Driggers v. Locke
Annotate this Case
Bob DRIGGERS v. Ken LOCKE
95-598 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered January 16, 1996
1. Judgment -- summary judgment -- when final appealable order
exists. -- In answering the question of whether the summary
judgment is a final, appealable order the court has found that
a party who has several claims against another may not take a
voluntary nonsuit of one claim and appeal an adverse judgment
as to the other claims when it is clear that the intent is to
refile the nonsuited claim and thus give rise to the
possibility of piecemeal appeals.
2. Judgment -- nonsuit was against one of several parties --
where there are multiple parties the disposition of the case
as to fewer than all does not amount to a final appealable
order. -- Here the nonsuit was not with respect to one of
several claims against a party but was a nonsuit with respect
to one of several parties; Arkansas R. Civ. P. 54(b) clearly
states that when there are multiple parties the disposition of
the case as to fewer than all does not amount to a final,
appealable order absent a certification of the Trial Court
that there is no need to delay the entry of a final judgment.
3. Judgment -- finality of judgment where there has been a
nonsuit without prejudice against one of multiple parties
arising out of a single incident -- similar cases have not
been dismissed. -- There is very little authority on the
matter of the finality of a judgment when there has been a
nonsuit without prejudice against one of multiple parties to
litigation arising out of a single incident; the supreme court
has not dismissed other appeals which have come to the court
in this posture.
4. Judgment -- final and appealable order -- where the nonsuit is
to a party and not to an issue in the case -- previous ruling
inapplicable. -- Nothing requires a plaintiff to sue the
prospective defendants simultaneously, if, however, a
plaintiff has a number of claims against a single party, the
doctrine of res judicata will bar issues which could have been
litigated between them but were not; if appellant had sued the
appellees and not joined the other driver, the summary
judgment in favor of the appellees would have unquestionably
been a final, appealable order, and appellant could have sued
the driver later; the fact that he began an action against the
driver and then took a nonsuit left the parties in the same
positions as they would have occupied had the claim against
the driver merely been delayed rather than nonsuited; the
rationale of the Haile case that a party who has several
claims against another may not take a voluntary nonsuit of one
claim and appeal an adverse judgment as to the other claims
when it is clear that the intent is to refile the nonsuited
claim and thus give rise to piecemeal appeals, does not apply
when the nonsuit is as to a party and not an issue in the
case.
5. Torts -- question of whether a duty owed is always a question
of law. -- The question of whether a duty is owed is always a
question of law.
6. Negligence -- duty of landowner at common law -- no duty
imposed to control vegetation for the benefit of users of a
public highway. -- There is no common law duty imposed upon a
landowner to control the vegetation on his property for the
benefit of users of a public highway.
7. Highways -- common law rule adhered to -- court declined to
place the burden of public safety on those whose properties
abut streets and highways. -- Where the order granting summary
judgment did not specify the basis, the appellate court
concluded that the Trial Court agreed there was no duty on the
part of the landowners, otherwise, there would have obviously
been questions of fact to be decided with respect to
causation, and summary judgment would have been inappropriate;
the appellate court declined to reject the common law rule or,
absent legislation to the contrary, place the burden of public
safety on those whose properties abut public streets and
highways.
Appeal from Clark Circuit Court; W.H. "Dub" Arnold, Judge;
affirmed.
Gary Eubanks & Associates, by: James Gerard Schulze and T.
Michael Lee, for appellant.
Huckabay, Munson, Rowlett & Tilley, P.A., by: Beverly A.
Rowlett, for appellee.
David Newbern, Justice.
1/16/95 Justice David Newbern
95-598
BOB DRIGGERS
Appeal from Clark Circuit
Appellant Court (94-67)
v. Honorable W.H. "Dub" Arnold,
Circuit Judge
KEN LOCKE
Appellee Affirmed
Bob Driggers, the appellant, sued Buddy Neal and Ken and
Louann Locke for damages resulting from an automobile accident
which occurred at an intersection in Arkadelphia. The record
reveals that Mr. Driggers was unable to serve Buddy Neal, the
driver of the other vehicle. The allegation against the Lockes was
that holly bushes growing on their property at the intersection so
impaired motorists' ability to see oncoming vehicles as to be a
cause of the accident. The Lockes denied liability and moved for
summary judgment which was entered in their favor. Mr. Driggers
took a voluntary nonsuit of his claim against Buddy Neal and
appealed the summary judgment which we affirm.
