DAYONG YANG, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF LE YANG, DECEASED APPELLANT
CITY OF LITTLE ROCK, ARKANSAS; STUART THOMAS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE FOR THE CITY OF LITTLE ROCK; WAYNE BEWLEY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ASSISTANT CHIEF OF POLICE FOR THE CITY OF LITTLE ROCK; LAURA MARTIN, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS COMMUNICATIONS CENTER MANAGER FOR THE CITY OF LITTLE ROCK; LINDA WILSON, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS COMMUNICATIONS ADMINISTRATOR FOR THE CITY OF LITTLE ROCK; SHARON MARTIN, IN HER OFFICIAL CAPACITY AS COMMUNICATIONS SHIFT SUPERVISOR FOR THE CITY OF LITTLE ROCK; ALAN CATE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS COMMUNICATIONS SHIFT SUPERVISOR FOR THE CITY OF LITTLE ROCK; MARQUITA DOOLEY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS EMERGENCY COMMUNICATIONS TRAINER FOR THE CITY OF LITTLE ROCK; CANDACE MIDDLETON, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS COMMUNICATIONS CALL TAKER FOR THE CITY OF LITTLE ROCK; KAREN GRIMM, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS COMMUNICATIONS SYSTEMS SPECIALIST FOR THE CITY OF LITTLE ROCK; GREGORY L. SUMMERS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS FIRE CHIEF FOR THE CITY OF LITTLE ROCK; ROBERT SHARP, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS FIRE CAPTAIN FOR THE CITY OF LITTLE ROCK; AND FRANK SCOTT AND EDDIE RHINE, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS FIREFIGHTERS FOR THE CITY OF LITTLE ROCK APPELLEES
FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-13-3115]
HONORABLE TIMOTHY DAVIS FOX, JUDGE
Woods, P.A., by: Carter C. Stein, for appellant.
M. Carpenter, City Attorney; William C. Mann, Chief Deputy
City Attorney, by: Rick D. Hogan, Deputy City Attorney, for
DAN KEMP, CHIEF JUSTICE.
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.
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.
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
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.
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.
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).
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).
issue here is whether the City enjoys municipal immunity
pursuant to Arkansas Code Annotated ...