Shackelford v. Patterson

Juanita Duke SHACKELFORD, Administratrix of
the Estate of James Anthony Shackelford,
Deceased v. Carrick H. and Pat T. PATTERSON,
Husband and Wife; Arkansas Power & Light
Company; John Doe 1, Electrician; and John
Doe 2, Boat Hoist Manufacturer

96-178                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 3, 1997


1.   Judgment -- summary judgment -- when granted. -- Summary judgment is
     a remedy that should be granted only when it is clear that
     there is no genuine issue of material fact to be litigated;
     the burden of proving that there is no genuine issue of
     material fact is upon the movant, and all proof submitted must
     be viewed in a light most favorable to the party resisting the
     motion; any doubts and inferences must be resolved against the
     moving party; the burden in a summary-judgment proceeding is
     on the moving party and cannot be shifted when there is no
     offer of proof on a controverted issue; when the movant makes
     a prima facie showing of entitlement, the respondent must meet
     proof with proof by showing genuine issue as to a material
     fact; summary judgment should not be granted when reasonable
     minds could differ as to the conclusions that can be drawn
     from the facts presented.

2.   Judgment -- summary judgment -- material question of fact remained to be
     resolved -- reversed and remanded. -- Where there was evidence that
     the deceased, who may well have been fatigued by a swim to
     shore in his clothes, received a shock in the water; where
     there was proof that his companions felt electricity in the
     water ten to twelve feet in front of appellees' boat dock;
     where one of the deceased's companions stated that the
     electricity pulled energy from him and another saw electrical
     wire looped into the water; where appellant's expert witness
     opined that the electricity leaked into the water by a
     defective cable was sufficient to cause a person's death; and
     where appellees submitted no contravening affidavit or proof
     in response to the expert's affidavit, the supreme court,
     concluding that where the deceased received the fatal electric
     shock was a material question of fact for the jury to resolve,
     reversed and remanded the matter for further proceedings.


     Appeal from Garland Circuit Court; Tom Smitherman, Judge;
reversed and remanded.
     McMath Law Firm, by: Mart Vehik; and Tapp Law Firm, by: Sky
Tapp, for appellant.
     Richard H. Wootton, P.A., by: Richard H. Wootton, for
appellee.

