded.

         In reviewing summary-judgment cases, our court need only decide if the trial court's grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Moses v. Bridgeman, 355 Ark. 460, 139 S.W.3d 503 (2003). The moving party always bears the burden of sustaining a motion for summary judgment. Id. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. Id. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Id. Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Id. However, if a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence. Id. We have further stated that summary judgment should not be granted when reasonable minds could differ as to the conclusions that can be drawn from the facts presented. Id. The standard is whether the evidence is sufficient to raise a factual issue, not whether the evidence is sufficient to compel a conclusion. Johnson v. DeKros, 2014 Ark.App. 254, 435 S.W.3d 19.

         For the first point of appeal, the administrators contend the trial court erred in concluding the attractive-nuisance doctrine did not apply to this case. We disagree.

         The administrators contend that they were pursuing two "independent but complementary elements" of the attractive-nuisance doctrine: 1) that the bed liner itself, resting on the pond, was an attractive nuisance and 2) that the pond contained a trap or hidden danger in the form of the bed liner and its positioning on the pond that allowed recovery as an attractive nuisance. In other words, this case does not involve a body of water "by itself"; it involves an additional element of attraction (the liner), and it also involves a hidden danger or trap (the liner). We are not persuaded that the truck-bed liner ...


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