FROM THE PULASKI COUNTY CIRCUIT COURT, NINTH DIVISION [NO.
60CV-13-4068] HONORABLE MARY SPENCER MCGOWAN, JUDGE
King Law, by: Kenneth J. Mitchell, for appellant.
Donovan & Tilley, P.A., by: Richard N. Watts and Staci
Dumas Carson, for appellees.
M. GLOVER, Judge.
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.
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.
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.
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.
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.
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
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)
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
(1) Agreement supported by consideration or assumption by
conduct of a duty to undertake an obligation to maintain or