     Robert L. Brown, Justice.
     This appeal is from an order of summary judgment in a
wrongful-death and survival action brought by appellant Juanita
Duke Shackelford, administratrix of the estate of James Anthony
Shackelford (James), against appellees Carrick H. and Pat T.
Patterson as well as Arkansas Power and Light Company (AP&L) and
others.  Summary judgment was granted in favor of the Pattersons,
and an appropriate certification for purposes of appeal was made
pursuant to Ark. R. Civ. P. 54(b).  Juanita Shackelford contends on
appeal that issues of material fact remain to be resolved regarding
the death of her son, James, which renders summary judgment
inappropriate.  We agree that at least one material fact must be
determined, and we reverse the order of summary judgment and remand
for further proceedings.
     On May 11, 1991, James and three teenage friends (Thomas James
McDaniel, Larry Wayne Kennedy, and Joseph Faulkner) were in a canoe
on Lake Hamilton in Garland County at about 11:30 at night.  The
boys attempted to shift position in the canoe, and it capsized. 
James told his friends that he would swim to shore, which was about
50 to 60 yards away, remove his clothes, and come back to help. 
Joseph Faulkner stayed with the other two boys, one of whom was in
a life jacket, to assist them in swimming to shore.  As the three
boys made their way to shore, they heard James cry out for help.
     When the boys came closer to land, they saw a boat dock and
felt a tingling in the water, which they attributed to electricity. 
Faulkner testified in his deposition that this occurred 10 to 12
feet from the boat dock.  The boys swam away from the electricity. 
McDaniel, who was in a life preserver, testified in his deposition
that the tingling sensation "pulled the energy from you."  Kennedy
testified in his deposition that the electric current felt in the
water was not strong but that they were "fixing to get in it," and
that is why they swam away.  When the three boys got to shore, they
could not find James.  They alerted the Pattersons, who resided in
a house by the boat dock.  The cause of death apparently was by
drowning, with trauma caused by electric shock.
     In her first amended complaint, Juanita Shackelford sued the
Pattersons for negligently installing electrical wiring to the boat
dock which caused the wrongful death of her son.  She alleged that
a portion of the wiring cable had a cut in it and had dropped in
the water and electrified both the water and the dock.  She further
asserted that the Pattersons knew they had electrical problems at
the boat dock because electricity in the water had shocked a
neighbor a year preceding James's death.  Since they had knowledge
of the danger, Shackelford alleged that the Pattersons were guilty
of willful and wanton misconduct.  She also claimed that Carrick
Patterson was guilty of willful and wanton misconduct in wiring the
boat hoist in violation of established standards.
     The Pattersons moved for summary judgment on the ground that
James was a trespasser on their boat dock at the time of his death
and that no duty of care is owed to an unknown trespasser.  Various
affidavits and depositions were attached in support of the motion. 
Carrick Patterson averred in an affidavit that he had no notice
James was on his property and no notice of an electrical problem
prior to James's death except a year or two before the accident
when the electrical outlet from shore was under water.  In a later
deposition, Carrick Patterson stated that he did the electrical
wiring from the outlet on shore to the boat dock for the boat
hoist.  He also made repairs to the wiring.  He stated that he
never saw the wire or cable in the water on the night of the
accident.
     Joseph Faulkner testified in his deposition that Carrick
Patterson told him the night James died: "You should have seen Aunt
Ethel ... when she got shocked out there about a year ago." 
Faulkner also testified in his deposition that he stuck his hand in
the water after walking out on the boat dock and was shocked. 
Larry Wayne Kennedy confirmed that Carrick Patterson said that
electricity previously had leaked from the outlet leading to the
boat dock.  He also related that when he touched the handrail on
the boat dock, the electricity "knocked [his] arm off."
     Shackelford's response to the summary-judgment motion was (1)
the Patterson dock was a "use" and not a property right that would
invoke landowner defenses; (2) if James was on the Patterson
property, he was there by necessity, which triggers a duty of care
owed by the Pattersons; and (3) it had not been proven that James
actually reached the boat dock and died as a result of that as
opposed to an electric shock in the water.  In support of her
response, Shackelford attached a report from the State Crime
Laboratory which revealed a quarter-inch cut in the cable wiring
that serviced the boat dock.  The report also noted that the plug
to the cable contained a defect that caused a short circuit.  The
report concluded that the defect "could have caused considerable
leakage of electrical current from the hot brown circuit wire into
the neutral grounding wire."  In addition, Shackelford attached the
affidavit of Austin Bollen, an electrical engineer, who concluded
that the energized ground wire coupled with the cut in the cable
would cause electricity to leak into the lake, once it came in
contact with the water.  According to Bollen, the amount of
electricity available for leakage would have been sufficient to
cause death.
     On the issue of whether the wire was touching the water on the
night of James's death, Carrick Patterson stated in his deposition
that he never saw the wire in the water.  Pat Patterson related in
her deposition that it was pointed out to her by one of the boys on
the night of the accident that part of a wire was in the water off
the gangplank.  Larry Wayne Kennedy confirmed that the wire "looped
down through the water."
     The trial court granted summary judgment in favor of the
Pattersons on the basis that they were the owners or occupants of
the boat dock and that James was a trespasser on that dock.  The
trial court concluded that no duty of care was owed by the
Pattersons to James because they did not know that he was on their
property until after the occurrence.
     Shackelford now contends on appeal that the trial court erred
in granting summary judgment and assigns eight reasons for that
error:
          (1)  The Pattersons submitted no valid proof that James
     came in contact with the boat dock.  Thus, landowner defenses
     such as James's alleged trespasser status do not come into
