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Robinson v. Willis

Court of Appeals of Arkansas, Division II

November 7, 2018

AMBER ROBINSON AND BRANDY ROBINSON APPELLANTS
v.
JAMES WILLIS AND MARION STARKS APPELLEES

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, NINTH DIVISION [NO. 60CV-13-4068] HONORABLE MARY SPENCER MCGOWAN, JUDGE

          Taylor King Law, by: Kenneth J. Mitchell, for appellant.

          Watts, Donovan & Tilley, P.A., by: Richard N. Watts and Staci Dumas Carson, for appellees.

          DAVID M. GLOVER, Judge.

         Amber Robinson, on behalf of her minor daughter, Brandy, appeals from the trial court's October 5, 2017 grant of summary judgment in favor of appellees, James Willis and Marion Starks ("landlords"). In this appeal, she contends the trial court erred in granting summary judgment because 1) appellees owed a duty to Brandy based on the terms of the lease agreement and applicable provisions of the Little Rock city ordinances, and 2) it was foreseeable that the failure to provide heat to a residential rental property created an appreciable risk of harm to others. We affirm.

         The essential facts can be briefly summarized. Brandy's claims arose from burn injuries she sustained when she was staying with her grandmother, Barbara Robinson, on December 23, 2011. Barbara leased her residence from the landlords, and because the heating system on the property did not work, she obtained and was using space heaters when Brandy came to visit on December 23. Brandy was nine years old at the time, and the dress she was wearing caught fire when it came in contact with one of the space heaters. The burns were extensive, and she continues to need surgeries.

         Through several amendments to her original complaint, Amber filed suit against Sunbeam Products, Inc. d/b/a Jarden Consumer Solutions (manufacturer of the space heater), Lowe's Home Centers, Inc., then Walmart Stores, Inc. (where the space heater was purchased), James Willis and Marion Starks (landlords of the premises where the injury occurred), and five John Does. Lowe's was voluntarily dismissed from the case after it was discovered the space heater was actually purchased from Walmart. Sunbeam and Walmart were dismissed from the case following a settlement agreement.

         The landlords moved for summary judgment on July 25, 2016. Additional discovery was allowed, and a hearing on the motion was held on October 5, 2017. The trial court granted the motion by order entered the same day. On October 23, 2017, the trial court entered an order granting Amber's motion to dismiss John Does 1-5 pursuant to Rule 41 of the Arkansas Rules of Civil Procedure. This appeal followed.

         Amber contends the trial court erred in granting summary judgment to the landlords. She argues the landlords owed a duty to Brandy, based on the terms of the lease agreement and applicable provisions of the Little Rock city code, and that it was foreseeable the landlords' failure to provide heat would create an appreciable risk of harm to others.

         Summary judgment may be granted only when it is clear there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Holman v. Flores, 2018 Ark.App. 298, 551 S.W.3d 1. Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appeal, viewing the evidence in the light most favorable to the nonmoving party and resolving all doubts and inferences against the moving party, we determine if summary judgment was appropriate based on whether the moving party's evidence in support of its motion leaves a material fact unanswered. Id. Summary judgment is no longer rarely employed; rather, it is a tool available to the trial court in its efficiency arsenal. Laird v. Shelnut, 348 Ark. 632, 74 S.W.3d 206 (2002); Cumming v. Putman Realty, Inc., 80 Ark.App. 153, 92 S.W.3d 698 (2002). Our appellate review is not limited to the pleadings, as we also focus on affidavits and other documents filed by the parties; however, conclusory allegations are insufficient to create a factual issue in a summary-judgment situation. Holman, supra. Summary judgment is not proper if reasonable minds could reach different conclusions when given the facts. TMG Cattle Co., Inc. v. Parker Commercial Spraying, LLC, 2018 Ark.App. 144, 540 S.W.3d 754.

         It is well settled in Arkansas that unless a landlord agrees with the tenant to repair leased premises, he cannot, in the absence of statute, be compelled to do so or be held liable for repairs. E.E. Terry, Inc. v. Cities of Helena & West Helena, 256 Ark. 226, 506 S.W.2d 573 (1974). Our courts have further held that an assumption of duty by conduct can remove the landlord from the protection of the general rule of nonliability. Denton v. Pennington, 82 Ark.App. 179, 119 S.W.3d 519 (2003). Arkansas Code Annotated section 18-16-110 (Repl. 2015) provides,

No landlord or agent or employee of a landlord shall be liable to a tenant or a tenant's licensee or invitee for death, personal injury, or property damage proximately caused by any defect or disrepair on the premises absent the landlord's:
(1) Agreement supported by consideration or assumption by conduct of a duty to undertake an obligation to maintain or ...

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