1. Finality of the order
Although no issue as to the finality of the order has been
raised by the parties, our recent decision in Haile v. Arkansas
Power & Light Co., 322 Ark. 29, 907 S.W.2d 122 (1995), raises a
question whether the summary judgment is a final, appealable order.
In the Haile case, as we had done in Ratzlaff v. Franz Foods of
Ark., 255 Ark. 373, 500 S.W.2d 379 (1973), we held that a party who
has several claims against another may not take a voluntary nonsuit
of one claim and appeal an adverse judgment as to the other claims
when it is clear that the intent is to refile the nonsuited claim
and thus give rise to the possibility of piecemeal appeals.
This case is different in that the nonsuit is not with respect
to one of several claims against a party; it is a nonsuit with
respect to one of several parties. Arkansas R. Civ. P. 54(b) makes
it clear that when there are multiple parties the disposition of
the case as to fewer than all does not amount to a final,
appealable order absent a certification of the Trial Court that
there is no need to delay the entry of a final judgment. Of
course, as a technical or formal proposition, Mr. Driggers's has no
remaining claim before the Trial Court in view of the nonsuit and
the summary judgment, so Rule 54(b) is not applicable. That does
not, however, answer the question whether the rationale of the
Haile and Ratzlaff cases should apply.
We have found very little authority on the matter of the
finality of a judgment when there has been a nonsuit without
prejudice against one of multiple parties to litigation arising out
of a single incident. We do know that we have not dismissed other
appeals which have come to us in this posture. See, e.g., the
recent case of Bryant v. Putnam, 322 Ark. 284, ____ S.W.2d ____
(1995).
Focusing on the issue more intensely than we did in the Bryant
case, we see at least one distinct flaw in the proposition that the
rationale causing dismissal in cases of voluntary nonsuit of one of
multiple claims against a single party should apply when the
nonsuit is with respect to one of multiple parties. Nothing
requires a plaintiff to sue the prospective defendants
simultaneously. If, however, a plaintiff has a number of claims
against a single party, the doctrine of res judicata will bar
issues which could have been litigated between them but were not.
In Matter of Estate of Goston v. Ford Motor Co., 320 Ark. 699, 898 S.W.2d 471 (1995); Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991). If Mr. Driggers had sued the Lockes and not
joined Buddy Neal, the summary judgment in favor of the Lockes
would have unquestionably been a final, appealable order, and he
could have sued Buddy Neal later. The fact that he began an action
against Buddy Neal and then took a nonsuit leaves the parties in
the same positions as they would have occupied had the claim
against Buddy Neal merely been delayed rather than nonsuited.
The one case we have found which airs a similar issue based on
similar facts is Fassett v. Delta Kappa Epsilon (New York), 807 F.2d 1150 (3d Cir. 1986). The opinion suggests the appeal would
not have been considered final but for the fact that the statute of
limitations had run on the claim against the party nonsuited, thus
the litigation was effectively over. This litigation may also be
over with respect to the claim against Buddy Neal in view of the
apparent inability of Mr. Driggers to serve Mr. Neal and in view of
the Lockes' answer stating, "upon information and knowledge that
Buddy Neal is deceased and therefore is no longer a resident of
Clark County, Arkansas." Regardless of this additional practical
possibility, we hold the rationale of the Haile case does not apply
when the nonsuit is as to a party and not an issue in the case. We
thus proceed to the merits of the summary judgment in favor of the
Lockes.
