FROM THE ST. FRANCIS COUNTY CIRCUIT COURT [NO. 62CV-14-92]
HONORABLE CHALK S. MITCHELL, JUDGE
& Houseal, PLLC, by: B. Michael Easley and Austin H.
Easley, for appellant.
Wright, Lindsey & Jennings LLP, by: Kathryn A. Pryor,
Antwan D. Phillips, and E. Lee Lowther III, for appellee.
MARK KLAPPENBACH, JUDGE.
Marla Shook appeals the entry of summary judgment in favor of
appellee Love's Travel Stops & Country Stores, Inc.
(Love's). On August 17, 2011, Shook tripped and fell over
a folded rug near the store's doorway. In June 2014,
Shook filed suit against Love's for injuries she
sustained as a consequence of the fall. Shook alleged that
Love's owed her, as a business invitee, the duty to use
ordinary care; that Love's was required to maintain its
premises in a reasonably safe condition; and that Love's
failed to use ordinary care to eliminate the dangerous
condition or warn Shook of its presence. In the course of
discovery, Shook filed two motions to compel, seeking in part
to have Love's produce the incident report created by the
store manager immediately after Shook had fallen. The trial
court denied those motions. Subsequently, Love's moved
for summary judgment, contending that the folded rug was an
open and obvious danger. The trial court agreed with
Love's and entered summary judgment. On appeal, Shook
argues that (1) the trial court erred in entering summary
judgment by finding that Love's had no duty to Shook as a
matter of law because the open-and-obvious-danger exception
applied here; and (2) the trial court abused its discretion
in not compelling the production of Love's incident
report. We agree that summary judgment was inappropriate at
this juncture, and we agree that the trial court abused its
discretion in not compelling production of the incident
report. Thus, we reverse and remand.
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 party is entitled to judgment as a matter
of law. Tillman v. Raytheon Co., 2013 Ark. 474, 430
S.W.3d 698. On appellate review, 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. Id. We
view 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. Our review
focuses not only on the pleadings, but also on the affidavits
and documents filed by the parties. Id. Summary
judgment is not proper where the evidence reveals aspects
from which inconsistent hypotheses might reasonably be drawn
and reasonable minds might differ. Flentje v. First
Nat'l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531
the underlying cause of action is based in negligence, the
existence of a duty of care is crucial. Under Arkansas law,
in order to prevail on a claim of negligence, the plaintiff
must prove that the defendant owed a duty to the plaintiff,
that the defendant breached that duty, and that the breach
was the proximate cause of the plaintiff's injuries.
Yanmar Co. v. Slater, 2012 Ark. 36, 386 S.W.3d 439.
Because the question of what duty is owed is one of law, we
review it de novo. Lloyd v. Pier W. Prop. Owners
Ass'n, 2015 Ark.App. 487, 470 S.W.3d 293. If the
court finds that no duty of care is owed, the negligence
count is decided as a matter of law. D.B. Griffin
Warehouse, Inc. v. Sanders, 349 Ark. 94, 76 S.W.3d 254
(2002); First United Methodist Church of Ozark v. Harness
Roofing, Inc., 2015 Ark.App. 611, 474 S.W.3d 892.
business invitee visits "for a purpose connected with
the business dealings of the owner." Young v.
Paxton, 316 Ark. 655, 873 S.W.2d 546, 549 (1994). In
Arkansas, a landowner generally does not owe a duty to a
business invitee if a danger is known or obvious.
Kuykendall v. Newgent, 255 Ark. 945, 504 S.W.2d 344
(1974). The duty to warn an invitee of a dangerous condition
applies only to defects or conditions that are in the nature
of hidden dangers, traps, snares, pitfalls and the like, in
that they are known to the invitor but not known to the
invitee and would not be observed by the latter in the
exercise of ordinary care. Ethyl Corp. v. Johnson,
345 Ark. 476, 49 S.W.3d 644 (2001); Jenkins v.
Hestand's Grocery, 320 Ark. 485, 898 S.W.2d 30
(1995); Kroger Co. v. Smith, 93 Ark.App. 270, 275,
218 S.W.3d 359, 363 (2005).
evidence before the trial court on this motion for summary
judgment included still shots of the store's surveillance
camera provided by Love's. These were grainy photographs
depicting Shook walking in the door, walking beyond and just
past the folded rug in the direction of the restroom, and
walking back toward the door and tripping over the rug. The
end of the folded rug appears to touch the edge of the
doorway. Shook was wearing a cervical collar. The photographs
do not clearly demonstrate that Shook looked at or observed
the rug. In Shook's response to the motion, she asserted
that she did not look down and see the rug so she did not
know of the dangerous condition. Shook further asserted that
whether this was an "open and obvious" danger was a
question of fact. Shook appended her deposition
testimony in which she said (1) she walked into the
store looking for the restroom sign, (2) she walked to and
used the restroom, (3) she tripped on the rug lying in the
aisle near the door but never saw the rug before she tripped,
and (4) she was wearing a cervical collar due to a recent
neck surgery, so she was looking outward and not downward.
