FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CV-17-626]
HONORABLE LYNN WILLIAMS, JUDGE.
Scott Hickam, for appellant.
Monson, Rowlett, Moore and Boone, P.A., by: Beverly A.
Rowlett and Mark S. Breeding, for appellees.
PHILLIP T. WHITEAKER, Judge.
Noel appeals from a Garland County Circuit Court order
granting summary judgment in favor of Jim Cox and Larry
Busby, as representatives of Majestic Lake Village POA
(collectively "POA") on his personal-injury claim.
We reverse and remand because there are unresolved questions
of fact in this case rendering summary judgment
Facts and Procedural History
Majestic Lake Village POA consists of a collection of
single-family townhomes and certain common areas owned by all
the homeowners via the POA. Noel is not a homeowner within
the POA. He resides in a subdivision adjacent to the POA.
Noel is friends with Timothy Boettger and Greg Smith, who own
two of the townhomes located within the boundaries of the
Majestic Lake Village POA. At times, Noel would visit the
homes of Boettger and Smith. To visit Boettger and Smith,
Noel would access the POA property through a gate that
adjoins his subdivision and walk down a common area owned by
the POA. This common area contains a boardwalk that runs
along the lake. In certain areas along the boardwalk, the POA
maintains retaining walls. As part of its maintenance,
however, the POA did not include any guard rails, fencing, or
other barriers along the retaining walls.
2016, Noel was injured after falling off a retaining wall in
the common area of the POA after visiting with Boettger and
Smith. On the night of the accident, Noel walked from his
home to Smith's home using the boardwalk in question. The
path that Noel traveled also included the retaining wall at
issue. Shortly thereafter, Smith and Noel walked over to
Boettger's home where they sat on Boettger's back
deck and talked. At approximately 10:00 p.m., Noel headed
home, walking down the back stairs from the Boettger home to
a landing area where the boardwalk is located. In the dark,
he fell over the retaining wall onto the boardwalk,
sustaining an injury.
filed suit against the POA, alleging that the POA did not
exercise ordinary care because it failed to install a guard
or rail on the top of the retaining wall. The trial court
ultimately granted summary judgment to the POA, finding that,
as a matter of law, Noel's status was that of a licensee,
that the POA's only duty was to warn Noel of hidden
dangers, and that Noel was admittedly aware that the
retaining wall lacked a guard rail.
appeals the trial court's summary-judgment order, arguing
that he was an invitee, not a licensee; that the POA had
assumed a duty of ordinary care to fix any dangerous
conditions; and that there were genuine issues of material
fact as to whether the retaining wall was an open and obvious
danger to Noel.
Standard of Review
standard of review in summary-judgment cases is well settled.
Our court need only decide if the grant of summary judgment
was appropriate based on whether the evidence presented by
the moving party left a material question of fact unanswered.
Moses v. Bridgeman, 355 Ark. 460, 139 S.W.3d 503
(2003). Here, the POA was the moving party and bore the
burden of sustaining a motion for summary judgment.
Id. We must view all proof in the light most
favorable to the resisting party-Noel-and any doubts and
inferences must be resolved against the moving party-the POA.
Id. The POA, as the moving party, is entitled to
summary judgment if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue of
material fact and that it is entitled to judgment as a matter
of law. Id. Summary judgment should not be granted
when reasonable minds could differ as to the conclusions that
can be drawn from the facts presented. Id.
claim is one of negligence. In order to prevail on a claim of
negligence, the plaintiff must prove that the defendant owed
a duty to the plaintiff, that the defendant breached that
duty, and that the breach was the proximate cause of the