2. Duty
The Lockes' motion for summary judgment stated, "Owners and
occupiers have no common law duty to maintain their property so as
to ensure that travelers of an abutting highway have an
unobstructed view of intersections," and that the drivers' conduct
constituted "intervening causes" of the accident. Mr. Driggers'
response was a simple denial of both allegations. The order
granting summary judgment did not specify the basis, but we must
conclude the Trial Court agreed there was no duty on the part of
the landowners. Otherwise, there would have obviously been
questions of fact to be decided with respect to causation, and
summary judgment would have been inappropriate. Ark. R. Civ. P.
56(c).
The question of whether a duty is owed is always a question of
law. First Commercial Trust Co. v. Lorcin Eng'g, 321 Ark. 210, 900 S.W.2d 202 (1995). If the Lockes had a duty to maintain the bushes
on their land in such a way as not to obscure the vision of
motorists approaching the intersection, then questions of
negligence involving issues of fact were presented to the Trial
Court. If there was no such duty, summary judgment was
appropriate.
In Ben M. Hogan & Co. v. Krug, 234 Ark. 280, 351 S.W.2d 451
(1961), the plaintiffs were the driver and occupants of a car which
struck a gravel truck when the truck exited property leased by Ben
M. Hogan & Co. (Hogan) after obtaining a load of gravel from Hogan.
The plaintiffs sued the owner and driver of the truck as well as
Hogan. The complaint against Hogan alleged numerous acts of
negligence including an allegation that Hogan was negligent in:
The assembling and maintaining of a stockpile of gravel 25
feet high and 35 feet wide ... which completely obstructed and
cut off the view of the appellee and prevented her from seeing
the ... truck; that Hogan had failed to cut and remove trees,
bushes and vines which had grown on the leased property of the
appellant [Hogan] in such a manner that it had obstructed the
appellee's view ... and prevented her from seeing the ...
truck ....
The bulk of our opinion dealt with an explanation that the piling
of the gravel was not a negligent act and that the actions of the
drivers of the vehicles involved in the collision amounted to
intervening causes of the injuries. In conclusion, however, we
said:
The gravel pile was merely one of the conditions or
surrounding circumstances that were present at the time of the
accident. It was one of the "circumstances" to be considered
in applying the rule of reasonable care "under the
circumstances" in determining the fault or lack of it on the
part of the drivers of the vehicles involved. It was no more
a "cause" of the accident than was any of the other conditions
present, such as: the underbrush and trees which obscured the
view--the dirt and gravel road with less traction for stopping
than one of a different material--the hill which did not allow
an adequate view down the road--the great distance from the
bumper to the windshield of the truck which prevented the
driver from seeing down the road without pulling out on it.
Certainly we are not going to hold liable every property owner
who has a tree alongside the road--the city, county, or state
for not providing the most efficient road surfacing material--
the city, county, or state for failing to level all hills or
straighten out all curves--and manufacturers of vehicles for
not shortening truck noses.
The location of the gravel pile and all of these things
to which we make reference here are circumstances that should
have been considered by [the owner and driver of the truck]
... in applying the rule of reasonable care.
We held a verdict should have been directed in favor of Hogan.
The parties now before us offer, quite understandably,
differing interpretations of the Ben M. Hogan & Co. opinion. Mr.
Driggers sees it as one which "turned entirely on the law of
proximate cause as it existed in 1961" and argues the law has
changed to permit his claim. The Lockes contend the holding was
that Hogan could not have been negligent because it owed no duty to
passing motorists not to erect or maintain on its property items
which would obstruct their view. There would have been no need for
the discussion of intervening causation if we had concluded Hogan
had no duty to the drivers. On the other hand, our language
referring to Hogan's gravel pile, vines, brush, etc., as
"circumstances" which had to be taken into consideration by the
drivers supports the conclusion that Hogan owed no duty to them.
In his brief, Mr. Driggers acknowledges that "there is no
common law duty imposed upon a landowner to control the vegetation
on his property for the benefit of users of a public highway,"
quoting Krotz v. CSX Corp., 115 A.D.2d 310, 496 N.Y.S.2d 190 (A.D.4
Dept. 1985). See William J. Appel, Annotation, Liability of
Private Landowner for Vegetation Obscuring View at Highway or
Street Intersection, 69 A.L.R.4th 1092 (1989). But he cites other
cases from other jurisdictions which he purports to have rejected
the common law rule, and contends the number of states which follow
it is "shrinking."
