Like v. Pierce

Annotate this Case
Linda LIKE, et al. v. Dave PIERCE, d/b/a D &
M Mobile Home Sales

96-835                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 9, 1996



Judgment -- no genuine issue of material fact shown -- summary 
     judgment for appellee affirmed. -- Where appellant's pleadings
     and proof failed to show a genuine issue of material fact
     establishing her injuries were caused by appellee's
     negligence, the trial court's ruling that appellee was
     entitled to judgment as a matter of law was affirmed.


     Appeal from Pulaski Circuit Court; John B. Plegge, Judge;
affirmed.
     Webb & Doerpinghaus, by:  Doyle Webb, II, for appellant.
     Pope, Ross, Dendy, & Cazort, by:  Robert D. Ross, for
appellee.

     Tom Glaze, Justice.
     Appellant Linda Like brought this tort suit against Dave
Pierce and his business, D & M Mobile Home Sales, after Like
sustained a broken ankle when she was on D & M's premises to tour
some mobile homes.  She alleged that, in order to view the motor
homes, she was required to exit the back door of D & M's office
onto steps, and as she descended from the bottom step onto a gravel
walkway, her ankle turned, causing her to fall.  Like alleged the
business's steps were of a faulty design, too narrow, and too steep
for a safe exit from the office.  Pierce filed a motion for summary
judgment, asserting there was no evidence that Like's injury was
caused by his or D & M's negligence.  The trial court granted
Pierce's motion, from which Like brings this appeal.  We affirm.
     Like argues the trial court erred in finding no issue of
material fact existed.  She first notes that, because she was a
business invitee, D & M owed her a duty to use ordinary care to
maintain its premises in a reasonably safe condition.  Young v.
Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994).  Like further argues
that D & M's back-door exit and staircase provided steps that were
too steep and narrow, and this faulty condition of the steps caused
poor footing onto the gravel.  These allegations, Like suggests,
present material factual issues that remain undecided and are
reasons for reversing and remanding this matter for further
proceedings.
     Pierce concedes Like was a business invitee and, therefore, he
owed a duty to use ordinary care to maintain his premises in a
reasonably safe condition.  Nonetheless, he argues Like still must
show Pierce was negligent and that such negligence was a proximate
cause of her damages.  See AMI Civil 3rd, 203.  Pierce claims the
evidence presented by Like proves neither negligence nor proximate
cause.  We agree.  In Like's deposition, she described exiting
through D & M's back door and going down steep steps which had a
safety rail on the right side.  Like said that she had plenty of
room for her foot on the steps, but when she departed the bottom
step, her "left ankle turned in the gravel and [she] fell forward." 
She recalled the gravel walkway contained big, gray granite.  From
this description, Like simply falls short of showing that either
the stairs or the gravel created a dangerous condition causing her
fall and injuries.
     Like cites the case of Carton v. Missouri Pacific R.R. Co.,
303 Ark. 568, 798 S.W.2d 344 (1974), but that case, we think, only
emphasizes the insufficiency of proof submitted by Like.  The
Carton decision involved an obvious danger where the plaintiff-
driver slipped and fell at the railroad's terminal when walking on
a gravel surface, which had become "dirty, messy and greasy" due to
diesel-fuel spillage.  The Carton court held that, although the
duties of occupiers of land to business invitees usually ends when
the danger is either known or obvious to the invitees, the obvious
danger rule does not bar recovery when the invitee is forced, as a
practical matter, to encounter a known or obvious risk to his job. 
In the present case, Like's proof appears marginal, at best, in
establishing any negligence on Pierce's part in the placement of
the stairs exiting D & M's office, but it is altogether wanting in
Like's attempt to show Pierce's negligence, if any, caused Like's
injuries.  For instance, nothing Like presented showed the gravel
was inherently dangerous or contained some type of substance making
the walkway unreasonably unsafe or dangerous.
     Because Like's pleadings and proof fail to show a genuine
issue of material fact establishing her injuries were caused by
Pierce's negligence, we affirm the trial court's ruling that Pierce
was entitled to judgment as a matter of law.

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