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McKim v. Sullivan

Court of Appeals of Arkansas, Division II

October 23, 2019

DAVID L. MCKIM APPELLANT
v.
JACK B. SULLIVAN; 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 APPELLEES

          APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CV-15-208] HONORABLE CHRISTOPHER RAY CARNAHAN, JUDGE

          Dodds, Kidd, Ryan & Rowan, by: Catherine A. Ryan, for appellant.

          Friday, Eldredge & Clark, LLP, by: Michael McCarty Harrison and Kimberly D. Young; and Barber Law Firm PLLC, by: J. Carter Fairley, for separate appellee Jack Sullivan.

          Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Stuart P. Miller and David F. Koehler, for separate appellees Mitchell Collision and Towing Center, Inc., and Sam Mitchell.

          KENNETH S. HIXSON, JUDGE

         Appellant David L. McKim appeals from two separate orders of the Faulkner County Circuit Court granting summary judgment in favor of appellees Jack B. Sullivan (Sullivan) and 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) in a negligence action arising from a motorcycle accident. On appeal, McKim contends that the circuit court erred in granting summary judgment in favor of Sullivan and the Mitchell defendants.[1] We reverse and remand for further proceedings consistent with this opinion.

         I. Relevant Allegation of Facts

         This case involves a motor-vehicle accident between a motorcycle and a motor vehicle that occurred on a county road outside Greenbrier, Arkansas. Generally, McKim, the rider of the motorcycle, alleged that his motorcycle struck debris in the road causing him to lose control and cross the center line striking an oncoming motor vehicle. An accurate description of the scene is helpful to understand the sequence of events that allegedly led to the accident. Elliott Road could be commonly described as a two-lane asphalt-paved road going east/west in the county. The speed limit is thirty-five miles an hour. Traveling west, approaching the scene of the accident, Elliott Road has a sharp banking curve to the right that is described as a blind curve. Coming out of the blind curve on the right (north) is a driveway leading up to a residence at 288 Elliott Road owned by Sullivan's neighbor.[2] That driveway is constructed of gravel. Just a few feet farther down Elliott Road on the left (south) is a driveway leading to a residence at 293 Elliott Road, owned by appellee Sullivan. Sullivan's driveway is constructed of dirt. The two driveways do not precisely align across Elliott Road from one another; rather, a vehicle traveling west would pass the neighbor's gravel driveway to its right before it passed Sullivan's dirt driveway to its left.

         Appellant McKim alleges that at around 8:45 a.m. on Wednesday, June 4, 2014, he was riding his motorcycle to work in the westbound lane of Elliott Road. McKim testified via deposition that as he came around the blind curve to the right, he saw dirt and gravel in the road. McKim testified that the trail of gravel "was coming from - - more from my right [from the neighbor's gravel driveway] to my left [toward Sullivan's dirt driveway], with the majority of the gravel in the center of my [westbound] lane." Further, McKim testified that the source of the gravel in the road was from the neighbor's gravel driveway almost directly across from Mr. Sullivan's dirt driveway. He testified that the type of gravel in the neighbor's driveway was the same as what was in the road. McKim further alleged that he swerved his motorcycle to the right toward the neighbor's driveway to avoid the dirt and gravel in his lane. McKim struck some dirt or gravel which caused him to lose control, lay his motorcycle down, and slide into an oncoming eastbound motor vehicle.

         Days before the motor-vehicle accident, on Sunday evening, June 1, Sullivan had been backing his tractor-trailer up his dirt driveway when it got stuck in a ditch along his passenger side. The following morning, Monday, June 2, Sullivan employed Jim Smith's Wrecker Service to extricate his tractor-trailer from the driveway ditch. McKim alleged in his complaint that as a result of the extrication of the tractor-trailer, dirt and gravel were strewn across Elliott Road. McKim further alleged that on June 4, two days after the extrication of the tractor-trailer, the dirt and gravel from the extrication remained on the roadway, which caused him to lose control of his motorcycle.

         McKim sued Sullivan and Jim Smith, individually and d/b/a Jim Smith Collision and Wrecker Center, Inc. (collectively the Smith defendants), alleging they were negligent by failing to remove the dirt and gravel from the roadway. Sullivan filed an answer generally denying liability.[3] There apparently existed some uncertainty as to the ownership of the Smith defendants or its relationship to another towing service. As a result, McKim subsequently filed an amended complaint and 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. The amended complaint generally alleges that the collective "Defendants" were negligent without alleging any specific facts to explain how the Mitchell defendants in particular were negligent.

         II. Motion for Summary Judgment

         After discovery commenced, Sullivan filed a motion for summary judgment. Neither the Smith defendants nor the Mitchell defendants joined in this motion. In his motion, Sullivan argued that he did not owe either a common-law or statutory duty to prevent natural materials from being deposited onto a public roadway or require their removal. Sullivan more specifically 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." Further, Sullivan claimed that Arkansas Code Annotated section 27-51-1405 (Repl. 2010) does not impose a statutory duty in this case because the statute does not apply to "natural objects," such as dirt, gravel, rocks, or mud. Arkansas Code Annotated section 27-51-1405 provides that

(a)No person shall throw or deposit upon any highway any glass bottle, glass, nails, tacks, wire, cans, or any other substance likely to injure any person, animal, or vehicle upon the highway.
(b)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.
(c)Any person removing a wrecked or damaged vehicle from a public highway, as defined by § 27-51-101, shall remove any glass or other injurious substance dropped upon the public highway from the vehicle.

         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.

         McKim filed a response denying that Sullivan was entitled to a judgment as a matter of law. McKim argued that Sullivan had a statutory duty under both subsections (a) and (b) of Arkansas Code Annotated section 27-51-1405. McKim argued that subsection (a) imposes a duty as it prohibits any person from depositing on any highway any "substance likely to injure any person, animal, or vehicle upon the highway." McKim further argued that subsection (b) imposes a duty as it 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." McKim specifically disagreed with Sullivan's contention that the statute is limited to unnatural objects. Therefore, McKim alleged that both subsections of the statute imposed a duty that Sullivan breached. The parties attached excerpts from the relevant depositions to their pleadings.

         McKim testified by deposition that he lives on Elliott Road and drives to and from work along that same stretch of road six days a week. The tractor-trailer was extricated on Monday morning, June 2. McKim stated that he drove this same stretch of Elliott Road to and from work on Monday, June 2 and Tuesday, June 3. The accident occurred around 8:45 a.m. on Wednesday, June 4. McKim testified that he was riding his motorcycle to work. The speed limit is thirty-five miles an hour. McKim stated that as he came out of the blind curve to the right, he saw some dirt and gravel in the middle of his lane about twenty yards ahead and that he decreased his speed to around twenty-five miles an hour. The gravel appeared to come from the right side of the road from Sullivan's neighbor's ...


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