Mr. Driggers' primary citation in support of the trend he sees
away from the common law rule is Sprecher v. Adamson, 30 Cal. 3d 358, 178 Cal. Rptr. 783, 636 P.2d 1121 (1981). There the
California Supreme Court does, as Mr. Driggers says, point out that
some 13 jurisdictions have held a landowner liable for a natural,
as opposed to artificial, condition resulting in injury to a person
or property off the landowner's premises. The cases are not
helpful here, however. The Sprecher case involved a natural
landslide which physically injured a neighbor's property. It was
held that the owner of the land had a duty to take reasonable
actions to check the landslide. The California Court noted that
all the cases from the other 13 jurisdictions had to do with trees
falling off the landowners' premises. Those cases are nothing new,
and they comport with the view expressed in the Restatement
(Second), Torts, 363(2), which states, "A possessor of land in an
urban area is subject to liability to persons using a public
highway for physical harm resulting from his failure to exercise
reasonable care to prevent an unreasonable risk of harm arising
from the condition of trees on the land near the highway." Comment
e. to that section makes it clear that the danger contemplated is
that resulting not from the presence of the trees but from their
condition, i.e., the probability that they may break and fall on
the highway. See also Prosser and Keeton on Torts, 57 (5th ed.
1984).
There are cases which have held a landowner liable for
obstructing the view of motorists. Mr. Driggers cites a reported
decision of a Delaware trial court denying summary judgment on the
ground that there is such a duty. A defendant in possession of the
land had planted corn up to the shoulder of a rural road at an
intersection. As one basis of possible liability, the Court held
in favor of the plaintiff with respect to the claim that a covenant
specifically restricting those in possession of the land from
obstructing the view of the roadway was binding. With respect to
the duty, generally, the Court denied the summary judgment motion
of the possessor of the land on which the corn grew, citing
Restatement (Second) of Torts, 371. Restatement 371 provides
that,
A possessor of land is subject to liability for physical harm
to others outside of the land caused by an activity carried on
by him thereon which he realizes or should realize will
involve an unreasonable risk of physical harm to them under
the same conditions as though the activity were carried on at
a neutral place.
We have some doubts about the propriety of citing that section in
support of a duty not to obscure view because the illustrative
examples provided in the accompanying comment b. all have to do
with the activity of burning something on the land and causing
smoke to invade the highway. Another reservation we would have
about relying on this case in support of departing from the common
law rule is that the Court's opinion does not mention the rule. We
have no way of knowing if it was even argued in the case.
Mr. Driggers also cites decisions from courts of appeals in
which the duty in question was found to exist, but in none of them
was there a discussion or specific rejection of the acknowledged
common law rule to the contrary. See Wright v. Travelers Ins. Co.,
288 So. 2d 374 (La. App. 1974); Hamric v. Kansas City So. Ry. Co.,
718 S.W.2d 916 (Tex. App. 1986); Harvey v. Hansen, 445 A.2d 1228
(Pa. Sup. 1982). Perhaps the most persuasive of these cases is
Langen v. Rushton, 360 N.W.2d 270 (Mich. App. 1985), in which the
Court said, "We cannot subscribe to a rule of law which would
relieve the modern urban landowner from responsibility for
foreseeable consequences caused by activity which poses an
unreasonable risk of harm." The case involved alleged liability of
the owner of a shopping center for maintaining a tree obscuring the
view of drivers exiting the parking lot. There again, however, the
authority cited was Restatement 363, which we do not, as
mentioned above, consider to be applicable.
The policy reasons in favor of the common law rule have been
stated in terms of the unreasonableness of the burden placed on
landowners to know when vegetation may be such as to cause a hazard
to motorists and to trim or remove the vegetation in a manner so as
to remove the hazard. In Pyne v. Witmer, 512 N.E.2d 993 (Ill. App.
