Karen Powell v. Centerpoint Energy Arkla and Crumley Company, Inc.
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
LARRY D. VAUGHT, JUDGE
DIVISION II
CA07298
December 19, 2007
KAREN POWELL
APPELLANT
APPEAL FROM THE POPE COUNTY
CIRCUIT COURT
[CV04486]
V.
CENTERPOINT ENERGY ARKLA and
CRUMLEY COMPANY, INC.
APPELLEES
HON. JOHN S. PATTERSON,
CIRCUIT JUDGE
AFFIRMED
This appeal arises from a lawsuit filed by appellant Karen Powell after she sustained
injuries when she fell into a hole while walking in a grassy area owned by Centerpoint
Energy. On appeal, Powell argues that the trial court erroneously granted summary judgment
in favor of Centerpoint and Crumley and asks us to reinstate her lawsuit. We decline to do
so.
On October 7, 2003, Powell was walking her grandson across a utility easement to
obtain a closer view of a train the two were watching. Before reaching their destination,
Powell stepped into a hole and suffered various injuries. In her deposition, Powell admitted
that she did not seek or secure permission to enter onto the easement. She filed suit against
Centerpoint and the Crumley Company (who she claimed was doing work on the property),
alleging that Centerpoint had directed that the hole be dug for utilitymaintenance purposes
and that the condition of the hole breached Centerpoint’s “duty to maintain the area in a safe
condition.”
After hearing from the parties, the trial court concluded that undisputed facts showed
that Powell was a trespasser, and as such Centerpoint could only be liable if it breached the
duty owed a trespasser. The court concluded that the facts demonstrated no such breach and
granted summary judgment in Centerpoint/Crumley’s favor. It is from this decision that
Powell appeals.
A trial court should only grant summary judgment when it is clear that there are no
genuine issues of material fact to be litigated, and the moving party is entitled to judgment
as a matter of law. Castaneda v. Progressive Classic Ins. Co., 357 Ark. 345, 166 S.W.3d 556
(2004). Once the moving party has established a prima facie entitlement to summary
judgment, the opposing party must meet proof with proof and demonstrate the existence of
a material issue of fact. Id. On review, we determine if summary judgment was appropriate
based on whether the evidentiary items presented by the moving party in support of its
motion leave a material fact unanswered, viewing the evidence in the light most favorable
to the party resisting summary judgment. Id.
Here, there is no doubt—based on Powell’s own testimony—that she was a trespasser.
1
As a matter of law, an owner or occupier owes a trespasser no duty until her presence on
1
An easement is a property right and is entitled to all the constitutional safeguards
afforded to other property rights. Ark. State Highway Comm’n. v. Ark. Power & Light Co.,
231 Ark. 307, 330 S.W.2d 77 (1959).
2
the premises is known; then the occupant owes the trespasser only a duty not to cause her
injury by willful or wanton conduct. Sw. Bell Tel. Co. v. Davis, 247 Ark. 381, 445 S.W.2d
505 (1969). When asked in her deposition if the owners of the easement had any knowledge
of her presence on the property, she responded: “I don’t think so.” This testimony alone
established that Powell was an “unknown” trespasser, and as such no duty was owed.
Furthermore, assuming for purposes of argument that her presence was known, there
was no evidence presented to establish any willful or wanton conduct on the part of
Centerpoint. Therefore, the trial court’s grant of summary judgment in Centerpoint’s favor
must stand.
Affirmed.
MARSHALL and MILLER, JJ., agree.
3
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