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TMG Cattle Company, Inc. v. Parker Commercial Spraying, LLC

Court of Appeals of Arkansas, Division IV

February 21, 2018

TMG CATTLE COMPANY, INC. APPELLANT
v.
PARKER COMMERCIAL SPRAYING, LLC APPELLEE

         APPEAL FROM THE PHILLIPS COUNTY CIRCUIT COURT [NO. 54CV-16-132] HONORABLE CHALK S. MITCHELL, JUDGE

          Etoch Law Firm, by: Louis A. Etoch, for appellant.

          Wright, Lindsey & Jennings LLP, by: Michael A. Thompson, for appellee.

          PHILLIP T. WHITEAKER, JUDGE.

         Appellant TMG Cattle Co., Inc. ("TMG"), appeals the order of the Phillips County Circuit Court granting the motion for summary judgment filed by appellee Parker Commercial Spraying, LLC ("Parker"). On appeal, TMG contends that the circuit court erred in finding that there were no genuine issues of material fact. We agree, and we reverse and remand.

         I. Background

         TMG is a cattle business. Parker is a business providing spraying services to farmers. On February 17, 2016, Parker sprayed urea fertilizer in a wheat field adjacent to a field where TMG's cattle were grazing. On February 20 or 21, TMG discovered eighteen dead cows on its property, all located in and around a pond adjacent to the wheat field where Parker had applied the urea fertilizer. TMG filed a complaint against Parker, alleging that Parker's spraying of toxic chemicals in the field near where the cows were grazing was the proximate cause of the deaths of the cattle.

         Parker answered and moved for summary judgment, arguing that TMG was unable to prove that the cows' deaths were caused by the fertilizer application. In seeking summary judgment, Parker asserted that the deposition testimony of TMG's veterinarian, Dr. Holt Pittman, did not definitively link the cows' deaths to the consumption of urea fertilizer. After a hearing, the circuit court entered an order granting Parker's summary-judgment motion, finding that there was "no genuine issue as to any material fact and that based on the undisputed material facts, [Parker] is entitled to judgment as a matter of law." TMG filed a timely notice of appeal.

         II. Standard of Review

         A circuit court may grant summary judgment 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. Harrisburg Sch. Dist. No. 6 v. Neal, 2011 Ark. 233, 381 S.W.3d 811. The party seeking summary judgment has the burden of establishing a prima facie entitlement to summary judgment. Once this has been established, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine whether summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21. 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. Cent. Okla. Pipeline, Inc. v. Hawk Field Servs., LLC, 2012 Ark. 157, 400 S.W.3d 701. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. Davis v. Schneider Nat'l, Inc., 2013 Ark.App. 737, 431 S.W.3d 321.

         III. Analysis

         In its brief on appeal, TMG breaks its argument down into several subpoints, asserting that the circuit court erred (1) in ruling there were no issues of material fact, (2) in not resolving remaining doubts against the moving party, and (3) by improperly imposing the burden of proof on the nonmoving party; moreover, TMG contends that even if it was proper to shift the burden to it, it still demonstrated that material questions of fact remained. The fundamental crux of its argument, however, is that the circuit court erred in finding that there were no genuine issues of material fact. We agree.

         TMG's complaint raised claims of negligence against Parker. To prevail on a claim of negligence, TMG must prove that Parker owed a duty to it, that Parker breached that duty, and that the breach was the proximate cause of TMG's damages. Lloyd v. Pier W. Prop. Owners Ass'n, 2015 Ark.App. 487, 470 S.W.3d 293. Parker's summary-judgment motion specifically challenged TMG's evidence regarding proximate cause and did not question the issues of duty and breach. We therefore focus solely on the question of proximate cause.

         Proximate cause is defined as "that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred." Pollard v. Union Pac. R. Co., 75 Ark.App. 75, 79, 54 S.W.3d 559, 562 (2001). Proximate cause in a negligence action may be shown from circumstantial evidence, and such evidence is sufficient to show proximate cause if the facts proved are of such a nature and are so connected and related to each other that the conclusion therefrom may be fairly inferred. Wallace v. Broyles, 331 Ark. 58, 67, 961 S.W.2d 712, 715 (1998) (citing White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992)). Proximate causation is usually an issue for the jury to decide, and when there is ...


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