     play.
          (2)  There is a disputed issue of fact on whether James
     received the fatal electric shock in the water or when he
     touched the boat dock.  If he did not touch the boat dock,
     landowner defenses are not relevant.
          (3)  The Pattersons' ownership of the boat dock is a non-
     possessory use on the lake and not a real property interest. 
     Landowner defenses do not pertain to non-possessory usage.
          (4)  The Pattersons built the boat dock without a permit
     from the owner of the lake (AP&L), which makes them
     trespassers.  Trespassers cannot claim a trespasser defense
     against third parties.
          (5)  Any entry by James on the Pattersons' property was
     due to necessity and, therefore, was privileged.  His entry by
     necessity gives him the status of licensee.  If the Pattersons
     should have known that he might be present on their property,
     they owed him the duty not to cause injury by willful or
     wanton misconduct.
          (6)  There is evidence that the Pattersons engaged in
     willful and wanton misconduct by negligently installing the
     electrical wiring near water and in failing to repair the
     wiring adequately after prior notice of a defect.
          (7) The recreational-defense statutes [Ark. Code
     Ann.  18-11-301 to 18-11-307 (1987 & Supp. 1995)], do
     not provide a defense for the Pattersons.
          (8)  The Pattersons owed a duty to others based on their
     implied agreement with AP&L to maintain the boat dock in a
     safe condition.
     We have summarized our standard of review for summary judgment
many times.  For example, in Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995), we stated:
          Summary judgment is a remedy that should be granted
     only when it is clear that there is no genuine issue of
     material fact to be litigated.  [Citation omitted.]  The
     burden of proving that there is no genuine issue of
     material fact is upon the movant, and all proof submitted
     must be viewed in a light most favorable to the party
     resisting the motion.  Any doubts and inferences must be
     resolved against the moving party.  [Citations omitted.] 
     The burden in a summary judgment proceeding is on the
     moving party and cannot be shifted when there is no offer
     of proof on a controverted issue.  [Citation omitted.] 
     When the movant makes a prima facie showing of
     entitlement, the respondent must meet proof with proof by
     showing genuine issue as to a material fact.  [Citation
     omitted.]
Brumley, 320 Ark. at 315, 896 S.W.2d  at 863, quoting Wyatt v. St.
Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994). 
We have further stated that summary judgment should not be granted
when reasonable minds could differ as to the conclusions that can
be drawn from the facts presented.  Craig v. Taylor, 323 Ark. 363,
915 S.W.2d 257 (1996); Schmidt v. Gibbs, 305 Ark. 383, 807 S.W.2d 928 (1991); Lee v. Doe, 274 Ark. 467, 626 S.W.2d 353 (1981).
     We agree with Shackelford that a disputed issue of fact
remains to be decided as to whether James received the fatal charge
before he reached the boat dock.  The Pattersons contended in their
brief and at oral argument that the evidence is conclusive that
James reached the boat dock.  They refer in particular to a police
report by Lieutenant Larry Selig of the Garland County Sheriff's
Department, who was told by another police officer who retrieved
James's body that his arms were looped around a metal post at the
end of the boat dock.  The Pattersons further assert that James had
rust on his hands, arms, face, and clothes and that his body,
according to two of the boys, was found at the end of the boat
dock.  Hence, they urge that James's contact with the boat dock is
an issue where reasonable minds cannot differ, and it is
appropriately resolved as a matter of law.  See, e.g., Tyson Foods,
Inc. v. Adams, 326 Ark. 300, 930 S.W.2d 374 (1996); Anthony v.
Kaplan, 324 Ark. 52, 918 S.W.2d 174 (1996); Brunt v. Food 4 Less,
Inc., 318 Ark. 427, 885 S.W.2d 894 (1994).
     Shackelford vigorously objects to the trial court's
consideration of Lieutenant Selig's police report because it was
not made under oath, it contained hearsay, and it was not timely
presented.  We believe that the police report, as presented, had
dubious probative value.  But even if the trial court appropriately
considered the police report, we conclude that a fact question
still remains as to (a) whether James received the fatal electric
shock before he reached the boat dock, or (b) whether the shock in
the water coupled with the shock upon touching the boat dock
resulted in his demise, or (c) whether he died solely from the
shock experienced upon touching the boat dock.
     There is certainly evidence that James, who may well have been
fatigued by the swim to shore in his clothes, received a shock in
the water.  There is proof that the boys felt the electricity in
the water 10 to 12 feet in front of the boat dock.  Thomas James
McDaniel stated that the electricity pulled energy from him.  Larry
Wayne Kennedy saw the wire looped into the water.  Shackelford's
expert witness, Austin Bollen, opined that the electricity leaked
into the water by the defective cable was sufficient to cause a
person's death.  No contravening affidavit or proof was submitted
by the Pattersons in response to Bollen's affidavit.  Resolution of
where James received the fatal shock is critical because it goes to
his status with respect to the Pattersons and what duty of care was
owed.  Hence, we conclude that where James received the fatal
electric shock was a material question of fact for the jury to
resolve.  Ark. R. Civ. P. 56(c).
     Shackelford further argues that even if James did reach the
boat dock and received the electric shock as a consequence, this
brings into play other fact questions.  For example, she contends
that the Pattersons were not persons to whom an owner or occupant
defense applied because of their mere possessory interest in the
boat dock and, in addition, that James's presence at the boat dock
was privileged because he was there only to save himself.  See
Restatement (Second) of Torts  197 (1965).  According to
Shackelford, the privilege of necessity made James a licensee.  Due
to our holding that a material issue of fact remains to be resolved
regarding where the fatal shock was received, we find it
unnecessary to address these other issues which undoubtedly will be
developed in the trial court.
     We reverse and remand the matter to the trial court for
further proceedings.