2 Dist. 1987), the Illinois Appellate Court held that Illinois
statutes dealing with nuisances created by landowners imposed no
duty to control foliage in such a manner as to not impede the view
of motorists at intersections. The Court concluded, in response to
the allegation of a common law duty, as follows:
...we conclude, in the absence of a statutory directive to the
contrary, that there is no duty in Illinois on a landowner to
remove foliage on his property so that motorists approaching
an intersection can see other intersecting motorists.
Considering the burden such a duty would impose on private
property owners, we leave the imposition of such a duty to the
legislature.
This same sort of policy balancing occurred in Fritz v.
Parkison, 397 N.W.2d 714 (Iowa 1986), in which the Iowa Supreme
Court considered whether a landowner had a duty to remove trees
which obscured the view of motorists rounding a curve in the
highway. Here are some of the Court's remarks:
While Norton's trees may have required drivers to proceed with
some additional degree of caution, the trees could not
reasonably have been expected to pose any significant threat
to motorists operating their vehicles in a reasonably prudent
manner, and clearly could not be characterized as an
unexpected occurrence like a falling limb or a gaggle of
geese.
***
Ordinarily a landowner in Norton's position would have no
expertise in determining what does or does not constitute
sufficient visibility or in concluding what steps would be
required to select offending trees.
The Court, after mentioning a public policy favoring the planting
of trees and considering the costs to landowners of attempts to
assure appropriate visibility for motorists and the uncertainty
they would have to endure, concluded that "the county and the
motorists are in a much better position to take precautions
sufficient to minimize any danger."
No doubt cities, counties, and states can purchase rights of
way sufficient to allow for foliage removal in connection with the
maintenance of safe curves, intersections, and road shoulders,
applying the expertise necessary to see to their safety. Like the
Iowa Court, we decline to reject the common law rule or, absent
legislation to the contrary, place the burden of public safety on
those whose properties abut public streets and highways.
Affirmed.
Dudley and Glaze, JJ., dissent. 1-16-96
BOB DRIGGERS,
APPELLANT,
V.
KEN LOCKE AND LOUANN LOCKE,
APPELLEES.
95-598
DISSENTING OPINION.
Robert H. Dudley, Justice.
Plaintiff Bob Driggers filed this tort suit against
codefendants Buddy Neal and Ken and Louann Locke. In his
complaint, plaintiff alleged that he was driving his vehicle north
on Tenth Street in Arkadelphia and, while crossing the intersection
of Tenth and Main, defendant Buddy Neal negligently drove his
vehicle into plaintiff's vehicle, and as a result, plaintiff
suffered damages. In the same complaint, plaintiff alleged that
defendants Ken and Louann Locke negligently allowed a "hedge row of
holly bushes and other shrubs" to "extend out to such a distance
that requires vehicles traveling north on Tenth Street to actually
enter the intersection of Tenth and Main before traffic traveling
east on Main Street can be seen" and that their negligence was a
concurrent proximate cause of plaintiff's damages.
Defendants Ken and Louann Locke moved for summary judgment on
the ground that landowners have no duty to maintain their property
so that motorists have an unobstructed view of intersections. The
trial court granted summary judgment. The majority opinion holds
that a possessor of land can, with impunity, allow holly bushes and
other shrubs to grow to such height and size that they obstruct the
view of motorists. I dissent.
The question of whether a duty is owed between parties is a
matter of law. Van Houten v. Pritchard, 315 Ark. 688, 870 S.W.2d 377 (1994). In general, it is the duty of all persons to use
ordinary care for their own safety and the safety of others, unless
a statute or rule of law provides otherwise. See W. Page Keeton et
al., Prosser & Keeton on the Law of Torts 53 (5th ed. 1984). The
inquiry then becomes whether the law provides that a possessor of
land is immune from liability for injuries caused by his or her
lack of ordinary care in maintaining holly bushes and other shrubs.
