DAVID L. MCKIM APPELLANT
JACK B. SULLIVAN APPELLEE
FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CV-15-208]
HONORABLE CHRIS CARNAHAN, JUDGE.
Kidd, Ryan & Rowan, by: Catherine A. Ryan, for appellant.
Donovan & Tilley, P.A., by: Michael McCarty Harrison and
Nicholas D. Hornung, for appellee.
KENNETH S. HIXSON, JUDGE.
David L. McKim appeals an order of the Faulkner County
Circuit Court granting summary judgment in favor of appellee
Jack B. Sullivan in a negligence action arising from a
motorcycle accident. On appeal, appellant contends that the
circuit court erred in granting summary judgment because the
circuit court erred in ruling that Arkansas Code Annotated
section 27-51-1405(a)-(b) (Repl. 2010) does not apply to
natural substances such as dirt, gravel, and rocks. However,
we must dismiss this appeal without prejudice because the
judgment herein is not a final judgment for purposes of
appeal, and there is a lack of a proper certification under
Rule 54(b) of the Arkansas Rules of Civil Procedure.
4, 2014, McKim was traveling westbound on Elliott Road in
Greenbrier, Arkansas, near the intersection with Arkansas
Highway 25 when he lost control of his motorcycle and
collided with oncoming traffic, wherein McKim sustained
significant personal injuries. In his complaint, McKim
alleged that a series of events occurred prior to the
accident that ultimately turned out to be a proximate cause
of the accident and his injuries. Appellee Sullivan owns
property along Elliot Road. A couple days prior to
McKim's accident, it is undisputed that a tractor trailer
had gotten stuck in a ditch on Sullivan's property and
that Sullivan had employed Jim Smith's Wrecker Service to
remove the tractor trailer. McKim alleged in his complaint
that as a result of the removal of the tractor trailer, dirt
and gravel were strewn across Elliot Road. McKim further
alleged that that the dirt and gravel on the roadway caused
him to lose control of his motorcycle and that Sullivan and
Jim Smith, individually and d/b/a Jim Smith Collision and
Wrecker Center, Inc. (collectively Jim Smith's Wrecker
Service), were negligent by failing to remove the dirt and
gravel from the roadway. Sullivan filed an answer generally
subsequently filed an amended complaint where he added
Mitchell Collision and Towing Center, Inc. d/b/a Jim Smith
Collision and Wrecker, Jim Smith Wrecker Service, and Smith
Collision and Wrecker; Samuel Mitchell, Individually; and Sam
Mitchell, Individually (collectively referred to as the
Mitchell defendants), as additional defendants. While the
amended complaint adds the Mitchell defendants, the complaint
does not contain any allegations against the Mitchell
defendants except to state that Mitchell Collision and Towing
Center, Inc., is an Arkansas corporation, Samuel Mitchell is
the "Incorporator / Organizer" of the corporation,
and Sam Mitchell is the president of the
August 19, 2016, Sullivan filed a separate motion for summary
judgment. Neither Jim Smith's Wrecker Service nor the
Mitchell defendants joined that motion. In his motion,
Sullivan argued that he did not owe either a common-law or a
statutory duty to prevent natural materials from being
deposited onto a public roadway or require their removal.
Sullivan further argued that there "is no common law
duty imposed on a landowner such as Sullivan to control
natural substances on his property for the benefit of users
of a public highway." And Sullivan claimed that Arkansas
Code Annotated section 27-51-1405 does not impose a duty
because the statute does not apply to "natural
objects, " such as dirt, gravel, rocks, or mud.
Additionally, Sullivan argued that McKim could not prove that
"Sullivan breached a duty owed to [McKim] as Sullivan
had no duty to prevent and/or remove the gravel debris at
issue from Elliott Road, which allegedly caused [McKim] to
lose control of his motorcycle." Thus, Sullivan argued
that he was entitled to judgment as a matter of law.
filed a response denying that Sullivan was entitled to
judgment as a matter of law. McKim argued that Arkansas Code
Annotated section 27-51-1405 is applicable as it prohibits
any person from depositing on any highway any "substance
likely to injure any person, animal, or vehicle upon the
highway." Ark. Code Ann. § 27-51-1405(a). McKim
further argued that Arkansas Code Annotated section
27-51-1405(b) states that any person who "drops or
permits to be dropped or thrown upon any highway any
destructive or injurious material shall immediately remove it
or cause it to be removed." Therefore, McKim alleged
that both provisions imposed a duty that Sullivan breached.
circuit court filed an order granting Sullivan's motion
for summary judgment on March 23, 2017. In its order, the
circuit court made the following relevant findings:
2. The Court finds that the Plaintiff must prove the
following elements to establish a prima facie negligence
cause against Sullivan: 1) the Plaintiff sustained damages,
2) Sullivan was negligent, and 3) that negligence was the
proximate cause of Plaintiff's damages. Ambrus v.
Russell Chevrolet Co., 327 Ark. 367, 937 S.W.2d 183
(1997). To prove any negligence on the part of Defendant
Sullivan, Plaintiff must show a failure to exercise proper
care in the performance of a legal duty, which Sullivan owed
to Plaintiff under the circumstances. Cent. Okla.
Pipeline, Inc. v. Hawk Field Serv., LLC, 2012 Ark. 157,
400 S.W.3d 701. Duty is a concept that arises out of the
recognition that relations between individuals may impose
upon one a legal obligation for the other. Id.
Absent a duty, there can be no breach and no liability
sounding in negligence. Federal Savings Loan Corp. v.
Smith, 721 F.Supp. 1039, 1048 (E.D. Ark. 1989). This
question of what duty, if any, is owed a Plaintiff alleging
negligence is always a question of law. Lawhon Farm
Supply, Inc. v. Hayes, 316 Ark. 69, 71, 870 S.W.2d 729,
3. Arkansas has no requirement that natural materials be
removed from a roadway or prevent their deposit thereon.
Defendant points out the closest statute addressing this
issue is Ark. Code Ann. § 27-51-1405. That statute
speaks of the throwing or depositing of manufactured or
unnatural substances on a roadway, not dirt or the substance
of the roadway itself. Defendant's reasoning, that this
Court adopts, that the intent of the statute is to prevent
unnatural dangerous objects from entering the roadway.
Natural objects like dirt, gravel debris, rocks, and/or mud
are not identified in the above statute. Because there
Sullivan owed no statutory duty to Plaintiff to prevent
natural debris from entering the roadway, and no duty to
remove said natural debris accrued to Sullivan. Additionally,
the common law enforces no duty on a landowner such as
Sullivan to control natural substances on his property for
the benefit of users of a public highway. Driggers v.
Locke, 323 Ark. 63, 913 S.W.2d 269 (1996).
4. Because Plaintiff cannot prove that Sullivan owed a duty
to Plaintiff that was breached, Plaintiff cannot establish
negligence. This results in no material facts being in
dispute and therefore Defendant ...