FROM THE PULASKI COUNTYCIRCUIT COURT, THIRTEENTH DIVISION
[NO. 60CV-14-791] HONORABLE W. MICHAEL REIF, JUDGE
Munson, Rowlett, Moore & Boone, P.A., by: Mark Breeding;
and Husch Blackwell LLP, by: Mark G. Arnold, pro hac vice,
and JoAnn T. Sandifer, pro hac vice, for appellants.
Holt and Associates, by: William Gary Holt; and Baker &
Schulze, by: J.G. "Gerry" Schulze, for appellees.
& Co., PLLC, by: Tim Cullen; and Christine Mott, of
counsel, Legal International Council of Shopping Centers, for
amicus curiae, The International Council of Shopping Centers.
W. GRUBER, Chief Judge
February 28, 2013, Christian Hayes was tragically murdered by
Deonte Edison and Tristan Bryant. At the time of his death,
Hayes was working as an assistant manager at the Sbarro
restaurant in Little Rock's Park Plaza Mall. Edison and
Bryant murdered Hayes in Sbarro's leased, private space
after the close of business.
Powell, on behalf of Hayes's estate, sued numerous
parties for his wrongful death, and the case went to trial on
her claims against Park Plaza Mall CMBS, LLC (Park Plaza);
ERMC II, LP (ERMC), the entity that provided security
services to Park Plaza; Edison; and Bryant. A Pulaski County
jury returned a verdict in favor of Powell, and Park Plaza
and ERMC appealed. Because we hold that the circuit court
erred as a matter of law by determining that Park Plaza and
ERMC had a duty to protect Hayes from foreseeable criminal
acts of third parties, we reverse and dismiss.
leased space in Park Plaza. Park Plaza contracted with ERMC
to provide security to the common areas of the mall. Pursuant
to the contract, ERMC was responsible for observing and
reporting safety issues in common areas of the mall to
February 28, 2013, Hayes and Jashonta Thomas, another Sbarro
employee, were closing the restaurant when Edison and Bryant
entered the restaurant through an employee
door. Edison confronted Hayes, asked for money,
and ultimately shot and killed him inside Sbarro's
leased, private space. Thomas was shot nine times but
survived her injuries.
Powell, the administratrix of Hayes's estate, sued
numerous parties whom she deemed responsible for his death.
She filed her initial complaint on February 24, 2014. She
amended her complaint several times-adding and subtracting
certain parties. The operative complaint, the fourth amended
complaint, was filed on August 7, 2015, against Park Plaza;
ERMC; QC & SF Enterprises, Inc.; Edison; Bryant; Sbarro,
LLC; Sbarro America, Inc.; Sbarro Franchise Co., LLC; and
several John Doe defendants.
the filing of the fourth amended complaint, Park Plaza and
ERMC sued Sbarro, LLC; Sbarro America, Inc.; Sbarro Franchise
Co., LLC; Kahala Franchising, LLC; and QC & SF
Enterprises, Inc., for contribution and indemnity. An order
was entered severing Park Plaza and ERMC's cross-claims
against Sbarro, LLC, and Sbarro America, Inc., with a trial
to be held on the cross-claims in the event Powell obtained a
judgment against Park Plaza and ERMC. The cross-claim against QC
& SF Enterprises, Inc., was dismissed with prejudice, and
the cross-claims against the remaining parties-Sbarro
Franchise Co., LLC, and Kahala Franchising, LLC-were
dismissed without prejudice.
case proceeded to a jury trial with Powell seeking relief
from Park Plaza, ERMC, Edison, and Bryant. Powell sought
relief from Edison and Bryant for battery and assault. She
sought relief from Park Plaza and ERMC for negligence. Powell
asserted that Hayes was a business invitee of Park Plaza and
ERMC; accordingly, Park Plaza and ERMC had a duty to protect
Hayes from criminal acts of third parties. Park Plaza and
ERMC vigorously challenged the claim that Hayes was their
business invitee. They insisted that he was a tenant whom
they had no duty to protect from criminal acts of third
parties. Powell prevailed on this issue, and the circuit
court instructed the jury that Park Plaza and ERMC owed Hayes
a duty as a business invitee on the premises.
jury returned a $2, 771, 000 verdict in Powell's favor
finding that Park Plaza and ERMC were 33 percent at fault,
Edison was 34 percent at fault, and Bryant was 33 percent at
fault. The jury's verdict was reduced to judgment. Later,
Park Plaza and ERMC filed a motion for judgment
notwithstanding the verdict and alternatively a motion for
new trial, which was denied. They also filed a motion to
certify the judgment. The circuit court entered an amended
judgment that included a Rule 54(b) certificate. Park Plaza
and ERMC timely appealed.
appeal, Park Plaza and ERMC contend that the circuit court
erred by denying their motion for directed verdict and their
motion for new trial. They argue that it was error to deny
the directed-verdict motion because (1) they owed no duty to
protect Hayes against harm resulting from criminal acts of
third parties, (2) there was no substantial evidence that
they breached any duty to Hayes, and (3) there was no
substantial evidence that any breach caused Hayes's
murder. They also argue that the circuit court erred in
denying their motion for a new trial because (1) the circuit
court erred as a matter of law in determining that Hayes was
a business invitee, (2) substantial evidence did not support
the verdict that Park Plaza and ERMC shared equal fault with
the murderers, and (3) the circuit court erred in allowing
evidence of irrelevant crimes that had previously occurred at
September 20, 2017, our court dismissed this appeal for lack
of jurisdiction due to the absence of a final order,
reasoning that Park Plaza and ERMC's dismissals without
prejudice of their cross-claims against Sbarro Franchise Co.,
LLC, and Kahala Franchising, LLC, acted as a bar to
jurisdiction. Park Plaza and ERMC filed a petition for
rehearing, and on November 8, 2017, we granted the petition.
After due consideration, we concluded that the dismissals
without prejudice of these cross-claims did not preclude our
court from exercising jurisdiction.
reiterate the general rule that the dismissal of a claim
without prejudice does not create finality. Beverly
Enters.-Ark., Inc. v. Hillier, 341 Ark. 1, 3, 14 S.W.3d
487, 488 (2000). By contrast, the dismissal of a party to an
action, with or without prejudice, is sufficient to obtain
finality and invest jurisdiction in an appellate court.
Driggers v. Locke, 323 Ark. 63, 913 S.W.2d 269
rationale for these rules provides important context. The
dismissal without prejudice of a party is sufficient to
create finality because "nothing requires a plaintiff to
sue the prospective defendants simultaneously."
Driggers, 323 Ark. at 66, 913 S.W.2d at 270.
However, the dismissal of fewer than all claims against ...