B. Arkansas Case
The only Arkansas case that discusses even a part of the issue
in this case is Ben M. Hogan Co. v. Krug, 234 Ark. 280, 351 S.W.2d 451 (1961). The majority opinion tacitly admits that case does not
expressly exempt a possessor of land from the duty to exercise
ordinary care in the maintenance of land. Thus, there is no law
providing immunity for a possessor of land who allows ornamental
shrubs to grow so that they block the vision of motorists. The
holding of this court then should be that the possessor of land has
a duty to exercise ordinary care of land so that ornamental shrubs
do not obstruct the vision of motorists.
Further, the cited case actually supports this dissent. In
that case we held that the circuit court erred in denying the
defendant landowner's motion for summary judgment because the
defendant's maintenance of a gravel pile was not negligent and was
not the proximate cause of plaintiff's injuries even though the
pile obstructed the view of drivers at an intersection. Negligence
and intervening cause were issues only because a duty was owed to
motorists. In the case we wrote:
That brings us to a consideration as to whether or
not the appellant was negligent in maintaining on its
property a gravel pile which it is alleged obscured the
vision of the appellee as she drove the car toward the
intersection of the haul road and the County Line Road
where the accident occurred. This lessening of her sight
distance by the gravel pile and the presence of growth of
various kinds is alleged by the appellees to have brought
about the accident.
The piling of the gravel on his own property by
Hogan was not of itself negligent and the only time that
the gravel itself could have brought about an injury
would have been if Hogan had negligently piled it on the
County Road in such a way that a car might strike it or
had it been stacked so close to the County Road that part
of it had sloughed off and damaged vehicles or persons on
the County Road. So far as the gravel piling is
concerned, it could have remained in that spot at that
height indefinitely without causing any damage.
Therefore it cannot in any way be said that the gravel
pile was of itself the proximate cause of the injuries of
which the appellees complain.
Id. at 284, 351 S.W.2d at 453.
We then discussed proximate cause and articulated the
applicable rule as follows:
[T]he rule is that the injury must be the natural and
probable consequence of the act -- such a consequence,
under the surrounding circumstances of the case, as might
and ought to have been foreseen by the defendant as
likely to flow from his act; the act must, in a natural
and continuous sequence, unbroken by any new cause,
operate as an efficient cause of the injury.
Id. at 285, 351 S.W.2d at 453-54 (quoting Comment, Torts -
Proximate Cause - Intervening Force, 1 Ark. L. Rev. 148, 152 (1947)
(emphasis supplied by the court)). We concluded the opinion by
holding that the hauling of gravel by a third person and the
operation of the truck and trailer by that third party intervened
and were sufficient to stand as the cause of the injury. Again, we
would not have discussed negligence and proximate cause if there
were no duty.
In summary, the general rule is that one has a duty to use
ordinary care for his or her own safety and for the safety of
others, unless a statute or rule of law provides otherwise.
Neither of the parties nor the majority opinion cites a statute or
rule of law of this State providing immunity to the landowner. The
general rule should apply, and the possessors of the land should be
held to have owed a duty to maintain the ornamental shrubs so that
they did not obstruct the vision of motorists.
B. Law of Other Jurisdictions
The traditional common law rule is that the possessor of land
is under no affirmative duty to remedy conditions of purely natural
origin upon his land. Nichols v. Sitko, 510 N.E.2d 971 (Ill. App.
1987); Evans v. Southern Holding Corp., 391 So. 2d 231, Rev.
denied, 399 So. 2d 1142 (Fla. Dist. Ct. App. 1981); W. Page Keeton
et al., Prosser & Keeton on the Law of Torts, 57 (5th ed. 1984);
William J. Appel, Annotation, Liability of Private Landowner for
Vegetation Obscuring View at Highway or Street Intersection, 69
A.L.R.4th 1092 (1989). The term "natural condition" of land means
a condition that is not in any way the result of human activity.
See Restatement (Second) of Torts 840 (1) cmt. a (1979); see
generally Prosser, supra; Restatement (Second) of Torts 363
(1965). Ornamental shrubs are the result of human activity.
The nonliability for failure to remedy natural conditions
"originated in times when much land remained uncleared and any duty
placed upon a landowner to cut or remove vegetation on his property
would have been an onerous one." William J. Appel, Annotation,
Liability of Private Landowner For Vegetation Obscuring View at
Highway or Street Intersection, 69 A.L.R.4th at 1098.