Shook also appended the deposition testimony of the manager
on duty that night, who stated that the person who folded up
the rug should have unfolded it as soon as the task calling
for it to be folded (mopping) was completed. The manager
stated that, according to procedure, the rug was not where it
was supposed to be because it could be a tripping hazard.
hearing on the motion for summary judgment, the trial court
agreed to consider and to look at the actual
video-surveillance footage provided by Love's to Shook in
discovery. The trial court permitted Shook to show the brief
portion in which Shook entered and attempted to exit the
store when she fell. The trial court noted that the video was
two hours long, and ''if I care to watch it for two
hours I can.'' In that video, as asserted by Shook,
other people tripped over the rug that night, although they
did not fall. Shook's attorney pinpointed the exact time
on the video to locate these other instances, and the video
was entered as an exhibit at the hearing. After hearing
arguments of counsel, the trial court took the matter under
advisement for a few days.
trial court filed an order granting summary judgment to
Love's. In that order, the trial court recited that it
considered all the pertinent pleadings, the exhibits, and the
surveillance video. The trial court ruled that Love's did
not owe a duty to Shook ''because the subject rug on
which Shook tripped was open and obvious.'' This
outset, we note that, despite Shook's arguments to the
contrary, the trial court did not find that Shook Aknew"
of the danger of the rug or ''saw" it. The trial
court clearly could not so find because in considering a
motion for summary judgment, the evidence and all reasonable
inferences deduced therefrom must be viewed in the light most
favorable to Shook as the plaintiff. ''Known" in
this context means ''not only knowledge of the
existence of the condition or activity itself, but also
appreciation of the danger it involves.'' Van
DeVeer v. RTJ, Inc., 81 Ark.App. 379, 386, 101 S.W.3d
881, 884 (2003). ''Thus the condition or activity
must not only be known to exist, but it must also be
recognized that it is dangerous, and the probability and
gravity of the threatened harm must be appreciated.''
Id. Shook vehemently denied having seen the rug
before she tripped and fell over it, and the video and
photographic evidence do not definitively demonstrate that
she did see it. Love's appellate brief on this issue
focuses solely on its contention that the video definitely
shows that Shook saw the rug and knew it was in her walkway.
Viewing all the evidence in the light most favorable to Shook
at the summary-judgment stage, a finding that she knew the
rug was there would be in error.
trial court's entry of summary judgment was premised on
the conclusion that the folded rug was, as a matter of law,
an open and obvious danger. Shook argues that this too is in
error, and we agree. A dangerous condition is
''obvious" when ''both the condition and
the risk are apparent to and would be recognized by a
reasonable man, in the position of the visitor, exercising
ordinary perception, intelligence, and judgment.''
Van DeVeer, 81 Ark.App. at 386, 101 S.W.3d at 885.
In this case, Shook presented evidence that a reasonable
person in Shook's position-wearing a cervical collar with
limited ability to look down-would not have recognized or
appreciated the risk of the folded rug in her path on her way
out of the store. Moreover, the video demonstrates other
persons with no apparent obstructions to their ability to
view the floor walked and tripped over the rug in the hour
before Shook's fall. At this stage of the proceedings,
the record presents an issue of fact not properly resolved by
summary judgment. We cannot say that Love's proved as a
matter of law that the danger presented in this case was open
and obvious. See Hergeth, Inc. v. Green, 293 Ark.
119, 124, 733 S.W.2d 409, 411 (1987).
reversal of the entry of summary judgment and remand for
further proceedings necessitates that we address Shook's
second point on appeal. Shook argues that the trial court
abused its discretion in refusing to compel Love's to
produce the incident report filled out by the store manager
on the night that Shook fell. The trial court found that it
was "work product" that was prepared in
anticipation of litigation, providing a privilege not to
disclose that information. We agree with Shook that the trial