Noel v. Cox
Noel v. Cox
Opinion of the Court
Paul 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 inappropriate.
I. Facts and Procedural History
The Majestic Lake Village POA consists of a collection of single-family townhomes and certain common areas owned by all the homeowners via the POA.
In July 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.
Noel filed suit against the POA, alleging that the POA did not exercise ordinary care because it failed to install a guard or *513rail 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. Noel 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.
II. Standard of Review
Our 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 ,
III. Analysis
Noel's 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 plaintiff's damages. Branscumb v. Freeman ,
In this negligence action, we must consider whether the POA owed any duty to Noel and, if so, what duty was owed. Young v. Paxton ,
With regard to premises liability, Arkansas courts recognize three basic categories of persons present on another's property: trespasser, licensee, and invitee. A landowner's duty to a person alleging injury varies. We adhere to common-law distinctions between the duties owed to these three categories of persons. Baldwin v. Mosley ,
Noel in his own pleadings informed the trial court that he was a friend of Boettger *514and Smith, that he was visiting them in their homes on the night of the injury, and that their homes are located within the POA. The trial court here determined that Noel was a social guest and, therefore, a licensee. Noel disagrees and makes the argument that while he was a social guest of Smith and Boettger, he was an invitee of the POA for purposes of ingress and egress. His argument, while creative, is not compelling.
A licensee is one who goes on the premises of another with the consent of the owner for one's own purposes and not for the mutual benefit of oneself and the owner. Heigle v. Miller ,
We have also addressed this area in Lloyd v. Pier West Property Owners Association ,
Since Noel was a licensee, what duty did the POA owe him? Generally, a landowner owes a licensee the duty to refrain from injuring the licensee through willful or wanton conduct. To constitute willful or wanton conduct, there must be deliberate intention to harm or an utter indifference to, or conscious disregard of, the safety of others. Young , supra. There is an exception to this general rule; when the landowner discovers that a licensee is in peril, the landowner has a duty of ordinary care to avoid injury to the licensee. Bader , supra. That duty takes the form of warning a licensee of hidden dangers if the licensee does not know or have reason to know of the conditions or risks involved. Heigle,
In granting summary judgment, the trial court determined that Noel was a licensee and that the duty owed by the POA was to refrain from injuring him through wanton and willful conduct. We agree. The court further ruled that the retaining wall in question constituted a danger. We agree that the retaining wall in question constituted a danger. It is also undisputed that the POA at its annual meeting and at several prior board meetings recognized and acknowledged that the retaining wall *515in its current condition was dangerous and that it was an issue of potential liability for the POA. The POA had even discussed the necessity of installing a railing or barrier at that very location where Noel's injuries occurred.
The trial court, however, found that the retaining wall, while dangerous, was open and obvious and that there were no issues of material fact in this regard. The court found that Noel was aware of the retaining wall's existence and that the wall did not contain any fencing, guard rails, or barriers.
Admittedly, Noel was aware of the retaining wall and the lack of barriers upon it. However, a dangerous condition is "obvious" when "both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment." Van DeVeer v. RTJ, Inc. ,
In this case, Noel presented evidence that a reasonable person in his position-walking down stairs at night in an unfamiliar location in dimly lighted conditions onto a small landing bounded by a drop-off-would not have recognized or appreciated the risk of a drop-off from a forty-two-inch retaining wall just a few short feet away and hidden by landscaping. At the very least, he presented sufficient evidence to have these questions submitted to a jury for resolution. Based on the record before us, we simply cannot say that the POA proved as a matter of law that the danger presented in this case was open and obvious. See Hergeth, Inc. v. Green ,
In addition, we conclude that issues of material fact also exist pertaining to the imposition of a duty based upon a contractual assumption to maintain or repair. In Bartley v. Sweetser ,
Here, a question of fact exists as to whether the POA assumed a duty by agreement. Without question, the POA recognized the danger associated with the retaining wall and had discussed building some sort of barrier. However, it never actually attempted to do so, and the accident occurred before any corrective action was taken by the POA. There was also evidence that Boettger had agreed to plant additional azaleas to prevent persons from walking over to the edge of the wall. By doing so, did Boettger relieve the POA of its duty to do more? These are questions of fact that have not been adequately answered.
Based on the facts presented to us, the trial court erred in granting summary judgment. At this juncture, there are just too many questions of fact remaining to rule as a matter of law that the POA is relieved of liability.
Reversed and remanded.
Virden and Klappenbach, JJ., agree.
The POA was originally organized as a horizontal-property regime.
At summary judgment, the trial court was aware that on the night of his injury, Noel was privy to a conversation between Boettger and Smith concerning the lack of a guard rail on the retaining wall located at the bottom of the stairs. While Noel admitted hearing the conversation, he claimed he did not pay too much attention to it.
Reference
- Full Case Name
- Paul NOEL v. Jim COX and Larry Busby, as Representatives of Majestic Lake Village POA
- Cited By
- 8 cases
- Status
- Published