Historically, the consideration most frequently invoked to support
the rule of nonliability for natural conditions was that it was
merely an embodiment of the principle that one should not be
obligated to undertake affirmative conduct to aid or protect
others. Sprecher v. Adamson Cos., 636 P.2d 1121 (Cal. 1981);
Restatement (Second) of Torts, 314 (1965); see generally, James,
Scope of Duty in Negligence Cases 47 Nw. U. L. Rev. 778, 800-809
(1953); Dix W. Noel, Nuisances from Land in Its Natural Condition,
56 Harv. L. Rev. 772, 796-797, and n. 102 (1943). This rule rested
on the common law distinction between the infliction of harm and
the failure to prevent it, or misfeasance and nonfeasance.
Misfeasance was determined to exist when a defendant played some
part in the creation of a risk. Nonfeasance occurred when a
defendant failed to intervene on a plaintiff's behalf. Sprecher v.
Adamson Cos., 636 P.2d 1121 (Cal. 1981).
Proponents of the rule of nonliability for natural conditions
argued that a defendant's failure to prevent a natural condition
from causing harm was mere nonfeasance. A natural condition of the
land was by definition, they argued, one which no human being had
played a part in creating. Sprecher v. Adamson Cos., 636 P.2d at
1122; see Dix W. Noel, Nuisances from Land in Its Natural
Condition, 56 Harv. L. Rev. at 773. Therefore, no basis for
liability existed because a duty to exercise reasonable care could
not arise out of possession alone. Since there was no special
relationship between the possessor of land and persons outside the
premises, there could be no liability. See Restatement (Second) of
Torts, 314, cmt. f (1965).
Conversely, a defendant's failure to prevent an artificial
condition from causing harm constituted actionable misfeasance.
Sprecher v. Adamson Cos., 636 P.2d at 1126. Thus, the general rule
has always been that a defendant has a duty to prevent an
artificial condition from causing harm. The Restatement of Torts,
in the material section, states this general rule as follows:
364. Creation or Maintenance of Dangerous
Artificial Conditions.
A possessor of land is subject to liability to
others outside of the land for physical harm caused by a
structure or other artificial condition on the land,
which the possessor realizes or should realize will
involve an unreasonable risk of such harm, if
(a) the possessor has created the condition, or
(b) the condition is created by a third person with
the possessor's consent or acquiescence while the land is
in his possession, or
(c) the condition is created by a third person
without the possessor's consent or acquiescence, but
reasonable care is not taken to make the condition safe
after the possessor knows or should know of it.
Restatement (Second) of Torts 364 (1965).
The general rule is that one owes a duty of ordinary care for
the safety of others, unless a statute or rule of law provides
otherwise. No statute or rule of law provides immunity for a
possessor of land who maintains an artificial condition on his or
her land. The holding in this case should be that the defendant
possessors of land are not immune.
The majority opinion circumvents the issue in part because it
discusses at length cases that involve purely natural conditions.
That is not the condition that is before us. It simply is not
necessary for us to decide whether to follow those states and the
District of Columbia that apply ordinary negligence principles in
determining a possessor's liability for harm caused by a natural
condition. See Sprecher v. Adamson Cos., 636 P.2d 1121 (Cal.
1981), listing thirteen jurisdictions following that rule.
Similarly, it is not necessary for us to decide whether to follow
other jurisdictions that have begun applying ordinary negligence
principles only in urban locations. See Restatement (Second) of
Torts, 363(2) and cmt. a (1965). We need only decide the case
before us, and it involves maintenance of ornamental shrubs in an
urban location.
C. Public Policy
In determining whether a duty exists, a court should consider
the forseeability of harm, the degree of certainty of damages, the
closeness of connection between defendant's conduct and the damage,
the moral blame for the conduct, who could have best prevented the
damage, the policy of preventing future damage, and the overall
consequences to the state for imposing a duty. The motor vehicle
is deeply involved in today's society, transportation, and economy.
