Yang v. City of Little Rock

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-13-3115] HONORABLE TIMOTHY DAVIS FOX, JUDGE

          McMath Woods, P.A., by: Carter C. Stein, for appellant.

          Thomas M. Carpenter, City Attorney; William C. Mann, Chief Deputy City Attorney, by: Rick D. Hogan, Deputy City Attorney, for appellee.

          JOHN DAN KEMP, CHIEF JUSTICE.

         Appellant Dayong Yang, as special administrator of the estate of his deceased son, Le Yang, appeals an order of the Pulaski County Circuit Court granting summary judgment to appellees City of Little Rock, Arkansas; Stuart Thomas; Wayne Bewley; Laura Martin; Linda Wilson; Sharon Martin; Alan Cate; Marquita Dooley; Candace Middleton; Karen Grimm; Gregory L. Summers; Robert Sharp; Frank Scott; and Eddie Rhine ("the City"). For reversal, Yang argues that the circuit court erred in granting summary judgment on his negligence and civil-rights claims. We affirm.

         I. Facts

         This court provided a full recitation of the facts in City of Little Rock v. Yang, 2017 Ark. 18, 509 S.W.3d 632 ("Yang I"). Yang had filed a wrongful-death action against the City and others over the City's alleged mishandling of a 911 call seeking rescue services for his son. In his third amended complaint, Yang alleged negligence causes of action arising under Arkansas law and civil-rights violations under 42 U.S.C. section 1983, the Fourteenth Amendment to the United States Constitution, and Arkansas law. He also sought compensatory and punitive damages. In Yang I, we affirmed the circuit court's denial of the City's motion for summary judgment on the negligence claims. We held that the City and its employees had failed to plead and prove that it was entitled to municipal immunity. We reversed the circuit court's denial of summary judgment on Yang's negligence claims against MEMS. Id., 509 S.W.3d 632.

         On remand, the City moved for summary judgment on Yang's negligence claims and asserted municipal immunity. Specifically, the City claimed that it had no general-liability coverage under Arkansas Code Annotated section 21-9-301 (Repl. 2016). With its motion, the City submitted affidavits from Bruce Moore, city manager, and Stacey Witherell, human-resources director. In their affidavits, they stated that the City did not possess any general-liability insurance policy that would cover Yang's claims. The City did not seek dismissal of Yang's civil-rights claims in its motion. Yang filed his response to the City's renewed motion for summary judgment and argued that it should be denied because this court had ruled on the City's affirmative defense of municipal immunity, and alternatively, that the City had failed to establish a prima facie entitlement to summary judgment.

         On April 13, 2017, the circuit court entered an order granting the City's motion for summary judgment and dismissing the City with prejudice. Yang subsequently filed a motion requesting modification of the circuit court's order. He asked the circuit court to clarify that the City had not been dismissed with prejudice because Yang's section 1983 claims remained pending. The City responded that the circuit court was within its discretion to issue the order dismissing the City with prejudice. On May 25, 2017, the circuit court denied Yang's motion requesting modification of the order. Yang now brings his appeal.^[1]

         II. Negligence Claims

         For his first point on appeal, Yang argues that the circuit court erred in granting summary judgment in favor of the City. Specifically, Yang contends that the City did not prove any entitlement to municipal immunity under Arkansas Code Annotated section 21-9-301 because it failed to prove its lack of general-liability insurance coverage.

         A circuit court will grant summary judgment only when it is apparent that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to judgment as a matter of law. Cannady v. St. Vincent Infirmary Med. Ctr., 2018 Ark. 35, 537 S.W.3d 259. The burden of proof shifts to the opposing party once the moving party establishes a prima facie entitlement to summary judgment, and the opposing party must demonstrate the existence of a material issue of fact. Id., 537 S.W.3d 259. After reviewing the undisputed facts, the circuit court should deny summary judgment if, under the evidence, reasonable minds might reach different conclusions from the same undisputed facts. Id., 537 S.W.3d 259. On appeal, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party leave a material question of fact unanswered. Id., 537 S.W.3d 259. This court views 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., 537 S.W.3d 259. This review is not limited to the pleadings but also includes the affidavits and other documents filed by the parties. Id., 537 S.W.3d 259; see also Ark. R. Civ. P. 56(c).

         The issue of whether a government defendant is immune from suit at the summary-judgment stage is purely a question of law. Repking v. Lokey, 2010 Ark. 356, 377 S.W.3d 211; City of Fayetteville v. Romine, 373 Ark. 318, 284 S.W.3d 10 (2008); Baldridge v. Cordes, 350 Ark. 114, 85 S.W.3d 511 (2002). On appeal, this court reviews the issue of immunity de novo. Repking, 2010 Ark. 356, 377 S.W.3d 211; Cooper Realty Inv., Inc. v. Ark. Contractors Licensing Bd., 355 Ark. 156, 134 S.W.3d 1 (2003) (stating that the interpretation and application of an Arkansas statute is a question of law, which this court reviews de novo).

         The issue here is whether the City enjoys municipal immunity pursuant to Arkansas Code Annotated ...