Automobile accidents result in a tremendous amount of pain and
suffering and enormous expenses for medical care and property
losses. It is manifest that sound public policy is to prevent the
causes of automobile accidents whenever reasonable and practical.
This policy dictates that roadways should be free from artificial
hazards and that a possessor of land should be liable to motorists
when he or she fails to exercise ordinary care in maintaining
artificial conditions. The possessor of land can easily foresee
that if he or she allows ornamental shrubs to obstruct the vision
of motorists, the result can be car wrecks and the resulting
injuries and damages. The connection is close, and the possessor
of the land is the only one who can prevent the injury and damages.
The correct public policy is obvious.
The public policy solution proposed in the majority opinion
requiring cities, counties, and states to purchase rights of way
sufficient to allow for removal of shrubbery foliage simply misses
the mark. The reasonable, sensible, fair and just solution is to
place the duty on the party who can prevent the accident.
The majority opinion refuses to place the duty where it
belongs. Perhaps the members of the General Assembly and the
members of the city councils will recognize where the duty should
be, and perhaps they will pass laws that prevent a possessor of
land from maintaining holly bushes and other ornamental shrubs that
obstruct the view of motorists.
I dissent.
BOB DRIGGERS,
APPELLANT,
V.
KEN LOCKE,
APPELLEE.
95-598
Opinion Delivered: 1-16-96
DISSENTING OPINION
TOM GLAZE, Associate Justice
I respectfully dissent. I strongly disagree with this court's
attempt to distinguish the recent case of Haile v. Arkansas Power
& Light Co., 322 Ark. 29, 907 S.W.2d 122 (1995). As I understand
the majority opinion, it states the Haile case involved a nonsuit
of one of several claims against a party and the party nonsuiting
intended later to refile the nonsuited claim, giving rise to
possible piecemeal appeals. The majority opinion then relates that
the rationale causing dismissal in cases of nonsuiting one of
multiple claims against a single party (like in Haile) differs from
the case (like the present one) dismissing one of multiple parties.
This suggested difference is based on the fact that, where a
plaintiff has a number of claims against a single party, the
doctrine of res judicata will bar issues which could have been
litigated between them but were not. On the other hand, where the
dismissal of one of multiple parties occurs, the majority suggests
the dismissal leaves all parties in the same positions, since
nothing requires a plaintiff to sue the prospective defendants
simultaneously.
My reluctance to join the majority court's rationale and
distinction between nonsuiting one claim of multiple claims from
one party of multiple parties in the context of Rule 54(b) is the
court's failure to recognize that plaintiffs must often sue and
join all party defendants in one lawsuit. See Ark. Civ. P. Rule
19(a) and Yamauchi v. Bank/Central South, 309 Ark. 532, 832 S.W.2d 241 (1992). In addition and most important, I point out that this
court has held that the fundamental policy of Rule 54(b) is to
avoid piecemeal appeals and that an order of dismissal of one party
or one claim from a multi-party, multi-claim lawsuit may be granted
when the trial court directs the entry of a final judgment as to
one or more of the claims or parties and makes express findings
that there is no just reason to delay the appeal. General Motors
Acceptance Corp. v. Eubanks, 318 Ark. 640, 887 S.W.2d 292 (1994).
Here, the appellant failed to produce a record on appeal showing
the jurisdictional requirements of Rule 54(b). In sum, today's
majority decision simply ignores the simple language of Rule 54(b).
All things considered, I believe the distinction that the
majority court attempts to draw between dismissing claims and
parties in the Rule 54(b) context will be confusing and difficult
to apply in future cases. Accordingly, I believe this case is
controlled by Rule 54(b) and should be dismissed, as was done in
Haile. A litigant's attempt to nonsuit parties and claims to
obtain a final order circumvents the intent and dictates of Rule
54(b) and should not be condoned. I would add that, while this
Rule 54(b) and jurisdiction issue was not joined in the Bryant
case, I think we erred there in accepting jurisdiction and
proceeding to rule on the merits of the case.
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